62898 Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 230901–0209] 

RIN 0648–BL36 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Ocean Wind 

1 Project Offshore of New Jersey 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA), as 

amended, notification is hereby given 

that NMFS promulgates regulations to 

govern the incidental taking of marine 

mammals incidental to Ocean Wind, 

LLC (Ocean Wind), a subsidiary wholly 

owned by Orsted Wind Power North 

America, LLC (Orsted), construction of 

the Ocean Wind 1 Offshore Wind 

Energy Project (hereafter known as the 

‘‘Project’’) in Federal and State waters 

off of New Jersey, specifically within the 

Bureau of Ocean Energy Management 

(BOEM) Commercial Lease of 

Submerged Lands for Renewable Energy 

Development on the Outer Continental 

Shelf (OCS) Lease Area OCS–A 0498 

(Lease Area) and along two export cable 

routes to sea-to-shore transition points 

(collectively referred to as the ‘‘Project 

Area’’), over the course of 5 years 

(October 13, 2023 through October 12, 

2028). These regulations, which allow 

for the issuance of a Letter of 

Authorization (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 rulemaking and issued LOA 

are effective from October 13, 2023 

through October 12, 2028. 

FOR FURTHER INFORMATION CONTACT: 

Kelsey Potlock, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of Ocean Wind’s Incidental 

Take Authorization (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/incidentaltake-authorizations-other-energyactivities-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 authorize the take 

of marine mammals incidental to 

construction of the Project within the 

Project Area. NMFS received a request 

from Ocean Wind to incidentally take 

individuals of 17 species of marine 

mammals, comprising 18 stocks (10 

stocks by Level A harassment and Level 

B harassment and 8 stocks by Level B 

harassment only), incidental to Ocean 

Wind’s 5 years of construction 

activities. No mortality or serious injury 

was requested nor is it anticipated or 

authorized in this final rulemaking. 

Legal Authority for the Final Action 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made, regulations are promulgated 

(when applicable), and public notice 

and an opportunity for public comment 

are provided. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). If such findings are made, 

NMFS must prescribe the permissible 

methods of taking; ‘‘other means of 

effecting the least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

the species or stocks for taking for 

certain subsistence uses (referred to as 

‘‘mitigation’’); and requirements 

pertaining to the monitoring and 

reporting of such takings. 

As noted above, no serious injury or 

mortality is anticipated or authorized 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 (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 

includes those takings that are 

infrequent, unavoidable or accidental 

(see 50 CFR 216.103); 

• Serious Injury—any injury that will 

likely result in mortality (50 CFR 216.3); 

• Level A harassment—any act of 

pursuit, torment, or annoyance which 

has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (16 U.S.C. 1362(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 (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(s). This final rule establishes 

permissible methods of taking and 

mitigation, monitoring, and reporting 

requirements for Ocean Wind’s 

construction activities. 

Summary of Major Provisions Within 

the Final Rule 

The major provisions of this final rule 

are: 

• The authorized take of marine 

mammals by Level A harassment and/or 

Level B harassment; 

• No authorized take of marine 

mammals by mortality or serious injury; 

• The establishment of a seasonal 

moratorium on impact pile driving of 

foundation piles during the months of 

the highest presence of North Atlantic 

right whales (Eubalaena glacialis) in the 

Lease Area (December 1–April 30, 


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annually), unless prior approval from 

NMFS for pile driving in December; 

• The establishment of a seasonal 

moratorium on unexploded ordnance or 

munitions and explosives of concern 

(UXOs/MECs) detonations from 

November 1–April 30, annually; 

• A requirement for UXO/MEC 

detonations to only occur during hours 

of daylight and not during hours of 

darkness; 

• A requirement for both visual and 

passive acoustic monitoring to occur by 

trained, NOAA Fisheries-approved 

Protected Species Observers (PSOs) and 

Passive Acoustic Monitoring (PAM; 

where required) operators before, 

during, and after select activities; 

• A requirement for training for all 

Ocean Wind personnel to ensure marine 

mammal protocols and procedures are 

understood; 

• The establishment 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 device(s) during all 

foundation impact pile driving 

installation activities and UXO/MEC 

detonations to reduce noise levels to 

those modeled assuming 10 decibels 

(dB); 

• A delay to the start of foundation 

installation and UXO/MEC detonations 

if a North Atlantic right whale is 

observed at any distance by PSOs or 

acoustically detected within certain 

distances; 

• A delay to the start of foundation 

installation and UXO/MEC detonations 

if other marine mammals are observed 

entering or within their respective 

clearance zones; 

• A requirement to shut down impact 

pile driving (if feasible) if a North 

Atlantic right whale is observed or if 

any other marine mammals are observed 

entering their respective shut down 

zones; 

• A requirement to implement sound 

field verification during impact pile 

driving of foundation piles and during 

UXO/MEC detonations to measure insitu noise levels for comparison against 

the modeled results; 

• A requirement to implement softstarts during impact pile driving using 

the least amount of hammer energy 

necessary for installation; 

• A requirement to implement rampup during the use of high-resolution 

geophysical (HRG) marine site 

characterization survey equipment; 

• A requirement for PSOs to continue 

to monitor for 30 minutes after any 

impact pile driving for foundation 

installation and after any UXO/MEC 

detonations; 

• A requirement for the increased 

awareness of North Atlantic right whale 

presence through monitoring of the 

appropriate networks and Channel 16, 

as well as reporting any sightings to the 

sighting network; 

• 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 for frequently 

scheduled and situational reporting 

including, but not limited to, 

information regarding activities 

occurring, marine mammal observations 

and acoustic detections, and sound field 

verification monitoring results. 

NMFS must withdraw or suspend an 

LOA issued under these regulations, 

after notice and opportunity for public 

comment, if it finds the methods of 

taking or the mitigation, monitoring, or 

reporting measures are not being 

substantially complied with (16 U.S.C. 

1371(a)(5)(B); 50 CFR 216.206(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). 

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)). 

Ocean Wind’s project is listed on the 

Permitting Dashboard, where milestones 

and schedules related to the 

environmental review and permitting 

for the project can be found at https:// 

www.permits.performance.gov/ 

permitting-projects/ocean-wind-project. 

Summary of Request 

On October 21, 2021, Ocean Wind 

submitted a request for the 

promulgation of regulations and 

issuance of an associated LOA to take 

marine mammals incidental to 

construction activities associated with 

the Project in the Project Area. The 

request was for the incidental, but not 

intentional, taking of a small number of 

17 marine mammal species (comprising 

18 stocks) by Level B harassment (all 18 

stocks) and by Level A harassment (10 

species or stocks). Ocean Wind did not 

request and NMFS neither expects nor 

authorizes incidental take by serious 

injury or mortality. 

In response to our questions and 

comments and following extensive 

information exchange between Ocean 

Wind and NMFS, Ocean Wind 

submitted a final revised application on 

February 8, 2022. NMFS deemed it 

adequate and complete on February 11, 

2022. This final application is available 

on NMFS’ website at https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. 

On March 7, 2022, NMFS published 

a notice of receipt (NOR) of Ocean 

Wind’s adequate and complete 

application in the Federal Register (87 

FR 12666), requesting public comments 

and information on Ocean Wind’s 

request during a 30-day public comment 

period. During the NOR public 

comment period, NMFS received 

comment letters from two 

environmental non-governmental 

organizations (ENGOs): Clean Ocean 

Action (COA) and the Natural Resource 

Defense Council (NRDC) on behalf of 

several other ENGOs. 

On October 26, 2022, NMFS 

published a proposed rule in the 

Federal Register for the Ocean Wind 1 

Project (87 FR 64868). In the proposed 

rule, NMFS synthesized all of the 

information provided by Ocean Wind, 

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 45 days on Regulations.gov starting 

on October 26, 2022 and closed after 

December 10, 2022. Specific details on 

the public comments received during 

this 45-day period are described in the 

Comments and Responses section. 

NMFS has previously issued three 

Incidental Harassment Authorizations 

(IHAs) to Ocean Wind for related work 

regarding high resolution site 

characterization surveys (82 FR 31562, 

July 7, 2017; 86 FR 26465, May 14, 

2021; 87 FR 29289, May 13, 2022). To 


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date, Ocean Wind has complied with all 

the requirements (e.g., mitigation, 

monitoring, and reporting) of the 

previous IHAs and information 

regarding their monitoring results may 

be found in the Estimated Take section. 

These monitoring reports can be found 

on NMFS’ website: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 

Atlantic right whale vessel speed 

regulations (87 FR 46921, August 1, 

2022) to further reduce the likelihood of 

mortalities and serious injuries to 

endangered right whales from vessel 

collisions, which are a leading cause of 

the species’ decline and a primary factor 

in an ongoing Unusual Mortality Event 

(UME). Should a final vessel speed rule 

be issued and become effective during 

the effective period of these regulations 

(or any other MMPA incidental take 

authorization), the authorization holder 

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 

authorization, authorization holders 

will be required to comply with the 

requirements of the vessel speed rule. 

Alternatively, where measures in this or 

any other MMPA authorization are more 

restrictive or protective than those in 

any final vessel speed rule, the 

measures in the MMPA authorization 

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 Ocean Wind if the 

measures in the speed rule were to 

supersede any of the measures in the 

MMPA authorization such that they 

were no longer required. 

Description of the Specified Activities 

Overview 

Ocean Wind plans to construct and 

operate the Project, a 1,100-megawatt 

(MW) offshore wind farm, in the Project 

Area. The Project will allow the State of 

New Jersey to meet its renewable energy 

goals under the New Jersey Offshore 

Wind Economic Development Act. The 

Project will consist of several different 

types of permanent offshore 

infrastructure, including wind turbine 

generators (WTGs; e.g., the GE HaliadeX 12 MW) and associated foundations, 

offshore substations (OSS), offshore 

substation array cables, offshore export 

cables, and substation interconnector 

cables. Overall, Ocean Wind will 

conduct the following specified 

activities: install 98 WTGs and 3 OSS on 

monopile foundations via impact pile 

driving; install and subsequently 

remove cofferdams and goal posts to 

assist in the installation of the export 

cable route by vibratory pile driving; 

several types of fishery and ecological 

monitoring surveys; placement of scour 

protection; trenching, laying, and burial 

activities associated with the 

installation of the export cable route 

from OSSs to shore-based converter 

stations and inter-array cables between 

turbines; HRG vessel-based site 

characterization surveys using active 

acoustic sources with frequencies of less 

than 180 kilohertz (kHz); the detonation 

of up to ten UXOs/MECs of different 

charge weights, as necessary; transit 

within the Project Area and between 

ports and the Lease Area to transport 

crew, supplies, and materials to support 

pile installation via vessels; and WTG 

operation. All offshore cables will 

connect to onshore export cables, 

substations, and grid connections, 

which will be located in Ocean County, 

New Jersey and Cape May County, New 

Jersey. Marine mammals exposed to 

elevated noise levels during impact and 

vibratory pile driving, detonations of 

UXOs/MECs, and/or site 

characterization surveys may be taken 

by Level A harassment and/or Level B 

harassment, depending on the specified 

activity. 

A detailed description of the Project 

is provided in the proposed rule as 

published in the Federal Register (87 

FR 64868, October 26, 2022). Since the 

proposed rule was published, Ocean 

Wind has modified the project start and 

end dates, changing them from August 

2023 to July 2028 to a new effective 

period of October 13, 2023 to October 

12, 2028. Ocean Wind has also modified 

its vibratory pile driving activity from 

vibratory pile driving of seven 

temporary cofferdams to vibratory pile 

driving of four temporary cofferdams 

(Barnegat Bay landfall locations) and 

three temporary goal posts (two at 

Island Beach State Park, one at BL 

England). This modification neither 

changes the nature of the specified 

activity (i.e., vibratory pile driving), not 

the potential impacts to marine 

mammals associated with the specified 

activity. As described in the Estimated 

Take section below, this modification 

reduces the number of takes anticipated 

from vibratory pile driving. Ocean Wind 

has not modified any other activity from 

what was previously described in the 

proposed rule. We hereby incorporate 

the updated Project description, as 

provided by Ocean Wind, by reference; 

therefore, a more detailed description is 

not provided here. Please refer to the 

proposed rule and Ocean Wind’s 

supporting information (e.g., 

application, memos) for more 

information on the description of the 

specified activities. 

Dates and Duration 

Ocean Wind anticipates its specified 

activities to occur throughout all 5 years 

of the final rule, beginning on October 

13, 2023 and continuing through 

October 12, 2028. Ocean Wind 

anticipates the following construction 

schedule over the 5-year period (Table 

1). Ocean Wind 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. Additional 

information on dates and activityspecific durations can be found in the 

proposed rule and are not repeated here. 

TABLE 1—CONSTRUCTION SCHEDULE

Activity Estimated 

schedule a

HRG Surveys ..................................................................................................................................................... Q3 2023–Q2 2028. 

UXO/MEC Detonation ........................................................................................................................................ Q4 2023–Q3 2028. 

Landfall Cable Installation .................................................................................................................................. Q4 2023–Q4 2024. 

Offshore Export Cable Installation ..................................................................................................................... Q2 2024–Q1 2025. 

Offshore Foundation Installation (WTG and OSS) ............................................................................................ Q2 2024–Q4 2024. 

Inter-array Cable Installation .............................................................................................................................. Q3 2024–Q2 2025. 

WTG and OSS Installation and Commissioning ................................................................................................ Q3 2024–Q1 2026. 


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TABLE 1—CONSTRUCTION SCHEDULE—Continued 

Activity Estimated 

schedule a

Fishery Monitoring Surveys ............................................................................................................................... Q2 2022–Q4 2027. 

Note: ‘‘Q1, Q2, Q3, and Q4’’ each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents 

January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December. aWe acknowledge that the schedule may need to shift, given unforeseeable circumstances (e.g., inclement weather, mechanical difficulties) 

but the dates and durations presented here represent the most realistic schedule. 

Specific Geographic Region 

A detailed description of the Specific 

Geographic Region is provided in the 

proposed rule as published in the 

Federal Register (87 FR 64868, October 

26, 2022). Since the proposed rule was 

published, no changes have been made 

to the Specified Geographic Region. 

Generally, Ocean Wind’s specified 

activities (i.e., impact pile driving of 

WTGs and OSS monopile foundations; 

vibratory pile driving (installation and 

removal) of temporary cofferdams and 

goal posts; placement of scour 

protection; trenching, laying, and burial 

activities associated with the 

installation of the export cable route and 

inter-array cables; HRG site 

characterization surveys; UXOs/MECs 

detonation; and WTG operation) are 

concentrated in the Project Area. A 

couple of Ocean Wind’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 


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BILLING CODE 3510–22–C Comments and Responses 

A notice of proposed rulemaking was 

published in the Federal Register on 

October 26, 2022 (87 FR 64868) and a 

15-day extension to the public comment 

period was published on November 25, 

2022 (87 FR 72447). The proposed 


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rulemaking described, in detail, Ocean 

Wind’s specified activities, the specific 

geographic region of the specified 

activities, the marine mammal species 

that may be affected by those activities, 

and the anticipated effects on marine 

mammals. In the proposed rule, we 

requested that interested persons submit 

relevant information, suggestions, and 

comments on Ocean Wind’s request for 

the promulgation of regulations and 

issuance of an associated LOA described 

therein, our estimated take analyses, the 

preliminary determinations, and the 

proposed regulations. In total, the 

proposed rule was available for a 45-day 

public comment period. 

In total, NMFS received 20 comment 

submissions, including 14 comments 

from private individuals. Some of these 

comments were out-of-scope or not 

applicable to this specific action (e.g., 

general support/opposition to the 

Project itself; concerns for other species 

outside of NMFS’ jurisdiction (i.e., 

birds); maintenance of the permanent 

structures; Internal Revenue Service tax 

filing information), and are not 

described herein or discussed further. 

Four comment letters were from ENGOs, 

including one from COA, one from 

Oceana, Inc. (Oceana), and two from the 

NRDC, of which one was a comment 

letter with an attachment and the other 

was a request to extend the comment 

period an additional 15 days (hence, the 

extension published in the Federal 

Register on November 25, 2022 (87 FR 

72447)). We also received one comment 

letter from a governmental organization, 

the Marine Mammal Commission 

(Commission), and one comment letter 

from a public organization, the 

Conservation Law Foundation (CLF). 

These five letters (excluding the NRDC 

request for a 15-day comment period 

extension on the proposed regulations) 

contained substantive information that 

NMFS considered in its estimated take 

analysis, final determinations, and final 

regulations. These comments are 

described below, along with NMFS’ 

responses. All substantive comments 

and letters are available on NMFS’ 

website: https://www.fisheries.noaa.gov/ 

permit/incidental-take-authorizationsunder-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: The Commission 

recommended that, until JASCO 

Applied Sciences’ (hereafter, ‘‘JASCO’’) 

model has been validated with in-situ 

measurements from the impact 

installation of monopiles and pin piles 

in the northwest Atlantic, NMFS should 

require Ocean Wind and thus JASCO to 

re-estimate the various Level A 

harassment and Level B harassment 

zones for the final rule using source 

levels that are at a minimum 3 dB 

greater than those currently used. 

Response: The Commission has 

expressed concerns about the lack of 

validation of JASCO’s models in 

previous Commission letters for 

Orsted’s other wind projects. JASCO has 

compared their source model 

predictions to an empirical model 

prediction by the Institute of Technical 

and Applied Physics (ITAP). The 

empirical model is based on a large data 

set of pile driving sounds measured at 

750 m from the source collected during 

installation of large-diameter piles (up 

to 8 m) during wind farm installation in 

the North Sea (Bellmann, 2020). As no 

noise measurements exist for tapered 8/ 

11-m monopile at this time (yet to be 

installed offshore), the ITAP prediction 

facilitates a way of validating the source 

levels of the numerical finite difference 

(FD) model. The ITAP data are averaged 

across different scenarios; pile sizes are 

grouped, which includes different 

hammers, water depths, depths of 

penetration, and environmental 

conditions; and the 95th percentile level 

is reported, whereas the aim of JASCO’s 

modeling is to estimate the median 

value. While the ITAP forecast and the 

FD source predictions were comparable 

(see Appendix I of the Ocean Wind 1 

Underwater Acoustic and Exposure 

Modeling report (Ku ̈ sel et al., 2022)), 

there is variance in the underlying ITAP 

data and there are parametric choices 

for the FD model in the different 

environments, so an exact match is not 

expected. As part of the comparison, it 

was found that different (but reasonable) 

parametric input choices in the FD 

modeling can result in output 

differences on the order of the variance 

in the ITAP data so it was concluded 

that the FD modeling approach 

performed as well as can be discernible 

given the available data. While adding 

3 dB to the JASCO predictions at 750 m 

may bring JASCO’s source predictions 

into line with the finite-element (FE) 

predictions for the portmanteau 

combining computation, comparison, 

and pile (COMPILE) scenario but it is 

not clear that this would be more 

accurate. This approach assumes that 

the FE models are correct but Lippert et 

al. (2016) also state ‘‘a drawback of (the 

FE) approach is that it simulates the 

energy loss due to friction in an indirect 

and rather nonphysical way.’’ The 

Commission also suggested that NMFS 

could have used damped cylindrical 

spreading model (DCSM; Lippert et al., 

2018) and the source levels provided by 

TDFD PDSM; however, for reasons 

described herein, NMFS has determined 

JASCO’s model results are reliable and 

achievable. 

Recent measurements taken during 

the Coastal Virginia Offshore Wind 

(CVOW) Pilot Project reported the range 

to the marine mammal Level B 

threshold (160 dB re 1mPa) from the 7.8- 

m pile installed with a double big 

bubble curtain to be 3,891 m (12,765.75 

ft) when using a hammer operating at a 

maximum of 550 kJ (WaterProof, 2020). 

JASCO’s model prediction for 11-m 

piles using a 4,000 kJ hammer is 4,684 

m (15,367.45 ft). The Commission states 

that, based on the CVOW reported 

sound levels, JASCO’s modeled 

predicted range should be more than 

double instead of only an approximate 

20 percent increase because Ocean 

Wind’s hammer has up to 

approximately five times more energy 

(550 kJ vs 4,000 kJ). NMFS disagrees. 

The 3,891-m distance to the Level B 

harassment threshold measured during 

the CVOW Pilot Project cited by the 

Commission was obtained based on the 

maximum measured sound pressure 

level (RMS SPL), which is not an ideal 

statistic to base estimates of Level B 

harassment isopleths, as it is not 

representative of average operating 

conditions and represents one hammer 

strike. Further, small differences in the 

propagation environment could account 

for the ranges being more comparable 

than expected. Importantly, as described 

below, NMFS is also now in receipt of 

measurements from the South Fork 

project which indicate JASCO’s 

predicted distance to the Level B 

harassment threshold is realistic and 

attainable. Based on the expected 

variance between the Ocean Wind 1 and 

CVOW projects and measurement data 

from South Fork (see below), it cannot 

be concluded that the CVOW measured 

results (using the maximum RMS SPL 

reported) indicate that JASCO’s 4,684 m 

modeled distance to Level B harassment 

threshold should be increased. 

Importantly, since the proposed rule 

phase, NMFS has received interim 

sound field verification reports from the 

South Fork Wind project, which used 

JASCO’s modeling. In all but one case, 

and out of six 7–8/9.5-m tapered piles 

installed, the measured distances to 

NMFS’ Level B harassment threshold 

were lower than JASCO’s model 

predicted. The distance to NMFS Level 

B harassment threshold was modeled as 

4,684 m while in-situ measurements 

identified distances, excluding the one 

aforementioned pile, ranging from 1.84 

kilometers (km) to 3.25 km. JASCO’s 

modeling predicts the distances to the 


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Level B harassment threshold 

installation of Ocean Wind 1 monopiles 

will be approximately 3.3 km in 

summer, which aligns with the South 

Fork Wind results. South Fork Wind 

determined that the one pile generating 

noise levels above those predicted (the 

first pile) did so due to a malfunctioning 

noise attenuation system which was 

quickly rectified and deployed 

appropriately on all future piles. 

Further, in this final rule, we are 

requiring Ocean Wind’s measured 

sound levels do not exceed those 

modeled, assuming 10 dB, for at least 

three consecutively measured 

monopiles. Based on all these reasons, 

NMFS is not requiring Ocean Wind to 

remodel the harassment zone sizes by 

adding 3 dB to the source levels and is, 

instead, carrying forward the modeling 

results as presented in the proposed 

rule. 

Of note, NMFS has also received 

interim sound field reports from 

Vineyard Wind. However, some of the 

assumptions used in the modeling (e.g., 

maximum hammer energy) do not align 

with the construction parameters 

Vineyard Wind is currently using in the 

field, so comparisons between the 

modeled and measured results are not 

as directly applicable and, therefore, are 

less useful in judging predicted 

alignment between modeled and 

measured zones. 

Based on this discussion and given 

our consideration of the available SFV 

reports from other projects, we disagree 

with the suggestions made by the 

Commission. NMFS has incorporated 

the best available scientific information 

into this final rule, using recent 

measurements as well as estimates 

obtained through JASCO’s modeling. 

Comment 2: The Commission 

suggested that JASCO should consider 

revising its exposure modeling to 

include single-day simulations for 

stationary, discrete sound sources and 

numerous Monte Carlo simulations (e.g., 

at least 30) for modeling reports for 

future rules. 

Response: JASCO typically uses 7-day 

simulations to get a representative 

sample of the installation process (e.g., 

impact piling every day or every other 

day). From those 7-day simulations, 

several 24-hour windows within the 7- 

day simulations are used to find the 

average exposure expected in a 24-hour 

period that includes impact pile driving. 

The average 24-hour estimates are then 

scaled by the number of days of impact 

pile driving. The use of the 7-day 

simulation allows for a robust 

probability calculation. The 

Commission recommends that, instead, 

JASCO run 30 single-day simulations to 

generate an average daily exposure. 

While NMFS makes recommendations, 

as appropriate, regarding the inputs, 

assumptions, and methods used by 

applicants to model and estimate 

marine mammal take, there is no single 

correct overall methodology. The 

Commission does not provide any 

information to support an assertion that 

the method used by JASCO is not 

appropriate or sufficient, and NMFS 

supports the use of this methodology. 

Furthermore, it is unclear what the 

Commission means by ‘‘stationary, 

discrete sound sources.’’ If the sources 

referred to are the monopiles or pin 

piles, then JASCO’s modeling approach 

does use a Monte Carlo approach for 

sampling the expected sound fields. 

With the typical modeling density of 0.5 

simulated animals (animats)/km2, there 

are usually tens of thousands of animats 

meaning there are tens of thousands of 

Monte Carlo samples. If the suggestion 

is to run the simulations (with tens of 

thousands of animats) 30 times, that is 

equivalent to increasing the modeling 

density by 30. Previous work, such as 

the work done by Houser (2006), has 

indicated that such high modeling 

densities are not necessary. Please refer 

to NMFS’ related response to Comment 

5. 

Comment 3: Citing the dire situation 

of North Atlantic right whales, a 

commenter stated that NMFS should 

clearly describe in the regulations or 

LOA for wind projects that the activities 

cannot result in any Level A 

harassment, serious injury, or mortality 

of North Atlantic right whales. 

Response: The proposed rule clearly 

states that no take of North Atlantic 

right whale by Level A harassment, 

mortality, or serious injury was 

requested or proposed for authorization 

(see the Estimated Take and Negligible 

Impact Analysis and Determination 

sections in the proposed rule), and those 

statements are also included in this final 

rule. In this final rule, for example, 

Tables 33 and 34 shows that only Level 

B harassment is authorized for North 

Atlantic right whales, and the North 

Atlantic right whale sub-section in the 

Negligible Impact Analysis and 

Determination section also states that no 

take of North Atlantic right whale by 

Level A harassment, mortality, or 

serious injury is anticipated or 

authorized and any take that is 

authorized is limited to Level B 

harassment only. 

Comment 4: The Commission 

recommended that NMFS authorize 

Level A harassment takes for group size 

for minke whales and both bottlenose 

dolphin stocks from UXO/MEC 

detonations in the final rule. 

Response: We agree that there is some 

small potential for these smaller species 

to be exposed to noise levels that may 

cause PTS. Therefore, in this final rule, 

NMFS has conservatively authorized 

additional takes by Level A harassment 

of both bottlenose dolphins stocks and 

minke whales from UXO/MEC 

detonation. Using Ocean Wind’s group 

size information. NMFS has increased 

the amount of take by Level A 

harassment from UXO/MEC detonations 

from 0 in the proposed rule to 11 for 

each stock of bottlenose dolphins, and 

from 0 in the proposed rule to 2 for 

minke whales. 

Comment 5: The Commission 

recommends that NMFS: (1) require 

Ocean Wind to revise its take estimates 

for impact installation of monopiles and 

pin piles based on an animat density 

that is greater than any species specific, 

real-world density and the possibility 

that only a single monopile is installed 

per day rather than two per day, and (2) 

increase the takes by Level A 

harassment of humpback whales to 

mean group size for OSS impact 

installation. 

Response: The Commission cites two 

of the assumptions in the take estimate 

methodology that could push the take 

estimate in the direction of less than the 

maximum expected takes. However, 

there are multiple other assumptions in 

the take estimate methodology that 

consider conditions that would result in 

the maximum possible takes, or even an 

overestimate of possible takes. When all 

of these assumptions are considered 

together, NMFS expects the take 

estimate model and methodology to 

produce the maximum take that is 

expected to occur incidental to the 

specified activities. 

While Ocean Wind has acknowledged 

that it may not install two piles every 

day, it has indicated it is capable of 

installing up to two piles per day with 

the goal to complete installation as 

quickly as possible. Hence, to assume 

only one monopile per day every day 

would not be consistent with what 

Ocean Wind, a company with offshore 

wind farm installation experience, has 

indicated is possible or is planned. The 

exposure estimates contained within the 

proposed rule are a product of modeling 

that assumes two piles are driven per 

day. There are several conservative 

assumptions that offset the potential to 

underestimate take should Ocean Wind 

not be able to install two piles per day 

every day, including, but not limited to, 

all piles are installed during 30 days of 

the highest density month and 19 days 

(38 piles) of the second-highest density 

month for each species from May to 

December. This is conservative because 


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pile driving every day within a given 

month is not possible due to historical 

weather patterns and potential technical 

issues that may be encountered and the 

highest density of every species does 

not occur in the same month. It is more 

likely that pile driving will occur over 

several months which have lower 

marine mammals species density. 

Additionally, for some species, group 

size or PSO data adjustments were made 

that increased the number of takes 

authorized compared to the modeled 

exposure estimates. Furthermore, the 

exposure estimates modeled and 

number of takes authorized do not 

consider natural avoidance of marine 

mammals to noise levels that could 

elicit PTS or the use of mitigation such 

as shutdown or clearance zones, which 

are designed to effect the least 

practicable adverse impact on marine 

mammals, including North Atlantic 

right whales (e.g., pile driving may not 

commence and must shut down if a 

North Atlantic right whale is observed 

at any distance). Finally, while Ocean 

Wind may use monopiles for OSS 

foundations, NMFS has used the pin 

pile take estimates in the total take 

authorized. The exposure estimates for 

pin piles is greater for all species than 

the exposures estimated for monopiles 

installation. 

Regarding density seeding, the 

Commission asserts that when a model’s 

density seeding is lower than the realworld density and, as here, 7-day 

simulations are used (as opposed to 

using 1-day simulations that are run 30– 

50 times, as is the case in other models), 

there is a chance that the model could 

miss consideration of a rarer event, 

resulting in a lower than maximum take 

estimate. As noted by the Commission, 

for common bottlenose dolphins, the 

real-world density (0.51) is higher than 

the density seeded (0.50) in the model. 

The use of the 0.5 animats/km2 for all 

species is to robustly sample (with tens 

of thousands of animats) the expected 

sound fields, providing statistically 

reliable results. Typically the real-world 

density is much lower than this 

modeled density and the number of 

real-world individual animals is found 

by scaling the number of animats 

exceeding a threshold by the ratio: realworld density/modeled density. That, 

rarely, the real-world density may 

exceed the modeled density, in this case 

0.51 versus 0.50 animats/km2, does not 

change the process or the statistical 

reliability of the results. While the 

Commission’s assertion that, if this were 

the only factor considered, the fact that 

the actual density is higher than the 

seeded density could result in a lesser 

likelihood that the model would capture 

circumstances representing a rare event 

that might result in higher take may be 

true—in this case, the degree of 

difference is a real-world density of 0.51 

versus a seeded density of 0.50. 

Additionally, as described above, there 

are numerous other conservative 

assumptions in the model such that, 

when considered together, support 

NMFS assessment that the number of 

takes authorized represents the 

maximum number of takes expected to 

occur incidental to the specified 

activities. 

For these reasons, NMFS disagrees 

with the Commission’s assessment that 

the take is underestimated and believes 

that the Commission’s suggestion to 

double the number of takes authorized 

as a simplistic solution to their 

perceived issue would unnecessarily 

overestimate take. Please see NMFS 

related response to Comment 2. 

NMFS agrees with the Commission’s 

recommendation to increase the amount 

of Level A harassment of humpback 

whales to a group size during OSS 

foundation installation given the more 

frequent sightings of the species 

recently off of New Jersey. Based on the 

2021–2022 monitoring report the 

Commission referenced, we have 

increased the amount of take by Level 

B harassment of humpback whales to 46 

for OSS foundation installation. 

However, we emphasize that the 

majority of humpback whale sightings 

described by the Commission occurred 

in winter and this rulemaking includes 

a prohibition on foundation installation 

January 1 through April 30 (as impact 

pile driving may only occur in 

December with prior NMFS approval). 

All other foundation installation take 

estimates follow the approach as 

described in the proposed rule. 

Comment 6: The Commission 

recommended that NMFS increase the 

Level B harassment takes for common 

dolphins and Atlantic white-sided 

dolphins incidental to cable landfall 

construction to a mean group size. 

Response: Despite the nearshore 

location of cable landfall construction, 

vibratory installation and removal 

versus the more offshore distribution of 

these species, as well the short duration 

of vibratory pile driving, which suggests 

take of these species is very low, NMFS 

has accepted the Commission’s 

recommendation as a conservative 

approach. The final rule includes 30 

takes by Level B harassment of common 

dolphins and 12 takes by Level B 

harassment of Atlantic white-sided 

dolphins from cable landfall activities, 

based on group size information from 

AMAPPS. 

Comment 7: The Commission 

recommended that NMFS determine if 

the Department of the Navy’s (2017) 

group size estimates are more 

appropriate or reflective of the expected 

group size estimates for the Project than 

those used in the proposed rule. If so, 

the Commission suggests the take 

numbers be amended in the final rule 

for all Ocean Wind’s activities. 

Response: We appreciate the 

suggestion by the Commission to review 

the Department of the Navy’s (2017) 

group size estimates to see if they are 

more applicable for the Project. Based 

on our review, we disagree that the 

Navy’s group size estimates are the most 

applicable in this case. First, the Navy 

only provides group size estimates for 

odontocetes, which means we would 

still need to find applicable estimates 

for non-odontocete species found in the 

Atlantic Ocean. Second, the group sizes 

provided by Ocean Wind used 

information by Toth et al. (2011) for 

coastal bottlenose dolphins; Kenny and 

Vigness-Raposa (2010) for sei whales, 

minke whales, Atlantic spotted 

dolphins, and pilot whale spp.; CeTAP 

(1982) for humpback whales; and 

Barkaszi and Kelly (2019) for sperm 

whales and Risso’s dolphin, which are 

derived from data gathered specifically 

in the mid- and north-Atlantic, where 

the Project will occur, whereas the 

group sizes in the Department of the 

Navy’s (2017) report are based on data 

collected more broadly across the entire 

East Coast of the United States and 

Canada, including the Gulf of Mexico, 

Sargasso Sea, Labrador Sea, and 

Labrador Basin. Any additional takes 

that NMFS has opted to authorize, per 

recommendations by the Commission, is 

based on either the group size literature 

already provided by Ocean Wind (e.g., 

from Toth et al., 2011 for corrections to 

bottlenose dolphins) or based on group 

size information from AMAPPS, which 

derived data for its annual reports from 

specific transects undertaken in specific 

regions (New Jersey through Maine, per 

Figure 1–1 in the 2021 Annual Report, 

https://repository.library.noaa.gov/view/ 

noaa/41734). Furthermore, AMAPPS 

uses more recent information, as 

demonstrated in the 2010–2021 annual 

reports found on NMFS’ web page 

(https://www.fisheries.noaa.gov/newengland-mid-atlantic/populationassessments/atlantic-marineassessment-program-protected). The 

Department of the Navy’s (2017) group 

sizes are based on data from 1990 

through 2013 (see Table 3–1 in the 

report). Lastly, based on monitoring 

reports received from PSOs in the field 

(and found on NMFS’ website: https:// 


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www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable#expiredauthorizations), the group sizes 

observed align more with estimates 

found in Kraus et al. (2016) and 

AMAPPS (Palka et al., 2017). For these 

reasons, the group sizes proposed by 

Ocean Wind, any adjustments using 

AMAPPS data, and any group sizes used 

in the proposed and final rules are 

based on the best available scientific 

information. 

Comment 8: The Commission 

recommended that NMFS include in the 

final rule Level B harassment takes of 

the coastal stock of bottlenose dolphins 

during impact installation of monopiles 

and pin piles, if any pile will be 

installed in 20 m of water or less or if 

any Level B harassment zone extends 

into 20 m or less of water. 

Response: Based on the 

recommendation by the Commission, 

JASCO has seeded the coastal bottlenose 

dolphin stock only in shallow water 

(defined here as any area less than 20- 

m water depth). In consultation with 

Ocean Wind, NMFS has reallocated a 

conservative 10 percent of the offshore 

bottlenose dolphin Level B harassment 

take request to the coastal stock, which 

revises the authorized take from impact 

pile driving of permanent foundations 

to 842 takes by Level B harassment for 

the offshore stock and 94 takes by Level 

B harassment for the coastal stock. 

We note that no take by Level A 

harassment of this coastal bottlenose 

dolphin stock has been authorized as, 

based on Figure 1 of the Underwater 

Acoustic and Exposure Modeling 

Report, all project foundations in the 

Lease Area will be installed beyond the 

20-m isobath. The largest 10-dB 

attenuation exposure range for the 

project is approximately 3.5 km. The 

distance between the shallowest 

foundation position and shallow water 

is about this distance or less; thus, it is 

unlikely that the coastal stock would 

approach the piles during impact pile 

driving for the duration necessary to 

experience Level A harassment. 

Comment 9: The Commission 

disagreed that non-auditory injury and 

mortality during UXO/MEC detonations 

are considered de minimis. It stated that 

although non-auditory injury and 

mortality could be unlikely, these 

outcomes are not de minimis because 

these assumptions were based off 

Bellmann et al. (2020) and Bellmann 

(2021) and their reports of bubble 

curtain effectiveness, which are based 

on information obtained from mitigating 

UXO/MECs in European waters using a 

big bubble curtain. The Commission 

further stated that these results from 

Bellmann are only potentially possible 

if the single or double bubble curtain 

was optimized for the environmental 

conditions and that these results are 

specific to European charges, which 

may not be representative of charges in 

the United States as charges in Europe 

have been degrading in the water for 

approximately 75 years, which 

compromises the integrity of the 

trinitrotoluene (TNT)-equivalent 

material. Additionally, the charge 

weights described in Bellmann (2021) 

are much smaller than those described 

for the Project (i.e., 100 grams (g), 5 

kilograms (kg), and 10 kg, compared to 

454 kg). The Commission also added 

that the shockwave from the UXO/MEC 

detonations may displace or disrupt the 

bubble curtains due to the speed the 

shockwave travels (i.e., supersonic). 

