[Federal Register Volume 89, Number 185 (Tuesday, September 24, 2024)]
[Rules and Regulations]
[Pages 77972-78064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19587]



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Vol. 89

Tuesday,

No. 185

September 24, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Atlantic Shores South Project Offshore 
of New Jersey; Final Rule

  Federal Register / Vol. 89, No. 185 / Tuesday, September 24, 2024 / 
Rules and Regulations  

[[Page 77972]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

RIN 0648-BL73
[Docket No. 240827-0228]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Atlantic Shores South Project 
Offshore of New Jersey

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

ACTION: Final rule.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, the National Marine Fisheries 
Service (hereafter, ``NMFS'') promulgates regulations to govern the 
incidental taking of marine mammals by Atlantic Shores Offshore Wind 
Project 1, LLC, the project company of the original applicant, Atlantic 
Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore 
Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and 
Shell New Energies US LLC, during the construction of the Atlantic 
Shores South Project (hereafter, ``Atlantic Shores South'' or the 
``Project''), an offshore wind energy project located in Federal and 
State waters offshore of New Jersey, specifically within the Bureau of 
Ocean Energy Management (hereafter, ``BOEM'') Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (hereafter, ``OCS'') Lease Areas OCS-A-0499 and OCS-
A-0570 (hereafter, ``Lease Areas'') and along export cable routes to 
sea-to-shore transition points. The Project will be divided into 2 
projects in 2 areas: Project 1 and Project 2 (the combined hereafter 
referred to as the ``Project Area''), over the course of 5 years 
(January 1, 2025, through December 31, 2029). Of note, the proposed 
rule for this action named only OCS-A-0499 and the parent company, 
Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each 
component of the Project (i.e., Project 1 is controlled by Atlantic 
Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by 
Atlantic Shores Offshore Wind Project 2, LLC). However, after 
publication of the proposed rule, Atlantic Shores Offshore Wind LLC 
notified NMFS that this rulemaking should be issued for Atlantic Shores 
Offshore Wind Project 1, LLC (``Project Company 1''). Furthermore, 
Project Company 1 now maintains ownership of both Project 1 and Project 
2, rather than 2 separate subsidiaries for each of Project 1 and 
Project 2. As a result of this, the applicant requested that the Letter 
of Authorization (hereafter, ``LOA''), if issued, be issued to Project 
Company 1, which would oversee the construction of both Project 1 and 
Project 2 (where the latter Project would be operated by ``Atlantic 
Shores Offshore Wind Project 2, LLC'' (``Project Company 2'')). These 
regulations, which allow for the issuance of a LOA for the incidental 
take of marine mammals during construction-related activities within 
the Project Area during the effective dates of the regulations, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat as well as requirements pertaining to the 
monitoring and reporting of such taking.

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

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of Project Company 1's Incidental Take Authorization 
(hereafter, ``ITA'') application, supporting documents, received public 
comments, and the proposed rulemaking, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This final rule, as promulgated, provides a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to allow the 
take of marine mammals incidental to construction of the Project within 
the Project Area. NMFS received a request from Project Company 1 to 
incidentally take 16 species of marine mammals, comprising 17 stocks 
(i.e., 9 species by Level A harassment and Level B harassment and 7 
species by Level B harassment only), incidental to Project Company 1's 
5 years of construction activities. No mortality or serious injury is 
anticipated or allowed in this final rulemaking. Please see the Legal 
Authority for the Final Action section below for definitions of 
harassment, serious injury, and incidental take.

Legal Authority for the Final Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    Allowing for and authorizing incidental takings shall be granted if 
NMFS finds that the taking will have a negligible impact on the species 
or stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). If such findings are made, NMFS must: (1) prescribe 
the permissible methods of taking; (2) analyze ``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 (hereafter referred to as ``mitigation''); and (3) 
enact requirements pertaining to the monitoring and reporting of such 
takings.
    As noted above, no serious injury or mortality is anticipated or 
allowed in this final rule. Relevant definitions of MMPA statutory and 
regulatory terms are included below:
     U.S. Citizens--individual U.S. citizens or any corporation 
or similar entity if it is organized under the laws of the United 
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 
216.103);
     Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (see 16 U.S.C. 
1362(13); 50 CFR 216.3);
     Incidental harassment, incidental taking, and incidental, 
but not intentional, taking--an accidental taking. This does not mean 
that the taking is unexpected, but rather it

[[Page 77973]]

includes those takings that are infrequent, unavoidable, or accidental 
(see 50 CFR 216.103);
     Serious Injury--any injury that will likely result in 
mortality (see 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 (see 16 U.S.C. 1362(18); 50 CFR 216.3); and
     Level B harassment--any act of pursuit, torment, or 
annoyance which has the potential to disturb a marine mammal or marine 
mammal stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (see 16 U.S.C. 1362(18); 50 CFR 216.3).
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for proposing 
and, if appropriate, issuing regulations and an associated LOA. This 
final rule establishes permissible methods of taking and mitigation, 
monitoring, and reporting requirements for Project Company 1's 
construction activities.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
     The allowed take of marine mammals by Level A harassment 
and/or Level B harassment;
     No allowed take of marine mammals by mortality or serious 
injury;
     The establishment of a seasonal moratorium on pile driving 
of foundation piles during the months of the highest presence of North 
Atlantic right whales (Eubalaena glacialis) in the Lease Areas (January 
1st through April 30th, annually, and in December unless it is 
necessary to complete the Project and if it is approved by NMFS to 
minimize the number of North Atlantic right whale takes);
     A requirement for NOAA Fisheries-approved Protected 
Species Observers (hereafter, ``PSOs'') and Passive Acoustic Monitoring 
(hereafter, ``PAM'') operators (where required) to conduct both visual 
and passive acoustic monitoring before, during, and after select 
activities;
     A requirement for training for all Project Company 1 
personnel to ensure marine mammal protocols and procedures are 
understood;
     The establishment and implementation of clearance and 
shutdown zones for all in-water construction activities to prevent or 
reduce the risk of Level A harassment and to minimize the risk of Level 
B harassment;
     A requirement to use sound attenuation devices during all 
foundation pile driving installation activities to reduce noise levels 
to those modeled assuming 10 decibels (dB);
     A delay to the start of foundation installation if a North 
Atlantic right whale is observed at any distance by PSOs or 
acoustically detected within the PAM Clearance/Shutdown Zone (10 
kilometer (km) (6.21 miles (mi));
     A delay to the start of foundation installation if other 
marine mammals are observed entering or within their respective 
clearance zones;
     A requirement to shut down pile driving (if feasible, 
otherwise ``powering down'' (i.e., reducing the impact hammer's energy) 
is required) if a North Atlantic right whale is observed at any 
distance or if any other marine mammals are observed entering their 
respective shutdown zones;
     A requirement to conduct sound field verification (SFV) 
during foundation pile driving to measure in situ noise levels for 
comparison against the modeled results;
     A requirement to implement soft-starts during all impact 
pile driving using the least amount of hammer energy necessary for 
installation;
     A requirement to implement ramp-up during the use of non-
binary high-resolution geophysical (HRG) marine site characterization 
survey equipment;
     A requirement to monitor the relevant Right Whale 
Sightings Advisory System, the United States' Coast Guard's Channel 16, 
and NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, as well as reporting any sightings to the sighting 
network;
     A requirement to implement various vessel strike avoidance 
measures;
     A requirement to implement measures during fisheries 
monitoring surveys, such as removing gear from the water if marine 
mammals are considered at-risk or are interacting with gear; and
     A requirement to submit frequent regularly scheduled and 
situational reports including, but not limited to, information 
regarding activities occurring, marine mammal observations and acoustic 
detections, and SFV monitoring results.
    NMFS must withdraw or suspend any LOA issued under these 
regulations, after notice and opportunity for public comment, if it 
finds the methods of taking or the mitigation, monitoring, or reporting 
measures are not being substantially complied with (16 U.S.C. 
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with 
the requirements of the LOA may result in civil monetary penalties and 
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 
CFR 216.106(g)).

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

    This Project is covered under Title 41 of the Fixing America's 
Surface Transportation Act or ``FAST-41''. 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)).
    Atlantic Shores South is listed on the Permitting Dashboard, where 
milestones and schedules related to the environmental review and 
permitting for the Project can be found at: https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/atlantic-shores-south.

Summary of Request

    On February 8, 2022, NMFS received a request from Project Company 1 
(previously, ``Atlantic Shores'') for the promulgation of regulations 
and the issuance of an associated LOA to take marine mammals incidental 
to construction activities associated with the Project located offshore 
of New Jersey in Lease Area OCS-A-0499 (then, a single lease) and 
associated export cable corridors. Project Company 1's request is for 
the incidental, but not intentional, take of a small number of 16 
marine mammal species comprising 17 stocks (i.e., 9 species by Level A 
harassment and Level B harassment and 7 species by Level B harassment 
only). Neither Project Company 1 nor NMFS expected serious injury and/
or mortality to result from the specified activities. Because of this, 
Project Company 1 did not request, and NMFS has not allowed mortality 
or serious injury of any marine mammal species or stock.
    In response to our questions and comments and following extensive 
information exchanges with NMFS, Project Company 1 submitted a final, 
revised application on August 12, 2022 that NMFS deemed adequate and 
complete on August 25, 2022. The final

[[Page 77974]]

version of the application is available on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    On September 29, 2022, NMFS published a notice of receipt (NOR) of 
the adequate and complete application in the Federal Register (87 FR 
59061), requesting public comments and information related to Project 
Company 1's request during a 30-day public comment period. Due to a 
request from a public group called Save Long Beach Island, Inc. 
(SaveLBI), NMFS extended the public comment period for an additional 15 
days (87 FR 65193, October 28, 2022) for a total of a 45-day public 
comment period. During the 45-day NOR public comment period, NMFS 
received 5 comments and letters from the public, including a citizen, 
an environmental non-governmental organization (hereafter, ``eNGO''), 
and a local citizen group. NMFS has reviewed all submitted material and 
has taken these into consideration during the drafting of this final 
rulemaking.
    On September 22, 2023, NMFS published a proposed rule in the 
Federal Register for the Project (88 FR 65430). In the proposed rule, 
NMFS synthesized all of the information provided by Project Company 1, 
all best available scientific information and literature relevant to 
the proposed Project, outlined, in detail, proposed mitigation designed 
to effect the least practicable adverse impacts on marine mammal 
species and stocks as well as proposed monitoring and reporting 
measures, and made preliminary negligible impact and small numbers 
determinations. The public comment period on the proposed rule was open 
for 30 days at: https://www.regulations.gov, starting on September 22, 
2023 and closing after October 23, 2023. The public comments can be 
viewed at: https://www.regulations.gov/docket/NOAA-NMFS-2023-0068. A 
summary of public comments received during this 30-day period and NMFS 
responses are described in the Comments and Responses section.
    In June 2022, Duke University's Marine Spatial Ecology Laboratory 
released updated habitat-based marine mammal density models (Roberts et 
al., 2016a; Roberts et al., 2023). After consideration by NMFS, and 
because Project Company 1 applied previous marine mammal densities to 
their analysis in their initially submitted application, Project 
Company 1 reanalyzed its Project using the new Duke University data and 
submitted a final Updated Density and Take Estimation Memorandum on 
March 28, 2023 that included marine mammal densities and take estimates 
based on these new models. This memorandum can be found on NMFS' 
website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. This information was 
incorporated into the proposed rule (88 FR 65430, September 22, 2023).
    During the development of the proposed rule during the months of 
January and February 2023, Project Company 1 informed NMFS that the 
proposed activity had been narrowed from what was presented in the 
adequate and complete MMPA application. Specifically, Project Company 1 
committed to installing only monopile wind turbine generator (WTG) 
foundations for Project 1 (and any found in the associated Overlap 
Area), as opposed to either monopile or jacket foundations. All WTGs 
built for Project 2 (and any remaining Overlap Area) may still consist 
of either monopiles or jacket foundations as presented in the adequate 
and complete MMPA application. Additionally, all offshore substation 
(OSS) foundations that could be developed across both Projects 1 and 2 
continue to maintain build-outs using only jacket foundations. Project 
Company 1 provided a memo and supplemental materials outlining these 
changes to NMFS on March 31, 2023. These supplemental materials can be 
found on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    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 (hereafter, ``UME''). Should a 
final vessel speed rule or any other MMPA ITA be issued and become 
effective during the effective period of these regulations, Atlantic 
Shores will be required to comply with any and all applicable 
requirements contained within the final rule. Specifically, where 
measures in any final vessel speed rule are more protective or 
restrictive than those in this or any other MMPA ITA, Atlantic Shores 
will be required to comply with the requirements of the vessel speed 
rule. Alternatively, where measures in this or any other MMPA ITA are 
more restrictive or protective than those in any final vessel speed 
rule, the measures in the MMPA ITA will remain in place. The 
responsibility to comply with the applicable requirements of any vessel 
speed rule will become effective immediately upon the effective date of 
any final vessel speed rule, and when notice is published on the 
effective date, NMFS will also notify Project Company 1 if the measures 
in the speed rule were to supersede any of the measures in the MMPA ITA 
such that they were no longer required.
    On June 26, 2024, Atlantic Shores Offshore Wind LLC provided a 
written request to NMFS to change the LOA Holder from Atlantic Shores 
Offshore Wind LLC to Project Company 1, who would oversee and be 
responsible for the construction of both Project 1 and Project 2. 
Furthermore, on June 26, 2024, Atlantic Shores Offshore Wind LLC 
notified NMFS that it had requested that BOEM segregate a portion of 
Lease Area OCS-A-0499, which would then be assigned to another 
subsidiary of Atlantic Shores, Project Company 2, as Lease Area OCS-A-
0570. As described above, Project Company 1 requested to NMFS that the 
incidental take regulation (ITR) governing take of marine mammals 
incidental to activities associated with both phases of the Project and 
the associated LOA (if issued by NMFS) be issued to Project Company 1, 
which would oversee Project 1 (constructed and operated by Project 
Company 1) and Project 2 (constructed and operated by Project Company 
2) of the Atlantic Shores South Project. The lease segregation is 
expected to be completed by BOEM on September 30, 2024, and will not 
alter the geographic location or size of the area in which either 
Project 1 or Project 2 would be built, nor will it cause any changes to 
the construction schedule, planned activities, or take. In short, no 
changes to the overall Project were requested or are expected, with the 
exception of the name change. As a result, where appropriate, Project 
Company 1, the owner of the Project, has henceforth been incorporated 
as the ``applicant'' or ``LOA Holder'' throughout this final rule.
    NMFS has previously issued 5 Incidental Harassment Authorizations 
(hereafter, ``IHAs''), including 1 renewal IHA to Project Company 1 
authorizing take incidental to high-resolution site characterization 
surveys offshore New Jersey in the now segregated OCS-A-0499 (to 
include OCS-A-0570) (see 85 FR 21198, April 16, 2020; 86 FR 21289, 
April 22, 2021 (renewal); 87 FR 24103, April 22, 2022; 88 FR 38821, 
June 14, 2023; and 89 FR 20434, March 22, 2024).

[[Page 77975]]

    To date, Project Company 1 has complied with all the requirements 
(e.g., mitigation, monitoring, and reporting) of the previous IHAs and 
information regarding Project Company 1's take estimates, and 
monitoring results may be found in the Estimated Take section. Final 
monitoring reports can be found on NMFS' website, along with previously 
issued IHAs at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Description of the Specified Activities

Overview

    Project Company 1 plans to construct and operate two offshore wind 
projects, Project 1 and Project 2, (collectively, Atlantic Shores 
South, or the Project) in the Lease Areas. These Lease Areas are 
located within the New Jersey Wind Energy Area (hereafter, ``NJ WEA''). 
Collectively, Atlantic Shores South will consist of up to 200 WTGs, 10 
OSSs, and 1 Met Tower divided into two projects: Project 1 and Project 
2. These projects would assist the State of New Jersey to meet its 
renewable energy goals under the New Jersey Offshore Wind Economic 
Development Act (hereafter, ``OWEDA''). Project Company 1 has been 
given an allowance by the New Jersey Board of Public Utilities through 
an Offshore Renewable Energy Certificate (hereafter, ``OREC'') to 
construct a facility capable of delivering 1,510 megawatts (MW) of 
renewable energy to the State of New Jersey through Project 1. Project 
1 would be capable of powering approximately 700,000 homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/). Project Company 1 
also intends to compete for a second OREC award through a competitive 
solicitation process to develop Project 2, which will be owned by 
another affiliate company of Project Company 1, Project Company 2, 
although Project Company 1 will oversee Project 2'sdevelopment. 
Collectively, the entire Project is capable of powering over 1 million 
homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/).
    The Project will consist of several different types of permanent 
offshore infrastructure, including: (1) up to 200 15-MW WTGs and up to 
10 OSSs; (2) a single Met Tower; and (3) OSS array cables and 
interconnector cables. All permanent foundations (WTGs, OSSs, and the 
single Met Tower) will be installed using impact pile driving only. For 
the permanent foundations, Project Company 1 originally considered 
three construction scenarios for the completion of Projects 1 and 2. 
All three Schedules assume a start year of 2026 for WTG, Met Tower, and 
OSS foundation installation. Schedules 1 and 3 assume monopile 
foundations for all WTGs and the Met Tower across both Projects 1 and 
2. Schedule 2 originally assumed a full jacket foundation buildout for 
both Projects 1 and 2. However, Project Company 1 has modified Schedule 
2 to now assume that all WTGs and the Met Tower in Project 1 would be 
built using monopiles. The WTGs for Project 2 would still consist of 
either jacket or monopile foundations. In all Schedules, the OSS 
foundations would always be built out using jacket foundations. 
However, these may vary in size between the two Projects (i.e., small, 
medium, or large OSSs). Under Schedules 1 and 2, foundations would be 
constructed in 2 years. Under Schedule 3, all permanent foundations 
would be installed within a single year.
    Project Company 1 would also conduct the following specified 
activities: (1) temporarily installation and removal, by vibratory pile 
driving, of up to eight nearshore cofferdams to connect the offshore 
export cables to onshore facilities; (2) deployment of up to four 
temporary meteorological and oceanographic (hereafter, ``metocean'') 
buoys (three in Project 1 and one in Project 2); (3) conducting of 
several types of fishery and ecological monitoring surveys; (4) 
placement of scour protection, trenching, laying, and burial activities 
associated with the installation of the export cable route from OSSs to 
shore-based switching and substations and inter-array cables between 
turbines; (5) conducting of HRG vessel-based site characterization and 
assessment surveys using active acoustic sources with frequencies of 
less than 180 kilohertz (hereafter, ``kHz''); (6) transiting within the 
Project Area and between ports and the Lease Areas to transport crew, 
supplies, and materials to support pile installation via vessels; and 
(7) WTG operation. All offshore cables would be connected to onshore 
export cables at the sea-to-shore transition points located in Atlantic 
City, New Jersey (hereafter, ``Atlantic City landfall site'') and in 
Sea Girt, New Jersey (hereafter, ``Monmouth landfall site''). From the 
sea-to-shore transition point, onshore underground export cables are 
then connected in series to switching stations/substations, overhead 
transmission lines, and ultimately to the grid connection. No 
detonations of unexploded ordnance or munitions and explosives of 
concern (hereafter, ``UXOs/MECs'') were planned to occur, nor are they 
included in this final rulemaking. Therefore, these are not discussed 
further and no take has been allowed for these activities.
    Marine mammals exposed to elevated noise levels during vibratory 
and impact pile driving and site characterization surveys may be taken 
by Level A harassment and/or Level B harassment, depending on the 
specified activity and species.
    A detailed description of the specified activities is provided in 
the proposed rule as published in the Federal Register (88 FR 65430, 
September 22, 2023). Since the proposed rule was published, Project 
Company 1 has not modified the specified activities. Please refer to 
the proposed rule for more information on the description of the 
specified activities.

Dates and Duration

    Project Company 1 anticipates its specified activities to occur 
throughout all 5 years of the effective period of the regulations, 
beginning on January 1, 2025 and continuing through December 31, 2029. 
Project Company 1's anticipated construction schedule can be found in 
table 1. Project Company 1 has noted that these are the best and 
conservative estimates for activity durations but that the schedule may 
shift due to weather, mechanical, or other related delays.

                                         Table 1--Construction Schedule
----------------------------------------------------------------------------------------------------------------
                                                   Duration \a\      Expected        Project 1       Project 2
                    Activity                         (months)      schedule \b\     start date      start date
----------------------------------------------------------------------------------------------------------------
Onshore Interconnection Cable Installation......            9-12       2024-2025        Q1--2024        Q1--2024
Onshore Substation and/or Onshore Converter                18-24       2024-2026        Q1--2025        Q1--2025
 Station Construction...........................
HRG Survey Activities...........................             3-6       2025-2029        Q2--2025        Q3--2025
Export Cable Installation.......................             6-9            2025        Q2--2025        Q3--2025

[[Page 77976]]

 
Temporary Cofferdam Installation and Removal \c\           18-24       2025-2026        Q2--2025        Q3--2025
OSS installation and Commissioning..............             5-7       2025-2026        Q2--2026        Q2--2026
WTG Foundation and Met Tower Installation \d\...          \e\ 10       2026-2027        Q1--2026        Q1--2026
Inter-Array Cable Installation..................              14       2026-2027        Q2--2026        Q3--2026
WTG Installation and Commissioning \f\..........              17       2026-2027        Q2--2026        Q1--2027
Met Buoy Deployments............................              36       2025-2027        Q1--2025        Q1--2025
Scour Protection Pre-Installation...............              17       2025-2027        Q2--2025        Q3--2025
Scour Protection Post-Installation..............              17       2025-2027        Q2--2025        Q3--2025
Site Preparation................................              60       2025-2029        Q1--2025        Q4--2029
Fishery Monitoring Surveys......................              60       2025-2029        Q1--2025        Q4--2029
----------------------------------------------------------------------------------------------------------------
Note: Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through
  December.
\a\ These durations are a total across all years the activity may occur.
\b\ The expected timeframe, based on a modified Schedule 2, is indicative of the most probable duration for each
  activity; the timeframe could shift and/or extend depending on supply chains, weather, mechanical, or other
  related delays.
\c\ Project Company 1 intends to install the temporary cofferdams for a limited duration annually between Labor
  Day and Memorial Day (i.e., between early September and late May). However, given limited species presence,
  the limited amount of work planned for the entire cable landfall activity, and the expected impact is not
  anticipated to rise above a small subset of take by Level B harassment (i.e., no take by Level A harassment is
  expected), this rulemaking does not specifically require time-of-year restrictions on this activity.
\d\ As described in the proposed rule (88 FR 65430, September 22, 2023), the expected timeframe is dependent on
  the completion of the preceding Project 1 activities (i.e., Project 1 inter-array cable installation and WTG
  installation) and the Project 2 foundation installation schedule.
\e\ A seasonal pile driving moratorium is in place from January 1st through April 30th, annually, unless pile
  driving must occur in December to complete the Project and NMFS allows for December pile driving to also
  occur.
\f\ Project Company 1 anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but
  turbines would not become operational until 2028 and 2029.

Specific Geographic Region

    A detailed description of the Specific Geographic Region is 
provided in the proposed rule as published in the Federal Register (88 
FR 65430, September 22, 2023). Since the proposed rule was published, 
no changes have been made to the Specified Geographic Region. 
Generally, Project Company 1's planned activities (i.e., impact pile 
driving of WTG, OSS, and Met Tower foundations; vibratory pile driving 
of temporary cofferdams (installation and removal); placement of scour 
protection; trenching, laying, and burial activities associated with 
the installation of the export cable and inter-array cables; HRG site 
characterization surveys; and WTG operation) are concentrated in the 
Project Area (figure 1). A couple of Project Company 1's specified 
activities (i.e., fishery and ecological monitoring surveys and 
transport vessels) will occur in the Mid-Atlantic Bight.
BILLING CODE 3510-22-P

[[Page 77977]]

[GRAPHIC] [TIFF OMITTED] TR24SE24.000

BILLING CODE 3510-22-C

Comments and Responses

    A proposed rule was published in the Federal Register on September 
22, 2023 (88 FR 65430). The proposed rule described, in detail, Project 
Company 1's specified activities, the specified geographic region of 
the specified

[[Page 77978]]

activities, the marine mammal species that may be affected by those 
activities, and the anticipated effects on marine mammals. In the 
proposed rule, we requested that interested persons submit relevant 
information, suggestions, and comments on Project Company 1's request 
and the promulgation of regulations and issuance of an associated LOA 
described therein, our estimated take analyses, the preliminary 
determinations, and the proposed regulations. The proposed rule was 
available for a 30-day public comment period.
    In total, NMFS received 57 comment submissions, comprising 55 
individual comments from private citizens, 1 comment letter from the 
Marine Mammal Commission (hereafter, ``the Commission''), and 1 comment 
letter with supplemental attachments from the public group, SaveLBI. 
Some of the comments received were considered out-of-scope, including, 
but not limited to: comments related to constructing wind farms on 
land; comments on language found in the draft Environmental Impact 
Statement (EIS); comments related to offshore wind in Europe; comments 
specifically about activities found in HRG IHAs; visibility of WTGs 
from the coast; concerns for other species outside of NMFS' 
jurisdiction (i.e., birds); the pros and cons of renewable energy and 
nuclear power; costs and finances regarding the construction of 
offshore wind farms; fishing activities from commercial industries; 
lifespan of WTGs located offshore; and tourism. These comments are not 
described herein or discussed further. Moreover, where comments 
recommended that the final rule include mitigation, monitoring, or 
reporting measures that were already included in the proposed rule and 
such measures are carried forward in this final rule, they are not 
included here, as those comments did not raise significant points for 
NMFS to consider. Furthermore, if a comment received was unclear, we do 
not include it here as we could not determine whether it raised a 
significant point for NMFS to consider.
    The two letters and supplemental attachments from the Commission 
and SaveLBI, as well as the individual comments, received during the 
public comment period contained significant points that NMFS considered 
in its estimated take analysis, including: required mitigation, 
monitoring, and reporting measures; final determinations; and final 
regulations. These are described and responded to below. All 
substantive comments and letters are available on NMFS' website at: 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the corresponding 
public comment link for full details regarding the comments and 
letters.

Modeling and Take Estimates

    Comment 1: A commenter recommended that NMFS revise its take 
estimates from impact pile driving using a 5 dB broadband noise source 
attenuation, rather than the 10 dB of sound attenuation, with no 
attenuation at low frequencies.
    Response: In the proposed rule, NMFS described the best available 
science, which supports the assumption that at least 10 dB attenuation 
can be reliably achieved using the required noise attenuation systems, 
including a double bubble curtain. This included data from Bellmann et 
al. (2020) where double bubble curtains achieved between 8 to 18 dB of 
broadband noise attenuation depending on water depth and supplied air 
volume. Bubble curtain effectiveness depends significantly on the 
supplied air volume and the water depth, with performance increasing 
with air flow and decreasing with depth. Notably, the proposed rule 
requires an air flow rate of at least 0.5 m\3\/(minute*m) and the 
Project Area has depths ranging from 19 to 37 meters (m) (62.34 to 
121.39 feet (ft)). In the set of measurements from Bellmann et al. 
(2020), broadband noise attenuation was only less than 10 dB for 
supplied air flow rates between 0.3 and 0.4 m\3\/(minute*m) and in 
depths of approximately 40 m (131.23 ft). Because the double bubble 
curtain used in this Project will be in shallower water and have more 
supplied air volume, it is reasonable to expect performance greater 
than 8 dB and closer to the measurements of curtains with higher 
airflow and in shallower water (12-18 dB). Finally, results from 
Vineyard Wind 1's SFV (K[uuml]sel et al., 2024) indicate that the 
median near pile (750 m (2,460.63 ft)) sound pressure level while using 
double bubble curtains, along with a near pile resonator, was 
approximately 171 dB. The modeling for Vineyard Wind 1, which assumed 6 
dB attenuation, implied levels near 180 dB at 750 m (JASCO Applied 
Sciences (USA) Inc. (JASCO and LGL., 2019)). This indicates that the 
combination of source modeling and an assumption of 10 dB would have 
been conservative in that case. Finally, Project Company 1 is required 
to conduct SFV during installation of every pile and provide bubble 
curtain performance reports to NMFS which will assist in determining if 
the double bubble curtain is working properly and is optimized and 
noise levels are as expected. Thus, NMFS finds that the mitigation 
requirements in the proposed rule, which include the use of a double 
bubble curtain and adherence to best practice standards for operation 
of noise mitigation systems, are capable of providing an expected 10 dB 
of attenuation, as evidenced by the extensive data from Bellmann et al. 
(2020) and initial SFVs in US waters.
    With regard to the fact that NMFS' assumed 10 dB attenuation rate 
is broadband in nature and assumes this level of noise reduction at all 
frequencies, NMFS agrees that attenuation levels vary by frequency band 
and that bubble curtains attenuate higher frequency sounds more 
effectively; however, NMFS disagrees that lower frequency bands, which 
are important to consider when evaluating impacts, are not attenuated 
at all. The data from Bellmann (2021), shows that for both single and 
double bubble curtains, more than 10 dB of attenuation was achieved for 
bands as low as 32 Hz. And while it is true that performance diminishes 
significantly at lower frequencies (< 32 Hz), those bands also contain 
significantly less pile driving sound and are +16 dB outside the most 
susceptible frequency range for low-frequency cetaceans.
    Comment 2: A commenter stated that NMFS did not provide an 
explanation of the revised take numbers from JASCO's August 10, 2022 
Exposure Modeling Report in the proposed rule. They further stated that 
NMFS did not disclose information on how the source levels, exposure 
ranges, and proposed takes were calculated.
    Response: The proposed rule clearly describes that the take 
estimates were updated due to the release of the new Duke Habitat-Based 
Density Models (Roberts et al., 2023) which are the best available 
science. Modeling methodology, including source, propagation, and 
exposure modeling methodology were summarized in the proposed rule and 
were thoroughly described in the JASCO Exposure Modeling Report and ITA 
application materials. Moreover, the proposed rule reflected the most 
recent information provided by the applicant, which is available on our 
website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Comment 3: A commenter stated that NMFS underestimated Level A 
harassment and Level B harassment take estimates because the proposed 
rule applied density models to the take calculations that, according to 
the commenter, do not account for North

[[Page 77979]]

Atlantic right whale migration and NMFS should not use the 160 
dBrms threshold to estimate behavioral harassment from pile 
driving. The commenter recommended that NMFS revise the take estimates 
based on the North Atlantic right whale density estimates contained 
within the application (Roberts et al., 2016a, 2016b, 2017, 2018, 
2021a, 2021b), not the updated Roberts et al. (2023) densities, and the 
Wood et al. (2012) step-function in lieu of the 160 dBrms 
threshold. Additionally, the commenter suggested a new approach to 
calculate take of marine mammals, wherein NMFS should calculate the 
ranges to elevated noise levels perpendicular to the whale's path and 
assume that the number of whales heading toward that is proportional to 
that range divided by 60 mi (96.6 km). They state that this approach 
will better allow MMPA ITAs to assess the Project's potential impact. 
The commenter provided their independent take calculations using these 
alternative methods.
    Response: NMFS disagrees with the commenter's recommendations. 
First, the Wood et al. (2012) probabilistic step-function recommended 
for use by the commenter was derived by a select group of experts to 
assess the impacts of seismic air gun surveys involving moving sources. 
The commenter did not provide information that demonstrates the 160 
dBrms threshold is less appropriate other than that the 
alternative method they proposed, which only results in slightly more 
take than both the proposed and final rules, which was also inclusive 
of a 3.8 mean group size of North Atlantic right whales from the Ocean 
Biodiversity Information System (OBIS) repository (OBIS, 2022) (i.e., 
the commenters suggested 27 takes against the proposed rule's 21 takes 
against the final rule's 25 takes of North Atlantic right whales over a 
5-year period).
    While NMFS acknowledges the potential for behavioral disturbance at 
exposures to received levels below 160 dBrms, it should also 
be acknowledged that not every animal exposed to received levels above 
160 dBrms will be behaviorally disturbed. The 160-dB 
threshold functions as a mid-point and serves as a practical 
generalized tool for informing the predicted likelihood, and 
quantification, of Level B harassment. Additionally, there are a 
variety of studies indicating that contextual variables (e.g., range to 
source, received levels (RL) above background noise, novelty of the 
signal, and differences in behavioral state) play a very important role 
in responses to anthropogenic noise (Ellison et al., 2012; Gong et al., 
2014), and the severity of effects are not necessarily linear when 
compared to a received level. DeRuiter et al. (2012) also indicate that 
variability of responses to acoustic stimuli depends not only on the 
species receiving the sound and the sound source, but also on the 
social, behavioral, or environmental contexts of exposure. Use of the 
160-dB threshold allows for a simplistic quantitative estimate of take 
while we can qualitatively address the variation in responses across 
different received levels in our discussion and analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt behavioral patterns is difficult because responses depend on 
the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007; Ellison et al., 2012; 
Southall et al., 2021). For example, Gomez et al. (2016) reported that 
received level was not an appropriate indicator of behavioral response. 
Further, the seminal reviews presented by Southall et al. (2007), Gomez 
et al. (2016), and Southall et al. (2021) did not suggest any specific 
new criteria due to lack of convergence in the data.
    Given there is currently no concurrence on these complex issues, 
NMFS followed its practice at the time of submission and review of this 
application in assessing the likelihood of disruption of behavioral 
patterns by using the 160 dB threshold. NMFS is currently evaluating 
available information towards development of updated guidance for 
assessing the effects of anthropogenic sound on marine mammal behavior. 
However, undertaking a process to derive defensible exposure-response 
relationships, as suggested by Tyack and Thomas (2019), is complex. The 
recent systematic review by Gomez et al. (2016) was unable to derive 
criteria expressing these types of exposure-response relationships 
based on currently available data.
    NMFS is committed to continuing its work in developing updated 
guidance with regard to acoustic thresholds but pending additional 
consideration and process, is reliant upon an established threshold 
that is reasonably reflective of best available science.
    With respect to the commenters' claim that different densities 
should be used, the most recent Duke University habitat-based density 
models are considered the best available science. The models 
statistically correlate sightings with sightings from shipboard and 
aerial surveys with oceanographic conditions. In 2023, Duke University 
updated the North Atlantic right whale model to also include 
independently collected PAM data, expanding the data set used in the 
model since the previous model that was recommended for use by the 
commenter (see https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html). Marine mammal behavior, 
such as foraging and migration, are not part of the metadata used in 
the Duke University density models; however, the survey data was 
collected along the entire coast which includes migratory habitat 
(including the mid-Atlantic where the Project would be constructed). 
Therefore, the commenters claim that North Atlantic right whale 
migration was not accounted for in the models is incorrect. NMFS 
applied the most recent Duke University models to the analysis 
contained within this rule as it represents the best available science 
(versions 12, 12.1, and 12.2 for North Atlantic right whales (https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html).
    Project Company 1 conducted sophisticated modeling using simulated 
animals exposed to foundation pile driving noise levels above NMFS' 
thresholds to estimate exposures. The details of how this modeling is 
conducted was summarized in the proposed rule and is fully described in 
appendix B of Project Company 1's application at: https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf. For North Atlantic right 
whales, the exposure estimates were adjusted upwards to account for 
group size. For example, the estimated modeled Level B harassment 
exposures from full build out assuming Construction Schedule 2 for 
North Atlantic right whales was 8.13 (see table 16 in appendix B of 
Project Company 1's ITA application); however, the applicant requested 
12 takes by Level B harassment (see table 17). Therefore, NMFS' final 
rule considered 12 takes by Level B harassment. The simple take 
estimate approach recommended by the commenter which considers whales 
heading perpendicular to a certain distance and assuming that the 
number of whales heading toward

[[Page 77980]]

that is proportional to that range divided by 60 mi (96.6 km) is 
illogical. First, the commenter claims that the Duke University density 
data suggests that over the January through April time period, most 
North Atlantic right whale migration is occurring within 60 mi (96.6 
km) of shore. However, this is irrelevant as no pile driving would be 
occurring January through April; therefore, using 60 mi (96.6 km) in 
any take calculation is not supported. Moreover, the commenter does not 
identify the method by which a number of whales perpendicular a 
distance should be derived. The commenter did not provide reasoning for 
why this approach would better allow MMPA ITAs to assess the Project's 
potential impact. For these reasons, NMFS has determined the number of 
takes that would be authorized for North Atlantic right whales is based 
on the best available science.
    Comment 4: Regarding HRG surveys, commenters stated that take 
estimates were underestimated because the use of a SIG ELC 820 unit as 
a proxy for the Dura-Spark unit is unjustified and not consistent with 
other higher values found in the technical literature (i.e., Crocker 
and Fratantonio (2016)). The comment stated that NMFS should instead be 
utilizing a source level of 211 dB in their analysis, rather than the 
203 dB used in the proposed rule and ITA application materials, and 
that NMFS should apply a more conservative spreading loss coefficient 
when calculating distances to the Level B harassment threshold.
    The commenter asserts that NMFS has underestimated exposure based 
on the use of the SIG ELC 820 unit, and noise source levels from 
vessels operating in the same area are comparable or higher than 211 
dB. In addition, the commenter cited other recent HRG IHAs in the New 
York Bight and Mid-Atlantic Bight that have been previously authorized 
to use the Dura-Spark (400 tip), ranging at 5,500 to 2,000 joules (J), 
which result in a higher dB level that what is presented in the 
proposed rule for the Atlantic Shores South Project. The commenter also 
stated that the 203 dB value is inconsistent with the Endangered 
Species Act (ESA) programmatic consultation report that NMFS uses for 
ESA compliance and that NMFS should not issue any more ITAs for 
offshore wind work and should, consequently, cancel the Project.
    Response: There is little data available regarding appropriate 
choice of spreading loss (or transmission loss coefficient) for sparker 
acoustic sources. The commonly used convention, which is applied here 
by NMFS, is to use spherical spreading for HRG sources (Ruppel et al., 
2022). The field measurements by Rand (2023) imply spreading 
coefficients greater than 20, which shows that spherical spreading in 
that case is a good approximation. With regard to source level, the ITA 
application specifies that the Dura-Spark 240 is typically operated 
between 500-600 J and chose a source level based on the SIG ELC 820 of 
203 dB (Crocker and Fratantonio, 2016). However, the developer has 
since informed NMFS that the survey team intends to use only the Geo 
Marine Geo-source sparker and has clarified that it will be nominally 
operated with 400 tips and an energy of 400 J. Based on this, the most 
representative proxy equipment from Crocker and Fratantonio (2016) 
appears to be the Dura-Spark operating with 400 tips and 500 J, which 
was measured to have a source level of 203 dB. Notably, the SIG ELC 820 
operating at 750 J and at a depth of 5 m (16.4 ft) also has a source 
level of 203 dB, according to Crocker and Fratantonio (2016). For these 
reasons, NMFS finds that the source level used in the analysis (203 dB) 
is appropriate for the planned activity and disagrees that any change 
to the analysis is necessary.
    NMFS disagrees that the source level used in Project Company 1's 
sparker analysis is inconsistent with NMFS Greater Atlantic Regional 
Fisheries Office's (GARFO) 2021 ESA programmatic consultation for site 
assessment surveys. That analysis considered the loudest sources 
potentially used by all offshore wind developers conducting site 
assessment and site characterization surveys in the Atlantic Ocean due 
to its programmatic nature. Here, Project Company 1 has identified 
specific sources and operating modes and, therefore, our source level 
analysis is appropriate.
    Comment 5: The commenter stated that NMFS' assumption on the 
spherical spreading and associated spreading loss factor was inaccurate 
as it calculates spreading beyond what could reasonably occur. They 
further stated that the 20 dB factor is presented without explanation 
or justification in equations in various reports, the transmission loss 
is not consistent with field measurements (Thomsen et al., 2006), and 
the use of the 20 dB factor is not consistent with the NMFS approach 
used and described well as ``common practice'' in the NMFS' own ITAs 
from December 1, 2021 (86 FR 68223) and December 15, 2021 (86 FR 
71162). They recommended that NMFS re-run the analysis, assuming a 
higher source level of the acoustic source (211 dB) and assuming a 15 
dB transmission loss.
    Response: In support of its position, the commenter cites several 
examples of use of practical spreading (a useful real-world 
approximation of conditions that may exist between the theoretical 
spreading modes of spherical and cylindrical; 15logR) in asserting that 
this approach is also appropriate here. However, these examples (U.S. 
Navy construction at Newport, Rhode Island, and NOAA construction in 
Ketchikan, Alaska) are not relevant to the activity at hand. First, 
these actions occur in even shallower water (e.g., less than 10 m 
(32.81 ft) for Navy construction). NMFS notes that the transmission 
loss from field measurements referenced (Thomsen et al., 2006) appear 
to be relative to impact pile driving. For a number of factors, 
transmission loss and therefore appropriate models depend on source 
characteristics. The commonly used convention, which is applied here by 
NMFS, is to use spherical spreading for HRG sources (Ruppel et al., 
2022). There is little data available regarding appropriate choice of 
spreading loss (or transmission loss coefficient) for HRG sources and 
sparkers in particular. However, the data that do exist for sparkers 
suggest that spherical spreading is a fair approximation; the field 
measurements by Rand (2023) imply spreading coefficients greater than 
20 (22.5), field measurements from Halvorsen et al. (2018) are 
reasonably approximated by spherical spreading, and propagation 
modeling performed by Thomsen (2023) implies a transmission loss 
coefficient of 20.26. Thus, of the data that do exist, none suggest 
spherical spreading is a poor approximation. NMFS will continue to 
evaluate appropriate propagation models for this and other HRG sources 
as new data and literature become available.
    Comment 6: The commenter criticized Project Company 1's use of the 
2018 NMFS auditory weighting functions with the Wood et al. behavioral 
criteria as described in the JASCO modeling report, indicating the 
weighting functions are inappropriate. In addition, they claim that 
NMFS weighting functions for low-frequency cetaceans incorrectly assume 
that low-frequency cetaceans weighting functions eliminate most of the 
pile driving noise. They stated that the NMFS approach artificially 
underestimated take of low-frequency species as the underlying science 
was not intended to be used as such and that NMFS must re-estimate the 
exposure ranges and take using broader weighting functions (i.e., 
Southall et al., 2007). Lastly, they also

[[Page 77981]]

stated the NMFS' use of the 160 dB threshold for impulsive noise 
resulting from construction activities and vessel surveys is 
inconsistent by using the 160 dB threshold to assess vessel surveys and 
Woods et al. to assess construction activities. Overall, they say that 
this has resulted in NMFS underestimating the take associated with this 
Project and resulted in insufficient mitigation and monitoring zone 
sizes.
    Response: These comments suggest there is confusion in 
understanding which thresholds were used for the analysis contained 
within the proposed and this final rule. For NMFS' analysis of 
behavioral harassment from pile driving and HRG surveys, we have 
appropriately relied on our 160 dBrms sound pressure level 
(SPL) threshold, which is unweighted (i.e., no sound is being 
eliminated), not the Wood et al. step function. Furthermore, we only 
rely on our 2018 weighting functions to assess the potential for 
auditory injury (i.e., permanent threshold shift (PTS)). NMFS agrees 
with the commenter that the thresholds associated with Wood et al. are 
intended to rely on the broader M-weighting functions from Southall et 
al. (2007), not the weighting associated with our 2018 Technical 
Guidance.
    Comment 7: Commenters have stated that NMFS underestimated take by 
Level A harassment (which the commenter asserts means ``instances of 
serious harm or fatality'') because the rule ``does not estimate 
those'' takes ``that occur indirectly from Level B behavior 
disturbances.'' The commenters argue that HRG survey efforts in the 
Atlantic are causing recent whale strandings along the East Coast due 
to the overlap in time in which these events occur. The commenters 
claim that HRG surveys being performed for offshore wind development 
are the cause of recent U.S. East Coast strandings because literature 
and news reports document that seismic surveys using airguns, multibeam 
echosounders (MBES), and military sonar have been acknowledged 
previously as the cause of strandings worldwide. A commenter provided 
an Addendum to their letter wherein they describe that those sources 
used have similarities to the proposed HRG noise sources for the 
Project. All of the commenters thus claimed that HRG surveys conducted 
by Project Company 1 for the Project would result in whale strandings, 
including death.
    Response: There is no evidence to support the assertion that 
serious injury or mortality is a reasonably anticipated outcome of 
Project Company 1's specified activities. Further, while NMFS 
acknowledges military active sonar and seismic airguns have been 
associated with more severe effects, including strandings for military 
sonar in limited circumstances, these sources and operational 
parameters are very dissimilar to HRG surveys and their likely effects 
are not appropriately compared.
    While NMFS acknowledges that HRG survey effort has increased in the 
Atlantic Ocean during the time period of increased whale strandings, 
there is no scientific evidence that HRG survey effort is a 
contributing factor to the strandings. NMFS does not agree that 
mortality is an anticipated outcome of these specified activities, and 
there is no evidence to suggest otherwise, as described below. Further, 
the proposed rule (88 FR 65430, September 22, 2023) clearly states that 
no serious injury and/or mortality is expected or was proposed to be 
allowed, and the same carries into the final rule for which no take by 
serious injury or mortality has been allowed (see also 50 CFR 
217.302(c)). More specifically, we refer the commenters to the 
``Prohibitions'' portion of the regulatory text (see 50 CFR 217.303). 
In the event that Project Company 1 takes any marine mammals in a 
manner that has not been authorized in the final rule (see 50 CFR 
217.303), including mortality, these would be in violation of the MMPA 
and its implementing regulations and NMFS would undertake appropriate 
actions, as determined to be necessary (see 16 U.S.C. 1371(a)(5)(B)).
    The best available science indicates that the anticipated impacts 
from site characterization and site assessment HRG surveys potentially 
include temporary avoidance of localized areas, cessation of foraging 
or communication, temporary threshold shift (TTS), stress, masking, 
etc. (as described in the Effects of the Specified Activities on Marine 
Mammals and their Habitat section in the proposed rule). NMFS 
emphasizes that there is no evidence that noise resulting from HRG 
surveys used for offshore wind development would cause marine mammal 
strandings, and there is no evidence linking recent large whale 
mortalities and currently ongoing offshore wind activities (i.e., HRG 
surveys). The commenters offer no such evidence or other scientific 
information to substantiate their claim. This point has been well 
supported by other agencies, including the Marine Mammal Commission 
Newsletter, Spring 2023). Additionally, a recent paper by Thorne and 
Wiley (2024) reviewed spatiotemporal patterns of strandings, 
mortalities, and serious injuries of humpback whales along the U.S. 
East Coast from 2016-2022. Humpback whales were chosen as a case study 
for this analysis as they are currently undergoing a UME and strand 
more often than other large whale species. Thorne and Wiley (2024) 
found vessel strikes to be a major driver in the increase of humpback 
whale strandings, mortalities, and serious injury along the East Coast. 
The potential for vessel strike increased during the study period due 
to increased vessel traffic in new foraging areas, the increased 
presence of juvenile humpback whales, and humpback whale foraging in 
shallow areas that overlap with vessel traffic. Based upon the 
spatiotemporal analysis, no evidence was found that offshore wind 
development played a role in the increased number of strandings over 
time. Future studies should focus on gaining a greater understanding of 
spatial and seasonal habitat use patterns of large whales, 
spatiotemporal changes in prey abundance and distribution, and how 
habitat use and foraging behavior affect the risk of vessel strike. 
While several species of delphinids and beaked whales have also 
stranded off New Jersey since 2011 (per data provided from the National 
Marine Stranding Network), there is no evidence that the acoustic 
sources used during HRG surveys contributed to these events. NMFS will 
continue to gather data to help us determine the cause of death for 
these stranded whales.
    There is an ongoing UME for humpback whales along the Atlantic 
coast from Maine to Florida, which includes animals stranded since 
2016, and we provide further information on the humpback whale and 
North Atlantic right whale UMEs in the Description of Marine Mammals in 
the Specific Geographic Region section of this final rule. For humpback 
whales, partial or full necropsy examinations were conducted on 
approximately half of the whales that were recently stranded along the 
U.S. East Coast. Necropsies were not conducted on other carcasses 
because they were too decomposed, not brought to land, or stranded on 
protected lands (e.g., national and state parks) with limited or no 
access. Of the whales examined (roughly 90), about 40 percent had 
evidence of human interaction (i.e., vessel strike or entanglement). 
Vessel strikes and entanglement in fishing gear are the greatest human 
threats to large whales. The remaining 50 necropsied whales either had 
an undetermined cause of death (due to a limited examination or 
decomposition of the carcass) or had other causes of death including 
parasite-caused organ damage and starvation. For North Atlantic right 
whales, starting

[[Page 77982]]

in 2017, evaluated mortalities were documented in both Canada and the 
United States, with the whales documented for this UME as being dead, 
injured, and/or sick to the extent that more than 20 percent of the 
population has been affected. The preliminary cause of mortality, 
serious injury, and morbidity (i.e., sub-lethal injury and illness) in 
most of these whales is from entanglements or vessel strikes and human 
impacts continue to threaten the survival of this species. See NMFS' 
websites at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast and https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event 
for more information on the ongoing humpback whale and North Atlantic 
right whale UMEs. More information about interactions between offshore 
wind energy projects and whales can be found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales.
    In their letters, the commenters referenced several papers 
documenting strandings associated with airguns and military sonars and 
cited several global events where animals stranded around the same time 
as these specific acoustic sources were used. They suggest that these 
sources are analogous to HRG sources used by Project Company 1. This is 
unsupported and inaccurate. High-powered seismic airguns and military 
sonars ensonify much larger areas than the lower-powered HRG survey 
equipment used in offshore wind activities, typically with distances to 
harassment thresholds on the order of several to 10s of kilometers, as 
opposed to the few hundreds of m to the 160-dB isopleth for the largest 
sources typically used in wind HRG surveys.
    NMFS assessed the 10 monitoring reports submitted by authorization 
holders since 2021 for HRG activities (available on NMFS website) and 
found that overall and averaged across species, fewer than 9 percent of 
the individual marine mammals authorized for take were observed within 
the estimated Level B harassment zone (acknowledging that the true 
percentage is likely higher due to availability and perception bias), 
with no more than 21 percent of any species, and no North Atlantic 
right whales, observed within the Level B harassment zone of any 
survey. Furthermore, the most common behavioral response when the 
regulated sound sources were both active and inactive was 
overwhelmingly ``None''. ``Change Direction'' (i.e., which is broadly 
defined as ``animal(s) alters orientation quickly, noticeably, or 
abruptly'') was the second most frequent behavioral change observed, 
and also occurred during all source activity levels (per definitions 
commonly utilized in the Mysticetus\TM\ software and based on other 90-
day reports associated with oil and gas, geotechnical operations, and 
HRG operations (e.g., Aerts et al., 2008; Blees et al., 2010; Lomac-
MacNair et al., 2014) and found within Appendix A of the final 
monitoring report associated with 84 FR 52464 (October 2, 2019)). The 
data demonstrates that individuals exhibited a change in pace more 
frequently when the acoustic source was active, as well as a change of 
pace and direction. Conversely, ``Dive'' (i.e., broadly defined as 
``animal(s) abruptly moves completely below the surface'') and ``Look'' 
(i.e., broadly defined as ``animal is watching the vessel, e.g., spy 
hopping'') were exhibited more frequently when the acoustic source was 
inactive.
    Furthermore, a commenter references a 2008 stranding event of 
melon-headed whales in Madagascar, implying that a similar occurrence 
may be reasonably anticipated outcome of HRG survey work off of New 
Jersey. An investigation of the stranding event indicated that use of a 
12-kHz MBES (a source unlike any planned for use by Project Company 1 
or any other offshore wind companies on the East Coast) was the most 
plausible and likely initial behavioral trigger of the event (with the 
caveat that there was no unequivocal and easily identifiable single 
cause). The investigation panel also noted several site- and situation-
specific secondary factors that may have contributed to the avoidance 
responses that led to the eventual entrapment and mortality of the 
whales (Southall et al., 2013). Specifically, regarding survey patterns 
prior to the event and in relation to bathymetry, the vessel transited 
in a north-south direction on the shelf break parallel to the shore, 
ensonifying deep-water habitat prior to operating intermittently in a 
concentrated area offshore from the stranding site. This may have 
trapped the animals between the sound source and the shore, thus 
driving them towards the lagoon system. Shoreward-directed surface 
currents and elevated chlorophyll levels in the area preceding the 
event may also have played a role. The 12 kHz output frequency 
(generally in the middle of most marine mammal hearing ranges), 
significantly higher output power, and complex nature of the system 
implicated in this event, in context of the other factors noted here, 
likely produced a fairly unusual set of circumstances that indicate 
that such events would likely remain rare and are not relevant to use 
of more commonly used lower-power, higher-frequency systems such as 
those evaluated for this analysis. Further, the MBES sources included 
in Project Company 1's activities are all 200 kHz or above (i.e., 
beyond marine mammal hearing range) and significantly lower source 
levels than those used in the survey associated with the Madagascar 
event. Given this, marine mammals are not expected to hear the MBES 
sources used for the Project, which means that no behavioral response 
is anticipated, much less one that might be expected to contribute or 
lead to a stranding.
    A commenter suggested a connection between the recent U.S. East 
Coast strandings and the site characterization surveys, citing 
different analyses and studies from other sound sources, and compared 
the source characteristics of sparkers to airgun arrays, arguing they 
are more similar than is captured by NMFS's respective analysis of 
these sources. NMFS acknowledges that both sparkers and airguns have 
wide ranges of configurations and potential source levels. However, low 
energy sparkers (analyzed as 500-600 J here) are significantly 
different from common airgun seismic surveys in many ways (e.g., pulse 
duration, kurtosis, directionality, frequency content, source levels, 
and finally in how they are operated). In terms of sound levels, the 
maximum peak SPL measured for a similar sparker source in the field by 
Rand (2023) was 151.7 dB at a range of approximately 1 km (0.62 mi). 
The modeling methodology proposed here implies a peak SPL of 151 at 1 
km (0.62 mi), using spherical spreading and a peak source level of 211 
dB. In this case it is clear that both modeling and field data show 
that for similar sound sources the range to 150 dB is approximately 1 
km (0.62 mi). By contrast, Martin et al. (2017) measured the distance 
to the 150 dB peak isopleth for a seismic survey to be 41.8 km (25.97 
mi). Similarly, a seismic array analyzed for use in the Gulf of Mexico 
was modeled to have distances to the 160 dBrms isopleth 
ranging between 7 to 24 km (4.35 to 14.91 mi) (Gulf of Mexico rule 
modeling found on NMFS' web page at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico), whereas the sparker is estimated by the 
modeling

[[Page 77983]]

here to have a 160 dBrms range of 141 m (462.6 ft) and the 
measurement (Rand, 2023) was significantly below 160 dB at 1 km (0.62 
mi).
    The commenter further states that the frequency range of HRG 
sparkers likely overlaps that of mid-frequency sonar. Sparkers have a 
transmission frequency between approximately 300-1400 Hz (Ruppel et 
al., 2022), and while NMFS agrees that this does overlap with the lower 
end of what is considered for mid-frequency sonar (mid-frequency sonar 
is typically defined as 1 to 10 kHz), the frequency content of the 2 
sources are different. Further, the commenter acknowledges that mid-
frequency sonars have a source level of 235 dB, which is significantly 
higher than typical source levels for sparkers. For these reasons, NMFS 
finds that comparison with mid-frequency sonar is not particularly 
useful in comparison of likely impacts to marine mammals.
    Lastly, NMFS acknowledges that a commenter, in their Addendum, 
describes a study performed in the Gulf of Mexico in 2012 where the 
researchers suggested that the use of airguns in seismic surveys in the 
Gulf of Mexico may contribute to higher rates of stranding of several 
species of whale and dolphin. However, NMFS notes that the paper cited 
on this point is a paper by Pirotta et al. (2015) ``Predicting the 
effects of human developments on individual dolphins to understand 
potential long-term population consequences.'' Contrary to the 
commenters' description, this paper does not discuss strandings or 
seismic surveys. Because the cited paper does not correspond to the 
study described in the comment and no other citation for the study is 
provided, NMFS is unable to respond to the findings of this study in 
context to our proposed rulemaking and MMPA action.
    Comment 8: Commenters erroneously asserted that Level A harassment 
equates to instances of serious harm or fatality (i.e., mortality) and 
that members of the public are opposed to offshore wind construction, 
including the Project, on the basis that it kills marine mammals. 
Additionally, a commenter also conflates any take by Level A harassment 
with Potential Biological Removal (PBR).
    Response: NMFS reiterates that serious injury and/or mortality is 
not expected to occur as a result of Project Company 1's planned 
activities, was not requested by the applicant, and NMFS is not 
allowing any through this final rulemaking. Furthermore, there is no 
evidence that construction of the Project will lead to mortality of 
marine mammals, especially given the rigorous mitigation and monitoring 
measures NMFS requires Project Company 1 undertake.
    Turning to the commenter's second point, the commenter 
misrepresents PBR with the suggestion that it is applicable in the 
context of Level A harassment. The PBR level is defined as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a stock while allowing that stock to reach or maintain its 
optimum sustainable population (16 U.S.C. 1362(20)). Thus, PBR is only 
germane in the discussion of ``removals'' (i.e., serious injury or 
mortality) of individual marine mammals from the population and, 
therefore, PBR is not applicable in this discussion since no serious 
injury or mortality of any individuals is anticipated or allowed, as 
mortality has not been authorized.
    Comment 9: Commenters stated that NMFS must provide more 
information on the predictions for serious harm and mortality expected 
by Level A harassment and Level B harassment. Specifically, commenters 
claim that HRG surveys are causing strandings while a commenter was 
concerned that Level B disturbances can lead to: (1) avoiding the noise 
or ``standing off'' from it in an undesirable direction or location, 
and in a migratory setting, obstructing or blocking it; (2) if the 
mammal is between the shore and the vessel source, being driven towards 
the shore seeking relief; (3) surfacing (demonstrated experimentally by 
Nowacek et al. (2003)) to seek a lower noise level and becoming more 
vulnerable to vessel strike; (4) the separation of mothers and calves 
due to the ``masking'' of their normal communications, which would be 
fatal for the calf; and (5) the loss of its navigational ability, 
cessation of feeding or mating, loss of energy and the ability to 
detect predators or oncoming ships.
    Response: NMFS refers to its response to Comment 7 above regarding 
the potential for HRG surveys to result in marine mammal mortality. 
With respect to the concern that Level B harassment could lead to harm 
or mortality, NMFS refers the reader to the description in the proposed 
rule (88 FR 65430, September 22, 2023) on Population Consequences of 
Disturbance (PCoD) models. NMFS recognizes that intense, prolonged and 
repeated behavioral harassment that disrupts key life behaviors could 
lead to impacts on reproduction or survival. However, as described in 
the proposed rule and the Negligible Impact Determination section of 
this final rule, the best available science indicates that behavioral 
impacts to marine mammals from exposure to HRG surveys, and in 
consideration of the required mitigation measures, are not anticipated 
to result in energetic consequences that could lead to Level A 
harassment, impacts on reproduction or mortality. HRG surveys may 
result in low-level temporary behavioral disturbance such as slight 
avoidance of the source.
    In addressing the comment related to masking of communications 
between mothers and calves, NMFS agrees that noise pollution in marine 
waters is an issue with the potential to affect marine mammals, 
including their ability to communicate when noise reaches certain 
thresholds. This was addressed, in detail, in the proposed rule in the 
Effects section (88 FR 65430, September 22, 2023). While the commenter 
does not specifically address what would cause the mortality of a calf 
in the event of a separation, NMFS assumes the commenter is referring 
to missed foraging nursing opportunities. Specifically related to HRG 
surveys, NMFS disagrees that the noise produced by HRG acoustic sources 
would be extensive enough to cause effects to the extent that these 
effects would cascade from minor behavioral impacts into mortality to 
the calf and has stated in both the proposed and final rules that only 
take equating to Level B harassment is expected to occur. While the 
scientific literature supports evidence of reduced vocalizations 
between a North Atlantic right whale mother-calf pair when at the 
calving ground, which is located much further south and outside of the 
Project Area (Parks and Clark, 2007; Parks et al., 2019; Trygonis et 
al., 2013), vocalizations between the pair are known to increase as the 
whales undertake their annual travel/migration behaviors to the 
northern foraging ground (also located outside of the Project Area) and 
as the calf matures (Cusano et al., 2018; Root-Gutteridge et al., 
2018). NMFS refers the commenters to a paper by Videsen et al. (2017), 
which reports lower-level communication calls between humpback mother-
calf pairs and noting the increased risk of cow-calf separation with 
increases in background noise. We first note that only neonates were 
tagged and measured in this study (i.e., circumstances could change 
with older calves). Further, while vocalizations between these pairs 
are comparatively lower level than between adults, the cow and neonate 
calf are in regular close proximity (as evidenced by the extent of 
measured sound generated by rubbing in this study), which means that

[[Page 77984]]

the received levels for cow-calf communication are higher than they 
would be if the animals were separated by the distance typical between 
adults--in other words, it is unclear whether these lower-level, but 
close proximity, communications are comparatively more susceptible to 
masking. Furthermore, by making this comment, the commenter has not 
considered the movement of both the whale pair and the HRG acoustic 
sources as they relate spatially, and more specifically off of the New 
Jersey region which no primary foraging ground currently exists for 
North Atlantic right whales. While it is possible that North Atlantic 
right whale mother-calf pairs would pass through the Project Area 
during HRG survey campaigns, we expect that any overlap in occurrence 
between the isopleth from the HRG acoustic sources and North Atlantic 
right whale pairs would be brief, with the whales able to undertake 
minimal avoidance behaviors (i.e., avoidance) to further reduce any 
impacts from the acoustic sources. In considering only the overlap 
between HRG surveys and North Atlantic right whale presence, the 
commenter is not accounting for the conservative mitigation measures 
implemented before and during HRG surveys, whereas the estimated 
isopleth size from the Geo-Marine GeoSource, the sparker that Project 
Company 1 is planning to use, and the acoustic source with the largest 
distance to the Level B harassment threshold is 141 m (462.6 ft). The 
Clearance, Shutdown, and Vessel Separation Zones for North Atlantic 
right whales are all 500 m (1,640 ft), over 3.5 times the size of the 
isopleth, providing a more protected zone whereas North Atlantic right 
whale pairs would not be close enough to the edge of the isopleth 
before mitigative actions would be undertaken (i.e., shutdown or delay 
of using the acoustic source). Furthermore, any exposure to HRG 
acoustic sources would be expected to be minimal and fleeting, and most 
likely very easy for the whales to avoid the stimulus while 
experiencing minimal to no real effects. In understanding this very low 
likelihood of encountering cow-calf pairs, when combined with the fact 
that any individuals (or cow-calf pairs) would not be expected to be 
exposed on more than a couple/few days in a year, we expect that they 
would resume any previously interrupted behaviors quickly and with no 
long-term detrimental impacts.
    Similarly, NMFS GARFO's 2021 programmatic consultation determined 
that the actions considered therein were not likely to adversely affect 
any ESA-listed species or critical habitat and that, or the activities 
considered therein, no take is anticipated or exempted, as defined 
under the ESA (see https://media.fisheries.noaa.gov/2021-12/OSW-surveys-NLAA-programmatic-rev-1-2021-09-30-508-.pdf). With respect to 
any behavioral reactions from Project Company 1's activities resulting 
in increased risk of vessel strike, the commenter did not provide any 
evidence to support this conclusion. Marine mammals are subject to 
intense shipping traffic throughout U.S. East Coast waters (as 
demonstrated by UME data given vessel strikes are the primary cause of 
recent whale deaths in the Atlantic Ocean) and a slight deflection of 
migration or other movement patterns by whales in response to Project 
Company 1's activities does not necessarily mean risk would be 
increased. We note that GARFO's final Biological Opinion for the 
Project provided an evaluation of indirect vessel strike risk on marine 
mammals and found that, while avoidance and localized displacement 
behaviors are expected, these effects are expected to be temporary. 
Furthermore, even for those activities expected to be louder (i.e., 
foundation impact pile driving) than those activities specifically 
discussed by the commenter (i.e., HRG surveys), the Biological Opinion 
concluded that there is no expected avoidance behavior by a North 
Atlantic right whale from pile driving noise (or activities that 
produce quieter sounds) that would result in whales moving to areas 
with a higher risk of vessel strike. This determination was based on 
the relatively small size of the area with noise that an individual 
whale is expected to avoid (no more than 11 km (6.84 mi) from the pile 
being installed), the short-term nature of any disturbance, the limited 
number of whales impacted, and the lack of any significant differences 
in vessel traffic in that 11 km (6.84 mi) area that would put an 
individual whale at greater risk of vessel strike.
    Comment 10: A commenter stated that NMFS should provide a 
description and rationale for the whale behavior assumptions being 
employed in JASCO's JASMINE model, otherwise NMFS should dispense with 
utilizing animal avoidance modeling in the ITA.
    Response: The animal behavior attributes considered by JASCO in 
their JASMINE model are described in section 2.7 of JASCO's Underwater 
Acoustic Impact Assessment Report (see appendix B; https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf) and include behaviors as 
diving, foraging, aversion, and surface times. As described in the 
report, a subset of animal avoidance (called ``aversion'' in the text) 
scenarios were run for comparison purposes only (see page 24 in 
appendix B to section 2.7 of JASCO's Underwater Acoustic Impact 
Assessment Report) and were not considered in the exposure estimates 
calculated by JASCO that were used in this MMPA analysis.

Monitoring, Reporting, and Adaptive Management

    Comment 11: Commenters stated that the proposed rulemaking overly 
relies on the use of PSOs and PAM to mitigate ``harm'' to marine 
mammals, claiming PSOs have a limited visual range of 1,500 m (4,921.3 
ft) from an elevated platform or 1,000 m (3,280.84 ft) from a vessel 
bridge and that PSOs cannot observe North Atlantic right whales more 
than 5-10 ft (1.52-3.05 m) below the water's surface. They further 
state that PSOs would be even more limited during any nighttime pile 
driving, as there is no evidence that this specialized equipment is 
capable of allowing PSOs to detect whales in the dark at distances of 
more than a few hundred meters, and useless for North Atlantic right 
whales swimming at depth. The commenter also expressed concern over PAM 
limitations, including that PAM is effective only for calling animals, 
and that the probability of detection decreases with distance from the 
source and within increased background noise levels. To address these 
limitations, the commenter recommended PAM systems be deployed from 
multiple support vessels removed from the pile being installed and/or 
mono-buoys be placed strategically to operate and monitor in near-real 
time.
    Response: NMFS disagrees that monitoring efforts (i.e., using a 
combination of PSOs and PAM) will not be effective at detecting North 
Atlantic right whales such that injury or harm can be avoided. 
Commenters provided no evidence to support the presumed visual 
observation ranges. Project Company 1 is required to ensure that PSOs 
can visually monitor an area no smaller than the minimum visibility 
zone (1,900 m (6,233.6 ft)), which is more than the 1,500 m (4,921.3 
ft) distance specified by the commenter. Pile driving may not occur in 
any conditions (e.g., fog, rain, darkness) if PSOs are not able to 
sight marine mammals out to this distance. During construction of 
Vineyard Wind 1 and South Fork Wind, PSOs observed baleen whales at 
ranges as distant as 23 km

[[Page 77985]]

(75,459 ft) (RPS, 2024; South Fork Wind, 2024). NMFS recognizes 
distances out to which marine mammals may be observed are both species 
and weather dependent; however, the commenter did not provide evidence 
to support claims the minimum visibility zone could not be effectively 
monitored. Regarding PAM, the commenter cited a study titled ``PAMguard 
Quality Assurance Module for Marine Mammal Detection Using Passive 
Acoustic Monitoring ''(CSA Ocean Science, Inc., 2020), stating that PAM 
system have a limited capability detecting marine mammals, especially 
low-frequency baleen whales, when the animal is not vocalizing, and 
that this may cause North Atlantic right whales to remain undetected 
prior to entering the Level A harassment zone, particularly because 
right whales often go ``days or weeks without uttering a sound.'' The 
commenters further described the findings of this study, specifically 
noting that the probability of detection varies, stating that PAM 
systems may have a ``significant miss rate,'' within any individual 
hour even if marine mammals are vocalizing, in some cases due to 
limitations related to ``the operator's ability to stay attentive and 
interpret the sound data produced by the monitoring equipment,'' and 
that PAM systems are too easily masked by background noise. The study 
cited focuses on evaluating the relative performances of automated 
detectors and human analysts when tasked with identifying the 
occurrence of species-specific marine mammal call types in PAM data 
collected using a towed hydrophone array, thus the ``miss rate'' noted 
does not necessarily refer to the likelihood that a vocalizing marine 
mammal would not be detected on a given PAM system, but instead 
reflects variations in the ability of the automated detector or human 
analyst to detect a call if it is present in the PAM dataset. 
Developers are currently using a variety of PAM systems, including 
bottom-mounted hydrophone arrays and moored acoustic buoys, and 
assisted classification of received acoustic signals using automated 
detectors which minimizes strain on the PAM operator, thus reducing 
fatigue. This approach combines the strengths of both detector 
``types'' (i.e., human and software), by using automated detection 
software to cue a PAM operator's attention to potential acoustic 
detections of a given species during real-time monitoring, which the 
operator can then probe to determine the context of the detection and 
verify the detection and classification.
    The commenter does not provide any support for the claim that right 
whales are silent for days or weeks. Studies of right whale calling 
behavior (Davis et al., 2017; Davis et al., 2023; van Parijs et al., 
2023) indicate that, where acoustic buoys are deployed in known right 
whale habitat, upcalls (i.e., a call type commonly produced by all age 
groups) are not only detected regularly (i.e., many calls per hour) 
when right whales are expected to occur, based on known seasonal 
distribution patterns understood through visual observation and PAM 
data, but are also detected consistently during periods when right 
whales were not expected to occur (e.g., in southern New England in 
winter). Both Davis et al. (2017) and Davis et al. (2023) provide 
evidence that upcalls were detected, at minimum, weekly throughout much 
of the U.S. Eastern Seaboard and Canadian Maritimes during periods when 
right whales were present (confirmed by visual observations), and in 
many cases, much more frequently. These and similar studies report on 
upcall detection patterns, but right whales frequently produce other 
types of vocalizations, such as tonal moans and downsweeps, thus 
increasing the likelihood of detection using PAM.
    There are a wide variety of PAM systems available on the market 
(van Parijs et al., 2021), ranging from omnidirectional independent 
acoustic buoys to multi-channel hydrophone arrays that are capable of 
detecting marine mammals in real-time. Barkaszi et al. (2020), the 
paper cited by the commenter focuses on characterizing marine mammal 
detection performance for towed PAM systems, which are typically most 
effective for monitoring mid- and high-frequency cetaceans and, to 
date, have not been proposed by offshore wind developers to monitor for 
marine mammals during foundation pile driving. While the specific PAM 
systems that would be used by Atlantic Shores South are still unknown, 
Atlantic Shores South is required to submit a Passive Acoustic 
Monitoring Plan (PAM Plan) to NMFS that demonstrates the system will be 
able to detect North Atlantic right whales at ranges up to 10 km 
(32,808.4 ft). To date, offshore wind developers have used bottom-
mounted PAM systems located at distance from piles being installed. The 
proposed rule, and this final rule, require the PAM system be placed no 
closer than 1 km (3,280.8 ft) from the pile being installed to minimize 
masking of North Atlantic right whale calls by construction noise. We 
anticipate Project Company 1 would use similar bottom-mounted recorders 
in lieu of PAM systems operated from vessels, as recommended by the 
commenter, particularly given the prevalence of masking of low-
frequency sounds like North Atlantic right whale vocalizations by flow 
noise using towed PAM arrays (Barkaszi et al., 2020; Thode et al., 
2021; van Parijs et al., 2021).
    Comment 12: Commenters stated that NMFS should disclose noise 
source levels at the 1 m (3.3 ft) and 750 m (2,460.6 ft) points, and 
the best fit noise transmission spreading loss and attenuation factors 
as recommended in the recent BOEM pile driving document 
recommendations.
    Response: NMFS agrees that inclusion of source levels is important 
and notes decidecade band spectra are provided at 1 m (3.3 ft) for 
impact pile driving. Further, the decidecade spectra can be used to 
estimate broadband source levels. NMFS has performed this and the 
spectra corresponded to sound exposure level (SEL) source levels of 
approximately 227 dB for both 12-m and 15-m monopiles at hammer 
energies of 4,400 kilojoules (kJ). With regard to propagation loss, 
NMFS does not require best fit coefficients be included when more 
sophisticated propagation modeling is performed. However, such 
coefficients can be estimated from the acoustic ranges provided in the 
ITA application appendices.

Effects Assessment

    Comment 13: Commenters requested that all incidental take issued 
across multiple ITAs for offshore wind projects be considered 
cumulatively from previous, ongoing, or potential projects and their 
specified activities. One commenter specifically suggested that not 
considering the impacts of both the Atlantic Shores North Project and 
this Project, that would collectively result in the installation of 357 
WTG, leads to an underestimate of exposure ranges and take estimates. A 
commenter also stated that NMFS did not address the cumulative effects 
of turbine operation from this Project or others in the New York Bight 
area.
    Response: Section 101(a)(5)(A) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified

[[Page 77986]]

activity'' for which incidental take coverage is being sought under 
Sec.  101(a)(5)(A) is generally defined and described by the applicant. 
Here, the activities are specific to Atlantic Shores South which is 
limited to the installation of up to 200 WTGs within the Lease Areas. 
Per the MMPA and per the ITA application received from the applicant, 
the findings and determinations in this proposed rule are limited to 
the Lease Areas for the Project (OCS-A-0499 and OCS-A-0570) and do not 
include Atlantic Shores North (which is lease area OCS-A-0549).
    Neither the MMPA nor NMFS' codified implementing regulations call 
for consideration of the take resulting from other activities in the 
negligible impact analysis. The preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989) states, in response to 
comments, that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline (e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, UME status, and other 
relevant stressors). In this final rule, we also include a summary of 
the impacts from take authorized through other ITAs.
    The 1989 final rule for the MMPA implementing regulations also 
addressed public comments regarding cumulative effects from future, 
unrelated activities. There, NMFS stated that in determining impact, 
NMFS must evaluate the total taking expected from the specified 
activity in a specific geographic area but that cumulative effects are 
not considered in making findings under Sec.  101(a)(5) concerning 
negligible impact. In this case, this ITR, as well as other ITAs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered unrelated to each other in the sense that 
they are discrete actions under Sec.  101(a)(5)(A) issued to discrete 
applicants.
    Through the response to public comments in the 1989 implementing 
regulations (54 FR 40338, September 29, 1989), NMFS also indicated: (1) 
that we would consider cumulative effects that are reasonably 
foreseeable when preparing a National Environmental Policy Act (NEPA) 
analysis; and (2) cumulative effects that are reasonably certain to 
occur would also be considered under section 7 of the ESA for listed 
species, as appropriate. Accordingly, NMFS has adopted an EIS written 
by BOEM and reviewed by NMFS as part of its inter-agency coordination. 
This EIS addresses cumulative impacts on the human environment, 
including marine mammals, from past, ongoing, and future activities, 
including offshore wind and non-offshore wind activities that may 
affect marine mammals. Cumulative impacts regarding the promulgation of 
the regulations and issuance of a LOA for construction activities, such 
as those planned by Project Company 1, have been adequately addressed 
under NEPA in the adopted EIS that supports NMFS' determination that 
this action has been appropriately analyzed under NEPA. Separately, the 
cumulative effects of Project Company 1 on ESA-listed species, 
including North Atlantic right whales, was analyzed under section 7 of 
the ESA when NMFS engaged in formal inter-agency consultation with the 
Protected Resources Division within NMFS GARFO. GARFO's Biological 
Opinion for the Atlantic Shores South Project determined that NMFS' 
promulgation of the rulemaking and issuance of a 5-year LOA for 
construction activities associated with leasing, individually and 
cumulatively, are likely to adversely affect, but not jeopardize, 
listed marine mammals.
    Comment 14: A commenter stated that NMFS' proposed rule (88 FR 
65430, September 22, 2023) does not discuss the proposed turbine model 
or noise source level from a proposed turbine model. They also stated 
that NMFS underestimated operational turbine noises, as the proposed 
rule only presented impacts of low power and direct drive turbines.
    Furthermore, the commenter stated that mothers and calves 
performing migration activities travel at slower speeds (i.e., 
approximately 25 percent of these could potentially experience SELs 
exceeding 199 dB), which would cause permanent hearing loss and that 
operational sound could lead to North Atlantic right whale cow-calf 
separation.
    Response: Commenters specifically made claims based on a reanalysis 
from the operational noise source levels (181 dB (metric unknown)) for 
a Vesta-236 turbine model utilizing a monopile foundation (13.6 MW) 
that were estimated by extrapolating the broadband noise level trends 
versus turbine power using the Tougaard et al. (2020) and Stober and 
Thomsen (2021) papers. The commenters asserted that their estimate 
aligns with the value provided by a separate acoustics company, XI-
Engineering, who was commissioned by one of the commenters to determine 
the operational source level of a single Vesta-236 turbine (181 dB). A 
commenter stated that these papers show ``the trend in noise source 
level versus increasing turbine power size for a frequency ``spectral'' 
component more indicative of the whale's hearing range.'' They further 
extrapolated the results from these 2 papers to yield an estimated 
operational source level of 192 dB for a single turbine. Based on their 
analysis, they have estimated a range of 61 mi (98.17 km) from shore 
for either 200 (the maximum number of WTGs planned for Atlantic Shores 
South) or 357 WTGs (this is inclusive of the maximum number of WTGs 
across both Atlantic Shores South and Atlantic Shores North, 2 separate 
Projects) where whales would experience noise levels above 130 
dBrms.
    As described in the Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section in this final rule, the 
commenter's analysis is not reflective of the best available science. 
Holme et al. (2023) demonstrated that the model presented in Tougaard 
et al. (2020) tends to potentially overestimate levels (up to 
approximately 8 dB) measured to those in the field, especially with 
measurements closer to the turbine for larger turbines and the authors 
found no relationship between turbine activity (power production, which 
is proportional to the blade's revolutions per minute) and noise level. 
Moreover, Bellmann et al. (2023) note that no relationship between 
nominal WTG power and operational noise was observed, in contrast with 
the linear models used by Tougaard et al. (2020) and St[ouml]ber and 
Thomsen (2021). It is theorized that this is related to gearless and 
more modern WTGs measured as well as increased size and weight reducing 
transmission of vibrations. With regard to the extent of operational 
noise levels, Bellmann et al. (2023) concluded that tonal components of 
the operational noise are clearly observable at a range of 100 m (328 
ft), but typically are not resolvable within the prevailing ambient 
noise at a range of 5 km (3.11 mi). Based on the best available 
science, the commenters' calculations are flawed. Moreover, the 
commenter provided no evidence that exposure to operational turbine 
noise would prevent migration. In contrast, the proposed rule cited 
literature (e.g., Malme, 1983; 1984) supporting NMFS' conclusions that 
the most likely response to noise from the Project would be temporary 
avoidance

[[Page 77987]]

or deflection responses from but not abandoning evolutionarily 
ingrained migratory behavior).
    The swim speed analysis in the Hain et al. (2013) study that the 
commenters referenced only analyzed individuals within the North 
Atlantic right whale's traditional calving grounds in the Southeastern 
United States (SEUS) which is several hundred kilometers south of the 
Project Area. Mother-calf pairs have been documented as having extended 
stationary periods in the SEUS relative to other demographics as the 
pairs engage in critical development behaviors including nursing, 
``quiet contact'', play, and rest (Hain et al., 2013). However, mother-
calf pairs have been shown to decrease their stationary behaviors as 
the calf ages and the pair migrate farther north (Cusano et al., 2018). 
It is therefore likely that the pair's swim speeds may increase to some 
degree around the Lease Areas discussed here. Furthermore, out of 3 
groups analyzed in this study (i.e., mother-calf pairs, groups of 3 
individuals or more, and single/pairs without a calf), mother-calf 
pairs did not have significantly different swim speeds from groups of 3 
or more (average mother-calf swim speed = 1.20 km/hr. (0.75 miles per 
hour (mph)) +/- 0.76 km/hr. (0.47 mph) vs. 1.26 km/hr. (0.78 mph) +/- 
0.50 km/hr. (0.31 mph) for groups of 3 or more). Only single/pairs of 
right whales without a calf had significantly higher swimming speeds 
(1.86 km/hr. (1.16 mph) on average, +/- 1.27 km/hr. (0.79 mph)) (Hain 
et al., 2013). These results indicate that mother-calf pairs do not 
swim significantly slower than some other right whale demographics, and 
therefore do not have a disproportionately higher risk for permanent 
hearing loss as a result of their swim speed compared to the rest of 
the population.
    Given that mother-calf pairs are capable of swimming equally as 
fast as other demographics, and that they reduce their amount of 
stationary time as the calf continues to grow and the pair moves 
farther north, it is unlikely that mother-calf pairs would be 
disproportionately exposed to noise to the level that could cause 
permanent hearing loss. Furthermore, calves/younger whales may spend 
more time at the surface; making them more visible to observers (e.g., 
Baumgartner and Mate, 2003; Gero et al., 2013; Lomac-MacNair et al., 
2018; Cusano et al., 2019; Dombroski et al., 2021).
    Most importantly, NMFS also requires that Project Company 1's 
undertake enhanced mitigation and monitoring measures (i.e., bubble 
curtains, PAM, use of experienced PSOs, seasonal restrictions when 
North Atlantic right whales are more likely to be in and around the 
Project Area) to further reduce risks to North Atlantic right whale 
demographics (inclusive of any mother-calf pairs that may be migrating 
through the area), and expect that any harassment experienced by this 
species would be in the form of Level B harassment, and not Level A 
harassment. Furthermore, the Project Area is not one where this species 
is known to reside for long periods of time (i.e., no extended 
residency as there is no foraging ground or calving ground off of New 
Jersey) and most animals would be expected to be migrating through the 
migratory corridor. Because of this, we disagree with the commenter's 
assertion as described in their comment letter.
    Comment 15: A commenter stated that the rule needs to consider the 
increased risk to marine mammals from commercial and military vessel 
traffic being channeled into a 20 to 31 mile-wide (32 to 50 km) 
corridor between Atlantic Shores South's Lease Areas and planned 
projects in the Hudson South area given higher noise levels within the 
Project Area due to all WTGs becoming operational as well as overlap 
between pile driving activities of WTGs while other WTGs intermittently 
become operational. The commenter further stated that marine mammals 
attempting to travel within this corridor will incur an increased risk 
of vessel strike.
    Response: As part of the Construction and Operations Plan (COP) for 
this Project, and then incorporated into the analysis in BOEM's final 
EIS, Project Company 1 was required to evaluate and draft a Navigation 
Safety Risk Assessment (NSRA; appendix II-S of the COP (https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/2024-05-01_Appendix%20II-S%20Navigation%20Safety%20Risk%20Assessment.pdf)) to analyze the 
potential impacts of vessel traffic during construction, operation, and 
decommissioning of the Project and included considerations for 
commercial cargo vessels, military vessels, towing, fishing, and 
recreation vessels. Overall, the NSRA concluded that the construction 
of the Project as a whole will result in modifications to vessel 
traffic patterns, but that the risks associated with these changes 
would not be substantially different from consideration of Projects 1 
or 2 or the whole of Atlantic Shores South. While some key commercial 
traffic waterways currently exist near the Wind Turbine Area (WTA) 
(e.g., Ambrose-Barnegat Traffic Separation Scheme leading to and from 
New York), the NSRA concluded that, given the distance away from the 
WTA to the south and far from this TSS, there are no expected 
impedances anticipated for commercial traffic in and out of this area. 
The NSRA further states that the Project is not anticipated to have an 
adverse impact to vessel traffic, even though some vessels (e.g., 
commercial non-fishing vessels and military vessels) may choose to 
navigate around the Lease Areas rather than through it. However, 
although traveling through the Lease Areas would be generally 
restricted during the short construction period (i.e., approximately 2-
3 years) and may require non-Project vessels to transit through a 
narrower traffic route, vessels would be able to continue normal 
traffic patterns during the lengthy operations phase of the Project. 
Additionally, per the final EIS, the gridded pattern and appropriately 
marked lighting used for the WTGs, OSSs, and Met Tower is designed to 
improve vessel navigation, efficiency, and safety to allow for 
individuals to safely transverse through the Project Area.
    Here, we discuss both pile driving activities and operations, as 
Project Company 1 has indicated that some WTGs may become operational 
during periods where others are continuing to be installed. As the 
commenter did not specify if the noise relates to all WTGs as 
operational or not, this review is more comprehensive. In looking at 
this information biologically, this is addressed, in part, in the final 
Biological Opinion (which also relied on and incorporated the data and 
conclusions of the NSRA) wherein NMFS GARFO stated that, while it is 
reasonable to expect pile driving activities to contribute to the 
avoidance and temporary localized displacement of ESA-listed whales 
(and, broadly, other non-ESA listed marine mammal species as well in 
and around the Project Area), NMFS concluded that we do not expect that 
any avoidance behaviors from pile driving would result in North 
Atlantic right whales being driven or moving to areas where there is a 
higher risk of vessel traffic. This determination was based on the 
relatively small size of the Project Area with noise that an individual 
whale is expected to avoid (no more than 11 km (6.84 mi) from the pile 
being installed), the short-term nature of any disturbance, the limited 
number of whales impacted, and the lack of any significant differences 
in vessel traffic in that 11 km (6.84 mi) area that would put an 
individual whale at greater risk of vessel strike. Regarding 
operations, NMFS has already included a detailed

[[Page 77988]]

description of operational noise from commissioned WTGs (see Comment 
14). This discussion aligns with conclusions found within the 
Biological Opinion that state the area above ambient noise from 
operating WTGs is expected to be very small (i.e., 50 m (164 ft) or 
less) and any effects to ESA-listed whales (and, broadly other marine 
mammal species) are likely to be insignificant. Regarding vessel 
density after construction activities have ended, information gleaned 
from the NSRA indicate that less vessels are needed during the 
operation and maintenance phase of the Project, and some vessels, such 
as fishing vessels, may choose to continue transiting through the WTA, 
especially given known reef effects when hardened structures are 
installed into softer sediment environments (see Langhamer, 2012; 
Stenberg et al., 2015; Degraer et al., 2020; and Gill et al., 2020 for 
some examples) which would reduce any areas of higher vessel densities 
outside the WTA that would have existed during the construction period 
where avoidance of the WTA occurred (although the NSRA indicates this 
vessel density would not increase substantially even during the 
construction period, with a minor increase to the east of the WTA). 
This indicates that, given the already high level of vessel traffic 
experienced off of New Jersey, these changes would be minimal and 
temporary, with very little chance to lead to additional opportunities 
for vessel strikes of whales.
    Lastly, as the commenter specifically points out projects planned 
in the Hudson South Call Area, those 6 projects (i.e., Bluepoint Wind, 
LLC (OCS-A 0537); Attentive Energy LLC (OCS-A 0538); Community Offshore 
Wind, LLC (OCS-A 0539); Atlantic Shores Offshore Wind Bight, LLC (OCS-A 
0541); Invenergy Wind Offshore LLC (OCS-A 0542); and Vineyard Mid-
Atlantic LLC (OCS-A 0544)) are still in the early coordination phase 
with no construction activities currently planned in the next 5 years 
that would overlap with the effective period of Project Company 1's 
rulemaking. As these projects have not even finalized the process to 
become FAST-41 projects, NMFS does not expect that any construction 
activities for those lease areas are forthcoming within the effective 
period of Atlantic Shores South; therefore, no military or commercial 
vessels would be restricted into a narrow vessel traffic route nor 
would any whales experience an increased risk of vessel strike when 
navigating outside of the Project Area for Atlantic Shores South, per 
the narrow channel referenced by the commenter.
    NMFS acknowledges that whales may temporarily avoid the area where 
the specified construction activities or noise from operational WTGs 
occurs and this was broadly addressed in the proposed rulemaking. 
However, for the reasons described above, NMFS does not anticipate that 
whales will be displaced in a manner that would result in a higher risk 
of vessel strike, and the commenter does not provide evidence that 
either of these effects should be a reasonably anticipated outcome of 
the specified activity. Generally, vessel traffic in this region is 
concentrated closer to shore as vessels leave and return to the coastal 
ports. The density of vessel traffic dissipates as one moves offshore. 
The commenter has presented no information supporting the speculation 
that whales would be displaced from the Project Area into shipping 
lanes, areas of higher vessel traffic, or a specific corridor in a 
manner that would be expected to result in higher risks of vessel 
strike.

Other

    Comment 16: Commenters expressed concern that operational turbines 
could harm or kill marine mammals if they migrated through the Atlantic 
Shore South and Hudson South wind areas and that operational noise 
would impair the echolocation and navigation ability of North Atlantic 
right whales, increasing risk of predation and vessel strike, and 
compromise a North Atlantic right whales ability to make it through the 
corridor. Other commenters expressed similar concern for dolphins and 
other species that can echolocate.
    Response: Baleen whales (e.g., humpback whales, minke whales) do 
not have the ability to echolocate, a process by which toothed whales 
(e.g., sperm whales) and dolphins emit high-frequency sounds from their 
melon to obtain information about objects (typically prey) in the 
water. Because baleen whales do not echolocate like toothed whales and 
dolphins, there is no concern over impeding such ability. All large 
whales that have stranded along the U.S. East Coast since December 
2011, with the exception of 3 sperm whales, have been baleen whales.
    With respect to toothed whales and dolphins, the low frequency 
operational noise is not anticipated to impact echolocation. The 
frequency of echolocation clicks is dependent on their need; however, 
clicks would be outside the frequency range of operational noise (with 
some clicks being ultrasonic) typically around 30-100 kHz (Southall et 
al., 2019; Kuroda et al., 2020) and can be very loud (up to 200 dB 
peak-to-peak) (Brinkl[oslash]v et al., 2022). In contrast, operational 
turbine noise is generally below 1 kHz (Tougaard et al., 2020; 
St[ouml]ber and Thomsen, 2021). Therefore, turbine noise interference 
with echolocation is not a likely outcome of exposure.
    Operational noise is also not anticipated to interfere with North 
Atlantic right whale navigation or migration. During the effective 
period of the rule, some or all of Atlantic Shores' proposed turbines 
will become operational. The proposed rule included an evaluation of 
operational noise impacts on marine mammals, including North Atlantic 
right whales and described anticipated noise levels from operation. For 
example, the proposed rule indicated that 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). North Atlantic right whales are well known to 
transit through heavily used shipping lanes wherein commercial vessels 
(as well as recreational vessels) continuously elevate background noise 
levels. The commenter did not provide any scientific support to their 
statements that navigation and echolocation would be impaired due to 
operations so NMFS was unable to evaluate these statements further.
    Comment 17: A member of the public has stated that the work planned 
for Atlantic Shores South would interfere with the North Atlantic right 
whale's ``migration and reproduction territory'' and that NMFS should 
not issue any ITAs to allow for any type of harassment to marine 
mammals, particularly those listed under the ESA.
    Response: NMFS disagrees that the Atlantic Shores South Project 
would interfere with the ``migration and reproduction territory'' of 
the North Atlantic right whale, as suggested by the commenter. NMFS is 
aware of no evidence to support this claim, nor did the commenter 
provide any. The migratory Biological Important Area (BIA) is about 
177.77 km (101.46 mi) across where the Atlantic Shores South Project 
(26.4 km (16.4 mi)) intersects and given that the Project Area overlaps 
approximately less than 15 percent of the width of the migratory 
corridor, the Project Area is not expected to meaningfully impede the 
movement of migrating North Atlantic right whales. This information is 
all publicly available and this analysis can be easily

[[Page 77989]]

replicated and visualized through data found in NOAA's Marine Cadastre 
National Viewer at: https://marinecadastre.gov/viewers). No take by 
injury, serious injury, or mortality is authorized for the species. 
NMFS emphasizes that the authorized incidental take of North Atlantic 
right whales is limited to Level B harassment (i.e., behavioral 
disturbance). As described in the proposed rule and this final rule 
(see Negligible Impact Analysis and Determination section), NMFS has 
determined that the Level B harassment of North Atlantic right whales 
will not result in impacts to the population through effects on annual 
rates or recruitment or survival.
    Furthermore, no calving habitat or reproductive areas are known off 
of New Jersey and the BIA for this area is located off the southeast 
U.S. coast, extending from the Cape Fear, North Carolina to below Cape 
Canaveral, Florida (calving critical habitat; https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). These 2 
areas are approximately 712 km (443 mi) apart (assuming a straight line 
that intersects land), from the most southern point of the Lease Areas 
to the most northern point of the calving area. Therefore, NMFS does 
not expect that reproductive activities located in the southeast would 
be affected by the activities occurring off of New Jersey for the 
Project.
    Lastly, the commenter seems to have a misconception about how the 
MMPA and ESA work together. Under section 7(a)(2) of the ESA, Federal 
agencies are required to consult with NMFS or the U.S. Fish and 
Wildlife Service, as appropriate, to ensure that the actions they fund, 
permit, authorize, or otherwise carry out will not jeopardize the 
continued existence of any listed species or result in the destruction 
or adverse modification of designated critical habitats (16 U.S.C. 
1536(a)(2)). For the Atlantic Shores South Project, our office (i.e., 
the Office of Protected Resources) requested initiation of a section 7 
consultation for ESA-listed species with the NMFS Greater Atlantic 
Regional Fisheries Office on July 19, 2023. A Biological Opinion was 
completed on December 18, 2023 (see https://www.fisheries.noaa.gov/s3/2024-02/GARFO-2023-01804.pdf), which concluded that the promulgation of 
the rule and issuance of a LOA thereunder is not likely to jeopardize 
the continued existence of threatened and endangered species under 
NMFS' jurisdiction and is not likely to result in the destruction or 
adverse modification of designated or proposed critical habitat. 
Because of this, NMFS' action of finalizing the rulemaking and issuing 
a LOA for the Atlantic Shores South Project is consistent with the ESA.
    Comment 18: The Commission stated concern regarding discrepancies 
between modeled and measured zones as factors to take into account for 
rule conditions and recommended that NMFS provide the interim SFV 
reports for the South Fork and Vineyard Wind 1 projects and allow for 
another 30-day public comment period for the Atlantic Shores South 
proposed rule before issuing any final rule.
    Response: NMFS disagrees that results from the South Fork and 
Vineyard Wind 1 projects are necessary for the public to comment on the 
Atlantic Shores South proposed rule. The public had adequate 
opportunity to comment on the acoustic modeling methods and results in 
the proposed rule and supporting information, including a detailed 
acoustic modeling report. Moreover, in situ data on pile driving, in 
general, including from the Block Island Wind Farm and Coastal Virginia 
Offshore Wind (CVOW) Pilot Project are publicly available and were 
described in the proposed rule as well as modeling that has 
investigated how source levels may increase in relation to pile and 
hammer specifications. Since that time, NMFS made the Vineyard Wind 1 
SFV report available on its website as this report was deemed final. 
South Fork Wind has not yet submitted a SFV report that NMFS has deemed 
final; therefore, it is not available. Waiting until the South Fork SFV 
report is available and opening another 30-day public comment on the 
Atlantic Shores South proposed rule could constitute an unnecessary 
delay to the environmental permitting process and would not be aligned 
with the FAST-41. NMFS has reviewed the final monitoring reports 
submitted for the South Fork and Vineyard Wind 1--Phase 1 Projects and 
the results do not conflict with modeled assumptions and estimated/
allowed take included in the rule. Further, marine mammal monitoring 
results indicate that observed behaviors from pile driving activities 
are in line with NMFS' analysis and assumptions within the NID (i.e., 
behaviors of mysticetes included surfacing, blowing, fluking, and 
feeding, which are expected but not strong reactions to a noise 
stimulus and indicative of low levels of Level B harassment). For all 
these reasons, NMFS is not re-publishing the Atlantic Shores South 
proposed rule for public comment.
    NMFS acknowledges the Commission's concern regarding potential 
discrepancies between modeled and measured ensonification zones and has 
made certain changes within 50 CFR 217.304, including the addition of 
paragraph (c)(14)(viii)(A), to ensure that a flexible, iterative 
process is available to the agency in addressing any such 
discrepancies.
    Comment 19: The Commission recommended that NMFS ensure that the 
mitigation, monitoring, and reporting requirements for the construction 
of wind energy facilities are sufficient at the conclusion of the final 
rule phase and that by allowing additional sound attenuation 
technologies to be implemented, as needed, during Project construction 
could lead to delays and additional impacts to marine mammals if delays 
necessitate longer construction periods.
    Response: NMFS understands the suggestion by the Commission but 
disagrees at this time. Within U.S. waters, offshore wind is relatively 
new and brings with it new science, technology, and data. To fully 
ensure conservation benefits to NOAA's trust species, we believe that 
all mitigation, monitoring, and report approaches are necessary to be 
both proactive and reactive through our Adaptive Management condition 
found within the final rulemaking framework and LOA. Ideally, the 
Commission is correct and all mitigation, monitoring, and reporting 
requirements should be consistent and appropriate throughout the entire 
process, especially at the proposed rule stage. However, this 
suggestion by the Commission disregards the updated and improved 
knowledge and data obtained from each project as it completes 
permitting and enters the construction and operations period. As our 
knowledge and experience with all offshore wind projects continues and 
further improves, NMFS welcomes the ability to update and improve 
mitigation and monitoring measures, given the influence of new and 
additional data.
    While the Commission is correct that necessitating additional sound 
attenuation technologies, as needed, may cause delays, NMFS sees these 
adjustments as necessary to ensure that the Project is being 
constructed in an adaptive way that ensures sufficient protection of 
marine mammals. Specifically, we note the concern raised by the 
Commission wherein delays could lead to additional impacts to protected 
species ``if delays necessitate longer construction periods'' is 
without merit. As described within the proposed rule, and subsequently 
carried into the final rule, NMFS has considered situations where the 
construction schedule could experience delays due to weather or supply 
chain issues (also more broadly including changes to the implementation 
of the Project) and has

[[Page 77990]]

noted that, given the maximum construction Schedule analyzed for the 
Atlantic Shores South Project, we do not expect the maximum 5-year take 
to exceed that which is authorized in the LOA. Additionally, the 
seasonal restrictions designed to provide additional protections to 
North Atlantic right whales (i.e., January through April) are 
implemented annually throughout the entire effective period of the 
final rulemaking and LOA. If foundation pile driving is delayed into 
this seasonal shoulder, activities would only be allowed to continue 
once the restriction period has ended (i.e., after April 30th), when 
North Atlantic right whales are less likely to be in the Project Area. 
Because of this, we do not expect that any marine mammals would be 
impacted during times of year where the effects were not already 
analyzed.
    Comment 20: The commenter suggests that NMFS is using an arbitrary 
percentage (i.e., 33) to represent ``small numbers'' when a smaller 
percentage (i.e., 12) would be more appropriate, per a Court decision. 
The commenter also seems to be arguing that given the number of takes 
by harassment predicted and authorized for North Atlantic right whales, 
a take by serious injury or mortality is therefore likely to occur, and 
that that would be inconsistent with the criteria of less than 1 
serious injury or fatality for the North Atlantic right whale (i.e., 
referencing specifically the PBR). The commenter further goes on to say 
that this is a clear violation of the small numbers determination and 
the negligible impact criteria.
    Response: NMFS has provided a reasoned approach to small numbers, 
as described in full in the final rule, ``Taking Marine Mammals 
Incidental to Geophysical Surveys Related to Oil and Gas Activities in 
the Gulf of Mexico'' (86 FR 5322 at 5438, January 19, 2021). Utilizing 
that approach, NMFS has made the necessary small numbers finding for 
all affected species and stocks in this case (see the Small Numbers 
section of this preamble for more detail). The commenter also cites 
NRDC v. Evans, 279 F.Supp. 2d 1129 (N.D. Cal. 2003), for the 
proposition that a standard less than 12 percent is required for the 
``small numbers'' analysis. The commenter's reading of that case is 
inaccurate. In Evans, the court ruled that the negligible impact 
determination and the small numbers analysis must be undertaken 
separately, but the court specifically ``does not require defendants to 
set an absolute numerical limit'' for small numbers (Id. at 1152). 
Following that case, NMFS undertook separate small numbers findings 
from its negligible impact determinations, analyzing in each case 
whether the numbers were small relative to the stock or population size 
(the ``proportional approach''). NMFS's proportional approach has been 
recently upheld as a reasonable interpretation of the relevant 
statutory provision (see Melone v. Coit, 100 F.4th 21, 30-31 (1st Cir. 
Apr. 25, 2024)).
    Regarding the assertions that serious injury or mortality will 
result from the activity given the number or authorized takes by 
harassment, the mathematical arguments presented by the commenter are 
unsupported and no evidence supporting the likelihood or serious injury 
or mortality is presented. NMFS has provided extensive explanations for 
why these activities are not expected to result in serious injury or 
mortality of North Atlantic right whales (see Comments 7, 8, 9, and 17) 
and also provided a robust rationale supporting the negligible impact 
determination for North Atlantic right whales and all marine mammal 
species in the Negligible Impact Analysis and Determination section of 
the final rule.
    Comment 21: A commenter stated that NMFS omitted important impacts 
of this Project, including impacts from Project decommissioning. The 
commenter also stated that the proposed rule did not address why UXOs/
MECs were not analyzed in this action, even though they were present in 
the action of a neighboring lease (i.e., Ocean Wind 1, OCS-A-0498).
    Response: Given that the average lifespan of offshore wind turbines 
is about 20-35 years, decommissioning would occur after this 5-year 
rule expires and therefore was not included as a specified activity in 
Atlantic Shore's application. Because of this, decommissioning is not 
an activity subject to the MMPA analysis contained herein. Similarly, 
Project Company 1 does not plan to detonate UXO/MECs for this Project, 
did not include it as part of the specified activities in the 
application or request to take marine mammals incidental to the 
detonation of UXO/MECs, and NMFS did not propose detonation of UXO/
MECs.
    Comment 22: A commenter, in many of their comments, referenced an 
analysis for 357 WTGs, which is inclusive of 2 separate projects: 
Atlantic Shores North and Atlantic Shores South.
    Response: NMFS notes that the commenter erroneously describes the 
total possible Project Design Envelope for 2 separate projects: 
Atlantic Shores South (n=200 WTGs) and Atlantic Shores North (n=157 
WTGs). NMFS' action for which the proposed rule was published is over 
the Atlantic Shores South and did not include the Atlantic Shores North 
project. NMFS is required to consider applications upon request, and 
the MMPA does not provide NMFS with authority to dictate an applicant's 
definition of its specified activity (e.g., separation/combination of 
construction activities across multiple lease areas or projects with 
the developer, etc.). An individual company owning multiple lease areas 
may apply for a single ITA to perform construction or conduct site 
characterization surveys across a combination of those lease areas, if 
they so wish, such as some HRG survey activities conducted by Orsted, 
or may request a single ITA for a single project area or lease area, 
both cases which may be found on NMFS' website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. For Atlantic 
Shores South, NMFS did not receive a joint application for both South 
and North, only for South and the Lease Areas (i.e., OCS-A-0499 and 
OCS-A-0570). While an individual company owning multiple lease areas 
may apply for a single ITA to conduct their activities across a 
combination of those lease areas, this is not applicable in this case. 
In the future, if applicants wish to undertake this approach, NMFS is 
open to the receipt of joint applications and additional discussions on 
joint actions. However, for NMFS' action as described here, the 
applicant, Project Company 1, requested an ITA for Atlantic Shores 
South, and that is what NMFS' analysis herein describes.
    Comment 23: Commenters stated that NMFS has failed to fulfill its 
obligations under the NEPA and the ESA. Regarding NEPA, the commenters 
stated that because the Project constitutes a major Federal action, it 
must be supported by an EIS and NMFS must either prepare its own or 
work with BOEM as a cooperating agency to the preparation of an EIS. 
They further expand that, to be consistent with NEPA, the MMPA ITA 
review must be coordinated with the EIS review to the ``maximum extent 
possible'', which the commenter interprets as the proposed rule being 
released for public comment alongside the draft EIS so the public has 
the ability to evaluate both documents and the final MMPA rulemaking 
being released at the same time as the final EIS. The commenter also 
stated that the proposed MMPA ITA publication should be accelerated or 
the draft EIS should be delayed until both documents are ready (and the 
commenters stated May 2023 as that date).