Because of these reasons, the 

Commission recommended that NMFS 

re-estimate the distances to threshold 

and the mitigation and monitoring 

zones for mortality, Level A harassment, 

and Level B harassment based on 0-dB 

of sound attenuation. 

The Commission also stated that it 

does not make sense to say that 

behavioral harassment will not result 

from exposure to single detonations of 

UXO. The Commission also 

recommended that NMFS re-estimate 

the number of takes from UXO/MEC 

detonation while increasing to the 

relevant group sizes, when necessary. 

Finally, the Commission recommended 

that because of the reasons already 

explained regarding attenuating UXO/ 

MEC detonations, NMFS should require 

that Ocean Wind utilize a double big 

bubble curtain (DBBC) during all 

detonations and that NMFS not allow 

Ocean Wind to detonate UXOs/MECs 

when currents are moving faster than 2 

knots (kn). 

Response: NMFS appreciates the 

Commission’s recognition that European 

waters offer a different environment 

than the Atlantic Ocean, and then the 

conditions and size of explosives 

potentially encountered in the Ocean 

Wind project area. Bellmann (2021) 

summarized findings from Bellmann et 

al. (2021) that showed use of a single big 

bubble curtain during UXO/MEC 

detonation reduced noise levels by 11 

dB for broadband sound exposure levels 

and up to 18 dB for peak sound pressure 

(Lpk). While NMFS agrees with the 

Commission’s comment that BBCs 

attenuate high-frequency (HF) sound (<1 

kHz) more efficiently than lowfrequency (LF) sound (Bellmann et al., 

2020) that corresponds to most of the 

UXO/MEC energy, the broadband 

attenuation is expected to be similar, if 

the bubble curtain radius is large 

enough to avoid nearfield effects of the 

explosive detonations. While it is true 

that theoretical explosive spectra are flat 

at low frequencies and decay at highfrequencies, there remains significant 

energy at frequencies at which bubble 

curtains have been shown to be effective 

(Bellmann et al., 2020). A recent study 

of UXO/MEC detonations in the North 

Sea (Robinson et al., 2022) showed that 

measured spectra at 5.1 km had the 

majority of its energy between 32 and 

250 Hz, in this range, the insertion loss 

data from Bellman (2021) has a 

minimum attenuation of approximately 

16.8 dB in the 50-hertz (Hz) band, and 

is greater than 20 dB for all other bands. 

Further, Verfuss et al. (2019) summarize 

the effectiveness of bubble curtains on 

UXO/MEC detonations beyond those 

sizes considered in Bellman et al. (2021) 

which, while variable, provide support 

for the 10-dB broadband assumption 

when bubble curtains are deployed 

correctly (i.e., with a sufficiently large 

diameter, to suppress the flow of 

displaced water). Therefore, the choice 

of 10 dB as a broadband attenuation for 

UXO/MEC detonations in our analysis is 

expected to be appropriate. 

In addressing the Commission’s 

additional comments regarding 

mitigating pile driving and UXO/MEC 

detonations and the efficacy, the 

physical principles of inserting an 

impedance change between the source 

and farther receivers is the same 

whether the source is an explosive or a 

pile. It is important, however, that the 

bubble curtain be placed outside of the 

region where the explosive causes 

nonlinear changes in the medium. 

While we do agree that ‘‘the 

deployment’’ and the ‘‘efficacy’’ are not 

synonymous terms, there will be a 

deployed bubble curtain on each of the 

piles driven for the project so an 

understanding of bubble curtain 

deployment strategies, maintenance, 

and use will be understood by the 

operations team. As above, the 

mechanism of sound attenuation, while 

frequency dependent, does not change 

for the source as long as the bubble 

curtain is deployed at distance where 

the acoustics is linear. For UXOs/MECs, 

the distances to thresholds for different 

sized charges likely to be encountered 

were calculated by JASCO assuming the 

sources were full strength and not 

degraded due to time. While the 

Commission has also accurately stated 

that the bubble curtain could be 

displaced due to the supersonic 

shockwave produced by the detonation 

event, we acknowledge that this would 

require the bubble curtain to be placed 


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in the area outside of the non-linear 

zone. 

NMFS is requiring Ocean Wind to 

meet the noise levels modeled assuming 

10-dB attenuation, which must be 

verified by SFV, and, as recommended 

by the Commission, is requiring Ocean 

Wind deploy a double big bubble 

curtain during all UXO/MEC 

detonations. Further, we are requiring 

that the bubble curtain be placed at a 

distance such that the nozzle hose 

remains undamaged. Given the best 

available science suggests 10-dB 

attenuation is achievable, the additional 

information provided above by JASCO, 

the requirement to meet the noise levels 

modeled assuming 10 dB, and the 

requirement to use a double big bubble 

curtain, as well as the extensive 

monitoring requirements associated 

with the clearance requirements 

(including aerial surveys if the clearance 

zone is greater than 5 km), NMFS has 

not adjusted any distances to thresholds 

or take estimates assuming no noise 

attenuation. At this time, NMFS is not 

requiring UXO/MEC detonation be 

limited to times when current speed is 

2 kn or less but, as described above, is 

requiring Ocean Wind to meet the noise 

levels modeled. Should SFV identify 

that noise levels are not being met, 

NMFS will consider the current 

conditions during detonation and 

determine if such a measure is 

necessary to meet the noise levels 

modeled assuming 10-dB attenuation. 

Nonetheless, regarding the 

Commission’s comment about use of the 

term ‘‘de minimis’’ to describe the 

likelihood of non-auditory injury or 

mortality, we concur that ‘‘unlikely’’ is 

a better descriptor and have changed it 

in the text where appropriate. 

Regarding the Commission’s 

comments regarding behavioral 

disturbance resulting from single 

detonations from UXO/MEC, NMFS 

agrees there is potential for behavioral 

disturbance from a single detonation per 

day and this impact is accounted for 

with the Level B harassment takes 

authorized from UXO/MEC detonations. 

NMFS acknowledges the possibility that 

single underwater detonations can cause 

a behavioral response. The current take 

estimate framework allows for the 

consideration of animals exhibiting 

behavioral disturbance during single 

explosions as they are counted as ‘‘taken 

by Level B harassment’’ if they are 

exposed above the temporary threshold 

shift (TTS) threshold, which is 5-dB 

higher than the explosive behavioral 

harassment threshold. The behavior 

threshold for underwater detonations of 

5 dB less than the TTS thresholds for 

each functional hearing group that the 

Commission identifies in its comment is 

only applicable to multiple detonations 

per day. We acknowledge in our 

analysis that individuals exposed above 

the TTS threshold may also be harassed 

by behavioral disruption and those 

potential impacts are considered in the 

negligible impact determination. NMFS 

is not aware of evidence to support the 

assertion that animals will have 

behavioral responses that would qualify 

as take to temporally and spatially 

isolated explosions at received levels 

below the TTS threshold. However, if 

any such responses were to occur, they 

would be expected to be few and to 

result from exposure to the somewhat 

higher received levels bounded by the 

TTS thresholds and would thereby be 

accounted for in the take estimates. The 

derivation of the explosive injury 

criteria is provided in the 2017 

technical report titled ‘‘Criteria and 

Thresholds for U.S. Navy Acoustic and 

Explosive Effects Analysis (Phase III).’’ 

In the proposed rule, we did 

inadvertently include UXO/MEC 

detonations as an example impulsive 

source in one location when referencing 

the 160-dB Level B harassment 

threshold, which has been removed in 

this final rule. We have also clarified 

that given Ocean Wind would be 

limited to detonating one UXO/MEC per 

day, the TTS thresholds provided in 

Table 5 are used to estimate the 

potential for Level B (behavioral) 

harassment. In both the proposed rule 

and this final rule, NMFS applied the 

TTS threshold to determine the received 

level at which Level B harassment 

(which includes both behavioral 

responses and TTS) may occur. Hence, 

no adjustments to take estimates is 

necessary. 

Mitigation 

Comment 10: Commenters 

recommended that NMFS require Ocean 

Wind to implement the best 

commercially available combined NAS 

technology to achieve the greatest level 

of noise reduction and attenuation 

possible for pile driving. A commenter 

recommended that NMFS require, at a 

minimum, a 10-dB reduction in SEL, 

but other commenters recommended 

that NMFS require a minimum of 15-dB 

or greater reductions, citing to successes 

described in Bellman et al. (2020 and 

2022) and recommended ‘‘state-of-the 

art’’ methods using a combination of 

two NAS systems simultaneously. A 

commenter further stated that NMFS 

should require field measurements to be 

taken throughout the construction 

process, including on the first pile 

installed, to ensure compliance with 

noise reduction requirements. A 

commenter also suggested that NMFS 

require Ocean Wind to use HRG 

acoustic sources at the lowest 

practicable source levels needed to meet 

the objectives of the site 

characterization surveys. 

Response: NMFS agrees with the 

suggestion made by the commenters that 

underwater noise levels should be 

reduced to the greatest degree 

practicable to reduce impacts on marine 

mammals. As described in both the 

proposed and final rule, NMFS has 

included requirements for sound noise 

attenuation methods that successfully 

(as evidenced by required sound field 

verification measurements) reduce realworld noise levels produced from 

impact pile driving of foundation 

installation to, at a minimum, the levels 

provided by JASCO modeled for 10-dB 

reduction, as analyzed in the proposed 

rule. Preliminary sound measurements 

from South Fork Wind, also an Orsted 

project, indicate that with multiple NAS 

systems, measured sound levels during 

impact driving foundation piles using a 

4,000 kJ hammer are below those 

modeled assuming a 10-dB reduction 

and suggest, in fact, that two systems 

may sometimes be necessary to reach 

the targeted 10-dB reductions. While 

NMFS is requiring that Ocean Wind 

reduce sound levels to match the model 

outputs analyzed (assuming a reduction 

of 10 dB), we are not requiring greater 

reduction as it is currently unclear 

(based on measurements to date) 

whether greater reductions are 

consistently practicable for these 

activities, even if multiple NAS systems 

are used. 

In response to the recommendation by 

the commenters for NMFS to confirm 

that a 10-dB reduction is achieved, 

NMFS clarifies that, because no 

unattenuated piles would be driven, 

there is no way to confirm a 10-dB 

reduction; rather, in-situ SFV 

measurements will be required to 

confirm that sound levels are at or 

below those modeled assuming a 10-dB 

reduction. 

Regarding the recommendation that 

Ocean Wind should utilize its HRG 

acoustic sources at the lowest 

practicable source level to meet the 

survey objective, NMFS agrees with this 

suggestion and has incorporated this 

requirement into the final rule. 

Comment 11: To minimize the risk of 

vessel strikes for all whales, and 

especially in recognition of the 

imperiled state of North Atlantic right 

whales, commenters recommended that 

NMFS require a mandatory 10-kn speed 

restriction for all project vessels 

(including PSO survey vessels) at all 

times, except for reasons of safety, and 


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in all places except in limited 

circumstances where the best available 

scientific information demonstrates that 

whales do not occur in the area. Other 

commenters made the same 

recommendation but suggested no 

exceptions. Alternatively, some 

suggested that project proponents could 

work with NMFS to develop an 

‘‘Adaptive Plan’’ that modifies vessel 

speed restrictions if the monitoring 

methods are proven to be effective when 

vessels are traveling 10 kn or less. 

Commenters stated that this Adaptive 

Plan must follow a scientific study 

design. A commenter suggested that if 

the Adaptive Plan is scientifically 

proven to be equally or more effective 

than a 10-kn speed restriction, that the 

Adaptive Plan could be used as an 

alternative to the 10-kn speed 

restriction. 

Response: NMFS agrees with the 

commenters that vessel strikes pose a 

risk to North Atlantic right whales (and 

all large whales broadly). Based on the 

density information provided by Roberts 

et al. (2023), most large whale species 

are less frequently found within the 

project area during the months when 

foundation installation, which requires 

the use of multiple vessels, would occur 

(i.e., May through November, and 

December, if approved by NMFS). 

Specifically in the New Jersey region, 

there is no ESA critical habitat or areas 

wherein large whales are expected to 

congregate or remain in the area for 

extended periods of time (e.g., no 

foraging biologically important areas 

(BIAs) are located within the project 

area; thereby, decreasing the time over 

which they are available to interact with 

vessels). Furthermore, while we do 

acknowledge that there is no time of 

year when North Atlantic right whales 

are not found within the Project area at 

all, NMFS, as described in the proposed 

rule and included in this final rule, is 

requiring Ocean Wind to reduce speeds 

to 10 kn or less in several circumstances 

when North Atlantic right whales are 

known to be present or more likely to 

be in the area, which include, but are 

not limited to, all Slow Zones (Dynamic 

Management Area or acoustic Slow 

Zone), from November 1–April 30 in the 

specified geographical region, and if a 

North Atlantic right whale is detected 

visually or acoustically in the project 

area. Additionally, aside from any 

requirements of this rule, Ocean Wind 

is required to comply with all spatial 

and temporal speed restrictions outlined 

in applicable regulations. Altogether, 

these speed requirements align with the 

commenter’s recommendation. 

The required mitigation measures, all 

of which were included in the proposed 

rule and are now required in the final 

rule, can be found in § 217.264(b) of the 

regulatory text. These contain speed 

restriction requirements, vessel actions 

in the event mothers and calves/pods 

approach the vessel (e.g., shifting into 

neutral, etc.), separation distances for 

specific species, and actions to take in 

the event marine mammal(s) are sighted, 

among other requirements. For the final 

rule, NMFS has also included a 

requirement that all vessels be equipped 

with automatic identification system 

(AIS) to facilitate compliance checks 

with the speed limit requirements. Per 

the proposed rule, on July 19, 2023, 

Ocean Wind submitted a draft Vessel 

Strike Avoidance Plan to NMFS for 

review and approval. At least 180 days 

prior to when the Project would seek to 

travel above 10 knots and deploy PAM 

buoys (anticipated in spring 2024), 

Ocean Wind must submit a PAM plan 

to NMFS for review and approval. 

Without an approved PAM Plan for the 

transit corridor in place, Ocean Wind 

would not be able to travel over 10 kn. 

While NMFS acknowledges that 

vessel strikes can result in injury or 

mortality of marine mammals, we have 

analyzed the potential for vessel strike 

resulting from Ocean Wind’s activity 

and have determined that based on the 

required mitigation measures specific to 

vessel strike avoidance included in the 

final rule and issued LOA, which are 

designed to effect the least practicable 

adverse impact on marine mammals, the 

potential for vessel strike is so low as to 

be discountable and no vessel strikes are 

expected or authorized. 

Additionally, based on this 

information, we have determined no 

blanket 10-kn vessel-speed restriction is 

necessary. 

Comment 12: Commenters 

recommended that NMFS should 

prohibit pile driving during periods of 

highest risk for North Atlantic right 

whales, which they defined as times of 

the highest relative density of animals 

during foraging and migration, and 

times where cow-calf pairs, pregnant 

females, surface active groups (that are 

foraging or socializing), or aggregations 

of three or more whales, are not 

expected to be present. Citing multiple 

information sources, commenters 

further specifically recommended the 

seasonal restriction for pile driving be 

expanded to November 1 through April 

30 to reflect the period of highest 

detections of vocal activity, sightings, 

and abundance estimates of North 

Atlantic right whales. Commenters 

recommended prohibiting pile driving 

during seasons when protected species 

are known to be present or migrating in 

the Project area, in addition to any 

dynamic restrictions due to the presence 

of North Atlantic right whale or other 

endangered species. Also, for UXO/MEC 

detonations, a commenter implied that 

the seasonal restrictions from January 1 

through April 30, annually, are not 

enough to protect North Atlantic right 

whales but did not recommend specific 

times of year when pile driving and 

UXO/MEC detonation should not occur. 

Response: NMFS has restricted 

foundation installation pile driving from 

January through April, which represent 

the times of year when North Atlantic 

right whales are most likely to be in the 

project area. We recognize that the 

density of whales begins to elevate in 

December; however, it is not until 

January when density greatly increases. 

Ocean Wind has indicated that to 

complete the project, pile driving in 

December may be required. In this final 

rule, NMFS has included an additional 

measure wherein pile driving in 

December must be avoided to the 

maximum extent practicable but may 

occur if necessary, provided NMFS 

prior approval. In any time of year when 

foundation installation is occurring, a 

sighting or acoustic detection of a North 

Atlantic right whale at any distance 

triggers a pile driving delay or 

shutdown. We also reiterate that Ocean 

Wind is required to implement a 

minimum visibility zone in December 

(2,500 m) as compared to other project 

months (1,650 m), reflecting the results 

of JASCO’s underwater sound 

propagation modeling. With the 

application of these enhanced 

mitigation and monitoring measures in 

December, impacts to the North Atlantic 

right whale will be further reduced, if 

any are encountered when transiting 

through the Migratory Corridor. 

Regarding further restrictions on pile 

driving in the month of November, as 

noted in the comments and supporting 

information, and acknowledged by 

NMFS in both the proposed and final 

rules, North Atlantic right whale 

distribution is changing due to climate 

change and other factors, and they are 

present year round in the vicinity of the 

project, with some detections of mothers 

with calves or feeding behaviors in the 

vicinity of the project. However, as 

shown in Roberts et al. (2023), which 

NMFS considers the best available 

scientific information regarding marine 

mammal densities in the Atlantic 

Ocean, it is not until January that 

densities begin to significantly increase. 

Further, North Atlantic right whales are 

not likely to be engaged in feeding 

behaviors in the project area, from May 

to November or otherwise, as the project 

area is primarily a migratory corridor for 

North Atlantic right whales and, while 


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some opportunistic foraging may occur, 

the waters off of New Jersey do not 

include known foraging habitat for 

North Atlantic right whales. As 

described in the Marine Mammal 

section, foraging habitat is located in 

colder, more northern waters including 

southern New England, the Gulf and 

Maine, and Canada. For these reasons, 

and given the inclusion of December in 

the seasonal impact pile driving 

restriction, except with NMFS prior 

approval, NMFS finds that further 

expansion of the seasonal impact pile 

driving restrictions (beyond December– 

April) is unwarranted. 

Inasmuch as comments may be 

suggesting that NMFS prohibit pile 

driving when any protected species are 

present, it would not be practicable to 

implement, as there is no time of year 

when some species of marine mammals 

are not present. 

Regarding a commenter’s assertion 

that the January to April pile driving 

and UXO/MEC detonation moratorium 

is insufficient, the commenter did not 

propose a different time period or 

moratorium for NMFS to evaluate and 

consider for this final rule. In the 

proposed rule, we acknowledged that 

Ocean Wind had committed to not 

detonating UXOs/MECs from November 

1 through April 30, annually, to reduce 

impacts to the North Atlantic right 

whale, and we have carried that 

requirement forward here in the final 

rule. 

Comment 13: A commenter 

recommended that, for site assessment 

surveys, NMFS: (1) increase the size of 

the clearance and shutdown zones for 

site assessment surveys to 500 m for all 

large whales and 1,000 m for North 

Atlantic right whales, respectively; (2) 

require a 1,000-m acoustic clearance 

zone (i.e., necessitating the use of PAM 

for HRG surveys); and (3) require that 

any unidentified large whale within 

1,000 m of the vessel be considered a 

North Atlantic right whale. 

Response: As described in the 

proposed and final rules, the required 

500-m Shutdown Zone for North 

Atlantic right whales exceeds the 

modeled distance to the largest 160-dB 

Level B harassment isopleth (141 m 

during sparker use) by a large margin, 

minimizing the likelihood that they will 

be harassed in any manner by this 

activity. For other ESA-listed species 

(e.g., fin and sei whales), the NMFS 

Greater Atlantic Regional Fisheries 

Office (GARFO) 2021 Offshore Wind 

Site Assessment Survey Programmatic 

ESA consultation (see https://

www.fisheries.noaa.gov/new-englandmid-atlantic/consultations/section-7- 

take-reporting-programmatics-greateratlantic) determined that a 100-m 

shutdown zone is sufficient to minimize 

exposure to noise that could be 

disturbing. Accordingly, NMFS has 

adopted this shutdown zone size for all 

baleen whale species, other than the 

North Atlantic right whale. Commenters 

do not provide additional scientific 

information for NMFS to consider to 

support their recommendation to 

expand the Shutdown Zone. Given that 

these surveys are relatively low impact 

and that NMFS has prescribed a 

precautionary North Atlantic right 

whale Shutdown Zone that is larger 

(500 m) than the largest estimated 

harassment zone (141 m), NMFS has 

determined that an increase in the size 

of the Shutdown Zone during HRG 

surveys is not warranted. 

Regarding the use of acoustic 

monitoring to implement the shutdown 

zones, NMFS does not consider acoustic 

monitoring an effective tool for use with 

HRG surveys for the reasons discussed 

below and therefore has not required it 

in this final rule. As described in the 

Mitigation section, NMFS has 

determined that the prescribed 

mitigation requirements are sufficient to 

effect the least practicable adverse 

impact on all affected species or stocks. 

The commenters do not provide 

additional scientific information for 

NMFS to consider to support their 

recommendation to require PAM during 

site assessment surveys. NMFS 

disagrees that this measure is warranted 

because it is not expected to be effective 

for use in detecting the species of 

concern. It is generally accepted that, 

even in the absence of additional 

acoustic sources, using a towed passive 

acoustic sensor to detect baleen whales 

(including North Atlantic right whales) 

is not typically effective because the 

noise from the vessel, the flow noise, 

and the cable noise are in the same 

frequency band and will mask the vast 

majority of baleen whale calls. Vessels 

produce low-frequency noise, primarily 

through propeller cavitation, with main 

energy in the 5–300 Hz frequency range. 

Source levels range from about 140 to 

195 decibel (dB) re 1 mPa (micropascal) 

at 1 m (NRC, 2003; Hildebrand, 2009), 

depending on factors such as ship type, 

load, and speed, and ship hull and 

propeller design. Studies of vessel noise 

show that it appears to increase 

background noise levels in the 71–224 

Hz range by 10–13 dB (Hatch et al., 

2012; McKenna et al., 2012; Rolland et 

al., 2012). PAM systems employ 

hydrophones towed in streamer cables 

approximately 500 m behind a vessel. 

Noise from water flow around the cables 

and from strumming of the cables 

themselves is also low frequency and 

typically masks signals in the same 

range. Experienced PAM operators 

(Thode et al., 2017) emphasized that a 

PAM operation could easily report no 

acoustic encounters, depending on 

species present, simply because 

background noise levels rendered any 

acoustic detection impossible. The same 

report stated that a typical eight-element 

array towed 500 m behind a vessel 

could be expected to detect delphinids, 

sperm whales, and beaked whales at the 

required range, but not baleen whales, 

due to expected background noise levels 

(including seismic noise, vessel noise, 

and flow noise). 

Further, there are several additional 

reasons why we disagree that use of 

PAM is warranted for HRG surveys, 

specifically. While NMFS agrees that 

PAM can be an important tool for 

augmenting detection capabilities in 

certain circumstances (e.g., foundation 

installation), its utility in further 

reducing impacts during HRG survey 

activities is limited. First, for this 

activity, the area expected to be 

ensonified above the Level B 

harassment threshold is relatively small 

(a maximum of 141 m); this reflects the 

fact that the source level is 

comparatively low and the intensity of 

any resulting impacts would be lower 

level and, further, it means that 

inasmuch as PAM will only detect a 

portion of any animals exposed within 

a zone, the overall probability of PAM 

detecting an animal in the harassment 

zone is low. Together, these factors 

support the limited value of PAM for 

use in reducing take for activities/ 

sources with smaller zones. Also, PAM 

is only capable of detecting animals that 

are actively vocalizing, while many 

marine mammal species vocalize 

infrequently or during certain activities, 

which means that only a subset of the 

animals within the range of the PAM 

would be detected (and potentially have 

reduced impacts). Additionally, 

localization and range detection can be 

challenging under certain scenarios. For 

example, odontocetes are fast moving 

and often travel in large or dispersed 

groups which makes localization 

difficult. 

Given that the effects to marine 

mammals from the types of HRG 

surveys authorized in this final 

rulemaking are expected to be limited to 

low level behavioral harassment even in 

the absence of mitigation, the limited 

additional benefit anticipated by adding 

this detection method (especially for 

North Atlantic right whales and other 

low frequency cetaceans, species for 

which PAM has limited efficacy during 

this activity), and the cost and 

impracticability of implementing a fullVerDate Sep<11>2014 18:29 Sep 12, 2023 Jkt 259001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.SGM 13SER2

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time PAM program, we have determined 

the current requirements for visual 

monitoring are sufficient to ensure the 

least practicable adverse impact on the 

affected species or stocks and their 

habitat during HRG surveys. 

Comment 14: Commenters 

recommended that NMFS require piledriving clearance and shutdown zones 

for large whales (other than North 

Atlantic right whale) that are large 

enough to avoid all take by Level A 

harassment and minimizes Level B 

harassment to the most practicable 

extent. 

Response: The commenters do not 

provide additional scientific 

information for NMFS to consider to 

support their recommendation to 

expand clearance and shutdown zones 

to effect the least practicable adverse 

impact on marine mammals, 

particularly large whales, excluding the 

North Atlantic right whale. The required 

clearance zone for large whales (other 

than North Atlantic right whale) equates 

to the largest modeled distance to the 

largest Level A harassment threshold, 

plus 20 percent, for the low frequency 

hearing group, assuming 10 dB of sound 

attenuation. The shutdown zone 

represents the largest distance to the 

cumulative sound exposure level 

(SELcum) for the Level A harassment 

isopleth. Both of these zones are 

typically rounded up for PSO clarity. 

These requirements minimize Level B 

harassment and avoid almost all Level 

A harassment of large whales (note that 

for all but minke whales (n=22), all 

other species of large whales have 6 or 

fewer takes by Level A harassment 

across all 5 years of the rule). Further 

enlargement of these zones could 

interrupt and delay the project such that 

a substantially higher number of days 

would be needed to complete the 

construction activities, which would 

incur additional costs, but importantly 

also potentially increase the number of 

days that marine mammals are exposed 

to the disturbance. Accordingly, NMFS 

has determined that enlargement of 

these zones is not warranted, and that 

the existing required clearance and 

shutdown zones support a suite of 

measures that will effect the least 

practicable adverse impact on other 

large whales. 

Comment 15: Commenters 

recommended that NMFS require 

clearance and shutdown zones for North 

Atlantic right whales specifically, 

including: (1) a minimum of 5,000 m for 

the visual clearance, acoustic clearance, 

and shutdown zones in all directions 

from the driven pile location; and (2) an 

acoustic shutdown zone that would 

extend at least 2,000 m in all directions 

from the driven pile location. 

Response: The Commenters do not 

provide additional scientific 

information for NMFS to consider to 

support their recommendation to 

expand clearance and shutdown zones 

for impact pile driving to effect the least 

practicable adverse impact on North 

Atlantic right whales. The proposed rule 

and this final rule require impact pile 

driving to be delayed or shutdown if a 

North Atlantic right whale is visually or 

acoustically detected at any distance. 

Given NMFS neither anticipates nor 

authorizes any take by Level A 

harassment of North Atlantic right 

whales, NMFS believes that these 

measures will effect the least practicable 

adverse impact on the species. Delaying 

the project due to overly enlarged zone 

sizes would result in longer 

construction time frames, prolonging 

the time periods over which marine 

mammals may be exposed to 

construction-related stressors. 

Accordingly, NMFS has determined that 

enlargement of these zones is not 

warranted, and that the existing 

required clearance and shutdown zones 

support a suite of measures that will 

effect the least practicable adverse 

impact on North Atlantic right whales 

and other affected species. 

Comment 16: For all large whale 

species, commenters recommended that 

NMFS require real-time PAM during 

impact pile driving to monitor the 

acoustic clearance and acoustic 

shutdown zones, and must assume a 

detection range of at least 10 km. They 

stated that this monitoring must be 

undertaken from a vessel other than the 

pile driving vessel or from a stationary 

unit to avoid masking of the 

hydrophone from the pile driving vessel 

or other development-related noise. 

Response: As described in the 

proposed rule, NMFS is requiring the 

use of PAM to monitor 10-km zones 

around the piles, and that the systems 

be capable of detecting marine 

mammals during pile driving within 

this zone. However, NMFS 

acknowledges that this could be made 

clearer and has modified Table 36 to 

clearly describe this 10 km PAM 

monitoring zone. Ocean Wind is 

required to submit a PAM Plan to NMFS 

for approval at least 180 days prior to 

the planned impact pile driving start 

date. NMFS will not approve a Plan 

where hydrophones used for PAM 

would be deployed from the pile driving 

vessel as this would result in 

hydrophones inside the bubble curtains, 

which would clearly be ineffective for 

monitoring; therefore, there is no need 

to explicitly state in this rule that this 

would not be allowed. Further, Ocean 

Wind may launch PAM drones from 

shore; hence, NMFS is not requiring that 

Ocean Wind deploy any monitoring 

systems from a vessel. 

Comment 17: Comments 

recommended that NMFS: (1) require all 

offshore personnel to be trained to 

identify North Atlantic right whales and 

other large whales, and (2) that all 

vessels maintain a 500-m separation 

distance from North Atlantic right 

whale, 100 m for other large whale 

species while also maintaining a 

vigilant watch for North Atlantic right 

whale and other large whale species. 

Commenter(s) also recommended that 

NMFS require vessels to slow down or 

maneuver their vessels appropriately to 

avoid a potential interaction with a 

North Atlantic right whale and other 

large whale species. Commenter(s) also 

suggested that NMFS require that 

vessels maintain a separation distance 

from North Atlantic right whales. 

Response: NMFS notes that these 

requirements were included in the 

proposed rule (87 FR 64868, October 26, 

2022) and are carried forward into this 

final rule. 

Comment 18: Commenters 

recommended that NMFS implement 

diel restrictions for site assessment and 

characterization activities within 1.5 

hours of civil sunset and in lowvisibility conditions when the visual 

clearance zone and shutdown zone 

(referred to as the ‘‘exclusion zone’’ in 

Appendix A) cannot be visually 

monitored by the Lead PSO. 

Response: NMFS acknowledges the 

limitations inherent in visual detection 

of marine mammals at night. The 

proposed rule and this final rule 

requires that visual PSOs use alternative 

technology (i.e., infrared or thermal 

cameras) during periods of low visibility 

to monitor the clearance and shutdown 

zones. We note that no Level A 

harassment is expected to result from 

exposure to HRG equipment, even in the 

absence of mitigation, given the 

characteristics of the sources planned 

for use (supported by the very small 

estimated Level A harassment zones; 

i.e., <36.5 m (119.8 feet (ft)) for all 

sources). Regarding Level B harassment, 

any potential impacts are limited to 

short-term behavioral responses. Given 

these factors combined with other 

mitigation measures, NMFS has 

determined that more restrictive 

mitigation requirements are not 

warranted. 

Restricting surveys in the manner 

suggested by the commenters may 

reduce marine mammal exposures by 

some degree at night if, in fact, 

detectability is less at night and animals 


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do approach within the small 

harassment zone, but would not result 

in any significant reduction in either 

intensity or duration of noise exposure 

over the course of the surveys. In fact, 

the restrictions recommended by the 

commenters could result in the surveys 

spending increased total time (number 

of days) on the water introducing noise 

into the marine environment, which 

may result in greater overall impacts to 

marine mammals; thus, the commenters 

have not demonstrated that such a 

requirement would result in a net 

benefit. Furthermore, restricting the 

ability of the applicant to begin 

operations only during daylight hours, 

which could result in the applicant 

failing to collect the data they have 

determined is necessary within the 

specific timeframe and, subsequently, 

may necessitate the need to conduct 

additional surveys in the future across 

additional days. This would result in 

significantly increased costs incurred by 

the applicant. Thus, the restriction 

suggested by the commenters would not 

be practicable for the applicant to 

implement. In consideration of the 

likely effects of the activity on marine 

mammals absent mitigation, potential 

unintended consequences of the 

measures as proposed by the 

commenters, and practicability of the 

recommended measures for the 

applicant, NMFS has determined that 

restricting operations as recommended 

is not warranted or practicable in this 

case. 

Comment 19: Commenter 

recommended that NMFS prohibit site 

assessment and site characterization 

activities during times of highest North 

Atlantic right whale risk (foraging and 

migration, and times when mother-calf 

pairs, pregnant females, surface active 

groups, or aggregations of three or more 

whales, which is indicative of feeding or 

social behavior), using the best available 

science to define high-risk timeframes. 

Response: NMFS neither anticipates, 

nor authorizes, take of North Atlantic 

right whales by Level A harassment 

from this activity. Furthermore, NMFS 

expects that the required Vessel Strike 

Avoidance and HRG mitigation 

measures will affect the least practicable 

adverse impact on the species from this 

activity. While NMFS is authorizing 

three total takes of three North Atlantic 

right whales by Level B harassment 

from HRG surveys over the 5-year 

effective period of this rulemaking, the 

required mitigation measures will affect 

the least practicable adverse impact on 

North Atlantic right whales. 

Specifically, the largest modeled Level 

B harassment zone size for the sparker 

(141 m) is already much smaller than 

the required separation, clearance, and 

shutdown distances for North Atlantic 

right whale (500 m) and any 

unidentified large whale that would be 

treated as if it were a North Atlantic 

right whale. Any Level B harassment 

that is not avoided is not expected to 

impact feeding or other behaviors in a 

manner that poses energetic or 

reproductive risks for any individuals. 

Given the minimal anticipated impacts 

of the HRG survey, NMFS disagrees that 

additional mitigation measures are 

warranted. 

Comment 20: A commenter suggested 

that all acoustic and visual monitoring 

must begin at least 60 minutes prior to 

the start of or re-start of pile driving and 

must be conducted throughout the 

entire duration of the pile-driving event. 

They also suggested that visual 

monitoring must continue for 30 

minutes after pile driving has ceased. 

Response: NMFS notes that the 

commenter’s recommended mitigation 

measures were included in the proposed 

rule and carried forward in this final 

rule. The proposed rule also included a 

requirement that Ocean Wind review 

PAM data at least 24 hours immediately 

prior to pile driving for situational 

awareness, which has also been 

included in this final rule. NMFS notes 

that if monitoring continues throughout 

any pauses in pile driving after it 

commences, monitoring would not have 

to occur for 60 minutes; however, the 

clearance zones measures regarding not 

starting pile driving until the zones are 

clear would become applicable. 

Comment 21: Commenters 

recommended that NMFS should 

restrict pile driving at night and during 

periods of low visibility to protect all 

large whale species. This would include 

no pile driving being allowed to begin 

after 1.5 hours before civil sunset or 

during times where the visual clearance 

zone and shutdown zone (called the 

‘‘exclusion zone’’ in the Appendix) 

cannot be visually monitored, as 

determined by the Lead PSO. 

If nighttime pile driving is to be 

allowed, the commenters recommended 

that NMFS require that pile driving be 

initiated no later than 1.5 hours prior to 

civil sunset at the latest, rather than 1.5 

hours after civil sunset as stated in the 

proposed rule, in order to maximize 

monitoring activities during hours of 

optimal visibility/daylight. Impact pile 

driving started at least 1.5 hours prior to 

civil sunset during good visibility 

conditions can then continue after dark, 

as necessary providing the best available 

infrared technologies are used to 

support visual monitoring of the 

clearance and exclusion zones during 

periods of darkness (see Attachment 1). 

A commenter did caveat this 

recommendation by stating that NMFS 

should only allow pile driving to 

continue after dark if the activity began 

during daylight hours and must 

continue for human safety or due to 

installation feasibility (i.e., instability or 

pile refusal) but only if required 

nighttime monitoring protocols are 

followed. 

A commenter suggested that if pile 

driving must continue after dark due to 

safety reasons, Ocean Wind should be 

required to notify NMFS with these 

reasons and an explanation for 

exemption. Additionally, a commenter 

stated that a summary of the frequency 

of these exceptions must be made 

publicly available to ensure that these 

are indeed exceptions, rather than the 

norm, for the project. 

Response: NMFS recognizes the need 

to protect marine mammals that may be 

exposed to pile-driving noise, as well as 

the challenges of detecting marine 

mammals in low-light conditions. 

However, we note that while it may be 

more difficult to detect marine 

mammals at night, there are benefits to 

completing the pile driving in a shorter 

total amount of time, and exposing 

marine mammals to fewer days of piledriving noise. On July 19, 2023, Ocean 

Wind submitted to NMFS a final 

Nighttime Pile Driving Plan. This plan 

includes use of multiple ElectroOptical/Infra-Red (E.O./IR) cameras 

with cooled sensors and 32-channel 

hydrophone arrays to conduct PAM for 

marine mammal detection at night 

which will maximize marine mammal 

detection during nighttime pile driving. 

With the implementation of this plan, 

Ocean Wind may conduct pile driving 

at night from June 1 through October 31, 

annually, as this is the period, based on 

the Roberts et al. (2023) data, where 

North Atlantic right whale densities are 

the lowest. We note that Ocean Wind 

will not be performing nighttime pile 

driving for every pile, nor even every 

day as pile driving will not occur every 

day. Further, some piles will be finished 

before hours of darkness and some piles 

may necessitate completion after dark 

due to safety and/or stability concerns. 

NMFS will continue to review reports 

submitted by Ocean Wind and will 

maintain the provision to implement 

adaptive management, if needed. Given 

the requirements of the nighttime plan, 

which increase the likelihood of 

detection and the effective 

implementation of the required 

mitigation, NMFS has determined that 

allowing nighttime pile driving in the 

identified months is appropriate. For 

those months when nighttime pile 

driving is not allowed, the requirement 


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has been corrected to indicate that 

initiation of pile driving must begin 1.5 

hours prior to (not after) civil sunset, as 

we agree with the commenter and that 

was the intention in the proposed rule. 

Regarding a commenter’s suggestion 

for additional and specific reporting in 

the event that piles must be finished 

after dark due to safety and/or stability 

concerns, we do not agree that this 

measure would be either beneficial or 

necessary. This is a blanket provision 

necessary for the safety of the crew and 

vessels and do not see what benefit 

tracking this available provision would 

be. As described in the rule, Ocean 

Wind only intends to install a maximum 

of 2 piles per day, but may only install 

1 pile on many days. Because of the 

limited duration of pile driving 

predicted, we do not expect that Ocean 

Wind finishing pile driving after civil 

sunset would be a common occurrence, 

necessitating the need for additional 

restrictions or specific reporting. 

Regarding the reporting requirement 

specified by the commenter, we note 

that we are already requiring weekly 

reports during foundation installation, 

which would contain information that 

would inform on how long impact pile 

driving occurred and if it was necessary 

for this activity to occur during hours of 

darkness (i.e., information that would 

document the daily start and stop of all 

pile-driving activities). These weekly 

reports would be combined into 

monthly and annual reports. We do not 

plan to make the weekly or monthly 

reports publicly available, due to the 

number or reports that would become 

available; however, as described in 

Comment 25, we do plan to make the 

final reports available, which would 

summarize all of the information 

contained in the weekly and monthly 

reports. 

Comment 22: A commenter 

recommended that NMFS not allow pile 

driving to begin if monitoring results in 

either an acoustic detection within the 

acoustic clearance zone or a visual 

detection within the visual clearance 

zone of one or more North Atlantic right 

whales. They also stated that pile 

driving should not be initiated or must 

be shut down if underway (with an 

exception noted due to pile stability and 

human safety) if monitoring results in 

an acoustic detection within the 

acoustic shutdown zone or a visual 

detection within the visual shutdown 

zone of one or more North Atlantic right 

whales. They added that if pile driving 

is underway and a North Atlantic right 

whale is visually detected at any 

distance from the pile by a PSO, pile 

driving must be shut down. A 

commenter also recommended NMFS 

include a condition for resumption of 

pile driving after the Lead PSO confirms 

that no North Atlantic right whale or 

other protected species have been 

detected within the acoustical and 

visual clearance zones. Finally, a 

commenter acknowledged the 

exemption for safety from shutdown but 

recommends that if this exemption 

occurs, the project must immediately 

notify the NMFS with reasons and 

explanation for exemption and a 

summary of the frequency of these 

exceptions must be publicly available to 

ensure that these are the exception 

rather than the norm for the project. 

Some commenters also recommended 

that HRG surveys should be required to 

use a soft start, ramp-up procedure to 

encourage any nearby marine life to 

leave the area. 

Response: The recommended 

requirement that any detection of a 

North Atlantic right whale (visually or 

acoustically in the associated clearance 

zone) during the clearance period would 

trigger a delay to the onset of pile 

driving was included in the proposed 

rule and is included in this final rule. 

Similarly, the recommended 

requirement that any detection of a 

North Atlantic right whale (visually or 

acoustically in the associated exclusion 

zone) while pile driving is occurring 

would trigger a shutdown of pile driving 

(with the noted safety exception) was 

included in the proposed rule and is 

included in this final rule. In this final 

rule, NMFS has also added the 

requirement that shutdown of pile 

driving must occur if a North Atlantic 

right whale is visually detected at ‘‘any 

distance.’’ Regarding the resumption of 

pile driving following a shutdown, 

PSOs would be required to monitor 

clearance zones prior to impact pile 

driving starting. Impact pile driving 

would be allowed to begin only when 

the Lead PSO confirms that no North 

Atlantic right whales or other marine 

mammal species have been detected in 

the applicable clearance zones and the 

PAM operator confirms no detection of 

North Atlantic right whales. A soft-start 

to pile driving or ramp-up to HRG 

surveys would be required, as described 

in the proposed rule and also included 

in this final rule. 

Regarding a commenter’s suggestion 

that in the event that mitigation actions 

are not undertaken based on specific 

exemptions, both the proposed and final 

rules require reporting weekly, monthly, 

and annual reports where Ocean Wind 

must provide reasons why mitigation 

actions could not occur (including for 

this exception). We acknowledge the 

importance of transparency in the 

reporting process and plan to make all 

final annual and 5-year marine mammal 

monitoring reports and final SFV report 

on our website, however, NMFS will not 

be making the weekly or monthly 

reports final given the amount of total 

reports that would be obtained over a 5- 

year period. 

Comment 23: A commenter expressed 

concern regarding 8 hours of pile 

driving, daily, for monopile foundations 

as they state that there are ‘‘no clear 

provisions for enforcement of these and 

other restrictions’’ given the close 

proximity of other projects within the 

region. 

Response: Specific to the Project, 

NMFS notes that this comment is 

unfounded, as no other projects will 

begin impact pile driving off New Jersey 

during the same period Ocean Wind 

would begin. However, in discussing 

the concern more broadly, it is not clear 

what the commenter means by stating 

that there are ‘‘no clear provisions for 

enforcement of these and other 

restrictions.’’ The MMPA has a 

prohibition on the take of marine 

mammals and if Ocean Wind does not 

comply with the requirements of any 

issued LOA and their activities result in 

the take of marine mammals, then they 

will be subject to law enforcement. 

Violating the regulations and LOAs can 

result in civil and criminal penalties. 

More specifically, the developer is 

required to submit weekly and monthly 

reports to NMFS for review, that would 

detail exactly what was installed, what 

parameters of the impact hammer were 

used, and when piling began and 

ceased, among other things. 

Additionally, the applicant would 

provide SFV reports for NMFS’ review 

to allow for a clear understanding as to 

the effectiveness of the sound 

attenuation measures and if additional 

action (e.g., modification to clearance or 

shutdown zones) is needed. 

Comment 24: A commenter stated that 

at first, UXOs/MECs must be evaluated 

to see if they can be moved without 

detonation. If detonation must occur, 

the commenter stated that the mitigation 

measures for pile driving should be 

observed the same with regards to 

including noise abatement technology, 

clearance zones, and the use of PSOs. If 

the impact area is larger than predicted 

after detonation, the commenter 

suggests that expanded mitigation 

measures should be implemented. 

Response: As described in the 

proposed rule and included in this final 

rule, Ocean Wind would use the As Low 

As Reasonably Practical (ALARP) 

approach such that detonation would be 

the last resort to removing a UXO/MEC. 

That is, Ocean Wind is required to use 

detonation as a means of removing 


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UXO/MECs only if all other options of 

removal have been exhausted. Also as 

described in the proposed rule and 

included in this final rule, Ocean Wind 

would be required to implement visual 

monitoring using PSOs and PAM prior 

to detonation. These PSOs and PAM 

operators would be required to clear the 

appropriate zones prior to Ocean Wind 

detonating any UXO/MEC. The 

proposed rule also included the 

measure that SFV must be conducted on 

every UXO/MEC, which has been 

carried forward in this final rule. 

Additionally, NMFS requires that a 

double big bubble curtain must be used 

that is positioned far enough away from 

the blast such that the hose nozzles are 

not damaged. 

Furthermore, NMFS notes that we 

retain the ability to modify existing 

mitigation measures through adaptive 

mitigation in the event new information 

becomes available and if doing so 

creates a reasonable likelihood of more 

effectively accomplishing the goal(s) of 

the measure. 

Comment 25: A commenter asserted 

that the LOA must include requirements 

to hold all vessels associated with site 

characterization surveys accountable to 

the ITA requirements, including vessels 

owned by the developer, contractors, 

employees, and others regardless of 

ownership, operator, and contract. They 

stated that exceptions and exemptions 

will create enforcement uncertainty and 

incentives to evade regulations through 

reclassification and redesignation. They 

recommended that NMFS simplify this 

by requiring all vessels to abide by the 

same requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

Response: NMFS notes the proposed 

rule and this final rule includes a 

general condition that extends the 

requirements imposed on Ocean Wind 

to persons it authorizes or funds to 

conduct activities on its behalf e.g., 

vessel operators) while conducting the 

specified activities. The rule also states 

that Ocean Wind must ensure that the 

vessel operator and other relevant vessel 

personnel, including the PSO team, are 

briefed on all responsibilities, 

communication procedures, marine 

mammal monitoring protocols, 

operational procedures, and rule 

requirements prior to the start of survey 

activity, and when relevant new 

personnel join the survey operations. 

Comment 26: A commenter stated that 

the LOA must include conditions for the 

survey and construction activities that 

will first avoid adverse effects on North 

Atlantic right whales in and around the 

area and then minimize and mitigate the 

effects that cannot be avoided. This 

should include a full assessment of 

which activities, technologies and 

strategies are truly necessary to achieve 

site characterization and construction to 

inform development of the offshore 

wind projects and which are not critical, 

asserting that NMFS should prescribe 

the most appropriate techniques that 

would produce the lowest impact while 

achieving the same goals while 

prohibiting those other tools/techniques 

that would cause more frequent, 

intense, or long-lasting effects. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds such incidental take of small 

numbers of marine mammals by the 

requestor while engaging in the 

specified activities within the specified 

geographic region will have a negligible 

impact on such species or stock and 

where appropriate, will not have an 

unmitigable adverse impact on the 

availability of such species or stock for 

subsistence uses. As described in this 

notice of final rulemaking, NMFS finds 

that small numbers of marine mammals 

may be taken relative to the population 

size of the affected species or stocks and 

that the incidental take of marine 

mammal from all of Ocean Wind’s 

specified activities combined will have 

a negligible impact on all affected 

marine mammal species or stocks. It is 

not within NMFS’ authority to 

determine the requestor’s specified 

activities. 

The MMPA requires that we include 

mitigation measures that will effect the 

least practicable adverse impact on the 

affected species and stocks. In practice, 

NMFS agrees that the rule should 

include conditions for the construction 

activities that will first avoid adverse 

effects on North Atlantic right whales in 

and around the project area, where 

practicable, and then minimize the 

effects that cannot be avoided. NMFS 

has determined that this final rule meets 

the requirement to effect the least 

practicable adverse impact on the 

affected marine mammal stocks and 

their habitat. The commenter does not 

make any specific recommendations 

regarding mitigation measures. 

Monitoring, Reporting, and Adaptive 

Management 

Comment 27: Several commenters 

recommended that NMFS increase the 

frequency of information review for 

adaptive management to at least once a 

quarter and also have a mechanism in 

place to undertake review and adaptive 

management on an ad hoc basis if a 

serious issue is identified (e.g., if 

unauthorized levels of Level A take of 

marine mammals are reported or if 

serious injury or mortality of an animal 

occurs). 

Response: NMFS may undertake 

review and adaptive management 

actions at any time under the 

regulations, as written. Ocean Wind is 

required to submit weekly, monthly, 

and annual reports that NMFS will 

review in a timely manner and may act 

on pursuant to the adaptive 

management provisions at any time, and 

therefore, a separate specific quarterly 

review is unnecessary. 

Comment 28: A commenter 

recommended that NMFS require robust 

monitoring protocols during preclearance and when site assessment and 

characterization activities are underway, 

including: (1) passive acoustic 

monitoring from a nearby vessel (other 

than the survey vessel) or a stationary 

unit to avoid masking; (2) visual 

monitoring of the clearance zone for 

North Atlantic right whales and other 

large whales by four on-duty PSOs on 

each survey vessel scanning 180 

degrees); and (3) visual and acoustic 

monitoring beginning 30 minutes prior 

to commencement or re-initiation of 

survey activities through the duration of 

the survey. 

Response: Regarding the 

recommendation to require acoustic 

monitoring (in any form) to support 

clearance and shutdown requirements 

for HRG surveys, please see NMFS 

response to Comment 13, which 

describes why PAM is not warranted for 

HRG surveys. With respect to the 

number of PSOs, NMFS is not requiring 

four on-duty PSOs given the very small 

harassment zone sizes associated with 

HRG surveys. In the proposed rule, and 

in this final rule, PSOs are required to 

commence monitoring for marine 

mammals 30 minutes prior to the 

activity before HRG surveys begin; 

hence, this recommendation has already 

been satisfied. 

Comment 29: A commenter 

recommended that NMFS require 

infrared technology to support visual 

monitoring for all vessels responsible 

for crew transport and during any piledriving activities that occur in periods 

of darkness or nighttime to supplement 

the visual monitoring efforts for marine 

mammals. They additionally included a 

suggestion that additional observers and 

monitoring approaches (i.e., infrared, 

drones, hydrophones) must be used, as 

determined to be necessary, to ensure 

that monitoring efforts for the clearance 

and shutdown zones are effective during 

daytime, nighttime, and during periods 

of poor visibility. 

Response: NMFS notes that most of 

the proposed recommendations were 

already included in the proposed rule 


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and have been carried forward here. 

Specifically, NMFS described in the 

proposed rule, and is requiring in the 

final rule, that infrared technologies and 

PAM hydrophone deployments be 

available and used before, during, and 

after pile driving. NMFS concurs with a 

suggestion by the commenter and has 

added a new requirement in the final 

rule to allow Ocean Wind to deploy 

drones to aid PAM efforts. Moreover, 

since publication of the proposed rule, 

Ocean Wind has submitted a nighttime 

pile driving plan (referred to as the 

Alternative Monitoring Plan) on July 19, 

2023 that includes advanced 

technologies for monitoring marine 

mammals at night for both trained crew 

observers and PSOs. Once approved, 

NMFS will make the plan available on 

our website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility. 

Comment 30: Some commenters 

recommended that additional 

monitoring of the visual clearance and 

shutdown zones must be undertaken by 

PSOs located on the pile-driving vessel 

and on an additional vessel that would 

circle the pile-driving site. They 

specified that a minimum of four PSOs 

must be on each vessel and must have 

two PSOs monitoring per shift operating 

on a two on, two off rotation, with the 

commenter suggesting that human 

observation be supplemented with IR 

technology and drones. 

Response: In the proposed rule, 

NMFS proposed to require two on-duty 

PSOs on the pile-driving vessel and two 

on-duty PSOs on the secondary vessel, 

each covering 180 degrees, as proposed 

by a commenter. However, since that 

time, NMFS has determined that there 

are too few observers and is now 

requiring three on-duty PSOs on both 

platforms such that each PSO is 

responsible for 120-degree coverage, 

increasing detection effectiveness. 

Comment 31: A commenter 

recommended that NMFS should 

require SFV during installation of WTG 

and OSS foundations on the first 

monopile installed and then on a 

random sample of monopiles 

throughout the installation process. 

They also noted that they do not 

support the installation of unmitigated 

piles. They added that all sound source 

validation reports for field 

measurements must be made publicly 

available after being evaluated by both 

NMFS and BOEM prior to the 

installation of any additional monopiles 

being installed. 

Response: NMFS notes that the 

proposed rule and this final rule require 

noise abatement systems to be deployed 

during all impact pile driving activities 

to reduce noise levels to the modeled 

harassment isopleths, which will be 

validated through SFV. Additionally, 

the proposed rule and this final rule 

require SFV for the first three piles and 

additional piles where conditions 

suggest noise levels may be higher or 

propagate farther than those piles 

previously measured. Ocean Wind has 

the Lease Area data to identify if a pile 

would be more difficult to drive than 

the initial piles measured. Given these 

mitigation measures, NMFS disagrees 

that random sampling is necessary. 

As we describe above for Comment 

22, we acknowledge the importance of 

transparency in the reporting process 

and plan to make all final SFV report on 

our website, however, NMFS will not be 

making any weekly or monthly final 

reports available, given the amount of 

total reports that would be obtained 

over a 5-year period. The SFV reports 

and information gleaned would be 

available in these final reports. 

Comment 32: The Commission 

suggested that the monitoring measures 

included in the proposed rule may not 

be sufficient in reducing the potential 

for Level A harassment of North 

Atlantic right whales, specifically 

indicating that visually monitoring a 

3.5- to 3.8-km would prove difficult and 

cited literature (Oedekoven and 

Thomas, 2022) estimating effectiveness 

of marine mammal observers (MMOs) to 

be 54 percent for detecting rorquals at 

914 m or more, 31 percent for small 

cetaceans in pods of more than six, and 

14 percent for small cetaceans in pods 

of six or fewer. The Commission did not 

provide any recommendations to 

increase visual detection capabilities. 

Response: The time of year when 

Ocean Wind would be conducting the 

majority of pile driving is when North 

Atlantic right whale density in the 

project area is very low. As provided in 

Table 17 and 18, one North Atlantic 

right whale Level A harassment 

exposure was estimated (0.9 from WTG 

installation and 0.1 from OSS 

foundation installation). These 

estimates were derived without 

consideration of any mitigation (except 

10-dB of sound attenuation) or natural 

avoidance of marine mammals to avoid 

loud sounds. Hence, even without any 

monitoring or mitigation (with 

exception of 10-dB of sound attenuation 

from the modeling), the potential for 

PTS to occur is low. As described in 

response to Comment 4, the 

Commission cites information from a 

paper related to the use of trained 

lookouts and a team of two on-duty 

MMOs on moving Navy military vessels 

actively engaged in sonar training 

(Oedekoven and Thomas, 2022) to 

support its argument that visual 

monitoring would prove difficult. We 

note that these ‘‘trained lookouts’’ are 

Navy personnel who are specifically 

trained as lookouts in contrast to NMFSapproved PSOs who are required to 

have specific education backgrounds, 

trainings, and experience before 

undertaking PSO duties (see 

requirements found in the regulations 

text at Section 217.265(a)). NMFS 

disagrees that the statistics generated 

from that report are relevant to the 

effectiveness of monitoring for the 

Project. Independent, NMFS-approved 

PSOs are required during all impact pile 

driving (see requirements found in 

217.265). At least three PSOs would be 

placed on the stationary pile driving 

platform and three PSOs would also be 

placed on each of two dedicated PSO 

vessels traveling at slow speeds (less 

than 10 kn) for a total of nine PSOs. 

Concurrently, real-time PAM is required 

to supplement visual monitoring during 

impact pile driving, UXO/MEC 

detonation, and select vessel transport. 

Further, Ocean Wind must monitor 

several times daily supplemental marine 

mammal detection information systems 

(e.g., the Right Whale Sighting Advisory 

System) to increase situational 

awareness. Hence, it is reasonable to 

assume that the effectiveness of marine 

mammal monitoring during the project 

is much greater than the two-person 

MMO team reported in Oedekoven and 

Thomas (2022). We note that the MMO 

team in Oedekoven and Thomas (2022), 

was not always using PAM in that 

study, and had significantly more 

Balaenoptera spp. sightings than the 

lookout team (see Table 2 in Oedekoven 

and Thomas (2022)). Given the 

monitoring measures that are required 

for the Project in combination with the 

mitigation measures (i.e., clearance and 

shutdown zones), NMFS disagrees that 

the monitoring measures will be 

insufficient to avoid Level A harassment 

(PTS) of North Atlantic right whales. 

Comment 33: The Commission 

recommended that NMFS require Ocean 

Wind to have PAM operators also 

review acoustic data for at least 24 

hours prior to UXO/MEC detonations, 

when available. 

Response: We appreciate the 

Commission’s suggestion and have 

incorporated it into the final rule. 

Comment 34: The Commission 

recommended that NMFS include a 

provision that the Lead PSO must have 

a minimum of 90 days of at-sea 

experience and must have had this 

experience within the last 18 months. 


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Response: We appreciate the 

Commission’s suggestion and have 

incorporated it into the final rule. 

Comment 35: A commenter stated that 

Ocean Wind should be required to use 

PSOs at all times when under way. They 

also suggested that PSOs complement 

their survey efforts using additional 

technologies, such as infrared detection 

devices when in low-light conditions. 

Response: NMFS is not requiring 

PSOs to be onboard every transiting 

vessel. However, as described in the 

proposed rule, as well as the final rule, 

Ocean Wind must have trained 

observers onboard all vessels. This 

observer may be a PSO or a crew 

member with no other duties if the 

vessel is operating above 10 kn. NMFS 

is also requiring Ocean Wind to provide 

a North Atlantic Right Whale Vessel 

Strike Avoidance Plan to NMFS 90 days 

prior to the onset of vessel use. Ocean 

Wind submitted that plan on July 19, 

2023. Once approved, this plan will be 

made available on NMFS’ website at 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility. 

Comment 36: A commenter 

recommended that the LOA should 

require all vessels supporting site 

characterization to be equipped with 

and using Class A Automatic 

Identification System (AIS) devices at 

all times while on the water. A 

commenter suggested this requirement 

should apply to all vessels, regardless of 

size, associated with the survey. 

Response: NMFS agrees that AIS 

should be required. This final rule 

includes a requirement that all vessels 

associated with the project be equipped 

with AIS. 

Comment 37: A commenter stated that 

monitoring reports are not enough to 

evaluate impacts to marine mammals 

from offshore wind impacts and instead 

suggests that on-the-ground, 

independent scientists and response 

teams be located in the area during 

activities conducted under incidental 

take authorizations to monitor for 

impacts and to respond immediately or 

investigate if anything occurs. The 

commenter suggested that an 

organization charged specifically with 

responding to endangered marine 

mammal incidents (which NMFS notes, 

the commenter did not choose to define 

or specify further), be fully funded by 

the State and Federal agencies to collect 

the animal and conduct an independent 

and thorough/immediate investigation 

to determine the cause of death. 

Response: NMFS disagrees with the 

commenter’s recommendations. NMFS 

emphasizes that this final rule 

authorizes incidental take by Level A 

and Level B harassment from auditory 

injury and behavioral disturbance. 

Moreover, no mortality or serious injury 

is anticipated or authorized in this final 

rule. During the specified activities 

identified for the Project, NMFS is 

requiring third-party, independent 

visual PSOs and PAM operators be 

present to provide monitoring support 

and to instigate mitigative actions, if 

they are needed, such as shutdowns or 

delays to activities. These specific 

personnel are also tasked to record 

instances of marine mammal 

observations (both visually or 

acoustically) while also providing 

additional information of the distance to 

approach (i.e., how close was the 

sighting/detected marine mammal to the 

activity), the behavior of the animal(s), 

and any actions determined to be 

necessary to be undertaken, among 

other requirements. While the 

commenter suggests an independent 

team be funded to monitor and respond 

to events if they occur, it is unclear 

what action(s) the commenter 

recommends these individual undertake 

if a large whale is exposed to noise 

levels that would cause TTS or PTS nor 

were any suggestions made for NMFS to 

consider for this final rule. To the 

commenter’s other suggestion, we note 

that the MMPA established the Marine 

Mammal Health and Stranding 

Response Program (MMHSRP), a 

national program that coordinates 

emergency responses to sick, injured, 

distressed, or dead marine mammals. In 

the event Ocean Wind discovers a 

stranded, entangled, injured, or dead 

marine mammal, it must report the 

observation to either the NMFS Greater 

Atlantic Stranding Hotline or the NMFS 

Southeast Stranding Hotline, depending 

on exact location, as soon as possible 

but within 24 hours. We reference the 

commenter to the Reporting section of 

the regulations (217.265(g)) for more 

information. 

Comment 38: The Commission 

recommended that NMFS require Ocean 

Wind to submit a PAM plan and to 

allow for public comments to occur 

prior to the issuance of the final rule. 

The Commission specified that this plan 

should include the number, type(s) (e.g., 

moored, towed, drifting, autonomous), 

deployment location(s), bandwidth/ 

sampling rate, sensitivity of the 

hydrophones, estimated detection 

range(s) for ambient conditions and 

during pile driving, and the detection 

software to be used. They also 

recommended that Ocean Wind and 

other wind developers consider whether 

vector sensors should be used in 

addition to deployed hydrophones to 

enhance detection capabilities, with a 

particular focus on ‘‘those vocalizations 

that may be drowned out by the hammer 

strikes and resulting reverberation.’’ 

Response: NMFS notes the 

Commission’s recommendation for 

Ocean Wind to submit a PAM Plan to 

NMFS for approval is consistent with 

the proposed rule and this final rule. 

However, for the PAM Plan, this final 

rule requires the lead time for plan 

submission 180 days prior to the start of 

foundation installation activities. In 

order to meet the Commission’s 

recommendation and the FAST–41 

timeline, Ocean Wind would have had 

to submit a plan almost concurrently or 

shortly after the public comment period 

on the proposed rule which is not 

logistically feasible. Further, NMFS has 

identified the requirements that Ocean 

Wind must meet in its PAM plan in 

both the proposed rule, which was 

made available for public comment, and 

this final rule. Given NMFS’ extensive 

expertise with passive acoustic 

monitoring and the fact that we are 

coordinating with BOEM’s Center for 

Marine Acoustics (CMA), NMFS has 

determined that approval of the plan 

does not warrant public input. However, 

NMFS will share the plan with the 

Commission for review prior to 

approval of the plan. NMFS has 

included the Commission’s 

recommendations, among other things, 

of what would be required in the PAM 

plan. 

Comment 39: The Commission 

recommended that in the final rule 

NMFS: (1) specify which modelestimated zones (i.e., acoustic ranges, 

exposure ranges, mitigation zones, 

monitoring zones) and which metrics 

(i.e., flat maximum-over-depth (Rmax), 

flat model-estimated acoustic ranges 

(R95%)) should be compared to the insitu Level A and B harassment zones, (2) 

specify which type of in-situ Level A 

harassment zone (i.e., acoustic or 

exposure ranges) should be calculated, 

and, (3) require that in-situ 

measurements be conducted for 

monopiles that are not represented by 

the previous three locations (i.e., 

substrate composition, water depth) or 

by the hammer energies and numbers of 

strikes needed or number of piles 

installed in a given day. 

Response: We have required, in the 

final rule, that the model-estimated 

acoustic ranges (R95%) be compared 

with the real-world sound field 

measurements as exposure ranges 

(ER95%) cannot be measured in the field. 

The acoustic ranges NMFS incorporated 

into the final rule are found in 


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Appendix H of Ocean Wind’s ITA 

application and use the flat R95% metric. 

Regarding the Commission’s second 

suggestions, the in-situ analysis for 

Level A harassment compared to 

acoustic range which will indicate if 

ERs modeled are acceptable, because if 

the acoustic range to the Level A 

harassment threshold is louder than 

acoustic range modeled by JASCO, one 

can assume the ER modeled is too small 

as animals move through a sound field. 

Regarding the Commission’s third 

suggestion, NMFS notes the proposed 

rule included language where if in the 

case that a monopile installation site or 

construction scenario was determined to 

be not representative of the rest of the 

monopile installation sites, Ocean Wind 

would be required to provide 

information on how additional sites and 

construction scenarios would be 

selected for SFV measurements, as 

would be described in their Foundation 

Installation Pile Driving SFV Plan. This 

plan would also be required to describe 

the methodology for collecting, 

analyzing, and preparing SFV 

measurement data for submission to 

NMFS. We acknowledge that this 

information is important and have 

carried over the same requirement into 

the final rule. However, we do not agree 

regarding the suggestion to require 

additional SFV based on variations in 

the hammer energies, number of strikes 

used for installation, or number of piles 

installed per day. NMFS applied the 

largest distances modeled, which 

represents maximum number of piles 

installed per day, maximum strikes 

predicted, and maximum hammer 

energies. Because of this, Ocean Wind is 

required to stay within the bounds of 

the analysis. We also note that any 

variation assuming less hammer strikes, 

less piles installed per day, or lower 

hammer energies would most likely 

result in less anticipated take per day, 

as the take authorized in the final rule 

is based on the highest bounds of the 

analysis. For all these reasons, we are 

not requiring additional SFV based on 

variations specific to the hammer 

energy, number of piles installed, or the 

total number of strikes. 

Comment 40: The Commission 

recommended that NMFS require Ocean 

Wind to report on additional metrics not 

included in the proposed rule, 

including sound pressure level (SPLrms) 

source levels, cumulative SEL, ranges to 

Level A harassment and Level B 

harassment thresholds, and types and 

locations of sound attenuation systems. 

The Commission also recommended the 

ranges to Level B harassment thresholds 

be based on the behavioral thresholds, 

not TTS thresholds. Lastly, the 

Commission recommended that NMFS 

require that Ocean Wind deploys a 

minimum of three hydrophones for SFV 

during impact pile driving and a 

minimum of two hydrophones and one 

pressure transducer for SFV during 

UXO/MEC detonations. 

Response: NMFS partially concurs 

with the Commission’s 

recommendations. The interim report 

must now include peak, SPL, and 

SELcum metrics for all hydrophones, 

estimated distances to NMFS Level A 

harassment and Level B harassment 

thresholds, types and locations of sound 

attenuation systems. We also removed 

reference to the TTS thresholds. This 

information is also required in the final 

report. NMFS is not requiring source 

levels be estimated in interim reports 

given the quick turnaround time (48 

hours) and amount of data needing to be 

analyzed in that time. The purpose of 

the interim reports are to determine that 

distances to Level A harassment and 

Level B harassment thresholds are not 

being exceeded and to determine if any 

mitigative action needs to be taken. 

Hence knowing source levels is not 

required at this stage. However, NMFS 

is requiring source levels (peak, SELcum,

and SPLrms) be included in the final SFV 

report. Regarding the hydrophones for 

SFV during pile driving, NMFS is 

requiring Ocean Wind place two 

hydrophones at four locations at an 

azimuth of least propagation loss and 

two at 750 m and 90 degrees from this 

azimuth. This results in a total of 10 

hydrophones during SFV. Additionally, 

we have added a requirement to deploy 

a pressure transducer for UXO/MEC 

detonations, as suggested by the 

Commission. 

Comment 41: Commenters stated that 

the LOA must include a requirement for 

all phases of the Ocean Wind 1 site 

characterization to subscribe to the 

highest level of transparency, including 

frequent reporting to Federal agencies, 

requirements to report all visual and 

acoustic detections of North Atlantic 

right whales and any dead, injured, or 

entangled marine mammals to NMFS or 

the U.S. Coast Guard as soon as possible 

and no later than the end of the PSO 

shift. A commenter states that to foster 

stakeholder relationships and allow 

public engagement and oversight of the 

permitting, the LOA should require all 

reports and data to be accessible on a 

publicly available website. A 

commenter also suggested that all 

quarterly reports of PSO sightings must 

be made publically available to continue 

to inform marine mammal science and 

protection. 

Response: NMFS notes the 

commenters’ recommendations to report 

all visual and acoustic detections of 

North Atlantic right whales and any 

dead, injured, or entangled marine 

mammals to NMFS are consistent with 

the proposed rule and this final rule (see 

Situational Reporting). We refer the 

reader to 217.265(g)(13)(i)-(vi) of the 

regulations for more information on 

situational reporting. 

Daily visual and acoustic detections 

of North Atlantic right whales and other 

large whale species along the Eastern 

Seaboard, as well as Slow Zone 

locations, are publicly available on 

WhaleMap (https://whalemap.org/ 

whalemap.html). Further, recent 

acoustic detections of North Atlantic 

right whales and other large whale 

species are available to the public on 

NOAA’s Passive Acoustic Cetacean Map 

website (https://

www.fisheries.noaa.gov/resource/data/ 

passive-acoustic-cetacean-map). Given 

the open access to the resources 

described above, NMFS does not concur 

that public access to quarterly PSO 

reports is warranted and we have not 

included this measure in the 

authorization. However, NMFS will post 

all final reports to our website. We 

reference the commenters to 217.265(g) 

for more information on reporting 

requirements in the regulations. 

Comment 42: A commenter 

recommended that the use of quieter 

foundations be given full consideration 

when selecting a ‘‘preferred alternative’’ 

and that direct-drive turbines be used in 

lieu of gearboxes. 

Response: The commenter refers to a 

‘‘preferred alternative’’ suggests this 

comment is specific to the EIS BOEM 

developed for the project. NMFS agrees 

with the commenter that full 

consideration of various turbine 

foundations should be evaluated in an 

EIS but also recognizes that there are 

technological challenges and that the 

ultimate foundation type chosen must 

be practicable. Regardless, this rule 

evaluates the specified activities as 

described in Ocean Wind’s MMPA 

application which includes installation 

of monopile and jacket foundations. 

With respect to direct-drive, NMFS 

agrees that the best available science 

indicates that these are known to be less 

noisy than gearboxes and we 

understand gearboxes are older 

technology. Ocean Wind has confirmed 

with NMFS that direct drive turbines 

will be used for the Ocean Wind project. 

Effects Assessment 

Comment 43: A commenter stated that 

there is a lack of basic research about 

the impacts of offshore wind energy 

development on large whales. They also 

asserted that the current application 


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does not adequately assess the impact to 

prey from construction and operation 

and suggest that any permits and 

authorizations (i.e., any IHAs, 

regulations) for offshore wind 

development should not be issued until 

scientific baseline assessments for what 

harms may occur to whales are 

available. Prior to issuing any IHAs or 

regulations, the commenter 

recommended that an independent pilot 

project investigating the potential and 

real marine ecosystem impacts, 

including assessments for what harms 

may or could occur to whales, be 

conducted and sound science supported 

by planned or currently begun robust 

scientific baseline assessments and 

independent and peer-reviewed studies 

are complete. 

Response: The MMPA requires NMFS 

to evaluate the effects of the specified 

activities in consideration of the best 

scientific evidence available and to 

issue the requested incidental take 

authorization if it makes the necessary 

findings. The MMPA does not allow 

NMFS to delay issuance of the 

requested authorization on the 

presumption that new information will 

become available in the future. If new 

information becomes available in the 

future, NMFS may modify the 

mitigation and monitoring measures in 

an LOA issued under these regulations 

through the adaptive management 

provisions. Furthermore, NMFS is 

required to withdraw or suspend an 

LOA if, after notice and public comment 

unless an emergency exists, it 

determines the authorized incidental 

take may be having more than a 

negligible impact on a species or stock. 

NMFS has duly considered the best 

scientific evidence available in its 

effects analysis. The Potential Effects of 

Underwater Sound on Marine Mammals 

section of the proposed rule included a 

broad overview of the potential impacts 

on marine mammals from 

anthropogenic noise and provided 

summaries of several studies regarding 

the impacts of noise from several 

different types of sources (e.g., airguns, 

Navy sonar, vessels) on large whales, 

including North Atlantic right whales. 

Offshore wind farm construction 

generates noise that is similar, or, in the 

case of vessel noise, identical, to noise 

sources included in these studies (e.g., 

impact pile driving and airguns both 

produce impulsive, broadband sounds 

where the majority of energy is 

concentrated in low frequency ranges), 

and the breadth of the data from these 

studies helps us predict the impacts 

from wind activities. In addition, as 

described in the proposed rule, it is 

general scientific consensus that 

behavioral responses to sound are 

highly variable and context-specific and 

are impacted by multiple factors 

including, but not limited to, behavioral 

state, proximity to the source, and the 

nature and novelty of the sound. 

Overall, the ecological assessments from 

offshore wind farm development in 

Europe and peer-reviewed literature on 

the impacts of noise on marine 

mammals both in the U.S. and 

worldwide provides the information 

necessary to conduct an adequate 

analysis of the impacts of offshore wind 

construction and operation on marine 

mammals in the Atlantic OCS. NMFS 

acknowledges that studies in Europe 

typically focus on smaller porpoise and 

pinniped species, as those are more 

prevalent in the North Sea and other 

areas where offshore wind farms have 

been constructed, and notes that the 

commenter did not provide additional 

scientific information for NMFS to 

consider. 

With respect to adequately assessing 

impacts to prey from construction and 

operation, NMFS considered the 

information in Ocean Wind’s 

application but greatly expanded on the 

analysis in the proposed rule. Hence, it 

is not relevant that Ocean Wind’s 

application did not fully address 

potential impacts to prey, as NMFS 

conducted its own analysis for the 

proposed rule, which is incorporated by 

reference into this final rulemaking, 

based on the best scientific information 

available. Further, the Biological 

Opinion provides a robust analysis on 

the impacts on ESA-listed marine 

mammal prey, many of which (e.g., fish, 

invertebrates) serve as prey for all 

marine mammals that we have 

summarized in this final rule. NMFS 

notes that the commenter did not 

provide additional scientific 

information on impacts on prey for 

NMFS to consider. 

Furthermore, a commenter 

specifically points out a lack of baseline 

data available on harbor seals in the 

New Jersey area. NMFS points the 

commenter towards two sources of 

information for marine mammal 

baseline information: The Ocean/Wind 

Power Ecological Baseline Studies, 

January 2008–December 2009, 

completed by the New Jersey 

Department of Environmental Protection 

in July 2010 (https://tethys.pnnl.gov/ 

sites/default/files/publications/OceanWind-Power-Baseline-Volume1.pdf) and 

AMAPPS (https://

www.fisheries.noaa.gov/new-englandmid-atlantic/population-assessments/ 

atlantic-marine-assessment-programprotected) with annual reports available 

from 2010 to 2020 that cover the areas 

across the Atlantic Ocean. 