[[Page 77991]]

    Additionally, the commenter stated that, per BOEM's new NEPA 
policy, only projects that have been already approved by the State 
should be analyzed and carried forward. Given the State of New Jersey 
has not approved Project 2 (at the time of drafting this final 
rulemaking), the scope of the MMPA ITA application should be limited to 
Project 1 only. The commenter then states that they believe BOEM's new 
NEPA policy to be inherently flawed and too limiting in scope.
    Regarding the ESA, the commenters have stated that the Notice of 
Availability of the EIS makes no mention of compliance with the ESA and 
that the section 7 consultation should have been coordinated with the 
NEPA EIS and the MMPA ITA process. They also state that the Biological 
Assessment should be made publicly available at the same time as the 
draft EIS and the proposed rulemaking (in alignment with their 
suggestions for the MMPA/NEPA schedule) so the public can review all 
documents in the appropriate context.
    Given the explanation above, the commenters recommend that if these 
suggestions are not followed, NMFS deny the Project an ITA and engage 
in further discussions with BOEM and the applicant to terminate the 
Project. Alternatively, they suggest that if the Project isn't 
terminated, it should be reduced in scope to allow for unimpeded use of 
the migratory corridor for North Atlantic right whales.
    Response: NMFS has met its obligations under both NEPA and the ESA 
for the issuance of the MMPA final rule, in that all required 
procedural steps have been followed, and the necessary findings have 
been made to support the issuance of the final rule. NMFS agrees that 
the planned Project, as described, constitutes a major Federal Action 
and therefore requires an evaluation under NEPA. In compliance with 
NEPA, BOEM published a Notice of Intent (NOI) to prepare an EIS for the 
Atlantic Shores Offshore Wind Projects (i.e., Atlantic Shores South) 
(86 FR 54231; September 30, 2021), which is found on BOEM's web page 
at: https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south. In alignment with this NOI, BOEM published both a Notice 
of Availability of the draft EIS (88 FR 32242, May 19, 2023) and the 
draft EIS itself on their web page and opened a public comment period 
soliciting public input on the Project and draft EIS for a 60-day 
public comment period (noting that the commenter provided comments on 
the draft EIS, per appendix N of the final EIS) (see https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-offshore-wind-south-final-environmental-impact).
    We disagree with the commenter's statement that NMFS has failed in 
its obligations under NEPA. NMFS has been a cooperating agency working 
with BOEM on the EIS since October 18, 2021, when BOEM transmitted a 
request to join the Project as a cooperating agency. NMFS participated 
and provided several reviews of the draft and final EIS' as they relate 
to our trust species and resources, and coordinated with BOEM, as the 
lead agency, as needed. NMFS disagrees with the commenters' comment 
that the draft EIS should be released concurrently and during the same 
time period as the proposed MMPA ITA, the final EIS should be released 
at the same time as the final MMPA ITA, and that the timeline for the 
MMPA ITA should be sped up, in this case, to align with the timeline 
for the final EIS. The current FAST-41 schedule allowed sufficient time 
for both the draft EIS and the proposed MMPA ITA to be evaluated, 
before either were finalized, and provided a publicly available 
timeline for this regulatory action. Nothing in the MMPA, ESA, or NEPA 
requires or suggests the timing adjustments described by the commenter. 
Lastly, the commenter fails to provide a basis for suggesting the May 
2023 date and, as stated above, NMFS disagrees with timeline 
adjustments as presented by the commenter. The relevant regulatory 
processes have followed typical timelines for such actions and properly 
incorporated public comment.
    As to the commenter's second point regarding NEPA and BOEM's 
approval of one or both of the projects described for Atlantic Shores 
South, NMFS does not have authority over BOEM processes or guidance, 
nor do we have authority to allow for Project activities to go forward 
or to be rejected, as that is outside the scope of our MMPA authority. 
Within the scope of our MMPA authority is to analyze, and if specific 
findings are met, allow for a limited amount of take to occur to marine 
mammals from specified activities in the ITA application. Any questions 
specific to BOEM's policies should be directed at the appropriate 
agency.
    Commenters also identified concerns regarding a lack of text in the 
NOA of the draft EIS and that the section 7 consultation under the ESA 
should have been coordinated with the NEPA EIS and MMPA ITA processes. 
Regarding the MMPA ITA, NMFS met its requirements under the ESA through 
the initiation of the section 7 consultation of the ESA on July 19, 
2023, as described in the proposed rulemaking. As required under NEPA 
and the ESA, BOEM provided a Biological Assessment to NMFS GARFO. Any 
other comments or discussions regarding timing and alignment between 
NEPA and the ESA are out-of-scope for the NMFS MMPA action and should 
be taken to the appropriate agencies (i.e., BOEM) and offices (i.e., 
NMFS GARFO). Additionally, the commenters' statement that the 
Biological Assessment should be made publicly available at the same 
time as the draft EIS, is unfounded and out of scope of NMFS' MMPA 
action. Our response to the commenter's suggestion on schedule 
alignment is set forth above.
    Finally, the commenters propose termination of the Project if these 
alignment concerns are not addressed, or in the alternative, a 
reduction in the scope and size of the Project to allow for the 
unimpeded use of the migratory corridor by North Atlantic right whales. 
Again, termination of the Project is outside the scope of NMFS's 
authority, and outside the scope of this MMPA action. The commenters 
provide no substantive reasoning why NMFS should refuse to promulgate a 
final rulemaking. As previously described, the MMPA is an applicant-
lead process and NMFS analyzes the scope of a project, as proposed by 
an applicant.
    Comment 24: Commenters requested that NMFS provide information that 
can be used to identify the wind turbine installation vessel.
    Response: NMFS agrees with the commenter that identification 
information for the vessels used in the Project (and more broadly for 
all offshore wind projects) is important. As described in the proposed 
rule (88 FR 65430, September 22, 2023), and carried over into the final 
rule, NMFS requires that all vessels working on the Atlantic Shores 
South Project utilize an Automatic Identification System (AIS) and 
Project Company 1 is required to provide the Marine Mobile Service 
Identity (MMSI) numbers to NMFS, per the requirements described under 
this final rule in Vessel Strike Avoidance Measures section, located in 
the Mitigation section, as well as within the final regulations 
conditions under 50 CFR 217.304(a)(11) and Sec.  217.305(g)(14)(v). 
These vessels will be available to be publicly viewed on a number of 
free AIS tracking websites, including but not limited to: https://www.marinetraffic.com and https://www.vesselfinder.com.

[[Page 77992]]

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
(88 FR 65430, September 22, 2023), NMFS has made changes, where 
appropriate, that are reflected in the preamble and regulatory text of 
this final rule. These changes are briefly identified below, with more 
information included in the indicated sections of the preamble to this 
final rule.

Changes to Information Provided in the Preamble

    The information found in the preamble of the proposed rule was 
based on the best available information at the time of publication. New 
information is constantly becoming available and is intentionally 
solicited during the public comment period. NMFS works to ensure the 
best available science is included in every stage of the regulatory 
process. Since publication of the proposed rule, new information 
related to the effects of the activity on marine mammals has become 
available and has been summarized and considered in this final rule. As 
discussed below, while new information has added detail to our 
understanding of the impacts of the activity on marine mammals and 
their habitat, and in some cases minor changes or clarifications have 
been made to the narrative supporting the analysis or the mitigation 
and monitoring measures as a result, the inclusion of this new 
information has not resulted in substantive changes from any of NMFS' 
determinations in the proposed rule.
    Throughout the rule, and in the Summary of Request section, given 
the request from the applicant to change ownership of Atlantic Shores 
South and the lease segregation, we have updated the name of the 
applicant and lease numbers, where appropriate.
    The following changes are reflected in the Description of Marine 
Mammals in the Specified Geographic Region section of the preamble to 
this final rule:
    Given the release of NMFS' draft 2023 Stock Assessment Reports 
(SARs) (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), we have updated the 
stock abundance estimates for several species and stocks, including: 
North Atlantic right whales (which also includes the Linden (2023) 
estimate, as incorporated into the draft 2023 SARs), sperm whales, 
Atlantic spotted dolphins, bottlenose dolphins (Western North 
Atlantic--offshore stock), common dolphins, short-finned pilot whales, 
Risso's dolphins, harbor porpoises, and gray seals. These revised 
abundance estimates have been incorporated into the tables (where 
applicable), and into the Negligible Impact Analysis and Determination 
section and Small Numbers section in this final rule.
    In alignment with the new draft 2023 SARs, we have updated the 
total North Atlantic right whale total mortality/serious injury (M/SI) 
amount from 8.1, as shown in the proposed rule, to 27.2. This accounts 
for 27.2 total mortality, 17.6 of which are attributed to fishery-
induced mortality, per the footnote in the draft SAR. This increase is 
due to the inclusion of undetected annual M/SI in the total annual 
serious injury/mortality estimate. As described above, no M/SI of North 
Atlantic right whales is anticipated or has been authorized for the 
Project.
    Given the availability of new information, we have made updates to 
the UME summaries for the described species (i.e., North Atlantic right 
whales, humpback whales, minke whales, and phocid seals).
    Within the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat section, we have made the following 
additions:
    We have added additional information regarding operational noise 
from WTGs, given the release of new scientific literature.
    We have added information relating to the broken blade at the 
Vineyard Wind 1 lease area (OCS-A-0501), the rarity of this event 
occurring, and that no take was requested, proposed, or authorized 
incidental to blade failure so this isn't discussed further in this 
document.
    The following changes are reflected in the WTG, OSS, and Met Tower 
Foundation Installation subsection of the Estimated Take section of the 
preamble to this final rule:
    Due to a public comment received during the 30-day comment period 
associated with the proposed rule, NMFS agrees that the broadband 
source level is important information to include. Using the decidecade 
spectra included in the application, we have calculated and included 
the SEL source levels for 12-m and 15-m monopiles using hammer energies 
of 4,400 kJ and found that they are approximately 227 dB.
    After additional review of the application materials, NMFS noted a 
transcription error in table 15 of the proposed rule where the 
incorrect distances were presented for the acoustic ranges 
(R95) for sites L01 and L02. The correct ranges are 
shorter than those in the proposed rule. This has been corrected in the 
final rule in table 13; however, recognition of this error does not 
change our measures or findings.
    The proposed rule contained the correct take numbers from 
foundation pile driving for Project 1 and Project 2, individually 
(tables 17 and 18 in the proposed rule and tables 15 and 16 of this 
final rule). However, in developing this final rule, NMFS recognized 
that the takes from Project 2 were not appropriately added to the takes 
from Project 1 in Year 2 (when a limited number of WTG foundations from 
Project 2 may occur in the same year as Project 1, as shown in Tables 
17 and 18 of the proposed rule). The final rule corrects the sum of the 
total take each year and over the 5-year period. This action changes 
some of the take estimates found in table 17 of this final rule (table 
19 of the proposed rule) and tables 22, 23, and 24 of this final rule 
(tables 24, 25, and 26 in the proposed rule), but did not affect or 
change NMFS' overall final determinations for this rulemaking described 
in the proposed rule. Furthermore, this update does not change the 
number of WTGs fully analyzed in the take analysis (n=200 WTGs). Where 
applicable, in the final rule, these updates have also been addressed 
in the Negligible Impact Analysis and Determination section and for the 
small numbers finding in the Small Numbers section.
    The following change is reflected in the Cable Landfall Activities 
subsection of the Estimated Take section of the preamble to this final 
rule:
    To provide additional context to the proximity to shore for the 
temporary cofferdam activities, NMFS has added additional information 
regarding known haul-out locations of pinnipeds in New Jersey and a 
brief discussion on why we do not expect any harassment from in-air 
noises.
    The following changes are reflected in the HRG Surveys subsection 
of the Estimated Take section of the preamble to this final rule:
    Given new information on the sparker acoustic source planned for 
use during HRG surveys, as provided by the applicant, and a re-review 
of the information found within Crocker and Fratantonio (2016), NMFS 
believes a transcription error occurred in the initial ITA application 
where the wrong operational parameters for the Applied Acoustics Dura-
Spark 240 and the GeoMarine Geo-Source sparker units were incorrectly 
and inadvertently included. NMFS has added additional information and 
corrected existing information clarifying the use of the

[[Page 77993]]

GeoMarine Geo-Source sparker, the anticipated nominal operational 
characteristics of this source (i.e., energy level and number of tips), 
the expected acoustic output (i.e., dBrms) based on these 
characteristics, and the Applied Acoustics Dura-Spark sparker unit. We 
have updated table 20 with this information and added footnotes to 
address these changes. Importantly, this update did not affect or 
change NMFS' overall final determinations for this rulemaking described 
in the proposed rule.
    To provide additional clarity on the total allowed take from HRG 
surveys over the entire 5-year effective period of this final 
rulemaking, we added a column to table 21 labeled ``Total 5-year 
Allowed Take By Level B Harassment''.
    Within the Total Take Across All Activities subsection of the 
Estimated Take section, NMFS updated the stock abundances for tables 
22, 23, and 24 in this final rule based on the 2023 draft SAR 
estimates.
    After review, NMFS noted that in table 25 of the proposed rule, the 
total take by Level B harassment, total take by Level A harassment, and 
total collective 5-year take for Atlantic spotted dolphins and Atlantic 
white-sided dolphins were inadvertently switched. Tables 24 and 26 of 
the proposed rule were unaffected. In this final rule, NMFS has 
addressed this to clearly display that total take by Level B 
harassment, total take by Level A harassment, and total 5-year take are 
correctly displayed for each species (see table 23 in this final rule). 
Where applicable, in the final rule, these updates have also been 
addressed in the Negligible Impact Analysis and Determination section 
and for the small numbers finding in the Small Numbers section.
    The following changes are reflected in the Mitigation section of 
the preamble to this final rule:
    We have updated our vessel separation distances in the Vessel 
Strike Avoidance section to align with the final Biological Opinion. A 
500-m (1,640-ft) minimum separation distance is now required for all 
ESA-listed large whale species (i.e., sperm whales, fin whales, sei 
whales) and any unidentified large whale species, and a 100-m (328-ft) 
minimum distance is required for all non-ESA-listed large whales (i.e., 
humpback whales, minke whales). The North Atlantic right whale minimum 
separation distance (500 m (1,640 ft)) and the distance for all 
delphinid cetaceans and pinnipeds (50 m (164 ft)) did not change. We 
have also updated table 27 in the Mitigation section and the relevant 
language in the regulatory text (see 50 CFR 217.304(b)(11) and (12)).
    We have updated parts of the Mitigation section to include NMFS' 
website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, 
alongside the requirements to monitor Channel 16 and the Right Whale 
Sightings Advisory System. These updates have also been made in the 
relevant parts of the regulatory text (see 50 CFR 217.204(a)(3) and 
217.204(b)(4)).
    We have provided more information on what Project Company 1 would 
need to provide to NMFS Office of Protected Resources to fully allow 
for consideration of pile driving activities occurring in December. 
This includes details on a written request being provided by October 
15th, as well as some information that must be included in this 
request, including but not limited to: (1) the installation schedule 
and types of piles to be installed; (2) the maximum number of piles 
that would be anticipated to be installed in December; (3) the planned 
hammer energies; and (4) any planned or additional mitigative measures 
that could be implemented to further reduce activities to North 
Atlantic right whales and other marine mammal species. These 
requirements have also been added to the Regulatory text at the end of 
the preamble, in 50 CFR 217.304(c)(1).
    We have clarified the formatting and language within table 25 to 
allow for easier interpretation. However, none of the information that 
was originally in the proposed rule has changed in this table in the 
final.
    In table 25, we have adjusted the language for the clearance and 
shutdown zones for North Atlantic right whales to be ``any distance 
within the PAM Clearance/Shutdown zone'', which is 10 km (6.21 mi).
    Also in table 25, we have specified that the PAM system used by 
Project Company 1 must: (1) be able to detect all marine mammals; (2) 
maximize baleen whale detections; and (3) be capable of detecting North 
Atlantic right whales at 10 km (6.21 mi), with that understanding that 
other marine mammals (e.g., harbor porpoise) may not be detected at 10 
km (6.21 mi).
    We have also provided additional clarification on when deliverables 
(i.e., reports and plans) are provided to NMFS using ``calendar'' days 
versus actionable items (i.e., December pile driving requests, PSO/PAM 
operator resume reviews) are provided to NMFS using ``business'' days. 
These were also reflected, where appropriate, in the Monitoring and 
Reporting section, as well as the corresponding sections in the 
regulations at the end of this preamble.
    In addition to the thorough SFV requirements in the proposed rule, 
and given abbreviated SFV requirements were inadvertently excluded from 
the proposed rule, we have added to this final rule the requirement 
that Project Company 1 must conduct abbreviated SFV monitoring 
(consisting of a single acoustic recorder placed at an appropriate 
distance from the pile) on all foundation installations for which the 
thorough SFV monitoring, as required in the proposed rule, is not 
carried out consistent with the Biological Opinion. NMFS requires that 
these SFV results must be included in the weekly reports. Any 
indications that distances to the identified Level A harassment and 
Level B harassment thresholds for whales must be addressed by Project 
Company 1, including an explanation of factors that contributed to the 
exceedance and corrective actions that were taken to avoid exceedance 
on subsequent piles.
    We have also updated and added requirements in the Sound Field 
Verification (SFV) subsection of the Monitoring and Reporting section 
to fully describe both thorough SFV and abbreviated SFV, in alignment 
with the final NMFS Greater Atlantic Regional Fisheries Office (GARFO) 
Biological Opinion.
    We have added a requirement in the Reporting section for Project 
Company 1 to report operational sound levels from all installed piles, 
in alignment with a requirement found in the completed Biological 
Opinion.
    We have removed specific dates, days of the week, and months from 
the Reporting section to provide additional flexibility for Project 
Company 1 and will include the relevant dates, days of the week, and 
months in the LOA.

Changes in the Regulatory Text

    Within the regulatory text more broadly, we have made minor 
modifications and updates to some of the language to improve clarity 
and understanding.
    Within 50 CFR 217.304 Mitigation requirements, several changes were 
made to paragraphs (c)(14)(vii), (viii), and (x) to both align with the 
completed Biological Opinion and to ensure flexibility and compliance 
in situations where SFV measurements indicate operational or NAS 
changes may be called for, or modified monitoring may be needed. These 
changes were informed by the comment letter

[[Page 77994]]

received from the Commission which primarily addressed concerns 
regarding SFV and noted that NMFS needed to better account for 
discrepancies between modeled and measured zones based on results from 
the interim SFV reports.
    Under 50 CFR 217.304(c)(14)(viii), we have added a sub-condition 
specifying the action that Project Company 1 must undertake in the 
event all practicable measures that could reduce noise levels have been 
successfully implemented and exhausted but the results from the 
thorough SFV measurements continue to indicate that the distances to 
the marine mammal harassment thresholds are greater than those modeled 
assuming 10 dB attenuation. This includes a requirement to meet with 
NMFS within 3 business days to discuss the results of SFV monitoring, 
the severity of exceedance of distances to identified isopleths of 
concern, the species affected, modeling assumptions, and whether the 
SFV results demonstrate the magnitude and degree of impacts from the 
Project are greater than those considered in this final rule. This 
change was informed, in part, by the Commission's comment letter 
discussing concern with potential discrepancies between modeled and 
measured zones.
    Within 50 CFR 217.304(c), several changes were made to paragraph 
(c)(14)(x) that provide updated information on thorough SFV, 
abbreviated SFV, and on what Project Company 1's Sound Field 
Verification Plan (SFV Plan) must include, to align these measures more 
closely with NMFS GARFO's final Biological Opinion.
    Under 50 CFR 217.304(f), NMFS has better aligned and updated some 
of the mitigation measures for fishery monitoring surveys to better 
require training in marine mammal identification (50 CFR 
217.304(f)(1)); better described actions if gear is being removed from 
the water when a marine mammal is sighted (50 CFR 217.304(f)(5)); 
described actions that must be undertaken during trawl surveys (50 CFR 
217.304(f)(10)); provided a human safety caveat to the gear removal 
requirement (50 CFR 217.304(f)(15)); and, added reporting information 
to NMFS GARFO in the event gear is lost (50 CFR 217.304(f)(16)).
    Within 50 CFR 217.305 Monitoring and reporting requirements, the 
regulatory text clarifies PSO and PAM operator qualification 
requirements. The number of PSOs required to monitor during offshore 
wind farm construction is extensive. To address concerns regarding the 
lack of very specific experience contained within the proposed rule and 
increase the pool of qualified candidates, Sec.  217.305(a)(7) has been 
updated to remove the requirement for specific experience working in 
the Northwest Atlantic Ocean. Instead, potential PSOs must demonstrate 
experience visually monitoring marine mammals, including baleen whales. 
This experience can be undertaken anywhere in the world. Upon closer 
consideration of this issue, NMFS finds that prior experience visually 
monitoring for marine mammals requires the same skill sets and is 
relevant and transferable to the monitoring required in the specified 
geographic region here.
    Within 50 CFR 217.305(c), the requirement to employ 1 PAM operator 
per buoy stream has been removed, recognizing the PAM and data transfer 
systems vary widely and given NMFS' finding that fewer PAM operators 
may be sufficient to carry out PAM during pile driving. Instead, the 
final number of PAM operators will be identified in a NMFS-approved PAM 
Plan, in the context of what is sufficient given the specific system 
and circumstances.
    Within 50 CFR 217.305(a), the PSO and PAM operator regulatory text 
has also been reorganized and removes the classification of PAM 
operators as conditional or unconditional, instead relying on the PAM 
operator experience described in the proposed rule to determine 
sufficiency of qualifications.
    Within 50 CFR 217.305(c), the requirement to conduct and review PAM 
data for 24 hours prior to pile driving has been retained; however, the 
regulatory text in this final rule removes the term ``immediately prior 
to foundation impact pile driving'' when discussing reviewing 24-hours 
of PAM data before pile driving commenced, recognizing the logistical 
constraints this poses.
    Within 50 CFR 217.305(g), the marine mammal visual and acoustic 
reporting requirements have also been updated to reflect regional and 
science center reporting mechanisms and standards.

Description of Marine Mammals in the Specific Geographic Region

    As noted in the Changes From the Proposed to Final Rule section, 
updates have been made to the UME summaries of multiple species. These 
changes are described in detail in the sections below. We have also 
included new data on North Atlantic right whale abundance information 
and updated the annual M/SI value presented in table 2, based upon 
updates found in the draft 2023 SARs (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). Otherwise, this section has not changed 
since the publication of the proposed rule in the Federal Register (88 
FR 65430, September 22, 2023).
    Approximately 38 marine mammal species under NMFS' jurisdiction 
have geographic ranges within the western North Atlantic OCS (Hayes et 
al., 2022), with several marine mammal species occurring within the 
specific geographic region for the Project (i.e., Mid-Atlantic Bight). 
NMFS fully considered all of this information, and we refer the reader 
to these descriptions in the application instead of reprinting the 
information here. Sections 3 and 4 of Project Company 1's ITA 
application summarize available information regarding status and 
trends, distribution and habitat preferences, and behavior and life 
history of the potentially affected species (Atlantic Shores, 2023). 
Additional information regarding population trends and threats may be 
found in NMFS' SARs at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments, and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS' website at: https://www.fisheries.noaa.gov/find-species.
    Of the 38 marine mammal species and/or stocks with geographic 
ranges that include the Project Area (i.e., found in the coastal and 
offshore waters of New Jersey), 22 are not expected to be present or 
are considered rare or unexpected in the Project Area based on sighting 
and distribution data (see table 11 in Project Company 1's ITA 
application). Therefore, they are not discussed further beyond the 
explanation provided here. Furthermore, Project Company 1 did not 
request incidental take for these species, so they are not considered 
further in this ITA. Specifically, the following cetacean species are 
known to occur off of New Jersey but are not expected to occur in the 
Project Area due to the location of preferred habitat outside the Lease 
Areas and export cable route, based on the best available information: 
Blue whale (Balaenoptera musculus), Cuvier's beaked whale (Ziphius 
cavirostris), four species of Mesoplodont beaked whales (Mesoplodon 
densitostris, Mesoplodon europaeus, Mesoplodon mirus, and Mesoplodon 
bidens), clymene dolphin (Stenella clymene), false killer whale, 
Fraser's dolphin (Lagenodelphis hosei), killer whale (Orcinus orca), 
melon-headed whale, pantropical spotted dolphin (Stenella attenuata), 
pygmy killer whale

[[Page 77995]]

(Feresa attenuata), rough-toothed dolphin (Steno bredanensis), spinner 
dolphin (Stenella longirostris), striped dolphin (Stenella 
coeruleoalba), white-beaked dolphin (Lagenorhynchus albirostris), 
Northern bottlenose whale (Hyperoodon ampullatus), dwarf sperm whale 
(Kogia sima), and the pygmy sperm whale (Kogia breviceps). Two species 
of phocid pinnipeds are also uncommon in the Project Area, including: 
harp seals (Pagophilus groenlandica) and hooded seals (Cystophora 
cristata). In addition, the Florida manatees (Trichechus manatus; a 
sub-species of the West Indian manatee) has been previously documented 
as an occasional visitor to the Mid-Atlantic region during summer 
months (Morgan et al., 2002; Cummings et al., 2014). However, as 
manatees are managed solely under the jurisdiction of the U.S. Fish and 
Wildlife Service and are considered rare or unexpected in the Project 
Area, they are not considered or discussed further in this document.
    Table 2 lists all species or stocks for which take is anticipated 
and allowed under this final rule and summarizes information related to 
the species or stock, including regulatory status under the MMPA and 
ESA, and PBR, where known. PBR is defined as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs (16 U.S.C. 
1362(20))). While no mortality is anticipated or allowed here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARs. Values presented in table 
2 are the most recent available data at the time of publication which 
can be found in NMFS' 2023 draft SARs, available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

              Table 2--Marine Mammal Species \a\ Likely To Occur Near the Project Area That May Be Taken by Project Company 1's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \b\          abundance survey) \c\               SI \d\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale \e\..  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             340 (0, 337, 2021)....        0.7   \f\ 27.2
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24, 5,573,            11       2.05
                                                                                                             2021).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, N             1,396 (0, 1,380, 2016)         22      12.15
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31, 17,002,         170        9.4
                                       acutorostrata.           Coastal.                                     2021).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.6
                                                                                                             2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             5,895 (0.29, 4,639,          9.28        0.2
                                                                                                             2021).
Family Delphinidae:
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             31,506 (0.28, 25,042,         250          0
                                                                                                             2021).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         28
                                                                                                             2021).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic-- -, -, N             64,587 (0.24, 52,801,         507         28
                                                                Offshore \g\.                                2021).
                                                               Northern Migratory       -, -, Y             6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Coastal.                                     2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             93,100 (0.56, 59,897,       1,452        414
                                                                                                             2021).
    Long-finned pilot whale \h\.....  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.30, 30,627,         306        5.7
                                                                                                             2021).
    Short-finned pilot whale \i\....  Globicephala             Western North Atlantic.  -, -, Y             18,726 (0.33, 14,292,         143        218
                                       macrorhynchus.                                                        2021).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             44,067 (0.19, 30,662,         307         18
                                                                                                             2021).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             85,765 (0.53, 56,420,         649        145
                                                                Fundy.                                       2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \j\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,624,       1,512      4,570
                                                                                                             2021).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  at: https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/ (Committee on Taxonomy (2023)).

[[Page 77996]]

 
\b\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\c\ NMFS' marine mammal stock assessment reports can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\d\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\e\ The current SAR includes an estimated population (Nbest = 340) based on sighting history through December 2021 (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). In October 2023, NMFS released a technical report identifying that the
  North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346
  to 363 (Linden, 2023).
\f\ In the proposed rule (88 FR 65430, September 22, 2023), the best available science included a North Atlantic right whale M/SI value of 8.1 which
  accounted for detected mortality/serious injury. In the final 2022 SAR, released in June 2023, the total annual average observed North Atlantic right
  whale mortality was updated from 8.1 to 31.2. In the draft 2023 SAR, released on January 29, 2024 (89 FR 5495), the total annual average observed
  North Atlantic right whale mortality was updated from 31.2 to 27.2. Numbers presented in this table (27.2 total mortality (17.6 of which are
  attributed to fishery-induced mortality) are 2016-2020 estimated annual means, accounting for both detected and undetected mortality and serious
  injury (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).
\g\ Estimates may include sightings of the coastal form.
\h\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
  whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
  to unknown precision and accuracy of the availability bias correction factor that was applied.
\i\ A key uncertainty exists in the population size estimate for this species based upon the assumption that the logistic regression model accurately
  represents the relative distribution of short-finned vs. long-finned pilot whales.
\j\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 394,311. The annual M/SI value given is for the total stock.

North Atlantic Right Whale

    In June 2023, NMFS released its final 2022 SARs, which updated the 
annual M/SI value for North Atlantic right whale from 8.1 to 31.2 due 
to the addition of estimated undetected mortality and serious injury, 
as described above, which had not been previously included in the SAR. 
The population estimate is slightly lower than the North Atlantic Right 
Whale Consortium's 2022 Report Card, which identifies the population 
estimate as 340 individuals (Pettis et al., 2023). Elevated North 
Atlantic right whale mortalities have occurred since June 7, 2017 along 
the U.S. and Canadian coast, with the leading category for the cause of 
death for this UME determined to be ``human interaction,'' specifically 
from entanglements or vessel strikes. Since publication of the proposed 
rule, the number of animals considered part of the UME has increased. 
As of August 26, 2024, there have been 40 confirmed mortalities (i.e., 
dead, stranded, or floaters), 1 pending mortality, and 36 seriously 
injured free-swimming whales for a total of 77 whales considered to be 
part of the UME due to serious injury or mortality. As of October 14, 
2022, the UME also considers animals (n=65) with sub-lethal injury or 
illness (i.e., ``morbidity''), bringing the total number of whales in 
the UME to 142. More information about the North Atlantic right whale 
UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event was 
declared a UME in April 2017. Partial or full necropsy examinations 
have been conducted on approximately half of the 227 known cases (as of 
August 26, 2024), with 31 found within New Jersey's jurisdiction. Of 
the whales examined (approximately 90), about 40 percent had evidence 
of human interaction, either vessel strike or entanglement (refer to 
https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast). While a 
portion of the whales have shown evidence of pre-mortem vessel strike, 
this finding is not consistent across all whales examined and more 
research is needed. NOAA is consulting with researchers that are 
conducting studies on the humpback whale populations, and these efforts 
may provide information on changes in whale distribution and habitat 
use that could provide additional insight into how these vessel 
interactions occurred. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, including New Jersey, has been elevated. In some 
cases, the cause of death is not yet known. In others, vessel strike 
has been deemed the cause of death. As the humpback whale population 
has grown, they are seen more often in the Mid-Atlantic. These whales 
may be following their prey (i.e., small fish) which are reportedly 
close to shore in the winter. These prey also attract fish that are of 
interest to recreational and commercial fishermen. This increases the 
number of boats and fishing gear in these areas. More whales in the 
vicinity of areas traveled by boats of all sizes increases the risk of 
vessel strikes. Vessel strikes and entanglement in fishing gear are the 
greatest human threats to large whales.

Minke Whale

    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities detected along the Atlantic coast from Maine through 
South Carolina. As of August 26, 2024, a total of 174 minke whales have 
stranded during this UME, with 14 of those located within New Jersey 
jurisdiction. Full or partial necropsy examinations were conducted on 
more than 60 percent of the whales. Preliminary findings have shown 
evidence of human interactions or infectious disease in several of the 
whales, but these findings are not consistent across all of the whales 
examined, so more research is needed. This UME has been declared non-
active and is pending closure. More information is available at: 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.

Phocid Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event was declared a UME in July 2022. Preliminary testing 
of samples has found some harbor and gray seals are 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. However, due to the 2 states being 
approximately 352 km (219 mi) apart, by water (from the most northern 
point of New Jersey to the most southern point of Maine), NMFS does not 
expect that this UME would be further conflated by the activities

[[Page 77997]]

related to the Project. After a period of inactivity, this UME was 
closed on January 16, 2024 (see https://www.fisheries.noaa.gov/feature-
story/closure-2022-maine-pinniped-unusual-mortality-
event#:~:text=NOAA%20Fisheries%20has%20declared%20the,Marine%20Mammal%20
Unusual%20Mortality%20Events). More 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. To date, stranded seals showing clinical signs have 
been found in Maine, New Hampshire, Massachusetts, Connecticut, Rhode 
Island, New York, New Jersey, Delaware, Maryland, and 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 both harbor seal and gray seal species) 
occurred from July 1, 2018, through March 13, 2020, with 101 occurring 
within the jurisdiction of New Jersey. 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. 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; Southall et 
al., 2019a). To reflect this, Southall et al. (2007) recommended that 
marine mammals be divided into functional hearing groups based on 
directly measured or estimated hearing ranges on the basis of available 
behavioral response data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data. 
Subsequently, NMFS (2018) described generalized hearing ranges for 
these marine mammal hearing groups. Generalized hearing ranges were 
chosen based on the approximately 65 dB threshold from the normalized 
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically 
implausible and the lower bound from Southall et al. (2007) retained. 
Marine mammal hearing groups and their associated hearing ranges are 
provided in table 3.

           Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen        7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,     150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true         275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger
 & L. australis).
Phocid pinnipeds (PW) (underwater) (true    50 Hz to 86 kHz.
 seals).
------------------------------------------------------------------------
\*\ 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; Southall et al., 2019a). 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 modified 
names for hearing groups that are widely recognized. However, this new 
hearing group classification does not change the weighting functions or 
acoustic thresholds (i.e., the weighting functions and thresholds in 
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical 
Guidance). When NMFS updates our Technical Guidance, we will be 
adopting the updated Southall et al. (2019a) hearing group 
classification.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Project's specified 
activities have the potential to result in the harassment of marine 
mammals in the specified geographic region. The proposed rule (88 FR 
65430, September 22, 2023) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from Project Company 1's activities on marine mammals 
and their habitat. That information and analysis is not repeated here 
and readers should refer to the proposed rule.
    However, since publication of the proposed rule, new scientific 
information has become available that provides additional insight into 
the sound fields produced by turbine operation. Although the proposed 
rulemaking (88 FR 65430, September 22, 2023) primarily covered the 
noise produced from construction activities relevant to the Project, 
operational noise was a consideration in NMFS' analysis of the Project, 
as all 200 turbines would become operational within the effective dates 
of the rule, beginning no sooner than 2026 and 2027 (it is expected 
that all turbines would be operational by 2028 and 2029). 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).
    Project Company 1 has acknowledged that the WTG models may utilize 
either geared turbine designs or direct-drive turbine models, as both 
are currently available on the market. During the drafting of this 
final rulemaking, the applicant had not yet made a decision regarding 
the entire Atlantic Shores South Project, although they indicated that 
the Vestas turbine model planned for installation in Project 1 would 
use gearboxes. As there remains uncertainty regarding the model for 
Project 2, NMFS has included the following discussion on both gearboxes 
and direct-drive models to provide the public with all of the 
appropriate information NMFS considered in its analysis and during the 
drafting of this final rule.
    Recently, direct-drive systems have been gaining popularity over 
older generation, geared (i.e., gearbox) turbine

[[Page 77998]]

designs. This growth has been largely attributed to their efficiency. 
Gearbox designs require the rotational speed of the turbine to be 
modulated by gears before reaching the generator, while direct-drive 
designs bypass this step and connect the rotor directly to the 
generator (van de Kaa et al., 2020). The direct connection eliminates 
the need for a gearbox, one of the heaviest and most maintenance-
intensive components of a turbine, and reduces gearbox failure and 
energetic losses as a result. Direct drive technology results in less 
wear in dynamic wind conditions, typically leads to slower rotational 
speeds, and has been shown to produce more energy on average (Bellmann 
et al., 2023). Direct-drive technology also produces lower-frequency 
noise and is generally quieter than gearbox counterparts. It is 
possible that the slower rotational speeds and reduced mechanical 
components in direct-drive turbines impact the noise they produce 
(Tougaard et al., 2020).
    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 (i.e., harbor 
porpoises and harbor seals).
    Recent scientific studies indicate that operational noise from 
turbines is on the order of 110 to 125 dB referenced to 1 micropascal 
(re 1 [mu]Pa) SPLrms at an approximate distance of 50 m (164 
ft) (Tougaard et al., 2020; primarily from gearbox turbines). Recent 
measurements of operational sound generated from wind turbines (direct-
drive, 6 MW, jacket foundations) at Block Island Wind Farm (BIWF) 
indicate average broadband levels of 119 dB at 50 m (164 ft) from the 
turbine, with levels varying with wind speed (HDR, 2019). 
Interestingly, measurements from BIWF turbines showed operational sound 
had less tonal components compared to European measurements of turbines 
with gearboxes.
    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), demonstrated 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 typically operate with direct-drive technology. The 
shift from using gearboxes 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) yielded similar results for a hypothetical 10 MW WTG.
    Furthermore, Holme et al. (2023) cautioned that Tougaard et al. 
(2020) and St[ouml]ber and Thomsen (2021) extrapolated levels for 
larger turbines should be interpreted with caution since both studies 
relied on data from smaller turbines (0.45 to 6.15 MW) collected over a 
variety of environmental conditions. They demonstrated that the model 
presented in Tougaard et al. (2020) tends to potentially overestimate 
levels (up to approximately 8 dB) measured to those in the field, 
especially with measurements closer to the turbine for larger turbines. 
Holme et al. (2023) measured operational noise from larger turbines 
(6.3 and 8.3 MW) associated with 3 wind farms in Europe and found no 
relationship between turbine activity (power production, which is 
proportional to the blade's revolutions per minute) and noise level, 
though it was noted that this missing relationship may have been masked 
by the area's relatively high ambient noise sound levels. Sound levels 
(RMS) of a 6.3 MW direct-drive turbine were measured to be 117.3 dB at 
a distance of 70 m (230 ft). However, measurements from 8.3 MW turbines 
were inconclusive as turbine noise was deemed to have been largely 
masked by ambient noise.
    Bellmann et al. (2023) collected 27 operational noise measurements 
across 24 offshore wind farms consisting of 16 different WTG types of 
power ranging from 2.3 to 8 MW (approximately 70 percent of 
measurements from gearbox). It should be noted that the results from 
Holme et al. (2023) are based on a subset of these data. Similar to 
Holme et al. (2023), Bellmann et al. (2023) notes that no relationship 
between nominal WTG power and operational noise was observed, in 
contrast with the linear models used by Tougaard et al. (2020) and 
St[ouml]ber and Thomsen (2021). It is theorized that this is related to 
gearless and more modern WTGs measured as well as increased size and 
weight reducing transmission of vibrations. With regard to the extent 
of operational noise levels, Bellmann et al. (2023) concluded that 
tonal components of the operational noise are clearly observable at a 
range of 100 m (328 ft), but typically are not resolvable within the 
prevailing ambient noise at a range of 5 km (3.1 mi). However, Bellmann 
et al. (2023) also comment that these measurements were taken within 
the first year of operation, and that previous experience indicates 
noise levels will change significantly over time, likely due to wear 
and tear in gearbox WTGs, but that it is not clear at this time if 
these changes will also be present in direct-drive systems.
    Finally, operational turbine measurements are available from the 
Coastal Virginia Offshore Wind (CVOW) pilot pile project, where two 
7.8-m (25.6-ft) monopile WTGs were installed (BOEM, 2023). Compared to 
BIWF, levels at CVOW were higher (10-30 dB) below 120 Hz, believed to 
be caused by the vibrations associated with the monopile structure, 
while above 120 Hz levels were consistent among the 2 wind farms.
    Globally, there are more than 341,000 operating WTGs (Global Wind 
Energy Council). Turbine failures are known to occur but are considered 
rare events (Katsaprakakis et al., 2021, DOE, 2024a). For example, 
fewer than 40 incidents were identified in the modern fleet of more 
than 40,000 onshore turbines installed in the United States as of 2014 
(DOE, 2024b). In 2022, the total global capacity of offshore wind 
reached 59,009 MW from 292 operating projects and over 11,900 operating 
wind turbines in 2022 (DOE, 2023), and a review of the relevant 
literature and media reports indicate blade failure among this cohort 
of turbines continues to be rare, consistent with industry performance 
in onshore wind turbines. On July 13, 2024, however, a blade on one of 
the WTGs at Vineyard Wind 1, a project located off of Martha's Vineyard 
and Nantucket, was damaged during the ``warm up'' phase of operations, 
causing a portion of the blade, primarily composed of fiberglass, to 
fall into the

[[Page 77999]]

water. In cooperation with Vineyard Wind 1, GE Vernova, the blade 
manufacturer, initiated debris recovery efforts and an investigation. 
Following this blade failure incident, the Bureau of Safety and 
Environmental Enforcement (BSEE), Department of Interior, issued a 
Suspension Order on July 17, 2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-statement-on-vineyard-wind) and an additional Order for clarification on July 26, 
2024 (https://www.bsee.gov/newsroom/latest-news/statements-and-releases/press-releases/bsee-issues-new-order-to-vineyard-wind), which 
suspends power production and any further wind turbine generator 
construction until the suspension is lifted.
    As noted above, wind turbine failure is considered rare, and NMFS 
still considers the likelihood that blade failure would occur pursuant 
to Project Company 1's specified activity during the effective period 
of the ITA so low as to be discountable. Project Company 1 did not 
request, NMFS does not anticipate, and NMFS has not authorized, take of 
marine mammals incidental to a turbine blade failure and, therefore the 
topic is not discussed further.

Estimated Take

    This section provides an estimate of the number of incidental takes 
allowed through this rulemaking, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determination.
    Allowed takes would be primarily by Level B harassment, as use of 
the acoustic sources (i.e., impact and vibratory pile driving and site 
characterization surveys) have the potential to result in disruption of 
marine mammal behavioral patterns due to exposure to elevated noise 
levels. Impacts such as masking and TTS can contribute to behavioral 
disturbances. There is also some potential for auditory injury (Level A 
harassment) to occur in select marine mammal species incidental to the 
specified activities (i.e., WTG, OSS, and Met Tower foundation impact 
pile driving). For this action, this potential for PTS is limited to 
mysticetes, high-frequency cetaceans, and phocids due to their hearing 
sensitivities and the nature of the activities. The required mitigation 
and monitoring measures are expected to minimize the severity and 
magnitude of the taking to the extent practicable. As described 
previously, no serious injury or mortality is anticipated or allowed 
for this Project. Below we describe how the take numbers were 
estimated.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) and 
the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the allowed take 
estimates.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment). 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), the 
environment (e.g., other noises in the area, ambient noise), and the 
receiving animals (e.g., hearing, motivation, experience, demography, 
behavior at time of exposure, life stage, depth) and can be difficult 
to predict (see, 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 root-mean-square sound pressure levels (RMS SPL) of 120 dB 
(referenced to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., 
vibratory pile-driving, drilling) and above the received RMS SPL 160 dB 
re: 1 [mu]Pa for non-explosive impulsive (e.g., seismic airguns) or 
intermittent (e.g., scientific sonar) sources. Generally speaking, 
Level B harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by TTS as, in most 
cases, the likelihood of TTS occurs at distances from the source less 
than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    Project Company 1's construction activities include the use of 
continuous (i.e., vibratory pile driving) and intermittent (i.e., 
impact pile driving, HRG acoustic sources) sources, and therefore, the 
120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A Harassment
    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). As dual metrics, NMFS considers onset of 
PTS (Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth). 
Project Company 1's planned activities include the use of impulsive and 
non-impulsive sources.
    These thresholds are provided in table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 78000]]



                         Table 4--Onset of Permanent Threshold Shift (PTS) (NMFS, 2018)
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp,0-pk,flat: 219   Cell 2: LE,p, LF,24h: 199 dB.
                                          dB; LE,p, 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: 173 dB.
                                          dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lp,0-pk.flat: 218   Cell 8: LE,p,PW,24h: 201 dB.
                                          dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
  onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization (ISO) 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.

    Project Company 1 would not conduct detonations of UXOs/MECs as 
part of the Project. As Project Company 1 has not requested, and NMFS 
has not allowed any take related to the detonation of UXOs/MECs, the 
acoustic (i.e., PTS onset and TTS onset for underwater explosives) and 
the pressure thresholds (i.e., lung and gastrointestinal tract 
injuries) are not discussed or included in this action.
    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, OSS, and 
Met Tower foundation installation, temporary cofferdam installation, 
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 maximum 
amount of annual, 5-year total, and annual take that is reasonably 
expected to occur, and which NMFS has allowed.

Acoustic and Exposure Modeling

    The predominant underwater noise associated with the construction 
of the Project results from impact and vibratory pile driving. Project 
Company 1 employed JASCO Applied Sciences (USA) Inc. (JASCO) to conduct 
acoustic modeling to better understand sound fields produced during 
these activities (Weirathmueller 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 
activities, JASCO applied in situ data to estimate source levels and 
applied more simple propagation modeling. To assess the potential for 
take from impact pile driving, JASCO also conducted animal movement 
modeling to estimate exposures. 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, exposure modeling was not conducted. Instead, a density-
based estimation approach was used. 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 representative source levels associated with impact pile 
driving activities (WTG, OSS, and Met Tower 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 (32.81 ft)). 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, 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 
8-10 in appendix B of Project Company 1'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 
(i.e., 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 70 m (230 ft) and 60 m (197 ft), respectively.
    Project Company 1 is required to employ noise abatement systems 
(NAS), also known as noise attenuation systems, during all foundation 
installation associated with permanent structures (i.e., impact pile 
driving) 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 the activities. 
Project Company 1 is required to use at least a fully functional double 
big bubble curtain which may be combined with another NAS (e.g., hydro-
sound damper, or an AdBm Helmholtz resonator), as well as the 
adjustment of operational protocols to minimize noise levels. Other 
systems that could be implemented include an evacuated

[[Page 78001]]

sleeve system (e.g., IHC-Noise Mitigation System (NMS)), or 
encapsulated bubble systems (e.g., HydroSound Dampers (HSD)) to reduce 
sound levels. Hence, hypothetical broadband attenuation levels of 0 dB, 
6 dB, 10 dB, and 15 dB were incorporated into the foundation source 
models to gauge effects on the ranges to thresholds given these levels 
of attenuation (appendix B of Project Company 1's ITA application and 
associated supplemental documents). Although these 4 attenuation levels 
were evaluated, Project Company 1 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. See the 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 5, with 
additional modeling details and input parameters can be found in table 
B-1 in appendix B of Project Company 1's ITA application. Hammer energy 
schedules for monopiles (both 12-m (39.37-ft) and 15-m (49.21-ft) 
diameters in size) and pin piles (5-m (16.4-ft) diameter) are provided 
in table 6, respectively. Decidecade spectral source levels for each 
pile type, hammer energy, and modeled location for summer sound speed 
profiles can be found in appendix B of Project Company 1's ITA 
application (see figures 11 to 13 in the application). Due to a public 
comment received during the 30-day public comment period of the 
proposed rule, NMFS estimated the broadband SEL source levels from the 
decidecade spectra provided in the ITA application. The resulting SEL 
source levels for both the 12-m and 15-m monopiles at hammer energies 
of 4,400 kJ are approximately 227 dB.

                           Table 5--Key Piling Assumptions Used in the Source Modeling
----------------------------------------------------------------------------------------------------------------
                                  Maximum impact                                      Seabed
         Foundation type           hammer energy  Wall thickness    Pile length     penetration   Number per day
                                       (kJ)            (mm)             (m)          depth (m)
----------------------------------------------------------------------------------------------------------------
12-m Monopile Foundation........           4,400             130             101              60               2
15-m Monopile Foundation........           4,400             162             105              60               2
5-m Pin Pile for Jacket                    2,500              72              76              70               4
 Foundation.....................
----------------------------------------------------------------------------------------------------------------


              Table 6--Hammer Energy Schedules for Monopiles and Pin Piles Used in Source Modeling
----------------------------------------------------------------------------------------------------------------
                                                                                       Pile
 Modeled installation scenario    Hammer model     Energy level    Strike count     penetration     Strike rate
                                                       (kJ)                          range (m)     (strikes/min)
----------------------------------------------------------------------------------------------------------------
12-m Monopile Foundation......  Menck MHU 4400S.           1,400             750               5              30
                                                           1,800           1,250               5
                                                           2,000           4,650              15
                                                           3,000           4,200              15
                                                           4,400           1,500               5
                                                 ---------------------------------------------------------------
    Total.....................  ................  ..............          12,350              45
15-m Monopile Foundation......  Menck MHU 4400S.             480           1,438               8              30
                                                             800           1,217               3
                                                           1,600           1,472               4
                                                           2,500           2,200               5
                                                           3,000           4,200              10
                                                           4,000           2,880               9
                                                           4,400           1,980               6
                                                 ---------------------------------------------------------------
    Total.....................  ................  ..............          15,387              45
5-m Pin Piles for Jacket        IHC S-2500......           1,200             700              10              30
 Foundation.
                                                           1,400           2,200              20
                                                           1,800           2,100              15
                                                           2,500           1,750              10
                                                 ---------------------------------------------------------------
    Total.....................  ................  ..............           6,750              55
----------------------------------------------------------------------------------------------------------------

    Within these assumptions, jacket foundations were assumed to be 
pre- and post-piled. Pre-piled means that the jacket structure is set 
on pre-installed piles while post-piling means that that jacket 
structure is placed on the seafloor and the piles are subsequently 
driven through guides located at the base of each jacket leg. Due to 
these installation approaches, the jacket structure itself radiates 
sound, which needs to be accounted for in the modeling. Because of 
this, JASCO estimated a larger broadband sound level for the piles (+2 
dB) for the post-piling scenario.
    After calculating source levels, Project Company 1 and JASCO used 
propagation models to estimate

[[Page 78002]]

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. 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 JASCO's Marine 
Operations Noise Model Range-dependent Acoustic Model (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 appendices B 
and D in Project Company 1's application and supplemental memoranda for 
more detailed descriptions of JASCO's propagation models.
    Sounds produced by installation of the monopiles and pin piles were 
modeled at 2 sites determined to be representative for the entire 
Project (L01 and L02) for the 12-m (39.37-ft) and 15-m (49.21-ft) 
diameter monopile foundations. For the 5-m (16.4-ft pin piles for 
jacket foundations, L01 in the southern section of the Lease Areas in 
36.1 m (118.4 ft) of water depth was chosen and L02 in the northeastern 
section of the Lease Areas located in 28.1 m (92.2 ft) of water depth 
was chosen. Modeling locations are shown in figure 2 of appendix B in 
the ITA application. For temporary cofferdams, simpler propagation 
modeling using in-situ data was performed using information from 
Illingworth and Rodkin (2017), which measured the sound exposure level 
at 10 m (32.8 ft) distance from the pile for sheet piles using a 
vibratory hammer. JASCO used the source spectrum produced from this 
study (see figure 2 in appendix D, the revised cofferdam memo) to 
define the expected source characteristics during Project Company 1's 
cofferdam installation and removal activities. JASCO's model, MONM, was 
again used to predict the SEL and SPL fields at representative 
locations near the proposed cofferdam locations, considering the 
influences of bathymetry, seabed properties, water sound speed, and 
water attenuation. Sheet piles were represented as a point source at a 
depth of 2 m (6.56 ft).
    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'', measured in degree 
Celsius), salinity (``S'', measured in parts per thousand (ppt)), and 
depth (``D'', measured in 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. Within the Project Area from July 
through September, the average temperature of the upper 10 m to 15 m 
(32.81 ft to 49.21 ft) of the water column is higher, which resulted in 
an increased surface layer sound speed.
    Acoustic propagation modeling for impact pile driving foundations 
was conducted using an average sound speed profile for a summer period 
(i.e., May through November) given this would be when Project Company 1 
would conduct the majority, if not all of its foundation installation 
work, and given that foundation pile driving occurring in December 
would be allowed at Federal Agency discretion and if it is necessary to 
complete the Project. Vibratory pile driving for cofferdams used a mean 
summer (i.e., June through August) and mean winter (i.e., December 
through February) for the acoustic propagation modeling, given the 
specifics described in the construction schedule. 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 Weirathmueller et al. (2022). Resulting distances to 
NMFS' harassment thresholds for impact driving of foundations and 
vibratory driving of cofferdams can be found in the WTG, OSS, and Met 
Tower Foundation Installation and Cable Landfall Activities 
subsections, respectively, 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 
(hereafter, ``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 (i.e., animats) 
to sample the predicted three-dimensional (``3-D'') sound fields with 
movement rules derived from animal observations. Animats that exceed 
NMFS' acoustic thresholds were identified and the range for the 
exceedances was determined. The output of the simulation yields the 
exposure history for each animat within the simulation. An individual 
animat's sound exposure levels were summed over a specific duration 
(i.e., 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.
    JASCO ran JASMINE simulations for 7 days, assuming piling every 
day. Separate simulations were run for each scenario (e.g., pile 
diameter/number of piles per day/season combination). 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 per day is determined by scaling the number of 
predicted animat exposures by the species-specific density of animals 
in the area. The average number of exposures per day for the scenario 
in question was then multiplied by the number of days of pile driving 
planned for that scenario. In general, the number of days of pile 
driving is more influential in determining total exposures for Level B 
harassment than Level A harassment. However, the use

[[Page 78003]]

of other conservative parameters (e.g., assuming most pile driving 
occurs in highest density months) in the calculation ensure that, 
regardless, the estimated take numbers appropriately represent the 
greatest number of instances that marine mammals are reasonably likely 
to be harassed by the activities.
    By programming animats to behave like marine species that may be 
present near the Project Area, based on information obtained through 
scientific literature, 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 (Weirathmueller et al., 2022).
    For modeled animats 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 (hereafter, ``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.
    Project Company 1 and JASCO also calculated acoustic ranges which 
represent the distance to harassment thresholds 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 overly conservative 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 Project 
Company 1'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, acoustic range is used to assess Level A harassment (dB 
SEL). Acoustic ranges to the Level A harassment (dBpeak) and 
Level B harassment threshold for each activity are provided in the WTG, 
OSS, and Met Tower 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. For foundation installation and 
temporary cofferdam installation and removal, JASCO performed the 
analysis, while Environmental Design & Research, Landscape 
Architecture, Engineering & Environmental Services, D.P.C. (EDR) 
assessed HRG surveys, on behalf of Project Company 1. In either case, 
the Duke University Marine Geospatial Ecology Laboratory Habitat-based 
Marine Mammal Density Models for the U.S. Atlantic (i.e., the Duke 
University density models; Roberts et al., 2016a; Roberts et al., 2023) 
were applied to estimate take from foundation installation, temporary 
cofferdam installation and removal, and HRG surveys (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. comprising harbor and gray seals) and pilot whale spp. 
(representing short-finned and long-finned pilot whales)).
    The Duke University density models delineate species' density into 
5 x 5 km (3.1 x 3.1 mi) grid cells. Project Company 1 calculated mean 
monthly densities for each species using grid cells within the Lease 
Areas and a predetermined buffer around the Lease Areas that 
represented the expected ensonified area to NMFS' harassment thresholds 
for each sound-producing activity. All 5 x 5 km (3.1 x 3.1 mi) grid 
cells in the models that fell partially or fully within the analysis 
polygon were considered in the calculations. Cells that fell entirely 
on land were not included, but cells that overlapped only partially 
with land were included.
    For impact pile driving associated with foundation installation, 
the buffer from the edge of the Lease Areas was chosen as it was based 
on the largest 10 dB-attenuated (from the bubble curtain/NAS) exposure 
range calculated based on installation of a 15-m (49.21-ft) monopile 
using a 4,400 kJ hammer (3.9 km (2.4 mi); table 7). For vibratory pile 
driving associated with temporary cofferdam installation and removal, 
Project Company 1 applied the applicable buffer sizes at each of the 
landfall locations (7.546 km (4.7 mi) at the Atlantic City site and 
11.286 km (7 mi) at the Monmouth site) based on the 
R95 value for the largest acoustic range to 
threshold (table 8). For HRG surveys, Project Company 1 mapped the 
density data within the boundary of each survey area using geographic 
information systems (GIS). No buffer was applied given the small 
distance to Level B harassment (<200 m (<656.2 ft)) during surveys 
compared to the grid cell size in the Duke University density models (5 
x 5 km (3.11 x 3.11 mi); table 9).
    Here, NMFS notes that although the initial application submitted by 
Project Company 1 for their proposed rulemaking utilized Duke 
University's 2022 habitat-based marine mammal density models, as 
described further above and in the proposed rulemaking (88 FR 65430, 
September 22, 2023), in June 2022, during NMFS' review of the 
application materials, the new density models were released by Duke 
University (i.e., Roberts et al., 2016a; Roberts et al., 2023), 
including for the North Atlantic right whale (Roberts et al., 2024). 
After several months of review and evaluation, NMFS determined that the 
updated models represented the best available science and those were 
incorporated into the adequate and complete application materials and 
proposed rulemaking (88 FR 65430, September 22, 2023). Within this 
final rulemaking, as no new information has presented itself, NMFS 
maintains the use of these revised density models and has incorporated 
the necessary information herein.