Comment 44: Some commenters 

questioned whether NMFS met its 

requirement to utilize the best available 

science in its analysis. A commenter 

stated that NMFS must use the more 

recent and best available science in 

evaluating impacts to North Atlantic 

right whales, including updated 

population estimates, recent habitat 

usage patterns for the project area, and 

a revised discussion of the acute and 

cumulative stress on whales in the 

region. A commenter identified that the 

North Atlantic right whale population 

abundance is less than that cited in the 

proposed rule. A commenter stated that 

NMFS did not use the best available 

science for the proposed rule (NMFS 

originally used n = 368) for the 

population estimate of North Atlantic 

right whales when NMFS’ website 

stated that ‘‘there are fewer than 350 

remaining’’ and that the North Atlantic 

right whale Consortium stated that 336 

individuals remained in their 2021 

Annual Report Card. A commenter also 

objected to NMFS’ determination that 

no change was needed in the number of 

takes in the Applicant’s request when 

NMFS acknowledged a revision in the 

density of the North Atlantic right 

whale population. A commenter then 

cited information about North Atlantic 

right whale population abundance to 

support this claim. 

Response: The MMPA and its 

implementing regulations require that 

incidental take regulations be 

established based on the best available 

information, which does not always 

mean the most recent information. 

NMFS generally considers the 

information in the most recent U.S. 

Atlantic and Gulf of Mexico SAR (Hayes 

et al., 2023) to be the best available 

information for a particular marine 

mammal stock because of the MMPA’s 

rigorous SAR procedural requirements, 

which includes peer review by a 

statutorily established Scientific Review 

Group. 

Regarding the comment related to the 

North Atlantic right whale population 

abundance that was cited in the 

proposed rule, since publication of the 

proposed rule, NMFS has finalized the 

2022 Stock Assessment Report 

indicating the North Atlantic right 

whale population abundance is 

estimated as 338 individuals (Nest; 95 

percent confidence interval: 325–350; 

88 FR 54592, August 11, 2023). NMFS 

has used this most recent best available 

scientific information in the analysis of 

this final rule. This new estimate, which 

is based off the analysis from Pace et al. 

(2017) and subsequent refinements 


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found in Pace (2021), is included by 

reference in the final 2022 SARs 

(https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessmentreports) and provides the most recent 

and best available estimate, including 

improvements to NMFS’ right whale 

abundance model. Specifically, Pace 

(2021) looked at a different way of 

characterizing annual estimates of agespecific survival. The results from the 

Pace (2021) paper that informed the 

final 2022 SARs strengthened the case 

for a change in mean survival rates after 

2010 through 2011, but did not 

significantly change other current 

estimates (population size, number of 

new animals, adult female survival) 

derived from the model. Furthermore, 

NMFS notes that the SARs are peer 

reviewed by other scientific review 

groups prior to being finalized and 

published and that the North Atlantic 

Right Whale Report Card (Pettis et al., 

2022) does not undertake this process. 

Based on this, NMFS has considered all 

relevant information regarding North 

Atlantic right whale, including the 

information cited by the commenters. 

However, NMFS has relied on the final 

2022 SAR in this final rule as it reflects 

the best available scientific information. 

We note that this change in 

abundance estimate does not change the 

estimated take of North Atlantic right 

whales or authorized take numbers, nor 

affect our ability to make the required 

findings under the MMPA for Ocean 

Wind’s construction activities. 

Comment 45: Commenters raised 

concerns regarding the cumulative 

impacts of the multiple offshore wind 

projects being developed throughout the 

range of North Atlantic right (which 

they state as from North Carolina to 

Maine), and specifically recommended 

that we carefully consider the take from 

all of these projects in combination 

when conducting the negligible impact 

analysis for Ocean Wind. Relatedly, 

they emphasized the total take of 

bottlenose dolphins by Ocean Wind 

across multiple years, especially in 

combination with multiple projects. 

Commenters also objected to NMFS’s 

conclusion that the application’s take 

limit of 14 North Atlantic right whales 

for construction activities in the coastal 

waters between off New Jersey and New 

York will have a ‘‘negligible impact’’ on 

the species, especially in light of the 

North Atlantic right whale’s critically 

endangered status, the ongoing Unusual 

Mortality Event that this species is 

experiencing and, consequently, the 

asserted existential threat posed to the 

species by obstacles to even one 

individual’s survival—and they 

emphasize this comment in 

combination with the need to consider 

the take from multiple projects. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the total incidental take of 

small numbers of marine mammals by 

U.S. citizens ‘‘while engaging in that 

(specified) activity’’ within a specified 

geographic region during the five-year 

period (or less) will have a negligible 

impact on such species or stock and 

where appropriate, will not have an 

unmitigable adverse impact on the 

availability of such species or stock for 

subsistence uses (16 U.S.C. 

1371(a)(5)(A)). Negligible impact is 

defined as ‘‘an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effect on 

annual rates of recruitment or survival’’ 

(50 CFR 216.103). Neither the MMPA 

nor its implementing regulations require 

consideration of unrelated activities and 

their impacts on marine mammal 

populations in the negligible impact 

determination. Additionally, NMFS’ 

implementing regulations require 

applicants to include in their request a 

detailed description of the specified 

activity or class of activities that can be 

expected to result in incidental taking of 

marine mammals (50 CFR 

216.104(a)(1)). Thus, the ‘‘specified 

activity’’ for which incidental take 

coverage is being sought under section 

101(a)(5)(A) is generally defined and 

described by the applicant. Here, Ocean 

Wind is the applicant, and we analyzed 

the impact of its specified activity 

described in its application and made 

the necessary determinations on that 

basis. 

Consistent with the preamble of 

NMFS’ implementing regulations (54 FR 

40338, September 29, 1989), the impacts 

from other past and ongoing 

anthropogenic activities are factored 

into the baseline, which is used in the 

negligible impact analysis. Here, NMFS 

has factored into its negligible impact 

analysis the impacts of other past and 

ongoing anthropogenic activities via 

their impacts on the baseline (e.g., as 

reflected in the density/distribution and 

status of the species, population size 

and growth rate, and other relevant 

stressors). 

The preamble of NMFS’ 

implementing regulations also addresses 

cumulative effects from future, 

unrelated activities. Such effects are not 

considered in making negligible impact 

determination under section 101(a)(5) of 

the MMPA. Rather, NMFS considers: (1) 

cumulative effects that are reasonably 

foreseeable when preparing a National 

Environmental Policy Act (NEPA) 

analysis, and (2) reasonably foreseeable 

cumulative effects under section 7 of the 

ESA for ESA-listed species, as 

appropriate. Accordingly, NMFS has 

adopted BOEM’s Environmental Impact 

Statement (EIS) and reviewed by NMFS 

as part of its inter-agency coordination. 

This EIS addresses cumulative impacts 

related to the Project and substantially 

similar activities in similar locations. 

Cumulative impacts regarding the 

promulgation of the regulations and 

issuance of a LOA for construction 

activities, such as those planned by 

Ocean Wind, 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 the Project on 

ESA-listed species, including the North 

Atlantic right whale, was analyzed 

under section 7 of the ESA when NMFS 

engaged in formal inter-agency 

consultation with the NOAA Greater 

Atlantic Regional Fisheries Office 

(GARFO). The Biological Opinion for 

the Project determined that NMFS’ 

promulgation of the rulemaking and 

issuance of a LOA for construction 

activities associated with leasing, 

individually and cumulatively, are 

likely to adversely affect, but not 

jeopardize, listed marine mammals. 

NMFS disagrees that the authorized 

take of 14 North Atlantic right whales 

by Level B harassment incidental to the 

Project will have a non-negligible 

impact on the species and notes that the 

commenter did not provide additional 

scientific information for NMFS to 

consider to support this claim. No take 

by injury, serious injury, or mortality is 

authorized. NMFS emphasizes that the 

authorized incidental take 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 will not result in 

impacts to the population through 

effects on annual rates or recruitment or 

survival. The project area occurs 

offshore of New Jersey, which does not 

include habitat where North Atlantic 

right whales are known to concentrate 

in foraging or reproductive behaviors. 

The project area is a known migratory 

corridor. Hence, it is likely that most of 

the authorized takes represent an 

exposure to a different individual, 

which means that the behavioral 

impacts to North Atlantic right whales 

are limited to behavioral disturbance 

occurring on 1 or 2 days within a year— 


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an amount that would not be expected 

to impact reproduction or survival. 

Across all years, while it is possible an 

animal migrating through could have 

been exposed during a previous year, 

the low amount of take authorized 

during the 5-year period (n=14) of the 

rule makes this scenario unlikely. Any 

disturbance to North Atlantic right 

whales due to Ocean Wind’s activities is 

expected to result in temporary 

avoidance of the immediate area of 

construction but not abandonment of its 

migratory path. Slight displacement (but 

not abandonment) of a migratory 

pathway is unlikely to result in 

energetic consequences that could affect 

reproduction or survival of any 

individuals. Other impacts such as 

masking, TTS, and temporary 

communication and foraging disruption 

may occur (again noting that North 

Atlantic right whales concentrate 

foraging far north of the project area 

(e.g., southern New England, Gulf of 

Maine, and Canada)); however, these 

impacts would also be temporary and 

unlikely to lead to survival or 

reproduction impacts of any individual, 

especially when the extensive suite of 

mitigation, including numerous 

measures targeted specifically towards 

minimizing impacts to North Atlantic 

right whales, are considered. 

Comment 46: Commenters asserted 

that: (1) NMFS’ reliance on the 160-dB 

(1 micropascal squared seconds (re 1 

mPa2s)) threshold for behavioral 

harassment is not supported by the best 

available scientific information and 

grossly underestimates takes by Level B 

harassment; and (2) the monitoring 

protocols prescribed for the clearance 

zones are under-protective. 

Response: Regarding the 

appropriateness of the 160-dB 

behavioral harassment threshold, NMFS 

notes that the potential for behavioral 

response to an anthropogenic source is 

highly variable and context-specific and 

acknowledges the potential for Level B 

harassment at exposures to received 

levels below 160 dB rms. Alternatively, 

NMFS acknowledges the potential that 

not every animal exposed to received 

levels above 160 dB rms will respond in 

ways constituting behavioral 

harassment. There are a variety of 

studies indicating that contextual 

variables play a very important role in 

response to anthropogenic noise, and 

the severity of effects are not necessarily 

linear when compared to a received 

level (RL). Several studies (e.g., 

Nowacek et al., 2004; Kastelein et al., 

2012 and 2015) showed there were 

behavioral responses to sources below 

the 160-dB threshold, but also 

acknowledged the importance of context 

in these responses. For example, 

Nowacek et al. (2004) reported the 

behavior of five out of six North Atlantic 

right whales was disrupted at RLs of 

only 133–148 dB re 1 mPa (returning to 

normal behavior within minutes) when 

exposed to an alert signal. However, the 

authors also reported that none of the 

whales responded to noise from 

transiting vessels or playbacks of ship 

noise even though the RLs were at least 

as strong, and contained similar 

frequencies, to those of the alert signal. 

The authors state that a possible 

explanation for whales responding to 

the alert signal and not responding to 

vessel noise is due to the whales having 

been habituated to vessel noise, while 

the alert signal was a novel sound. In 

addition, the authors noted differences 

between the characteristics of the vessel 

noise and alert signal which may also 

have played a part in the differences in 

responses to the two noise types. 

Therefore, it was concluded that the 

signal itself, as opposed to the RL, was 

responsible for the response. 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. Finally, Gong et 

al. (2014) highlighted that behavioral 

responses depend on many contextual 

factors, including range to source, RL 

above background noise, novelty of the 

signal, and differences in behavioral 

state. Similarly, Kastelein et al. (2015) 

examined behavioral responses of a 

harbor porpoise to sonar signals in a 

quiet pool, but stated behavioral 

responses of harbor porpoises at sea 

would vary with context such as social 

situation, sound propagation, and 

background noise levels. 

NMFS uses 160 dB (rms) as the 

exposure level for estimating Level B 

harassment takes and is currently 

considered the best available science, 

while acknowledging that the 160-dB 

rms step-function approach is a 

simplistic approach. However, there 

appears to be a misconception regarding 

the concept of the 160-dB threshold. 

While it is correct that in practice it 

works as a step-function, i.e., animals 

exposed to received levels above the 

threshold are considered to be ‘‘taken’’ 

and those exposed to levels below the 

threshold are not, it is in fact intended 

as a sort of mid-point of likely 

behavioral responses (which are 

extremely complex depending on many 

factors including species, noise source, 

individual experience, and behavioral 

context). What this means is that, 

conceptually, the function recognizes 

that some animals exposed to levels 

below the threshold will in fact react in 

ways that appropriately considered take, 

while others that are exposed to levels 

above the threshold will not. 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 

appropriate criteria. 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). 

There is currently no concurrence on 

these complex issues, and 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. This 

threshold has remained in use in part 

because of the practical need to use a 

relatively simple threshold based on 

available information that is both 

predictable and measurable for most 

activities. We note that 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. 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 is complex. A recent 

systematic review by Gomez et al. 

(2016) was unable to derive criteria 

expressing these types of exposureresponse relationships based on 

currently available data. 

NMFS acknowledges that there may 

be methods of assessing likely 

behavioral responses to acoustic stimuli 

that better capture the variation and 

context-dependency of those responses 

than the simple 160 dB step-function 

used here; there is no agreement on 

what that method should be or how 


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more complicated methods may be 

implemented by applicants. 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 

available science. We also note the 

commenters did not provide additional 

information for NMFS to consider to 

support their claim that the 160 dB 

behavioral harassment threshold is not 

the best available scientific information. 

Regarding the assertion that 

monitoring protocols prescribed for the 

clearance and shutdown zones (called 

‘‘exclusion zones’’ in the comment 

letter) are under-protective, please refer 

to Comments 12, 14, 15, 16, and 18. 

Comment 47: In general, a commenter 

expressed concern that noise pollution 

from offshore wind activities would 

interfere with North Atlantic right 

whale’s social communication and prey 

detection. They are concerned with the 

low-frequency noise from large vessels 

involved in the construction activities 

overlapping North Atlantic right whale 

communication. 

Response: As discussed in the 

Negligible Impact Analysis and 

Determination section (specifically the 

Auditory Masking or Communication 

Impairment sections) of both the 

proposed and final rule, the level of 

masking that could occur from Ocean 

Wind’s activities will have a negligible 

impact on marine mammals, including 

North Atlantic right whales. 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 sound 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) and, as our analysis 

(both quantitative and qualitative 

components) indicates, because of the 

relative movement of whales and 

vessels, as well as the stationary nature 

of a majority of the activities, we do not 

expect these exposures with the 

potential for masking to be of a long 

duration within a given day. Further, 

because of the relatively low density of 

mysticetes during months where most of 

Ocean Wind’s activities would be 

occurring (May through November in 

most cases), and relatively large area 

over which the vessels will travel and 

where the activities will occur, we do 

not expect any individual North 

Atlantic right whales to be exposed to 

potentially masking levels from these 

surveys for more than a few days in a 

year. Furthermore, as many of the 

activities are occurring in clusters and 

specific areas rather than sporadically 

dispersed in the project area (i.e., 

foundation installation all occurs in the 

same general area, nearshore cable 

installation activities occur in relatively 

similar and nearby areas), animals are 

likely to temporarily avoid these 

locations during periods where 

activities are occurring but are expected 

to return once activities have ceased. 

As noted above, any masking effects 

of Ocean Wind’s activities are expected 

to be limited in duration, if present. For 

HRG surveys, given the likelihood of 

significantly reduced received levels 

beyond short distances from the 

transiting survey vessel, the short 

duration of potential exposure, the 

lower likelihood of extensive additional 

contributors to background noise 

offshore and within these short 

exposure periods, and the fact that the 

frequency of HRG signals are primarily 

above those used in social 

communication or for detection of other 

important clues, we believe that the 

incremental addition of the survey 

vessel is unlikely to result in more than 

minor and short-term masking effects. 

Masking is not a concern for UXO/MEC 

detonations, given the instantaneous 

nature of the signal. For pile driving, 

and especially foundation installation, 

masking effects are more likely given 

the larger zones and longer durations, 

and animals that approach the source 

could experience temporary masking of 

some lower frequency cues. However, 

any such effects would be localized to 

the areas around these stationary 

activities, which means that whales 

transiting through the area could adjust 

their transit away from the construction 

location and return once the activity has 

completed. For the activity as a whole, 

any masking that might potentially 

occur would be expected to likely be 

incurred by the same animals predicted 

to be exposed above the behavioral 

harassment threshold, and thereby 

accounted for in the Level B harassment 

numbers. NMFS notes that the 

commenter did not provide additional 

scientific information for NMFS to 

consider to support its concern. 

Comment 48: A commenter was 

concerned that limiting construction to 

occur during summer and fall months 

(due to the seasonal moratorium for 

foundation installation), construction 

activities would be concentrated into 

months where other marine mammal 

species (i.e., dolphins and whales) are 

using the region for foraging, birthing, 

nursing, migrating, etc. A commenter 

recommended that NMFS fully account 

for the consequences of any other 

proposed North Atlantic right whale 

seasonal restriction on other protected 

species and evaluate alternative risk 

reduction strategies that would protect 

multiple species. 

Response: In order to promulgate a 

rulemaking under section 101(a)(5)(A) 

of the MMPA, NMFS must set forth, 

among other requirements, means of 

effecting the least practicable adverse 

impact on affected species or stock and 

its habitat. In the proposed rule and in 

this final rule, NMFS has determined 

the mitigation measures will effect the 

least practicable adverse impact on all 

of the affected species or stocks and 

their habitat. NMFS acknowledges that 

the seasonal restriction for impact pile 

driving is to effect the least practicable 

adverse impact on North Atlantic right 

whales; however, NMFS notes that this 

seasonal restriction provides additional 

protections to many other large whale 

species that tend to concentrate off of 

New Jersey during winter months. For 

example, humpback whales are located 

in higher numbers nearshore in the 

project area from October through 

February, with a clear offshore shift 

starting in March (Roberts et al., 2023). 

Harbor porpoises, as another example, 

are also likely to be more present when 

foundation installation and UXO/MEC 

detonation would not be occurring. As 

described in this final rule, there is no 

habitat of significance in the specified 

geographic region other than the 

seasonal migratory BIA for North 

Atlantic right whales. 

Comment 49: A commenter stated that 

some of the specified activities will 

increase the number of vessels in the 

ocean in the project area, which will 

lead to an increased threat of harm by 

vessel strikes to marine mammals, 

specifically North Atlantic right whales. 

Response: NMFS acknowledges that 

vessel strikes can result in injury or 

mortality of marine mammals. We 

analyzed the potential for vessel strike 

resulting from Ocean Wind’s activities 

and determined that based on the nature 

of the activity and the required 

mitigation measures specific to vessel 

strike avoidance included in this 

rulemaking, the potential for vessel 

strike is so low as to be discountable. 

The required mitigation measures, all of 

which were included in the proposed 

rulemaking and are now required in the 

final regulations, include: a requirement 

that all vessel operators comply with 10 

kn (18.5 km/hour) or less speed 

restrictions in any SMA, DMA, or Slow 

Zone while underway, and check daily 

for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(SMAs, DMAs, Slow Zones) and 

information regarding North Atlantic 


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right whale sighting locations; a 

requirement that all vessels, regardless 

of size, operating from November 1 

through April 30 operate at speeds of 10 

kn (18.5 km/hour) or less; a requirement 

that all vessel operators reduce vessel 

speed to 10 kn (18.5 km/hour) or less 

when any large whale, any mother/calf 

pairs, pods, or large assemblages of nondelphinid cetaceans are observed near 

the vessel; a requirement that all project 

vessels maintain a separation distance 

of 500 m or greater from North Atlantic 

right whales; a requirement that, if 

underway, vessels must steer a course 

away from any sighted North Atlantic 

right whale at 10 kn or less until the 

500-m minimum separation distance 

has been established; a requirement 

that, if a North Atlantic right whale is 

sighted in a vessel’s path, or within 500 

m of an underway vessel, the underway 

vessel must reduce speed and shift the 

engine to neutral; and, a requirement 

that all vessels underway must maintain 

a minimum separation distance of 100 

m or 50 m from all other marine 

mammals (species-dependent and 

excluding North Atlantic right whales), 

with an understanding that at times this 

may not be possible (e.g., for animals 

that approach the vessel). Based on 

these, we have determined that the 

vessel strike avoidance measures in the 

rulemaking are sufficient to ensure the 

least practicable adverse impact on 

species or stocks and their habitat. 

Separately, NMFS notes that the 

commenter’s comment appears to 

conflate vessel strike risks and impacts 

to marine mammals due to noise from 

construction vessels. 

Comment 50: A commenter stated that 

the vessel strike avoidance measures in 

the proposed rule are insufficient and 

clearly are directed at vessels 

specifically engaging in the construction 

activities for the applicant. They stated 

that the application never accounted for 

vessel strikes from non-project-related 

vessels if North Atlantic right whales 

are displaced outside of the project area. 

Response: Under the MMPA, NMFS 

must prescribe regulations setting forth 

other means of effecting the least 

practicable adverse impact of the 

requestor’s specified activities on 

species or stocks and its habitat. NMFS 

cannot require non-project related 

vessels to implement mitigation through 

this rulemaking. NMFS acknowledges 

that North Atlantic right whales may 

temporarily avoid the area where the 

specified activities occur. However, 

NMFS does not anticipate that North 

Atlantic right whales will be 

permanently displaced or displaced for 

extended periods, and the commenter 

does not provide evidence that this 

effect should be a reasonably 

anticipated outcome of the specified 

activity. 

Furthermore, as described in the 

Biological Opinion issued by GARFO on 

April 3, 2023, NMFS does not expect 

that ESA-listed whales would 

experience a higher risk of vessel strike 

due to avoidance of pile driving. Any 

whale that would be exposed to 

vibratory pile driving noise from 

landfall activities (i.e., temporary 

cofferdams, temporary goal posts) 

would already be located in the part of 

the Wind Development Area with the 

heaviest amount of vessel traffic due to 

the nearshore coastal transit routes used 

by vessels that would move north and 

south along the coast and from vessels 

moving from port-to-port. Similarly, if 

pile-driving noise causes the whale to 

move further offshore, given the 

concentration of nearshore vessel 

activity, we expect that the whale would 

actually experience lower levels of 

vessel traffic. During impact pile driving 

we expect that any whales disturbed 

would only need to shift their position 

between 1.72–3.35 km to avoid piledriving noise above the threshold for 

Level B harassment. This temporary 

avoidance/displacement would still 

mean that the whale is far from the 

heaviest vessel traffic routes, which are 

located approximately 10 nautical miles 

(nmi; 18.5 km) away from the Lease 

Area. 

NMFS takes the risk of vessel strike 

seriously and has prescribed measures 

sufficient to avoid the potential for 

vessel strike to the extent practicable. 

NMFS has required these measures 

despite a very low likelihood of vessel 

strike; vessels associated with the 

construction activities will add a 

discountable amount of vessel traffic to 

the specific geographic region and 

furthermore, vessels towing survey gear 

travel at very slow speeds (e.g., roughly 

4–5 kn (7.4–9.3 km/hour)) and any 

vessels engaged in construction 

activities would be primarily stationary 

during the pile-driving event. 

Other 

Comment 51: Commenters 

encouraged NMFS to issue LOAs on an 

annual basis, rather than a single 5-year 

LOA, to allow for the continuous 

incorporation of the best available 

scientific and commercial information 

and to modify mitigation and 

monitoring measures as necessary and 

in a timely manner. Commenters also 

stated that due to the precarious nature 

of the North Atlantic right whale, this 

annual approach is necessary to 

implement flexible protections. 

Response: While NMFS understands 

the reasoning behind the commenters’ 

suggestion, we do not think this is 

necessary as: (1) the final rule includes 

requirements for annual reports (in 

addition to weekly and monthly 

requirements) to support frequent 

evaluation of the activities and 

monitoring results; and (2) the final rule 

includes an Adaptive Management 

provision that allows NMFS to make 

modifications and adjustments to the 

measures found in the issued LOA if 

and when new information that 

supports necessary modifications 

becomes available. Because of this, 

NMFS will issue a single 5-year LOA 

and modify it, if and when necessary, at 

any point during the lifetime of the 

regulations. 

Comment 52: The Commission 

recommended that NMFS rectify the 

following omissions and errors in the 

final rule: (1) Section 217.260(c)(2) 

should also specify ‘‘removal’’ of 

cofferdams; (2) Section 217.264(a)(4) 

omitted ‘‘UXO/MEC detonations’’ in the 

list of specified activities; (3) The 

duration that PSOs must monitor the 

area around each foundation pile 

(monopiles or pin piles) after pile 

driving has stopped should be specified 

as 30 minutes in section 217.264(d)(4) 

or (d)(5), as noted in the preamble to the 

proposed rule; (4) The terms ‘‘small 

odontocetes’’, ‘‘delphinids and harbor 

porpoises’’, and ‘‘dolphins and 

porpoises’’ were used interchangeably 

throughout the various mitigation 

measures in section 217.264; and (5) 

The terms ‘‘seals’’ and ‘‘pinnipeds’’ 

were used interchangeably or omitted 

altogether from the various mitigation 

measures in section 217.264. 

Response: We appreciate the 

Commission’s specific suggestions. We 

have rectified the first three concerns 

described in the Commission’s list. We 

have not made adjustments with respect 

to the final two suggestions as the 

intermixed use of ‘‘seals’’ versus 

‘‘pinnipeds’’ and ‘‘small odontocetes’’, 

‘‘delphinids and harbor porpoises’’, and 

‘‘dolphins and porpoises’’ are clearly 

describing the species at hand. 

Furthermore, this variation in language 

does not affect the clarity or 

understanding of the final rule or its 

provisions. 

Comment 53: A commenter 

recommended that NMFS deny and 

rescind all ITAs for offshore wind 

construction, including this 

authorization to Ocean Wind, until the 

Draft North Atlantic Right Whale and 

Offshore Wind Strategy (Draft Strategy) 

is finalized. Referencing the low 

Potential Biological Removal (PBR) for 

North Atlantic right whales, the 


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commenter also stated that all industrial 

full-scale construction for offshore wind 

energy should be paused until the 

Federal agencies determine how best to 

eliminate or avoid all impacts, Level A 

harassment, and Level B harassment on 

the North Atlantic right whale. 

Response: As identified by a 

commenter, in October 2022, NMFS and 

BOEM released a draft joint strategy to 

protect and promote the recovery of 

North Atlantic right whales while 

responsibly developing offshore wind 

energy. The draft strategy identifies 

three main goals: (1) mitigation and 

decision-support tools; (2) research and 

monitoring; and (3) collaboration, 

communication and outreach. It focuses 

on improving the body of science and 

integrating past, present and future 

efforts related to North Atlantic right 

whales and offshore wind development. 

NMFS is required to authorize the 

requested incidental take if it finds the 

total incidental take of small numbers of 

marine mammals by U.S. citizens while 

engaging in a specified activity within a 

specified geographic region during a 

five-year period (or less) will have a 

negligible impact on such species or 

stock and where appropriate, will not 

have an unmitigable adverse impact on 

the availability of such species or stock 

for subsistence uses (16 U.S.C. 

1371(a)(5)(A)). While the incidental take 

authorization must be based on the best 

scientific information available, the 

MMPA does not allow NMFS to delay 

issuance of the requested authorization 

on the presumption that new 

information will become available in the 

future. NMFS has made the required 

findings, based on the best scientific 

information available and has included 

mitigation measures to effect the least 

practicable adverse impacts on North 

Atlantic right whales. Many of these 

mitigation measures are found in the 

Draft Strategy, as appropriate, for 

construction activities. While NMFS 

continues to work together with BOEM 

towards the goals identified in the 

Strategy, finalizing the Strategy (or 

similar efforts) or completing specific 

goals identified in the strategy are not a 

prerequisite for the issuance of an ITA. 

While NMFS agrees that the North 

Atlantic right whale population 

abundance is alarmingly low (with 

entanglement in fishing gear and vessel 

strikes being the leading causes of North 

Atlantic right whale mortality), NMFS 

disagrees that the type of harassment 

authorized in this rulemaking will have 

a non-negligible impact (i.e., adversely 

affect the species through effects on 

annual rates of recruitment or survival). 

NMFS emphasizes that no mortality, 

serious injury, or Level A harassment is 

anticipated or authorized for North 

Atlantic right whales from Ocean 

Wind’s specified activities. Further, the 

impacts of Level B harassment (i.e., 

behavioral disturbance) are expected to 

have a negligible impact on the North 

Atlantic right whale population. The 

magnitude of behavioral harassment 

authorized is very low and the severity 

of any behavioral responses is expected 

to be primarily limited to temporary 

displacement and avoidance of the area 

when some activities that have the 

potential to result in harassment are 

occurring (see the Negligible Impact 

Analysis and Determination section for 

our full analysis). No impacts to the 

reproductive success or survival of any 

individual North Atlantic right whales 

are expected to result from these 

disturbances and as such, no impacts to 

the population are expected to result. In 

its comment, the commenter conflates 

PBR level and Level B harassment and 

suggests that Level B harassment can 

have population level impacts. 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’’ of 

individual North Atlantic right whales 

from the population and, therefore, PBR 

is not applicable in this discussion since 

no impact to reproduction or survival of 

any individuals is anticipated or 

authorized. Further, the commenter did 

not suggest mitigation measures to 

eliminate and avoid all impacts to North 

Atlantic right whales for NMFS to 

evaluate or consider. 

NMFS notes that BOEM is the lead 

agency permitting the construction of 

offshore wind farms. NMFS’ action 

authorizes take of marine mammals 

incidental to BOEM’s permitted action 

(i.e., offshore wind farm construction). 

Hence, the commenter’s request is more 

relevant to BOEM’s permitting 

authority. The commenter’s comments 

regarding other offshore wind 

construction activities are outside the 

scope of this authorization. 

Comment 54: A commenter 

questioned NMFS ability to consider an 

application wherein the applicant has 

not finalized design plans at the time of 

the proposed rule stage. 

Response: NMFS acknowledges that 

at the time when the proposed rule was 

published in the Federal Register, 

Ocean Wind had not yet finalized its 

construction plan for the full buildout of 

permanent WTG and OSS foundations. 

Hence, NMFS conservatively carried 

forward the buildout scenario estimated 

to have the greater number of takes into 

the total estimated take analysis and 

small numbers and negligible impact 

determination. There is no requirement 

in the MMPA that all project design 

plans must be finalized prior to NMFS 

evaluating an ITA request. NMFS 

further notes that these large-scale 

construction projects require flexibility 

throughout the permitting process as 

supply lines are established, contractors 

are hired, and communications with 

other Federal and state agencies occur. 

In its comment, the commenter implies 

that the applicant had not ‘‘disclosed 

the activity’’ in its entirety, which is not 

accurate. Ocean Wind presented an 

analysis for two potential buildout 

scenarios assuming either a full 

monopile foundation buildout or a dual 

monopile-jacket foundation buildout. 

Comment 55: A commenter expressed 

concern for the accountability, fairness, 

and transparency regarding how and 

who will determine which vessel struck 

a North Atlantic right whale or any 

other marine mammal species, if it 

occurs. 

Response: NMFS directs the 

commenter to language found in both 

the proposed and final rules regarding 

reporting in the event of a vessel strike 

by one of Ocean Wind’s project vessels. 

This reporting requirement necessitates 

that the strike be reported to NMFS 

Office of Protected Resources and 

GARFO within and no later than 24 

hours from the time of the strike 

occurred. In the event of a strike, all 

construction activities are required to 

cease until NMFS Office of Protected 

Resources is able to review the 

circumstances of the strike and 

determine if any additional measures 

are necessary to ensure LOA 

compliance. Ocean Wind must also 

provide a report including provisions 

such as, but not limited to: the time, 

date, and location of the strike; the 

species struck; the vessel speed at the 

time of the strike; the vessels course and 

heading; what operations the vessel was 

engaged in; information regarding what 

vessel strike reduction measures were in 

effect to avoid a strike; information on 

the behavior of the animal struck; the 

fate of the animal; as well as 

photographs and/or video, as 

practicable. Given the precarious nature 

of the North Atlantic right whale, as 

indicated in the commenter’s comment, 

NMFS has also required a suite of vessel 

strike avoidance measures that are 

described both in other comments and 

within this final rule. 

It is not clear what the commenter 

means by ‘‘fairness’’ in determining how 

or which vessel struck a North Atlantic 

right whale or other species if it occurs, 


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nor has the commenter provided 

specific suggestions for NMFS to 

evaluate as means by which to conduct 

the actions they suggest. Ocean Wind is 

the responsible party for activities 

specifically pertaining to their action 

(i.e., the construction of the Project). 

Any strike would be unlawful. In the 

unforeseen circumstance that a vessel 

strike does occur, the relevant 

authorities (i.e., NMFS, BOEM, the 

Bureau of Safety and Environmental 

Enforcement (BSEE)) will investigate 

and take appropriate action. 

Changes From the Proposed to Final 

Rule 

Since the publication of the proposed 

rule in the Federal Register (87 FR 

64868, October 26, 2022), NMFS has 

made changes, where appropriate, that 

are reflected in the final regulatory text 

and preamble 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 in Information Provided in the 

Preamble 

The information found in the 

preamble of the Proposed Rule was 

based on the best available information 

at the time of publication. Since 

publication of the Proposed Rule, new 

information has become available, 

which has been incorporated into this 

final rule as discussed below. 

The following changes are reflected in 

the Description of Marine Mammals in 

the Geographic Region section of the 

preamble to this final rule: 

Given the release of NMFS’ final 2022 

SARs (Hayes et al., 2023), we have 

updated the population estimate for the 

North Atlantic right whale (Eubalaena 

glacialis) from 368 to 338 and the total 

mortality/serious injury (M/SI) amount 

from 8.1 to 31.2. This increase is due to 

the inclusion of undetected annual M/ 

SI in the total annual serious injury/ 

mortality. 

Given the availability of new 

information, we have made updates to 

the UME summaries for multiple 

species. 

The following changes are reflected in 

the Estimated Take section of the 

preamble to this final rule: 

We have increased the amount of take 

authorized for humpback whales, by 

Level A harassment, from 1 to 2 (based 

on a single group size from the Atlantic 

Marine Assessment Program for 

Protected Species (AMAPPS) dataset) 

and the amount of take authorized, by 

Level B harassment, from 4 to 46, based 

on a recommendation by the Marine 

Mammal Commission to consider a 

previous Ocean Wind monitoring report 

(2021–2022) for activities offshore of 

New Jersey. 

Based on a recommendation by the 

Marine Mammal Commission, NMFS 

has allocated takes by Level B 

harassment to the coastal stock of 

bottlenose dolphins (n = 94), which is 

10 percent of the total takes for the 

offshore stock of bottlenose dolphins 

from foundation installation activities. 

This reduces the authorized take for the 

offshore stock to 90 percent of its 

original proposed value (n = 842). 

Based on Ocean Wind replacing three 

cofferdams with goal posts, the take for 

several species (i.e., fin whales 

(Balaenoptera physalus), minke whale 

(Balaenoptera acutorostrata), humpback 

whale (Megaptera novaeangliae), both 

stocks of bottlenose dolphins (Tursiops 

truncatus), common dolphins 

(Delphinus delphis), harbor porpoises 

(Phocoena phocoena), gray seals 

(Halichoerus grypus), and harbor seals 

(Phoca vitulina)) decreased slightly 

compared to what was originally 

proposed. 

Based on a recommendation by the 

Marine Mammal Commission, we have 

increased the amount of take by Level 

B harassment of common dolphins and 

Atlantic white-sided dolphins 

(Lagenorhynchus acutus) from vibratory 

pile installation and removal associated 

with cable landfall construction from 10 

to 30 and 5 to 12, respectively, based on 

a single group size each from the 

AMAPPS dataset. 

Based on a recommendation by the 

Marine Mammal Commission, we have 

added additional take from UXO/MEC 

detonations, by Level A harassment, for 

minke whales (n = 1) and both stocks of 

bottlenose dolphins (n = 11 per stock), 

assuming a single group size each using 

information provided by Ocean Wind. 

NMFS has corrected a mathematical 

error for sperm whales where the value 

presented in Table 33 was incorrectly 

labeled as six rather than nine during 

Year 2. 

Changes in the Regulatory Text 

We have made the following changes 

to the regulatory text, which are 

reflected, as appropriate, throughout 

this final rule and described, as 

appropriate, in the preamble. 

For clarity and consistency, we 

revised two paragraphs in § 217.260 

Specified activity and specified 

geographical region of the regulatory 

text to fully describe the specified 

activity and specified geographical 

region. 

In § 217.261 Effective Dates, NMFS 

has changed the effective date from 

August 1, 2023 through July 31, 2028 to 

October 13, 2023 through October 12, 

2028. The associated SUMMARY and 

DATES sections of this final rule reflect 

this change. 

The following change is reflected in 

§ 217.262 Permissible Methods of 

Taking: adding vibratory pile driving of 

goal post to the list of permissible 

methods of taking by Level B 

harassment. 

The following changes are reflected in 

the Description of the Specified 

Activities section of the preamble to this 

final rule: 

Ocean Wind has modified their 

vibratory pile driving activities from 

vibratory pile driving seven temporary 

cofferdams to vibratory pile driving four 

temporary cofferdams (Barnegat Bay 

landfall locations) and three temporary 

goal posts (two at Island Beach State 

Park, one at BL England). The 

modification from goal posts to 

cofferdams at three nearshore locations 

neither changes the nature of the 

specified activity (i.e., vibratory pile 

driving), nor the potential impacts to 

marine mammals associated with the 

specified activity. This modification 

reduces the total amount of vibratory 

driving time to complete all cable 

landfall construction work (by 

approximately 90 hours total (30 hours 

at each of three sites)). 

The following changes are reflected in 

§ 217.264 Mitigation Requirements and 

the associated Mitigation section of the 

preamble to this final rule: 

Based on a recommendation by a 

commenter, NMFS has added a 

requirement that all project vessels must 

utilize AIS. 

This final rule indicates that Ocean 

Wind is required to construct the project 

as expeditiously as possible to avoid 

foundation installation in December and 

that NMFS must approve foundation 

pile driving in December in 

consideration of the data available 

should Ocean Wind request to drive 

piles in December. 

At the time of the proposed rule, 

NMFS had not approved nighttime pile 

driving as Ocean Wind had yet to prove 

the efficacy of their monitoring 

approaches during hours of darkness. 

However, given additional information 

provided by Ocean Wind, these final 

regulations allow Ocean Wind to initiate 

impact pile driving during hours of 

darkness only from June 1 to October 

31, annually, in accordance with their 

Alternative Monitoring Plan (when 

approved, will be available on NMFS’ 

website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility). 


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NMFS has increased the size of the 

winter impact pile driving clearance 

zones for large whales (2,500 m to 3,000 

m) and harbor porpoises (1,450 m to 

1,750 m) and has removed the PAM 

clearance zone and PAM shutdown 

zone for North Atlantic right whales and 

added a single PAM monitoring zone 

(10 km) for all species (see Table 36) for 

clarity and to be consistent with the 

regulatory text in the proposed rule and 

in this final rule. Additionally, NMFS 

has clarified that the shutdown and 

clearance zones in Table 36 apply to 

both visual and auditory detections. 

NMFS has added a requirement for a 

10-m (32.8-ft) shutdown zone for all 

other in-water activities that are not 

expected to cause take of marine 

mammals (e.g., trenching, dredging), 

which may be monitored by any 

individual on watch (approved PSO not 

specifically required). 

NMFS has included mitigation and 

monitoring zones specific to the 

different UXO/MEC charge weights, 

rather than a single zone size assuming 

only the largest charge weight, as Orsted 

has since provided evidence to NMFS 

that they can reliably identify UXO/ 

MEC charge weights in the field. 

The following changes are reflected in 

§ 217.265 Monitoring and Reporting 

Requirements and the associated 

Monitoring and Reporting section of the 

preamble of this final rule: 

We have updated the process for 

obtaining NMFS approval for PSO and 

PAM Operators to be similar to 

requirements typically included for 

seismic (e.g., airgun) surveys and have 

clarified education, training, and 

experience necessary to obtain NMFS’ 

approval. 

Based on a recommendation by the 

Marine Mammal Commission, we have 

added a requirement that the Lead PSO 

must have a minimum of 90 days of atsea experience and must have obtained 

this experience within the last 18 

months. 

We have added a requirement to have 

at least three PSOs on pile driving 

vessels rather than two PSOs, as was 

originally described in the proposed 

rule. 

Based on a recommendation by the 

Marine Mammal Commission, we have 

added a requirement that increases the 

time that PAM data must be reviewed 

prior to all UXO/MEC detonations from 

1 to 24 hours (except in emergency 

cases where the 24-hour delay before 

the detonation occurred would create 

risk to human safety). 

We have added a requirement for a 

double big bubble curtain placed at a 

distance that would avoid damage to the 

nozzle holes during all UXO/MEC 

detonations. 

Based on a recommendation by the 

Marine Mammal Commission, we have 

added a requirement that a pressure 

transducer must be used during all 

UXO/MEC detonations. 

We have added a requirement stating 

that Ocean Wind must use at least one 

additional noise attenuation system 

(NAS) in addition to a single bubble 

curtain and other devices for noise 

attenuation. 

We have added requirements that SFV 

must be conducted on every pile until 

measured noise levels are at or below 

the modeled noise levels, assuming 10 

dB, for at least three consecutive 

monopiles and for each UXO/MEC 

detonation. 

We have added a requirement that 

Ocean Wind must deploy at least eight 

hydrophones at four locations (one 

bottom and one mid-water column at 

each location) along an azimuth that is 

likely to see lowest propagation loss and 

two hydrophones (one bottom and one 

mid-water) at 750 m, 90 degrees from 

the primary azimuth during installation 

of all piles where SFV monitoring is 

required and equivalent requirements 

during all UXO/MEC detonations. 

NMFS has changed the submission 

date from 90 to 180 days prior to the 

start of pile driving or UXO/MEC 

detonation commencement for the Pile 

Driving and UXO/MEC Marine Mammal 

Monitoring Plan and the PAM Plan 

(noting the Vessel Strike Avoidance and 

Vibratory Pile Driving Plans retain the 

90-day requirement as these activities 

are very nearshore). 

We have removed the requirements 

for reviewing data on an annual and 

biennial basis for adaptive management 

and instead will make adaptive 

management decisions as new 

information warrants it. 

Description of Marine Mammals in the 

Specific Geographic Region 

As noted in the Changes From the 

Proposed to Final Rule section, since 

the publication of the proposed rule (87 

FR 64868, October 26, 2022), updates 

have been made to the abundance 

estimate for North Atlantic right whales 

and the UME summaries of multiple 

species. These changes are described in 

detail in the sections below. Otherwise, 

the Description of Marine Mammals in 

the Geographic Area section has not 

changed since the publication of the 

proposed rule in the Federal Register 

(87 FR 64868, October 26, 2022). 

Several marine mammal species occur 

within the specific geographic region. 

Sections 3 and 4 of Ocean Wind’s ITA 

application summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history of the 

potentially affected species (Ocean 

Wind, 2022b). NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions in the 

application, incorporated here by 

reference, instead of reprinting the 

information. Additional information 

regarding population trends and threats 

may be found in NMFS’ SARs (https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’ 

website (https://

www.fisheries.noaa.gov/find-species). 

Table 2 lists all species or stocks for 

which take is authorized under this 

final rule and summarizes information 

related to the species or stock, including 

regulatory status under the MMPA and 

Endangered Species Act (ESA) and 

potential biological removal (PBR), 

where known. PBR is defined as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’ 

SARs; (16 U.S.C. 1362(20))). While no 

mortality is anticipated or authorized 

here, PBR and annual serious injury and 

mortality from anthropogenic sources 

are included here as gross indicators of 

the status of the species and other 

threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’ U.S. Atlantic and Gulf of Mexico 

SARs. All values presented in Table 2 

are the most recent available data at the 

time of publication which can be found 

in NMFS’ 2022 final SARs (Hayes et al., 

2023), available online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessment-reports. 


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TABLE 2—MARINE MAMMAL SPECIES e THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) a

Stock abundance 

(CV, Nmin, most recent 

abundance survey) b

PBR Annual 

M/SI c

Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale ... Eubalaena glacialis ................... Western Atlantic ........................ E, D, Y 338 (0; 332; 2020)f ........ 0.7 f 31.2 

Family Balaenopteridae 

(rorquals): 

Blue whale .......................... Balaenoptera musculus ............ Western North Atlantic .............. E, D, Y UNK (UNK; 402; 1980– 

2008).

0.8 0 

Fin whale ............................ Balaenoptera physalus ............. Western North Atlantic .............. E, D, Y 6,802 (0.24; 5,573; 2016) 11 1.8 

Humpback whale ................ Megaptera novaeangliae .......... Gulf of Maine ............................ -, -, N 1,396 (0; 1,380; 2016) .... 22 12.15 

Minke whale ........................ Balaenoptera acutorostrata ...... Canadian Eastern Coastal ........ -, -, N 21,968 (0.31; 17,002; 

2016).

170 10.6 

Sei whale ............................ Balaenoptera borealis ............... Nova Scotia .............................. E, D, Y 6,292 (1.02; 3,098; 2016) 6.2 0.8 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale ....................... Physeter macrocephalus .......... North Atlantic ............................ E, D, Y 4,349 (0.28; 3,451; 2016) 3.9 0 

Family Delphinidae: 

Atlantic spotted dolphin ...... Stenella frontalis ....................... Western North Atlantic .............. -, -, N 39,921 (0.27; 32,032; 

2016).

320 0 

Atlantic white-sided dolphin Lagenorhynchus acutus ............ Western North Atlantic .............. -, -, N 93,233 (0.71; 54,433; 

2016).

544 27 

Bottlenose dolphin .............. Tursiops truncatus .................... Western North Atlantic—Offshore.-, -, N 62,851 (0.23; 51,914; 

2016).

519 28 

Northern Migratory Coastal ...... -, -, Y 6,639 (0.41; 4,759; 2016) 48 12.2–21.5 

Common dolphin ................ Delphinus delphis ..................... Western North Atlantic .............. -, -, N 172,974 (0.21; 145,216; 

2016).

1,452 390 

Long-finned pilot whale ...... Globicephala melas .................. Western North Atlantic .............. -, -, N 39,215 (0.30; 30,627; 

2016).

306 9 

Short-finned pilot whale ...... Globicephala macrorhynchus ... Western North Atlantic .............. -, -, N 28,924 (0.24, 23,637, 

2016).

236 136 

Risso’s dolphin ................... Grampus griseus ...................... Western North Atlantic .............. -, -, N 35,215 (0.19; 30,051; 

2016).

301 34 

Family Phocoenidae (porpoises): 

Harbor porpoise .................. Phocoena phocoena ................. Gulf of Maine/Bay of Fundy ...... -, -, N 95,543 (0.31; 74,034; 

2016).

851 164 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless seals): 

Gray seal d .......................... Halichoerus grypus ................... Western North Atlantic .............. -, -, N 27,300 (0.22; 22,785; 

2016).

1,458 4,453 

Harbor seal ......................... Phoca vitulina ........................... Western North Atlantic .............. -, -, N 61,336 (0.08; 57,637; 

2018).

1,729 339 

aESA 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. b NMFS’ marine mammal stock assessment reports can be found online at: 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. cThese values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, 

vessel strike). d NMFS’ stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock. e Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy 

(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)). f In the proposed rule (87 FR 64868, October 26, 2022), a population estimate of 368 was used which represented the best available science at the time of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS’ draft and final 2022 SARs and has been incorporated into 

this final rule. In addition, the total annual average observed North Atlantic right whale mortality was updated in the final SARs from 8.1 to 31.2. Total annual average 

observed North Atlantic right whale mortality during the period 2016 through 2020 was 8.1 animals and annual average observed fishery mortality was 5.7 animals. 

Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015 through 2019 estimated annual means, accounting for undetected mortality 

and serious injury. (Hayes et al., 2023). 

All 38 species that could potentially 

occur in the Project Area are included 

in Table 3–1 of the Ocean Wind’s ITA 

application and discussed therein 

(Ocean Wind, 2022b). While the 

majority of these species have been 

documented or sighted off the New 

Jersey coast in the past, for the species 

and stocks not listed in Table 2, NMFS 

considers it unlikely that their 

occurrence would overlap the activity in 

a manner that would result in 

harassment, either because of their 

spatial occurrence (i.e., more northern 

or southern ranges) and/or with the 

geomorphological characteristics of the 

underwater environment (i.e., water 

depth in the development area). 

A detailed description of the species 

likely to be affected by the Project, 

including brief introductions to the 

species and relevant stocks as well as 

available information regarding 

population trends and threats, and 

information regarding local occurrence, 

were provided in the proposed rule (87 

FR 64868, October 26, 2022). Since that 

time, a new SAR (Hayes et al., 2023) has 

become available for the North Atlantic 

right whale. Estimated abundance for 


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the species declined from 368 to 338 

and annual M/SI increased from 8.1 to 

31.2. This large increase in annual 

serious injury/mortality is a result of 

NMFS including undetected annual M/ 

SI in the total annual serious injury/ 

mortality. The North Atlantic right 

whale population remains in decline, as 

described in the North Atlantic Right 

Whale species section below. We are not 

aware of any additional changes in the 

status of the species and stocks listed in 

Table 2; therefore, detailed descriptions 

are not provided here. Please refer to the 

proposed rule for these descriptions (87 

FR 64868, October 26, 2022). Please also 

refer to NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

Since the publication of the proposed 

rule, the following updates have 

occurred to the below species in regards 

to general information or their active 

UMEs. 

North Atlantic Right Whale 

In August 2023, NMFS released its 

final 2022 SARs, which updated the 

population estimate (Nbest) of North 

Atlantic right whales from 368 to 338 

individuals and the annual M/SI value 

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 

16, 2023, there have been 36 confirmed 

mortalities (dead, stranded, or floaters), 

0 pending mortalities, and 34 seriously 

injured free-swimming whales for a total 

of 70 whales. As of October 14, 2022, 

the UME also considers animals (n=45) 

with sub-lethal injury or illness (called 

‘‘morbidity’’) bringing the total number 

of whales in the UME to 115. 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-unusualmortality-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 

204 known cases (as of August 16, 

2023). 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-mortalityevent-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-mortalityevent-along-atlantic-coast. 

Since December 1, 2022, the number 

of humpback strandings along the midAtlantic 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 (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 water in 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 16, 2023, a total 

of 156 minke whales have stranded 

during this UME. Full or partial 

necropsy examinations were conducted 

on more than 60 percent of the whales. 

Preliminary findings have shown 

evidence of human interactions or 

infectious disease in several of the 

whales, but these findings are not 

consistent across all of the whales 

examined, so more research is needed. 

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-minkewhale-unusual-mortality-event-alongatlantic-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 two 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 

related to the Project. Information on 

this UME is available online at: https:// 

www.fisheries.noaa.gov/2022-2023- 

pinniped-unusual-mortality-eventalong-maine-coast. 

The above event was preceded by a 

different UME, occurring from 2018— 

2020 (closure of the 2018–2020 UME is 

pending). Beginning in July 2018, 

elevated numbers of harbor seal and 

gray seal mortalities occurred across 

Maine, New Hampshire, and 

Massachusetts. Additionally, stranded 

seals have shown clinical signs as far 

south as Virginia, although not in 

elevated numbers, therefore the UME 

investigation encompassed all seal 

strandings from Maine to Virginia. A 

total of 3,152 reported strandings (of all 

species) occurred from July 1, 2018, 

through March 13, 2020. Full or partial 

necropsy examinations have been 

conducted on some of the seals and 

samples have been collected for testing. 

Based on tests conducted thus far, the 

main pathogen found in the seals is 

phocine distemper virus. NMFS is 

performing additional testing to identify 

any other factors that may be involved 

in this UME. Information on this UME 

is available online at: https://

www.fisheries.noaa.gov/new-englandmid-atlantic/marine-life-distress/2018- 

2020-pinniped-unusual-mortality-eventalong. 


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Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency 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 whales) ..................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ........................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

* 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 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). For 

more detail concerning these groups and 

associated frequency ranges, please see 

NMFS (2018) for a review of available 

information. NMFS notes that in 2019a, 

Southall et al. recommended new 

names for hearing groups that are 

widely recognized. However, this new 

hearing group classification does not 

change the weighting functions or 

acoustic thresholds (i.e., the weighting 

functions and thresholds in Southall et 

al. (2019a) are identical to NMFS 2018 

Revised Technical Guidance). When 

NMFS updates our Technical Guidance, 

we will be adopting the updated 

Southall et al. (2019a) hearing group 

classification. 

Potential Effects of 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 

(87 FR 64868, October 26, 2022) 

included a discussion of the effects of 

anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from Ocean Wind’s 

project activities on marine mammals 

and their habitat. That information and 

analysis is incorporated by reference 

into this final rule determination and is 

not repeated here; please refer to the 

notice of the proposed rule (87 FR 

64868, October 26, 2022). 

Estimated Take 

As noted in the Changes From the 

Proposed to Final Rule section, minor 

changes to the estimated and authorized 

take for several species have been made, 

based on recommendations received 

during the public comment period and 

based on a mathematical error NMFS 

found for a single species. These 

changes are described in detail in the 

sections below and, otherwise, the 

methodology for, and amount of, 

estimated take has not changed since 

the proposed rule. 

This section provides an estimate of 

the number of incidental takes 

authorized through this rulemaking, 

which will inform both NMFS’ 

consideration of ‘‘small numbers’’ and 

the negligible impact determination. 

Authorized takes would primarily be 

by Level B harassment, as use of the 

acoustic sources (i.e., impact and 

vibratory pile driving, site 

characterization surveys, and UXO/MEC 

detonations) 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., impact pile 

driving, vibratory pile driving, and 

UXO/MEC detonations). For this action, 

this potential is limited to mysticetes, 

high-frequency cetaceans, and phocids 

due to their hearing sensitivities and the 

nature of the activities. As described 

below, the larger distances to the PTS 

thresholds, when considering marine 

mammal weighting functions, 

demonstrate this potential. For midfrequency hearing sensitivities, when 

thresholds and weighting and the 

associated PTS zone sizes are 

considered, the potential for PTS from 

the noise produced by the project is 

negligible. The required mitigation and 

monitoring measures are expected to 

minimize the severity of the taking to 

the extent practicable. 

As described previously, no serious 

injury or mortality is anticipated or 

authorized for this project. Below we 

describe how the take was 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 


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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 authorized 

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). 

Thresholds have also been developed to 

identify the levels above which animals 

may incur different types of tissue 

damage (non-acoustic Level A 

harassment or mortality) from exposure 

to pressure waves from explosive 

detonation. Thresholds have also been 

developed identifying the received level 

of in-air sound above which exposed 

pinnipeds would likely be behaviorally 

harassed. A summary of all NMFS’ 

thresholds can be found at (https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance). 

Level B harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., other 

noises in the area) and the receiving 

animals (hearing, motivation, 

experience, demography, life stage, 

depth) and can be difficult to predict 

(e.g., Southall et al., 2007, 2021; Ellison 

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (referenced to 1 

micropascal (re 1 mPa)) for continuous 

(e.g., vibratory pile driving, drilling) and 

above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources (Table 4). Generally 

speaking, Level B harassment take 

estimates based on these behavioral 

harassment thresholds are expected to 

include any likely takes by 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. 

Ocean Wind’s construction activities 

include the use of continuous (e.g., 

vibratory pile driving), intermittent (e.g., 

impact pile driving, HRG acoustic 

sources) sources, and, therefore, the 120 

and 160 dB re 1 mPa (rms) thresholds are 

applicable. NMFS notes there are 

separate explosive thresholds to account 

for Level B harassment from a single 

detonation per day and those are 

included in Table 5 below. 

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 nonimpulsive). 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). Ocean Wind’s project 

includes the use of impulsive and nonimpulsive 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: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

TABLE 4—ONSET OF PERMANENT THRESHOLD SHIFT (PTS) 

[NMFS, 2018] 

Hearing group 

PTS onset thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lp,0-pk,flat: 219 dB; LE,p, LF,24h: 183 dB ................ Cell 2: LE,p, LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lp,0-pk,flat: 230 dB; LE,p, MF,24h: 185 dB ................ Cell 4: LE,p, MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lp,0-pk,flat: 202 dB; LE,p,HF,24h: 155 dB ................. Cell 4: LE,p, HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lp,0-pk.flat: 218 dB; LE,p,PW,24h: 185 dB ................ Cell 8: LE,p,PW,24h: 201 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 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards (ISO, 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized 

hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates 

the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these thresholds 

will be exceeded. 

Explosive sources—Based on the best 

available science, NMFS uses the 

acoustic and pressure thresholds 

indicated in Tables 5 and 6 to predict 

the onset of behavioral harassment, 

TTS, PTS, tissue damage, and mortality 


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from explosive detonations. Given 

Ocean Wind would be limited to 

detonating one UXO/MEC per day, the 

TTS threshold is used to estimate the 

potential for Level B (behavioral) 

harassment (i.e., individuals exposed 

above the TTS threshold may also be 

harassed by behavioral disruption but 

we do not anticipate any impacts from 

exposure to UXO/MEC detonation 

below the TTS threshold would 

constitute behavioral harassment). 

TABLE 5—PTS ONSET, TTS ONSET, FOR UNDERWATER EXPLOSIVES

[NMFS, 2018] 

Hearing group PTS impulsive thresholds TTS impulsive thresholds 

Low-Frequency (LF) Cetaceans ....................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......... Cell 2: Lpk,flat: 213 dB; LE,LF,24h: 168 dB. 

Mid-Frequency (MF) Cetaceans ....................... Cell 4: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ......... Cell 5: Lpk,flat: 224 dB; LE,MF,24h: 170 dB. 

High-Frequency (HF) Cetaceans ...................... Cell 7: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ......... Cell 8: Lpk,flat: 196 dB; LE,HF,24h: 140 dB. 

Phocid Pinnipeds (PW) (Underwater) ............... Cell 10: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 11: Lpk,flat: 212 dB; LE,PW,24h: 170 dB. 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS/TTS onset. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak 

sound pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the overall marine mammal generalized hearing range. The 

subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, 

MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Additional thresholds for the onset of 

non-auditory injury to lung and 

gastrointestinal organs from the blast 

shock wave and/or high peak pressures 

are also relevant (at relatively close 

ranges) (Table 6). These criteria have 

been developed by the U.S. Department 

of the Navy (DoN, 2017a) and are based 

on the mass of the animal (e.g., lowest 

to highest range for each hearing group) 

and the depth at which it is present in 

the water column. Equations predicting 

the onset of the associated potential 

effects are included below (Table 6). 

TABLE 6—LUNG AND GASTROINTESTINAL (G.I.) TRACT INJURY THRESHOLDS

[DoN, 2017] 

Hearing group Mortality 

(severe lung injury) * Slight lung injury * G.I. tract injury 

All Marine Mammals ........................... Cell 1: Modified Goertner model; 

Equation 1.

Cell 2: Modified Goertner model; 

Equation 2.

Cell 3: Lpk,flat: 237 dB. 

* Lung injury (severe and slight) thresholds are dependent on animal mass (Recommendation: Table C.9 from DoN (2017) based on adult and/ 

or calf/pup mass by species). 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa. In this table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as incorporating frequency weighting, which is not the intent 

for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted 

within the overall marine mammal generalized hearing range. 

Modified Goertner Equations for severe and slight lung injury (pascal-second): 

Equation 1: 103M1⁄3(1 + D/10.1)1⁄6 Pa-s 

Equation 2: 47.5M1⁄3(1 + D/10.1)1⁄6 Pa-s 

M animal (adult and/or calf/pup) mass (kilogram (kg)) (Table C.9 in DoN, 2017). 

D animal depth (meters). 

Below, we discuss the acoustic 

modeling, marine mammal density 

information, and take estimation for 

each of Ocean Wind’s construction 

activities. NMFS has carefully 

considered all information and analysis 

presented by Ocean Wind as well as all 

other applicable information and, based 

on the best available science, concurs 

that Ocean Wind’s estimates of the types 

and amounts of take for each species 

and stock are complete and accurate. 

Marine Mammal Densities 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

and the Marine-life Data and Analysis 

Team, based on the best available 

marine mammal data from 1992–2022 

obtained in a collaboration between 

Duke University, the Northeast Regional 

Planning Body, the University of North 

Carolina Wilmington, the Virginia 

Aquarium and Marine Science Center, 

and NOAA (Roberts et al., 2016a, 2016b, 

2017, 2018, 2020, 2021a, 2021b, 2023), 

represent the best available information 

regarding marine mammal densities in 

the survey area. More recently, these 

data have been updated with new 

modeling results and include density 

estimates for pinnipeds (Roberts et al., 

2016b, 2017, 2018, 2023). Density data 

are subdivided into five separate raster 

data layers for each species, including: 

Abundance (density), 95 percent 

Confidence Interval of Abundance, 5 

percent Confidence Interval of 

Abundance, Standard Error of 

Abundance, and Coefficient of Variation 

of Abundance. 

Ocean Wind’s initial densities and 

take estimates were included in the ITA 

application that was considered 

Adequate & Complete on February 11, 

2022, in line with NMFS’ standard ITA 

guidance (https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/applyincidental-take-authorization). 

However, on June 20, 2022, the Duke 

Marine Geospatial Ecology Laboratory 

released a new, and more 

comprehensive, set of marine mammal 

density models for the area along the 

East Coast of the United States (Roberts 


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et al., 2023). The differences between 

the new density data and the older data 

necessitated the use of updated marine 

mammal densities and, subsequently, 

revised marine mammal take estimates. 

This information was provided to NMFS 

as a memo (referred to as the Revised 

Density and Take Estimate Memo) on 

August 29, 2022 after continued 

discussion between Ocean Wind and 

NMFS and NMFS has considered it in 

this analysis. The Revised Density and 

Take Estimate Memo was made public 

on NMFS’ website (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility) on October 26, 

2022. 

The densities used to estimate take 

from WTG and OSS foundation 

installation, were calculated based on 

average monthly densities for all grid 

cells within the Lease Area as well as 

grid cells extending an additional 5-km 

(3.11 miles (mi)) beyond the Lease Area, 

referred to as a 5 km perimeter (refer to 

Figure 1 of the Revised Density and 

Take Estimate Memo provided by 

Orsted). The take estimates assumed 

that up to 60 WTG monopiles would be 

installed in the highest density month 

for each marine mammal species (2 

monopiles per day maximum × 30 days) 

with the remaining 38 WTG monopiles 

being installed in the second highest 

density month (2 monopiles per day 

maximum × 19 days). This estimation 

approach is conservative as it is 

unlikely that all piles will be installed 

within 2 months; however, given the 

uncertainty with the exact pile 

schedule, this approach analyzes and 

provides certainty that the maximum of 

take has been analyzed. Given the small 

number of jacket piles needed for OSS 

compared to the number of monopile 

WTGs, these were assumed to be 

installed in the highest density month 

only. 

For cofferdam and goal post density 

estimates, a 10-km (6.21-mi) perimeter 

was applied around each of the 

cofferdam and goal post locations 

(Figure 2 of the Revised Density and 

Take Estimate Memo), with densities 

averaged among the seven cofferdam 

and goal post locations to result in one 

density table for all cofferdams and goal 

posts. Due to the uncertainty of the 

specific months that temporary 

cofferdam and goal post would be 

installed and removed via vibratory pile 

driving, Ocean Wind used the average 

density for the months of October 

through May, as described in the 

Revised Density and Take Estimate 

Memo. We note that in the application 

Ocean Wind assumed all the work 

would occur in the month when a 

species density was the highest (e.g., 

Ocean Wind has assumed all cofferdams 

and goal posts would occur in December 

for humpback whales but in April for 

sei whales; Table 6–2 in the ITA 

application). This original approach was 

deemed too conservative and the 

revised approach, as described in the 

aforementioned Memo, avoids the 

unnecessary overestimation of marine 

mammal takes. While it is possible for 

the seven installation and removal 

events to occur within the same month, 

there is no specific expectation that the 

installations will occur immediately one 

after another across the different 

locations and, therefore, this approach 

is appropriate. 

To estimate densities for the HRG 

surveys occurring both within the Lease 

Area and within the export cable routes, 

a 5-km (3.11-mi) perimeter was applied 

around the cable corridors (Figure 3 of 

the Revised Density and Take Estimate 

Memo). Given this work could occur 

year-round, the average annual density 

for each species was calculated using 

average monthly densities from January 

through December. The revised density 

estimates for HRG surveys were 

calculated for both the export cable 

route area and the Lease Area in the 

Revised Density and Take Estimate 

Memo in a way that aligned with the 

proposed schedule for HRG activities 

(88 survey days in Years 1, 4, and 4; 180 

survey days in Years 2 and 3), as 

opposed to averaging the each species 

annual density across the entire Project 

Area was presented in the ITA 

application. Furthermore, while the 

original ITA application included the 

entire HRG area (Lease Area and export 

cable routes) collectively, the Memo has 

separated these two locations with more 

specific densities for the export cable 

route and Lease Area. These changes 

better account for the activity footprint 

and perimeter (5 km) to more accurately 

represent the spatial extent and 

resolution of the survey effort planned. 

Given that UXOs/MECs have the 

potential to occur anywhere within the 

Project Area, a 15-km (9.32-mi) 

perimeter was applied to both the Lease 

Area and the export cable corridors 

(Figure 4 of the Revised Density and 

Take Estimate Memo). In cases where 

monthly densities were unavailable, 

annual densities were used instead (i.e., 

blue whales, pilot whale spp., Atlantic 

spotted dolphins). 

NMFS notes several exceptions to the 

determination of the relevant densities 

for some marine mammal species to the 

method described above. These are 

described here in greater detail. 

For several marine mammal species, 

Roberts et al. (2023) does not 

differentiate by stock. This is true for 

the bottlenose dolphins, for which take 

has been authorized for two stocks 

(coastal migratory and offshore stock). 

This is also true for long-finned and 

short-finned pilot whales (pilot whales 

spp.) and harbor and gray seals (seals), 

where a pooled density is the only value 

available from the data that is not 

partitioned by stock. To account for this, 

the coastal migratory and offshore 

stocks of bottlenose dolphins were 

adjusted based on the 20-m isobath 

cutoff, such that take predicted to occur 

in any area less than 20 m in depth was 

apportioned to the coastal stock only 

and take predicted to occur in waters of 

greater than 20 m of depth was 

apportioned to the offshore stock. The 

densities for the pilot whales were 

apportioned based on their relative 

abundance in the Project Area to 

estimate species- and stock-specific 

exposures. The same approach was 

taken for the two pinniped species 

(harbor and gray seals), where each 

species was scaled based on its relative 

abundance in the Project Area, as 

opposed the application of the same 

density to both, as previously described 

in the ITA application. Tables 7, 8, 9, 

and 10 below demonstrate all of the 

densities used in the exposure and take 

analyses. 

TABLE 7—THE HIGHEST AND SECOND HIGHEST MONTHLY MARINE MAMMAL AND ANNUAL DENSITIES (ANIMALS PER Km2) 

USED FOR THE MODELING OF OCEAN WIND’S WTGS AND OSSS FROM MAY THROUGH DECEMBER

Marine mammal species 

Monopile foundations Jacket foundations 

First highest density Second highest density First highest density 

North Atlantic right whale a ............... 0.00045 (December) ........................ 0.00012 (November) ........................ 0.00045 (December). 

Blue whale a ..................................... (c) ..................................................... (c) ..................................................... (c). 

Fin whale a ........................................ 0.00141 (December) ........................ 0.00080 (May) .................................. 0.00141 (December). 


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TABLE 7—THE HIGHEST AND SECOND HIGHEST MONTHLY MARINE MAMMAL AND ANNUAL DENSITIES (ANIMALS PER Km2) 

USED FOR THE MODELING OF OCEAN WIND’S WTGS AND OSSS FROM MAY THROUGH DECEMBER—Continued 

Marine mammal species 

Monopile foundations Jacket foundations 

First highest density Second highest density First highest density 

Humpback whale .............................. 0.00126 (December) ........................ 0.00085 (May) .................................. 0.00126 (December). 

Minke whale ..................................... 0.00674 (May) .................................. 0.00154 (June) ................................. 0.00674 (May). 

Sei whale a ....................................... 0.00042 (December) ........................ 0.00021 (November) ........................ 0.00042 (December). 

Sperm whale a .................................. 0.00008 (May) .................................. 0.00004 (December) ........................ 0.00008 (May). 

Atlantic spotted dolphin .................... (c) ..................................................... (c) ..................................................... (c). 

Atlantic white-sided dolphin ............. 0.00643 (May) .................................. 0.00539 (November) ........................ 0.00643 (May). 

Bottlenose dolphin (offshore stock) b 0.11352 (August) ............................. 0.11146 (November) ........................ 0.11352 (August). 

Bottlenose dolphin (coastal stock) b 0.51100 (September) ....................... 0.47620 (August) ............................. 0.51100 (September). 

Common dolphin .............................. 0.05157 (December) ........................ 0.04682 (November) ........................ 0.05157 (December). 

Long-finned pilot whale b .................. 0.00015 (annual) .............................. n/a .................................................... 0.00015 (annual). 

Short-finned pilot whale b ................. 0.00011 (annual) .............................. n/a .................................................... 0.00011 (annual). 

Risso’s dolphin ................................. 0.00096 (December) ........................ 0.00063 (November) ........................ 0.00096 (December). 

Harbor porpoise ............................... 0.02456 (December) ........................ 0.00801 (May) .................................. 0.02456 (December). 

Gray seal .......................................... 0.03517 (December) ........................ 0.03017 (May) .................................. 0.03517 (December). 

Harbor seal ....................................... 0.09830 (December) ........................ 0.08433 (May) .................................. 0.09830 (December). 

a Listed as Endangered under the Endangered Species Act. 

b Densities were adjusted by their relative abundance. 

cExposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts to those species approach zero due 

to their low predicted densities in the Project; therefore, they were excluded from all quantitative analyses and tables based on modeling results. 

TABLE 8—THE MARINE MAMMAL AVERAGE AND ANNUAL DENSITIES (ANIMALS PER Km2) USED FOR ANALYSIS OF OCEAN

WIND’S COFFERDAM AND GOAL POST INSTALLATION AND REMOVAL FOR OCTOBER THROUGH MAY

Marine mammal species Period of density used Estimated 

density 

North Atlantic right whale a ......................................................... October–May average ................................................................ 0.00028 

Blue whale a ................................................................................ Annual Density ........................................................................... 0.00075 

Fin whale a .................................................................................. October–May average ................................................................ 0.00039 

Humpback whale ........................................................................ October–May average ................................................................ 0.00062 

Minke whale ................................................................................ October–May average ................................................................ 0.00078 

Sei whale a .................................................................................. October–May average ................................................................ 0.00014 

Sperm whale a ............................................................................ October–May average ................................................................ 0.00002 

Atlantic spotted dolphin .............................................................. (c) ................................................................................................ (c) 

Atlantic white-sided dolphin ........................................................ October–May average ................................................................ 0.00077 

Bottlenose dolphin (offshore stock) b .......................................... October–May average ................................................................ 0.14866 

Bottlenose dolphin (coastal stock) b ........................................... October–May average ................................................................ 0.32471 

Common dolphin ........................................................................ October–May average ................................................................ 0.00409 

Long-finned pilot whale b ............................................................ Annual Density ........................................................................... 0.00001 

Short-finned pilot whale b ............................................................ Annual Density ........................................................................... 0.00001 

Risso’s dolphin ........................................................................... October–May average ................................................................ 0.00002 

Harbor porpoise .......................................................................... October–May average ................................................................ 0.00854 

Gray seal .................................................................................... October–May average ................................................................ 0.03602 

Harbor seal ................................................................................. October–May average ................................................................ 0.10069 

a Listed as Endangered under the Endangered Species Act. 

b Densities were adjusted by their relative abundance (short-finned pilot whale = 0.00000133395 animals/km2; long-finned pilot whale = 

0.00000181 animals/km2). c No exposure modeling was performed for this species and it was added later after analysis had concluded. 

TABLE 9—THE HIGHEST MONTHLY MARINE MAMMAL AND ANNUAL DENSITIES (ANIMALS PER Km 2) USED FOR THE

MODELING OF OCEAN WIND’S UXOS/MECS FOR MAY THROUGH OCTOBER

Marine mammal species Density used 

North Atlantic right whale a .................................................................................................................................................. 0.00008 (May). 

Blue whale a ........................................................................................................................................................................ 0.00001 (Annual) 

Fin whale a ........................................................................................................................................................................... 0.00068 (May). 

Humpback whale ................................................................................................................................................................. 0.00081 (May). 

Minke whale ........................................................................................................................................................................ 0.00627 (May). 

Sei whale a .......................................................................................................................................................................... 0.00021 (May). 

Sperm whale a ..................................................................................................................................................................... 0.00008 (May). 

Atlantic spotted dolphin ....................................................................................................................................................... (c) 

Atlantic white-sided dolphin ................................................................................................................................................ 0.00545 (May). 

Bottlenose dolphin (offshore stock) b .................................................................................................................................. 0.12615 (August). 

Bottlenose dolphin (coastal stock) b .................................................................................................................................... 0.71100 (September). 

Common dolphin ................................................................................................................................................................. 0.02407 (May). 

Long-finned pilot whale b ..................................................................................................................................................... 0.00013 (Annual). 


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TABLE 9—THE HIGHEST MONTHLY MARINE MAMMAL AND ANNUAL DENSITIES (ANIMALS PER Km 2) USED FOR THE

MODELING OF OCEAN WIND’S UXOS/MECS FOR MAY THROUGH OCTOBER—Continued 

Marine mammal species Density used 

Short-finned pilot whale b .................................................................................................................................................... 0.00010 (Annual). 

Risso’s dolphin .................................................................................................................................................................... 0.00021 (May). 

Harbor porpoise .................................................................................................................................................................. 0.00789 (May). 

Gray seal ............................................................................................................................................................................. 0.03387 (May). 

Harbor seal .......................................................................................................................................................................... 0.09467 (May). 

a Listed as Endangered under the Endangered Species Act. 

b Densities were adjusted by their relative abundance. 

c No exposure modeling was performed for this species and it was added later after analysis had concluded. 