[[Page 78004]]



              Table 7--Mean Monthly and Annual Marine Mammal Density Estimates (Animals/100 km \2\) for Impact Pile Driving Considering a 3.9-km Buffer Around the Lease Areas \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                 Annual  May-Dec
                       Marine mammal species                          Jan      Feb      Mar      Apr      May      Jun      July     Aug      Sep      Oct      Nov      Dec      Mean     mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *......................................    0.069    0.074    0.062    0.046    0.010    0.003    0.001    0.001    0.002    0.004    0.010    0.042    0.027    0.009
Fin whale *.......................................................    0.178    0.123    0.098    0.099    0.088    0.075    0.047    0.028    0.029    0.031    0.038    0.141    0.081    0.060
Humpback whale....................................................    0.093    0.065    0.084    0.101    0.091    0.058    0.011    0.006    0.020    0.065    0.086    0.121    0.067    0.057
Minke whale.......................................................    0.051    0.049    0.049    0.737    0.810    0.202    0.054    0.026    0.015    0.066    0.016    0.042    0.176    0.154
Sei whale *.......................................................    0.026    0.016    0.034    0.074    0.027    0.006    0.001    0.001    0.002    0.008    0.026    0.042    0.022    0.014
Sperm whale *.....................................................    0.004    0.002    0.001    0.007    0.010    0.005    0.003    0.000    0.000    0.000    0.003    0.004    0.003    0.003
Atlantic spotted dolphin..........................................    0.001    0.000    0.001    0.003    0.006    0.012    0.028    0.133    0.109    0.147    0.113    0.008    0.047    0.070
Atlantic white-sided dolphin......................................    0.355    0.225    0.221    0.673    0.755    0.605    0.018    0.004    0.059    0.556    0.591    0.601    0.389    0.399
Bottlenose dolphin, offshore \d\..................................    1.409    0.489    0.732    2.460    6.311    8.449    9.350    9.485    8.613    8.335    9.468    5.944    5.920    8.244
Bottlenose dolphin, coastal \d\...................................    2.917    1.024    2.053    8.290   20.869   27.429   29.272   31.415   32.096   29.744   30.414   16.667   19.349   27.238
Common dolphin....................................................    2.754    1.139    1.347    2.751    3.431    1.695    0.939    0.507    0.085    1.006    5.315    5.876    2.237    2.357
Long-finned pilot whale \b\.......................................  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......    0.016  .......
Short-finned pilot whale \b\......................................  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......    0.012  .......
Risso's dolphin...................................................    0.015    0.002    0.003    0.031    0.029    0.008    0.006    0.006    0.006    0.013    0.074    0.115    0.026    0.032
Harbor porpoise...................................................    3.968    3.756    3.091    4.161    1.025    0.033    0.023    0.016    0.003    0.007    0.029    2.891    1.584    0.503
Gray seal \c\.....................................................    4.881    3.521    2.352    2.866    4.508    0.492    0.080    0.054    0.120    0.639    1.731    4.588    2.153    1.527
Harbor seal \c\...................................................   10.967    7.911    5.285    6.439   10.127    1.106    0.180    0.122    0.271    1.437    3.889   10.308    4.837    3.430
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimates are calculated from the more recently released Duke Habitat-Based Marine Mammal Density Models (Roberts et al., 2016a; Roberts et al., 2023), including for the North
  Atlantic right whale (Roberts et al., 2024).
\b\ Long- and short-finned pilot whale densities are the annual pilot whale guild density scaled by their relative abundances.
\c\ Gray and harbor seal densities are the seals guild density scaled by their relative abundances.
\d\ Bottlenose dolphin stocks were split based on the 3.9 km (2.42 mi) buffer at the 20-m (65.62-ft) isobath where the coastal stock was allocated to areas <20 m (<65.62 ft) and the offshore
  stock for areas >20 m (>65.62 ft).


Table 8--Maximum Monthly Densities \a\ (Animals/100 km\2\) for September
          Through May Used To Analyze Cofferdam Activities \b\
------------------------------------------------------------------------
                                             Monmouth      Atlantic City
          Marine mammal species            landfall site   landfall site
------------------------------------------------------------------------
North Atlantic right whale *............           0.035           0.092
Fin whale *.............................           0.117           0.052
Humpback whale..........................           0.132           0.114
Minke whale.............................           0.526           0.136
Sei whale *.............................           0.046           0.018
Sperm whale *...........................           0.008           0.002
Atlantic spotted dolphin................           0.033           0.014
Atlantic white-sided dolphin............           0.206           0.051
Common dolphin..........................           2.058           0.524
Bottlenose dolphin (offshore stock) \c\.           22.53               0
Bottlenose dolphin (coastal stock) \c\..          27.795         146.614
Long-finned pilot whale.................               0               0
Short-finned pilot whale................               0               0
Risso's dolphin.........................            0.02           0.002
Harbor porpoise.........................           2.768           0.821
Gray seal...............................           4.477           9.029
Harbor seal.............................          10.059          20.287
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Density estimates are calculated from the Duke Habitat-Based Marine
  Mammal Density Models (Roberts et al., 2016a; Roberts et al., 2023).
\b\ Density estimates are based on habitat-based density modeling of the
  entire Atlantic Exclusive Economic zone (EEZ).
\c\ For both bottlenose dolphin stocks, the impact area was split at the
  20-m (65.62-ft) isobath where the coastal stock was assumed to be in
  <20 m (<65.62 ft) in depth and the offshore stock were allocated to
  waters >20 m (>65.62 ft) in depth.


   Table 9--Maximum Seasonal Densities Used To Analyze the Annual HRG
                    Surveys for the Project Area \a\
------------------------------------------------------------------------
                                                              Maximum
                                                             seasonal
       Marine mammal species                Stock             density
                                                           (animals/ 100
                                                            km\2\) \b\
------------------------------------------------------------------------
North Atlantic right whale *......  Western Atlantic....           0.056
Fin whale *.......................  Western North                  0.114
                                     Atlantic.
Humpback whale....................  Gulf of Maine.......           0.090
Minke whale.......................  Canadian Eastern               0.401
                                     Coastal.
Sei whale *.......................  Nova Scotia.........           0.031
Sperm whale *.....................  Western North                  0.005
                                     Atlantic.
Atlantic spotted dolphin..........  Western North                  0.033
                                     Atlantic.
Atlantic white-sided dolphin......  Western North                  0.278
                                     Atlantic.
Bottlenose dolphin \c\............  Northern Migratory            36.269
                                     Coastal.
                                    Western North         ..............
                                     Atlantic--Offshore.

[[Page 78005]]

 
Common dolphin....................  Western North                  1.473
                                     Atlantic.
Long-finned pilot whale \d\.......  Western North                  0.004
                                     Atlantic.
Short-finned pilot whale \d\......  Western North                  0.003
                                     Atlantic.
Risso's dolphin...................  Western North                  0.017
                                     Atlantic.
Harbor porpoise...................  Gulf of Maine/Bay of           2.506
                                     Fundy.
Gray seal \e\.....................  Western North                  4.319
                                     Atlantic.
Harbor seal \e\...................  Western North                  9.704
                                     Atlantic.
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ The survey area accounts for waters within and around the Lease
  Areas and the export cable routes.
\b\ Density estimates are calculated from the Duke Habitat-Based Marine
  Mammal Density Models (Roberts et al., 2016a; Roberts et al., 2023),
  including for the North Atlantic right whale (Roberts et al., 2024).
\c\ The bottlenose dolphin density is for the species collectively and
  was not delineated by stock.
\d\ Pilot whales are reported as a single ``pilot whale'' guild within
  the Duke University dataset (Roberts et al., 2016a; Roberts et al.,
  2023) and are not species-specific. To partition take between each of
  the long-finned and short-finned pilot whale species, the total
  density was scaled based on the abundance estimates provided in the
  NOAA Fisheries SARs.
\e\ Pinnipeds are reported as a single ``seals'' guild within the Duke
  University dataset (Roberts et al., 2016a; Roberts et al., 2023) and
  are not species-specific. To partition take between each of the harbor
  and gray seal species, the total density was scaled based on the
  abundance estimates provided in the NOAA Fisheries SARs.

    Densities were computed based on when the planned activities were 
expected. For foundation installation, densities were accrued monthly, 
annually, and specifically for the May-December period that coincided 
with the planned pile driving activities. For temporary cofferdams, 
maximum monthly densities were calculated based on the planned 
September to May construction period. For HRG surveys, the maximum 
average seasonal density value for each marine mammal species was 
calculated.
    Here we note some exceptions, based on the availability of data. 
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). 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 whale spp. as an example, shows how 
abundance scaling is applied to compute densities for the pilot whale 
and seal guilds.

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

Where D represents density and N represents abundance.

    For some species and activities, Atlantic Marine Assessment Program 
for Protected Species (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 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.
    Here we note the existence of two different stocks of bottlenose 
dolphins, the coastal and offshore stocks, near the Project Area. 
However, the best available science consists of only a combined, single 
bottlenose dolphin density model found in Roberts et al. (2023). To 
appropriately account for which stock may be taken during foundation 
installation, the 3.9 km (2.42 mi) buffer was split at the 20-m (65.62-
ft) isobath. Any bottlenose dolphins found within the 20-m (65.62-ft) 
isobath to shore were allocated to the coastal stock. Any that were 
outside of the 20-m (65.62-ft) isobath more seaward were allocated to 
the offshore stock. Animat simulations were run for each stock 
separately with the same behavioral characteristics. Because of this, 
the exposure ranges are very similar between the two stocks as the only 
difference would be due to the different random seeding that was 
incorporated into the analysis. During cofferdam installation and 
removal, it was assumed that all dolphins near the Atlantic City 
landfall site would consist of the coastal stock, which allowed for a 
density value of zero for the offshore stock. However, given the 
Atlantic City landfall site did not exceed the 20-m (65.62-ft) isobath 
but the Monmouth site did, the area used to calculate the densities for 
bottlenose dolphins was split at the 20-m (65.62-ft) isobath. Because 
of this, any area <20 m (<65.62 ft) deep and >20 m (>65.62 ft) deep 
were used to calculate the exposures and takes for the coastal and 
offshore stocks, respectively. For HRG surveys, given that the northern 
migratory stock has more often been found in waters shallower than 20 m 
(65.62 ft), the survey area was divided along the 20-m (65.62-ft) 
isobath break. Project Company 1 estimated that 33 percent of the 
survey area fell from the 20-m (65.62-ft) isobath landward; therefore, 
33 percent of the estimated take calculated for bottlenose dolphins was 
allocated to the coastal stock and the remaining was applied to the 
offshore stock.
    Mean group sizes were used in the take estimation and were derived 
from NMFS' data upload to the Ocean Biodiversity Information System 
(OBIS) repository (OBIS, 2022), which is informed by information from 
the AMAPPS 2010-2019 aerial and shipboard surveys, North Atlantic right 
whale aerial surveys, and other surveys.

[[Page 78006]]

The dataset was downloaded from OBIS and then filtered to include only 
observations from the Northwestern Atlantic region (extending from the 
Gulf of Maine to Cape Hatteras and the relevant shelf edge) with the 
institution owner code of ``NMFS''. From there, the average group sizes 
were calculated as the mean value of the ``individualCount'' column for 
all sighting records for a species. Additional information was also 
incorporated based on Project Company 1's experience with site 
characterization surveys in this region through issued IHAs (87 FR 
24103, April 22, 2022; 88 FR 38821, June 14, 2023). This yielded unique 
group sizes for long-finned pilot whales, Atlantic spotted dolphins, 
and Risso's dolphins that were used rather than the OBIS dataset.
    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 the February 2023 update memo. Average group sizes used in take 
estimates, where applicable, for all activities are provided in table 
10.

    Table 10--Average Marine Mammal Group Sizes Used in Take Estimate
                              Calculations
------------------------------------------------------------------------
                                                            Mean group
                  Marine mammal species                        size
------------------------------------------------------------------------
North Atlantic right whale *............................         \c\ 3.8
Fin whale *.............................................         \c\ 1.3
Humpback whale..........................................         \c\ 1.8
Minke whale.............................................         \c\ 1.1
Sei whale *.............................................         \c\ 2.1
Sperm whale *...........................................         \c\ 1.8
Atlantic spotted dolphin................................         \a\ 100
Atlantic white-sided dolphin............................        \c\ 21.4
Common dolphin..........................................        \b\ 1.55
Bottlenose dolphin, coastal.............................        \c\ 13.1
Bottlenose dolphin, offshore............................              30
Long-finned pilot whale.................................          \a\ 20
Short-finned pilot whale................................         \c\ 6.0
Risso's dolphin.........................................          \a\ 20
Harbor porpoise.........................................         \c\ 1.3
Gray seal...............................................         \c\ 1.2
Harbor seal.............................................         \c\ 1.2
------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ These mean group sizes were used in the 2022 (87 FR 24103, April 22,
  2022) and 2023 (88 FR 38821, June 14, 2023) IHAs for site
  characterization surveys and are informed by previous HRG surveys in
  the area.
\b\ The mean group size for common dolphins was based on the daily
  sighting rate of that species during HRG surveys.
\c\ These group sizes are from the OBIS data repository (OBIS, 2022).

WTG, OSS, and Met Tower Foundation Installation

    Here we describe the results from the acoustic, exposure, and take 
estimate methodologies outlined above for WTG, OSS, and Met Tower 
foundation installation activity that have the potential to result in 
harassment of marine mammals (i.e., impact pile driving). We present 
exposure ranges to Level A harassment (SEL) thresholds from impact 
driving, acoustic ranges to Level A harassment (peak) and Level B 
harassment thresholds, densities, exposure estimates, and the amount of 
take requested and allowed incidental to foundation installation 
following the aforementioned assumptions (e.g., construction and hammer 
schedules). As described above, this final rule analyzes a modified 
Schedule 2 which accommodates a full monopile WTG build-out of Project 
1 and Met Tower and a full jacket buildout for the WTGs in Project 2. 
Schedule 2 assumes foundation installation activities would occur over 
a 2-year period (May through December, annually).
    As previously described, JASCO integrated the results from acoustic 
source and propagation modeling into an animal movement model to 
calculate exposure ranges for 16 marine mammal species (17 stocks) 
considered common in the Project Area. The resulting ranges represent 
the distances at which marine mammals may incur Level A harassment 
(i.e., PTS).
    As described in the Detailed Description of Specified Activities 
section, Project Company 1's preference is to install 15-m (49.21-ft) 
monopiles but Project Company 1 may alternatively install 12-m (39.37-
ft) monopiles. Hence, we have provided the modeled exposure and ranges 
for 12-m (39.37-ft) and 15-m (49.21-ft) monopiles below. We note that 
because the 15-m monopiles produce larger sound fields, in general, in 
order to ensure a conservative analysis, this final rule assumes all 
take is consistent with that expected for the 15-m (49.21-ft) 
monopiles.
    Similarly, as described in the Detailed Description of Specified 
Activities section, Project Company 1 may install pre- or post-piled 
pin piles to construct the jacket foundations. We note that because 
post-piled pin piles produce larger sound fields than pre-piled piles, 
this final rule carries forward take specific to the post-piled pin 
piles. To more appropriately account for the larger radiated area 
produced around the jacket foundations as pin piles are driven, the 
broadband sound level estimated for the jacket piles was increased by 2 
dB in all post-piling scenarios. In either case, NMFS notes that soft-
start of impact-driven piles was not quantitatively considered in the 
exposures and take estimates, as presented here.
    Table 11 provides the exposure ranges for impact pile driving of a 
12-m (39.37-ft) monopile, 15-m (49.21-ft) monopile, and 5-m (16.4-ft) 
pin pile and (pre- and post-piled) jacket foundations, assuming 10 dB 
of sound attenuation to the PTS (SEL) thresholds.

Table 11--Exposure Ranges (ER95) in Kilometers to Marine Mammal PTS (SEL; Level A Harassment) Thresholds During Impact Pile Driving 12-m and 15-
                              m Monopiles, and 5-m Pin Piles (Pre- and Post-Piled) for Jackets, Assuming 10 dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             12-m monopiles, 4,400 kJ        15-m monopiles, 4,400 kJ     5-m pin piles, 2,500 kJ hammer
                                                                      hammer                          hammer             -------------------------------
                  Marine mammal species                  ---------------------------------------------------------------- Four pin piles/ Four pin piles/
                                                                                                                             day (pre-      day (post-
                                                           One pile/day    Two piles/day   One pile/day    Two piles/day      piled)          piled)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale (migrating) *................            0.56            0.67            0.72            0.72            0.73            1.06
Fin whale (sei whale proxy) * \a\.......................            1.09            1.30            1.81            1.83            1.80            1.90
Humpback whale..........................................            1.08            1.01            1.25            1.29            1.07            1.56
Minke whale.............................................            0.33            0.38            0.35            0.41            0.40            0.69
Sperm whale *...........................................               0               0               0               0               0               0
Atlantic spotted dolphin................................               0               0               0               0               0               0
Atlantic white-sided dolphin............................               0               0               0               0               0            0.01

[[Page 78007]]

 
Bottlenose dolphin (offshore)...........................               0               0               0               0               0               0
Bottlenose dolphin (coastal)............................               0               0               0               0               0               0
Common dolphin..........................................               0               0               0               0               0               0
Long-finned pilot whale.................................               0               0               0               0               0               0
Short-finned pilot whale................................               0               0               0               0               0               0
Risso's dolphin.........................................               0               0               0               0           <0.01           <0.01
Harbor porpoise.........................................            0.39            0.32            0.26            0.28            1.11            1.48
Gray seal...............................................            0.01               0            0.02               0            0.15            0.24
Harbor seal.............................................           <0.01           <0.01           <0.01           <0.01            0.16            0.32
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Fin whales were used as a surrogate for sei whale behaviors.

    We note here that between the two differently-sized monopiles, all 
of the distances to the Level A harassment threshold are smaller for 
the 12-m, with exception for the harbor porpoise distances, which show 
minute differences between the 15-m (0.26 and 0.28 km) and the 12-m 
(0.39 and 0.32 km) for each of one or two piles installed per day, 
respectively (table 11). This is because as the pile diameter increases 
from 12 to 15 m (39.37 to 49.21 ft), the frequency spectrum shifts and 
more of the energy increase occurs at the lower frequencies, which are 
largely filtered out by the high-frequency weighting function.
    As described above, JASCO also calculated acoustic ranges which 
represent distances to NMFS' harassment isopleths independent of 
movement of a receiver. Presented below are the distances to the PTS 
(dB peak) threshold for impact pile driving and the Level B harassment 
(SPL) thresholds for all impact pile driving during WTG, OSS, and Met 
Tower foundation installation (tables 12 and 13).
    NMFS acknowledges an error in the proposed rule, in which the 
acoustic ranges to the Level B harassment thresholds were incorrectly 
identified due to a labeling mistake by JASCO in appendix B. Here, in 
table 13, we correct that by showing the values from the proposed rule, 
as well as the corrected values used in this final rule. The values 
found in the JASCO documents did not assume 10 dB of sound attenuation, 
which is why we have instead provided the flat acoustic range (flat 
R95) values at 170 dB from the ITA Application 
materials (i.e., 10 dB of attenuation from the 160-dB behavioral 
harassment threshold). All of these values can be found in appendix B 
of Project Company 1's application materials, located on NMFS' website 
at: https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf. The previous values, now 
updated, did not impact our analysis and determinations regarding take, 
as those values were merely a data copying error of acoustic ranges.

[[Page 78008]]



                             Table 12--Acoustic Ranges (R95), in Kilometers, to PTS (Lpk) Thresholds During Impact Pile Driving, Assuming 10 dB Attenuation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Low-frequency     Mid-frequency    High-frequency       Phocids
                                                                            Modeled source   Hammer energy     Activity         cetacean          cetacean          cetaceans    ---------------
               Pile type                        Installation method            location          (kJ)          duration    ------------------------------------------------------
                                                                                                               (minutes)       219 Lp, pk        230 Lp, pk        202 Lp, pk       218 Lp, pk
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
12-m Monopile..........................  Impact hammer....................             L01           4,400             540              0.08              0.01              0.72            0.09
                                                                                       L02           4,400                              0.06              0.01              0.74            0.07
15-m Monopile..........................  Impact hammer....................             L01           4,400             540              0.08              0.01              0.78            0.09
                                                                                       L02           4,400                              0.07              0.01              0.78            0.08
5-m Pin Pile...........................  Impact hammer....................             L01           2,500             180              0.02              0.00              0.28            0.03
                                                                                       L02           2,500                              0.02              0.00              0.28            0.03
5-m Pin Pile (2 dB shift for post-       Impact hammer....................             L01           2,500             180              0.01              0.00              0.23            0.03
 piled).
                                                                                       L02           2,500                              0.01              0.01              0.14            0.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Lp,pk = peak sound pressure (dB re 1 [mu]Pa).


[[Page 78009]]


Table 13--Flat Acoustic Ranges (Flat R95), in Kilometers, to Level B Harassment (SPL, 170 LP) Threshold During Impact Pile Driving, Not Assuming
                                                                    10 dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Indicated in proposed       Indicated in final rulemaking
                                                                           Hammer energy         rulemaking (Rmax)              (flat R95)
               Pile type                       Installation method             (kJ)      ---------------------------------------------------------------
                                                                                                L01             L02             L01             L02
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-m Monopile.........................  Impact Hammer...................           4,400            8.20            7.31        \a\ 4.26        \b\ 3.91
15-m Monopile.........................  Impact Hammer...................           4,400            8.30            7.44        \c\ 4.31        \d\ 4.00
5-m Pin Pile (pre-piled)..............  Impact Hammer...................           2,500            4.76            1.98        \e\ 2.47        \f\ 0.63
5-m Pin Pile (post-piled).............  Impact Hammer...................           2,500            5.50            2.28        \g\ 2.81        \h\ 0.81
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Lp = root-mean square sound pressure (dB re 1 [mu]Pa).
\a\ Table F-45 in appendix B in Project Company 1's application.
\b\ Table F-65 in appendix B in Project Company 1's application.
\c\ Table F-52 in appendix B in Project Company 1's application.
\d\ Table F-72 in appendix B in Project Company 1's application.
\e\ Table F-59 in appendix B in Project Company 1's application.
\f\ Table F-79 in appendix B in Project Company 1's application.
\g\ Table F-60 in appendix B in Project Company 1's application.
\h\ Table F-80 in appendix B in Project Company 1's application.

    Next, the specific densities for each marine mammal species were 
incorporated. Initially, Project Company 1 provided the densities used 
in the analysis in their ITA application. However, due to the June 2022 
release of the updated Duke University density models, Project Company 
1 submitted a memo with the revised densities and the derived exposure 
and take estimates. These were the values NMFS carried forward into 
this final rule (refer back to table 7).
    To estimate take from foundation installation activities, Project 
Company 1 assumed the buildout described for the modified Schedule 2 
(see the Project Design Envelope (PDE) Refinement Memorandum), which 
entails that all WTGs and the Met Tower found within Project 1 would be 
built using 15-m (49.21-ft) monopiles and all WTGs in Project 2 would 
be built on jacket foundations using 5-m (16.4-ft) piles. All OSSs 
would be built on jacket foundations using 5-m (16.4-ft) pin piles. The 
full buildout of Atlantic Shores South (n=200 WTGs) assuming Schedule 2 
is provided on table 6. This represents the take that is reasonably 
expected to occur incidentally to Atlantic Shores South as no more than 
200 WTGs, 1 Met Tower, and 10 OSSs will be installed within the Lease 
Areas. Given uncertainty at the final stage about the specific buildout 
of Projects 1 and 2, there is a need to also estimate the total amount 
of annually allowed take from both Projects 1 and 2 which, 
collectively, is conservatively greater given it is currently unknown 
exactly how many WTG and OSSs will be constructed in each. For this 
analysis, it was assumed that Project 1 may have a maximum of 105 WTGs 
(plus 6 WTG foundations installed as part of the Overlap Area for 
Project 1; n=111), 1 Met Tower, and 2 OSSs and Project 2 may have a 
maximum of 89 WTGs (plus 6 WTG foundations installed as part of the 
Overlap Area for Project 2; n=95) and 2 OSS. As described above, the 
number of days of pile driving per month is part of the exposure 
estimate calculation. Project Company 1 assumes that 1 monopile could 
be installed per day and 4 pin piles could be installed per day.

[[Page 78010]]



                                                   Table 14--Project 1 and Project 2's Buildout Schedule Presented Annually and Over Two-Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Year 1 (2026)                                                         Year 2 (2027) \a\
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                             Project 1                       Project 2                                 Total                                 Project 2
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
                                                     Number of days (number of       Number of days (number of                                                       Number of days (number of
               Construction month                        piles installed)                piles installed)                                                                piles installed)
                                                 ----------------------------------------------------------------   WTG and Met   WTG jacket 5-m  OSS jacket 5-m -------------------------------
                                                    WTG and Met                                                   Tower monopile   pin piles (4    pin piles (4
                                                  Tower monopile  OSS jacket 5-m  WTG jacket 5-m  OSS jacket 5-m   15-m (1 pile/    piles/day)      piles/day)    WTG jacket 5-m  OSS jacket 5-m
                                                   15-m (1 pile/   pin piles (4    pin piles (4    pin piles (4        day)                                        pin piles (4    pin piles (4
                                                       day)         piles/day)      piles/day)      piles/day)                                                      piles/day)      piles/day)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May.............................................           8 (8)           0 (0)           0 (0)           0 (0)           8 (8)           0 (0)           0 (0)          5 (20)           0 (0)
June............................................         20 (20)          6 (24)           0 (0)           0 (0)         20 (20)           0 (0)          6 (24)         15 (60)          6 (24)
July............................................         25 (25)           0 (0)           0 (0)           0 (0)         25 (25)           0 (0)           0 (0)         20 (80)           0 (0)
August..........................................         19 (19)          6 (24)           0 (0)           0 (0)         19 (19)           0 (0)          6 (24)         18 (72)          6 (24)
September.......................................         18 (18)           0 (0)           0 (0)           0 (0)         18 (18)           0 (0)           0 (0)         14 (56)           0 (0)
October.........................................         16 (16)           0 (0)           0 (0)           0 (0)         16 (16)           0 (0)           0 (0)         13 (52)           0 (0)
November........................................           5 (5)           0 (0)          5 (20)           0 (0)           5 (5)          5 (20)           0 (0)          4 (16)           0 (0)
December........................................           1 (1)           0 (0)           1 (4)           0 (0)           1 (1)           1 (4)           0 (0)           0 (0)           0 (0)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Totals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Piling Days...............................             112              12                 6                           112                18
                                                                101
Total Piles.....................................             112              48                24                           112                72
                                                                404
Total Foundations \b\...........................             112               2                 6                           112                 8
                                                                91
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ As 2027 only has foundation installation activities occurring from Project 2, there is no total column for this year.
\b\ The total WTG and Met Tower foundations (n=207) included in this table sum up to more than the planned number of WTG and Met Tower foundations (n=201) due to the possibility of 6 WTGs
  being installed either under Project 1 or Project 2 in the Overlap Area; these are therefore counted twice within this table but only counted once within the take analysis.


[[Page 78011]]

    Project Company 1 assumes that construction would start in 2026 for 
foundation installation (refer back to table 1). Modeling assumed that 
up to 106 monopile foundations (105 WTGs plus the Met Tower) would be 
installed during May through October in the area for Project 1 (2026) 
and up to 89 monopiles (WTGs) for Project 2 for May through December 
(in part of 2026 and in 2027). Additionally, up to 6 monopile 
foundations (WTGs) could be installed during November through December 
for either Project 1 or Project 2 (total of 112 WTG and Met Tower 
foundations for Project 1 or a total of 94 WTG foundations for Project 
2). This analysis also assumes the buildout of two large-sized OSSs for 
each Project 1 and Project 2 would be installed on multi-legged jacket 
foundations during June and August. Project Company 1 expects that all 
foundation installation activities for Project 1 would occur during the 
first year of construction activities (2026) with parts of Project 2 
starting in 2026 and completing in 2027.
    Between these schedules, we note that Project Company 1 has 
analyzed and NMFS has carried over for the construction of 205 
permanent foundation structures, including up to 200 WTGs, one Met 
Tower, and 4 large-sized OSSs. The Project 1 take calculations include 
the 6 WTGs in the Overlap Area during Year 1 to ensure sufficient take 
for Project 1 (if those positions are allocated to Project 1 during 
construction). If, however, those positions are allocated to Project 2, 
they are also included during Year 1 of foundation installation for 
Project 2 (to ensure sufficient take allocation to Project 2 during 
that year). However, the full buildout scenario, which describes the 
take for the Projects combined, only includes the 6 WTGs in the entire 
Project once (to avoid double counting of the 6 WTGs).
    As described previously, to estimate the amount of take that may 
occur incidental to the foundation installation, Project Company 1 
conducted exposure modeling to estimate the number of exposures that 
may occur from impact pile driving in a 24-hour period. Exposure 
estimates were then scaled to reflect the appropriate density estimates 
as described above. These scaled 24-hour exposure estimates were then 
multiplied by the number of days to produce the estimated take numbers 
for each year. Exposure estimates can be found within the LOA Updates 
Memo on NMFS' website.
    As described above, exposure estimates were subsequently adjusted 
based on appropriate group sizes and PSO data (refer back to table 10) 
to yield the requested take in Project Company 1's LOA Updates Memo. 
The amount of take Project Company 1 requested similarly equates to the 
amount of take NMFS has allowed in this final rule (tables 15 and 16).

[[Page 78012]]



    Table 15--Annual Total Exposure Estimates and Allowable Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities for Project 1, Assuming Schedule 2 \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Year 1 (2026)                                                 Year 2 (2027) \b\
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                        Estimated exposures                Allowed takes                Estimated exposures                Allowed takes
                      Marine mammal species                      -------------------------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B         Level A         Level B         Level A         Level B         Level A         Level B
                                                                    harassment      harassment      harassment      harassment      harassment      harassment      harassment      harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *....................................            0.14            1.24               0               4               0               0               0               0
Fin whale *.....................................................            2.80            8.23               3               9               0               0               0               0
Humpback whale..................................................            2.20            8.33               3               9               0               0               0               0
Minke whale.....................................................           10.07          135.38              11             136               0               0               0               0
Sei whale *.....................................................            0.35            1.04               1               3               0               0               0               0
Sperm whale *...................................................               0               0               0               2               0               0               0               0
Atlantic spotted dolphin........................................               0               0               0             100               0               0               0               0
Atlantic white-sided dolphin....................................            0.01          159.94               1             160               0               0               0               0
Bottlenose dolphin--offshore....................................               0        3,100.73               0           3,101               0               0               0               0
Bottlenose dolphin--coastal.....................................               0           50.32               0              51               0               0               0               0
Common dolphin..................................................               0               0               0             193               0               0               0               0
Long-finned pilot whale.........................................               0               0               0              20               0               0               0               0
Short-finned pilot whale........................................               0               0               0               6               0               0               0               0
Risso's dolphin.................................................           <0.01            5.58               1              30               0               0               0               0
Harbor porpoise.................................................            1.38           49.85               2              50               0               0               0               0
Gray seal.......................................................            0.52           98.42               1              99               0               0               0               0
Harbor seal.....................................................            1.29          235.51               2             236               0               0               0               0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ While the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested is based on those 6 WTGs only being
  installed once under the full buildout scenario; no double counting of take occurred.
\b\ All of Project 1's activities would be completed within a single year (2026), which means that no take would occur during the second construction year (2027).


[[Page 78013]]


      Table 16--Annual Total Exposure Estimates and Allowable Takes by Level A Harassment and Level B Harassment for Foundation Installation Activities for Project 2, Assuming Schedule 2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ITA Request Year (2026)                                         ITA Request Year (2027)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                        Estimated exposures                Allowed takes                Estimated exposures                Allowed takes
                      Marine mammal species                      -------------------------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B         Level A         Level B         Level A         Level B         Level A         Level B
                                                                    harassment      harassment      harassment      harassment      harassment      harassment      harassment      harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *....................................            0.08            0.43               0               4            0.24            1.31               0               4
Fin whale *.....................................................            0.24            0.65               1               2            3.46            9.20               4              10
Humpback whale..................................................            0.46            1.53               1               2            3.02            9.82               4              10
Minke whale.....................................................            0.16            1.55               1               2           16.27          141.72              17             142
Sei whale *.....................................................            0.13            0.34               1               3            0.41            1.09               1               3
Sperm whale *...................................................               0               0               0               2               0               0               0               2
Atlantic spotted dolphin........................................               0               0               0             100               0               0               0             100
Atlantic white-sided dolphin....................................               0           21.98               0              22            0.01          171.37               1             172
Bottlenose dolphin--offshore....................................               0          201.39               0             202               0        3,416.59               0           3,417
Bottlenose dolphin--coastal.....................................               0               0               0              14               0               0               0              14
Common dolphin..................................................               0               0               0              10               0               0               0             157
Long-finned pilot whale.........................................               0               0               0              20               0               0               0              20
Short-finned pilot whale........................................               0               0               0               6               0               0               0               6
Risso's dolphin.................................................           <0.01            2.61               1              30           <0.01            6.03               1              30
Harbor porpoise.................................................            5.40           17.14               6              18           12.52           39.23              13              40
Gray seal.......................................................            0.45           23.56               1              24            2.00           94.34               2              95
Harbor seal.....................................................            1.66           53.29               2              54            7.03          213.40               8             214
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.


[[Page 78014]]

    Based on tables 15 and 16 above, NMFS allows the following numbers 
for the harassment of marine mammals incidental to foundation 
installation activities of WTGs, OSSs, and the Met Tower by Level A 
harassment and Level B harassment in table 17. We note that some of the 
values presented here will be different than those found in the 
proposed rule (88 FR 65430, September 22, 2023) as NMFS has since 
acknowledged that takes from Project 2 were not appropriately added to 
the takes from Project 1 in Year 2 (when a limited number of WTG 
foundations from Project 2 may occur in the same year as Project 1). 
The numbers as presented in this final rulemaking correct these values 
and are a more appropriate metric to assess the entire buildout of both 
Projects associated with the full scope of Atlantic Shores South. We 
further acknowledge that Project Company 1 did not request, nor is NMFS 
authorizing, take by the serious injury and/or mortality of marine 
mammals. Furthermore, no Level A harassment of North Atlantic right 
whales has been allowed due to enhanced mitigation measures that 
Project Company 1 is required to implement for this species.

[[Page 78015]]



Table 17--Summed \a\ Annual Exposure Estimates and Allowable Takes by Level A Harassment and Level B Harassment for All Foundation Installation Activities in Both Project 1 and Project 2 (Full
                                                                               Buildout), Assuming Schedule 2 \b\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ITA request year (2026)                                         ITA request year (2027)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                        Estimated exposures                Allowed takes                Estimated exposures                Allowed takes
                      Marine mammal species                      -------------------------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B         Level A         Level B         Level A         Level B         Level A         Level B
                                                                    harassment      harassment      harassment      harassment      harassment      harassment      harassment      harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *....................................            0.22            1.67               0               8            0.24            1.41               0               4
Fin whale *.....................................................            3.04            8.88               4              11            3.46             9.2               4              10
Humpback whale..................................................            2.66            9.86               4              11            3.02            9.82               4              10
Minke whale.....................................................           10.23          136.93              12             138           16.27          141.72              17             142
Sei whale *.....................................................            0.48            1.38               2               6            0.41            1.09               1               3
Sperm whale *...................................................               0               0               0               4               0               0               0               2
Atlantic spotted dolphin........................................               0               0               0             200               0               0               0             100
Atlantic white-sided dolphin....................................            0.01          181.92               1             182            0.01          171.37               1             172
Bottlenose dolphin--offshore....................................               0        3,302.12               0           3,303               0        3,416.59               0           3,417
Bottlenose dolphin--coastal.....................................               0           50.32               0              65               0               0               0              14
Common dolphin..................................................               0               0               0             203               0               0               0             157
Long-finned pilot whale.........................................               0               0               0              40               0               0               0              20
Short-finned pilot whale........................................               0               0               0              12               0               0               0               6
Risso's dolphin.................................................       \c\ <0.02            8.19               2              60           <0.01            6.03               1              30
Harbor porpoise.................................................            6.78           66.99               8              68           12.52           39.34              13              40
Gray seal.......................................................            0.97          121.98               2             123               2           94.34               2              95
Harbor seal.....................................................            2.95           288.8               4             290            7.03           213.4               8             214
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ The values NMFS in this final rule are different from those originally proposed for most species, as NMFS recognized the table in the proposed rule inadvertently omitted the Project 2
  takes in 2026 (as identified in table 18 of the proposed rule).
\b\ While the foundation installation counted the 6 WTGs in the Overlap Area for both Project 1 and Project 2, the exposure estimates and take requested is based on those 6 WTGs only being
  installed once under the full buildout scenario; no double counting of take occurred. In total, this table accounts for estimated exposure and allowable take estimates for the total buildout
  of 200 WTGs, 1 Met Tower, and 4 OSSs (large size).
\c\ For Risso's dolphins, the individual exposure estimates for Level A harassment for the first year of foundation installation (2026) were each less than 0.01 for each Project 1 and Project
  2. In summing these two Projects together to yield the total exposure estimates for foundation pile driving, the total is 0.02, although this is likely a conservative overestimate, given the
  initial values were less than 0.01 apiece.


[[Page 78016]]

Cable Landfall Activities

    We previously described the acoustic modeling and static 
methodologies to estimate the take of marine mammals and have already 
identified that Project Company 1 estimated take using propagation 
modeling and a static density-based approach. This information will not 
be reiterated here. Here, we present the results of acoustic modeling 
and take estimation processes, as previously described. More 
information can also be found in the ITA application and subsequent 
supplementary memos provided by the applicant.
    Project Company 1 plans to install and remove up to four temporary 
cofferdams per Atlantic and Monmouth cable landfall location (eight 
cofferdams total) using a vibratory hammer. To calculate the acoustic 
ranges to PTS thresholds, it was assumed that up to 8 hours of 
vibratory pile driving would occur within any 24-hour period. The 
furthest ranges were noted where the sound propagated offshore from the 
New Jersey coastline into the continental shelf (see figure 3 in the 
supplemental memo for appendix D). Variation in acoustic ranges between 
the two sites is due to differing propagation loss properties. See 
table 18 below for the ranges to the thresholds for both Level A 
harassment and Level B harassment.

[[Page 78017]]



   Table 18--Acoustic Ranges (R95) in Meters to the Level A Harassment (PTS) and Level B Harassment Thresholds From Vibratory Pile Driving During Temporary Cofferdam Installation and
                                                                                             Removal
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Atlantic City landfall site                                       Monmouth landfall site
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                     Level A harassment SELcum       Level B harassment SPLrms       Level A harassment SELcum       Level B harassment SPLrms
                   Marine mammal hearing group                          thresholds (dB re 1           threshold (120 dB re 1            thresholds (dB re 1           threshold (120 dB re 1
                                                                      [micro]Pa\2\[middot]s)                [micro]Pa)                [micro]Pa\2\[middot]s)                [micro]Pa)
                                                                 -------------------------------------------------------------------------------------------------------------------------------
                                                                      Summer          Winter          Summer          Winter          Summer          Winter          Summer          Winter
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........................................              65              65           5,076           7,546              45              60           5,412          11,268
Mid-frequency cetaceans.........................................               0               0                                               0               0
High-frequency cetaceans........................................             490             540                                             425             450
Phocid Pinnipeds................................................              30              30                                              20              20
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 78018]]

    Given the very small distances to the Level A harassment thresholds 
(0 to 540 m (0 to 1,771.65 ft)), which accounts for 8 hours of 
vibratory pile driving, installation and removal of temporary 
cofferdams is not expected to result in any Level A harassment of 
marine mammals. Project Company 1 did not request, nor has NMFS allowed 
any Level A harassment incidental to vibratory pile driving activities 
for nearshore cable landfall activities.
    Using the acoustic ranges to the Level B harassment threshold, the 
ensonified area around each cable landfall construction site was 
determined for each of the two seasons (i.e., summer and winter) using 
the following formula:

Ensonified Area = p x r2,

where r is the linear acoustic range distance from the source to the 
isopleth to the Level B harassment thresholds. Given the acoustic 
source is stationary, this formula assumes the distance to threshold 
would be the radius with the source in the center.

    For vibratory pile driving associated with the sheet pile 
installation and removal necessary for cofferdams, it was assumed that 
the daily ensonified area was 104.33 km\2\ (25,780.12 acres) at the 
Atlantic City landfall site and 221.77 km\2\ (54,799.57 acres) at the 
Monmouth landfall site. To estimate marine mammal densities around the 
nearshore landfall sites, the largest 95th percentile acoustic range to 
threshold (R95; 7.546 km (24,757 ft) at the Atlantic 
City site and 11.268 km (36,968 ft) at the Monmouth site) were used as 
density buffers. The maximum annual densities were calculated for each 
landfall location based on the average of the Duke University density 
model grid cells for each species and the period of time for when 
cofferdam activities may occur (i.e., September through May). Any grids 
that overlapped partially or completed were included. Grid cells that 
fell entirely on land were not included in the analysis, but due to the 
nearshore proximity of the cofferdams, grid cells that overlapped 
partially with land and water were included in the analysis. For two 
species guilds (i.e., pinnipeds and pilot whale spp.), minor 
adjustments were necessary as the Roberts et al. (2023) data did not 
separate these by species. In these two cases, the densities were 
scaled by the relative abundance of each species, as described in the 
final 2022 SARs (Hayes et al., 2023).
    Annual maximum marine mammal exposures were calculated assuming 
that cofferdam activities would only occur during the activity window 
of September through May. The density value for each species 
represented the highest density month for each specific species within 
this window, so as to not underestimate any potential take when the 
activity would occur. The exposures were calculated using the following 
static formula:

Exposures = area ensonified x (days) x density,

where the area ensonified is equal to p x r2, wherein r is equal to 
the Level B harassment isopleth distance, days constituted the total 
number of days needed for cofferdam activities (n=28), and density 
were incorporated as species-specific during the activity window.

    The exposure estimates were calculated assuming 6 days of 
installation and 6 days of removal at the Atlantic City landfall 
location (n=12), and 8 days of installation and 8 days of removal at 
the Monmouth landfall location (n=28), equating to 28 days in total. In 
their adequate and complete ITA application, Project Company 1 
initially proposed 16 days total for the Atlantic City landfall 
location (8 days of installation and 8 days of removal). However, given 
the shallower waters at this location, they believe that it would be 
possible to install and remove the temporary cofferdams more quickly 
than initially modeled, thus reducing the total number of days at this 
location (n=12). Where applicable, calculated exposure estimates were 
then adjusted up for average group sizes, per table 10, to yield the 
allowed take numbers. The estimated take, representing the maximum 
amount of take that is reasonably expected to occur during temporary 
cofferdam installation and removal during the Project, is provided in 
table 19. As already stated, no take by Level A harassment is expected, 
nor has it been requested by Project Company 1 or allowed by NMFS.

Table 19--The Maximum Predicted Level B Harassment Exposures, and Takes That Are Reasonably Expected To Occur by
         Level B Harassment Allowed for Cofferdam Activities, Including a Group Size Adjustment \a\ \b\
----------------------------------------------------------------------------------------------------------------
                                                   Atlantic City landfall site--   Monmouth landfall site--2026
                                                               2025              -------------------------------
              Marine mammal species              --------------------------------
                                                    Calculated    Takes by Level    Calculated    Takes by Level
                                                     exposures     B harassment      exposures     B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *....................            1.15               4            1.23               4
Fin whale *.....................................            0.65               2            4.14               5
Humpback whale..................................            1.43               2            4.70               5
Minke whale.....................................            1.70               2           18.66              19
Sei whale.......................................            0.23               3            1.62               3
Sperm whale.....................................            0.03               2            0.28               2
Atlantic spotted dolphin........................            0.18             100            1.16             100
Atlantic white-sided dolphin....................            0.64              22            7.31              22
Bottlenose dolphin (offshore stock).............               0               0          307.29             308
Bottlenose dolphin (coastal stock)..............        1,835.55           1,836          607.29             608
Common dolphin..................................            6.56               7           73.01              74
Long-finned pilot whale \c\.....................               0               6            0.01               6
Short-finned pilot whale \c\....................               0               2            0.01               2
Risso's dolphin.................................            0.03              20            0.70              20
Harbor porpoise.................................           10.28              11           98.23              99
Gray seal.......................................          113.04             114          158.86             159
Harbor seal.....................................          253.99             254          356.92             357
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ Group size for adjustments can be found in table 10.
\b\ The Atlantic City landfall site installation and removal is in Year 1; Monmouth landfall site installation
  and removal is in Year 2.
\c\ Project Company 1 has requested a single group size for these species.


[[Page 78019]]

    Known haul-outs for seals occur near the coastal cofferdam 
locations (i.e., Great Bay, Sandy Hook, and Barnegat Inlet), per 
Conserve Wildlife Foundation of New Jersey (2015). However, there is no 
evidence that these haul-out locations also coincide with important 
foraging sites. Given the distance for which we expect Project Company 
1's activities to occur, away from the more inland regions of New 
Jersey, NMFS does not expect that in-air sounds produced would cause 
the take of hauled-out pinnipeds. Therefore, NMFS does not expect any 
harassment to occur and has not allowed any take from in-air impacts on 
hauled-out seals.

HRG Surveys

    Project Company 1's planned HRG survey activities include the use 
of impulsive (i.e., sparkers) and non-impulsive sources (i.e., 
Compressed High Intensity Radiated Pulses (CHIRPs)) that have the 
potential to harass marine mammals. Other equipment is also planned, 
but is not expected to cause harassment of marine mammals. The list of 
all equipment planned to be used is in table 2 of the proposed rule (88 
FR 65430, September 22, 2023), with more information found in Project 
Company 1's ITA application on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. This list includes sparkers, CHIRPs, 
INNOMAR sub-bottom profilers, gradiometers, side-scan sonar, and 
multibeam echosounders.
    Allowed takes are only by Level B harassment, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Specific to HRG surveys, in order to better consider the narrower and 
directional beams of the sources, NMFS has developed a calculation 
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. Project Company 1 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 beamwidths, the beamwidth 
associated with operational characteristics reported in Crocker and 
Fratantonio (2016) was used.
    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 Level B 
harassment isopleth are presented in table 20. Please refer to appendix 
C for a full description of the methodology and formulas used to 
calculate distances to the Level B harassment threshold.

 Table 20--Distances Corresponding to the Level B Harassment Threshold for HRG Equipment Operating Below 180 kHz
----------------------------------------------------------------------------------------------------------------
                                                                                       Horizontal
                                                                                      distance (m)    Ensonified
           HRG survey equipment type                Representative equipment type    to the Level B      area
                                                                                       harassment      (km\2\)
                                                                                        threshold
----------------------------------------------------------------------------------------------------------------
Sparkers.......................................  Applied Acoustics Dura-Spark 240           \b\ 282        15.57
                                                  \a\.
                                                 GeoMarine Geo-Source \a\..........         \c\ 141
Compressed High Intensity Radiated Pulses        Edgetech 2000-DSS.................              56
 (CHIRPs).
                                                 Edgetech 216......................               9
                                                 Edgetech 424......................              10
                                                 Edgetech 512i.....................               9
                                                 Pangeosubsea Sub-Bottom Imager\TM\              32
----------------------------------------------------------------------------------------------------------------
\a\ After additional information was provided from Project Company 1, NMFS believes that the operational
  parameters of the acoustic sources planned for use during HRG surveys were inadvertently switched for the
  Applied Acoustics Dura-Spark 240 and the GeoMarine Geo-Source.
\b\ Based on a source level of 209 dB for the 240 tip configuration of the Applied Acoustics Dura-Spark
  operating at 500 J, as taken from Crocker and Fratantonio (2016). This configuration was included in the ITA
  application and proposed rule but was incorrectly attributed a source level of 203 dB. Notably, this source is
  not planned for use during the survey according to additional information provided from Project Company 1, but
  the corrected distance to Level B Harassment threshold is nevertheless included for completeness.
\c\ Given the inadvertent error NMFS has noted in the ITA application, and after review of the data found within
  Crocker and Fratantonio (2016), we believe that the horizontal distance for the Geo-Marine Geo-Source is
  actually 141 m (463 ft), rather than 56 m (184 ft), as originally described in the proposed rule. We have made
  the relevant adjustment here to better reflect the data available.

    The survey activities that have the potential to result in Level B 
harassment (160 dB SPL) include the noise produced by sparkers and 
CHIRPs. Per the table 22 of the proposed rule, which is also reflected 
in the ITA application, this indicates that the Applied Acoustics Dura-
Spark 240 results in the greatest calculated distance to the Level B 
harassment criteria at 141 m (463 ft). However, as of July 2024, 
Project Company 1 has further clarified to NMFS that they intend to 
primarily utilize the Geo Marine Geo-source sparker, rather than the 
Applied Acoustics Dura-Spark 240 as previously described in their ITA 
application and in the proposed rule (88 FR 65430, September 22, 2023). 
Project Company 1 anticipates this acoustic source to nominally operate 
using 400 tips at 400 J of energy. Based on this information, the most 
representative proxy equipment from Crocker and Fratantonio (2016) 
appears to be the Dura-Spark operating with 400 tips and 500 J, which 
was measured to have a source level of 203 dB (Crocker and Fratantonio, 
2016), which corresponds to a horizontal distance to the Level B 
harassment threshold of 141 m (463 ft). Based on this, and after 
evaluating the provided operational characteristics of the Dura-Spark 
240 and the GeoMarine Geo-Source from Crocker and Fratantonio (2016), 
NMFS found that the wrong operational parameters were incorrectly 
assigned to the representative sparker equipment in the

[[Page 78020]]

ITA application, subsequent supporting documents, and, therefore, in 
the proposed rulemaking. We have re-evaluated these two sources and 
their operational characteristics and found that the 141 m (463 ft) 
distance carried forward from the initial analysis remains the most 
appropriate distance to the Level B harassment threshold for sparker 
activities and does not necessitate any changes to this rulemaking or 
the analysis herein.
    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 of the ITA application and in the Revised HRG Memo 
on NMFS' website). Using the larger distance of 141 m (462.6 ft) to the 
160 dBRMS90% re 1 [mu]Pa Level B harassment 
isopleth (table 20), the estimated daily vessel track of approximately 
55 km (34.2 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 20).
    Exposure calculations assumed that there would be 60 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 University density 
models (Roberts et al. 2016a; Roberts et al., 2023)). Because the exact 
dates of HRG surveys are unknown, the maximum average seasonal density 
values for each marine mammal species was used and carried forward in 
the take calculations (table 9).
    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 (see table 10). Project Company 1 also used data collected 
by PSOs on survey vessels operating during HRG surveys in their 2020 
season in the relevant Project Area. It was determined that the 
calculated number of potential takes by Level B harassment based on the 
exposure modeling methodology above may be underestimates for some 
species and therefore warranted adjustment using group size estimates 
and PSO data to ensure conservatism in the take numbers allowed. 
Despite the relatively small modeled Level B harassment zone (141 m 
(462.6 ft)) 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 (see table 21 below).
    For certain species for which the density-based methodology 
described above may result in potential underestimates of take and 
Project Company 1'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, the take request is based on the average 
group size (table 10). Other adjustments were made based on information 
previously presented in IHAs issued to Atlantic Shores (the precursor 
to Project Company 1 for OCS-A-0499 and OCS-A-0570). These include an 
estimate of 1.55 individuals of common dolphins per day multiplied by 
the number of survey days annually (i.e., 60 days), which is in 
alignment with what was done in the IHA issued to Atlantic Shores/
Project Company 1 on April 22, 2022 (87 FR 24103) based on previous 
daily observations of common dolphins. Additionally, requested take 
estimates for long-finned pilot whales, Atlantic spotted dolphins, and 
Risso's dolphins were also adjusted based on typical group sizes (i.e., 
20, 100, and 30 annual takes, respectively), based on take numbers from 
2020, 2021, and 2022 IHAs issued to Atlantic Shores (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations). Lastly, adjustments were made for short-finned pilot 
whales based on group size data reported by the OBIS data repository 
(OBIS, 2022). The average group size used consisted of six individuals.
    The maximum seasonal density used for the HRG survey analysis are 
shown in table 9 in the Density and Occurrence section. The calculated 
exposures, annual allowed take, and the total 5-year allowed take (all 
by Level B harassment only) is found in table 21 below.