TABLE 10—THE HIGHEST MONTHLY MARINE MAMMAL, AVERAGE, AND ANNUAL DENSITIES IN (ANIMALS PER Km 2) USED

FOR ANALYSIS OF OCEAN WIND’S HRG SURVEY EFFORT FOR THE EXPORT CABLE ROUTE AND INTER-ARRAY CABLES

FROM JANUARY THROUGH DECEMBER

Marine mammal species Wind farm area Export cable route 

North Atlantic right whale a ....................................... 0.00026 (Average Annual) ...................................... 0.00026 (Average Annual). 

Blue whale a .............................................................. 0.00001 (Annual) ..................................................... 0.00001 (Annual). 

Fin whale a ................................................................ 0.00086 (Average Annual) ...................................... 0.00054 (Average Annual). 

Humpback whale ...................................................... 0.00069 (Average Annual) ...................................... 0.00057 (Average Annual). 

Minke whale .............................................................. 0.00171 (Average Annual) ...................................... 0.00099 (Average Annual). 

Sei whale a ................................................................ 0.00022 (Average Annual) ...................................... 0.00016 (Average Annual). 

Sperm whale a .......................................................... 0.00003 (Average Annual) ...................................... 0.00002 (Average Annual). 

Atlantic spotted dolphin ............................................ (c) ............................................................................. (c). 

Atlantic white-sided dolphin ...................................... 0.00399 (Average Annual) ...................................... 0.00130 (Average Annual). 

Bottlenose dolphin (offshore stock) b ........................ 0.06119 (Average Annual) ...................................... 0.14499 (Average Annual). 

Bottlenose dolphin (coastal stock) b ......................... 0.18073 (Average Annual) ...................................... 0.36680 (Average Annual). 

Common dolphin ...................................................... 0.02418 (Average Annual) ...................................... 0.00702 (Average Annual). 

Long-finned pilot whale b .......................................... 0.00018 (Annual) ..................................................... 0.00002 (Annual). 

Short-finned pilot whale b .......................................... 0.00014 (Annual) ..................................................... 0.00001 (Annual). 

Risso’s dolphin ......................................................... 0.00029 (Average Annual) ...................................... 0.00005 (Average Annual). 

Harbor porpoise ........................................................ 0.01518 (Average Annual) ...................................... 0.00925 (Average Annual). 

Gray seal .................................................................. 0.01687 (Average Annual) ...................................... 0.02165 (Average Annual). 

Harbor seal ............................................................... 0.04715 (Average Annual) ...................................... 0.06051 (Average Annual). 

a Listed as Endangered under the Endangered Species Act. 

b Densities were adjusted by their relative abundance. 

c No exposure modeling was performed for this species and it was added later after analysis had concluded. 

Modeling and Take Estimation 

Below, we describe the three methods 

that were used to estimate take in 

consideration of the acoustic thresholds 

and marine mammal densities described 

above and the four different activities 

(WTG and OSS foundation installation, 

temporary cofferdam and goal post 

installation/removal, UXO/MEC 

detonation, and HRG surveys). The take 

estimates for the four different activities, 

as well as the combined total, are 

presented. 

WTG and OSS Foundation Installation 

As described above, Ocean Wind 

plans to install up to 98 WTGs and 3 

OSS in the Lease Area. The proposed 

rule modeled and estimated take of 

marine mammals for two OSS 

construction scenarios (i.e., monopile 

foundation and jacket foundation with 

pin piles) and carried the jacket 

foundation scenario forward into the 

total estimated take from all activities as 

it resulted in the higher estimated take 

number between the two scenarios. 

Because Ocean Wind’s Construction and 

Operation Plan (COP) allows for the 

construction of either scenario, the final 

rule’s estimated take analysis 

conservatively assumes the jacket 

foundation scenario will occur. For 

clarity, we have limited the estimated 

take analysis in this final rule to the 

jacket foundation scenario. For the 

analysis of the monopile foundation 

scenario, please refer to the Estimated 

Take section of the proposed rule. 

Representative hammering schedules 

of increasing hammer energy with 

increasing penetration depth were 

modeled, resulting in, generally, higher 

intensity sound fields as the hammer 

energy and penetration increases (Table 

11). 

TABLE 11—ESTIMATED IMPACT HAMMER ENERGY SCHEDULES FOR MONOPILES AND PIN PILES

Monopile foundations (8/11–m) Jacket foundations (Pin piles; 2.44–m) 

Hammer: IHC S–4000 Hammer: IHC S–2500 

Energy level 

(kJ) 1 Strike count 

Pile 

penetration 

depth 

(m) 

Energy level 

(kJ) Strike count 

Pile 

penetration 

depth 

500 .................................................... 763 7 500 ................................................... 554 3 


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TABLE 11—ESTIMATED IMPACT HAMMER ENERGY SCHEDULES FOR MONOPILES AND PIN PILES—Continued 

Monopile foundations (8/11–m) Jacket foundations (Pin piles; 2.44–m) 

Hammer: IHC S–4000 Hammer: IHC S–2500 

Energy level 

(kJ) 1 Strike count 

Pile 

penetration 

depth 

(m) 

Energy level 

(kJ) Strike count 

Pile 

penetration 

depth 

2,000 ................................................. 980 6 200 ................................................... 5,373 29 

1,000 ................................................. 375 3 750 ................................................... 1,402 8 

3,000 ................................................. 385 2 1,000 ................................................ 1,604 8 

4,000 ................................................. 5,006 16 1,500 ................................................ 1,310 6 

3,000 ................................................. 1,135 6 2,500 ................................................ 1,026 6 

4,000 ................................................. 2,202 10 1,500 ................................................ 1,922 10 

Total .......................................... 10,846 50 Total .......................................... 13,191 70 

1Sediment types with greater resistances require hammers that deliver higher energy strikes and/or an increased number of strikes relative to 

installation in softer sediments. Typically the maximum sound levels usually occur during the last stage of impact pile installation where the greatest resistance is encountered (Betke, 2008). 

Both monopiles and pin piles were 

assumed to be vertically aligned and 

driven to a maximum depth of 50 m for 

all monopiles and 70 m for all pin piles. 

While pile penetration depths may vary 

slightly, these values were chosen as 

reasonable penetration depths during 

modeling. All acoustic modeling was 

performed assuming that concurrent 

pile driving of either monopiles or pin 

piles would not occur. While multiple 

piles may be driven within any single 

24-hour period, these installation 

activities would not occur 

simultaneously. Below we describe the 

assumptions inherent to the modeling 

approach and those by which Ocean 

Wind 1 would not exceed: 

Modeling assumptions for the project 

are as follows: 

• Up to two monopiles installed per 

day (4 hours per monopile; 9 hours of 

total with 8 hours of active pile driving 

time), although only one monopile may 

be installed on some days; 

• No concurrent monopile and/or pin 

pile driving would occur; 

• Monopiles would be 80 millimeters 

(mm) thick and consist of steel; 

• Impact pile driving: IHC S–4000 or 

IHC S–2500 kJ rated energy; 1,977.151 

kilonewton (kN) ram weight); 

• Helmet weight: 3,776.9 kN; 

• Impact hammers would have a 

maximum power capacity of 6,000 

kilowatts (kW); 

• Up to three pin piles could be 

installed per day; 

• Pin piles would be 75 mm thick; 

• Impact Pile driving: IHC S–2,500 kJ 

rated energy; 1,227.32 kN ram weight); 

and 

• Helmet weight: 279 kN. 

Sound fields produced during impact 

pile driving were modeled by first 

characterizing the sound signal 

produced during pile driving using the 

industry standard GRL Wave Equation 

Analysis Program (GRLWEAP; wave 

equation analysis of pile driving) model 

and JASCO’s Pile Driving Source Model 

(PDSM). We provide a summary of the 

modelling effort below but the full 

JASCO modeling report can be found in 

Section 6 and Appendix A of Ocean 

Wind’s ITA application (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility). 

Underwater sound propagation (i.e., 

transmission loss) as a function of range 

from each source was modeled using 

JASCO’s Marine Operations Noise 

Model (MONM) for multiple 

propagation radials centered at the 

source to yield three-dimensional (3D) 

transmission loss fields in the 

surrounding area. The MONM computes 

received per-pulse SEL for directional 

sources at specified depths. MONM uses 

two separate models to estimate 

transmission loss. 

At frequencies less than 2 kHz, 

MONM computes acoustic propagation 

via a wide-angle parabolic equation (PE) 

solution to the acoustic wave equation 

based on a version of the U.S. Naval 

Research Laboratory’s Range-dependent 

Acoustic Model (RAM) modified to 

account for an elastic seabed. MONM– 

RAM incorporates bathymetry, 

underwater sound speed as a function of 

depth, and a geo-acoustic profile based 

on seafloor composition, and accounts 

for source horizontal directivity. The PE 

method has been extensively 

benchmarked and is widely employed 

in the underwater acoustics community, 

and MONM–RAM’s predictions have 

been validated against experimental 

data in several underwater acoustic 

measurement programs conducted by 

JASCO. At frequencies greater than 2 

kHz, MONM accounts for increased 

sound attenuation due to volume 

absorption at higher frequencies with 

the widely used BELLHOP Gaussian 

beam ray-trace propagation model. This 

component incorporates bathymetry and 

underwater sound speed as a function of 

depth with a simplified representation 

of the sea bottom, as sub-bottom layers 

have a negligible influence on the 

propagation of acoustic waves with 

frequencies above 1 kHz. MONM– 

BELLHOP accounts for horizontal 

directivity of the source and vertical 

variation of the source beam pattern. 

Both propagation models account for 

full exposure from a direct acoustic 

wave, as well as exposure from acoustic 

wave reflections and refractions (i.e., 

multi-path arrivals at the receiver). 

The sound field radiating from the 

pile was simulated using a vertical array 

of point sources. Because sound itself is 

an oscillation (vibration) of water 

particles, acoustic modeling of sound in 

the water column is inherently an 

evaluation of vibration. For this study, 

synthetic pressure waveforms were 

computed using the full-wave rangedependent acoustic model (FWRAM), 

which is JASCO’s acoustic propagation 

model capable of producing timedomain waveforms. 

Models are more efficient at 

estimating SEL than SPLrms. Therefore, 

conversions may be necessary to derive 

the corresponding SPLrms. Propagation 

was modeled for a subset of sites using 

the FWRAM, from which broadband 

SEL to SPL conversion factors were 

calculated. The FWRAM required 

intensive calculation for each site, thus 

a representative subset of modeling sites 

were used to develop azimuth-, range-, 

and depth-dependent conversion 

factors. These conversion factors were 


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used to calculate the broadband SPLrms

from the broadband SEL prediction. 

The sound fields for the monopile and 

pin pile scenarios were each modeled 

based on one representative location in 

the Lease Area. For monopiles this area 

is G10 and for jacket foundations with 

pin piles this area is Z11 (see in 

Appendix A of the ITA application). 

Both modeling locations were selected 

as they were determined to be the most 

representative of the water depths in the 

Lease Area, as appropriate for each 

foundation type (i.e., monopiles in 

shallower waters and jackets in deeper 

waters). All monopiles were assumed to 

be driven vertically and to a maximum 

penetration depth of 50 m (164 ft). All 

pin piles associated with jacket 

foundations were also assumed to be 

driven vertically to a maximum 

penetration depth of 70 m (230 ft). 

The model also incorporated two 

different sound velocity profiles (related 

to in-situ measurements of temperature, 

salinity, and pressure within the water 

column) to account for variations in the 

acoustic propagation conditions 

between summer (May through 

November) and winter (December only). 

The estimated pile driving schedules 

(Table 16) were used to calculate the 

SEL sound fields at different points in 

time during impact pile driving. 

Next, Ocean Wind modeled the sound 

field produced during impact pile 

driving by incorporating the results of 

the source level modeling into an 

acoustic propagation model. The sound 

propagation model incorporated sitespecific environmental data that 

considers bathymetry, sound speed in 

the water column, and seabed geoacoustics in the construction area. 

Ocean Wind estimated both acoustic 

ranges and exposure ranges. Acoustic 

ranges represent the distance to a 

harassment threshold based on sound 

propagation through the environment 

(i.e., independent of any receiver) while 

exposure range represents the distance 

at which an animal can accumulate 

enough energy to exceed a Level A 

harassment threshold in consideration 

of how it moves through the 

environment (i.e., using movement 

modeling). In both cases, the sound 

level estimates are calculated from 3D 

sound fields and then, at each 

horizontal sampling range, the 

maximum received level that occurs 

within the water column is used as the 

received level at that range. These 

maximum-over-depth (Rmax) values are 

then compared to predetermined 

threshold levels to determine acoustic 

and exposure ranges to Level A 

harassment and Level B harassment 

zone isopleths. However, the ranges to 

a threshold typically differ among radii 

from a source, and also might not be 

continuous along a radii because sound 

levels may drop below threshold at 

some ranges and then exceed threshold 

at farther ranges. To minimize the 

influence of these inconsistencies, 5 

percent of the farthest such footprints 

were excluded from the model data. The 

resulting range, R95%, was chosen to 

identify the area over which marine 

mammals may be exposed above a given 

threshold, because, regardless of the 

shape of the maximum-over-depth 

footprint, the predicted range 

encompasses at least 95 percent of the 

horizontal area that would be exposed 

to sound at or above the specified 

threshold. The difference between Rmax

and R95% depends on the source 

directivity and the heterogeneity of the 

acoustic environment. R95% excludes 

ends of protruding areas or small 

isolated acoustic foci not representative 

of the nominal ensonified zone. For 

purposes of calculating Level A 

harassment take, Ocean Wind applied 

R95% exposure ranges, not acoustic 

ranges, to estimate take and determine 

mitigation distances for the reasons 

described below. 

In order to best evaluate the SELcum

harassment thresholds for PTS, it is 

necessary to consider animal movement, 

as the results are based on how sound 

moves through the environment 

between the source and the receiver. 

Applying animal movement and 

behavior within the modeled noise 

fields provides the exposure range, 

which allows for a more realistic 

indication of the distances at which PTS 

acoustic thresholds are reached that 

considers the accumulation of sound 

over different durations (note that in all 

cases the distance to the peak threshold 

is less than the SEL-based threshold). 

As described in Section 2.6 of 

Appendix A of Ocean Wind’s ITA 

application, for modeled animals that 

have received enough acoustic energy to 

exceed a given Level A harassment 

threshold, the exposure range for each 

animal is defined as the closest point of 

approach (CPA) to the source made by 

that animal while it moved throughout 

the modeled sound field, accumulating 

received acoustic energy. The resulting 

exposure range for each species is the 

95th percentile of the CPA distances for 

all animals that exceeded threshold 

levels for that species (termed the 95 

percent exposure range (ER95%)). 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 impact ranges into the 

model. Furthermore, because these 

ER95% ranges are species-specific, they 

can be used to develop mitigation 

monitoring or shutdown zones. 

Tables 12 and 13 below represent the 

ER95% exposure ranges (for SELcum and 

SPLrms) for monopiles foundations, with 

Table 12 demonstrating the ranges using 

the summer sound speed profile and 

Table 13 using the winter sound speed 

profile. For both tables, a single 

monopiles and two monopiles per day 

are provided (the two per day ranges are 

shown in the parenthesis). NMFS notes 

that monopiles foundations constructed 

for Ocean Wind 1 are applicable to all 

WTGs and may be applicable to OSS 

structures, depending on the finalized 

buildout. Please see the Estimated Take 

section below, Appendix A of the Ocean 

Wind 1 ITA application, and Appendix 

R of the Ocean Wind 1 COP for further 

details on the acoustic modeling 

methodology. 

Displayed in Tables 12, 13, 14, and 15 

below, Ocean Wind would also employ 

a noise abatement system during all 

impact pile driving of monopiles. Noise 

abatement systems, such as bubble 

curtains, are sometimes used to decrease 

the sound levels radiated from a source. 

Additional information on sound 

attenuation devices is discussed in the 

Noise Abatement Systems section under 

the Mitigation section. In modeling the 

sound fields for Ocean Wind’s proposed 

activities, hypothetical broadband 

attenuation levels of 0 dB, 6 dB, 10 dB, 

15 dB, and 20 dB were modeled to 

gauge the effects on the ranges to 

thresholds given these levels of 

attenuation. The results for 10 dB of 

sound attenuation are shown below and 

the other attenuation levels (0 dB, 6 dB, 

15 dB, and 20 dB) can be found in the 

ITA application. 


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TABLE 12—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT THRESHOLDS (SELcum) AND EXPOSURE RANGES

(ER95%) AND ACOUSTIC RANGES (R95%) TO LEVEL B HARASSMENT THRESHOLD (SPLrms) FOR MONOPILE FOUNDATIONS IN THE SUMMER (MAY–NOVEMBER), ASSUMING 10–dB ATTENUATION; EXPOSURE RANGES ARE FOR ONE (AND

TWO) MONOPILES PER DAY

Marine mammal species 

Exposure ranges 

(ER95%) 

Acoustic range 

(R95%) 

Level A 

harassment 

(km) 

Level B 

harassment 

(km) 

Level B 

harassment 

(km) 

North Atlantic right whale ............................................................................................................ 1.28 (1.37) 2.95 (2.98) a 3.253 

Blue whale * ................................................................................................................................. ........................ ........................

Fin whale ..................................................................................................................................... 1.58 (1.65) 3.04 (3.13) 

Humpback whale ......................................................................................................................... 1.14 (1.05) 3.10 (3.09) 

Minke whale ................................................................................................................................. 1.23 (1.26) 3.13 (3.10) 

Sei whale ..................................................................................................................................... 1.36 (1.27) 3.13 (3.09) 

Sperm whale ................................................................................................................................ 0 (0) 0 (0) 

Atlantic spotted dolphin * ............................................................................................................. ........................ ........................

Atlantic white-sided dolphin ......................................................................................................... 0 (0) 3.10 (3.04) 

Common dolphin .......................................................................................................................... 0 (0) 3.09 (3.05) 

Bottlenose dolphin (coastal stock) ............................................................................................... 0 (0) 2.80 (2.81) 

Bottlenose dolphin (offshore stock) ............................................................................................. 0 (0) 2.90 (2.81) 

Long-finned pilot whale ................................................................................................................ 0 (0) 0 (0) 

Short-finned pilot whale ............................................................................................................... 0 (0) 3.01 (3.08) 

Risso’s dolphin ............................................................................................................................. 0 (0) 3.06 (3.09) 

Harbor porpoise ........................................................................................................................... 0.84 (0.88) 3.11 (3.07) 

Gray seal ..................................................................................................................................... 0 (0.08) 3.21 (3.09) 

Harbor seal .................................................................................................................................. 0 (0.06) 3.11 (3.08) 

* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the species approach zero due to 

their low predicted densities in the Project Area. These species were excluded from quantitative analyses and tables. Results for these scenarios 

can be found in Appendix A in the ITA application. aThe acoustic range can be found in Table H–25 in Appendix H of Ocean Wind’s ITA application. The value shown here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation. 

TABLE 13—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT THRESHOLDS (SELcum) AND EXPOSURE RANGES

(ER95%) AND ACOUSTIC RANGES (R95%) TO LEVEL B HARASSMENT THRESHOLD (SPLrms) FOR MONOPILE FOUNDATIONS IN THE WINTER (DECEMBER), ASSUMING 10-dB ATTENUATION; EXPOSURE RANGES ARE FOR ONE (AND TWO) 

MONOPILES PER DAY

Marine mammal species 

Exposure ranges 

(ER95%) 

Acoustic range 

(R95%) 

Level A 

harassment 

km) 

Level B 

harassment 

(km) 

Level B 

harassment 

(km) 

North Atlantic right whale (migrating) .......................................................................................... 1.85 (2.03) 3.28 (3.35) a 3.534 

Blue whale * ................................................................................................................................. ........................ ........................

Fin whale ..................................................................................................................................... 2.33 (2.49) 3.48 (3.44) 

Humpback whale (migrating) ....................................................................................................... 1.75 (1.77) 3.32 (3.37) 

Minke whale (migrating) .............................................................................................................. 1.98 (1.98) 3.39 (3.42) 

Sei whale (migrating) ................................................................................................................... 1.86 (2.19) 3.42 (3.45) 

Sperm whale ................................................................................................................................ 0 (0) 0 (0) 

Atlantic spotted dolphin * ............................................................................................................. ........................ ........................

Atlantic white-sided dolphin ......................................................................................................... 0 (0) 3.37 (3.33) 

Bottlenose dolphin (coastal stock) ............................................................................................... 0 (0) 3.12 (3.15) 

Bottlenose dolphin (offshore stock) ............................................................................................. 0 (0) 3.22 (3.18) 

Common dolphin .......................................................................................................................... 0 (0) 3.40 (3.36) 

Long-finned pilot whale ................................................................................................................ 0 (0) 0 (0) 

Short-finned pilot whale ............................................................................................................... 0 (0) 3.31 (3.41) 

Risso’s dolphin ............................................................................................................................. 0 (0) 3.49 (3.36) 

Harbor porpoise ........................................................................................................................... 1.06 (1.43) 3.34 (3.37) 

Gray seal ..................................................................................................................................... 0 (0.14) 3.44 (3.42) 

Harbor seal .................................................................................................................................. 0.07 (0.24) 3.47 (3.31) 

* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the species approach zero due to 

their low predicted densities in the Project Area. These species were excluded from quantitative analyses and tables. Results for these scenarios 

can be found in Appendix A in the ITA application. aThe acoustic range can be found in Table H–26 in Appendix H of Ocean Wind’s ITA application. The value shown here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation. 


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Tables 14 and 15 below represent the 

exposure ranges (ER95≠) for jacket 

foundations, with Table 14 

demonstrating the ranges using the 

summer sound speed profile and Table 

15 using the winter sound speed profile. 

For both tables, two pin piles and three 

pin piles (the three pin pile ranges are 

shown in the parenthesis) per day are 

provided. As with Tables 12 and 13 

above, sound reductions of 0, 6, 10, 15, 

and 20 dB were modeled, but Ocean 

Wind would only be required to meet a 

minimum sound reduction level of 10 

dB. The results for 10 dB of sound 

attenuation are shown below and the 

other attenuation levels (0, 6, 15, and 20 

dB) can be found in the ITA application. 

TABLE 14—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT THRESHOLDS (SELcum) AND EXPOSURE RANGES

(ER95%) AND ACOUSTIC RANGES (R95%) TO LEVEL B HARASSMENT THRESHOLD (SPLrms) FOR JACKET FOUNDATIONS (PIN PILES) IN THE SUMMER (MAY–NOVEMBER), ASSUMING 10–dB ATTENUATION; EXPOSURE RANGES ARE

FOR TWO (AND THREE) PIN PILES PER DAY

Marine mammal species 

Exposure ranges 

(ER95%) 

Acoustic range 

(R95%) 

Level A 

harassment 

(km) 

Level B 

harassment 

(km) 

Level B 

harassment 

(km) 

North Atlantic right whale ............................................................................................................ 0.51 (0.58) 1.64 (1.72) a 2.155 

Blue whale * ................................................................................................................................. ........................ ........................

Fin whale ..................................................................................................................................... 0.55 (0.59) 1.82 (1.79) 

Humpback whale ......................................................................................................................... 0.40 (0.42) 1.81 (1.86) 

Minke whale ................................................................................................................................. 0.55 (0.51) 1.76 (1.76) 

Sei whale ..................................................................................................................................... 0.37 (0.36) 1.81 (1.84) 

Sperm whale ................................................................................................................................ 0 (0) 0 (0) 

Atlantic spotted dolphin * ............................................................................................................. ........................ ........................

Atlantic white-sided dolphin ......................................................................................................... 0 (0) 1.55 (1.72) 

Bottlenose dolphin (offshore stock) ............................................................................................. 0 (0) 1.58 (1.60) 

Bottlenose dolphin (coastal stock) ............................................................................................... 0 (0) 1.53 (1.46) 

Common dolphin .......................................................................................................................... 0 (0) 1.72 (1.72) 

Long-finned pilot whale ................................................................................................................ 0 (0) 0 (0) 

Short-finned pilot whale ............................................................................................................... 0 (0) 0 (0) 

Risso’s dolphin ............................................................................................................................. 0 (0) 1.61 (1.65) 

Harbor porpoise ........................................................................................................................... 0.61 (0.61) 1.75 (1.73) 

Gray seal ..................................................................................................................................... 0 (<0.01) 1.75 (1.65) 

Harbor seal .................................................................................................................................. 0 (<0.01) 1.96 (1.91) 

* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the species approach zero due to 

their low predicted densities in the Project Area. These species were excluded from quantitative analyses and tables. Results for these scenarios 

can be found in Appendix A in the ITA application. aThe acoustic range can be found in Table H–41 in Appendix H of Ocean Wind’s ITA application. The value shown here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation. 

TABLE 15—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT THRESHOLDS (SELcum) AND EXPOSURE RANGES

(ER95% AND ACOUSTIC RANGES (R95%) TO LEVEL B HARASSMENT THRESHOLD (SPLrms) FOR JACKET FOUNDATIONS

(PIN PILES) IN THE WINTER (DECEMBER), ASSUMING 10–dB ATTENUATION; EXPOSURE DISTANCES FOR TWO (AND

THREE) PIN PILES PER DAY

Marine mammal species 

Exposure ranges 

(ER95%) 

Acoustic range 

(R95%) 

Level A 

harassment 

(km) 

Level B 

harassment 

(km) 

Level B 

harassment 

(km) 

North Atlantic right whale ............................................................................................................ 0.69 (0.70) 2.06 (2.11) a 2.522 

Blue whale * ................................................................................................................................. ........................ ........................

Fin whale ..................................................................................................................................... 0.84 (0.74) 2.11 (2.04) 

Humpback whale ......................................................................................................................... 0.52 (0.51) 2.18 (2.11) 

Minke whale ................................................................................................................................. 0.58 (0.59) 2.09 (2.06) 

Sei whale ..................................................................................................................................... 0.59 (0.53) 2.13 (2.03) 

Sperm whale ................................................................................................................................ 0 (0) 0 (0) 

Atlantic spotted dolphin * ............................................................................................................. ........................ ........................

Atlantic white-sided dolphin ......................................................................................................... 0 (0) 2.12 (2.08) 

Bottlenose dolphin (offshore stock) ............................................................................................. 0 (0) 1.91 (1.85) 

Bottlenose dolphin (coastal stock) ............................................................................................... 0 (0) 1.97 (1.88) 

Common dolphin .......................................................................................................................... 0 (0) 2.09 (2.06) 

Long-finned pilot whale ................................................................................................................ 0 (0) 0 (0) 

Short-finned pilot whale ............................................................................................................... 0 (0) 0 (0) 

Risso’s dolphin ............................................................................................................................. 0 (0) 1.93 (1.87) 

Harbor porpoise ........................................................................................................................... 0.63 (0.70) 2.16 (2.06) 

Gray seal ..................................................................................................................................... 0 (<0.01) 2.33 (2.14) 


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TABLE 15—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT THRESHOLDS (SELcum) AND EXPOSURE RANGES

(ER95% AND ACOUSTIC RANGES (R95%) TO LEVEL B HARASSMENT THRESHOLD (SPLrms) FOR JACKET FOUNDATIONS

(PIN PILES) IN THE WINTER (DECEMBER), ASSUMING 10–dB ATTENUATION; EXPOSURE DISTANCES FOR TWO (AND

THREE) PIN PILES PER DAY—Continued 

Marine mammal species 

Exposure ranges 

(ER95%) 

Acoustic range 

(R95%) 

Level A 

harassment 

(km) 

Level B 

harassment 

(km) 

Level B 

harassment 

(km) 

Harbor seal .................................................................................................................................. 0 (<0.01) 2.24 (2.19) 

* Exposure modeling for the blue whale and Atlantic spotted dolphin was not conducted because impacts on the species approach zero due to 

their low predicted densities in the Project Area. These species were excluded from quantitative analyses and tables. Results for these scenarios 

can be found in Appendix A in the ITA application. aThe acoustic range can be found in Table H–42 in Appendix H of Ocean Wind’s ITA application. The value shown here is for 170 dB as Appendix H did not account for 10 dB of sound attenuation. 

JASCO’s Animal Simulation Model 

Including Noise Exposure (JASMINE) 

animal movement model was used to 

predict the number of marine mammals 

exposed to impact pile driving sound 

above NMFS’ injury and behavioral 

harassment thresholds. Sound exposure 

models like JASMINE use animats to 

forecast behaviors of animals in new 

situations and locations based on 

previously documented behaviors of 

those animals. The predicted 3D sound 

fields (i.e., the output of the acoustic 

modeling process described earlier) are 

sampled by animats using movement 

rules derived from animal observations. 

The output of the simulation is the 

exposure history for each animat within 

the simulation. 

The precise location of animats (and 

their pathways) are not known prior to 

a project, therefore a repeated random 

sampling technique (Monte Carlo) is 

used to estimate exposure probability 

with many animats and randomized 

starting positions. The probability of an 

animat starting out in or transitioning 

into a given behavioral state can be 

defined in terms of the animat’s current 

behavioral state, depth, and the time of 

day. In addition, each travel parameter 

and behavioral state has a termination 

function that governs how long the 

parameter value or overall behavioral 

state persists in the simulation. 

The output of the simulation is the 

exposure history for each animat within 

the simulation, and the combined 

history of all animats gives a probability 

density function of exposure during the 

project. Scaling the probability density 

function by the real-world density of 

animals results in the mean number of 

animats expected to be exposed to a 

given threshold over the duration of the 

project. Due to the probabilistic nature 

of the process, fractions of animats may 

be predicted to exceed threshold. If, for 

example, 0.1 animats are predicted to 

exceed threshold in the model, that is 

interpreted as a 10-percent chance that 

one animat will exceed a relevant 

threshold during the project, or 

equivalently, if the simulation were rerun 10 times, 1 of the 10 simulations 

would result in an animat exceeding the 

threshold. Similarly, a mean number 

prediction of 33.11 animats can be 

interpreted as re-running the simulation 

where the number of animats exceeding 

the threshold may differ in each 

simulation but the mean number of 

animats over all of the simulations is 

33.11. A portion of an individual marine 

mammal cannot be taken during a 

project, so it is common practice to 

round mean number animat exposure 

values to integers using standard 

rounding methods. However, for lowprobability events it is more precise to 

provide the actual values. 

Sound fields were input into the 

JASMINE model, as described above, 

and animats were programmed based on 

the best available information to 

‘‘behave’’ in ways that reflect the 

behaviors of the 17 marine mammal 

species (18 stocks) expected to occur in 

the Project Area during the proposed 

activity. The various parameters for 

forecasting realistic marine mammal 

behaviors (e.g., diving, foraging, surface 

times, etc.) are determined based on the 

available literature (e.g., tagging 

studies); when literature on these 

behaviors was not available for a 

particular species, it was extrapolated 

from a similar species for which 

behaviors would be expected to be 

similar to the species of interest. The 

parameters used in JASMINE describe 

animat movement in both the vertical 

and horizontal planes (e.g., direction, 

travel rate, ascent and descent rates, 

depth, bottom following, reversals, 

inter-dive surface interval). 

Animats were modeled to move 

throughout the 3D sound fields 

produced by each construction schedule 

for the entire construction period. For 

PTS exposures, both SPLpk and SELcum

were calculated for each species based 

on the corresponding acoustic criteria. 

Once an animat is taken within a 24- 

hour period, the model does not allow 

it to be taken a second time in that same 

period, but rather resets the 24-hour 

period on a sliding scale across 7 days 

of exposure. Specifically, an individual 

animat’s accumulated energy levels 

(SELcum) are summed over that 24-hour 

period to determine its total received 

energy, and then compared to the PTS 

threshold. Takes by behavioral 

harassment are predicted when an 

animat enters an area ensonified by 

sound levels exceeding the associated 

behavioral harassment threshold. 

It is important to note that the 

calculated or predicted takes represent a 

take instance or event within 1 day and 

likely overestimate the number of 

individuals taken for some species. 

Specifically, as the 24-hour evaluation 

window means that individuals exposed 

on multiple days are counted as 

multiple takes. For example, 10 takes 

may represent 10 takes of 10 different 

individual marine mammals occurring 

within 1 day each, or it may represent 

take of 1 individual on 10 different 

days; information about the species’ 

daily and seasonal movement patterns 

helps to inform the interpretation of 

these take estimates. Also note that 

animal aversion was not incorporated 

into the JASMINE model runs that were 

the basis for the take estimate for any 

species. 

To conservatively estimate the 

number of animals likely to be exposed 

above thresholds, 60 WTG monopiles (at 

a rate of 2 per day for 30 days) were 

assumed to be installed during the 

highest density month of each species. 

Additionally, 38 WTG monopiles (at a 

rate of 2 per day for 19 days) were also 

assumed to be installed during the 

month with the second highest species 

density. The scenario for the three OSS 


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foundations was assumed to consist of 

48 pin piles (at a rate of 3 per day for 

a total of 16 days). The estimated 

construction schedule is shown below 

in Table 16. 

TABLE 16—CONSTRUCTION SCHEDULE ASSUMPTIONS FOR WTG AND OSS FOUNDATIONS

Foundation type Configuration 

Days of impact pile driving 

First highest 

density month 

Second 

highest 

density month 

Wind Turbine Generator (WTG) ................................... Monopile foundation, 2 piles per day ........................... 30 19 

Offshore Substation (OSS) ........................................... Jacket foundation, 3 pin piles per day ......................... 16 0 

Note:—Indicate no piling days. 

In summary, exposures were 

estimated in the following way: 

(1) The characteristics of the sound 

output from the proposed pile-driving 

activities were modeled using the 

GRLWEAP (wave equation analysis of 

pile driving) model and JASCO’s PDSM; 

(2) Acoustic propagation modeling 

was performed within the exposure 

model framework using JASCO’s 

MONM and FWRAM that combined the 

outputs of the source model with the 

spatial and temporal environmental 

context (e.g., location, oceanographic 

conditions, seabed type) to estimate 

sound fields; 

(3) Animal movement modeling 

integrated the estimated sound fields 

with species-typical behavioral 

parameters in the JASMINE model to 

estimate received sound levels for the 

animals that may occur in the 

operational area for each piling scenario 

(e.g., two monopiles per day); and 

(4) The number of potential exposures 

above Level A harassment and Level B 

harassment thresholds were calculated 

per month and then results from all 

months were summed. 

The results of marine mammal 

exposure modeling for the joint 

foundation approach (WTGs use 

monopiles; OSSs use jackets with pin 

piles) over 5 years assuming 10–dB 

attenuation only are shown in Tables 17 

and 18, as these form the basis for the 

authorized take. These values were 

presented by Ocean Wind after the 

habitat-based density models were 

updated; please see the Revised Density 

and Take Estimate Memo available at 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility for more 

information. 

TABLE 17—MODELED POTENTIAL LEVEL A HARASSMENT AND LEVEL B HARASSMENT EXPOSURES (ASSUMING 10–dB 

SOUND ATTENUATION) DUE TO IMPACT PILE DRIVING OF A MONOPILE FOUNDATION (ASSUMING 98 TOTAL MONOPILES

FOR WTGS) OVER 5 YEARS

Marine mammal species Population 

estimate 

Level A 

harassment 

(SELcum) 

Level B 

harassment 

(160 dBrms) 

North Atlantic right whale a .......................................................................................................... 338 c 0.9 3.11 

Blue whale a ................................................................................................................................. b Unknown e n/a e n/a 

Fin whale a ................................................................................................................................... 6,802 3.69 7.05 

Humpback whale ......................................................................................................................... 1,396 4.24 13.82 

Minke whale ................................................................................................................................. 21,968 18.42 52.25 

Sei whale a ................................................................................................................................... 6,292 0.89 2.00 

Sperm whale a .............................................................................................................................. 4,349 0 0 

Atlantic spotted dolphin ............................................................................................................... 39,921 e n/a e n/a 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 71.5 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0 935.91 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 0 0 

Common dolphin .......................................................................................................................... 172,974 0 1,229.37 

Long-finned pilot whale ................................................................................................................ 39,215 0 0 

Short-finned pilot whale ............................................................................................................... 28,924 0 0.04 

Risso’s dolphin ............................................................................................................................. 35,215 0 7.06 

Harbor porpoise d ......................................................................................................................... 95,543 51.31 233.89 

Gray seal ..................................................................................................................................... 27,300 3.04 197.56 

Harbor seal .................................................................................................................................. 61,336 12.16 554.22 

a—Listed as Endangered under the Endangered Species Act (ESA) 

b—The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. 

c—Level A harassment exposures were initially estimated for this species, but due to the mitigation measures that Ocean Wind will be required to abide by, no Level A harassment take is expected, nor authorized. Instead, any exposure estimates that predicted Level A harassment 

were added to the authorized Level B harassment take. 

d—The calculated Level A exposures are likely an overestimate as the modeled 10-dB sound reduction from the noise mitigation systems 

does not take into account that the reduction is greater at higher frequencies, which are best heard by harbor porpoises. 

e—Exposure modeling for blue whales and Atlantic spotted dolphins was not conducted because the impacts on the species approached zero 

due to the low density estimates. Because of this, values for these species have been excluded from the quantitative analyses. 