   Table 21--Calculated Exposures, and Allowed Take, and 5-year Allowed Take by Level B Harassment Only During
                        Annual HRG Surveys for the Atlantic Shores South Survey Area \a\
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total 5-year
                                                                    Calculated    Annual allowed   allowed take
         Marine mammal species                    Stock              exposures     take by Level    by Level B
                                                                                   B harassment   harassment \e\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..........  Western Atlantic........               1               1               5
Fin whale *...........................  Western North Atlantic..               2               2              10
Humpback whale........................  Gulf of Maine...........               1               1               5
Minke whale...........................  Canadian Eastern Coastal               4               4              20
Sei whale *...........................  Nova Scotia.............               1           \b\ 2              10
Sperm whale *.........................  Western North Atlantic..               1               1               5
Atlantic spotted dolphin..............  Western North Atlantic..               1             100             500
Atlantic white-sided dolphin..........  Western North Atlantic..               3               3              15
Bottlenose dolphin....................  Northern Migratory                   113             113             565
                                         Coastal.
                                        Western North Atlantic--             225             225           1,125
                                         Offshore.
Common dolphin........................  Western North Atlantic..              14          \d\ 93             465
Long-finned pilot whale...............  Western North Atlantic..               1          \c\ 20             100
Short-finned pilot whale..............  Western North Atlantic..               1           \c\ 6              30
Risso's dolphin.......................  Western North Atlantic..               1          \c\ 30             150
Harbor porpoise.......................  Gulf of Maine/Bay of                  24              24             120
                                         Fundy.
Gray seal.............................  Western North Atlantic..              41              41             205

[[Page 78021]]

 
Harbor seal...........................  Western North Atlantic..              91              91             455
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ The survey area accounts for waters within and around the Lease Areas and the export cable routes.
\b\ Project Company 1 is requesting 1 additional take of sei whales, for a total of two, based on the average
  group size found in NOAA (2022) and due to an encounter during their 2020 surveys where a single sei whale was
  observed.
\c\ This adjustment was made in alignment with take that was previously authorized to Project Company 1 in an
  issued IHA (88 FR 38821, June 14, 2023). As the survey area for this final rulemaking overlaps the survey area
  for that IHA the same group size assumptions were used in this analysis.
\d\ This adjustment was made in alignment with the take that was previously authorized to Project Company 1 in
  an issued IHA (88 FR 38821, June 14, 2023) where an average take of 1.5 individuals per day was multiplied by
  the total number of survey days (i.e., 60 days).
\e\ NMFS added this column to provide more clarity regarding the total number of allowed takes over the entire 5-
  year effective period from HRG surveys.

Total Take Across All Activities

    The number of takes by Level A harassment and Level B harassment 
allowed during permanent WTG, OSS, and Met Tower foundation 
installation, cable landfall construction (i.e., temporary cofferdams), 
and HRG surveys are presented in table 22. The mitigation and 
monitoring measures provided in the Mitigation and Monitoring and 
Reporting sections are activity-specific and are designed to minimize, 
to the extent practicable, acoustic exposures to marine mammal species.
    The amount of take that Project Company 1 requested, and NMFS is 
authorizing, is substantially conservative. For the species for which 
modeling was conducted, the take estimates are conservative for a 
number of key reasons:
     The amount of allowed take assumes the largest and longest 
buildout scenario, with respect to Project design and Schedules. To 
estimate the maximum amount of take that is reasonably expected to 
occur, we carried forward the Schedules (Scenario 1 and modified 
Scenario 2) that assumed two years of pile driving as this could be 
reasonably likely to constitute more takes over more days given the 
longer duration of foundation pile driving activities. We then carried 
forward the schedule that would require the most impact driven piles to 
be installed (modified Scenario 2), as Project 1's WTG buildout would 
use monopiles, but Project 2's could potentially require jackets with 
pin piles or monopiles, but jacket foundations would require the 
installation of more piles to maintain the stability of the structure. 
Closer to construction, if Project Company 1 opts to build the Project 
2 WTGs out as monopiles rather than jackets, fewer total piles would be 
installed;
     As described in the Detailed Description of Specified 
Activities section and Project Company 1's PDE Refinement memo, Project 
Company 1 may use suction-buckets or gravity-based structures to 
install the foundations for the Met Tower and may use suction-buckets 
for each of the OSSs rather than monopiles or jacket foundations 
(depending on the size OSS used). Should Project Company 1 decide to 
use these different foundations, take of marine mammals 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);
     The amount of Level A harassment allowed considered the 
maximum of up to two monopiles or four pin piles being installed per 
day, when Project Company 1 may choose to, on some days, install fewer 
pin piles than this;
     Regarding the OSS buildout, while we analyzed a 
construction scenario assuming the largest OSSs would be built (i.e., 
four large) instead of medium or small OSSs, we conservatively 
accounted for a longer number of piling days per each OSS with the 
maximum number of piles that may be used, depending on the buildout 
chosen for OSSs in Project 1 and Project 2. If Project Company 1 
further refines their Project buildout during construction to small or 
medium OSSs, rather than all large, although more total structures and 
pin piles would be collectively installed, these would likely be 
installed over a longer period of time and over a larger area (i.e., 
the pin piles would be less concentrated in any given area), given the 
footprint of 10 OSSs versus 4 OSSs. This in turn would reduce the 
overall duration of this construction activity;
     For foundation pile driving, which is responsible for the 
majority of the take for all species, all calculated take incorporated 
the maximum average densities for any given species in any given season 
that coincided with the planned pile driving activities while maximum 
monthly densities and maximum average seasonal densities were used for 
temporary cofferdams and HRG surveys, respectively. These values are 
likely lower for some species, but the value used in the analysis for 
each activity would be driven by periods of higher densities; and
     The amount of allowed 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, importantly, the 
effectiveness of the required monitoring and mitigation measures in 
reducing exposures (with the exception of North Atlantic right whales 
given the enhanced mitigation measures required for this species). 
Therefore, actual anticipated exposures should be less than those 
analyzed here.
    Additionally, as described in the proposed rule (88 FR 65430, 
September 22, 2023), NMFS used the best available science and robust 
models to consider the interaction of marine mammal movement, the 
environment, and the Project's activities, in the context of NMFS' 
acoustic thresholds, to project the maximum number of takes by Level A 
harassment and Level B harassment that are reasonably expected to 
occur. However, NMFS has also acknowledged the uncertainty inherent in 
certain input values (e.g., source levels and spectra) and 
environmental variability present in real-life physical and biological 
systems. Accordingly, while activity-specific take estimates are 
appropriately used to

[[Page 78022]]

build as accurate of a total take estimate as possible, allowable takes 
are presented in the LOA as total maximum annual takes and 5-year takes 
by both Level A harassment and Level B harassment, and not specifically 
by activity type (i.e., the regulations simply indicate the species or 
stocks that may be taken). In other words, the LOA specifies maximum 
annual and 5-year takes that may not be exceeded, by Level A and Level 
B harassment, but does not specify the number of allowable takes by 
activity type, thus allowing for flexibility should the number of takes 
from a specific activity type exceed the number modeled for the 
specific activity type, provided the manner and impacts of those takes 
remain within those considered within the analysis and the total takes 
remain below the annual maximum and 5-year totals.

[[Page 78023]]



                                          Table 22--Estimated Annual Takes, by Level A Harassment and Level B Harassment, for the Project Over 5 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Year 1 (2025)             Year 2 (2026)             Year 3 (2027)             Year 4 (2028)             Year 5 (2029)
                                                   NMFS stock  ---------------------------------------------------------------------------------------------------------------------------------
     Marine mammal species            Stock         abundance     Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B      Level A      Level B
                                                       \a\       harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment   harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *    Western Atlantic           340            0            5            0           13            0            5            0            1            0            1
 \b\ \d\.
Fin whale * \d\...............  Western North            6,802            0            4            4           18            4           12            0            2            0            2
                                 Atlantic.
Humpback whale................  Gulf of Maine...         1,396            0            3            4           17            4           11            0            1            0            1
Minke whale...................  Canadian Eastern        21,968            0            6           12          161           17          146            0            4            0            4
                                 Coastal.
Sei whale * \b\ \d\...........  Nova Scotia.....         6,292            0            5            2           11            1            5            0            2            0            2
Sperm whale * \b\ \d\.........  Western North            5,895            0            3            0            7            0            3            0            1            0            1
                                 Atlantic.
Atlantic spotted dolphin \b\    Western North           31,506            0          200            0          400            0          200            0          100            0          100
 \c\ \d\.                        Atlantic.
Atlantic white-sided dolphin    Western North           93,233            0           25            1          207            1          175            0            3            0            3
 \d\.                            Atlantic.
Bottlenose dolphin............  Western North           64,587            0          225            0        3,836            0        3,642            0          225            0          225
                                 Atlantic--Offsh
                                 ore.
                                Northern                 6,639            0        1.949            0          786            0          126            0          113            0          113
                                 Migratory
                                 Coastal \b\.
Common dolphin \e\............  Western North           93,100            0          100            0          370            0          250            0           93            0           93
                                 Atlantic.
Long-finned pilot whale \b\     Western North           39,215            0           26            0           66            0           40            0           20            0           20
 \c\ \d\.                        Atlantic.
Short-finned pilot whale \b\    Western North           18,726            0            8            0           20            0           12            0            6            0            6
 \c\ \d\.                        Atlantic.
Risso's dolphin \b\ \c\ \d\...  Western North           44,067            0           50            2          110            1           60            0           30            0           30
                                 Atlantic.
Harbor porpoise...............  Gulf of Maine/          85,765            0           35            8          191           13           64            0           24            0           24
                                 Bay of Fundy.
Gray seal.....................  Western North           27,911            0          155            2          323            2          136            0           41            0           41
                                 Atlantic.
Harbor seal...................  Western North           61,336            0          345            4          738            8          305            0           91            0           91
                                 Atlantic.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al., 2023); however, in this final rule, NMFS utilized the 2023 draft SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports) were used for the stock abundances.
\b\ The take estimate by Level B harassment for foundation installation via impact pile driving was rounded up to 1 average group size; impact pile driving is scheduled to occur during Year 2
  and Year 3 of the proposed rulemaking. While the foundation installation schedule (table 14) counted the total number of WTGs plus 6 WTGs in the Overlap Area for both Project 1 and Project
  2, the take by Level A harassment or Level B harassment requested (table 17) is based on those 6 WTGs occurring under Project 2; no double counting of take occurred.
\c\ The take estimate by Level B harassment for HRG surveys was rounded up to 1 group size; HRG surveys are planned to occur during the entire 5-year effective period of the rulemaking.
\d\ The take estimate by Level B harassment for temporary cofferdams via vibratory pile driving was rounded up to 1 group size; temporary cofferdam installation and removal is expected to
  occur during Year 1 and 2 of the rulemaking.
\e\ The take estimate by Level B harassment for common dolphins is derived by the daily sighting rate for previous HRG surveys multiplied by the number of HRG survey or pile driving days that
  would occur for each specific activity.


[[Page 78024]]


          Table 23--Total Takes Allowed for the Project Across the 5-Year Effective Period of the Rule
                                 [By Level A harassment and Level B harassment]
----------------------------------------------------------------------------------------------------------------
                                                                   Allowed Level   Allowed Level   5-Year total
     Marine mammal species            Stock         NMFS stock     A harassment    B harassment    allowed take
                                                   abundance \a\        \b\             \b\             \b\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..  Western Atlantic             340               0              25              25
Fin whale *...................  Western North              6,802               8              38              46
                                 Atlantic.
Humpback whale................  Gulf of Maine...           1,396               8              33              41
Minke whale...................  Canadian Eastern          21,968              29             321             360
                                 Coastal.
Sei whale *...................  Nova Scotia.....           6,292               3              25              28
Sperm whale *.................  Western North              5,895               0              15              15
                                 Atlantic.
Atlantic spotted dolphin \c\..  Western North             31,506               0           1,000           1,000
                                 Atlantic.
Atlantic white-sided dolphin    Western North             93,233               2             413             415
 \c\.                            Atlantic.
Bottlenose dolphin............  Western North             64,587               0           8,153           8,153
                                 Atlantic--Offsh
                                 ore.
                                Northern                   6,639               0           3,087           3,087
                                 Migratory
                                 Coastal.
Common dolphin................  Western North             93,100               0             906             906
                                 Atlantic.
Long-finned pilot whale.......  Western North             39,215               0             172             172
                                 Atlantic.
Short-finned pilot whale......  Western North             18,726               0              52              52
                                 Atlantic.
Risso's dolphin...............  Western North             44,067               3             280             283
                                 Atlantic.
Harbor porpoise...............  Gulf of Maine/            85,765              21             338             359
                                 Bay of Fundy.
Gray seal.....................  Western North             27,911               4             696             700
                                 Atlantic.
Harbor seal...................  Western North             61,336              12           1,570           1,582
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al.,
  2023); however, in this final rule, NMFS utilized the 2023 draft SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports) were used for the stock abundances.
\b\ Within the proposed rule (88 FR 65430, September 22, 2023), NMFS had initially used the maximum take that is
  reasonably expected to occur for each of Project 1 and Project 2's buildout; however, given both Projects
  would be constructed, this has been corrected to sum the values.
\c\ During the drafting of the proposed rule (88 FR 65430, September 22, 2023), the total take by Level A
  harassment and Level B harassment was inadvertently flipped between these 2 species. NMFS has fixed that error
  for this final rule.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS assesses the maximum number of marine mammal takes 
that are allowable within any given year (noting that the negligible 
impact determination is also informed by the 5-year take total). For 
this maximum annual take calculation, the maximum allowable number of 
Level A harassment takes in any one year is summed with the maximum 
allowable 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 24). Table 24 also depicts the number of takes 
relative to the abundance of each stock. The takes enumerated here 
represent instances of take (each occurring within one day), not 
necessarily individual marine mammals taken. One take represents a day 
(24-hour period) 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 1 day within the year, or it could represent 
5 individuals each taken on 20 days each 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. Wherever 
there is 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. We recognize that certain activities could shift within 
the 5-year effective period of the rule; however, the rule allows for 
that flexibility and the takes are not expected to exceed those shown 
in table 24 in any one year.

[[Page 78025]]



                                Table 24--Maximum Number of Takes Allowed for the Project in Any One Year Under the Rule
                                                     [By Level A harassment and Level B harassment]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Maximum annual
                                                                                                                            take in any    Total percent
                                                                                                  Maximum      Maximum       one year     stock taken in
            Marine mammal species                           Stock                 NMFS stock       annual       annual    (maximum Level   any one year
                                                                                 abundance \a\    Level A      Level B    A harassment +     based on
                                                                                                 harassment   harassment   maximum Level  maximum annual
                                                                                                                           B harassment)     take \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *.................  Western Atlantic...............             340            0           13              13            3.82
Fin whale *..................................  Western North Atlantic.........           6,802            4           18              22            0.32
Humpback whale...............................  Gulf of Maine..................           1,396            4           17              21            1.50
Minke whale..................................  Canadian Eastern Coastal.......          21,968           17          161             178            0.81
Sei whale *..................................  Nova Scotia....................           6,292            2           11              13            0.21
Sperm whale *................................  Western North Atlantic.........           5,895            0            7               7            0.12
Atlantic spotted dolphin.....................  Western North Atlantic.........          31,506            0          400             400            1.27
Atlantic white-sided dolphin.................  Western North Atlantic.........          93,233            1          207             208            0.22
Bottlenose dolphin...........................  Western North Atlantic--                 64,587            0        3,836           3,836            5.94
                                                Offshore.
                                               Northern Migratory Coastal.....           6,639            0        1,949           1,949           29.36
Common dolphin...............................  Western North Atlantic.........          93,100            0          370             370            0.40
Long-finned pilot whale......................  Western North Atlantic.........          39,215            0           66              66            0.17
Short-finned pilot whale.....................  Western North Atlantic.........          18,726            0           20              20            0.11
Risso's dolphin..............................  Western North Atlantic.........          44,067            2          110             112            0.25
Harbor porpoise..............................  Gulf of Maine/Bay of Fundy.....          85,765           13          191             204            0.24
Gray seal....................................  Western North Atlantic.........          27,911            2          323             325            1.16
Harbor seal..................................  Western North Atlantic.........          61,336            8          738             746            1.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * denotes species listed under the Endangered Species Act.
\a\ In the proposed rule (88 FR 65430, September 22, 2023), NMFS utilized the 2022 final SARs (Hayes et al., 2023); however, in this final rule, NMFS
  utilized the 2023 draft SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports) were used for
  the stock abundances.
\b\ The percentages presented here are simplistic, assuming that each take is of a different individual; however, that is a conservative assessment.

Mitigation

    As described in the Changes From the Proposed to Final Rule 
section, we have made changes to some mitigation measures from the 
proposed rule. These changes are described in detail in the sections 
below. Otherwise, the mitigation requirements have not changed from the 
proposed rule.
    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable adverse impact on the species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of the species or stock 
for taking for certain subsistence uses (the latter is not applicable 
for this action). NMFS' regulations require applicants for ITAs 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 (e.g., likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented (i.e., 
probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (i.e., probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, personnel safety, practicality of implementation, and, in 
the case of a military readiness activity, impact on the effectiveness 
of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous ITAs issued in 
association with in-water construction activities (e.g., soft-start, 
establishing shutdown zones). Additional measures have also been 
incorporated to account for the fact that the construction activities 
would occur offshore. Modeling was performed to estimate harassment 
zones, which were used to inform mitigation measures for the Project's 
activities to minimize Level A harassment and Level B harassment to the 
extent practicable, while providing estimates of the areas within which 
harassment might occur.
    Generally speaking, the mitigation measures considered and required 
here fall into three categories: (1) spatio-temporal (i.e., seasonal 
and daily) work restrictions; (2) real-time measures (i.e., shutdown, 
clearance, and vessel strike avoidance); and (3) noise attenuation/
reduction measures. Spatio-temporal restrictions, such as 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. Such restrictions reduce both 
the number and severity of potential takes and are effective in 
reducing both

[[Page 78026]]

chronic (i.e., longer-term) and acute effects. Real-time measures, such 
as implementation of shutdown and clearance zones, as well as vessel 
strike avoidance measures, are intended to reduce the probability or 
severity of harassment by taking steps in real time once a higher-risk 
scenario is identified (e.g., once animals are detected within an 
impact zone). Noise attenuation measures, such as bubble curtains, are 
intended to reduce the noise at the source, which reduces both acute 
impacts, as well as the contribution to aggregate and cumulative noise 
that may result in chronic impacts.
    Below, we briefly describe the required training, coordination, and 
vessel strike avoidance measures that apply to all specified activities 
and then we describe the measures that apply to specific specified 
activities (i.e., foundation installation, nearshore installation and 
removal activities for cable laying, and HRG surveys). Specific 
requirements can be found in Section 217.304 (Mitigation requirements) 
as found in Part 217--Regulations Governing The Taking And Importing Of 
Marine Mammals at the end of this rulemaking.

Training and Coordination

    NMFS requires all of Project Company 1's employees and contractors 
conducting activities on the water, including, but not limited to, all 
vessel captains and crew to be trained in marine mammal detection and 
identification, communication protocols, and all required measures to 
minimize impacts on marine mammals and support Project Company 1's 
compliance with the LOA, if issued. Additionally, all relevant 
personnel and the marine mammal species monitoring team(s) are required 
to participate in joint, onboard briefings prior to the beginning of 
Project activities. The briefing must be repeated whenever new relevant 
personnel (e.g., new PSOs, construction contractors, relevant crew) 
join the Project before work commences. During this training, Project 
Company 1 is required to instruct all Project personnel regarding the 
authority of the marine mammal monitoring team(s). For example, the HRG 
acoustic equipment operator, pile driving personnel, etc., is required 
to immediately comply with any call for a delay or shut down by the 
Lead PSO. Any disagreement between the Lead PSO and the Project 
personnel must only be discussed after delay or shutdown has occurred. 
In particular, all captains and vessel crew must be trained in marine 
mammal detection and vessel strike avoidance measures to ensure marine 
mammals are not struck by any Project or Project-related vessel.
    Prior to the start of in-water construction activities, 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. Project Company 1 will provide 
documentation of training to NMFS.

North Atlantic Right Whale Awareness Monitoring

    Project Company 1 would be required to use available sources of 
information on North Atlantic right whale presence, including daily 
monitoring of the Right Whale Sightings Advisory System, NMFS' website 
at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, and 
monitoring the U.S. Coast Guard's very high frequency (VHF) Channel 16 
throughout each day to receive notifications of any sightings, and 
information associated with any regulatory management actions (e.g., 
establishment of a zone identifying the need to reduce vessel speeds). 
Maintaining daily awareness and coordination affords increased 
protection of North Atlantic right whales by understanding North 
Atlantic right whale presence in the area through ongoing visual and 
PAM efforts and opportunities (outside of Project Company 1's efforts), 
and allows for planning of construction activities, when practicable, 
to minimize potential impacts on North Atlantic right whales.

Vessel Strike Avoidance Measures

    This final rule contains numerous vessel strike avoidance measures 
that reduce the risk that a vessel and marine mammal could collide. 
While the likelihood of a vessel strike is generally low, they are one 
of the most common ways that marine mammals are seriously injured or 
killed by human activities. Therefore, enhanced mitigation and 
monitoring measures are required to avoid vessel strikes to the extent 
practicable. While many of these measures are proactive intending to 
avoid the heavy use of vessels during times when marine mammals of 
particular concern may be in the area, several are reactive and occur 
when a Project personnel sights a marine mammal. The mitigation 
requirements are described generally here and in detail in the 
regulation text at the end of this final rule (see 50 CFR 217.304(b)). 
Project Company 1 will be required to comply with these measures except 
under circumstances when doing so would create an imminent and serious 
threat to a person or vessel or to the extent that a vessel is unable 
to maneuver and, because of the inability to maneuver, the vessel 
cannot comply.
    While underway, Project Company 1 is required to monitor for, and 
maintain a minimum separation distance from, marine mammals and operate 
vessels in a manner that reduces the potential for vessel strike. 
Regardless of the vessel's size, all vessel operators, crews, and 
dedicated visual observers (i.e., PSO or trained crew member) must 
maintain a vigilant watch for all marine mammals and slow down, stop 
their vessel, or alter course (as appropriate) to avoid striking any 
marine mammal. The dedicated visual observer, equipped with suitable 
monitoring technology (e.g., binoculars, night vision devices), must be 
located at an appropriate vantage point for ensuring vessels are 
maintaining required vessel separation distances from marine mammals 
(e.g., 500 m (1,640 ft) from North Atlantic right whales).
    All Project vessels, regardless of size, must maintain the 
following minimum separation zones: (1) 500 m (1,640 ft) from North 
Atlantic right whales; (2) 500 m (1,640 ft) from ESA-listed large 
whales (i.e., sperm whales, fin whales, sei whales) and any 
unidentifiable large whales; (3) 100 m (328 ft) from non-ESA listed 
large whales (i.e., humpback whale, minke whale); and (4) 50 m (164 ft) 
from all delphinid cetaceans and pinnipeds (an exception is made for 
those species that approach the vessel (i.e., bow-riding dolphins)). If 
any of these species are sighted within their respective minimum 
separation zone, the underway vessel must shift its engine to neutral 
and the engines must not be engaged until the animal(s) has been 
observed to be outside of the vessel's path and beyond the respective 
minimum separation zone. If a North Atlantic right whale is observed at 
any distance by any Project personnel or acoustically detected, Project 
vessels must reduce speeds to 10 kn (11.5 mph). Additionally, in the 
event that any Project-related vessel, regardless of size, observes any 
large whale (other than a North Atlantic right whale) within 500 m 
(1,640 ft) of an underway vessel, the vessel is required to shift 
engines into neutral. The vessel shall remain in neutral until the 
whale has moved beyond 500 m (1,640 ft) and the 10 kn (11.5 mph) speed 
restriction will remain

[[Page 78027]]

in effect as outlined in 50 CFR 217.304(b).
    All of the Project-related vessels are required to comply with 
existing NMFS vessel speed restrictions for North Atlantic right whales 
and the measures within this rulemaking for operating vessels around 
North Atlantic right whales and other marine mammals. When NMFS vessel 
speed restrictions are not in effect and a vessel is traveling at 
greater than 10 kn (11.5 mph), in addition to the required dedicated 
visual observer, Project Company 1 is required to monitor the crew 
transfer vessel transit corridor (the path crew transfer vessels take 
from port to any work area) in real-time with PAM prior to and during 
transits. To maintain awareness of North Atlantic right whale presence, 
vessel operators, crew members, and the marine mammal monitoring team 
will monitor U.S. Coast Guard VHF Channel 16, NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, WhaleAlert, the 
Right Whale Sighting Advisory System (RWSAS), and the PAM system. Any 
marine mammal observed by Project personnel must be immediately 
communicated to any on-duty PSOs, PAM operator(s), and all vessel 
captains. Any North Atlantic right whale or large whale observation or 
acoustic detection by PSOs or PAM operators must be conveyed to all 
vessel captains.
    All vessels will be equipped with an AIS and Project Company 1 must 
report all MMSI numbers to NMFS Office of Protected Resources prior to 
initiating in-water activities. Project Company 1 will submit a North 
Atlantic Right Whale Vessel Strike Avoidance Plan for NMFS review and 
approval at least 180 calendar days prior to commencement of vessel 
use. Project Company 1's compliance with these measures will reduce the 
likelihood of vessel strike to the extent practicable. These measures 
increase awareness of marine mammals in the vicinity of Project vessels 
and require Project vessels to reduce speed when marine mammals are 
detected (by PSOs, PAM, and/or through another source (e.g., RWSAS)) 
and maintain separation distances when marine mammals are encountered. 
While visual monitoring is useful, reducing vessel speed is one of the 
most effective, feasible options available to reduce the likelihood of 
and effects from a vessel strike. Numerous studies have indicated that 
slowing the speed of vessels reduces the risk of lethal vessel 
collisions, particularly in areas where right whales are abundant and 
vessel traffic is common and otherwise traveling at high speeds 
(Vanderlaan and Taggart, 2007; Conn and Silber, 2013; Van der Hoop et 
al., 2014; Martin et al., 2015; Crum et al., 2019).

Seasonal and Daily Restrictions

    Spatio-temporal work restrictions in places where marine mammals 
are concentrated, engaged in biologically important behaviors, and/or 
present in sensitive life stages are effective measures for reducing 
the magnitude and severity of human impacts. Seasonal work restrictions 
provide additional benefits for marine mammals during periods where 
there could be higher occurrence or presence in the Project Area and 
specified geographic area. North Atlantic right whales may be present 
in and around the Project Area throughout the year (e.g., Davis et al., 
2017; Roberts et al., 2023; Salisbury et al., 2015). However, it would 
not be practicable to restrict foundation pile driving year-round. 
Based upon the best scientific information available (Roberts et al., 
2023), the highest densities of North Atlantic right whales in the 
specified geographic region are expected during the months of January 
through April, with densities starting to increase in November and 
taper off in May. Because of this, Project Company 1 planned for, and 
NMFS is requiring, seasonal work restrictions to minimize the risk of 
noise exposure to North Atlantic right whales incidental to certain 
specified activities (i.e., foundation impact pile driving) to the 
extent practicable. These seasonal work restrictions are expected to 
greatly reduce the number of takes of North Atlantic right whales. 
These seasonal restrictions also afford protection to other marine 
mammals that are known to use the Project Area with greater frequency 
(e.g., other baleen whales). The seasonal work restrictions would be 
effective from January 1st through April 30th, with December being 
allowed to complete Project 1 and/or Project 2 within any given year if 
NMFS approves. However, to allow Project Company 1 the ability to 
install the foundations as quickly as possible to shorten the overall 
construction timeframe and thus shorten the time marine mammals may be 
subject to construction-related stressors, pile driving in December may 
occur if necessary to complete Project 1 or Project 2 in any given year 
upon approval by NMFS. For NMFS to fully consider this request, Project 
Company 1 must submit a written request to NMFS Office of Protected 
Resources by October 15th, describing why pile driving in December is 
necessary to complete Project 1 or Project 2 within the calendar year 
including, but not limited to, the following information: (1) 
installation schedule; (2) pile type(s) (i.e., monopile and/or pin 
piles) and the maximum number of piles that are predicted/necessary to 
be installed in December; (3) planned hammer energies planned for use; 
and (4) any planned or additional protective measures that would or 
could be implemented to further reduce impacts to protected species 
during December foundation installation activities. NMFS would consider 
this and all December pile driving requests for the Project, on a case-
by-case basis, alongside submitted PSO and SFV reports that have been 
previously provided by Project Company 1 leading up to the December 
pile driving event(s).
    Project Company 1 has planned to start to construct the cofferdams 
around Q2 (April through June) of 2025, for Project 1, and around Q3 
(July through September) of 2025, for Project 2, with work expected to 
continue into 2026 for removal during the effective period of the 
regulations and LOA (see table 1). However, NMFS is not requiring any 
seasonal restrictions due to the relatively short duration of work and 
low associated impacts to marine mammals. Although North Atlantic right 
whales do migrate in coastal waters, they do not typically migrate very 
close to shore off of New Jersey and/or within New Jersey bays where 
nearshore cable landfall work would be occurring. Given the distance to 
the Level B harassment isopleth is conservatively modeled at 
approximately 11 km (36,089.2 ft), we expect that any exposure to 
vibratory pile driving during cofferdams installation and/or removal 
would be unlikely, and that if exposures occur, they will occur at 
levels closer to the 120-dB Level B harassment threshold and not at 
louder source levels. NMFS is not adding any seasonal restrictions to 
HRG surveys given the limited impacts expected from HRG surveys on 
marine mammals. However, Project Company 1 would be restricted to only 
perform a specific amount of 24-hour survey days using up to three 
survey vessels (assuming each day an individual vessel is operating 
constitutes a day of vessel effort) within any single year, consistent 
with the estimated annual effort assumed in the modeling and take 
calculations (n=60 days, annually). This total effort would not exceed 
the total number of survey days planned during the effective period of 
these regulations and any LOA, if issued (n=300 total days).

[[Page 78028]]

    Furthermore, NMFS is also requiring some time-of-day temporal 
restrictions for some of the specified activities. Within any 24-hour 
period, NMFS proposed that Project Company 1 be limited to installing a 
maximum of two monopile foundations or four pin piles for jacket 
foundations; however, on some days Project Company 1 could install less 
pin piles. NMFS notes that Project Company 1 did request to initiate 
foundation pile driving during nighttime hours (i.e., 1 hour before 
civil sunrise and earlier than 1.5 hours before civil sunset) when 
detection of marine mammals is visually challenging. To date, Project 
Company 1 has not submitted a plan containing the information 
necessary, including evidence, that their proposed monitoring systems 
are capable of detecting marine mammals, particularly large whales, at 
distances necessary to ensure mitigation measures are effective at 
night. In general, the scientific literature on these technologies 
demonstrates there is a high degree of uncertainty in reliably 
detecting marine mammals at distances necessary for this Project; 
however, in the proposed rule (88 FR 65430, September 22, 2023), we did 
request public comments on conditioning the LOA such that nighttime 
pile driving would only be allowed if Project Company 1 submits an 
Alternative Monitoring Plan (AMP) to NMFS for approval, prior to 
foundation pile driving starting, that proves the efficacy of their 
night vision devices (NVDs) (e.g., mounted thermal/infrared (IR) camera 
systems and spotlights, hand-held or wearable night vision devices, 
etc.) in detecting protected marine mammals (refer to the Seasonal and 
Daily Restriction section of the proposed rule (88 FR 65430, September 
22, 2023)). If the AMP does not include a full description of the 
proposed technology, monitoring methodology, and data supporting that 
marine mammals can reliably and effectively be detected within the 
clearance and shutdown zones for monopiles and pin piles before and 
during impact pile driving, nighttime pile driving (unless a pile was 
initiated 1.5 hours prior to civil sunset and will be allowed to 
continue) will not be allowed. This AMP should identify the efficacy of 
the technology at detecting marine mammals in the clearance and 
shutdown zones under all the various conditions anticipated during 
construction, including varying weather conditions, sea states, and in 
consideration of the use of artificial lighting.
    Because of this, until this AMP is submitted for NMFS review and 
approval, under any LOA, if issued, Project Company 1 would be 
restricted to starting impact pile driving of permanent foundations 
during daylight hours, defined as, at the latest, 1.5 hours before 
civil sunset or 1 hour after civil sunrise. If Project Company 1 
chooses to provide an AMP, and NMFS reviews and approves it, any 
subsequent LOA may be further conditioned to allow for nighttime pile 
driving to occur. Upon submittal by Project Company 1 and approval by 
NMFS, any final AMP will be made public on NMFS' website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable). Any and all 
subsequent monitoring reports submitted by Project Company 1 will allow 
NMFS to continue to evaluate the efficacy of the equipment and the 
technology. As stated in the proposed rule, we continue to encourage 
Project Company 1 to further investigate and test advanced technology 
detection systems and to continue discussions with NMFS on this topic.
    Regarding Project Company 1's other construction activities, any 
and all vibratory pile driving associated with cofferdam installation 
and removal would only be able to occur during daylight hours.
    Lastly, given the very small Level B harassment zone associated 
with HRG survey activities and no anticipated or allowed Level A 
harassment, NMFS is not requiring any daily restrictions for HRG 
surveys.
    More information on activity-specific seasonal and daily 
restrictions can be found in the regulatory text at the end of this 
rulemaking.

Noise Abatement Systems

    Project Company 1 is required to employ NAS, also known as noise 
attenuation systems, during all foundation installation to reduce the 
sound pressure levels that are transmitted through the water in an 
effort to reduce ranges to acoustic thresholds and to minimize, to the 
extent practicable, any acoustic impacts resulting from these 
activities. NAS, 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 better and more reliably, particularly 
when deployed with two separate rings (Bellmann, 2014; Koschinski and 
L[uuml]demann, 2013; Nehls et al., 2016). Encapsulated bubble systems 
(i.e., 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.
    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 (19.7-ft) steel monopiles in the North Sea. During 
installation of monopiles (consisting of approximately 8-m (26.3-ft) in 
diameter) for more than 150 WTGs in comparable water depths (>25 m (>82 
ft)) and conditions in Europe indicate that attenuation of 10 dB is 
readily achieved (Bellmann, 2019; Bellmann et al., 2020) using single 
big bubble curtains for noise attenuation. As a double bubble curtain 
is required to be used here (a single bubble curtain is not allowed 
under the framework of this final rule), Project Company 1 is required 
to maintain numerous operational performance standards. These standards 
are defined in the regulatory text at the end of this rulemaking, and 
include, but are not limited to: (1) a requirement that construction 
contractors must train personnel in the proper balancing of airflow to 
the bubble ring; and (2) Project Company 1 must submit a performance 
test and maintenance report to NMFS within 72 hours following the 
performance test.

[[Page 78029]]

Corrections to the attenuation device to meet regulatory requirements 
must occur prior to use during foundation installation activities. In 
addition, a full maintenance check (e.g., manually clearing holes) must 
occur prior to each pile being installed. If Project Company 1 uses a 
noise mitigation device in addition to a double bubble curtain, similar 
quality control measures are required.
    Project Company 1 is required to use at least a double bubble 
curtain. Should the research and development phase of newer systems 
demonstrate effectiveness, as part of adaptive management, Project 
Company 1 may submit data on the effectiveness of these systems and 
request approval from NMFS to use them during foundation installation 
activities in lieu of the double bubble curtain requirement.
    Project Company 1 is required to submit an SFV Plan to NMFS for 
review and approval at least 180 calendar days prior to installing 
foundations. Project Company 1 is also required to submit interim and 
final SFV data results to NMFS and make corrections to the noise 
attenuation systems in the case that any SFV measurements demonstrate 
noise levels are above those modeled, assuming 10 dB. These frequent 
and immediate reports allow NMFS to better understand the sound fields 
to which marine mammals are being exposed and require immediate 
corrective action should they be misaligned with anticipated noise 
levels within our analysis.
    Noise abatement devices are not required during HRG surveys and 
cofferdam (sheet pile) installation and removal. Regarding cofferdam 
sheet pile installation and removal, NAS is not practicable to 
implement due to the physical nature of linear sheet piles and is a low 
risk for impacts to marine mammals due to the short work duration and 
lower noise levels produced during the activities. Regarding HRG 
surveys, NAS cannot practicably be employed around a moving survey 
ship, but Project Company 1 is required to make efforts to minimize 
source levels by using the lowest energy settings on equipment that has 
the potential to result in harassment of marine mammals (i.e., 
sparkers, CHIRPs) and turn off equipment when not actively surveying. 
Overall, minimizing the amount and duration of noise in the ocean from 
any of the Project's activities through use of all means required 
(e.g., noise abatement, turning off power) will effect the least 
practicable adverse impact on marine mammals.

Clearance and Shutdown Zone

    NMFS requires the establishment of both clearance and, where 
technically feasible, shutdown zones during Project activities that 
have the potential to result in harassment of marine mammals. The 
purpose of ``clearance'' of a particular zone is to minimize potential 
instances of auditory injury and more severe behavioral disturbances by 
delaying the commencement of an activity if marine mammals are near the 
activity. The purpose of a shutdown is to prevent a specific acute 
impact, such as auditory injury or severe behavioral disturbance of 
sensitive species, by halting the activity.
    All relevant clearance and shutdown zones during Project activities 
would be monitored by NMFS-approved PSOs and/or PAM operators (as 
applicable and as described in the regulatory text at the end of this 
rulemaking). At least one PAM operator must review data from at least 
24 hours prior to any foundation installation and must actively monitor 
hydrophones for 60 minutes prior to commencement of these activities. 
Any sighting or acoustic detection of a North Atlantic right whale 
triggers a delay to commencing pile driving and shutdown.
    Prior to the start of certain specified activities (i.e., 
foundation installation, temporary cofferdam installation and removal, 
and HRG surveys), Project Company 1 must ensure designated areas (i.e., 
clearance zones; see, tables 25, 26, and 27) are clear of marine 
mammals prior to commencing activities to minimize the potential for 
and degree of harassment. For all WTG, OSS, and Met Tower foundation 
installation, PSOs must visually monitor clearance zones for marine 
mammals for a minimum of 60 minutes, where the zone must be confirmed 
free of marine mammals at least 30 minutes directly prior to commencing 
these activities.
    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 required 
clearance and shutdown zones for large whales are larger than the 
largest modeled acoustic range (R95) distances to 
thresholds corresponding to Level A harassment (SEL and peak). More 
specifically, clearance zones represent the largest Level A harassment 
zone for each species group, plus 20 percent for a minimum of 100 m 
(328 ft) (whichever is greater). Shutdown zones around the permanent 
foundations correspond to the modeled results of the greatest distance 
to the Level A harassment threshold for each species group, assuming 10 
dB of sound attenuation. For any species where the modeling yielded a 
zero or near-zero range (i.e., delphinids and pilot whale spp.), NMFS 
is conservatively requiring a 100 m (328 ft) zone to ensure adequate 
protections are in place. For foundation installation, we are also 
requiring a minimum visibility zone that would extend 1,900 m (6,233.6 
ft) from the pile. This value corresponds to the modeled maximum 
ER95 distances to the Level A harassment threshold 
for low-frequency cetaceans, assuming 10 dB of attenuation. We 
reference the reader to table 25 for the minimum visibility, clearance, 
and shutdown zone distances for permanent foundation installation.
    For cofferdam vibratory pile driving (table 26) and HRG (table 27) 
surveys, monitoring must be conducted for 30 minutes prior to 
initiating activities and the clearance zones must be free of marine 
mammals during that time. HRG surveys also include required vessel 
separation zones, in alignment with the Vessel Strike Avoidance 
requirements (refer back to Vessel Strike Avoidance Measures section 
above, as well as table 27 below).
    For any other in-water construction heavy machinery activities 
(e.g., trenching, cable laying, etc.), if a marine mammal is on a path 
towards or comes within 10 m (32.8 ft) of equipment, Project Company 1 
is required to cease operations until the marine mammal has moved more 
than 10 m on a path away from the activity to avoid direct interaction 
with equipment.
    Once an activity begins, any marine mammal entering their 
respective shutdown zone would trigger the activity to cease. In the 
case of pile driving, the shutdown requirement may be waived if it is 
not practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals, or if the lead engineer determines there 
is pile refusal or pile instability. In situations when shutdown is 
called for during foundation pile driving but Project Company 1 
determines shutdown is not practicable due to aforementioned emergency 
reasons, reduced hammer energy must be implemented when the lead 
engineer determines it is practicable. Specifically, pile refusal or 
pile instability could result in not being able to shut down pile 
driving immediately. Pile refusal occurs when the pile driving sensors 
indicate the pile is approaching refusal, and a shut-down would lead to 
a stuck pile which then poses an imminent risk of injury or loss

[[Page 78030]]

of life to an individual, or risk of damage to a vessel that creates 
risk for individuals. Pile instability occurs when the pile is unstable 
and unable to stay standing if the piling vessel were to ``let go.'' 
During these periods of instability, the lead engineer may determine a 
shut-down is not feasible because the shut-down combined with impending 
weather conditions may require the piling vessel to ``let go'' which 
then poses an imminent risk of injury or loss of life to an individual, 
or risk of damage to a vessel that creates risk for individuals. 
Project Company 1 must document and report to NMFS all cases where the 
emergency exemption is taken.
    After shutdown, foundation pile driving may be reinitiated once all 
clearance zones are clear of marine mammals for the minimum species-
specific periods, or if required to maintain pile stability, at which 
time the lowest hammer energy must be used to maintain stability. If 
pile driving has been shut down due to the presence of a North Atlantic 
right whale, pile driving must not restart until the North Atlantic 
right whale has neither been visually nor acoustically detected for 30 
minutes. Upon re-starting pile driving, soft-start protocols must be 
followed if pile driving has ceased for 30 minutes or longer.
    The clearance and shutdown zone sizes vary by species and are shown 
in tables 25, 26, and 27 for each planned activity. Project Company 1 
is allowed to request modification to these zone sizes pending results 
of SFV (see regulatory text at the end of this rulemaking). Any changes 
to zone size would be part of adaptive management and would require 
NMFS' approval.

     Table 25--Clearance, Shutdown, and Minimum Visibility Zones, in Meters (m), Inclusive of 10 dB of Sound
                                                   Attenuation
----------------------------------------------------------------------------------------------------------------
                               Marine mammal species group-specific zone sizes (m)
-----------------------------------------------------------------------------------------------------------------
          Pile size and type                12-m monopiles           15-m monopiles           5-m pin piles
----------------------------------------------------------------------------------------------------------------
Installation method                                               Impact pile driving
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale--visual        Sighting at any distance from PSOs on pile-driving or dedicated PSO
 clearance/shutdown zone.                                               vessels.
                                      --------------------------------------------------------------------------
North Atlantic right whale--PAM                                         10,000.
 clearance/shutdown zone \a\.
                                      --------------------------------------------------------------------------
Other large whales \a\ \b\...........                  Clearance: 2,300; \c\ Shutdown: 1,900.\d\
                                      --------------------------------------------------------------------------
Delphinids \a\.......................                    Clearance: 100; \c\ Shutdown: 100.\d\
                                      --------------------------------------------------------------------------
Harbor porpoises \a\.................                  Clearance: 1,800; \c\ Shutdown: 1,500.\d\
                                      --------------------------------------------------------------------------
Seals \a\............................                    Clearance: 400; \c\ Shutdown: 350.\d\
                                      --------------------------------------------------------------------------
Minimum visibility zone \e\..........                                    1,900.
                                      --------------------------------------------------------------------------
Distance to Level B harassment                            Monopiles: 8,300; Pin Piles: 5,500.
 threshold (Acoustic ranges (R95%)).
----------------------------------------------------------------------------------------------------------------
\a\ The PAM system used during clearance and shutdown must be designed to detect marine mammal vocalizations,
  maximize baleen whale detections, and must be capable of detecting North Atlantic right whales at 10 km (6.2
  mi) for pin piles and monopile installations, respectively. NMFS recognizes that detectability of each
  species' vocalizations will vary based on vocalization characteristics (e.g., frequency content, source
  level), acoustic propagation conditions, and competing noise sources), such that other marine mammal species
  (e.g., harbor porpoise) may not be detected at 10 km (6.2 mi).
\b\ This category is inclusive of all non-North Atlantic right whale ESA-listed species (i.e., sperm whales, fin
  whales, and sei whales) as well as non-ESA listed large whales (i.e., humpback whale and minke whales).
\c\ The clearance zone is equal to the maximum Level A harassment distance for each species group, assuming 10
  dB of attenuation (refer back to table 11), plus 20 percent or a minimum of 100 m (328 ft) or anywhere within
  the double bubble curtain system, whichever is greater, and rounded up for PSO clarity. Any animal(s) detected
  visually or acoustically within the clearance zone triggers a delay to commencement of pile driving.
\d\ The shutdown zone is equal to the maximum Level A harassment distance for each species group, assuming 10 dB
  of attenuation (refer back to table 11) or a minimum of 100 m (328 ft) or anywhere within the double bubble
  curtain system, whichever is greater, and rounded up for PSO clarity. Any animal(s) detected visually or
  acoustically within the shutdown zone triggers a shutdown of pile driving.
\e\ PSOs must be able to visually monitor the entire minimum visibility zone. The minimum visibility zone is
  equal to the largest modeled ER95% distances to the Level A harassment threshold for low-frequency cetaceans
  (i.e., fin whale (sei whale proxy) at 1.90 km), assuming 10 dB of attenuation (refer back to table 11) and
  rounded up for PSO clarity.


 Table 26--Distances to Mitigation Zones During Nearshore Cable Landfall
                               Activities
                         [Temporary cofferdams]
------------------------------------------------------------------------
                                        Specific zone sizes (m)
    Marine mammal species    -------------------------------------------
                                 Clearance zone         Shutdown zone
------------------------------------------------------------------------
North Atlantic right whale--                   100                   100
 visual detection...........
All other large marine                         100                   100
 mammals....................
Delphinids and pilot whale..                    50                    50
Harbor porpoise.............               \a\ 540               \a\ 540
Seals.......................                    60                    60
------------------------------------------------------------------------
\a\ Harbor porpoises are unlikely to be present in the nearshore
  environment.


[[Page 78031]]


                           Table 27--Distances to Mitigation Zones During HRG Surveys
----------------------------------------------------------------------------------------------------------------
                                                                        Specific zone sizes (m)
                                                     -----------------------------------------------------------
                Marine mammal species                   Clearance zone                        Vessel separation
                                                             \a\           Shutdown zone            zone
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale and unidentifiable large                 500                500                   500
 whales.............................................
Other ESA-listed large whale species \b\............                500                100                   500
Other Non-ESA-listed large whale species \c\........                500                100                   100
Other marine mammals \d\............................                100                100                    50
----------------------------------------------------------------------------------------------------------------
\a\ For HRG surveys, Project Company 1 did not propose clearance zones, although they are referenced in the ITA
  application and in their Protected Species Management and Equipment Specifications Plan (PSMESP). Because of
  this, NMFS instead proposes Clearance Zones of 500 m (1,640 ft; for North Atlantic right whales), 500 m (1,640
  ft; for all other ESA-listed species); and 100 m (328 ft; for all other marine mammals, with exceptions noted
  for specific bow-riding delphinids). These zones are considered for protection for protected species, given
  the extensive vessel presence in and around the Project Area.
\b\ This consists of fin, sei, and sperm whales and was updated to align with the final Biological Opinion.
\c\ This consists of minke and humpback whales and was updated to align with the final Biological Opinion.
\d\ This is applicable to all delphinid cetaceans, harbor porpoises, and pinnipeds, with the exception of
  delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.

Soft-Start and Ramp-Up

    The use of a soft-start or ramp-up procedure is believed to provide 
additional protection to marine mammals by warning them or providing 
them with a chance to leave the area prior to the hammer or HRG 
equipment operating at full capacity. Soft-start typically involves 
initiating hammer operation at a reduced energy level (relative to full 
operating capacity) followed by a waiting period. Project Company 1 
must utilize a soft-start protocol for pile driving of foundation piles 
(monopiles and pin piles). Typically, NMFS requires a soft-start 
procedure of the applicant performing 4 to 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 and 
installation conditions; therefore, soft-start would generally use the 
lowest percentage of the maximum hammer energy necessary to avoid 
damage to the hammer and maintain pile stability. Project Company 1 
will reduce energy based on consideration of site-specific soil 
properties and other relevant operational considerations. The final 
methodology will be developed by Project Company 1 considering final 
design details, including site-specific soil properties and other 
considerations, and will be incorporated into the LOA, if issued. 
Project Company 1, with approval from NMFS, may also modify the soft-
start procedures through adaptive management.
    HRG survey operators are required to ramp-up sources when the 
acoustic sources are used unless the equipment operates on a binary on/
off switch. The ramp-up would involve starting from the smallest 
setting to the operating level over a period of approximately 30 
minutes. No soft-start or ramp-up is required for nearshore cable 
landfall activities given the type of activity (i.e., vibratory pile 
driving for cofferdams).
    Where required, soft-start and ramp-up will be required at the 
beginning of each day's activity and at any time following a cessation 
of activity of 30 minutes or longer. Prior to soft-start or ramp-up 
beginning, the operator must receive confirmation from the PSO that the 
clearance zone is clear of any marine mammals.

Fishery Monitoring Surveys

    While the likelihood of Project Company 1's fishery monitoring 
surveys impacting marine mammals is minimal, NMFS requires Project 
Company 1 to adhere to gear and vessel mitigation measures to reduce 
potential impacts to the extent practicable. In addition, all crew 
undertaking the fishery monitoring survey activities are required to 
receive protected species identification training prior to activities 
occurring and attend the aforementioned onboarding training. The 
specific requirements that NMFS has set for the fishery monitoring 
surveys can be found in the regulatory text at the end of this 
rulemaking.
    Based on our evaluation of the mitigation measures, as well as 
other measures considered, NMFS has determined that these measures will 
provide the means of affecting the least practicable adverse impact on 
the affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    As noted in the Changes From the Proposed to Final Rule section, we 
have added, modified, or clarified a number of monitoring and reporting 
measures since the proposed rule. These changes are described in detail 
in the sections below and, otherwise, the marine mammal monitoring and 
reporting requirements have not changed since the proposed rule.
    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104 (a)(13) indicate that 
requests for ITAs must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (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

[[Page 78032]]

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 planned activities, visual monitoring by NMFS-approved 
PSOs would be conducted before, during, and after all impact pile 
driving, vibratory pile driving, and HRG surveys. PAM would also be 
conducted during foundation pile driving. Visual observations and 
acoustic detections would be used to support the activity-specific 
mitigation measures (e.g., clearance zones). To increase understanding 
of the impacts of the activity on marine mammals, PSOs must record all 
incidents of marine mammal occurrence at any distance from the 
foundation piling locations and near the HRG acoustic sources. PSOs 
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 the 
aforementioned activities, followed by activity-specific monitoring 
requirements.

Protected Species Observer (PSO) and Passive Acoustic Monitoring (PAM) 
Operator Requirements

    Project Company 1 is required to employ NMFS-approved PSOs and PAM 
operators. PSOs are trained professionals who are tasked with visual 
monitoring for marine mammals during pile driving and HRG surveys. The 
primary purpose of a PSO is to carry out the monitoring, collect data, 
and, when appropriate, call for the implementation of mitigation 
measures. In addition to visual observations, NMFS requires Project 
Company 1 to conduct PAM by PAM operators during foundation pile 
driving and vessel transit. The inclusion of PAM, which would be 
conducted by NMFS-approved PAM operators, following a standardized 
measurement, processing methods, reporting metrics, and metadata 
standards for offshore wind, 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 (e.g., Barlow and 
Taylor, 2005; Clark et al., 2010; Gerrodette et al., 2011; Van Parijs 
et al., 2021). Acoustic monitoring (in addition to visual monitoring) 
increases the likelihood of detecting marine mammals within the 
shutdown and clearance zones of Project activities, which when applied 
in combination with required shutdowns helps to further reduce the risk 
of marine mammals being exposed to sound levels that could otherwise 
result in acoustic injury or more intense behavioral harassment.
    The exact configuration and number of PAM systems depends on the 
size of the zone(s) being monitored, the amount of noise expected in 
the area, and the characteristics of the signals being monitored. More 
closely spaced hydrophones would allow for more directionality, and 
perhaps, range to the vocalizing marine mammals; however, this approach 
would add additional costs and greater levels of complexity to the 
Project. Larger baleen cetacean species (i.e., mysticetes), which 
produce loud and lower-frequency vocalizations, may be able to be heard 
with fewer hydrophones spaced at greater distances. However, smaller 
cetaceans (e.g., mid-frequency delphinids (odontocetes)) may 
necessitate more hydrophones and to be spaced closer together given the 
shorter range of the shorter, mid-frequency acoustic signals (e.g., 
whistles and echolocation clicks). As there are no ``perfect fit'' 
single-optimal-array configurations, these set-ups would need to be 
considered on a case-by-case basis.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers, but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and trainer requirements referenced below and further 
specified in the regulatory text at the end of this rulemaking.
    NMFS will provide PSO and PAM operator approvals in the context of 
the need to ensure that PSOs and PAM operators have the necessary 
training and/or experience to carry out their duties competently. In 
order for PSOs and PAM operators to be approved, NMFS must review and 
approve PSO and PAM operator resumes indicating successful completion 
of an acceptable training course. PSOs and PAM operators must have 
previous experience observing marine mammals and must have the ability 
to work with all required and relevant software and equipment. NMFS may 
approve PSOs and PAM operators as conditional or unconditional. A 
conditional approval may be given to one who is trained but has not yet 
attained the requisite experience. An unconditional approval is given 
to one who is trained and has attained the necessary experience. The 
specific requirements for conditional and unconditional approval can be 
found in the regulatory text at the end of this rulemaking.
    Conditionally-approved PSOs and PAM operators would be paired with 
an unconditionally-approved PSO (or PAM operator, as appropriate) to 
ensure that the quality of marine mammal observations and data 
recording is kept consistent. Additionally, activities requiring PSO 
and/or PAM operator monitoring must have a lead on duty. The visual PSO 
field team, in conjunction with the PAM team (i.e., marine mammal 
monitoring team), would have a lead member (designated as the ``Lead 
PSO'') who would be required to meet the unconditional approval 
standard.
    Although PSOs and PAM operators must be approved by NMFS, third-
party observer providers and/or companies seeking PSO and PAM operator 
staffing should expect that those having satisfactorily completed 
acceptable training and with the requisite experience (if required) 
will be quickly approved. Project Company 1 is required to request PSO 
and PAM operator approvals 60 business days prior to those personnel 
commencing work. An initial list of previously approved PSO and PAM 
operators must be submitted by Project Company 1 at least 30 business 
days prior to the start of the Project. Should Project Company 1 
require additional PSOs or PAM operators throughout the Project, 
Project Company 1 must submit a subsequent list of pre-approved PSOs 
and PAM operators to NMFS at least 15 business days prior to planned 
use of that PSO or PAM operator. A PSO may be trained and/or 
experienced as both a PSO and PAM operator and may perform either duty, 
pursuant to scheduling requirements (and vice versa).
    A minimum number of PSOs would be required to actively observe for 
the presence of marine mammals during certain Project activities with 
more PSOs required as the mitigation zone sizes increase. A minimum 
number of PAM operators would be required to actively monitor for the 
presence of

[[Page 78033]]

marine mammals during foundation installation. The types of equipment 
required (e.g., big eyes on the pile driving vessel) are also designed 
to increase marine mammal detection capabilities. Specifics on these 
types of requirements can be found in the regulations at the end of 
this rulemaking. In summary, at least three PSOs and one PAM operator 
per acoustic data stream (equivalent to the number of acoustic buoys) 
must be on-duty and actively monitoring per platform during foundation 
installation; at least two PSOs must be on duty during cable landfall 
construction vibratory pile installation and removal (temporary 
cofferdams); at least one PSO must be on-duty during HRG surveys 
conducted during daylight hours; and at least two PSOs must be on-duty 
during HRG surveys conducted during nighttime.
    In addition to monitoring duties, PSOs and PAM operators are 
responsible for data collection. The data collected by PSO and PAM 
operators and subsequent analysis provide the necessary information to 
inform an estimate of the amount of take that occurred during the 
Project, better understand the impacts of the Project on marine 
mammals, address the effectiveness of monitoring and mitigation 
measures, and to adaptively manage activities and mitigation in the 
future. Data reported includes information on marine mammal sightings, 
activity occurring at time of sighting, monitoring conditions, and if 
mitigative actions were taken. Specific data collection requirements 
are contained within the regulations at the end of this rulemaking.
    Project Company 1 is required to submit a Pile Driving Marine 
Mammal Monitoring Plan and a PAM Plan to NMFS for review and approval 
at least 180 calendar days in advance of foundation installation 
activities. The Plan must include details regarding PSO and PAM 
protocols and equipment proposed for use. More specifically, the PAM 
Plan must include a description of all proposed PAM equipment, address 
how the proposed PAM must follow standardized measurements, processing 
methods, reporting metrics, and metadata standards for offshore wind as 
described in NOAA and BOEM Minimum Recommendations for Use of Passive 
Acoustic Listening Systems in Offshore Wind Energy Development 
Monitoring and Mitigation Programs (Van Parijs et al., 2021). NMFS must 
approve the Plan prior to foundation installation activities 
commencing. Specific details on NMFS' PSO or PAM operator 
qualifications and requirements can be found in Part 217--Regulations 
Governing The Taking And Importing Of Marine Mammals at the end of this 
rulemaking.
    Additional information can be found in Project Company 1's 
Protected Species Management and Equipment Specifications Plan (PSMESP; 
appendix E) found on NMFS' website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Sound Field Verification (SFV)

    Project Company 1 must conduct thorough SFV measurements for all 
foundation pile-driving activities associated with the installation of, 
at minimum, the first three monopile foundations, and for the first 
three full three jacket foundations used for OSS (inclusive of all pin 
piles for each OSS foundation). If monopiles are instead installed for 
OSSs, the first three monopiles for OSSs must have SFV conducted. SFV 
measurements must continue until at least three monopiles for WTGs and 
three entire jacket foundations (inclusive of all pin piles for a given 
OSS foundation), or three monopiles for OSS foundations (if these are 
used instead) demonstrate distances to thresholds are at or below those 
modeled, assuming 10 dB of attenuation. Subsequent SFV measurements are 
also required should pile specifications be different from what was 
analyzed here (e.g., 12-m (39.37-ft) versus 15-m (49.21-ft) diameter 
monopiles, different sized jacket pin piles (5-m (16.4-ft)), etc.), or 
if additional piles are driven that are anticipated to produce longer 
distances to harassment isopleths than those previously measured (e.g., 
higher hammer energy, greater number of strikes, etc.). These 
recordings must be continuous through the duration of all pile driving 
of each foundation.
    Additionally, in alignment with the final Biological Opinion, 
Project Company 1 is required to undertake abbreviated SFV monitoring, 
which consists of a single acoustic recorder and a bottom and midwater 
hydrophone which are placed at an appropriate distance from the pile. 
This must be undertaken for all pile driven foundation installation 
(monopile and jacket foundations) for which thorough SFV is not carried 
out. The abbreviated SFV is intended to provide a means of monitoring 
attenuated sound produced during pile driving and to provide an 
indication of whether sound is louder than anticipated, which can allow 
for adjustments to be made to noise attenuation measures or pile 
driving operations. If results of the abbreviated SFV monitoring 
indicate that distances to the identified Level A harassment and Level 
B harassment thresholds for marine mammals may have been exceeded 
during the pile driving event, Project Company 1 is required to notify 
NMFS Office of Protected Resources and NMFS GARFO as soon as possible 
after receiving such results. Results of abbreviated SFV monitoring 
must be included in the weekly pile driving reports. If exceedance 
occurs, the weekly report must include an explanation of suspected or 
identified factors that contributed to the potential exceedance and a 
description of corrective actions that were taken, or planned to be 
taken, to avoid potential exceedance on subsequent piles, or an 
explanation if no such actions are available. NMFS may require 
additional actions be undertaken, including but not limited to: 
adjustments or additions to the noise attenuation system or pile 
driving operations, and/or additional thorough SFV monitoring.
    The measurements and reporting associated with SFV (thorough/
complete and abbreviated) can be found in the regulatory text at the 
end of this rulemaking. The requirements are extensive to ensure 
monitoring is conducted appropriately and the reporting frequency is 
such that Project Company 1 is required to make adjustments quickly 
(e.g., ensure bubble curtain hose maintenance, check bubble curtain air 
pressure supply, add additional sound attenuation, etc.) to ensure 
marine mammals are not experiencing noise levels above those considered 
in this analysis. For recommended SFV protocols for impact pile 
driving, please consult the ISO 18406 Underwater acoustics--Measurement 
of radiated underwater sound from percussive pile driving 
(International Organization for Standardization, 2017).

Reporting

    Prior to any construction activities occurring, Project Company 1 
would provide a report to NMFS Office of Protected Resources that 
demonstrates that all Project Company 1 personnel, including the vessel 
crews, vessel captains, PSOs, and PAM operators have completed all 
required trainings.
    NMFS would require standardized and frequent reporting from Project 
Company 1 during the life of the regulations and LOA. All data 
collected relating to the Project would be recorded using industry-
standard software (e.g., Mysticetus or a similar software) installed on 
field laptops and/or tablets. Project Company 1 is required

[[Page 78034]]

to submit weekly, monthly, annual, and situational reports. The 
specifics of what we require to be reported can be found in the 
regulatory text at the end of this final rule.
    Weekly Report--During foundation installation activities, Project 
Company 1 would be required to compile and submit weekly marine mammal 
monitoring reports for foundation installation pile driving to NMFS 
Office of Protected Resources that document the daily start and stop of 
all pile-driving activities, the start and stop of associated 
observation periods by PSOs, details on the deployment of PSOs, a 
record of all detections of marine mammals (acoustic and visual), any 
mitigation actions (or if mitigation actions could not be taken, 
provide reasons why), and details on the NAS(s) (e.g., system type, 
distance deployed from the pile, bubble rate, etc.). The weekly reports 
are also required to identify which turbines become operational and 
when (a map must be provided). Once all foundation pile installation is 
complete, weekly reports would no longer be required.
    Monthly Report--Project Company 1 is required to compile and submit 
monthly reports to NMFS Office of Protected Resources that include a 
summary of all information in the weekly reports, including Project 
activities carried out in the previous month, vessel transits (number, 
type of vessel, and route), number of piles installed, all detections 
of marine mammals, and any mitigative actions taken. The monthly report 
would also identify which turbines become operational and when (a map 
must be provided). Once all foundation pile installation is complete, 
monthly reports would no longer be required.
    Annual Reporting--Project Company 1 is required to submit an annual 
marine mammal monitoring (both PSO and PAM) report to NMFS Office of 
Protected Resources, describing, in detail, all of the information 
required in the monitoring section above.
    Final 5-Year Reporting--Project Company 1 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. Information contained 
within this report is described at the beginning of this section.
    Situational Reporting--Specific situations encountered during the 
development of the Project require immediate reporting. For instance, 
if a North Atlantic right whale is observed at any time by PSOs or 
Project personnel, the sighting must be immediately (if not feasible, 
as soon as possible and no longer than 24 hours after the sighting) 
reported to NMFS Office of Protected Resources. If a North Atlantic 
right whale is acoustically detected at any time via a Project-related 
PAM system, the detection must be reported as soon as possible and no 
longer than 24 hours after the detection to NMFS via the 24-hour North 
Atlantic right whale Detection Template (see https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting 
PAM detections via the template.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting would be reported to 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, Project Company 1 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. Project Company 1 may not resume their 
activities until notified by NMFS Office of Protected Resources.
    In the event of a vessel strike of a marine mammal by any vessel 
associated with the Project, Project Company 1 must immediately report 
the strike incident. If the strike occurs in the Greater Atlantic 
Region (Maine to Virginia), Project Company 1 must call the NMFS 
Greater Atlantic Stranding Hotline. Separately, Project Company 1 must 
also and immediately report the incident to NMFS Office of Protected 
Resources and NMFS GARFO. Project Company 1 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. Project Company 1 may not resume their 
activities until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Project Company 1 must report to NMFS GARFO as soon as possible or 
within 24 hours of the documented time of missing or lost gear. This 
report must include information on any markings on the gear and any 
efforts undertaken or planned to recover the gear.
    The specifics of what NMFS Office of Protected Resources requires 
to be reported is listed at the end of this rulemaking in the 
regulatory text.
    Sound Field Verification--Project Company 1 is required to submit 
interim SFV reports after each foundation installation as soon as 
possible but within 48 hours. A final SFV report for all foundation 
installations would be required within 90 calendar days following 
completion of acoustic monitoring.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Project Company 1's construction activities contain an adaptive 
management component. Our understanding of the effects of offshore wind 
construction activities (e.g., acoustic stressors) on marine mammals 
continues to evolve (quickly, given the pace of offshore wind 
development), which makes the inclusion of an adaptive management 
component both valuable and necessary within the context of 5-year 
regulations.
    The monitoring and reporting requirements in this final rule 
provide NMFS with information that helps us to better understand the 
impacts of the Project's activities on marine mammals and informs our 
consideration of whether any changes to mitigation and monitoring are 
appropriate.
    The use of adaptive management allows NMFS to consider new 
information and modify mitigation, monitoring, or reporting 
requirements, as appropriate, with input from Project Company 1 
regarding practicability, if such modifications will have a reasonable 
likelihood of more effectively accomplishing the goal of the measures. 
The following are some of the possible sources of new information to be 
considered through the adaptive management process: (1) results from 
monitoring reports, including the weekly, monthly, situational, and 
annual reports required; (2) results from 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 allowed authorized 
by these regulations or subsequent LOA,

[[Page 78035]]

respectively. During the course of the rule, Project Company 1 (and 
other LOA Holders conducting offshore wind development activities) are 
required to participate in one or more adaptive management meetings 
convened by NMFS and/or BOEM, in which the above information will be 
summarized and discussed in the context of potential changes to the 
mitigation or monitoring measures.
    As described previously, the analysis herein has used the best 
available science to assess the impacts of the Project's activities and 
to identify appropriate mitigation and monitoring measures, while 
acknowledging the uncertainty inherent in certain input values (e.g., 
source levels and spectra) and the environmental variability present in 
real-life physical and biological systems. As other companies using 
similar methods to install wind turbines on the U.S. East Coast 
continue to report their monitoring results, we continue to learn more 
about the nature of the environmental variability likely to be 
encountered in offshore wind construction, as well as the ways in which 
it may be necessary to vary equipment or operational parameters to 
address real-life conditions encountered during construction. 
Accordingly, the adaptive management provisions also include the 
ability to modify the LOA at the request of the company and with public 
notice and comment, where appropriate, provided certain findings are 
made, and we emphasize the importance of discussing and requesting any 
such modifications as early as possible and prior to the modification 
being needed.

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, Level A harassment and Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    In the Estimated Take section, we discuss the estimated maximum 
number of takes by Level A harassment and Level B harassment that are 
reasonably expected to occur incidental to Project Company 1's 
specified activities based on the methods described. The impact that 
any given take would have is dependent on many case-specific factors 
that need to be considered in the negligible impact analysis (e.g., the 
context of behavioral exposures such as duration or intensity of a 
disturbance, the health of impacted animals, the status of a species 
that incurs fitness-level impacts to individuals, etc.). In this final 
rule, we evaluate the likely impacts of the enumerated harassment takes 
that are allowed 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 allowed for any 
species or stock.
    The Description of the Specified Activities section of this 
preamble describes Project Company 1's specified activities that may 
result in take of marine mammals and an estimated schedule for 
conducting those activities. Project Company 1 has provided a realistic 
construction schedule (e.g., Project Company 1's schedule reflects the 
maximum number of piles they anticipate to be able to drive each month 
in which pile driving is able to occur), although we recognize 
schedules may shift for a variety of reasons (e.g., weather or supply 
delays). However, the total number of takes would not exceed the 5-year 
totals and maximum annual allowable totals indicated in tables 23 and 
24, respectively.
    We base our analysis and negligible impact determination on the 
maximum number of takes that are allowed annually and across the 
effective period of these regulations and extensive qualitative 
consideration of other contextual factors that influence the degree of 
impact of the takes on the affected individuals and the number and 
context of the individuals affected. As stated before, the number of 
takes, both annual and 5-year total take, that are reasonably expected 
to occur, are only a part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in table 2, given that some of the anticipated 
effects of Project Company 1'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 (e.g., 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 Project Company 1's activities, and then providing species- 
or stock-specific information, allows us to avoid duplication while 
ensuring that we have analyzed the effects of the specified activities 
on each affected species or stock. It is important to note that in the 
group or species sections, we base our negligible impact analysis on 
the maximum allowable annual take and the 5-year total allowable take; 
however, the majority of the impacts are associated with WTG, OSS, and 
Met Tower foundation installation, which is scheduled to occur largely 
within the first 3 years (2025, 2026, and 2027; see table 1) of the 
effective period of these regulations. 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 22, 23, and 
24).
    As described previously, no serious injury or mortality is 
anticipated or allowed in this rule. Any Level A harassment allowed 
would be in the form of auditory injury (i.e., PTS). The number of 
takes by harassment Project Company 1 has requested, and NMFS may 
authorize, in a LOA is based on exposure models that consider the

[[Page 78036]]

outputs of acoustic source and propagation models. Several conservative 
parameters and assumptions are ingrained into the models, such as 
assuming forcing functions that consider direct contact with piles 
(i.e., no cushion allowances), and no consideration to the benefits of 
mitigation measures (other than 10 dB sound attenuation and seasonal 
restrictions) or an avoidance response. The number of takes requested 
and may be authorized in a LOA also reflects careful consideration of 
other data (e.g., group size data, PSO data). For all species, the 
number of takes allowed represents the maximum amount of Level A 
harassment and Level B harassment that is reasonably expected to occur.

Behavioral Disturbance

    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for a longer duration (though this is in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (DeRuiter and Doukara, 2012; Falcone et 
al., 2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section of the proposed rule (88 FR 65430, September 22, 
2023), the intensity and duration of any impact resulting from exposure 
to Project Company 1'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 Project Company 1'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 exposure 
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. Such severe behavioral effects are expected to 
occur infrequently due to extensive mitigation and monitoring measures 
included in this rule.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (i.e., 24-hour cycle). 
Behavioral reactions to noise exposure, when taking place in a 
biologically important context, such as disruption of critical life 
functions, displacement, or avoidance of important habitat, are more 
likely to be significant if they last more than 1 day or recur on 
subsequent days (Southall et al., 2007) due to diel and lunar patterns 
in diving and foraging behaviors observed in many cetaceans (Baird et 
al., 2008; Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 
2014). It is important to note the water depths in the Project Area are 
relatively shallow (i.e., ranging between 19 to 37 m (62 to 121 ft) in 
the Lease Areas, 0 to 22 m (0 to 72 ft) in the Atlantic City export 
cable route, and 0 to 30 m (0 to 98 ft) in the Monmouth export cable 
route) 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 note that the estimated number of takes 
does not necessarily equate to the number of individual animals Project 
Company 1 expects to harass (which is lower) but rather to the 
instances of take (i.e., exposures above the Level B harassment 
thresholds) that may occur. These instances may represent either brief 
exposures (e.g., HRG surveys), or, in some cases, longer durations of 
exposure within a day (e.g., pile driving). Some members of a species 
or stock may experience one exposure as they move through an area while 
other individuals of a species may experience recurring instances of 
take over multiple concurrent or non-concurrent days throughout the 
year, in which case the number of individuals taken is smaller than the 
total estimated takes. For species that are more likely to be migrating 
through the area (e.g., North Atlantic right whales) and/or for which 
only a comparatively smaller number of takes are predicted (e.g., some 
of the mysticetes), it is more likely that each take represents a 
different individual whereas for non-migrating species (e.g., 
delphinids) 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 Project Company 1, 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, HRG 
surveys). Impact pile driving has higher source levels and longer 
durations (on an annual basis) than vibratory pile driving and HRG 
surveys. HRG survey equipment also produces much higher frequencies 
than pile driving, resulting in minimal sound propagation and 
associated exposure. While impact pile driving for foundation 
installation is anticipated to be most impactful for these reasons, 
impacts are minimized, to the extent practicable, through 
implementation of mitigation measures, including use of a

[[Page 78037]]

sound attenuation system, soft-starts, the implementation of clearance 
zones that would facilitate a delay to pile-driving commencement, and 
implementation of shutdown zones. For example, given sufficient notice 
through the use of soft-start, marine mammals are expected to move away 
from a sound source that is disturbing prior to becoming exposed to 
very loud noise levels. Moreover, impact pile driving would not be 
occurring all day or every day during the pile driving season. 
Furthermore, comprehensive monitoring efforts, completed through both 
visual observations and PAM using trained and qualified observers and 
monitors, would provide sufficient awareness of any animals within the 
relevant pile driving zones. The requirement to couple visual 
monitoring and PAM before and during all foundation installation will 
increase the overall capability to detect marine mammals compared to 
one method alone (e.g., Van Parijs et al., 2021).
    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, 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 Project Company 1's activities and, as described 
earlier, the allowed takes by Level B harassment may represent takes in 
the form of behavioral disturbance, TTS, or both. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section of the proposed rule (88 FR 65430, September 22, 2023), 
in general, TTS can last from a few minutes to days, be of varying 
degree, and occur across different frequency bandwidths, all of which 
determine the severity of the impacts on the affected individual, which 
can range from minor to more severe. Impact and vibratory pile driving 
generate sounds in the lower frequency ranges (with most of the energy 
below 1-2 kHz but with a small amount energy ranging up to 20 kHz); 
therefore, in general and all else being equal, we anticipate the 
potential for TTS is higher in low-frequency cetaceans (i.e., 
mysticetes) than other marine mammal hearing groups and is more likely 
to occur in frequency bands in which they communicate. For the Project, 
vibratory pile driving is only expected to occur related to the 
nearshore cable landfall activities at both the Atlantic City and 
Monmouth cable landfall sites. Given the proximity to shore and the 
shallower waters, it is unlikely that many large whales consisting of 
low-frequency specialists would spend a significant portion of time in 
this nearshore environment. Furthermore, although the potential for TTS 
may be higher for low frequency cetaceans (mysticetes) than other 
marine mammal hearing groups, table 18 demonstrates that the maximum 
distance to the Level A harassment threshold from nearshore cable 
landfall activities is 65 m (213.3 ft), which is comprehensively 
covered by the distances required for both clearance and shutdown of 
this activity (100 m (328 ft)), per table 26. 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 Project Company 1's pile driving activities would not 
typically span the entire frequency range of one vocalization type, 
much less span all types of vocalizations or other critical auditory 
cues for any given species. The required mitigation measures further 
reduce the potential for TTS for all species.
    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). However, in general, an animal would have to approach closer 
to the source or remain in the vicinity of the sound source appreciably 
longer to increase the received SEL, which would be unlikely 
considering the required mitigation and the nominal speed of the 
receiving animal relative to the stationary sources such as impact pile 
driving. The recovery time of TTS is also of importance when 
considering the potential impacts from TTS. In TTS laboratory studies 
(as discussed in the Potential Effects of the Specified Activities on 
Marine Mammals and their Habitat section of the proposed rule (88 FR 
65430, September 22, 2023)), 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 while the pile-driving activities 
may 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. The use of soft-start further reduces the potential for TTS 
by allowing the animal time to move away from the source prior to 
engaging in higher or full power levels. 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)

    NMFS is authorizing a very limited number (i.e., single digits 
annually) of takes by PTS to some marine mammal individuals. The 
numbers of allowed annual takes by Level A harassment are relatively 
low for all marine mammal stocks and species (see table 23). The only 
activity incidental to which we anticipate PTS may occur is impact pile 
driving, which produces sounds that are both impulsive and primarily 
concentrated in the lower frequency ranges (i.e., below 1 kHz) (David, 
2006; Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one instance of PTS 
being induced in older harbor seals (Reichmuth et al., 2019). However, 
available TTS data (of mid-frequency hearing specialists exposed to 
mid- or high-frequency sounds (Southall et al., 2007; NMFS, 2018; 
Southall et al., 2019)) suggest that most threshold shifts occur in the 
frequency range of the source up to one octave higher than the source. 
We 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.
    Any PTS incurred from these activities would consist of minor

[[Page 78038]]

degradation of hearing capabilities occurring predominantly at 
frequencies one-half to one octave above the frequency of the energy 
produced by pile driving (i.e., the low-frequency region below 2 kHz) 
(Cody and Johnstone, 1981; McFadden, 1986; Finneran, 2015), which is 
not severe hearing impairment. If hearing impairment occurs from impact 
pile driving, it is most likely that the affected animal would lose a 
few decibels in its hearing sensitivity, which in most cases is not 
likely to meaningfully affect its ability to forage and communicate 
with conspecifics. Given sufficient notice through use of soft-start 
prior to implementation of full hammer energy during impact pile 
driving, marine mammals are expected to move away from a sound source 
that is disturbing prior to it resulting in severe PTS. For these 
reasons, any PTS incurred as a result of exposure to these activities 
is not expected to impact the reproduction or survival of any 
individuals.

Auditory Masking or Communication Implications

    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, 
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. 
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 for this Project has indicated, we expect that 
impact pile driving foundations have the greatest potential to mask 
marine mammal signals, and this pile driving may occur for several 
hours per day, for multiple days from May 1st to December 31st most 
likely in Years 2 and 3. 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, as described in the Potential 
Effects of the Specified Activities on Marine Mammals and their Habitat 
section of the proposed rule, 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 Project Company 1's activities, paired with habitat use 
patterns by marine mammals, does not support a finding of high 
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 may result in fish and invertebrate 
mortality or injury very close to the source, and all of Project 
Company 1's activities may cause some fish to leave the area of 
disturbance. It is anticipated that any mortality or injury would be 
limited to a very small subset of available prey and the implementation 
of mitigation measures such as the use of a dual noise attenuation 
system (i.e., a double bubble curtain) during impact pile driving would 
further limit the degree of impact. Behavioral changes in prey in 
response to construction activities could temporarily impact marine 
mammals' foraging opportunities in a limited portion of the foraging 
range; however, due to the relatively small area of the habitat that 
may be affected at any given time (e.g., around a pile being driven), 
the impacts to marine mammal habitat are not expected to cause 
significant or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals prey to the extent they would be unavailable for 
consumption.
    The physical presence of permanent foundations (i.e., WTG, OSS, and 
Met Tower) and associated scour protection within the Lease Areas would 
remain within marine mammal habitat for approximately 35 years. The 
Project would consist of up to 211 permanent foundations (up to 200 
WTGs, 10 small OSSs, and 1 Met Tower) in the Lease Areas (although up 
to 205 permanent foundations (up to 200 WTGs, 4 large OSSs, and 1 Met 
Tower) were analyzed in this final rulemaking for take, given the 
maximum amount of pile driving that could occur), which will gradually 
become operational as foundations and turbines are installed. The 
submerged parts of these structures act as artificial reefs, providing 
new habitats and restructuring local ecology, likely affecting some 
prey resources that could benefit many species, including some marine 
mammals. It is likely some or all of Project 1 will be operational 
before construction of Project 2 begins. Wind turbine presence and/or 
operations is, in general, likely to result in oceanographic effects in 
the marine environment, and may alter aggregations and distribution of 
marine mammal zooplankton prey and other species through changing the 
strength of tidal currents and associated fronts, changes in 
stratification, primary production, the degree of mixing, and 
stratification in the water column (Schultze et al., 2020; Chen et al., 
2021; Johnson et al., 2021; Christiansen et al., 2022; Dorrell et al., 
2022). There is significant uncertainty regarding the extent to and 
rate at which changes may occur, how potential changes might impact 
various marine mammal prey species (e.g., fish, copepods), and how or 
if impacts to prey species might result in impacts to marine mammal 
foraging that may result in fitness consequences. Importantly, the 
Project Area is not a primary or unique foraging ground for any marine 
mammal species.
    The oceanographic and atmospheric effects from the presence and 
operation of wind turbines are possible at a range of temporal and 
spatial scales, based on regional and local oceanographic and 
atmospheric conditions as well as the size and locations of wind farms. 
In general, the disturbance of wind speed and wind wakes from 
operational wind farms can cause oceanic responses such as upwelling, 
downwelling, and desertification (van Berkel et al., 2020; Dorrell et 
al., 2022; Floeter et al., 2022). Other physical impacts include 
thermal stratification and increases in turbulence, eddies, sediment 
erosion, and turbidity. These changes may be beneficial (e.g., 
upwelling may increase primary production) or adverse. The Atlantic 
Shores South Biological Opinion provided an evaluation of the impacts 
to ESA-listed marine mammals and their habitat, which include species 
that consume both fish and plankton, from the presence and 
approximately 35-year operation of the Project. While this final rule 
considers the potential impacts on marine mammal habitat for the 5-year 
effective period of this rule,

[[Page 78039]]

the Biological Opinion provides a comprehensive evaluation of the types 
and degree of impacts that may occur to marine mammal habitat and its 
conclusion therein regarding impacts to ESA-listed species and their 
habitat can be generally applied to all marine mammals considered in 
this final rule. For reasons described in the Biological Opinion, 
effects to ESA-listed marine mammal species habitat from the 
construction and 35-year operation of the Project would be so small 
that they cannot be meaningfully measured, evaluated, or detected.
    As described in the proposed rule and this final rule, the Project 
Area is not a primary or unique foraging ground for any marine mammal 
species. While marine mammals do engage in critical behavior such as 
foraging, mating, and calving in the Project Area (for some species), 
given the availability of similar habitat nearby, the physical and 
biological impacts of construction and operation of the Project on 
marine mammal habitat is not anticipated to be meaningful. NMFS 
concludes that impacts to marine mammal habitat from presence and 
operation of Atlantic Shores South during the 5-year effective period 
of this rule would, similar to the conclusions reached in the 
Biological Opinion, not have impacts on marine mammal habitat that 
would result in effects to populations through annual rates of 
recruitment or survival.

Mitigation To Reduce Impacts on All Species

    As previously described in greater detail, this rulemaking includes 
a variety of mitigation measures designed to minimize to the extent 
practicable impacts on all marine mammals, with additional mitigation 
focused on North Atlantic right whales (the latter is described in more 
detail below). For impact pile driving of WTG, OSS, and Met Tower 
foundation piles, ten overarching measures are required, which are 
intended to reduce both the number and intensity of marine mammal 
takes: (1) seasonal work restrictions; (2) use of multiple PSOs to 
visually observe for marine mammals (with any detection within 
specifically designated zones that would trigger a delay or shutdown); 
(3) use of PAM to acoustically detect marine mammals, with a focus on 
detecting baleen whales (with any detection within designated zones 
triggering delay or shutdown); (4) implementation of clearance zones; 
(5) implementation of shutdown zones; (6) use of soft-start and ramp 
ups; (7) use of noise attenuation technology (i.e., double bubble 
curtain); (8) maintaining situational awareness of marine mammal 
presence through the requirement that any marine mammal sighting(s) by 
Project Company 1 personnel must be reported to PSOs; (9) SFV 
monitoring; and (10) Vessel Strike Avoidance measures to reduce the 
risk of a collision with a marine mammal and vessel. For temporary 
cofferdam installation and removal, we are requiring five overarching 
measures: (1) seasonal/time of day work restrictions; (2) use of 
multiple PSOs to visually observe for marine mammals (with any 
detection with specifically designated zones that would trigger a delay 
or shutdown); (3) implementation of clearance zones; (4) implementation 
of shutdown zones); and (5) maintaining situational awareness of marine 
mammal presence through the requirement that any marine mammal 
sighting(s) by Project Company 1 personnel must be reported to PSOs. 
Lastly, for HRG surveys, we are requiring six measures: (1) measures 
specifically for Vessel Strike Avoidance; (2) specific requirements 
during daytime and nighttime HRG surveys; (3) implementation of 
clearance zones; (4) implementation of shutdown zones; (5) use of ramp-
up of acoustic sources; and (6) maintaining situational awareness of 
marine mammal presence through the requirement that any marine mammal 
sighting(s) by Project Company 1 personnel must be reported to PSOs.
    The Mitigation section discusses the manner in which the required 
mitigation measures reduce the magnitude and/or severity of takes of 
marine mammals. Seasonal restrictions on select activities avoid 
impacts from the activities during the indicated time periods, which 
are targeted towards times with higher densities or important 
behaviors. Use of a soft-start during impact pile driving will allow 
animals to move away from (i.e., avoid) the sound source prior to 
applying higher hammer energy levels needed to install the pile 
(Project Company 1 will not use a hammer energy greater than necessary 
to install piles). Similarly, ramp-up during HRG surveys would allow 
animals to move away and avoid the acoustic sources before they reach 
their maximum energy level. For all activities, clearance zone and 
shutdown zone implementation, which are required when marine mammals 
are within given distances associated with certain impact thresholds 
for all activities, will reduce the magnitude and severity of marine 
mammal take. Additionally, the use of multiple PSOs (WTG, OSS, and Met 
Tower foundation installation; temporary cofferdam installation and 
removal; HRG surveys), PAM operators (for permanent foundation 
installation), and maintaining awareness of marine mammal sightings 
reported in the region (WTG, OSS, and Met Tower foundation 
installation; temporary cofferdam installation and removal; HRG 
surveys) will aid in detecting marine mammals that would trigger the 
implementation of the mitigation measures. The reporting requirements 
including SFV reporting (for foundation installation and foundation 
operation), will assist NMFS in identifying if impacts beyond those 
analyzed in this final rule are occurring, potentially leading to the 
need to enact adaptive management measures in addition to or in place 
of the mitigation measures.

Mysticetes

    Five mysticete species (comprising five stocks) of cetaceans (i.e., 
North Atlantic right whale, fin whale, humpback whale, minke whale, and 
sei whale) may be taken by harassment, with three of these listed by 
the ESA (i.e., North Atlantic right whale, fin whale, sei whale). These 
species, to varying extents, utilize the specified geographic region, 
including the Project Area, for the purposes of migration, foraging, 
and socializing. Mysticetes are in the low-frequency hearing group.
    Behavioral data on mysticete reactions to pile-driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS, in some 
cases.
    NMFS reviewed recent PSO observational data from offshore wind 
projects in southern New England (i.e., South Fork at OCS-A-0517 and 
Vineyard Wind 1 at OCS-A-0501) where pile driving construction 
activities occurred. During pile-driving construction activities for 
Vineyard Wind 1, in 2023 from early June through December (RPS, 2023), 
there were 36 whale observations consisting of 4 unidentified non-North 
Atlantic right whales, 17 detections of humpback

[[Page 78040]]

whales, eight detections of fin whales, six detections of minke whales, 
and one unidentified baleen whale (RPS, 2023). Three of these 
observations of mysticetes (one humpback whale sighting, one fin whale 
sighting, and one group of three fin whales) occurred while the hammer 
was engaged (which was operating at full power). Behaviors noted 
included surfacing, blowing, fluking, and feeding. At South Fork, a 
total of 39 hours 32 minutes of active impact pile driving was 
conducted across installation of the 13 monopiles on 15 different days. 
The most PSO visual watch effort occurred aboard the Bokalift 2 (908 
hours), and PSO effort from the four dedicated monitoring vessels 
ranged from 426 to 757 hours. In total (with and without pile driving) 
foundation installation PSOs observed 348 mysticete groups comprising 
552 individuals; 29 of these detections, totaling 51 individuals, 
occurred during pile driving (table 14 in South Fork Wind (2023)). None 
of the observed behaviors of mysticetes noted by either the Vineyard 
Wind 1 or South Fork PSOs were indicative of distress, alarm, or other 
adverse reactions (RPS, 2023; South Fork Wind, 2023).
    Mysticetes encountered in the Project Area are expected to 
primarily be migrating and may be engaged in opportunistic foraging 
behaviors. The extent to which an animal engages in these behaviors in 
the area is species-specific and varies seasonally. Many mysticetes are 
expected to predominantly be migrating through the Project Area towards 
or from feeding ground located further north (e.g., southern New 
England region, Gulf of Maine, Canada). While we acknowledged above 
that mortality, hearing impairment, or displacement of mysticete prey 
species may result locally from impact pile driving, the very short 
duration of and broad availability of prey species in the area and the 
availability of alternative suitable foraging habitat for the mysticete 
species most likely to be affected, any impacts on mysticete foraging 
are expected to be minor. Whales that choose to opportunistically 
forage and are temporarily displaced from the Project Area are expected 
to have sufficient remaining similar feeding habitat available to them 
in the area and, further, would not be prevented from feeding in other 
areas within the biologically important feeding habitats found further 
north. In addition, any displacement of whales or interruption of 
opportunistic foraging bouts would be expected to be relatively 
temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales, with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. For mysticetes, where relatively low numbers 
of species-specific take by Level B harassment are predicted (compared 
to the abundance of each mysticete species or stock, such as is 
indicated in table 24) and movement patterns suggest that individuals 
would not necessarily linger in a particular area for multiple days, 
each predicted take likely represents an exposure of a different 
individual with perhaps, for a few species, a subset of takes 
potentially representing a small number of repeated takes of a limited 
number of individuals across multiple days. In other words, the 
behavioral disturbance to any individual mysticete would, therefore, 
likely occur within a single day within a year, or potentially across a 
few 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 Project Company 1 has 
identified. Species-specific analysis regarding potential for repeated 
exposures and impacts is provided below.
    Fin, humpback, minke, and sei whales are the mysticete species for 
which PTS is anticipated and allowed (see table 23). As described 
previously, PTS for mysticetes from impact pile driving may overlap 
frequencies used for communication, navigation, or detecting prey. 
However, given the nature and duration of the activity, the mitigation 
measures, and likely avoidance behavior, any PTS is expected to be of a 
small degree, would be limited to frequencies where pile-driving noise 
is concentrated (i.e., only a small subset of their expected hearing 
range) and would not be expected to impact reproductive success or 
survival.

North Atlantic Right Whale

    North Atlantic right whales are listed as endangered under the ESA, 
and the western Atlantic stock is considered depleted and strategic 
under the MMPA. As described in the Potential Effects to Marine Mammals 
and Their Habitat section of the proposed rule (88 FR 65430, September 
22, 2023), 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 injury or 
mortality is anticipated or allowed for this species.
    For North Atlantic right whales, this final rulemaking allows up to 
25 takes, by Level B harassment only, over the 5-year period, with a 
maximum annual allowable take of 13 (equating to approximately 3.82 
percent of the stock abundance, if each take were considered to be of a 
different individual), with lower numbers than that expected in the 
years without foundation installation (e.g., years when only cofferdam 
installation and/or HRG surveys would be occurring). No disruptions to 
primary foraging or calving is expected from the activities associated 
with the Project as North Atlantic right whales utilize areas outside 
of the Project Area for their main feeding, breeding, and calving 
activities. While opportunistic foraging may occur in the Project Area 
(see Whitt et al. (2013)'s skim feeding observations off the coast of 
Barnegat Bay, New Jersey), the habitat does not support prime foraging 
habitat.
    The waters off the coast of New Jersey, including those surrounding 
the Project Area in the NJ WEA, is an important migratory route for the 
species to the northern feeding areas near the Gulf of Maine and 
Georges Banks and to their southern breeding and calving grounds off 
the southeastern U.S. (CETAP, 1982; Knowlton and Kraus, 2001; Knowlton 
et al., 2022; Biedron et al., 2009; DoC, 2016b). Migrating North 
Atlantic right whales have been acoustically detected north of the 
Project Area in the New York Bight from February to May and August 
through December (Biedron et al., 2009). Similarly, given the species' 
migratory behavior in the Project Area, we anticipate individual whales 
would be typically migrating through the area during months when 
foundation installation would not occur (given the seasonal 
restrictions on foundation installation, rather than lingering for 
extended periods of time). While North Atlantic right whale presence in 
the Project Area is known as being year-round (see Davis et al., 2017), 
the abundance during summer months is much lower compared to the winter 
months with spring and fall serving as ``shoulder seasons'' wherein 
abundance

[[Page 78041]]

waxes (fall) or wanes (spring). The greatest densities occur from 
December through April (Roberts et al., 2016a; Roberts et al., 2023; 
Roberts et al., 2024), outside of the months of Project Company 1's 
planned foundation installation activities and when the seasonal pile 
driving moratorium would be active (with a limited exception for 
December, if NMFS approves December foundation pile driving). 
Therefore, we anticipate that any individual whales would typically be 
migrating through the Project Area and would not be lingering for 
extended periods of time and, further, fewer would be present in the 
months when foundation installation would be occurring. Other 
activities by Project Company 1 that involve either much smaller 
harassment zones (e.g., HRG surveys) or are limited in amount (e.g., 
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 that could be occurring from January 
(and possibly December) through April that may impact North Atlantic 
right whales would be primarily nearshore cable landfall activities 
(i.e., cofferdam installation and removal) and HRG surveys. Cofferdam 
work is restricted to nearshore waters, where the water is shallower 
and where it is less likely for North Atlantic right whales to be 
present. HRG surveys would not result in very high received levels or 
prolonged exposure. As any North Atlantic right whales within the 
Project Area would likely be engaged in migratory behavior (LaBrecque 
et al., 2015), it is likely that the allowed instances of take would 
occur to separate individual whales and, thereby unlikely than any 
single individual would be taken on more than one day, or possibly two 
days, within a year. Across all years, if an individual were to be 
exposed during a subsequent year, the impact of that exposure is likely 
independent of the previous exposure given the duration between 
exposures.
    As described in the Description of Marine Mammals in the Specific 
Geographic Region section, North Atlantic right whales are presently 
experiencing an ongoing UME (beginning in June 2017). Preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. Given the current status of the North Atlantic right 
whale, the loss of even one individual could significantly impact the 
population. No mortality, serious injury, or injury of North Atlantic 
right whales as a result of the Project is expected or allowed. Any 
disturbance to North Atlantic right whales due to Project Company 1's 
activities is expected to result in at most temporary avoidance of the 
immediate area of construction. As no injury, serious injury, or 
mortality is expected or allowed, 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 allowed number 
of takes of North Atlantic right whales would not exacerbate or 
compound the effects of the ongoing UME.
    As described in the general Mysticetes section above, foundation 
installation is likely to result in the highest number of annual takes 
and is of greatest concern given loud source levels. This activity is 
expected to consist of an approximate total of 201 days over 2 years 
for WTG and Met Tower installation. For large OSS foundation 
installation, it is assumed that up to 24 days are necessary for all 4 
large OSS foundations to be installed. For WTGs and the Met Tower using 
monopiles, this assumes that a single WTG monopile is installed per day 
(i.e., 24-hour period). For WTGs using jacket foundations within pin 
piles, this assumes 4 pin piles are installed per day. For OSSs using 
pin piles, this assumes 4 pin piles are installed per day. If Project 
Company 1 would, on some days, install up to 2 monopile foundations for 
WTGs or the Met Tower, this would reduce the overall amount of take as 
the number of days for total pile driving would be expected to have 
been reduced, meaning the estimate as presented herein is conservative 
to assume the maximum installation scenario. Project Company 1 has 
provided a realistic construction schedule (e.g., Project Company 1's 
schedule reflects the maximum number of piles they anticipate to be 
able to drive each month in which pile driving is allowed to occur), 
although we recognize schedules may shift for a variety of reasons 
(e.g., weather or supply delays). However, the total number of takes 
would not exceed the 5-year allowable totals or the maximum annual 
totals in any given year indicated in tables 23 and 24, respectively. 
In all cases, these activities would only occur during times when, 
based on the best available scientific data, North Atlantic right 
whales are less frequently encountered due to their migratory behavior. 
The potential types, severity, and magnitude of impacts are also 
anticipated to mirror that described in the general Mysticetes section 
above, including avoidance (the most likely outcome), changes in 
foraging or vocalization behavior, masking, a small amount of TTS, and 
temporary physiological impacts (e.g., change in respiration, change in 
heart rate). The effects of the activities are expected to be 
sufficiently low-level and localized to specific areas as to not 
meaningfully impact important behaviors such as migratory behavior of 
North Atlantic right whales. These takes are expected to result in 
temporary behavioral reactions, such as slight displacement (but not 
abandonment) of migratory habitat or temporary cessation of feeding. 
Further, given these exposures are generally expected to occur to 
different individual right whales migrating through (i.e., most 
individuals would not be impacted on more than 1 day in a year), with 
some subset potentially being exposed on no more than a few days within 
the year, they are unlikely to result in energetic consequences that 
could affect reproduction or survival of any individuals.
    Overall, NMFS expects that any behavioral harassment of North 
Atlantic right whales incidental to the specified activities would not 
result in changes to their migration patterns or foraging success, as 
only temporary avoidance of an area during construction is expected to 
occur. As described previously, North Atlantic right whales migrating 
through the Project Area are not expected to remain in this habitat for 
extensive durations, and any temporarily displaced animals would be 
able to return to or continue to travel through and opportunistically 
forage in these areas once activities have ceased.
    Although acoustic masking may occur in the vicinity of the 
foundation installation activities, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure) and construction surveys (e.g., 
intermittent signals), NMFS expects masking effects to be minimal 
(e.g., impact pile driving) to none (e.g., HRG surveys). In addition, 
masking would likely only occur during the period of time that a North 
Atlantic right whale is in the relatively close vicinity of pile 
driving, which would be rare, given pile driving is 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, the 
anticipated mitigation effectiveness, and the likely avoidance 
behaviors. TTS is another potential form of Level B

[[Page 78042]]

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 of the proposed rule (88 FR 65430, September 22, 2023), 
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 of the proposed rule (88 FR 65430, September 22, 2023), 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 (0.62 to 1.24 mi). This 
diversion from a migratory path otherwise uninterrupted by the 
Project's activities is not expected to result in meaningful energetic 
costs that would impact annual rates of recruitment of survival. NMFS 
expects that North Atlantic right whales would be able to avoid areas 
during periods of active noise production while not being forced out of 
this portion of their habitat.
    North Atlantic right whale presence in the Project Area is year-
round. However, abundance during summer months is lower compared to the 
winter months with spring and fall serving as ``shoulder seasons'' 
wherein abundance waxes (fall) or wanes (spring). Given this year-round 
habitat usage, in recognition that where and when whales may actually 
occur during Project activities is unknown as it depends on the annual 
migratory behaviors, NMFS is requiring a suite of mitigation measures 
designed to reduce impacts to North Atlantic right whales to the 
maximum extent practicable. These mitigation measures (e.g., seasonal/
daily work restrictions, vessel separation distances, reduced vessel 
speed) would not only avoid the likelihood of vessel strikes but also 
would minimize the severity of behavioral disruptions by minimizing 
impacts (e.g., through sound reduction using attenuation systems and 
reduced spatio-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 via detrimental 
impacts to energy intake or cow/calf interactions during migratory 
transit. However, even in consideration of recent habitat use and 
distribution shifts, Project Company 1 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 Specific 
Geographic Region section, Project Company 1 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 width of the Lease is 
relatively small (26.4 km (16.4 mi) when measured horizontally at the 
furthest points from the west to east) when compared with the migratory 
BIA (177.77 km (101.46 mi) when measured horizontally at the furthest 
points from west to east) The Lease Areas only overlap approximately 
14.8 percent of the migratory corridor. The Lease Areas begin 
approximately 23 km (14.29 mi) east of the closest point on the 
coastline of New Jersey. While construction activities would be 
occurring within the migratory path, its placement in deeper waters no 
closer than 23 km (14.29 mi) offshore and the fact the foundation 
installation (the most impactful activity) would not occur during the 
migration period (i.e., no foundation installation would be allowed to 
occur from December 1st through April 30th, annually, unless Project 
Company 1 requests and NMFS and other Federal Agency partners approve, 
a limited amount of pile driving in December) provides high 
conservation benefits. Overall North Atlantic right whale migration is 
not expected to be impacted by the planned activities. There are no 
known North Atlantic right whale feeding, breeding, or calving areas 
within the Project Area. Prey species are mobile (e.g., calanoid 
copepods can initiate rapid and directed escape responses) and are 
broadly distributed throughout the Project Area (noting again that 
North Atlantic right whale prey is not particularly concentrated in the 
Project Area relative to nearby habitats). Therefore, any impacts to 
prey that may occur are also unlikely to impact marine mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales is the seasonal moratorium on all 
foundation installation activities from December 1st through April 30th 
(unless Project Company 1 requests and NMFS and other Federal Agency 
partners approve a limited amount of pile driving in December), 
annually, when North Atlantic right whale abundance in the Project Area 
is expected to be highest. NMFS also expects this measure to greatly 
reduce the potential for mother-calf pairs to be exposed to impact pile 
driving noise above the Level B harassment threshold during their 
annual spring migration through the Project Area from calving grounds 
to primary foraging grounds (e.g., Cape Cod Bay). NMFS expects that 
exposures to North Atlantic right whales would be reduced due to the 
additional mitigation measures that would ensure that any exposures 
above the Level B harassment threshold would result in only short-term 
effects to individuals exposed.
    Foundation pile driving may only begin in the absence of North 
Atlantic right whales (based on visual detection and PAM). If 
foundation pile driving has commenced, NMFS anticipates North Atlantic 
right whales would avoid the area, utilizing nearby waters to carry on 
pre-exposure behaviors. However, foundation installation activities 
must be shut down if a North Atlantic right whale is sighted at any 
distance or acoustically detected at any distance within the 10-km 
(6.21-mi) PAM Clearance/Shutdown Zone, 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 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. This is because typical observed whale behavior 
demonstrates likely avoidance of harassing levels of sound where 
possible (Richardson et al., 1985). These measures are designed to 
avoid PTS and also reduce the severity of Level B

[[Page 78043]]

harassment, including the potential for TTS. While some TTS could 
occur, given the mitigation measures (e.g., delay pile driving upon a 
sighting or acoustic detection and shutting down upon a sighting or 
acoustic detection), the potential for TTS to occur is low.
    The clearance and shutdown measures are most effective when 
detection efficacy is maximized, as the measures are triggered by a 
sighting or acoustic detection. To maximize detection efficacy, NMFS 
requires the combination of PAM and visual observers. NMFS is requiring 
communication protocols with other Project vessels, and other 
heightened awareness efforts (e.g., daily monitoring of North Atlantic 
right whale sighting databases) such that as a North Atlantic right 
whale approaches the source (and thereby could be exposed to higher 
noise energy levels), PSO detection efficacy would increase, the whale 
would be detected, and a delay to commencing foundation installation or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start for foundation impact pile driving would provide an 
opportunity for whales to move away from the source if they are 
undetected, reducing received levels. Further, Project Company 1 has 
committed to not installing two WTG or OSS foundation piles 
simultaneously. North Atlantic right whales would, therefore, not be 
exposed to concurrent impact pile driving on any given day from the 
Project and the area ensonified at any given time would be limited.
    Additionally, Project Company 1 did request the ability to perform 
nighttime pile driving of their foundation piles. In order to receive 
approval to do so, Project Company 1 is required to provide NMFS with 
an AMP for review which would describe, in detail, how they would 
perform and ensure adequate monitoring for protected marine mammal 
species. This AMP must also describe how mitigative procedures during 
nighttime (or periods of reduced visibility) would be sufficiently 
effective and protective. Only upon approval of the AMP would Project 
Company 1 perform nighttime pile driving. Under approval of an AMP, 
Project Company 1 is still committed to the installation of up to two 
monopiles or up to four pin piles per day (which is defined as 
installation within a 24-hour period). Without a request and approval 
of the AMP, Project Company 1 would only be able to perform pile 
driving prior to 1.5 hours before civil sunset and not before 1 hour 
after civil sunrise. An exception exists due to safety of the crew and 
stability of the pile whereas if Project Company 1 begins impact pile 
driving prior to this defined period, they will be allowed to complete 
the pile. However, even if nighttime pile driving is not carried 
through with discussions with the applicant but they wish to complete 
piles after dark that were started outside the temporal restriction 
period, Project Company 1 is still required to submit for review and 
approval an AMP to ensure that they can appropriately monitor and 
mitigate for marine mammals in reduced visibility conditions (i.e., 
daylight to darkness during active pile driving).
    Finally, for HRG surveys, because of the maximum distance to the 
Level B harassment threshold isopleth (141 m (462.6 ft) via the 
GeoMarine Geo-Source) as compared to the requirement that vessels 
maintain a distance of 500 m (1,640 ft) from any North Atlantic right 
whales, the fact that whales are unlikely to remain in close proximity 
to an HRG survey vessel for any length of time, and that the acoustic 
source would be shut down if a North Atlantic right whale is observed 
within 500 m (1,640 ft) 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 sparkers and CHIRPs (if applicable) must 
be delayed during the clearance period if PSOs detect a North Atlantic 
right whale (or any other ESA-listed species) within 500 m (1,640 ft) 
of the acoustic source. With implementation of the mitigation 
requirements, take by Level A harassment is neither anticipated nor 
allowed during HRG surveys. Potential impacts associated with Level B 
harassment would include low-level, temporary behavioral modifications, 
most likely in the form of avoidance behavior. Given the precautions 
taken to minimize both the number and intensity of Level B harassment 
on North Atlantic right whales, it is highly unlikely that the 
anticipated low-level exposures would impact the reproductive success 
or survival of any marine mammals.
    As described previously, no serious injury or mortality, or Level A 
harassment, of North Atlantic right whale is anticipated or has been 
allowed. Extensive North Atlantic right whale-specific mitigation 
measures (beyond the robust suite required for all species) are 
expected to further minimize the number and severity of takes by Level 
B harassment. Given the documented habitat use within the area, the 
majority of the individuals predicted taken (including no more than 25 
instances of take, by Level B harassment only, over the course of the 
5-year rule, with an annual maximum of no more than 13 takes) would be 
impacted on a maximum of 2 days in a year as North Atlantic right 
whales utilize this area for migration and would be expected to be 
transiting rather than residing in the area for extended periods of 
time. Further, any impacts to North Atlantic right whales are expected 
to be in the form of lower-level behavioral disturbance. Given the 
magnitude and severity of the impacts discussed above, and in 
consideration of the required mitigation and other information 
presented, Project Company 1's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by Level B harassment anticipated and 
allowed would have a negligible impact on the North Atlantic right 
whale stock.
Fin Whale
    The fin whale is listed as Endangered under the ESA, and the 
western North Atlantic stock is considered both Depleted and Strategic 
under the MMPA. No UME has been designated for this species or stock. 
No serious injury or mortality is anticipated or allowed for this 
species.
    The rule allows up to 46 takes, by harassment only, over the 5-year 
effective period of the rule. The maximum annual allowable take, by 
Level A harassment and Level B harassment, would be 4 and 18, 
respectively (combined, this annual take (n=22) equates to 
approximately 0.3 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 HRG surveys would be occurring). The Project Area does 
not overlap any known areas of specific biological importance to fin 
whales. 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.