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TABLE 18—MODELED POTENTIAL LEVEL A HARASSMENT AND LEVEL B HARASSMENT EXPOSURES (ASSUMING 10–dB OF

SOUND ATTENUATION) DUE TO IMPACT PILE DRIVING OF OSS FOUNDATIONS (ASSUMING THREE JACKETS WITH 48 

PIN PILES) OVER 5 YEARS

Marine mammal species Population 

estimate 

Level A 

harassment 

(SELcum) 

Level B 

harassment 

(160 dBrms) 

North Atlantic right whale a .......................................................................................................... 338 c 0.10 0.75 

Blue whale a ................................................................................................................................. b Unknown e n/a e n/a 

Fin whale a ................................................................................................................................... 6,802 0.48 1.20 

Humpback whale ......................................................................................................................... 1,396 0.54 3.63 

Minke whale ................................................................................................................................. 21,968 2.29 15.81 

Sei whale a ................................................................................................................................... 6,292 0.14 0.45 

Sperm whale a .............................................................................................................................. 4,349 0 0 

Atlantic spotted dolphin ............................................................................................................... 39,921 e n/a e n/a 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 16.20 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0 168.23 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 0 0 

Common dolphin .......................................................................................................................... 172,974 0 293.89 

Long-finned pilot whale ................................................................................................................ 39,215 0 0 

Short-finned pilot whale ............................................................................................................... 28,924 0 0 

Risso’s dolphin ............................................................................................................................. 35,215 0 1.79 

Harbor porpoise d ......................................................................................................................... 95,543 16.60 70.97 

Gray seal ..................................................................................................................................... 27,300 0.32 38.59 

Harbor seal .................................................................................................................................. 61,336 0.43 99.14 

a—Listed as Endangered under the Endangered Species Act (ESA) 

b—The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. 

c—Level A harassment exposures were initially estimated for this species, but due to the mitigation measures that Ocean Wind will be required to abide by, no Level A harassment take is expected, nor authorized. Instead, any exposure estimates that predicted Level A harassment 

were added to the authorized Level B harassment take. 

d—The calculated Level A harassment exposures are likely an overestimate as the modeled 10-dB sound reduction from the noise mitigation 

systems does not take into account that the reduction is greater at higher frequencies, which are best heard by harbor porpoises. 

e—Exposure modeling for blue whales and Atlantic spotted dolphins was not conducted because the impacts on the species approached zero 

due to the low density estimates. Because of this, values for these species have been excluded from the quantitative analyses. 

Based on the exposure estimates for 

impact pile driving activities related to 

WTGs and OSS installation (monopile 

foundations and jacket foundations with 

pin piles), the authorized take is shown 

below in Tables 19 and 20. To 

determine the authorized take numbers, 

the calculated exposures were rounded 

to the next whole number, except where 

explanations have been provided to 

predict zero takes or to round up to 

average group size (see footnotes). 

We note here that based on a 

comment from the Marine Mammal 

Commission, NMFS, in consultation 

with JASCO and Ocean Wind, has opted 

to allocate 10 percent of the authorized 

take of the offshore stock of bottlenose 

dolphins to the coastal stock during 

foundation installation. This does not 

change the total take numbers presented 

for these two stocks in Tables 33 and 34 

at the end of the Estimated Take section. 

No takes of Level A harassment has 

been authorized for either of these 

stocks. 

TABLE 19—AUTHORIZED TAKE FROM LEVEL A HARASSMENT AND LEVEL B HARASSMENT RESULTING FROM IMPACT PILE

DRIVING ASSOCIATED WITH THE WTG 8/11-m MONOPILE FOUNDATIONS (ASSUMING 98 TOTAL) OVER 5 YEARS

Marine mammal species Population 

estimate 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

North Atlantic right whale a .......................................................................................................... 338 b 0 4 

Blue whale a ................................................................................................................................. Unknown 0 c 4 

Fin whale a ................................................................................................................................... 6,802 4 8 

Humpback whale ......................................................................................................................... 1,396 5 14 

Minke whale ................................................................................................................................. 21,968 19 53 

Sei whale a ................................................................................................................................... 6,292 1 d 2 

Sperm whale a .............................................................................................................................. 4,349 0 d 3 

Atlantic spotted dolphin ............................................................................................................... 39,921 0 d 45 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 72 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0 e 842 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 0 e 94 

Common dolphin .......................................................................................................................... 172,974 0 1,230 

Long-finned pilot whale ................................................................................................................ 39,215 0 d 10 

Short-finned pilot whale ............................................................................................................... 28,924 0 d 10 

Risso’s dolphin ............................................................................................................................. 35,215 0 d 30 

Harbor porpoise ........................................................................................................................... 95,543 52 234 

Gray seal ..................................................................................................................................... 27,300 4 198 

Harbor seal .................................................................................................................................. 61,336 13 555 

a—Listed as Endangered under the Endangered Species Act (ESA). 


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b—JASCO’s modeling estimated 0.90 Level A harassment exposures for North Atlantic right whales, but due to mitigation measures (see the 

Mitigation section), no Level A harassment takes are expected or authorized. 

c—No Level B harassment exposures were estimated for blue whales, but up to four Level B harassment takes, which were not calculated 

through density estimates, are proposed in the event that four individuals approach the WTG foundation during installations. 

d—The authorized take for sei whales (Kenney and Vigness-Raposa, 2010), sperm whales (Barkaszi and Kelly, 2019), Atlantic spotted dolphins (Kenney and Vigness-Raposa, 2010), both species of pilot whales (Kenney and Vigness-Raposa, 2010), and Risso’s dolphins (Barkaszi 

and Kelly, 2019) was adjusted based on mean group size. 

e—Based on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to allocate 10 percent 

of the authorized take by Level B harassment of the offshore stock of bottlenose dolphins to the coastal stock during WTG installation. No takes 

of Level A harassment has been authorized for either of these stocks. 

TABLE 20—AUTHORIZED LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKE RESULTING FROM IMPACT PILE

DRIVING ASSOCIATED WITH OSS 2.44-m JACKET FOUNDATION USING PIN PILES (48 TOTAL PIN PILES) OVER 5 YEARS

Marine mammal species Population 

estimate 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

North Atlantic right whale a .......................................................................................................... 338 0 1 

Blue whale a ................................................................................................................................. Unknown 0 0 

Fin whale a ................................................................................................................................... 6,802 0 2 

Humpback whale ......................................................................................................................... 1,396 c 2 c 46 

Minke whale ................................................................................................................................. 21,968 3 16 

Sei whale a ................................................................................................................................... 6,292 0 0 

Sperm whale a .............................................................................................................................. 4,349 0 b 3 

Atlantic spotted dolphin ............................................................................................................... 39,921 0 b 45 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 17 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0 169 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 0 0 

Common dolphin .......................................................................................................................... 172,974 0 294 

Risso’s dolphin ............................................................................................................................. 35,215 0 b 30 

Long-finned pilot whale ................................................................................................................ 39,215 0 b 10 

Short-finned pilot whale ............................................................................................................... 28,924 0 b 10 

Harbor porpoise ........................................................................................................................... 95,543 17 71 

Gray seal ..................................................................................................................................... 27,300 0 39 

Harbor seal .................................................................................................................................. 61,336 0 100 

a—Listed as Endangered under the Endangered Species Act (ESA). 

b—The authorized take for sei whales (Kenney and Vigness-Raposa, 2010), sperm whales (Barkaszi and Kelly, 2019), Atlantic spotted dolphins (Kenney and Vigness-Raposa, 2010), both species of pilot whales (Kenney and Vigness-Raposa, 2010), and Risso’s dolphins (Barkaszi 

and Kelly, 2019) was adjusted based on mean group size. 

c—Based on a comment received from the Marine Mammal Commission, NMFS has increased the authorized take by Level A harassment for

OSS impact installation from one to two (representing a single group size of 1.6 animals based on AMAPPS data). For take by Level B harassment, NMFS has incorporated the Commission’s suggestion of increasing the take to 46 instances, based on the group size seen in a previous 

monitoring report. 

Temporary Cofferdam and Goal Post 

Installation and Removal 

Similar to the impact pile driving 

source level modeling, vibratory driving 

sound source characteristics were 

generated using the GRLWEAP 2010 

wave equation model (Pile Dynamics, 

Inc., 2010). Installation and removal of 

the cofferdams were modeled from a 

single location that was deemed 

representative of the two potential cable 

routes. The radiated sound waves were 

modeled as discrete point sources over 

the full length of the pile in the water. 

Ocean Wind did not propose to employ 

noise mitigation during vibratory piling 

and NMFS is not requiring it in the 

Mitigation section; therefore, no noise 

abatement was applied or assumed. 

To estimate the sound field to 

harassment isopleths generated during 

installation and removal of cofferdams 

and goal posts during vibratory pile 

driving, a practical spreading loss model 

was used. For cofferdams, a source level 

of 165 dB re 1 mPa was used (JASCO, 

2021). A lower source level (162 dB re 

1 mPa) was used for the 20-inch (50.8 

centimeter (cm)) goal posts (based upon 

18-inch (45.7 cm) piles from the Naval 

Facilities Engineering Systems 

Command (NAVFAC) mid-Atlantic 

(2019), as cited in 87 FR 78072). A 

transmission loss coefficient of 15logR 

(cylindrical spreading) was assumed for 

both cofferdams and goal posts. Ocean 

Wind did not separately analyze the 

removal of the cofferdams and goal 

posts using a vibratory extractor but has 

assumed that the removal would be 

acoustically comparable to the 

installation. Based on available piledriving data presented from Caltrans 

(2020), this is a conservative 

assumption. 

Given the short duration of the 

activity and shallow, near coast 

location, animat exposure modeling was 

not conducted for cofferdams and goal 

posts installation and removal to 

determine potential exposures from 

vibratory pile driving. Rather, the 

modeled acoustic range distances to 

isopleths corresponding to the relatively 

small Level A harassment and Level B 

harassment threshold values were used 

to calculate the area around the 

cofferdams and goal posts predicted to 

be ensonified daily to levels that exceed 

the thresholds, or the Ensonified Area. 

The Ensonified Area is calculated as the 

following: 

Ensonified Area = pr2, 

Where r is the linear acoustic range distance 

from the source to the isopleth to Level 

A harassment or Level B harassment 

thresholds. 

The Level A harassment and Level B 

harassment threshold distances were 

mapped in a geospatial information 

system software (GIS) to remove any 

areas that overlapped land masses or 

areas where water was blocked by land 

as these areas would not be ensonified 

during cofferdams and goal posts 

installation and removal. These results 

are shown in Table 21. 


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TABLE 21—AREAS CALCULATED FOR THE MAXIMUM LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLD

DISTANCES FOR VIBRATORY INSTALLATION AND REMOVAL OF COFFERDAMS AND GOAL POSTS

Cofferdam and goal post location 

Area of level A harassment zone (km2) Area of level B 

harassment 

zone (km2) Low-frequency 

cetaceans 

Mid-frequency 

cetaceans 

High-frequency 

cetaceans Phocids 

Temporary Goal Posts 

IBSP Atlantic HDD ......................................... <0.001 <0.001 <0.001 <0.0001 66.18 

BL England HDD ........................................... <0.001 <0.001 <0.001 <0.0001 65.05 

Temporary Cofferdams 

Oyster Creek HDD ......................................... 0.024 <0.0001 0.052 0.009 77.01 

IBSP Barnegat Bay HDD ............................... 0.024 <0.0001 0.052 0.009 76.70 

Animal movement and exposure 

modeling was not performed by JASCO 

to determine potential exposures from 

vibratory pile driving. Rather, the 

average monthly density value from 

October through May for each marine 

mammal species (refer back to Table 8) 

were then multiplied by the estimated 

Level A harassment and Level B 

harassment areas (in km2) and the 

expected durations for each component 

of the cofferdam and goal post process 

(i.e., installation and removal). Finally, 

the resulting value was multiplied by 

the number of activity days. It was 

conservatively estimated that temporary 

cofferdams would require 4 days to 

install and remove (2 days for each 

activity). For goal posts, it was 

estimated that installation and removal 

would occur over 6 days, assuming 3 

days for installation and 3 days for 

removal at a rate of 1 hour daily (30 

minutes for each pile at a rate of two 

piles per day). 

As previously stated, Ocean Wind 

anticipates that cofferdam and goal post 

installation and removal would occur 

only during Year 1 of the construction 

activities, specifically from October 

through March, although a small 

number of cofferdams and goal post 

removals could occur in Year 2 during 

April or May, but it is not expected. 


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TABLE 22—ESTIMATED

LEVEL B HARASSMENT

EXPOSURES BY

MONTH

FROM

VIBRATORY

PILE INSTALLATION AND

REMOVAL

RELATED TO

COFFERDAMS (AND

GOAL

POSTS IN

PARENTHESIS) 

Marine mammal 

species 

Population 

estimate January February March April May October November December Average Exposures c

North Atlantic 

right whale a .. 338 2.08 

(1.60) 

1.71 

(1.31) 

0.97 

(0.74) 

0.55 

(0.42) 

0.13 

(0.10) 

0.09 

(0.07) 

0.41 

(0.31) 

1.20 

(0.92) 

0.89 

(0.68) 

Blue whale a ..... b Unknown 0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

0.02 

(0.02) 

Fin whale a ....... 6,802 2.21 

(1.69) 

0.65 

(0.50) 

1.30 

(1.00) 

1.64 

(1.26) 

0.57 

(0.44) 

0.54 

(0.41) 

0.55 

(0.42) 

2.56 

(1.96) 

1.25 

(0.96) 

Humpback 

whale ............ 1,396 2.25 

(1.73) 

1.51 

(1.16) 

2.28 

(1.75) 

1.56 

(1.20) 

0.83 

(0.64) 

0.90 

(0.69) 

2.13 

(1.6)3 

4.26 

(3.27) 

1.96 

(1.51) 

Minke whale ..... 21,968 0.42 

(0.32) 

0.48 

(0.37) 

0.68 

(0.52) 

9.40 

(7.21) 

7.42 

(5.69) 

0.94 

(0.72) 

0.12 

(0.09) 

0.28 

(0.21) 

2.47 

(1.89) 

Sei whale a ....... 6,292 0.40 

(0.31) 

0.26 

(0.20) 

0.48 

(0.37) 

0.61 

(0.47) 

0.29 

(0.22) 

0.09 

(0.07) 

0.44 

(0.34) 

0.91 

(0.70) 

0.44 

(0.33) 

Sperm whale a .. 4,349 0.03 

(0.02) 

0.04 

(0.03) 

0.02 

(0.01) 

0.06 

(0.04) 

0.08 

(0.06) 

0.00 

(0.00) 

0.15 

(0.12) 

0.09 

(0.07) 

0.06 

(0.04) 

Atlantic spotted 

dolphin .......... 39,921 n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

n/a 

(n/a) 

Atlantic whitesided dolphin 93,233 1.49 

(1.14) 

0.96 

(0.73) 

1.47 

(1.12) 

3.84 

(2.95) 

2.11 

(1.62) 

1.91 

(1.47) 

4.06 

(3.11) 

3.76 

(2.88) 

2.45 

(1.88) 

Bottlenose dolphin (offshore 

stock) ............ 62,851 120.06 

(92.10) 

38.12 

(29.24) 

60.99 

(46.79) 

260.70 

(199.98) 

653.27 

(501.10) 

1,019.85 

(782.31) 

951.596 

(729.94) 

670.22 

(514.11) 

471.85 

(361.94) 

Bottlenose dolphin (coastal 

stock) ............ 6,639 161.51 

(123.89) 

61.44 

(47.13) 

137.20 

(105.24) 

696.39 

(534.19) 

1,745.23 

(1,338.72) 

2,378.69 

(1,824.63) 

1,988.58 

(1,525.39) 

1,076.10 

(825.45) 

1,030.64 

(790.58) 

Common dolphin .............. 172,974 7.05 

(5.41) 

3.05 

(2.34) 

5.43 

(4.17) 

13.05 

(10.01) 

8.91 

(6.84) 

6.24 

(4.79) 

36.20 

(27.77) 

24.03 

(18.43) 

12.99 

(9.97) 

Long-finned 

pilot whale .... 39,215 0.1 

(0.0) 

0.01 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

0.1 

(0.0) 

Short-finned 

pilot whale .... 28,924 0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

0.0 

(0.0) 

Risso’s dolphin 35,215 0.01 

(0.01) 

0.00 

(0.00) 

0.00 

(0.00) 

0.03 

(0.02) 

0.02 

(0.02) 

0.02 

(0.01) 

0.11 

(0.09) 

0.21 

(0.16) 

0.05 

(0.04) 

Harbor porpoise 95,543 39.03 

(29.94) 

34.32 

(26.33) 

39.17 

(30.04) 

51.95 

(39.85) 

10.28 

(7.89) 

0.18 

(0.14) 

0.69 

(0.53) 

41.18 

(31.59) 

27.10 

(20.79) 

Gray seal ......... 27,300 102.96 

(78.98) 

73.31 

(56.24) 

81.20 

(62.29) 

131.83 

(101.12) 

84.76 

(65.02) 

126.98 

(97.40) 

182.25 

(139.80) 

131.44 

(100.83) 

114.34 

(87.71) 

Harbor seal ...... 61,336 287.77 

(220.74) 

294.92 

(157.19) 

226.96 

(174.09) 

368.48 

(282.65) 

236.92 

(181.73) 

354.92 

(272.25) 

509.40 

(390.75) 

367.39 

(281.82) 

319.59 

(245.15) 

Note: The values for goal posts are presented in parenthesis. a—Listed as Endangered under the Endangered Species Act (ESA). b—The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our analysis. c—The average exposure values were calculated using the October—May columns. 


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For Level A harassment from goal 

post installation, the monthly exposures 

were less than 0.01 for all species (see 

Table 6–9 in the Cofferdam Change 

Memo). For cofferdams, the Level A 

harassment was less than 0.01 for all 

species except harbor porpoise and 

harbor seals, which had few monthly 

totals that were greater than 0.01, but 

were always less than 0.04 (see Table 6– 

9 in the Revised Density and Take 

Estimate Memo). For the Level B 

harassment for cofferdams and goal 

posts, this yielded the exposure 

estimates found in Table 22. Because of 

this, Ocean Wind anticipates and NMFS 

has only authorized Level B harassment 

from vibratory installation and removal 

of the cofferdams and goal posts. 

However, at request of Ocean Wind, 

some Level A harassment takes of the 

coastal stock of bottlenose dolphins and 

both species of phocids have been 

authorized given the coastal location 

that these activities. 

From the exposures calculated shown 

in Table 22, Ocean Wind utilized the 

average monthly value from October 

through May in their take request, 

which are shown in Table 23. For some 

species, calculated Level B harassment 

exposures were zero or very low, but 

Ocean Wind requested take of an 

average group size and NMFS concurred 

this was appropriate for authorization 

given the species potential occurrence 

in the area. 

TABLE 23—AUTHORIZED LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKE RESULTING FROM VIBRATORY PILE

DRIVING ASSOCIATED WITH THE INSTALLATION AND REMOVAL OF TEMPORARY COFFERDAMS AND GOAL POSTS OVER

5 YEARS

Marine mammal species Population 

estimate 

Authorized 

level A 

harassment 

Authorized 

level B 

harassment 

North Atlantic right whale a .......................................................................................................... 338 0 1 

Blue whale a ................................................................................................................................. Unknown 0 0 

Fin whale a ................................................................................................................................... 6,802 0 1 

Humpback whale ......................................................................................................................... 1,396 0 2 

Minke whale ................................................................................................................................. 21,968 0 2 

Sei whale a ................................................................................................................................... 6,292 0 1 

Sperm whale a .............................................................................................................................. 4,349 0 0 

Atlantic spotted dolphin ............................................................................................................... 39,921 0 b 45 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 g 12 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0 362 

Bottlenose dolphin (coastal stock)f ............................................................................................. 6,639 c 11 791 

Common dolphin .......................................................................................................................... 172,974 0 g 30 

Long-finned pilot whale ................................................................................................................ 39,215 0 d 10 

Short-finned pilot whale ............................................................................................................... 28,924 0 d 10 

Risso’s dolphin ............................................................................................................................. 35,215 0 d 30 

Harbor porpoise ........................................................................................................................... 95,543 0 21 

Gray seal ..................................................................................................................................... 27,300 e 28 88 

Harbor seal .................................................................................................................................. 61,336 e 28 246 

a—Listed as Endangered under the Endangered Species Act (ESA). 

b —No Level B harassment exposures were estimated for Atlantic spotted dolphins, but NMFS has authorized a group size estimate of up to 

45 Level B harassment takes. c —No Level A harassment exposures were estimated for bottlenose dolphins of the coastal stock, but NMFS has authorized a group size estimate of up to 11 Level A harassment takes. d—Authorized takes by Level B harassment for pilot whales (short-finned and long-finned; Kenney and Vigness-Raposa, 2010) and Risso’s 

dolphins (Barkaszi and Kelly, 2019) were adjusted to account for an average pod size. e—No Level A harassment exposures were estimated for gray seals and harbor seals, but 28 Level A harassment takes have been authorized 

in the event up to 2 animals are taken during either removal or installation of cofferdam and goal posts due to the nearshore location of the 

cofferdams and goal posts and seal haul outs. f

—The estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an overestimate as this stock has demonstrated 

a preference for coastal environments as opposed to estuarine (Toth et al., 2011). g—Based on a comment from the Marine Mammal Commission, NMFS has increased the take of common dolphins and Atlantic white-sided 

dolphins by a single group size using data from AMAPPS. 

UXO/MEC Detonation 

To assess the impacts from UXO/MEC 

detonations, JASCO conducted acoustic 

modeling based on previous underwater 

acoustic assessment work that was 

performed jointly between NMFS and 

the United States Navy. JASCO 

evaluated the effects thresholds (for 

TTS, PTS, non-auditory injury, and 

mortality) based on the appropriate 

metrics to use as indicators of 

disturbance and injury: (1) peak 

pressure level; (2) sound exposure level 

(SEL); and (3) acoustic impulse. Charge 

weights of 2.3 kg (5.1 pounds (lbs)), 9.1 

kg (20.1 lbs), 45.5 kg (100.3 lbs), 227 kg 

(500 lbs), and 454 kg (1,000.9 lbs), 

which is the largest charge the Navy 

considers for the purposes of its 

analyses (see the Description of the 

Specified Activities section in the 

proposed rule), were modeled to 

determine the ranges to mortality, 

gastrointestinal injury, lung injury, PTS, 

and TTS thresholds. These charge 

weights were modeled at four different 

locations off Massachusetts, consisting 

of different depths (12 m (Site S1), 20 

m (Site S2), 30 m (Site S3), and 45 m 

(Site S4)). The sites were deemed to be 

representative of both the export cable 

route and the Lease Area. 

Here, we present distances to PTS and 

TTS thresholds for all UXO/MEC charge 

weights. In the proposed rule, we only 

described the distances to thresholds for 

the largest E12 charge weight. However, 

as already described, Ocean Wind will 

be able to identify and mitigate at the 

relevant distances for each specific 

charge weight, so we have incorporated 

the maximum values for each size 

herein. Due to the implementation of 

mitigation and monitoring measures, the 

potential for mortality and non-auditory 

injury is low and Ocean Wind did not 

request, and we are not authorizing take 

by mortality or non-auditory injury. For 

this reason we are not presenting all 


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modeling results here; however, they 

can be found in Appendix C of the 

application. 

UXOs/MECs were modeled at the 

following locations, as they were 

determined to be representative of the 

environment in the Ocean Wind Project 

Area: 

• Shallow water ECR: Site S1; In the 

channel within Narragansett Bay (12 m 

depth); 

• Shallow water ECR: Site S2; 

Intermediate waters outside of 

Narragansett Bay (20 m depth); 

• Shallow water Lease Area: Site S3; 

Shallower waters in the southern 

portion of the Hazard Zone 2 area (30 

m depth); 

• Deeper water Lease Area: Site S4; 

Deeper waters in northern portion of the 

Hazard Zone 2 area (45 m depth). 

In their UXO/MEC modeling report 

(Appendix C of Ocean Wind’s ITA 

application), JASCO notes that although 

the sample sites were located offshore of 

Massachusetts, the chosen sites share 

similar depths, sea surface, and seabed 

conditions as the Project Area where the 

Project would be developed and making 

it an ideal as a proxy. 

Based on the depths within the ECR 

Area, Site S1 (12 m) was chosen as the 

most representative depth to assess 

UXO/MEC detonations within the 

export cable route corridor. Sites S2, S3, 

and S4 (20 m, 30 m, and 45 m, 

respectively) are applicable to the Lease 

Area (i.e., location of the WTGs and 

OSSs). The SEL-based (R95≠) isopleths 

for Level A harassment (PTS) and Level 

B harassment (TTS) were calculated 

from the horizontal distances shown in 

Tables 24 and 25. For all species, the 

distance to the SEL thresholds exceeded 

that for the peak thresholds. Model 

results for all sites and all charge 

weights can be found in Appendix C of 

Ocean Wind’s application. JASCO has 

also presented the results for both 

mitigated and unmitigated scenarios in 

the ITA application; however, Ocean 

Wind has committed to the use of a 

noise mitigation system during all 

detonations, and plans to use abatement 

systems capable of reducing noise by 10 

dB. As a result, the August 2022 Revised 

Density and Take Estimate Memo 

carried forward only the mitigated 

UXO/MEC scenario and only the 

attenuated results, as presented in 

Tables 24 and 25, were carried forward 

into the exposure and take estimation. 

Additional information can be found in 

JASCO’s UXO/MEC report and the 

Revised Density and Take Estimate 

Memo on NMFS’ website (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility). 

NMFS notes that the more detailed 

results for the mortality and nonauditory injury analysis to marine 

mammals for onset gastrointestinal 

injury, onset lung injury, and onset of 

mortality can be found in Appendix C 

of the ITA application, which can be 

found on NMFS’ website. NMFS 

concurs with Ocean Wind’s analysis 

and does not expect or authorize any 

non-auditory injury, serious injury, or 

mortality of marine mammals from 

UXO/MEC detonation. The modeled 

distances to the mortality threshold for 

all UXO/MECs sizes for all animal 

masses are small (i.e., 5–553 m; see 

Table 38 in Appendix C of Ocean 

Wind’s application), as compared to the 

distance/area that can be effectively 

monitored. The modeled distances to 

non-auditory injury thresholds range 

from 5–658 m (see Tables 30 and 34 in 

Appendix C of the application). Ocean 

Wind is required to conduct extensive 

monitoring using both PSOs and PAM 

operators and clear an area of marine 

mammals prior to detonating any UXO/ 

MEC. Given that Ocean Wind will be 

employing multiple platforms to 

visually monitor marine mammals as 

well as passive acoustic monitoring, it is 

reasonable to assume that marine 

mammals would be reliably detected 

within approximately 660 m of the 

UXO/MEC being detonated and 

mortality or non-auditory injury is 

considered not likely to occur. 


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TABLE 24—SEL-BASED

R95% PTS-ONSET

RANGES, IN

METERS, FROM

ALL

SITE

MODELED

DURING UXO/MEC DETONATION BY

CHARGE

WEIGHT, ASSUMING

10-dB SOUND

ATTENUATION

Marine mammal 

hearing group 

2.3 kg (5.1 lbs) 9.1 kg (20.1 lbs) 45.5 kg (100.3 lbs) 227 kg (500 lbs) 454 kg (1,000.9 lbs) 

Rmax R95% Rmax R95% Rmax R95% Rmax R95% Rmax R95%

LFC .................. 632 552 1,230 982 2,010 1,730 3,370 2,970 4,270 3,780 MFC ................. <50 <50 79 75 175 156 419 337 535 461 HFC ................. 2,100 1,820 3,020 2,590 4,400 3,900 6,130 5,400 6,960 6,200 PP .................... 192 182 413 357 822 690 1,410 1,220 1,830 1,600 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds 

TABLE 25—SEL-BASED

R95% TTS-ONSET

RANGES, IN

METERS, FROM

ALL

SITE

MODELED

DURING UXO/MEC DETONATION BY

CHARGE

WEIGHT, ASSUMING

10-dB SOUND

ATTENUATION

Marine mammal 

hearing group 

2.3 kg (5.1 lbs) 9.1 kg (20.1 lbs) 45.5 kg (100.3 lbs) 227 kg (500 lbs) 454 kg (1,000.9 lbs) 

Rmax R95% Rmax R95% Rmax R95% Rmax R95% Rmax R95%

LFC .................. 3,140 2,820 5,230 4,680 8,160 7,490 11,700 10,500 13,500 11,900 MFC ................. 535 453 910 773 1,520 1,240 2,400 2,120 2,930 2,550 HFC ................. 6,920 6,160 8,970 8,000 11,300 10,300 14,600 12,900 15,600 14,100 PP .................... 1,730 1,470 2,710 2,350 4,340 3,820 6,640 5,980 7,820 7,020 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP = phocid pinnipeds 


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JASCO’s take estimate analysis 

assumed that all 10 of the UXOs/MECs 

would be 454 kg in weight. Although 

Ocean Wind does not expect that all 

UXOs/MECs will consist of this charge 

weight, they assumed as much to be 

conservative in estimating take. The 

take estimate calculations assume that 

the ten 454 kg charges would be split 

between the different depths (20 m to 45 

m), as these were considered 

representative for the Project Area. 

To calculate the potential marine 

mammal exposures from any UXO/MEC 

detonations, the horizontal distances 

from Tables 24 and 25 were multiplied 

by the highest monthly species density 

in the Lease Area (based on the Revised 

Density and Take Estimate Memo) for 

each of the 20-m to 45-m representative 

depths and by the highest monthly 

species density in the export cable route 

for the 12-m depth (see Table 9 for the 

densities used and Table 6–Y NEW from 

the Revised Density and Take Estimate 

Memo for all of the available densities 

from May through October). The 

resulting value from the areas 

multiplied by the respective species 

densities were then multiplied by the 

number of UXOs/MECs estimated at 

each of the depths (2 UXOs/MECs at 12 

m, 3 UXOs/MECs at 20 m, 3 UXOs/ 

MECs at 30 m, and 2 UXOs/MECs at 40 

m), for a total of 10 predicted UXOs/ 

MECs. Ocean Wind has committed not 

to conduct more than one UXO/MEC 

detonation on any given day. 

Level A harassment exposures 

resulting from UXO/MEC detonations 

are considered unlikely, but possible. 

To reduce impacts, a noise abatement 

system (likely a double big bubble 

curtain or similar device) capable of 

achieving 10 dB of sound attenuation 

would be implemented. This level of 

sound reduction is considered 

achievable and reasonable given work 

being done in European waters 

(Bellmann et al., 2020; Bellmann and 

Betke, 2021). 

The estimated maximum PTS and 

TTS exposures assuming 10 dB of sound 

attenuation are presented in Table 26. 

These results are found in Appendix C, 

Table 29, of Ocean Wind’s ITA 

application (Ocean Wind, 2022b). As 

indicated previously, where there is no 

more than one detonation per day, the 

TTS threshold is expected to also 

appropriately represent the level above 

which any behavioral disturbance might 

occur; so the Level B harassment 

exposures noted below could include 

TTS or behavioral disturbance. 

TABLE 26—ESTIMATED POTENTIAL MAXIMUM PTS AND TTS EXPOSURES OF MARINE MAMMALS RESULTING FROM THE

POSSIBLE DETONATIONS OF UP TO 10 UXOS/MECS, ASSUMING 10-dB OF SOUND ATTENUATION

Marine mammal species Population 

estimate 

Level A 

harassment 

(PTS SEL) 

Level B 

harassment 

(TTS SEL) 

North Atlantic right whale a c ......................................................................................................... 338 0.03 0.35 

Blue whale a ................................................................................................................................. b Unknown <0.01 0.04 

Fin whale a ................................................................................................................................... 6,802 0.28 2.87 

Humpback whale ......................................................................................................................... 1,396 0.33 3.41 

Minke whale ................................................................................................................................. 21,968 2.53 26.42 

Sei whale a ................................................................................................................................... 6,292 0.08 0.87 

Sperm whale a .............................................................................................................................. 4,349 <0.01 0.01 

Atlantic spotted dolphin ............................................................................................................... 39,921 n/a n/a 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0.03 1.05 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 0.68 24.36 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 3.84 137.31 

Common dolphin .......................................................................................................................... 172,974 0.13 4.65 

Long-finned pilot whale ................................................................................................................ 28,924 <0.01 0.02 

Short-finned pilot whale ............................................................................................................... 39,215 <0.01 0.02 

Risso’s dolphin ............................................................................................................................. 35,215 <0.01 0.04 

Harbor porpoise ........................................................................................................................... 95,543 9.49 46.50 

Gray seal ..................................................................................................................................... 27,300 2.28 50.98 

Harbor seal .................................................................................................................................. 61,336 6.39 142.49 

a—Listed as Endangered under the Endangered Species Act (ESA). 

b—The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. c—Level A harassment exposures were estimated for this species, but due to mitigation measures outlined in Section 11, no Level A harassment takes are expected or have been authorized. See Section 6.2.3 of the ITA application for more information. 

Table 27 presents the attenuated (10- 

dB) authorized take that exceeds the 

PTS and TTS thresholds. Although the 

original ITA application described and 

analyzed the unattenuated estimates 

given uncertainty with exact mitigation 

during UXO/MEC detonations, given the 

commitment by Ocean Wind to mitigate 

the UXO/MEC detonations, NMFS 

concurs that it is appropriate to carry 

forward the take estimates from the 

mitigated (10-dB sound attenuation) 

scenario that are found in the Revised 

Density and Take Estimate Memo 

received in August 2022 (refer to Table 

6–20 in the memo). 

TABLE 27—AUTHORIZED LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKES RESULTING FROM THE DETONATION

OF UP TO 10 UXOS, ASSUMING 10-dB OF SOUND ATTENUATION, OVER 5 YEARS

Marine mammal species Population 

estimate 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

North Atlantic right whale a .......................................................................................................... 338 0 1 

Blue whale a ................................................................................................................................. d Unknown 0 0 

Fin whale a ................................................................................................................................... 6,802 0 3 


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TABLE 27—AUTHORIZED LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKES RESULTING FROM THE DETONATION

OF UP TO 10 UXOS, ASSUMING 10-dB OF SOUND ATTENUATION, OVER 5 YEARS—Continued 

Marine mammal species Population 

estimate 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

Humpback whale ......................................................................................................................... 1,396 0 4 

Minke whale ................................................................................................................................. 21,968 b e 2 27 

Sei whale a ................................................................................................................................... 6,292 0 1 

Sperm whale a .............................................................................................................................. 4,349 0 c 3 

Atlantic spotted dolphin ............................................................................................................... 39,921 0 c 45 

Atlantic white-sided dolphin ......................................................................................................... 93,233 0 2 

Bottlenose dolphin (offshore stock) ............................................................................................. 62,851 b e 11 25 

Bottlenose dolphin (coastal stock) ............................................................................................... 6,639 b e 11 138 

Common dolphin .......................................................................................................................... 172,974 0 5 

Long-finned pilot whale ................................................................................................................ 39,215 0 c 10 

Short-finned pilot whale ............................................................................................................... 28,924 0 c 10 

Risso’s dolphin ............................................................................................................................. 35,215 0 c 30 

Harbor porpoise ........................................................................................................................... 95,543 10 47 

Gray seal ..................................................................................................................................... 27,300 3 51 

Harbor seal .................................................................................................................................. 61,336 7 143 

a—Listed as Endangered under the Endangered Species Act (ESA). 

b—A small amount of Level A harassment exposures were estimated based on the density calculations, but no Level A harassment take was 

requested for authorization due to the mitigation measures Ocean Wind would be required to implement. c—The authorized take for the sperm whale (Barkaszi and Kelly, 2019), the Atlantic spotted dolphin (Kenny and Vigness-Raposa, 2010), both 

pilot whale species (Kenny and Vigness-Raposa, 2010), and the Risso’s dolphins (Barkaszi and Kelly, 2019) were adjusted based on mean 

group size. d—The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. e—Based on a comment received by the Marine Mammal Commission during the public comment period, NMFS has increased the authorized 

take for minke whales, based on a single group size from the AMAPPS dataset, and bottlenose dolphins (both stocks) to a single group size 

using a group size data from Ocean Wind. 

While there would be no more than 

10 detonations of UXOs/MECs and these 

detonations are of very short duration 

(approximately 1 second), UXO/MEC 

detonations have a higher potential to 

cause mortality and injury than other 

Project activities and therefore have 

specific mitigation measures designed to 

minimize the likelihood of mortality 

and/or injury of marine mammals, 

including: (1) time of year/seasonal 

restrictions; (2) time of day restrictions; 

(3) use of PSOs to visually observe for 

North Atlantic right whales; (4) use of 

PAM to acoustically detect North 

Atlantic right whales; (5) 

implementation of clearance zones; (6) 

use of noise mitigation technology; and, 

(7) post-detonation monitoring visual 

and acoustic monitoring by PSOs and 

PAM operators. 

Due to mitigation measures that are 

required to be implemented during any 

UXO/MEC detonations, the likelihood 

of Level A harassment and some Level 

B harassment for some species was 

reduced. However, there is still 

potential for Level A harassment for 

some species, such as for harbor 

porpoises and both harbor and gray 

seals. 