[[Page 78044]]

    Fin whales are present in the waters off of New Jersey year round 
and are one of the most frequently observed large whales and cetaceans 
in continental shelf waters, principally from Cape Hatteras in the Mid-
Atlantic northward to Nova Scotia, Canada (Sergeant, 1977; Sutcliffe 
and Brodie, 1977; CETAP, 1982; Hain et al., 1992; Geo-Marine, 2010; 
BOEM 2012; Edwards et al., 2015; Hayes et al., 2022). Fin whales have 
high relative abundance in the Mid-Atlantic and Project Area, most 
observations occur in the winter and summer months (Geo-Marine, 2010; 
Hayes et al., 2022) though detections do occur in spring and fall 
(Watkins et al., 1987; Clark and Gagnon 2002; Geo-Marine, 2010; Morano 
et al., 2012). However, fin whales typically feed in waters off of New 
England and within the Gulf of Maine, areas north of the Project Area, 
as New England and Gulf of St. Lawrence waters represent major feeding 
ground for fin whales (Hayes et al., 2022). Hain et al. (1992), based 
on an analysis of neonate stranding data, suggested that calving takes 
place during October to January in latitudes of the U.S. mid-Atlantic 
region; however, it is unknown where calving, mating, and wintering 
occur for most of the population (Hayes et al., 2022).
    Given the documented habitat use within the area, some of the 
individuals taken would likely be exposed on multiple days. However, as 
described the Project Area does not include areas where fin whales are 
known to concentrate for feeding or reproductive behaviors and the 
predicted takes are expected to be in the form of lower-level impacts. 
Given the magnitude and severity of the impacts discussed above 
(including no more than 46 takes by harassment only over the course of 
the 5-year rule, and a maximum annual allowable take by Level A 
harassment and Level B harassment, of 4 and 18, respectively), and in 
consideration of the required mitigation and other information 
presented, Project Company 1's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and allowed 
will have a negligible impact on the western North Atlantic stock of 
fin whales.
Humpback Whale
    The West Indies DPS of humpback whales is not listed as threatened 
or endangered under the ESA, but the Gulf of Maine stock, which 
includes individuals from the West Indies DPS, is considered Strategic 
under the MMPA. However, as described in the Description of Marine 
Mammals in the Specific Geographic Region section of this preamble, 
humpback whales along the Atlantic Coast have been experiencing an 
active UME as elevated humpback whale mortalities have occurred along 
the Atlantic coast from Maine through Florida since January 2016. Of 
the cases examined, approximately 40 percent had evidence of human 
interaction (i.e., vessel strike or entanglement). Despite the UME, the 
relevant population of humpback whales (the West Indies breeding 
population, or DPS of which the Gulf of Maine stock is a part) remains 
stable at approximately 12,000 individuals.
    The rule allows up to 41 takes by harassment only over the 5-year 
period. The maximum annual allowable take, by Level A harassment and 
Level B harassment, is 4 and 17, respectively (combined, this maximum 
annual take (n=21) equates to approximately 1.5 percent of the stock 
abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). Given that humpback whales have been commonly 
sighted off of New Jersey, it is likely that some subset of the 
individual whales exposed could be taken several times annually.
    Among the activities analyzed, pile driving is likely to result in 
the highest number of Level A harassment annual takes (4) of humpback 
whales, with up to 8 takes by Level A harassment expected over the 
entire foundation pile driving period (2026-2027). The maximum number 
of annual take allowed, by Level B harassment, is highest for 
foundation pile driving (n=104; WTGs plus OSS pin piles), with a total 
of 21 takes by Level B harassment expected of the 2-year foundation 
pile driving period (2026-2027).
    As described in the Description of Marine Mammals in the Specific 
Geographic Region section, humpback whales are known to occur regularly 
throughout the coastal and offshore waters of the Mid-Atlantic Bight, 
including within New Jersey waters, with strong seasonality where peak 
occurrences occur April to November during the annual movement to 
feeding grounds that are located from the south of the New England 
region to the northern area of Norway (Geo-Marine, 2007). Other 
scientific literature reports sightings of humpback whales in every 
season, with the majority of sightings occurring during the winter 
(Whitt et al., 2015; Brown et al., 2019; King et al., 2021; Zoidis et 
al., 2021). In the western North Atlantic, humpback whales feed during 
spring, summer, and fall over a geographic range encompassing the 
eastern coast of the U.S. Feeding is generally considered to be focused 
in areas north of the Project Area, including a feeding BIA in the Gulf 
of Maine/Stellwagen Bank/Great South Channel but has been documented 
farther south and off the coast of New Jersey. When foraging, humpback 
whales tend to remain in the area for extended durations to capitalize 
on the food sources.
    Assuming humpback whales who are feeding in waters within or 
surrounding the Project Area behave similarly, we expect that the 
predicted instances of disturbance could be comprised of some 
individuals that may be exposed on multiple days if they are utilizing 
the area as foraging habitat (but no more than a few days, given the 
small number of overall takes). Also similar to other baleen whales, if 
migrating, such individuals would likely be exposed to noise levels 
from the Project above the harassment thresholds only once during 
migration through the Project Area.
    For all the reasons described in the Mysticetes section above, we 
anticipate the impacts of this harassment to align with those already 
described. Any potential PTS would be minor (limited to a few dB), any 
TTS would be of short duration, and both 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 humpback whales. As described in the Mysticete section 
above, if PTS is incurred, it would be of a small degree. Any masking 
or physiological responses would also be of low magnitude and severity 
for reasons described above.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 41 takes over the course of the 5-year rule, 
and a maximum annual allowable take, by Level A harassment and Level B 
harassment, of 8 and 33, respectively), and in consideration of the 
required mitigation measures and other information presented, Project 
Company 1's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, we have determined 
that the take by harassment anticipated and allowed will have a 
negligible impact on the Gulf of Maine stock of humpback whales.

[[Page 78045]]

Minke Whale
    Minke whales are not listed under the ESA, and the Canadian East 
Coast stock is not considered Depleted nor strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the Project Area. As described in the Description of Marine 
Mammals in the Specific Geographic Region section, a UME has been 
designated for this species but is pending closure. No serious injury 
or mortality is anticipated or allowed for this species.
    The rule allows up to 360 takes, by harassment only, over the 5-
year period. The maximum annual allowable take, by Level A harassment 
and Level B harassment, would be 17 and 161, respectively (combined, 
this maximum annual take (n=178) equates to approximately 0.8 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). As described in the Description of Marine 
Mammals in the Specific Geographic Region section of the proposed rule 
(88 FR 65430, September 22, 2023), minke whales are common offshore the 
U.S. Eastern Seaboard with a strong seasonal component in the 
continental shelf and in deeper, off-shelf waters (CETAP, 1982; Hayes 
et al., 2022). In the Project area, minke whales are predominantly 
migratory and their known feeding areas are north, including a feeding 
BIA in the southwestern Gulf of Maine and George's Bank. Therefore, 
they would be more likely to be moving through (with each take 
representing a separate individual), though it is possible that some 
subset of the individual whales exposed could be taken up to a few 
times annually.
    As described in the Description of Marine Mammals in the Specified 
Geographic Region section, there is a UME for minke whales (see https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-minke-whale-unusual-mortality-event-along-atlantic-coast), along the Atlantic 
coast from Maine through South Carolina, with highest number of deaths 
in Massachusetts, Maine, and New York, and preliminary findings in 
several of the whales have shown evidence of human interactions or 
infectious diseases. However, we note that the population abundance is 
greater than 21,000 and the take allowed through this action is not 
expected to exacerbate the UME in any way.
    We anticipate the impacts of this harassment to follow those 
described in the general Mysticetes section above. Any potential PTS 
would be minor (limited to a few dB), any TTS would be of short 
duration, and both 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 minke 
whales. Level B harassment would be temporary, with primary impacts 
being temporary displacement of the Project Area but not abandonment of 
any migratory or foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 360 takes of the course of the 5-year rule, and 
a maximum annual allowable take that is reasonably expected to occur by 
Level A harassment and Level B harassment, of 17 and 161, 
respectively), and in consideration of the required mitigation and 
other information presented, Project Company 1's activities are not 
expected to result in impacts on the reproduction or survival of any 
individuals, much less affect annual rates of recruitment or survival. 
For these reasons, we have determined that the take by harassment 
anticipated and allowed will have a negligible impact on the Canadian 
Eastern Coastal stock of minke whales.
Sei Whale
    Sei whales are listed as Endangered under the ESA, and the Nova 
Scotia stock is considered both Depleted and Strategic under the MMPA. 
There are no known areas of specific biological importance in or 
adjacent to the Project Area and no UME has been designated for this 
species or stock. No serious injury or mortality is anticipated or 
allowed for this species.
    The rule allows up to 28 takes, by harassment only, over the 5-year 
period. The maximum annual allowable take by Level A harassment and 
Level B harassment, would be 2 and 11, respectively (combined, this 
maximum annual take (n=13) equates to approximately 0.2 percent of the 
stock abundance, if each take were considered to be of a different 
individual). As described in the Description of Marine Mammals in the 
Area of Specified Activities section of the proposed rule (88 FR 65430, 
September 22, 2023), most of the sei whale distribution is concentrated 
in Canadian waters and seasonally in northerly U.S. waters, though they 
are uncommonly observed in the waters off of New Jersey. Because sei 
whales are migratory and their known feeding areas are east and north 
of the Project Area (e.g., there is a feeding BIA in the Gulf of 
Maine), they would be more likely to be moving through and, considering 
this and the very low number of total takes, it is unlikely that any 
individual would be exposed more than once within a given year.
    With respect to the severity of those individual takes by 
behavioral Level B harassment, we would anticipate impacts to be 
limited to low-level, temporary behavioral responses with avoidance and 
potential masking impacts in the vicinity of the turbine installation 
to be the most likely type of response. Any potential PTS would be 
minor (limited to a few dB), any TTS would be of short duration, and 
both 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. Moreover, any 
TTS would be of a small degree. Any avoidance of the Project Area due 
to the Project's activities would be expected to be temporary with no 
abandonment of any migratory or foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 28 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 2 and 11, respectively), and in consideration of the 
required mitigation and other information presented, Project Company 
1's activities are not expected to result in impacts on the 
reproduction or survival of any individuals, much less affect annual 
rates of recruitment or survival. For these reasons, we have determined 
that the take by harassment anticipated and allowed will have a 
negligible impact on the Nova Scotia stock of sei whales.

Odontocetes

    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below. Odontocetes include 
dolphins, porpoises, and all other whales possessing teeth. Nine 
odontocete species (comprising ten stocks) of cetaceans (i.e., sperm 
whale, Atlantic spotted dolphin, Atlantic white-sided dolphin, 
bottlenose dolphin, common dolphin, long-finned pilot whale, short-
finned pilot whale, Risso's dolphin, harbor porpoise) may be taken by 
harassment, with one of these listed by the ESA (i.e., sperm whale). 
These species, to varying extents, utilize the specified geographic 
region, including the Project Area, for the purposes of migration, 
foraging, and socializing. Odontocetes are in the mid-

[[Page 78046]]

frequency hearing group. In this section, we further divide them into 
the following subsections: sperm whales, dolphins and small whales, and 
harbor porpoises. These sub-sections include more specific information, 
as well as conclusions for each stock represented.
    All of the takes of odontocetes allowed incidental to Project 
Company 1's specified activities are by pile driving and HRG surveys. 
No serious injury or mortality is anticipated or allowed. We anticipate 
that, given ranges of individuals (i.e., that some individuals remain 
within a small area for some period of time), and non-migratory nature 
of some odontocetes in general (especially as compared to mysticetes), 
these takes are more likely to represent multiple exposures of a 
smaller number of individuals than is the case for mysticetes, though 
some takes may also represent one-time exposures to an individual. 
Foundation installation is likely to disturb odontocetes to the 
greatest extent, compared to HRG surveys. While we expect animals to 
avoid the area during foundation installation, their habitat range is 
extensive compared to the area ensonified during these activities.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species and 
similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the sound source. While masking could occur 
during foundation installation, it would only occur in the vicinity of 
and during the duration of the activity, and would not generally occur 
in a frequency range that overlaps most odontocete communication or any 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low-severity. 
First, the frequency range of pile driving, the most impactful activity 
to be conducted in terms of response severity, falls within a portion 
of the frequency range of most odontocete vocalizations. However, 
odontocete vocalizations span a much wider range than the low frequency 
construction activities planned for the Project. As described above, 
recent studies suggest odontocetes have a mechanism to self-mitigate 
(i.e., reduce hearing sensitivity) the impacts of noise exposure, which 
could potentially reduce TTS impacts. Any masking or TTS is anticipated 
to be limited and would typically only interfere with communication 
within a portion of an odontocete's range and as discussed earlier, the 
effects would only be expected to be of a short duration and, for TTS, 
a relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities. 
However, sounds from these sources attenuate very quickly in the water 
column, as described above. Therefore, any potential for PTS and TTS 
and masking is very limited. Further, odontocetes (e.g., common 
dolphins, spotted dolphins, bottlenose dolphins) have demonstrated an 
affinity to bow-ride actively surveying HRG surveys. Therefore, the 
severity of any harassment, if it does occur, is anticipated to be 
minimal based on the lack of avoidance previously demonstrated by these 
species.
    The waters off the coast of New Jersey 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 Jersey, 
including the Project Area, do not contain any particularly unique 
odontocete habitat features.
Sperm Whale
    Sperm whales are listed as endangered under the ESA, and the North 
Atlantic stock is considered both Depleted and Strategic under the 
MMPA. The North Atlantic stock spans the East Coast out into oceanic 
waters well beyond the U.S. exclusive economic zone. Although listed as 
endangered, the primary threat faced by the sperm whale across its 
range (i.e., commercial whaling) has been eliminated. Current potential 
threats to the species globally include vessel strikes, entanglement in 
fishing gear, anthropogenic noise, exposure to contaminants, climate 
change, and marine debris. There is no currently reported trend for the 
stock and, although the species is listed as endangered under the ESA, 
there are no 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 allowed 
for this species.
    The rule allows up to 15 takes, by Level B harassment only over the 
5-year period. The maximum annual allowable take by Level B harassment, 
is seven, which equates to approximately 0.12 percent of the stock 
abundance, if each take were considered to be of a different 
individual, with no take expected in the years without foundation 
installation (e.g., years when only HRG surveys would be occurring). 
Given sperm whale's preference for deeper waters, especially for 
feeding, it is unlikely that individuals will remain in the Project 
Area for multiple days, and therefore, the estimated takes likely 
represent exposures of different individuals on 1 day annually.
    If sperm whales are present in the Project Area during any Project 
activities, they will likely be only transient visitors and not 
engaging in any significant behaviors. Further, the potential for TTS 
is low for reasons described in the general Odontocete section, but if 
it does occur, any hearing shift would be small and of a short 
duration. Because whales are not expected to be foraging in the Project 
Area, any TTS is not expected to interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 15 takes, by Level B harassment only, over the 
course of the 5-year rule, and a maximum annual allowable take of 7), 
and in consideration of the required mitigation and other information 
presented, Project Company 1's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by Level B harassment anticipated and 
allowed will have a negligible impact on the North Atlantic stock of 
sperm whales.
Dolphins and Small Whales
    The 7 species and 8 stocks included in this group (which are 
indicated in table 2 in the Delphinidae families) are not listed under 
the ESA; however, the Northern Migratory Coastal stock of bottlenose 
dolphins 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. As described above, no UMEs have been 
designated for any of these species. No serious injury or mortality is 
anticipated or allowed for these species.

[[Page 78047]]

    The 7 delphinid species (constituting 8 stocks) with takes allowed 
for the Project are Atlantic spotted dolphin, Atlantic white-sided 
dolphin, bottlenose dolphin, common dolphin, long-finned pilot whale, 
short-finned pilot whale, and Risso's dolphin. The rule would allow for 
2 (Atlantic white-sided dolphin) to 3 (Risso's dolphin) takes by Level 
A harassment and 52 to 8,153 takes (depending on species) by Level B 
harassment only, over the 5-year period. The maximum annual allowable 
take for these species by Level A harassment would range from 0 
(multiple delphinid species) to 1 (Atlantic white-sided dolphin) and 2 
(Risso's dolphin), and Level B harassment would range from 20 (short-
finned pilot whale) to 3,836 (bottlenose dolphin--Western North 
Atlantic Offshore stock). Overall, the maximum annual take equates to 
approximately 0.11 (short-finned pilot whale) to 29.36 (bottlenose 
dolphin--Northern Migratory Coastal stock) percent of each species/
stock's abundance (species/stock-dependent), if each take were 
considered to be of a different individual, which is not likely the 
case, with far lower numbers than that expected in the years without 
pile driving activities (e.g., years when only HRG surveys would be 
occurring). Further, though the estimated numbers of take are 
comparatively higher than the numbers for mysticetes, we note that for 
all species they are relatively low relative to the population 
abundance.
    The number of takes, likely movement patterns of the affected 
species, and the intensity of any Level B harassment, combined with the 
availability of alternate nearby foraging habitat suggests that the 
likely impacts would not impact the reproduction or survival of any 
individuals. While delphinids may be taken on several occasions, none 
of these species are known to have small home ranges within the Project 
Area or known to be particularly sensitive to anthropogenic noise. Some 
TTS can occur but it would be limited to the frequency ranges of the 
activity and any loss of hearing sensitivity is anticipated to return 
to pre-exposure conditions shortly after the animals move away from the 
source or the source ceases.
    For the two stocks of bottlenose dolphins (Offshore and Northern 
Migratory Coastal stocks), given both the comparatively higher number 
of allowed takes for each stock and the higher number of allowed takes 
relative to each stock's abundance (refer back to table 24), while some 
of the takes likely represent exposures of different individuals on 1 
day a year, it is likely that some subset of the individuals exposed 
could be taken several times annually. Further, as for most other 
dolphin species and as described above for odontocetes broadly, given 
the number of estimated takes for some species and the behavioral 
patterns of odontocetes, we anticipate that a fair number of these 
instances of take in a day represent a few exposures each of a smaller 
number of individuals, meaning the actual number of individuals taken 
is lower. Although some amount of repeated exposure to some individuals 
is likely given the duration of activity planned by Project Company 1, 
the intensity of any Level B harassment combined with the availability 
of alternate nearby foraging habitat suggests that the likely impacts 
would not impact the reproduction or survival of any individuals.
    Overall, most of the populations of all delphinid and small whale 
species and stocks for which we allow take are stable (no declining 
population trends). For others, two stocks are labeled as strategic 
(i.e., Northern Migratory Coastal stock of bottlenose dolphins and 
Western North Atlantic stock of short-finned pilot whales). Neither of 
these stocks are experiencing existing UMEs. No mortality, serious 
injury, or Level A harassment is anticipated or allowed for either of 
these species. Given the magnitude and severity of the impacts 
discussed above and in consideration of the required mitigation and 
other information presented, as well as the status of these stocks, 
Project Company 1's activities are not expected to result in impacts on 
the reproduction or survival of any individuals, much less affect 
annual rates of recruitment or survival. For these reasons, we have 
determined that the take by harassment anticipated and allowed will 
have a negligible impact on all of the species and stocks addressed in 
this section.
Harbor Porpoises
    Harbor porpoises are not listed under the ESA, and the Gulf of 
Maine/Bay of Fundy stock is considered neither depleted nor strategic 
under the MMPA. The stock is found predominantly in northern U.S. 
coastal waters (less than 150 m (492.13 ft) 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 allowed for this stock.
    The rule allows up to 359 takes, by harassment only, over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 13 and 191, respectively (combined, 
this annual take (n=204) equates to approximately 0.24 percent of the 
stock abundance, if each take were considered to be of a different 
individual). Given the number of takes, while many of the takes likely 
represent exposures of different individuals on 1 day a year, some 
subset of the individuals exposed could be taken up to a few times 
annually.
    Regarding the severity of takes by Level B harassment, because 
harbor porpoises are particularly sensitive to noise, it is likely that 
a fair number of the responses could be of a moderate nature, 
particularly to pile driving. In response to pile driving, harbor 
porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. Given no primary foraging 
habitat is known off the New Jersey coast, any avoidance of the area by 
individuals is not likely to impact the reproduction or survival of any 
individuals as the porpoises would be able to seek alternative foraging 
areas.
    With respect to PTS and TTS, the effects on an individual are 
likely relatively low given the frequency bands of pile driving (most 
energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160 
kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact 
hearing ability in their more sensitive hearing ranges, or the 
frequencies in which they communicate and echolocate. We expect any PTS 
that may occur to be within the very low end of their hearing range 
where harbor porpoises are not particularly sensitive and any PTS would 
be of small magnitude. As such, any PTS would not interfere with key 
foraging or reproductive strategies necessary for reproduction or 
survival.
    As discussed in Hayes et al. (2022), harbor porpoises are 
seasonally distributed. During fall (October through December) and 
spring (April through June), harbor porpoises are widely dispersed from 
New Jersey to Maine, with lower densities farther north and south. 
During winter (January to March), intermediate densities of harbor 
porpoises can be found in waters off New Jersey to North Carolina, and 
lower densities are found in waters off New York to New Brunswick, 
Canada. In non-summer months they have been seen from the coastline to 
deep waters (>1,800 m (>5,905.5 ft); Westgate et al., 1998), although 
the majority are found over the continental shelf. While harbor 
porpoises are likely to avoid the area

[[Page 78048]]

during any of the Project's construction activities, as demonstrated 
during European wind farm construction, the time of year in which work 
would occur is when harbor porpoises are not in highest abundance, and 
any work that does occur would not result in the species' abandonment 
of the waters off of New Jersey.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Project Company 1's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and allowed 
will have a negligible impact on the Gulf of Maine/Bay of Fundy stock 
of harbor porpoises.

Phocids (Harbor Seals and Gray Seals)

    The harbor seal and gray seal are not listed under the ESA, and 
neither the western North Atlantic stock of gray seal nor the western 
North Atlantic stock of harbor seal are considered depleted or 
strategic under the MMPA. There are no known areas of specific 
biological importance in or around the Project Area. As described in 
the Description of Marine Mammals in the Specific Geographic Region 
section, a UME has been designated for harbor seals and gray seals and 
is described further below. No serious injury or mortality is 
anticipated or allowed for this species.
    For the harbor seals, this rule allows up to 1,582 takes (12 by 
Level A harassment and 1,570 by Level B harassment) over the 5-year 
period. For gray seals, this rule allows up to 702 takes (4 by Level A 
harassment and 698 by Level B harassment) over the 5-year period. The 
maximum annual allowable take for each species by Level A harassment 
would be 2 (gray seal) and 8 (harbor seal), and 323 (gray seal) and 738 
(harbor seal) by Level B harassment. Combined, the maximum annual take 
for each species (n=325 for gray seals and n=738 for harbor seals) 
equates to approximately 1.16 and 1.22 percent of the stock abundance, 
respectively, if each take were considered to be of a different 
individual). Though harbor seals and gray seals are considered 
migratory and no specific feeding areas have been designated in the 
area, the higher number of takes relative to the stock abundance 
suggests that while some of the takes likely represent exposures of 
different individuals on 1 day a year, it is likely that some subset of 
the individuals exposed could be taken several times annually.
    Harbor and gray seals occur in New Jersey waters most often from 
December through April, with harbor seal occurrences being more common 
than gray seals (Reynolds, 2021). Seals are more likely to be close to 
shore (e.g., closer to the edge of the area ensonified above NMFS' 
harassment threshold), such that exposure to foundation installation 
would be expected to be at comparatively lower levels. A study by Toth 
et al. (2018) found that harbor seals forage on a variety of prey and 
do not appear to be food specialists and that they might utilize both 
oceanic environments, as well as more nearshore and shallower estuarine 
environments for foraging. As described in the Potential Effects to 
Marine Mammals and Their Habitat section in the proposed rule (88 FR 
65430, September 22, 2023), 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 (see 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 50 CFR part 217--Regulations Governing 
the Taking and Importing of Marine Mammals Incidental to Specified 
Activities.
    As described above, noise from pile driving is mainly low frequency 
and, while any PTS and TTS that does occur would fall within the lower 
end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS would not 
occur at frequencies around 5 kHz where pinniped hearing is most 
susceptible to noise-induced hearing loss (Kastelein et al., 2018). In 
summary, any PTS and TTS would be of small degree and not occur across 
the entire, or even most sensitive, hearing range. Hence, any impacts 
from PTS and TTS are likely to be of low severity and not interfere 
with behaviors critical to reproduction or survival.
    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 (see https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along). 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. This UME is pending closure and 
considered nonactive. In 2022, another UME was declared is occurring in 
Maine with some harbor and gray seals testing positive for highly 
pathogenic avian influenza (HPAI) H5N1 (see https://www.fisheries.noaa.gov/marine-life-distress/2022-pinniped-unusual-mortality-event-maine-closed). For harbor seals, the population 
abundance is over 61,000 and annual M/SI (n=339) is well below PBR 
(1,729) (per the draft 2023 SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). 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 
(per the draft 2023 SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). As no 
injury, serious injury, or mortality is expected or allowed, and Level 
B harassment of gray and harbor seals will be reduced to the level of 
least practicable adverse impact through use of mitigation measures, 
the allowed number of takes would not exacerbate or compound the 
effects of the ongoing UME. The 2022 UME has since been closed.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Project Company 1's activities are not expected to result in 
impacts on the reproduction or survival of any individuals, much less 
affect annual rates of recruitment or survival. For these reasons, we 
have determined that the take by harassment anticipated and allowed 
will have a negligible impact on harbor and gray seals.

[[Page 78049]]

Small Numbers

    As noted above, only small numbers of incidental take may be 
allowed under sections 101(a)(5)(A) and (D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals estimated to be 
taken to the most appropriate estimation of abundance of the relevant 
species or stock in our determination of whether an ITA 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 is authorizing incidental take by Level A harassment and/or 
Level B harassment only of 16 species of marine mammals (with 17 
managed stocks). No mortality or serious injury has been allowed in 
this final rulemaking. The maximum number of instances of takes by 
combined Level A harassment and Level B harassment possible within any 
1 year relative to the best available population abundance is less than 
one-third for all species and stocks potentially impacted (see table 
24). Further, as described above, for most species, including the 
Northern Migratory Coastal stock of Bottlenose dolphins which have the 
highest percentage (29.36), a subset of the instances of take 
enumerated are expected to represent repeated takes of the same 
individuals, which means that the numbers of individuals taken are a 
lower percentage than those listed in table 23 for instances of takes. 
When the predicted number of individuals to be taken is fewer than one-
third of the species or stock abundance, the take is considered to be 
of small numbers (86 FR 5322, January 19, 2021).
    Based on the analysis contained herein of the activities and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Classification

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency ensure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the promulgation of rulemakings, NMFS 
consults internally whenever we propose to allow take for endangered or 
threatened species, in this case with the NMFS GARFO.
    There are four marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA that may taken by 
harassment incidental to construction of the Atlantic Shores South 
Project: (1) the North Atlantic right whale; (2) sei whale, (3) fin 
whale, and (4) sperm whale. The Permit and Conservation Division 
requested initiation of section 7 consultation on July 19, 2023 with 
NMFS GARFO on the issuance of these regulations and associated 5-year 
LOA under section 101(a)(5)(A) of the MMPA.
    NMFS issued a Biological Opinion on December 18, 2023 concluding 
that the promulgation of the rule and issuance of LOA thereunder is not 
likely to jeopardize the continued existence of threatened and 
endangered species under NMFS' jurisdiction and is not likely to result 
in the destruction or adverse modification of designated or proposed 
critical habitat. The Biological Opinion is available at: https://www.fisheries.noaa.gov/s3/2024-02/GARFO-2023-01804.pdf.
    Project Company 1 is required to abide by the promulgated 
regulations, as well as the reasonable and prudent measures and terms 
and conditions of the Biological Opinion and Incidental Take Statement, 
as issued by NMFS.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must 
evaluate our proposed action (i.e., promulgation of regulation) and 
alternatives with respect to potential impacts on the human 
environment. NMFS participated as a cooperating agency on the BOEM 
final Environmental Impact Statement (FEIS) for the Atlantic Shores 
South Project offshore New Jersey (2024 Atlantic Shores South FEIS), 
which was finalized on May 31, 2024 (89 FR 47174) and is available at: 
https://www.boem.gov/renewable-energy/state-activities/atlantic-shores-south. In accordance with 40 CFR 1506.3, NMFS independently reviewed 
and evaluated the 2024 Atlantic Shores South FEIS and determined that 
it is adequate and sufficient to meet our responsibilities under NEPA 
for the promulgation of this rule and issuance of the associated LOA. 
NMFS, therefore, has adopted the 2024 Atlantic Shores South FEIS 
through a joint Record of Decision (ROD) with BOEM. The joint ROD for 
adoption of the 2024 Atlantic Shores South FEIS and promulgation of 
this final rule and subsequent issuance of LOA can be found at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Executive Order 12866 (as Amended by Executive Order 14094)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant for purposes of Executive Order 12866 (58 FR 
51735, September 30, 1993; as amended by Executive Order 14094 (88 FR 
21879, April 11, 2023)).

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.) and Executive Order 13272 (67 FR 53461, August 16, 2002), the 
Chief Counsel for Regulation of the Department of Commerce certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
during the proposed rule stage that this action would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for the certification was published in the proposed 
rule and is not repeated here. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis was not 
required and none was prepared.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) unless that 
collection of information displays a currently valid OMB control 
number. These requirements have been approved by OMB under control 
number 0648-0151

[[Page 78050]]

and include applications for regulations, subsequent LOA, and reports. 
Send comments regarding any aspect of this data collection, including 
suggestions for reducing the burden, to NMFS.

Coastal Zone Management Act (CZMA)

    The Coastal Zone Management Act requires that any applicant for a 
required Federal license or permit to conduct an activity, within the 
coastal zone or within the geographic location descriptions (i.e., 
areas outside the coastal zone in which an activity would have 
reasonably foreseeable coastal effects), affecting any land or water 
use or natural resource of the coastal zone be consistent with the 
enforceable policies of a state's federally approved coastal management 
program. NMFS determined that Project Company 1's application for ITRs 
is an unlisted activity and, thus, is not subject to Federal 
consistency requirements in the absence of the receipt and prior 
approval of an unlisted activity review request from the state by the 
Director of NOAA's Office for Coastal Management. Pursuant to 15 CFR 
930.54, NMFS published a NOR of Project Company 1's application in the 
Federal Register on September 29, 2022 (87 FR 59061), a notice 
regarding an extension to the application public comment period on 
October 28, 2022 (87 FR 65193) and published the proposed rule on 
September 22, 2023 (88 FR 65430). The state of New Jersey did not 
request approval from the Director of NOAA's Office for Coastal 
Management to review Project Company 1's application as an unlisted 
activity, and the time period for making such request has expired. 
Therefore, NMFS has determined the ITA is not subject to Federal 
consistency review.

List of Subjects in 50 CFR Part 217

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

    Dated: August 27, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, NMFS amends 50 CFR part 217 
to read as follows:

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

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

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


0
2. Add subpart EE, consisting of Sec. Sec.  217.300 through 217.309, to 
read as follows:
Subpart EE--Taking Marine Mammals Incidental to the Atlantic Shores 
South Project Offshore of New Jersey
Sec.
217.300 Specified activity and specified geographical region.
217.301 Effective dates.
217.302 Permissible methods of taking.
217.303 Prohibitions.
217.304 Mitigation requirements.
217.305 Monitoring and reporting requirements.
217.306 Letter of Authorization.
217.307 Modifications of Letter of Authorization.
217.308-217.309 [Reserved]

Subpart EE--Taking Marine Mammals Incidental to the Atlantic Shores 
South Project Offshore of New Jersey


Sec.  217.300  Specified activity and specified geographical region.

    (a) This subpart applies to activities associated with the Atlantic 
Shores South Project (hereafter referred to as the ``Project'') by 
Atlantic Shores Offshore Wind Project 1, LLC (i.e., Project Company 1), 
a joint venture between EDF-RE Offshore Development LLC (a wholly owned 
subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC (and 
a subsidiary of Atlantic Shores Offshore Wind LLC), collectively and 
hereafter referred to as the Letter of Authorization Holder, or ``LOA 
Holder'', and those persons it authorizes or funds to conduct 
activities on its behalf in the area outlined in paragraph (b) of this 
section. Requirements imposed on LOA Holder must be implemented by 
those persons it authorizes or funds to conduct activities on its 
behalf.
    (b) The specified geographical region is the Mid-Atlantic Bight, 
which includes, but is not limited to, the Bureau of Ocean Energy 
Management (hereafter, ``BOEM'') lease areas on the Outer Continental 
Shelf (hereafter, ``OCS'')-A-0499 and OCS-A-0570 Commercial Lease of 
Submerged Lands for Renewable Energy Development (hereafter, ``Lease 
Areas''), two export cable routes, and two sea-to-shore transition 
points located at the Atlantic City and the Monmouth landfall 
locations.
    (c) The specified activities are impact pile driving of wind 
turbine generators (hereafter, ``WTG''), offshore substations 
(hereafter, ``OSS''), and a meteorological tower (hereafter, ``Met 
Tower''); vibratory pile driving (installation and subsequent removal) 
of cofferdams; fishery and ecological monitoring surveys; placement of 
scour protection; trenching, laying, and burial activities associated 
with the installation of the export cable from OSSs to shore-based 
converter stations and inter-array cables between turbines; high-
resolution geophysical (hereafter, ``HRG'') site characterization 
surveys; vessel transit within the specified geographical region to 
transport crew, supplies, and materials; and WTG operation.


Sec.  217.301  Effective dates.

    This subpart is effective from January 1, 2025, through December 
31, 2029.


Sec.  217.302  Permissible methods of taking.

    Under the LOA, issued pursuant to Sec. Sec.  216.106 and 217.306, 
LOA Holder and those persons it authorizes or funds to conduct 
activities on its behalf may incidentally, but not intentionally, take 
marine mammals within BOEM Lease Areas, along export cable routes, and 
the two sea-to-shore transition points located in New Jersey at 
Atlantic City and Monmouth in the following ways, provided LOA Holder 
is in complete compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
resulting from impact pile driving of WTG, OSS, and Met Tower 
foundations, vibratory pile driving of temporary cofferdams, and HRG 
site characterization surveys; and
    (b) By Level A harassment associated with the acoustic injury of 
marine mammals by impact pile driving WTG, OSS, and Met Tower 
foundations.
    (c) Take by mortality (death) or serious injury of any marine 
mammal species is not authorized.
    (d) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
stocks:

[[Page 78051]]



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

Sec.  217.303  Prohibitions.

    Except for the takings described in Sec.  217.302 and authorized by 
LOA issued under Sec.  217.306 or Sec.  217.307, 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 LOA issued under Sec.  217.306 or Sec.  
217.307;
    (b) Take any marine mammal not specified in Sec.  217.302(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.  217.302(d), after 
NMFS determines such taking results in more than a negligible impact on 
the species or stocks of such marine mammals.


Sec.  217.304  Mitigation requirements.

    When conducting the activities identified in Sec.  217.300(c) 
within the area described in Sec.  217.300(b), LOA Holder must 
implement the mitigation measures contained in this section and any LOA 
issued under Sec. Sec.  217.306 or 217.307. These mitigation measures 
include, but are not limited to:
    (a) General conditions. LOA Holder must comply with the following 
general measures:
    (1) A copy of any issued LOA must be in the possession of LOA 
Holder and its designees, all vessel operators, visual protected 
species observers (PSOs), passive acoustic monitoring (PAM) operators, 
pile driver operators, and any other relevant designees operating under 
the authority of the issued LOA;
    (2) LOA Holder must conduct training for construction, survey, 
vessel personnel, and the marine mammal monitoring team (PSO and PAM 
operators) prior to the start of all in-water activities in order to 
explain responsibilities, communication procedures, marine mammal 
detection and identification, mitigation, monitoring, and reporting 
requirements, safety and operational procedures, and authorities of the 
marine mammal monitoring team(s). This training must be repeated for 
new personnel who join the work during the Project. A description of 
the training program must be provided to NMFS at least 60 calendar days 
prior to the initial training before in-water activities begin. NMFS 
Office of Protected Resources will review, provide comments (if 
warranted) and approve the training program prior to on-water 
construction beginning. Confirmation of all required training must be 
documented on a training course log sheet and reported to NMFS Office 
of Protected Resources prior to initiating Project activities;
    (3) Prior to and when conducting any in-water specified activities 
and vessel operations, LOA Holder personnel and contractors (e.g., 
vessel operators, PSOs) must use available sources of information on 
North Atlantic right whale presence in or near the Project Area 
including daily monitoring of the Right Whale Sightings Advisory 
System, NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, and monitoring the U.S. Coast Guard's 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 
operator(s) teams. The marine mammal monitoring team must monitor these 
systems no less than every 4 hours every day;
    (4) Any marine mammal observed by Project personnel must be 
immediately communicated to any on-duty PSO(s), PAM operator(s), and 
all vessel captains. Any large whale observation or acoustic detection 
by a PSO(s) or a PAM operator(s) must be conveyed to all vessel 
captains;
    (5) For North Atlantic right whales, any visual detection by a PSO 
or acoustic detection by a PAM operator at any distance (where 
applicable for the specified activities) within the PAM Clearance/
Shutdown Zone must trigger a delay to the commencement of pile driving 
and HRG surveys;
    (6) In the event that a large whale is sighted or acoustically 
detected that cannot be confirmed as a non-North Atlantic right whale, 
it must be treated as if it were a North Atlantic right whale for 
purposes of mitigation;
    (7) Any PSO has the authority to call for a delay or shutdown of 
Project activities. If a delay to commencing an activity is called for 
by a PSO, LOA Holder must take the required mitigative action. If a 
shutdown of an activity is called for by a PSO, LOA Holder must take 
the required mitigative action unless shutdown would result in imminent 
risk of injury or loss of life to an individual(s), pile refusal, or 
pile instability. Any disagreements between the Lead PSO and the 
activity operator or between the Lead PSO and another PSO/PAM operator 
regarding delays or shutdowns must only be discussed after the 
mitigative action has occurred;
    (8) Any marine mammals observed within a clearance or shutdown zone 
must leave (of their own volition) prior to commencing pile driving 
activities or HRG surveys;

[[Page 78052]]

    (9) 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 clearance zone prior to beginning a specified activity, 
the activity must be delayed. If an activity is ongoing and 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 shutdown zone, the activity must be shut down (i.e., cease) 
immediately, unless shutdown would result in imminent risk of injury or 
loss of life to an individual(s), pile refusal, or pile instability. 
The activity must not commence or resume until the animal(s) has been 
confirmed to have left the clearance or shutdown zones and is on a path 
away from the applicable zone or after 15 minutes with no further 
sightings for small odontocetes and pinnipeds or 30 minutes with no 
further sightings for all other species;
    (10) For in-water construction heavy machinery activities listed in 
Sec.  217.300(c), if a marine mammal is on a path towards or comes 
within 10 meters (m) (32.8 feet (ft)) of equipment, LOA Holder must 
cease operations until the marine mammal has moved more than 10 m on a 
path away from the activity to avoid direct interaction with equipment;
    (11) All vessels must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and LOA Holder 
must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS 
Office of Protected Resources ([email protected]) prior 
to initial vessel transit;
    (12) By accepting the LOA, LOA Holder consents to on-site 
observation and inspections by Federal agency personnel (including NOAA 
personnel) during activities described in this subpart, for the 
purposes of evaluating the implementation and effectiveness of measures 
contained within the LOA and this subpart; and
    (13) It is prohibited to assault, harm, harass (including sexually 
harass), oppose, impede, intimidate, impair, or in any way influence or 
interfere with a PSO, PAM Operator, or vessel crew member acting as an 
observer, or attempt the same. This prohibition includes, but is not 
limited to, any action that interferes with an observer's 
responsibilities, or that creates an intimidating, hostile, or 
offensive environment. Personnel may report any violations to the NMFS 
Office of Law Enforcement.
    (b) Vessel strike avoidance measures. LOA Holder must comply with 
the following vessel strike avoidance measures while in the specific 
geographic region, unless a deviation is necessary to maintain safe 
maneuvering speed and justified because the vessel is in an area where 
oceanographic, hydrographic, and/or meteorological conditions severely 
restrict the maneuverability of the vessel; an emergency situation 
presents a threat to the health, safety, or life of a person(s); or 
when a vessel is actively engaged in emergency rescue or response 
duties, including vessel-in distress or environmental crisis response. 
An emergency is defined as a serious event that occurs without warning 
and requires immediate action to avert, control, or remedy harm. Speed 
over ground will be used to measure all vessel speeds:
    (1) Prior to the start of the Project's activities involving 
vessels, all vessel personnel must receive a protected species training 
that covers, at a minimum, identification of marine mammals that have 
the potential to occur where vessels would be operating; detection and 
observation methods in both good weather conditions (i.e., clear 
visibility, low winds, low sea states) and bad weather conditions 
(i.e., fog, high winds, high sea states, with glare); sighting 
communication protocols; all vessel speed and approach limit mitigation 
requirements (e.g., vessel strike avoidance measures); and information 
and resources available to the Project personnel regarding the 
applicability of Federal laws and regulations for protected species. 
This training must be repeated for any new vessel personnel who join 
the Project. Confirmation of the vessel personnel's training and 
understanding of the Incidental Take Authorization (hereafter, ``ITA'') 
requirements must be documented on a training course log sheet and 
reported to NMFS within 30 calendar days of completion of training;
    (2) All vessel operators, operating at any speed and regardless of 
their vessel's size, must slow down, stop their vessel, or alter course 
to avoid striking any marine mammal;
    (3) While in transit, all vessels, regardless of their size, must 
have a dedicated visual observer aboard and on duty at all times whose 
sole responsibility (i.e., must not have duties other than observing) 
is to monitor for marine mammals within a 180 degrees (hereafter, 
``[deg]'') direction of the forward path of the vessel (90[deg] port to 
90[deg] starboard) located at an appropriate vantage point for ensuring 
vessels are maintaining appropriate separation distances. Visual 
observers must be equipped with alternative monitoring technology 
(e.g., night vision devices, infrared cameras) for periods of low 
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements in this 
subpart. These visual observers may be third-party observers (i.e., 
NMFS-approved PSOs; see Sec.  217.305(a)) or trained crew members (see 
paragraph (b)(1) of this section);
    (4) At the onset of transiting and continuously thereafter, vessel 
operators must monitor the U.S. Coast Guard's VHF Channel 16, over 
which North Atlantic right whale sightings are broadcasted. At the 
onset of transiting and at least once every 4 hours, vessel operators 
and/or trained crew member(s) must also monitor the Project's 
Situational Awareness System (if applicable), WhaleAlert, NMFS' website 
at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, and 
relevant NOAA information systems such as the Right Whale Sighting 
Advisory System (hereafter, ``RWSAS'') for the presence of North 
Atlantic right whales;
    (5) Any large whale sighting by any Project-personnel, including 
any LOA Holder staff, contractors, or vessel crew, must be immediately 
communicated to all Project-associated vessel operators, PSOs, and PAM 
operators for situational awareness. Conversely, any large whale 
observation or detection via a sighting network (e.g., Mysticetus or 
similar software) by PSOs or PAM operators must be conveyed to vessel 
operator(s) and crew. An ongoing large whale sighting log sheet must be 
maintained on each vessel and retained for vessel operator(s) review 
each day prior to first day's transit for awareness of recent 
sightings;
    (6) All vessel operators must abide by existing applicable vessel 
speed regulations (see 50 CFR 224.105). Nothing in this subpart exempts 
vessels from any other applicable marine mammal speed or approach 
regulations;
    (7) Vessels must transit at 10 kn (11.5 mph) or less within any 
active North Atlantic right whale Slow Zone (i.e., Dynamic Management 
Areas (hereafter, ``DMA'') or acoustically triggered slow zone);

[[Page 78053]]

    (8) All vessel operators, regardless of their vessel's size, must 
immediately reduce vessel speed to 10 kn (11.5 mph) or less for at 
least 24 hours when a North Atlantic right whale is sighted at any 
distance by any Project-related personnel or acoustically detected by 
any Project-related PAM system. Each subsequent observation or acoustic 
detection in the Project Area shall trigger an additional 24-hour 
period. If a North Atlantic right whale is reported by Project 
personnel or via any of the monitoring systems (refer back to paragraph 
(b)(4) of this section) that vessel must operate at 10 kn (11.5 mph) or 
less for 24 hours following the reported detection;
    (9) All vessels, regardless of size, must immediately reduce speed 
to 10 kn (11.5 mph) or less when any large whale, mother/calf pairs, or 
large assemblages of cetaceans are observed within 500 m (1,640 ft) of 
an underway vessel;
    (10) If vessel(s) are traveling at speeds greater than 10 kn (11.5 
mph) (i.e., during periods where no other speed restrictions are 
enacted) in the transit corridor (defined as from a port to the Lease 
Areas or return), in addition to the required dedicated visual 
observer, LOA Holder must monitor the transit corridor in real-time 
with PAM prior to and during transits. If a North Atlantic right whale 
is detected via visual observation or PAM detection within or 
approaching the transit corridor, all vessels in the transit corridor 
must travel at 10 kn (11.5 mph) or less for 24 hours following the 
detection. Each subsequent detection shall trigger a 24-hour reset. A 
slowdown in the transit corridor expires when there has been no further 
visual or acoustic detection in the transit corridor in the past 24 
hours;
    (11) All vessels must maintain a minimum separation distance of 500 
m (1,640 ft) from North Atlantic right whales. If underway, all vessels 
must steer a course away from any sighted North Atlantic right whale at 
10 kn (11.5 mph) or less such that the 500-m (1,640-ft) minimum 
separation distance requirement is not violated. If a North Atlantic 
right whale is sighted within 500 m (1,640 ft) of an underway vessel, 
that vessel operator must reduce speed and shift the engine to neutral. 
Engines must not be engaged until the whale has moved outside of the 
vessel's path and beyond 500 m (1,640 ft). If a large whale is observed 
but cannot be confirmed as a species other than a North Atlantic right 
whale, the vessel operator must assume that it is a North Atlantic 
right whale and take the vessel strike avoidance measures described in 
this paragraph;
    (12) All vessels must maintain a minimum separation distance of 500 
m (1,640 ft) from all ESA-listed large whales (i.e., sperm whales, fin 
whales, sei whales). If one of these species is sighted within 500 m 
(1,640 ft) of a transiting vessel, the vessel must shift the engine(s) 
to neutral. Engines must not be engaged until the whale has moved 
outside of the vessel's path and beyond 500 m (1,640 ft);
    (13) All vessels must maintain a minimum separation distance of 100 
m (328 ft) from all non-ESA-listed large whales (i.e., humpback whales 
and minke whales). If one of these species is sighted within 100 m (328 
ft) of a transiting vessel, the vessel must shift the engine(s) to 
neutral. Engines must not be engaged until the whale has moved outside 
of the vessel's path and beyond 100 m (328 ft);
    (14) All vessels must maintain a minimum separation distance of 50 
m (164 ft) from all delphinid cetaceans and pinnipeds with an exception 
made for those that approach the vessel (i.e., bow-riding dolphins). If 
a delphinid cetacean or pinniped is sighted within 50 m (164 ft) of a 
transiting vessel, the 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 (164 ft);
    (15) When a marine mammal(s) is sighted while the vessel(s) is 
transiting, the vessel must take action as necessary to avoid violating 
the relevant separation distances (e.g., attempt to remain parallel to 
the animal's course, slow down, and avoid abrupt changes in direction 
until the animal has left the area). This measure does not apply to any 
vessel towing gear or any situation where respecting the relevant 
separation distance would be unsafe (i.e., any situation where the 
vessel is navigationally constrained);
    (16) All vessels underway must not divert or alter course to 
approach any marine mammal;
    (17) Vessel operators must check, daily, for information regarding 
the establishment of mandatory or voluntary vessel strike avoidance 
areas (i.e., Dynamic Management Areas (DMAs), Seasonal Management Areas 
(SMAs), Slow Zones) and any information regarding North Atlantic right 
whale sighting locations; and
    (18) LOA Holder must submit a North Atlantic Right Whale Vessel 
Strike Avoidance Plan (hereafter, ``VSAP'') to NMFS Office of Protected 
Resources for review and approval at least 180 calendar days prior to 
the planned start of vessel activity. The VSAP must provide details on 
the vessel-based observer and PAM protocols for transiting vessels in 
the vessel transit corridor. If the VSAP is not submitted and approved 
by NMFS prior to vessel operations, all Project vessels must travel at 
speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with any 
approved VSAP.
    (c) WTG, OSS, and Met Tower foundation installation. LOA Holder 
must comply with the following WTG, OSS, and Met Tower foundation 
installation measures unless doing so could result in 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 risk of pile refusal or pile 
instability:
    (1) Foundation installation via impact pile driving must not occur 
December 1st through April 30th, annually, wherein foundation 
installation via impact pile driving must be avoided in December unless 
necessary to complete Project 1 or Project 2 in a given year and after 
receipt of prior approval by NMFS. Before any December pile driving may 
occur, and for NMFS Office of Protected Resources to fully evaluate 
this request, LOA Holder is required to provide a written request by 
October 15th, which must include, but is not limited to the following 
information: the installation schedule and types of piles to be 
installed, the maximum number of piles anticipated to be installed in 
December, and any planned or additional practicable mitigative measures 
that could be implemented to further reduce activities to North 
Atlantic right whales and other marine mammal species;
    (2) Monopiles must be no larger than 15-m in diameter, representing 
the larger end of the planned monopile design. During all monopile 
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 4,400 kilojoules (kJ) for 
monopile installation. No more than two monopiles may be installed per 
day;
    (3) Pin piles must be no larger than 5-m in diameter. During all 
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 2,500 kJ for pin pile 
installation. No more than four pin piles may be installed per day;
    (4) LOA Holder must only perform foundation pile driving during 
daylight hours, defined as no earlier than 1 hour prior to civil sunset 
or later than 1.5 hours prior to civil sunrise, and may only continue 
pile driving into darkness

[[Page 78054]]

if stopping operations represents a risk to human health, safety, and/
or pile stability, unless the LOA Holder submits, and NMFS approves, an 
Alternative Monitoring Plan, which would allow pile driving to begin 
after daylight hours have ended. Until this is submitted, reviewed, and 
approved by NMFS, LOA Holder may not begin any new pile driving outside 
of the daylight hours previously defined in this subsection;
    (5) Soft-start must occur at the beginning of impact driving and at 
any time following a cessation of impact pile driving of 30 minutes or 
longer;
    (6) Monitoring of the clearance zones must begin 60 minutes 
immediately prior to initiation of pile driving. The shutdown zones 
must be monitored during all pile driving. If a marine mammal is 
detected within or about to enter the applicable clearance zones 30 
minutes prior to the beginning of pile driving (including soft-start if 
impact pile driving) or during pile driving, pile driving must be 
delayed or shutdown 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;
    (7) For North Atlantic right whales, any visual observation by a 
PSO or acoustic detection within 10 km (6.21 mi) must trigger a delay 
to the commencement of pile driving. Pile driving may only commence if 
no North Atlantic right whale visual or acoustic detections have 
occurred within the clearance zones during the 60-minute monitoring 
period;
    (8) LOA Holder must deploy at least two fully functional noise 
abatement systems during all foundation pile driving;
    (i) A single bubble curtain must not be used;
    (ii) Any bubble curtain(s) must distribute air bubbles using an air 
flow rate of at least 0.5 m\3\/(minute*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must adjust the air supply and operating pressure such that the maximum 
possible sound attenuation performance of the bubble curtain(s) is 
achieved;
    (iii) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (iv) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring;
    (v) A full maintenance check (e.g., manually clearing holes) must 
occur prior to each pile being installed;
    (vi) LOA Holder must inspect and carry out appropriate maintenance 
on the noise attenuation system prior to every pile driving event and 
prepare and submit a Noise Attenuation System (NAS) inspection/
performance report. For piles for which thorough SFV is carried out, 
this report must be submitted as soon as it is available, but no later 
than when the interim SFV report is submitted for the respective pile. 
Performance reports for piles monitoring with abbreviated SFV must be 
submitted with the weekly pile driving reports;
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in paragraph (c)(9) of this section must occur prior to 
impact pile driving of foundation piles; and
    (viii) For any noise mitigation device used in addition to the 
double bubble curtain, LOA Holder must inspect and carry out 
maintenance on the system and ensure the system is functioning properly 
prior to every pile driving event.
    (9) LOA Holder must utilize PAM systems, as described in a NMFS-
approved PAM Plan. The PAM system components (i.e., acoustic buoys) 
must not be placed closer than 1 km (0.6 mi) to the pile being driven 
so that the activities do not mask the PAM system. LOA Holder must 
demonstrate and prove the detection range of the system they plan to 
deploy while considering potential masking from pile-driving and vessel 
noise. The PAM system must be able to:
    (i) Detect all marine mammals;
    (ii) Maximize baleen whale detections; and
    (iii) Must be capable of detecting North Atlantic right whales at 
10 km (6.21 mi).
    (10) Concurrently, LOA Holder must utilize PSO(s) and PAM 
operator(s), as described in Sec.  217.305(c). PAM operators must be 
deployed and monitoring for marine mammals in accordance with a NMFS-
approved PAM Plan. If a marine mammal is detected (visually or 
acoustically entering or within the respective shutdown zone after pile 
driving has begun, the PSO must call for a shutdown of pile driving and 
LOA Holder must stop pile driving immediately. If pile driving is not 
shut down due to a safety or pile instability/refusal situation, LOA 
Holder must reduce hammer energy to the lowest level practicable and 
the reason(s) for not shutting down must be documented and reported to 
NMFS Office of Protected Resources within the applicable monitoring 
reports (e.g., weekly, monthly);
    (11) If a marine mammal is detected (visually or acoustically) 
entering or within the respective shutdown zone after pile driving has 
begun, the PSO must call for a shutdown of pile driving and LOA Holder 
must stop pile driving immediately. If pile driving is not shut down 
due to a safety or pile instability/refusal situation, LOA Holder must 
reduce hammer energy to the lowest level practicable and the reason(s) 
for not shutting down must be documented and reported to NMFS Office of 
Protected Resources within the applicable monitoring reports (e.g., 
weekly, monthly) (see Sec.  217.305(g));
    (12) A visual observation at any distance from a PSO or an acoustic 
detection of a North Atlantic right whale within the 10 km (6.21 mi) 
PAM Clearance/Shutdown Zone triggers shutdown requirements under 
paragraph (c)(11) of this section. If pile driving has been shut down 
due to the presence of a North Atlantic right whale, pile driving may 
not restart until the North Atlantic right whale has neither been 
visually nor acoustically detected for 30 minutes;
    (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 pinnipeds, and 30 minutes for all other marine mammal 
species. In cases where these criteria are not met, pile driving may 
restart only if necessary to maintain pile stability or avoid refusal, 
during which time LOA Holder must use the lowest hammer energy 
practicable;
    (14) LOA Holder must conduct thorough sound field verification 
(hereafter, ``SFV'') measurements during pile driving activities 
associated with the installation of, at minimum, the first three 
monopile foundations installed each calendar year and the first three 
jacket foundations (inclusive of all pin piles installed for a given 
jacket foundation). For all thorough SFV, measurements must continue 
until at least three monopiles and three jacket

[[Page 78055]]

foundations demonstrate distances to harassment thresholds are at or 
below those modeled, assuming 10 decibels (hereafter, ``dB'') of 
attenuation. Subsequent thorough SFV measurements are also required 
should larger piles be installed or if additional foundations are 
driven that may produce louder sound fields than those previously 
measured (e.g., higher hammer energy, greater number of strikes, etc.). 
All thorough SFV measurements must be conducted as follows:
    (i) Measurements must be made at a minimum of four distances from 
the foundation(s) being driven, along a single transect, in the 
direction of lowest transmission loss, including, but not limited to, 
750 m (2,460 ft) and three additional ranges, including, at least, the 
applicable modeled Level B harassment isopleth, assuming 10 dB 
attenuation. At least one additional measurement at an azimuth 90 
degrees from the array at 750 m (2,460 ft) must be made. At each 
location, there must be a near bottom and mid-water column hydrophone;
    (ii) The recordings must be continuous throughout the duration of 
all pile driving of each pile for a given foundation;
    (iii) The SFV measurement systems must have a sensitivity 
appropriate for the expected sound levels from pile driving received at 
the nominal ranges throughout the installation of the pile(s). The 
frequency range of SFV measurement systems must cover the range of at 
least 20 hertz (hereafter, ``Hz'') to 20 kilohertz (hereafter, 
``kHz''). The SFV measurement systems must be designed to have 
omnidirectional sensitivity so that the broadband received level of all 
pile driving exceeds the system noise floor by at least 10 dB. The 
dynamic range of the SFV measurement system must be sufficient such 
that, at each piling location, the signals must avoid poor signal-to-
noise ratios for low amplitude signals and avoid clipping, 
nonlinearity, and saturation for high amplitude signals;
    (iv) All hydrophones used in SFV measurements systems are required 
to have undergone a full system, traceable laboratory calibration 
conforming to International Electrotechnical Commission (hereafter, 
``IEC'') 60565, or an equivalent standard procedure, from a factory or 
accredited source to ensure the hydrophone receives accurate sound 
levels, at a date not to exceed 2 years before deployment. Additional 
in-situ calibration checks using a pistonphone are required to be 
performed before and after each hydrophone deployment. If the 
measurement system employs filters via hardware or software (e.g., 
high-pass, low-pass, etc.), which are not already accounted for by the 
calibration, the filter performance (i.e., the filter's frequency 
response) must be known, reported, and the data corrected before 
analysis;
    (v) LOA Holder must be prepared with additional equipment (e.g., 
hydrophones, recording devices, hydrophone calibrators, cables, 
batteries, etc.), which exceeds the amount of equipment necessary to 
perform the measurements, such that technical issues can be mitigated 
before measurement; and
    (vi) LOA Holder must submit interim thorough SFV reports within 48 
hours after each foundation is measured (see Sec.  217.305(g) for 
interim reporting requirements).
    (15) For thorough SFV on monopile and jacket foundations:
    (i) If any of the thorough SFV measurements from any foundation 
(monopile or jacket) indicate the distances to NMFS' marine mammal 
Level A harassment or Level B harassment thresholds, assuming 10-dB 
attenuation, are greater than those modeled, before the next foundation 
is installed, LOA Holder must identify and propose for review and 
concurrence: additional, modified, and/or alternative noise attenuation 
measures or operational changes that present a reasonable likelihood of 
reducing sound levels to the modeled distances on subsequent 
foundations; provide a written explanation to NMFS Office of Protected 
Resources supporting that determination and requesting concurrence to 
proceed; and, following NMFS Office of Protected Resource's 
concurrence, deploy those additional measure or modifications on any 
subsequent foundation that are installed;
    (A) LOA Holder must also increase clearance and shutdown zone sizes 
to those identified by NMFS Office of Protected Resources. For every 
1,500 m (4,921.3 ft) that a marine mammal clearance or shutdown zone is 
expanded, additional PSOs must be deployed from additional platforms/
vessels to ensure adequate and complete monitoring of the expanded 
shutdown and/or clearance zone;
    (B) Following installation of the foundation with additional, 
alternative, or modified noise attenuation measures/operational 
changes, SFV must be conducted on two additional foundations. If the 
SFV results from all three of those foundations are within the 
distances to isopleths of concern modeled assuming 10 dB attenuation, 
LOA Holder must continue to implement the approved additional, 
alternative, or modified sound attenuation measures/operational 
changes;
    (C) If, after all practicable measures that could be taken to 
reduce noise levels have been successfully implemented and exhausted, 
thorough SFV measurements continue to indicate that the distances to 
the marine mammal harassment thresholds are greater than those modeled 
assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of 
Protected Resources to evaluate the circumstances before additional 
piles are installed; and
    (ii) If, through SFV indicate that ranges to isopleths 
corresponding to the Level A harassment and/or Level B harassment 
thresholds are less than those predicted by modeling (assuming 10-dB 
attenuation), LOA Holder may request a modification of the minimum 
visibility, clearance, and shutdown zones from NMFS Office of Protected 
Resources. For NMFS Office of Protected Resources to consider a 
modification request for reduced zone sizes, LOA Holder must have 
conducted thorough SFV measurements on three foundations and ensure 
that subsequent foundations would be installed under conditions that 
are predicted to produce smaller harassment zones than those modeled 
assuming 10-dB of attenuation, provided LOA Holder continue to 
implement the approved additional, alternative, or modified sound 
attenuation measures/operational changes.
    (16) LOA Holder must conduct abbreviated SFV monitoring, consisting 
of a single acoustic recorder with a bottom and midwater hydrophone, 
placed at an appropriate distance from each pile driven foundation 
installations, on all foundations for which thorough SFV monitoring, as 
described in paragraph (c)(15) of this section, is not performed. 
Results of abbreviated SFV monitoring must be included in the weekly 
pile driving reports;
    (i) Abbreviated SFV monitoring duration and equipment must comply 
with the conditions specified in paragraphs (c)(14)(ii) through (v) of 
this section; and
    (ii) If the results of abbreviated SFV monitoring indicate that 
distances to the identified Level A and Level B harassment thresholds 
for marine mammals may have been exceeded during the pile driving 
event, LOA Holder must notify NMFS Office of Protected Resources as 
soon as possible after receiving such results, and include an 
explanation of suspected or identified factors that contributed to the

[[Page 78056]]

potential exceedance and corrective actions that were taken, or planned 
to be taken, to avoid potential exceedance on subsequent piles. 
Additional actions may include: adjustments or additions to the noise 
attenuation system or pile driving operations and/or additional 
thorough SFV monitoring.
    (17) LOA Holder must conduct SFV measurements during turbine 
operations to estimate turbine operational source levels and 
transmission loss rates in accordance with an NMFS-approved SFV Plan;
    (18) LOA Holder must submit a SFV Plan to NMFS Office of Protected 
Resources for review and approval at least 180 calendar days prior to 
planned start of foundation installation activities and abide by the 
SFV Plan, if approved. At minimum, the SFV Plan must describe how 
thorough and abbreviated SFV would be conducted, and if the first three 
monopile foundation/first three entire jacket foundations (inclusive of 
all pin piles for a given jacket foundation) installation sites 
selected for thorough SFV measurements are representative of the 
remainder of the monopile and jacket foundation installation sites or 
include information in the SFV Plan on which additional sites/scenarios 
would be selected for thorough SFV measurements. This SFV Plan must 
also describe approaches that LOA Holder could take to adjust noise 
attenuation systems or add systems in the case that any SFV 
measurements obtained demonstrate that noise levels are above those 
modeled (assuming 10 dB of attenuation). Prior to operations for each 
Project, the SFV Plan must also include how operational noise would be 
monitored. Operational parameters (e.g., direct drive 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. Additionally, the SFV Plan 
must also include methodology for collecting, analyzing, and preparing 
thorough and abbreviated SFV measurement data for submission to NMFS 
Office of Protected Resources and describe how the effectiveness of the 
sound attenuation methodology would be evaluated based on the results. 
Pile driving may not occur until NMFS approves the SFV Plan;
    (19) LOA Holder must submit a Foundation Installation Pile Driving 
Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for 
review and approval at least 180 calendar days prior to planned start 
of foundation pile driving and abide by the Foundation Installation 
Pile Driving Marine Mammal Monitoring Plan if approved. LOA Holder must 
obtain both NMFS Office of Protected Resources and NMFS Greater 
Atlantic Regional Fisheries Office Protected Resources Division's 
concurrence with this Plan prior to the start of any pile driving. The 
Plan must include, but is not limited to, the following: the final pile 
driving Project design (e.g., number and type of piles, hammer type, 
noise abatement systems, anticipated start date, etc.) and a 
description of all monitoring equipment and PAM operator and PSO 
protocols (including number and location of PSOs and PAM operators) for 
all foundation pile driving. No foundation pile installation can occur 
without NMFS' approval of the Foundation Installation Pile Driving 
Marine Mammal Monitoring Plan. More information on what this Plan must 
include can be found in the LOA; and
    (20) LOA Holder must submit a Passive Acoustic Monitoring Plan 
(hereafter, ``PAM Plan'') to NMFS Office of Protected Resources for 
review and approval at least 180 calendar days prior to the planned 
start of foundation installation activities and abide by the PAM Plan, 
if approved. The PAM Plan must include a description of all proposed 
PAM equipment, address how the proposed passive acoustic monitoring 
must follow standardized measurement, processing methods, reporting 
metrics, and metadata standards for offshore wind. The PAM Plan must 
describe all proposed PAM equipment, procedures, and protocols 
including proof that vocalizing North Atlantic right whales will be 
detected within the clearance and shutdown zones. No pile installation 
can occur if LOA Holder's PAM Plan does not receive approval from NMFS 
Office of Protected Resources and NMFS Greater Atlantic Regional 
Fisheries Office Protected Resources Division.
    (d) Cofferdam installation and removal. The following requirements 
apply to the installation and removal of cofferdams at the cable 
landfall construction sites:
    (1) Installation of cofferdams must not occur during nighttime 
hours (defined as the hours between 1.5 hours prior to civil sunset and 
1 hour after civil sunrise);
    (2) LOA Holder must establish and implement clearance zones for the 
installation and removal of cofferdams using visual monitoring. These 
zones must be measured using the radial distance from the cofferdam 
being installed and/or removed;
    (3) LOA Holder must utilize PSO(s), as described in Sec.  
217.305(d). At least two on-duty PSOs must monitor for marine mammals 
at least 30 minutes before, during, and 30 minutes after vibratory pile 
driving associated with cofferdam installation;
    (4) If a marine mammal(s) is observed entering or is observed 
within the clearance zones, before vibratory pile driving has begun, 
the activity must not commence until the animal(s) has exited the zone 
or a specific amount of time has elapsed since the last sighting. The 
specific time periods are 15 minutes for small odontocetes and 
pinnipeds and 30 minutes for all other marine mammal species;
    (5) If a marine mammal is observed entering or within the 
respective shutdown zone after vibratory pile driving has begun, the 
PSO must call for a shutdown of vibratory pile driving. LOA Holder must 
stop pile driving immediately unless shutdown is not practicable due to 
imminent risk of injury or loss of life to an individual or if there is 
a risk of damage to the vessel that would create a risk of injury or 
loss of life for individuals or if the lead engineer determines there 
is refusal or instability. In any of these situations, LOA Holder must 
document the reason(s) for not shutting down and report the information 
to NMFS Office of Protected Resources in the annual report (as 
described in Sec.  217.305(h)). In cases where shutdown is not 
feasible, pile driving may restart only if necessary to maintain pile 
stability at which time LOA Holder must use the lowest energy 
practicable to maintain stability; and
    (6) Vibratory pile driving must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and has 
been visually confirmed beyond that clearance zone or when specific 
time periods have elapsed with no further sightings or acoustic 
detections have occurred. The specific time periods are 15 minutes for 
small odontocetes and pinnipeds and 30 minutes for all other marine 
mammal species.
    (e) HRG surveys. The following requirements apply to HRG surveys 
operating sub-bottom profilers (hereinafter, ``acoustic sources'') 
(i.e., sparkers and Compressed High Intensity Radiated Pulse (CHIRPs)):
    (1) LOA Holder must establish and implement clearance and shutdown 
zones for HRG surveys using visual monitoring, as described in 
paragraph (c) of this section;
    (2) LOA Holder must utilize PSO(s), as described in Sec.  
217.305(e);
    (3) LOA Holder must abide by the relevant Project Design Criteria 
(hereafter, ``PDCs''; specifically, PDCs 4, 5, and 7) of the 
programmatic consultation completed by NMFS'

[[Page 78057]]

Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised 
September 2021), pursuant to section 7 of the Endangered Species Act 
(hereafter, ``ESA''). To the extent that any relevant Best Management 
Practices (hereafter, ``BMPs'') described in these PDCs are more 
stringent than the requirements herein, those BMPs supersede these 
requirements and must be implemented;
    (4) Acoustic sources must be deactivated when not acquiring data or 
preparing to acquire data, except as necessary for testing. Acoustic 
sources must be used at the lowest practicable source level to meet the 
survey objective, when in use, and must be turned off when they are not 
necessary for the survey;
    (5) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
LOA Holder is required to ramp-up acoustic sources to half power for 5 
minutes prior to commencing full power, unless the equipment operates 
on a binary on/off switch (in which case ramp-up is not required). LOA 
Holder must also ensure visual clearance zones are fully visible (e.g., 
not obscured by darkness, rain, fog, etc.) and clear of marine mammals, 
as determined by the Lead PSO, for at least 30 minutes immediately 
prior to the initiation of survey activities using acoustic sources;
    (6) 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;
    (7) Prior to a ramp-up procedure starting or activating acoustic 
sources, the acoustic source operator (operator) must notify a 
designated PSO of the planned start of ramp-up as agreed upon with the 
Lead PSO. The notification time should not be less than 60 minutes 
prior to the planned ramp-up or activation in order to allow the PSOs 
time to monitor the clearance zone(s) for 30 minutes prior to the 
initiation of ramp-up or activation (pre-start clearance). During this 
30-minute pre-start clearance period, the entire applicable clearance 
zones must be visible, except as indicated in paragraph (f)(12) of this 
section;
    (8) Ramp-ups must be scheduled so as to minimize the time spent 
with the source activated;
    (9) A PSO conducting pre-start clearance observations must be 
notified again immediately prior to reinitiating ramp-up procedures and 
the operator must receive confirmation from the PSO to proceed;
    (10) 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;
    (11) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up and acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (12) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(i.e., infrared (IR)/thermal camera), and the Lead PSO has determined 
that the clearance zones are clear of marine mammals, survey operations 
may commence (i.e., no delay is required) despite periods of inclement 
weather and/or loss of daylight. Ramp-up may occur at times of poor 
visibility, including nighttime, if appropriate visual monitoring has 
occurred with no detections of marine mammals in the 30 minutes prior 
to beginning ramp-up;
    (13) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone, 
except in cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations may continue (i.e., 
no shutdown is required) so long as no marine mammals have been 
detected. The shutdown requirement does not apply to small delphinids 
of the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. If there is uncertainty regarding the identification of a 
marine mammal species (i.e., whether the observed marine mammal belongs 
to one of the delphinid genera for which shutdown is waived), the PSOs 
must use their best professional judgment in making the decision to 
call for a shutdown. Shutdown is required if a delphinid that belongs 
to a genus other than those specified in paragraph (e)(13) of this 
section is detected in the shutdown zone;
    (14) If an acoustic source has been shut down due to the presence 
of a marine mammal, the use of an acoustic source may not commence or 
resume until the animal(s) has been confirmed to have left the Level B 
harassment zone or until a full 15 minutes (for small odontocetes and 
seals) or 30 minutes (for all other marine mammals) have elapsed with 
no further sighting; and
    (15) If an acoustic source is shut down for a period longer than 30 
minutes, all clearance and ramp-up procedures must be initiated. If an 
acoustic source is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, acoustic sources may 
be activated again without ramp-up only if PSOs have maintained 
constant observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones.
    (f) Fisheries monitoring surveys. The following measures apply to 
fishery monitoring surveys:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification. Marine mammal 
monitoring will be conducted by the captain and/or a member of the 
scientific crew within 1 nautical mile (nmi) (1.85 km; 1.2 mi) and 15 
minutes prior to deploying gear), during, and for 15 minutes after haul 
back;
    (2) Survey gear must be deployed as soon as possible once the 
vessel arrives on station. Gear must not be deployed if there is a risk 
of interaction with marine mammals. Gear may be deployed after 15 
minutes of no marine mammal sightings within 1 nmi (1,852 m) of the 
sampling station;
    (3) LOA Holder and/or its cooperating partners, contracted vessels, 
or commercially hired captains must implement the following ``move-on'' 
rule: if marine mammals are sighted within 1 nmi (1.2 mi) of the 
planned location and 15 minutes before gear deployment, then LOA Holder 
and/or its cooperating partners, contracted vessels, or commercially 
hired captains, as appropriate, must move the vessel away from the 
marine mammal to a different section of the sampling area. If, after 
moving on, marine mammals are still visible from the vessel, LOA Holder 
and its cooperating partners, contracted vessels, or commercially hired 
captains must move again or skip the station;
    (4) If a marine mammal is at risk of interacting with deployed 
gear, all gear must be immediately removed from the water. If marine 
mammals are sighted before the gear is fully removed from the water, 
LOA Holder must take the most appropriate action to avoid marine mammal 
interaction and the vessel must slow its speed and maneuver the vessel 
away from the animals to minimize

[[Page 78058]]

potential interactions with the observed animal;
    (5) Unless using ropeless gear, LOA Holder must maintain visual 
marine mammal monitoring effort during the entire period of time that 
gear is in the water (i.e., throughout gear deployment, fishing, and 
retrieval);
    (6) All fisheries monitoring gear must be fully cleaned and 
repaired (if damaged) before each use/deployment;
    (7) LOA Holder's fixed gear must comply with the Atlantic Large 
Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries 
monitoring surveys;
    (8) Trawl tows must be limited to a maximum of a 20-minute trawl 
time at 3.0 kn (3.45 mph);
    (9) All gear must be emptied as close to the deck/sorting area and 
as quickly as possible after retrieval;
    (10) During trawl surveys, vessel crew must open the codend of the 
trawl net close to the deck in order to avoid injury to animals that 
may be caught in the gear;
    (11) All fishery survey-related lines must include the breaking 
strength of all lines being less than 1,700 pounds (lbs) (771 kilograms 
(kg)). This may be accomplished by using whole buoy line that has a 
breaking strength of 1,700 lbs (771 kg); or buoy line with weak inserts 
that result in line having an overall breaking strength of 1,700 lbs 
(771 kg);
    (12) During any survey that uses vertical lines, buoy lines must be 
weighted and must not float at the surface of the water and all 
groundlines must be composed entirely of sinking lines. Buoy lines must 
utilize weak links. Weak links must break cleanly leaving behind the 
bitter end of the line. The bitter end of the line must be free of any 
knots when the weak link breaks. Splices are not considered to be 
knots. The attachment of buoys, toggles, or other floatation devices to 
groundlines is prohibited;
    (13) All in-water survey gear, including buoys, must be properly 
labeled with the scientific permit number or identification as LOA 
Holder's research gear. All labels and markings on the gear, buoys, and 
buoy lines must also be compliant with the applicable regulations, and 
all buoy markings must comply with instructions received by the NOAA 
Greater Atlantic Regional Fisheries Office Protected Resources 
Division;
    (14) All survey gear must be removed from the water whenever not in 
active survey use (i.e., no wet storage);
    (15) All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear; and
    (16) All lost gear associated with the fishery surveys must be 
reported to the 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.  217.305  Monitoring and reporting requirements.

    (a) Protected species observer (PSO) and passive acoustic 
monitoring (PAM) operator qualifications. LOA Holder must implement the 
following measures applicable to PSOs and PAM operators:
    (1) LOA Holder must use independent, NMFS-approved PSOs and PAM 
operators (i.e., the PSOs and PAM operators must be employed by a 
third-party observer provider) must have no tasks other than to conduct 
observational effort, collect data, and communicate with and instruct 
relevant crew with regard to the presence of protected species and 
mitigation requirements;
    (2) All PSOs and PAM operators must have successfully attained a 
bachelor's degree in one of the natural sciences. The educational 
requirements may be waived if the PSO or PAM operator has acquired the 
relevant skills through a suitable amount of alternate experience. 
Requests for such a waiver must be submitted to NMFS Office of 
Protected Resources and must include written justification containing 
alternative experience. Alternate experiences that may be considered 
include but are not limited to: previous work experience conducting 
academic, commercial, or government-sponsored marine mammal visual and/
or acoustic surveys; or previous work experience as a PSO/PAM operator. 
All PSOs and PAM operators should demonstrate good standing and 
consistently good performance of all assigned duties;
    (3) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); ability to conduct field 
observations and collect data according to the assigned protocols; 
sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times 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;
    (4) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations (as 
described in paragraphs (b)(5) and (6) of this section);
    (5) All PSOs and PAM operators must successfully complete a 
relevant training course within the last 5 years, including obtaining a 
certificate of course completion;
    (6) PSOs are responsible for obtaining NMFS' approval. NMFS may 
approve PSOs as conditional or unconditional. A conditionally approved 
PSO may be one who has completed training in the last 5 years but has 
not yet attained the requisite field experience. An unconditionally 
approved PSO is one who has completed training within the last 5 years 
and attained the necessary experience (i.e., demonstrate experience 
with monitoring for marine mammals at clearance and shutdown zone sizes 
similar to those produced during the respective activity);
    (7) At least one PSO for each activity (e.g., foundation 
installation, cable landfall construction, and HRG surveys) on each 
vessel must be designated as the Lead PSO. The Lead PSO must meet the 
minimum requirements described in paragraphs (a)(2) through (5) of this 
section and have a minimum of 90 days of at-sea experience visually 
monitoring marine mammals, including baleen whales, and no more than 18 
months may have elapsed since the conclusion of their last at-sea 
experience;
    (8) PSOs for cable landfall construction (i.e., vibratory pile 
installation and removal) and HRG surveys may be unconditionally or 
conditionally approved. A conditionally approved PSO must be paired 
with an unconditionally approved PSO. PSOs for foundation installation 
must be unconditionally approved;
    (9) PAM operators are responsible for obtaining NMFS approval. To 
be approved as a PAM operator, the person must meet the following 
qualifications. The PAM operator must: demonstrate

[[Page 78059]]

that they have prior experience with relevant acoustic software and 
equipment and real-time acoustic detection systems and/or have 
completed specialized training for operating PAM systems and detecting 
and identifying Atlantic Ocean marine mammals sounds, in particular: 
North Atlantic right whale sounds, humpback whale sounds, and how to 
deconflict them from similar North Atlantic right whale sounds, and 
other co-occurring species' sounds in the area including sperm whales; 
be able to distinguish between whether a marine mammal or other species 
sound is detected, possibly detected, or not detected; be able to 
review and classify acoustic detections in real-time (prioritizing 
North Atlantic right whales and noting detection of other cetaceans) 
during the real-time monitoring periods where localization of sounds or 
deriving bearings and distance are possible and demonstrate experience 
in using this technique; have the qualifications and relevant 
experience/training to safely deploy and retrieve equipment and program 
the software, as necessary; and must be able to test software and 
hardware functionality prior to operation;
    (10) LOA Holder must submit previously approved PSOs and PAM 
operators to NMFS Office of Protected Resources for review and 
confirmation of their approval for specific roles at least 30 business 
days prior to commencement of the activities requiring PSOs/PAM 
operators or 15 business days prior to when new PSOs/PAM operators are 
required after activities have commenced;
    (11) For prospective PSOs and PAM operators not previously 
approved, or for PSOs and PAM operators whose approval is not current, 
LOA Holder must submit resumes for approval at least 60 business days 
prior to PSO and PAM operator use. Resumes must include information 
related to relevant education, experience, and training, including 
dates, duration, location, and description of prior PSO or PAM operator 
experience. Resumes must be accompanied by relevant documentation of 
successful completion of necessary training;
    (12) PSOs may work as PAM operators and vice versa, pending NMFS-
approval; however, they may only perform one role at any single time 
and must not exceed work time restrictions, which must be tallied 
cumulatively; and
    (13) All PSOs and PAM operators must complete a Permits and 
Environmental Compliance Plan training and a 2-day refresher session 
that must be held with the PSO/PAM operator provider and Project 
compliance representative(s) prior to the start of in-water Project 
activities requiring PSOs and PAM operators.
    (b) General PSO and PAM operator requirements. The following 
measures apply to PSOs and PAM operators and must be implemented by LOA 
Holder:
    (1) PSOs must monitor for marine mammals prior to, during, and 
following all impact pile driving, vibratory pile driving, and HRG 
surveys that use sub-bottom profilers (with specific monitoring 
durations and needs described in paragraphs (c) through (f) of this 
section, respectively). Monitoring must be done while free from 
distractions and in a consistent, systematic, and diligent manner;
    (2) All PSOs must be located at the best vantage point(s) on any 
platform, as determined by the Lead PSO. 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 and acoustic data analysis software) available wherever 
they are stationed, and data or data products must be streamed in real-
time or in near real-time;
    (3) All on-duty PSOs must remain in real-time contact with the on-
duty PAM operator(s). PAM operator(s) must immediately communicate all 
acoustic detections of marine mammals to PSOs, including any 
determination regarding species identification, distance, and bearing 
(where relevant) relative to the pile being driven and the degree of 
confidence (e.g., possible, probable detection) in the determination. 
All on-duty PSOs and PAM operator(s) must remain in contact with the 
on-duty construction personnel responsible for implementing mitigations 
(e.g., delay to pile driving) to ensure communication on marine mammal 
observations can easily, quickly, and consistently occur between all 
on-duty PSOs, PAM operator(s), and on-water Project personnel;
    (4) The PAM operator must inform the Lead PSO(s) on duty of animal 
detections, including any determination regarding species 
identification, distance, bearing, and degree of confidence in the 
determinations, approaching or within applicable ranges of interest to 
the activity occurring via the data collection software system, (e.g., 
Mysticetus or similar system) who must be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay);
    (5) PSOs must use high magnification (25x) binoculars, standard 
handheld (7x) binoculars, and the naked eye to search continuously for 
marine mammals. During foundation installation, at least two PSOs on 
the pile driving-dedicated PSO vessel(s) 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 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;
    (7) PSOs and PAM operators must not exceed 4 consecutive watch 
hours on duty at any time, must have a 2-hour (minimum) break between 
watches, and must not exceed a combined watch schedule of more than 12 
hours in a 24-hour period. If the schedule includes PSOs and PAM 
operators on-duty for 2-hour shifts, a minimum 1-hour break between 
watches must be allowed; and
    (8) During daylight hours when equipment is not operating, LOA 
Holder must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (c) PSO and PAM operator requirements during WTG, OSS, and Met 
Tower foundation installation. The following measures apply to PSOs and 
PAM operators during WTG, OSS, and Met Tower foundation installation 
and must be implemented by LOA Holder:
    (1) At least three on-duty PSOs must be stationed and observing 
from the pile driving activity platform. Additionally, LOA Holder must 
use two dedicated-PSO vessels and each vessel must have at least three 
PSOs on duty. LOA Holder may request NMFS approval to use alternative 
technology in lieu of one or two of the dedicated PSO vessels that 
provide similar marine mammal detection capabilities. If NMFS approves 
the use of alternative technology in lieu of the additional PSO 
vessels, LOA Holder must abide by any conditions of approved, as 
specified by NMFS;
    (2) PSOs and PAM operator(s), using a NMFS-approved PAM system, 
must monitor for marine mammals 60 minutes prior to, during, and 30 
minutes following all pile-driving. If PSOs cannot visually monitor the 
minimum visibility zone for the 60 minutes prior to and during pile

[[Page 78060]]

driving, pile-driving operations must not commence or must shutdown if 
they are currently active; and
    (3) LOA Holder must conduct PAM for at least 24 hours prior to pile 
driving activities. The PAM operator(s) must review all detections from 
the previous 24-hour period prior to starting foundation pile driving.
    (d) PSO requirements during cable landfall construction. The 
following measures apply to PSOs during cofferdam installation and 
removal and must be implemented by LOA Holder:
    (1) At least two PSOs must be on active duty during all activities 
related to the installation and removal of cofferdams; and
    (2) PSOs must monitor the clearance zone for the presence of marine 
mammals for 30 minutes before, throughout the installation of the sheet 
piles, and for 30 minutes after all vibratory pile driving activities 
have ceased. Sheet pile installation and removal must only commence 
when visual clearance zones are fully visible (e.g., not obscured by 
darkness, rain, fog, etc.) and clear of marine mammals, as determined 
by the Lead PSO, for at least 30 minutes immediately prior to the 
initiation of vibratory pile driving.
    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using CHIRPs and sparkers and must be 
implemented by LOA Holder:
    (1) Between four and six PSOs must be present on every 24-hour 
survey vessel and two to three PSOs must be present on every 12-hour 
survey vessel;
    (2) At least one PSO must be on active duty monitoring 30 minutes 
before, during, and 30 minutes after 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 active 
duty monitoring 30 minutes before, during, and 30 minutes after HRG 
surveys conducted at night;
    (3) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating acoustic sources, during the use of these acoustic sources, 
and for 30 minutes after use of these acoustic sources has ceased;
    (4) Any observations of marine mammals must be communicated to PSOs 
on all nearby survey vessels during concurrent HRG surveys; and
    (5) During daylight hours when survey equipment is not operating, 
LOA Holder must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (f) Monitoring requirements during fisheries monitoring surveys. 
The following measures apply during fisheries monitoring surveys and 
must be implemented by LOA Holder:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification; and
    (2) Marine mammal monitoring must be conducted within 1 nmi from 
the planned survey location by the trained captain and/or a member of 
the scientific crew for 15 minutes prior to deploying gear, throughout 
gear deployment and use (unless using ropeless gear), and for 15 
minutes after haul back.
    (g) Reporting. LOA Holder must comply with the following reporting 
measures:
    (1) Prior to initiation of any specified activities, LOA Holder 
must demonstrate, in a report submitted to NMFS Office of Protected 
Resources, that all required training for LOA Holder personnel 
(including the vessel crews, vessel captains, PSOs, and PAM operators) 
has been completed;
    (2) LOA Holder must use a standardized reporting system during the 
effective period of the LOA. All data collected related to the Project 
must be recorded using industry-standard software that is installed on 
field laptops and/or tablets. Unless stated otherwise, all reports must 
be submitted to NMFS Office of Protected Resources 
([email protected]), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
with the coordinate system information (e.g., North American Datum of 
1983 (NAD83), World Geodetic System 1984 (WGS84), etc.);
    (3) For all visual monitoring efforts and marine mammal sightings, 
the following information must be collected and reported to NMFS Office 
of Protected Resources: the date and time that monitored activity 
begins or ends; the construction activities occurring during each 
observation period; the watch status (i.e., sighting made by PSO on/off 
effort, opportunistic, crew, alternate vessel/platform); the PSO who 
sighted the animal; the time of sighting; the weather parameters (e.g., 
wind speed, percent cloud cover, visibility); the water conditions 
(e.g., Beaufort sea state, tide state, water depth); all marine mammal 
sightings, regardless of distance from the activity; species (or lowest 
possible taxonomic level possible); the pace of the animal(s); the 
estimated number of animals (minimum/maximum/high/low/best); the 
estimated number of animals by cohort (e.g., adults, yearlings, 
juveniles, calves, group composition, etc.); the description (i.e., as 
many distinguishing features as possible of each individual seen, 
including length, shape, color, pattern, scars or markings, shape and 
size of dorsal fin, shape of head, and blow characteristics); the 
description of any marine mammal behavioral observations (e.g., 
observed behaviors such as feeding or traveling) and observed changes 
in behavior, including an assessment of behavioral responses thought to 
have resulted from the specific activity; the animal's closest distance 
and bearing from the pile being driven or specified HRG equipment and 
estimated time entered or spent within the Level A harassment and/or 
Level B harassment zone(s); the activity at time of sighting (e.g., 
impact pile driving, vibratory pile driving, construction surveys); use 
of any noise attenuation device(s); and specific phase of activity 
(e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start 
for pile driving, active pile driving, etc.); the marine mammal 
occurrence in Level A harassment or Level B harassment zones; the 
description of any mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action; other human activity in the area; and other applicable 
information, as required in any LOA issued under Sec.  217.306;
    (4) If a marine mammal is acoustically detected during PAM, the 
following information must be recorded and reported to NMFS: location 
of hydrophone (latitude and longitude; in decimal degrees) and site 
name; bottom depth and depth of recording unit (in meters); recorder 
(model & manufacturer) and platform type (i.e., bottom-mounted, 
electric glider, etc.), and instrument ID of the hydrophone and 
recording platform (if applicable); time zone for sound files and 
recorded date/times in data and metadata (in relation to Universal 
Coordinated Time (UTC); i.e., Eastern Standard Time (EST) time zone is 
UTC-5); duration of recordings (start/end dates and times; in 
International Organization for Standardization (ISO) 8601 format, yyyy-
mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 
format); recording schedule (must be continuous); hydrophone and 
recorder sensitivity (in dB re. 1 microPascal ([mu]Pa)); calibration 
curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-
rate of

[[Page 78061]]

recordings; and detection range of equipment for relevant frequency 
bands (in meters):
    (i) For each detection, the following information must be noted: 
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]
    (5) LOA Holder must compile and submit weekly reports during 
foundation installation to NMFS Office of Protected Resources that 
document the daily start and stop of all pile driving associated with 
the Project; the start and stop of associated observation periods by 
PSOs and PAM operators; details on the deployment of PSOs and PAM 
operators; a record of all observations/detections of marine mammals 
(acoustic and visual); any mitigation actions (or if mitigation actions 
could not be taken, provide reasons why); details on the noise 
attenuation system(s) used and its performance; and all abbreviated SFV 
results, including any indications that distances to the identified 
Level A harassment and Level B harassment thresholds for marine mammals 
were exceeded and an explanation of factors that contributed to each 
exceedance (if found) and corrective actions that were taken to avoid 
exceedance on subsequent piles. The weekly report must also identify 
which turbines become operational and when (a map must be provided). 
Once all foundation pile installation is completed, weekly reports are 
no longer required by LOA Holder;
    (6) LOA Holder must compile and submit monthly reports to NMFS 
Office of Protected Resources during foundation installation that 
include a summary of all information in the weekly reports, including 
Project activities carried out in the previous month, vessel transits 
(number, type of vessel, MMIS number, and route), number of piles 
installed, all detections of marine mammals, and any mitigative action 
taken. The monthly report must also identify which turbines become 
operational and when (a map must be provided). Once all foundation pile 
installation is completed, monthly reports are no longer required by 
LOA Holder;
    (7) LOA Holder must submit a draft annual report to NMFS Office of 
Protected Resources following completion of activities each year. LOA 
Holder must provide a final report within 30 calendar days following 
resolution of NMFS' comments on the draft report. The draft and final 
reports must detail the following: the total number of marine mammals 
of each species/stock detected and how many were within the designated 
Level A harassment and Level B harassment zone(s) with comparison to 
authorized take of marine mammals for the associated activity type; 
marine mammal detections and behavioral observations before, during, 
and after each activity; what mitigation measures were implemented 
(i.e., number of shutdowns or clearance zone delays, etc.) or, if no 
mitigative actions were taken, why not; operational details (i.e., days 
and duration of impact and vibratory pile driving, days and amount of 
HRG survey effort, etc.); any PAM systems used; the results, 
effectiveness, and which noise attenuation systems were used during 
relevant activities (i.e., foundation impact pile driving); summarized 
information related to situational reporting; and any other important 
information relevant to the Project, including additional information 
that may be identified through the adaptive management process;
    (8) LOA Holder must submit its draft 5-year report to NMFS Office 
of Protected Resources on all visual and acoustic monitoring conducted 
within 90 calendar days of the completion of activities occurring under 
the LOA. 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. The draft and final 5-year 
report must include, but is not limited to, the following: the total 
number (annually and across all 5 years) of marine mammals of each 
species/stock detected and how many were detected within the designated 
Level A harassment and Level B harassment zone(s) with comparison to 
authorized take of marine mammals for the associated activity; summary 
table(s) indicating the amount of each activity type (e.g., pile 
installation, HRG) completed in each of the 5 years and total; 
Environmental Systems Research Institute, Inc. (ESRI) vector Geographic 
Information System (GIS) shapefile(s) of the final location of all 
piles, cable routes, and other permanent structures including an 
indication of what year it was installed and began operating; ESRI 
vector GIS shapefile of all North Atlantic right whale sightings, 
including dates and group sizes; a 5- year summary and evaluation of 
all SFV data collected; a 5-year summary and evaluation of all PAM data 
collected; a 5-year summary and evaluation of marine mammal behavioral 
observations; a 5-year summary and evaluation of mitigation and 
monitoring implementation and effectiveness; and a list of 
recommendations to inform environmental compliance assessments for 
future offshore wind actions;
    (9) LOA Holder must provide the initial results of the thorough SFV 
measurements (see Sec.  217.304(c)(15)) to NMFS Office of Protected 
Resources in an interim report after each foundation installation event 
as soon as they are available and prior to any subsequent foundation 
installation, but no later than 48 hours after each completed 
foundation installation event. The report must include, at minimum: 
hammer energies and schedule used during pile driving, including the 
total number of strikes and the maximum hammer energy; the model-
estimated acoustic ranges (R95%) to compare with the real-
world sound field measurements; peak sound pressure level 
(SPLpk), root-mean-square sound pressure level that contains 
90 percent of the acoustic energy (SPLrms), and sound 
exposure level (SEL, in single strike for pile driving, 
SELss,), for each hydrophone, including at least the 
maximum, arithmetic mean, minimum, median (L50) and 
L5 (95 percent exceedance) statistics for each metric; 
estimated marine mammal Level A harassment and Level B harassment 
acoustic isopleths, calculated using the maximum-over-depth 
L5 (95 percent exceedance level, maximum of both 
hydrophones) of the associated sound metric; comparison of modeled 
results assuming 10-dB attenuation against the measured marine mammal 
Level A harassment and Level B harassment acoustic isopleths; estimated 
transmission loss coefficients; pile identifier name, location of the 
pile and each hydrophone array in latitude/longitude; depths of each 
hydrophone; one-third-octave band single strike SEL spectra; full 
filter characteristics (if filtering is applied); and hydrophone 
specifications including the type, model, and sensitivity. LOA Holder 
must also report any immediate observations which are suspected to have 
a significant impact on the results

[[Page 78062]]

including but not limited to: observed noise mitigation system issues, 
obstructions along the measurement transect, and technical issues with 
hydrophones or recording devices. If any in-situ calibration checks for 
hydrophones reveal a calibration drift greater than 0.75 dB, 
pistonphone calibration checks are inconclusive, or calibration checks 
are otherwise not effectively performed, LOA Holder must indicate full 
details of the calibration procedure, results, and any associated 
issues in the 48-hour interim reports;
    (10) LOA Holder must conduct abbreviated SFV for all foundation 
installations for which the thorough SFV monitoring is not carried out, 
whereas a single acoustic recorder must be placed at an appropriate 
distance from the pile. All results must be included in the weekly 
reports. Any indications that distances to the identified Level A 
harassment and Level B harassment thresholds for marine mammals were 
exceeded must be addressed by LOA Holder, including an explanation of 
factors that contributed to the exceedance and corrective actions that 
were taken to avoid exceedance on subsequent piles;
    (11) The final results of all SFV measurements from all foundation 
installations must be submitted no later than 90 calendar days 
following completion of all annual SFV measurements. The final reports 
must include all details included in the interim report and 
descriptions of any notable occurrences, explanations for results that 
were not anticipated, or actions taken during foundation installation. 
The final report must also include at least the maximum, mean, minimum, 
median (L50) and L5 (95 percent exceedance) 
statistics for each metric; the SEL and SPL power spectral density and/
or one-third octave band levels (usually calculated as decidecade band 
levels) at the receiver locations should be reported; range of 
transmission loss coefficients; the local environmental conditions, 
such as wind speed, transmission loss data collected on-site (or the 
sound velocity profile); baseline pre-activity and post-activity 
ambient sound levels (broadband and/or within frequencies of concern); 
a description of depth and sediment type, as documented in the 
Construction and Operation Plan (COP), at the recording and foundation 
installation locations; the extents of the measured Level A harassment 
and Level B harassment zone(s); hammer energies required for pile 
installation and the number of strikes per pile; the hydrophone 
equipment and methods (i.e., recording device, bandwidth/sampling rate; 
distance from the pile where recordings were made; the depth of 
recording device(s)); a description of the SFV measurement hardware and 
software, including software version used, calibration data, bandwidth 
capability and sensitivity of hydrophone(s), any filters used in 
hardware or software, any limitations with the equipment, and other 
relevant information; the spatial configuration of the noise 
attenuation device(s) relative to the pile; a description of the noise 
abatement system and operational parameters (e.g., bubble flow rate, 
distance deployed from the pile, etc.), and any action taken to adjust 
the noise abatement system. A discussion which includes any 
observations which are suspected to have a significant impact on the 
results including but not limited to: observed noise mitigation system 
issues, obstructions along the measurement transect, and technical 
issues with hydrophones or recording devices;
    (12) If at any time during the Project LOA Holder becomes aware of 
any issue or issues which may (to any reasonable subject-matter expert, 
including the persons performing the measurements and analysis) call 
into question the validity of any measured Level A harassment or Level 
B harassment isopleths to a significant degree, which were previously 
transmitted or communicated to NMFS Office of Protected Resources, LOA 
Holder must inform NMFS Office of Protected Resources within 1 business 
day of becoming aware of this issue or before the next pile is driven, 
whichever comes first;
    (13) Full PAM detection data, metadata, and location of recorders 
(or GPS tracks, if applicable) must be submitted within 90 calendar 
days following completion of foundation installation pile driving each 
season and every 90 calendar days for transit lane PAM using the 
International Organization for Standardization (ISO) standard metadata 
forms and instructions available on the NMFS Passive Acoustic Reporting 
System website at: https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Concurrently, the full 
acoustic recordings from real-time systems must also be sent to the 
National Centers for Environmental Information (NCEI) at: https://www.ncei.noaa.gov/products/passive-acoustic-data for archiving;
    (14) Inclusive of all instances wherein an exemption to a measure 
is taken (which must be reported to NMFS Office of Protected Resources 
within 24 hours), LOA Holder must submit situational reports if the 
following circumstances occur, including but not limited to the 
following:
    (i) If a North Atlantic right whale is sighted with no visible 
injuries or entanglement at any time by project PSOs or project 
personnel, the LOA Holder must, as soon as possible but within 24 
hours, download and complete the Real-Time North Atlantic Right Whale 
Reporting Template spreadsheet found at: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual and save the completed 
spreadsheet as a .csv file and email it to NMFS NEFSC-PSD 
([email protected]), NMFS GARFO-PRD ([email protected]), and NMFS OPR ([email protected]). If 
unable to report a sighting through the spreadsheet within 24 hours, 
call the relevant regional hotline (Greater Atlantic Region's (Maine to 
Virginia/North Carolina border) Hotline at 866-755-6622 or the 
Southeast Region's (North Carolina through the Gulf of Mexico) Hotline 
at 877-WHALE-HELP (877-942-5343)). Report the following information: 
the time (note time format), date (MM/DD/YYYY), location (latitude/
longitude in decimal degrees; coordinate system used) of the 
observation, number of whales, animal description/certainty of 
observation (follow up with photos/video if taken), reporter's contact 
information, and Lease Areas number/project name, PSO/personnel name 
who made the observation, and PSO provider company (if applicable) (PAM 
detections are not reported to the Hotlines). If unable to report via 
the template or the regional hotline, enter the sighting via the 
WhaleAlert app (http://www.whalealert.org/). If this is not possible, 
report the sighting to the U.S. Coast Guard via channel 16. The report 
to the Coast Guard must include the same information as would be 
reported to the Hotline;
    (ii) If a North Atlantic right whale is detected via real-time PAM, 
data must be submitted using the NMFS Passive Acoustic Reporting System 
Metadata and Detection data spreadsheets and instructions available at: 
https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates, as soon as feasible but no longer than 24 
hours after the detection;
    (iii) If a large whale other than a North Atlantic right whale is 
observed at any time by PSOs or Project personnel, LOA Holder must 
report the sighting to the

[[Page 78063]]

WhaleAlert app at: http://www.whalealert.org/;
    (iv) In the event that personnel involved in the Project discover a 
stranded, entangled, injured, or dead marine mammal, the LOA Holder 
must immediately report the observation to NMFS. If in the Greater 
Atlantic Region (Maine through Virginia), call the NMFS Greater 
Atlantic Stranding Hotline (866-755-6622), and if in the Southeast 
Region (North Carolina through Florida), call the NMFS Southeast 
Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the LOA 
Holder must report, within 24 hours, the incident to NMFS Office of 
Protected Resources ([email protected]) and, if in the 
Greater Atlantic Region, to the NMFS Greater Atlantic Regional 
Fisheries Office (GARFO; [email protected]) or, if in 
the Southeast Region, to the NMFS Southeast Regional Office (SERO; 
[email protected]). The report must include contact (e.g., 
name, phone number, etc.), time, date, and location (i.e., specify 
coordinate system) of the first discovery (and updated location 
information, if known and applicable); species identification (if 
known) or description of the animal(s) involved; condition of the 
animal(s) (including carcass condition if the animal is dead); observed 
behaviors of the animal(s) (if alive); photographs or video footage of 
the animal(s) (if available); and general circumstances under which the 
animal was discovered; and
    (v) In the event of a suspected or confirmed vessel strike of a 
marine mammal by any vessel associated with the Project or other means 
by which Project activities caused a non-auditory injury or death of a 
marine mammal, the LOA Holder must immediately report the incident to 
NMFS. If in the Greater Atlantic Region (Maine through Virginia), call 
the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in 
the Southeast Region (North Carolina through Florida) call the NMFS 
Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). 
Separately, the LOA Holder must immediately report the incident to NMFS 
Office of Protected Resources ([email protected]) and, 
if in the Greater Atlantic Region, to the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO; [email protected]) 
or, if in the Southeast Region, to the NMFS Southeast Regional Office 
(SERO; [email protected]). The report must include time, date, 
and location (i.e., specify coordinate system) of the incident; species 
identification (if known) or description of the animal(s) involved 
(i.e., identifiable features including animal color, presence of dorsal 
fin, body shape and size, etc.); vessel strike reported information 
(e.g., name, affiliation, email for person completing the report); 
vessel strike witness (if different than the reporter) information 
(e.g., name, affiliation, phone number, platform for person witnessing 
the event, etc.); vessel name and/or MMSI number; vessel size and motor 
configuration (inboard, outboard, jet propulsion); vessel's speed 
leading up to and during the incident; vessel's course/heading and what 
operations were being conducted (if applicable); part of vessel that 
struck marine mammal (if known); vessel damage notes; status of all 
sound sources in use at the time of the strike; if the marine mammal 
was seen before the strike event; description of behavior of the marine 
mammal before the strike event (if seen) and behavior immediately 
following the strike; description of avoidance measures/requirements 
that were in place at the time of the strike and what additional 
measures were taken, if any, to avoid strike; environmental conditions 
(e.g., wind speed and direction, Beaufort sea state, cloud cover, 
visibility, etc.) immediately preceding the strike; estimated (or 
actual, if known) size and length of marine mammal that was struck; if 
available, description of the presence and behavior of any other marine 
mammals immediately preceding the strike; other animal-specific 
details, if known (e.g., length, sex, age class); behavior or estimated 
fate of the marine mammal post-strike (e.g., dead, injured but alive, 
injured and moving, external visible wounds (linear wounds, propeller 
wounds, non-cutting blunt-force trauma wounds), blood or tissue 
observed in the water, status unknown, disappeared); to the extent 
practicable, any photographs or video footage of the marine mammal(s); 
and, any additional notes the witness may have from the interaction. 
For any numerical values provided (i.e., location, animal length, 
vessel length, etc.), please provide if values are actual or estimated. 
The LOA Holder must immediately cease activities until the NMFS Office 
of Protected Resources is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. 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.
    (15) 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 but no later than 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. All reasonable efforts, that do not compromise human safety, 
must be undertaken to recover gear.


Sec.  217.306  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
LOA Holder must apply for and obtain a LOA;
    (b) LOA, unless suspended or revoked, may be effective for a period 
of time not to exceed December 31, 2029, the expiration date of this 
subpart;
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by the LOA, LOA Holder must 
apply for and obtain a modification of the LOA as described in Sec.  
217.307;
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under the regulations of this subpart; and
    (f) Notice of issuance or denial of the LOA must be published in 
the Federal Register within 30 calendar days of a determination.


Sec.  217.307  Modifications of Letter of Authorization.

    (a) Any LOA issued under Sec. Sec.  217.302 and 217.306 or this 
section for the activities identified in Sec.  217.300(a) may be 
modified upon request by LOA Holder, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section); and
    (2) NMFS Office of Protected Resources determines that the

[[Page 78064]]

mitigation, monitoring, and reporting measures required by the previous 
LOA under this subpart were implemented.
    (b) For any modification request to the LOA by the applicant that 
includes changes to the activities or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section), the LOA may be 
modified, provided that:
    (1) NMFS Office of Protected Resources determines that the changes 
to the activity or the mitigation, monitoring, or reporting do not 
change the findings made for the regulations in this subpart and do not 
result in more than a minor change in the maximum annual or total 
estimated number of takes of any species or stock; and
    (2) NMFS Office of Protected Resources may, if appropriate, publish 
a notice of proposed modified LOA in the Federal Register, including 
the associated analysis of the change, and solicit public comment 
before issuing the LOA.
    (c) LOA issued under Sec. Sec.  217.302 and 217.306 or this section 
for the activities identified in Sec.  217.300(a) may be modified by 
NMFS under the following circumstances:
    (1) Through adaptive management, NMFS Office of Protected Resources 
may modify (e.g., delete, modify, or add to) the existing mitigation, 
monitoring, or reporting measures (after consulting with the LOA Holder 
regarding the practicability of the modifications), if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in the LOA 
include, but are not limited to:
    (A) Results from LOA Holder's monitoring;
    (B) Results from other marine mammals and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not allowed 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.  217.302 and 217.306 or this section, any LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 calendar 
days of the issuance of a LOA under this subpart.


Sec.  Sec.  217.308-217.309  [Reserved]

[FR Doc. 2024-19587 Filed 9-23-24; 8:45 am]
BILLING CODE 3510-22-P