HRG Surveys 

NMFS considers the data provided by 

Crocker and Fratantonio (2016) to 

represent the best available information 

on source levels associated with HRG 

equipment and, therefore, recommends 

that source levels provided by Crocker 

and Fratantonio (2016) be incorporated 

in the method described above to 

estimate ranges to the Level A 

harassment and Level B harassment 

isopleths. In cases when the source level 

for a specific type of HRG equipment is 

not provided in Crocker and Fratantonio 

(2016), NMFS recommends that either 

the source levels provided by the 

manufacturer be used, or, in instances 

where source levels provided by the 

manufacturer are unavailable or 

unreliable, a proxy from Crocker and 

Fratantonio (2016) be used instead. 

Ocean Wind utilized the following 

criteria for selecting the appropriate 

inputs into the NMFS User Spreadsheet 

Tool (NMFS, 2018): 

(1) For equipment that was measured 

in Crocker and Fratantonio (2016), the 

reported source level (SL) for the most 

likely operational parameters was 

selected. 

(2) For equipment not measured in 

Crocker and Fratantonio (2016), the best 

available manufacturer specifications 

were selected. Use of manufacturer 

specifications represent the absolute 

maximum output of any source and do 

not adequately represent the operational 

source. Therefore, they should be 

considered an overestimate of the sound 

propagation range for that equipment. 

(3) For equipment that was not 

measured in Crocker and Fratantonio 

(2016) and did not have sufficient 

manufacturer information, the closest 

proxy source measured in Crocker and 

Fratantonio (2016) was used. 

The Dura-spark measurements and 

specifications provided in Crocker and 

Fratantonio (2016) were used for all 

sparker systems proposed for the HRG 

surveys. These included variants of the 

Dura-spark sparker system and various 

configurations of the GeoMarine GeoSource sparker system. The data 

provided in Crocker and Fratantonio 

(2016) represent the most applicable 

data for similar sparker systems with 

comparable operating methods and 

settings when manufacturer or other 

reliable measurements are not available. 

Crocker and Fratantonio (2016) provide 

S-Boom measurements using two 

different power sources (CSP–D700 and 

CSP–N). The CSP–D700 power source 

was used in the 700-joules (J) 

measurements but not in the 1,000–J 

measurements. The CSP–N source was 

measured for both 700–J and 1,000–J 

operations but resulted in a lower 

source level; therefore, the single 

maximum source level value was used 

for both operational levels of the SBoom. 

Table 28 identifies all the 

representative survey equipment that 

operates below 180 kHz (i.e., at 

frequencies that are audible and have 

the potential to disturb marine 

mammals) that may be used in support 


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of planned survey activities, and are 

likely to be detected by marine 

mammals given the source level, 

frequency, and beamwidth of the 

equipment. The lowest frequency of the 

source was used when calculating the 

absorption coefficient. 

TABLE 28—SUMMARY OF REPRESENTATIVE HRG EQUIPMENT THAT MAY BE USED

Equipment type Representative HRG equipment Operating 

frequency 

SLrms

(dB re 1 

μPa m) 

SL0-pk

(dB re 1 

μPa m) 

Pulse 

duration 

(width) 

(millisecond) 

Repetition 

rate 

(Hz) 

Beamwidth 

(degrees) 

CF = Crocker and 

Fratantonio (2016) 

MAN = 

manufacturer 

Non-parametric shallow penetration SPBs (non-impulsive) 

Sub-bottom Profiler.ET 216 (2000DS or 3200 top unit) 2–16 

2–8 

195 - 20 6 24 MAN 

ET 424 .......................................... 4–24 176 - 3.4 2 71 CF 

ET 512 .......................................... 0.7–12 179 - 9 8 80 CF 

GeoPulse 5430A .......................... 2–17 196 - 50 10 55 MAN 

Teledyne Benthos Chirp III—TTV 

170.

7–2 197 - 60 15 100 MAN 

Medium penetration SBPs (impulsive) 

Sparker .............. AA, Dura-spark (400 tips, 500J) a 0.3–1.2 203 211 1.1 4 Omni CF 

AA, triple plate S-Boom (700– 

1,000J) b.

0.1–5 205 211 0.6 4 80 CF 

- = not applicable; ET = EdgeTech; J = joule; kHz = kilohertz; dB = decibels; SL = source level; UHD = ultra-high definition; AA = Applied Acoustics; rms = rootmean square; μPa = microPascal; re = referenced to; SPL = sound pressure level; PK = zero-to-peak pressure level; Omni = omnidirectional source. Notes: All source information that was used to calculate threshold isopleths are provided in Table 1. aThe Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey. These 

include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in Crocker and 

Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not available. b Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP–D700 and CSP–N). The CSP–D700 power source was 

used in the 700–J measurements but not in the 1,000–J measurements. The CSP–N source was measured for both 700–J and 1,000–J operations but resulted in a 

lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom. 

When the NMFS Technical Guidance 

(2016) was published, in recognition of 

the fact that ensonified area/volume 

could be more technically challenging 

to predict because of the duration 

component in the new thresholds, we 

developed a User Spreadsheet that 

includes tools to help predict a simple 

isopleth that can be used in conjunction 

with marine mammal density or 

occurrence to help predict takes. We 

note that because of some of the 

assumptions included in the methods 

used for these tools, we anticipate that 

isopleths produced are typically going 

to be overestimates of some degree, 

which may result in some degree of 

overestimation of Level A harassment. 

However, these tools offer the best way 

to predict appropriate isopleths when 

more sophisticated 3D modeling 

methods are not available, and NMFS 

continues to develop ways to 

quantitatively refine these tools, and 

will qualitatively address the output 

where appropriate. For mobile sources 

(such as the active acoustic sources 

proposed for use during Ocean Wind’s 

HRG surveys), the User Spreadsheet 

predicts the closest distance at which a 

stationary animal would not incur PTS 

if the sound source traveled by the 

animal in a straight line at a constant 

speed. JASCO modeled distances to 

Level A harassment isopleths for all 

types of HRG equipment and all marine 

mammal functional hearing groups 

using the NMFS User Spreadsheet and 

NMFS Technical Guidance (2018). 

For HRG surveys, in order to better 

consider the narrower and directional 

beams of the sources, NMFS has 

developed an additional tool for 

determining the sound pressure level 

(SPLrms) at the 160-dB isopleth for the 

purposes of estimating the extent of 

Level B harassment isopleths associated 

with HRG survey equipment (NMFS, 

2020). This methodology incorporates 

frequency-dependent absorption and 

some directionality to refine estimated 

ensonified zones. Ocean Wind used 

NMFS’ methodology with additional 

modifications to incorporate a seawater 

absorption formula and account for 

energy emitted outside of the primary 

beam of the source. For sources that 

operate with different beam widths, the 

maximum beam width was used (see 

Table 29). The lowest frequency of the 

source was used when calculating the 

absorption coefficient. 

TABLE 29—DISTANCE TO WEIGHTED LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLDS FOR EACH HRG 

SOUND SOURCE OR COMPARABLE SOUND SOURCE CATEGORY FOR EACH MARINE MAMMAL HEARING GROUP

Equipment type HRG sources 

Distance to Level A harassment threshold 

(m) 

Distance to 

Level 

B harassment 

threshold 

(m) 

Lowfrequency 

cetaceans 

SELCUM) 

Midfrequency 

cetaceans 

(SELCUM) 

Highfrequency 

cetaceans 

(SELCUM) 

Highfrequency 

cetaceans 

(SPL0-PK) 

Phocids 

(SELCUM) 

All 

(SPLrms) 

Non-impulsive, non-parametric, shallow SBP (CHIRPs) 

Sub-bottom Profilers (SBP; Compressed High Intensity Radiated Pulse (CHIRPs)).EdgeTech 216 ...............

EdgeTech 424 ...............

<1 

0 

<1 

0 

2.9 

0 

n/a 

n/a 

0 

0 

9 

4 

EdgeTech 512i .............. 0 0 <1 n/a 0 6 

GeoPulse 5430 ............. <1 <1 36.5 n/a <1 21 


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TABLE 29—DISTANCE TO WEIGHTED LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLDS FOR EACH HRG 

SOUND SOURCE OR COMPARABLE SOUND SOURCE CATEGORY FOR EACH MARINE MAMMAL HEARING GROUP—Continued 

Equipment type HRG sources 

Distance to Level A harassment threshold 

(m) 

Distance to 

Level 

B harassment 

threshold 

(m) 

Lowfrequency 

cetaceans 

SELCUM) 

Midfrequency 

cetaceans 

(SELCUM) 

Highfrequency 

cetaceans 

(SELCUM) 

Highfrequency 

cetaceans 

(SPL0-PK) 

Phocids 

(SELCUM) 

All 

(SPLrms) 

Teledyn Benthos Chirp 

III—TTV 170.

1.5 <1 16.9 n/a <1 48 

Impulsive, medium SBP (Boomers and Sparkers) 

Boomer .................................................................. AA Triple plate S-Boom 

(700/1,000 J).

<1 0 0 4.7 <1 34 

Sparker .................................................................. AA Dura-spark UHD 

(500 J/400 tip).

<1 0 0 2.8 <1 141 

AA Dura-spark UHD 

400+400.

<1 0 0 2.8 <1 141 

GeoMarine Geo-Source 

dual 400 tip sparker.

<1 0 0 2.8 <1 141 

Potential exposures of marine 

mammals to acoustic impacts from HRG 

survey activities were estimated by 

assuming an active survey distance of 

70 km per 24-hour period. This assumes 

the vessel would be traveling at a speed 

of 4 kn and only during periods where 

active acoustics were being used with 

frequency ranges less than 180 kHz. A 

vessel that would only operate during 

daylight hours is assumed to have an 

active survey distance of 35 km. 

To maintain a potential for 24-hour 

HRG surveys, the corresponding Level A 

harassment and Level B harassment 

areas were calculated for each source 

based on the threshold distances, 

assuming a 70-km operational period 

(Table 30). 

TABLE 30—CALCULATED AREAS (DISTANCES IN PARENTHESIS) ENCOMPASSING THE LEVEL A HARASSMENT AND LEVEL B 

HARASSMENT THRESHOLDS a FOR REPRESENTATIVE ACOUSTIC SOURCE

Acoustic source 

Level A harassment isopleth area (in km2) and distance 

(m) b

Level B 

Harassment 

isopleth 

area (in 

km2) and 

distance 

(m) Low- c

frequency 

cetaceans 

Midfrequency 

cetaceans 

Highfrequency 

cetaceans 

Phocids 

All Marine 

mammal 

hearing 

groups 

Non-impulsive, non-parametric, shallow SBP (CHIRPs) 

ET 216 CHIRP ....................................................................................... 0 (<1) 0 (<1) 0.4 (2.9) 0 (0) .............................................. 1.3 (9) 

ET 424 CHIRP ....................................................................................... 0 (0) 0 (0) 0 (0) 0 (0) .............................................. 0.6 (4) 

ET 512i CHIRP ...................................................................................... 0 (0) 0 (0) 0 (<1) 0 (<1) ............................................ 0.8 (21) 

GeoPulse 5430 ...................................................................................... 0 (<1) 0.1 (<1) 5.1 (36.5) 0 (<1) ............................................ 2.9 (21) 

TB CHIRP III .......................................................................................... 0.2 (1.5) 0 (<1) 2.4 (16.9) 0.1 (<1) ......................................... 6.7 (48) 

Impulsive, medium SBP (Boomers and Sparkers) 

AA Triple plate S-Boom (700–1,000 J) ................................................. 0.1 (<1) 0 (0) 0.7 (0) 0 (SELCUM: 0; SPL0-PK: 4.7) ......... 4.8 (34) 

AA, Dura-spark UHD ............................................................................. 0.1 (<1) 0 (0) 0.4 (0) 0 (SELCUM: 0; SPL0-PK: 2.8) ......... 19.8 (141) 

aThe Level A harassment and B harassment isopleths were calculated to comprehensively assess the potential impacts of the predicted source operations as required for the ITA application (Ocean Wind, 2022b). As described in the ITA application, minimal Level A harassment takes are expected and were included. bBased on maximum distances in Table 1–30 of the ITA application (Ocean Wind, 2022b). For consistency, the metric producing the largest distance to the Level A 

harassment thresholds (either cumulative sound exposure level or zero to peak sound pressure level) was used to calculate the areas for each hearing group. cBased on maximum distances in Table 1–30 of the ITA application calculated for Level B harassment root-mean-square sound pressure level thresholds (Ocean 

Wind, 2022b). 

Results of modeling using the 

methodology described above indicated 

that, of the HRG survey equipment 

planned for use by Ocean Wind that has 

the potential to result in Level B 

harassment of marine mammals, sound 

produced by the Applied Acoustics 

Dura-spark UHD sparkers and 

GeoMarine Geo-Source sparker would 

propagate furthest to the Level B 

harassment threshold (141 m; Table 30). 

For the purposes of the exposure 

analysis, it was conservatively assumed 

that sparkers would be the dominant 

acoustic source for all survey days. 

Thus, the distances to the isopleths 

corresponding to the threshold for Level 

B harassment for sparkers (141 m) was 

used as the basis of the take calculation 

for all marine mammals. 

The modeled distances to isopleths 

corresponding to the Level A 

harassment threshold were very small 

(<1 m (<3.3 ft)) for three of the four 

marine mammal functional hearing 

groups that may be impacted by the 

planned activities (i.e., low frequency 


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and mid frequency cetaceans, and 

phocids). The largest distance to the 

Level A harassment isopleth is 36.5 m 

(119.8 ft), associated with use of the 

GeoPulse 5430A. Because this distance 

is small, coupled with the 

characteristics of sounds produced by 

HRG equipment in general (including 

the GeoPulse 5430A), neither NMFS nor 

Ocean Wind anticipates Level A 

harassment during HRG surveys, even 

absent mitigation. 

The estimated exposures were 

calculated using the average density for 

the 12 months for each marine mammal 

species, or the annual density when 

only one value was available. These 

densities were multiplied by the 

number of annual survey days (Years 1, 

4, 5 = 88 days; Years 2, 3 = 180 days) 

and then by the area ensonified per day 

(70 km multiplied by the areas found in 

Table 30). This approach was taken 

because Ocean Wind does not know 

which months HRG surveys would 

occur in. This approach produced a 

conservative estimate of exposures and, 

subsequently, take for each species. 

Based on the analysis above, the 

modeled Level A harassment and B 

harassment exposures of marine 

mammals resulting from HRG survey 

activities are shown in Table 31. 

TABLE 31—CALCULATED ANNUAL MAXIMUM LEVEL A HARASSMENT AND B HARASSMENT EXPOSURES OF MARINE

MAMMALS RESULTING FROM ANNUAL DAYS OF HRG SURVEYS

Marine mammal species Population 

estimate 

Estimated Level 

A harassment 

exposures b

Estimated Level 

B harassment 

exposures 

Years 

1, 4, 

and 5 

(88 

days) 

Years 

2 and 

3 (180 

days) 

Years 

1, 4, 

and 5 

(88 

days) 

Years 

2 and 

3 (180 

days) 

North Atlantic right whale a .................................................................................................. 338 ................. <0.01 0.01 0.46 0.94 

Blue whale a ......................................................................................................................... Unknown ........ <0.01 <0.01 0.02 0.03 

Fin whale a ........................................................................................................................... 6,802 .............. 0.01 0.02 1.24 2.56 

Humpback whale ................................................................................................................. 1,396 .............. 0.01 0.02 1.10 2.27 

Minke whale ......................................................................................................................... 21,968 ............ 0.02 0.04 2.40 4.98 

Sei whale a ........................................................................................................................... 6,292 .............. <0.01 <0.01 0.33 0.68 

Sperm whale a ..................................................................................................................... 4,349 .............. <0.01 <0.01 0.04 0.09 

Atlantic spotted dolphin ....................................................................................................... 39,921 ............ n/a n/a n/a n/a 

Atlantic white-sided dolphin ................................................................................................. 93,233 ............ 0.03 0.05 4.79 10.04 

Bottlenose dolphin (offshore stock) ..................................................................................... 62,851 ............ 1.23 2.46 173.84 348.37 

Bottlenose dolphin (coastal stock) ...................................................................................... 6,639 .............. 3.28 6.60 464.18 933.46 

Common dolphin ................................................................................................................. 172,974 .......... 0.20 0.42 28.38 59.52 

Long-finned pilot whales ...................................................................................................... 28,924 ............ <0.01 <0.01 0.19 0.40 

Short-finned pilot whales ..................................................................................................... 39,215 ............ <0.01 <0.01 0.14 0.29 

Risso’s dolphin .................................................................................................................... 35,215 ............ <0.01 <0.01 0.31 0.65 

Harbor porpoise ................................................................................................................... 95,543 ............ 5.60 11.59 21.69 44.88 

Gray seal ............................................................................................................................. 27,300 ............ 0.23 0.48 33.23 67.56 

Harbor seal .......................................................................................................................... 61,336 ............ 0.66 1.34 92.88 188.83 

a Listed as Endangered under the Endangered Species Act (ESA). 

bSome Level A harassment exposures were estimated to occur during HRG surveys, but due to the required mitigation measures Ocean Wind 

would be required to undertake, no Level A harassment takes has been authorized. 

NMFS reiterates that authorized takes 

will be by Level B harassment only, in 

the form of disruption of behavioral 

patterns for individual marine mammals 

resulting from exposure to noise from 

certain HRG acoustic sources. Based 

primarily on the characteristics of the 

signals produced by the acoustic 

sources planned for use and due to the 

small PTS zones associated with HRG 

equipment types planned for use, Level 

A harassment is neither anticipated 

(even absent mitigation), nor authorized. 

Consideration of the anticipated 

effectiveness of the measures (i.e., 

exclusion zones and shutdown 

measures), discussed in detail below in 

the Mitigation section, further 

strengthens the conclusion that Level A 

harassment is not a reasonably 

anticipated outcome of the survey 

activity. Ocean Wind did not request 

authorization of take by Level A 

harassment, and no take by Level A 

harassment is authorized by NMFS. As 

described previously, no serious injury 

or mortality is anticipated or authorized 

for this activity. 

The authorized take estimates 

presented here assumed that HRG 

surveys would be occurring for 24 hours 

each day. Adjustments based on the 

mean group size estimates (i.e., 

increasing take to the mean group size 

if the calculated exposures were fewer) 

were included for the following species: 

sei whales (Kenney and Vigness-Raposa, 

2010), minke whales (Kenney and 

Vigness-Raposa, 2010), humpback 

whales (CeTAP, 1982), sperm whales 

(Barkaszi and Kelly, 2019), Atlantic 

spotted dolphins (Kenney and VignessRaposa, 2010), both species of pilot 

whales (Kenney and Vigness-Raposa, 

2010), and Risso’s dolphins (Barkaszi 

and Kelly, 2019). 

Years 1, 4, and 5 in Table 32 below 

represent HRG surveys occurring during 

the pre- and post-construction phases of 

the Project. Each of these years is based 

on an annual HRG survey effort of 88 

days (264 total effort over 3 years). Years 

2 and 3 would include HRG surveys 

occurring during the construction of 

other elements of the Project. Each of 

these years is based on an annual HRG 

survey effort of 180 days (360 days total 

over 2 years). 


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TABLE 32—ANNUAL AUTHORIZED LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKE RESULTING FROM HIGHRESOLUTION (HRG) SITE CHARACTERIZATION SURVEYS OVER 5 YEARS

Marine mammal species Population 

estimate 

Pre- and postconstruction phases 

(years 1, 4, 5; 

88 days annually) 

During 

construction phase 

(years 2 and 3; 

180 days annually) 

Authorized 

Level B 

harassment 

Authorized 

Level A 

harassment 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

North Atlantic right whale a .................................................................. 338 ................. 0 d 1 0 d 2 

Blue whale a ......................................................................................... Unknown ........ 0 0 0 0 

Fin whale a ........................................................................................... 6,802 .............. 0 2 0 3 

Humpback whale ................................................................................. 1,396 .............. 0 b 2 0 b 3 

Minke whale ......................................................................................... 21,968 ............ 0 b 3 0 b 5 

Sei whale a ........................................................................................... 6,292 .............. 0 b 0 0 b 1 

Sperm whale a ..................................................................................... 4,349 .............. 0 b 3 0 b 3 

Atlantic spotted dolphin ....................................................................... 39,921 ............ 0 b 45 0 b 45 

Atlantic white-sided dolphin ................................................................. 93,233 ............ 0 5 0 11 

Bottlenose dolphin (offshore stock) ..................................................... 62,851 ............ c 0 173 c 0 349 

Bottlenose dolphin (coastal stock) ...................................................... 6,639 .............. c 0 465 c 0 934 

Common dolphin ................................................................................. 172,974 .......... 0 29 0 60 

Long-finned pilot whale ....................................................................... 39,215 ............ 0 b 10 0 b 10 

Short-finned pilot whale ....................................................................... 28,924 ............ 0 b 10 0 b 10 

Risso’s dolphin .................................................................................... 35,215 ............ 0 b 30 0 b 30 

Harbor porpoise ................................................................................... 95,543 ............ c 0 22 c 0 45 

Gray seal ............................................................................................. 27,300 ............ c 0 34 c 0 68 

Harbor seal .......................................................................................... 61,336 ............ c 0 93 c 0 189 

a Listed as Endangered under the Endangered Species Act (ESA). 

bThe following species’ requested take was a adjusted based on mean group size: Sei whale (Kenney and Vigness-Raposa, 2010), minke 

whale (Kenney and Vigness-Raposa, 2010), humpback whale (CeTAP, 1982), sperm whale (Barkaszi and Kelly, 2019), Atlantic spotted dolphin 

(Kenney and Vigness-Raposa, 2010), both species of pilot whale (Kenney and Vigness-Raposa, 2010), and Risso’s dolphin (Barkaszi and Kelly, 

2019). cA small amount of Level A harassment exposures were estimated based on the density calculations, but no Level A harassment take was requested by Ocean Wind or authorized by NMFS due to the mitigation measures planned for use. dBased on the exposure estimates, values greater than 0.5 for all other species besides North Atlantic right whale were rounded up to one. 

Take estimates for North Atlantic right whales from 0.45 and up were rounded up to one (to be conservative) and 0.93 was rounded to two. 

Total Authorized Takes Across All 

Activity Types 

NMFS is authorizing take by Level A 

harassment and Level B harassment 

incidental to all Project activities 

combined (i.e., impact pile driving to 

install WTG and OSS monopile/pin pile 

foundations (assuming 10 dB of sound 

attenuation), vibratory pile driving to 

install and remove temporary 

cofferdams and goal posts, UXO/MEC 

detonations (assuming 10 dB of sound 

attenuation), and HRG surveys) as 

shown in Table 33. The annual amount 

of take that would occur in each year 

based on Ocean Wind’s current 

schedules is provided in Table 34. The 

Year 1 take estimates include 88 days of 

HRG surveys, cofferdams and goal posts 

installation and removal, and mitigated 

UXO/MEC detonations. Year 2 includes 

180 days of HRG surveys, WTG impact 

installation using monopile 

foundations, and OSS impact 

installation using pin piles for jacket 

foundations (noting that Ocean Wind 

will actually build out monopiles for 

OSS instead). Year 3 includes 180 days 

of HRG surveys only. And Years 4 and 

5 include 88 days of HRG surveys. 

Although temporary cofferdam and goal 

post installation and removal could 

occur in Year 2, all of the authorized 

takes were allocated to Year 1 as this 

represents the most accurate 

construction scenario. All impact pile 

driving activities for the WTGs and 

OSSs could also occur outside of Year 

2; however, all of the takes were 

allocated to Year 2 as this represents the 

most likely scenario. 

The amount of take that NMFS 

authorized is considered conservative 

for several reasons. The authorized take 

numbers assume all piles are installed 

during 30 days of the highest density 

month and 19 days (38 piles) of the 

second-highest density month for each 

species from May to December. The 

authorized take numbers for Level A 

harassment do 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; nor do these numbers 

fully account for the effectiveness of the 

required mitigation measures, with the 

exception for foundation installation 

and UXO/MEC detonations, which 

accounted for 10 dB of sound 

attenuation. Finally, while Ocean Wind 

may use monopiles for OSS 

foundations, NMFS has used the pin 

pile take estimates in the total take 

authorized. The exposure estimates for 

pin piles is greater for all species than 

the exposures estimated for monopiles 

installation. 

If Ocean Wind decides to use suctionbuckets or gravity-based foundations to 

install bottom-frame WTG and OSS 

foundations, take would not occur as 

noise levels would not be elevated to 

the degree there is a potential for take 

(i.e., no pile driving is involved with 

installing suction buckets or gravitybased foundations). The authorized take 

from vibratory pile driving assumed 

temporary cofferdams using sheet piles 

would be installed, versus the 

alternative installation of a gravity-cell 

cofferdam, for which no take would be 

expected nor authorized. 

NMFS also presents the percentage of 

each marine mammal stock estimated to 

be taken based on the total amount of 

annual take, which is presented in Table 

35. Table 34 provides the total 

authorized take from the entire 5-year 

effective period of the rulemaking and 

issued LOA. NMFS recognizes that 

schedules may shift due to a number of 

planning and logistical constraints such 

that take may be redistributed 


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throughout the 5 years. However, the 5- 

year total amount of take for each 

species, shown in Table 33, and the 

maximum amount of take in any 1 year 

(Table 35) would not be exceeded. 

Additionally, to reduce impacts to 

marine mammals, NMFS has required 

several mitigation and monitoring 

measures, discussed in the Mitigation 

and Monitoring and Reporting sections, 

which are activity-specific and are 

designed to minimize acoustic 

exposures to marine mammal species. 

TABLE 33—LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKES FOR ALL ACTIVITIES AUTHORIZED DURING THE

CONSTRUCTION OF THE OCEAN WIND 1 PROJECT

Marine mammal species Population 

estimate 

2024—(Year 1) 2025—(Year 2) 2026—(Year 3) 2027—(Year 4) 2028—(Year 5) 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

Level A 

harassment 

Level B 

harassment 

North Atlantic right whale a ................................ 338 .................... 0 3 0 7 0 2 0 1 0 1 

Blue whale a ....................................................... Unknown b ......... 0 0 0 4 0 0 0 0 0 0 

Fin whale a ......................................................... 6,802 ................. 0 6 4 13 0 3 0 2 0 2 

Humpback whale ............................................... 1,396 ................. 0 8 e 7 e 66 0 3 0 2 0 2 

Minke whale ...................................................... 21,968 ............... e 2 32 22 74 0 5 0 3 0 3 

Sei whale a ......................................................... 6,292 ................. 0 2 1 3 0 1 0 0 0 0 

Sperm whale a ................................................... 4,349 ................. 0 6 0 d 9 0 3 0 3 0 3 

Atlantic spotted dolphin ..................................... 39,921 ............... 0 135 0 135 0 45 0 45 0 45 

Atlantic white-sided dolphin ............................... 93,233 ............... 0 e 19 0 100 0 11 0 5 0 5 

Common dolphin ............................................... 172, 974 ............ 0 e 64 0 1,584 0 60 0 29 0 29 

Bottlenose dolphin (offshore stock) ................... 62,851 ............... e 11 561 0 f 1,360 0 349 0 174 0 174 

Bottlenose dolphin (coastal stock) c .................. 6,639 ................. e 22 1,394 0 f 1,028 0 934 0 465 0 465 

Short-finned pilot whale ..................................... 39,215 ............... 0 30 0 30 0 10 0 10 0 10 

Long-finned pilot whale ..................................... 28,924 ............... 0 30 0 30 0 10 0 10 0 10 

Risso’s dolphin .................................................. 35,215 ............... 0 90 0 90 0 30 0 30 0 30 

Harbor porpoise ................................................. 95,543 ............... 10 90 69 350 0 45 0 22 0 22 

Gray seal ........................................................... 27,300 ............... 31 173 4 305 0 68 0 68 0 34 

Harbor seal ........................................................ 61,336 ............... 35 482 13 844 0 189 0 93 0 93 

a Listed as Endangered under the Endangered Species Act (ESA). 

bThe minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small numbers determination, 

as shown in parenthesis. cThe estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an overestimate as this stock has demonstrated a preference for 

coastal environments as opposed to estuarine (Toth et al., 2011). d NMFS corrects a mathematical error for sperm whales where the value presented in this table was incorrectly labeled as six rather than nine for Year 2. 

e Corrections based on group size data were made for some species, based on comments received from the Marine Mammal Commission and/or using AMAPPS/ 

Ocean Wind’s group size data, which increased some of the take when compared to the proposed rule. fBased on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to allocate 10 percent of the authorized take 

by Level B harassment of the offshore stock of bottlenose dolphins to the coastal stock during WTG installation. No takes of Level A harassment has been authorized 

for either of these stocks. 

TABLE 34—TOTAL 5-YEAR AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) FOR ALL ACTIVITIES

DURING THE CONSTRUCTION OF THE OCEAN WIND 1 PROJECT

Marine mammal species Population 

size 

5-Year Project Duration b

Level A 

harassment 

Level B 

harassment Total 5-year 

North Atlantic right whale a ................................................................................................ 338 ................. 0 14 14 

Blue whale a ....................................................................................................................... Unknown c ...... 0 4 4 

Fin whale a ......................................................................................................................... 6,802 .............. 4 26 30 

Humpback whale ............................................................................................................... 1,396 .............. f 7 f 81 88f

Minke whale ....................................................................................................................... 21,968 ............ f 24 117 f 141 

Sei whale a ......................................................................................................................... 6,292 .............. 1 6 7 

Sperm whale a ................................................................................................................... 4,349 .............. 0 e 24 e 24 

Atlantic spotted dolphin ..................................................................................................... 39,921 ............ 0 405 405 

Atlantic white-sided dolphin ............................................................................................... 93,233 ............ 0 f 140 f 140 

Bottlenose dolphin (offshore stock) ................................................................................... 62,851 ............ f 11 g 2,618 g 2,629 

Bottlenose dolphin (coastal stock) .................................................................................... 6,639 .............. f 22 g 4,286 dfg 4,308 

Common dolphin ............................................................................................................... 172,974 .......... 0 f 1,766 f 1,766 

Long-finned pilot whale ..................................................................................................... 39,215 ............ 0 90 90 

Short-finned pilot whale ..................................................................................................... 28,924 ............ 0 90 90 

Risso’s dolphin .................................................................................................................. 35,215 ............ 0 270 270 

Harbor porpoise ................................................................................................................. 95,543 ............ 79 529 608 

Gray seal ........................................................................................................................... 27,300 ............ 35 614 649 

Harbor seal ........................................................................................................................ 61,336 ............ 48 1,701 1,749 

a Listed as Endangered under the Endangered Species Act (ESA). 

bActivities include impact pile driving of WTG and OSS foundations (assuming mitigated by 10 dB), vibratory pile driving for the installation/removal of temporary cofferdam and goal posts, HRG surveys (year-round with variable levels of effort), and up to 10 high-order UXO/MEC detonations (assuming mitigated by 10 dB). cThe minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. dThe estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an overestimate as this stock has demonstrated 

a preference for coastal environments as opposed to estuarine (Toth et al., 2011). e NMFS corrects a mathematical error for sperm whales where the value presented in this table based on changes from Table 33. 


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f Corrections based on group size data were made for some species, based on comments received from the Marine Mammal Commission and/ 

or using AMAPPS/Ocean Wind’s group size data, which increased some of the take when compared to the proposed rule. gBased on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to allocate 10 percent 

of the authorized take by Level B harassment of the offshore stock of bottlenose dolphins to the coastal stock during WTG installation. No takes 

of Level A harassment has been authorized for either of these stocks. 

In making the negligible impact 

determination and the necessary small 

numbers finding, NMFS assesses the 

greatest number of takes of marine 

mammals that could occur within any 

one year, which in the case of this rule 

is based on the predicted Year 2 for all 

species, except the coastal stock of 

bottlenose dolphins, which used the 

calculated Level A harassment from 

Year 1 with the calculated Level B 

harassment from Year 2. In this 

calculation, the maximum estimated 

number of Level A harassment takes in 

any one year is summed with the 

maximum estimated number of Level B 

harassment takes in any one year for 

each species to yield the highest number 

of estimated take that could occur in 

any year. 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 35 in any year. 

TABLE 35—MAXIMUM NUMBER OF AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) THAT COULD

OCCUR IN ANY ONE YEAR OF THE PROJECT AND THE TOTAL PERCENT STOCK THAT WOULD BE TAKEN BASED ON

THE MAXIMUM ANNUAL AUTHORIZED TAKE

Marine mammal species Population 

size 

Max 

Level A 

harassment 

Max 

Level B 

harassment 

Max annual take 

(Max level A 

harassment + 

Max Level B 

harassment) 

Total percent 

stock taken based 

on maximum 

annual take b

North Atlantic right whale a .............................................................. 338 ................. 0 7 7 2.1 

Blue whale a ..................................................................................... Unknown c ...... 0 4 4 0.97 

Fin whale a ....................................................................................... 6,802 .............. 4 13 17 0.25 

Humpback whale ............................................................................. 1,396 .............. f 8 f 66 f 74 f 5.3 

Minke whale ..................................................................................... 21,968 ............ 22 74 96 0.44

Sei whale a ....................................................................................... 6,292 .............. 1 3 4 0.06 

Sperm whale a ................................................................................. 4,349 .............. 0 e 9 e 9 e 0.21 

Atlantic spotted dolphin ................................................................... 39,921 ............ 0 135 135 0.34 

Atlantic white-sided dolphin ............................................................. 93,233 ............ 0 100 100 0.11 

Bottlenose dolphin (offshore stock) ................................................. 62,851 ............ f 11 g 1,360 g f 1,3671 g f 2.17 

Bottlenose dolphin ...........................................................................

(coastal stock) .................................................................................

6,639 .............. f 22 1,394 f 1,416 d f 21.3 

Common dolphin ............................................................................. 172,974 .......... 0 1,584 1,584 0.92 

Long-finned pilot whale ................................................................... 39,215 ............ 0 30 30 0.08 

Short-finned pilot whale ................................................................... 28,924 ............ 0 30 30 0.10 

Risso’s dolphin ................................................................................ 35,215 ............ 0 90 90 0.26 

Harbor porpoise ............................................................................... 95,543 ............ 69 350 419 0.44

Gray seal ......................................................................................... 27,300 ............ 31 305 336 1.23 

Harbor seal ...................................................................................... 61,336 ............ 35 844 879 1.43 

a Listed as Endangered under the Endangered Species Act (ESA). 

b Calculations of percentage of stock taken are based on the maximum authorized Level A harassment take in any one year + the maximum 

authorized Level B harassment take in any one year and then compared against the best available abundance estimate as shown in Table 35. 

For this final rule, the best available abundance estimates are derived from the NMFS final 2022 Stock Assessment Reports. cThe minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for our small 

numbers determination, as shown in parenthesis. dThe estimate for coastal bottlenose dolphins (bayside versus Atlantic Ocean-facing) is likely an overestimate as this stock has demonstrated 

a preference for coastal environments as opposed to estuarine (Toth et al., 2011). e NMFS corrects a mathematical error for sperm whales in Table 33 where the value presented in this table has been updated from six to nine. 

f Corrections based on group size data were made for some species, based on comments received from the Marine Mammal Commission and/ 

or using AMAPPS group size data, which increased some of the take when compared to the proposed rule. gBased on a comment provided by the Commission, NMFS, in consultation with JASCO and Ocean Wind, have opted to allocate 10 percent 

of the authorized take by Level B harassment of the offshore stock of bottlenose dolphins to the coastal stock during WTG installation. No takes 

of Level A harassment has been authorized for either of these stocks. 

Mitigation 

As noted in the Changes From the 

Proposed to Final Rule section, NMFS 

has added several new mitigation 

requirements and clarified a few others, 

has increased the winter clearance 

zones for large whales and harbor 

porpoises, and has removed the PAM 

clearance zone and PAM shutdown 

zone for North Atlantic right whales and 

added a single PAM monitoring zone 

(10 km) for all species (see Table 36) for 

clarity and to be consistent with the 

regulatory text in the proposed rule and 

in this final rule. Additionally, NMFS 

has clarified that the shutdown and 

clearance zones in Table 36 apply to 

both visual and auditory detection, and 

these changes are described in detail in 

the sections below. Other than the 

changes described, the required 

measures remain the same as those 

described in the proposed rule. 

However, NMFS has also re-organized 

and simplified the section to avoid full 

duplication of the specific requirements 

that are fully described in the regulatory 

text. 

In order to promulgate a rulemaking 

under section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to the activity, and other means of 

effecting the least practicable adverse 

impact on the species or stock and its 

habitat, paying particular attention to 


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rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stock for 

taking for certain subsistence uses (latter 

not applicable for this action). NMFS’ 

regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned); 

and, 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

The mitigation strategies described 

below are consistent with those required 

and successfully implemented under 

previous incidental take authorizations 

issued in association with in-water 

construction activities (e.g., soft-start, 

establishing shutdown zones). 

Additional measures have also been 

incorporated to account for the fact that 

the proposed construction activities 

would occur offshore. Modeling was 

performed to estimate harassment 

zones, which were used to inform 

mitigation measures for the project’s 

activities to minimize Level A 

harassment and Level B harassment to 

the extent practicable, while providing 

estimates of the areas within which 

Level B harassment might occur. 

Generally speaking, the mitigation 

measures considered and required here 

fall into three categories: temporal 

(seasonal and daily) work restrictions, 

real-time measures (shutdown, 

clearance, and vessel strike avoidance), 

and noise attenuation/reduction 

measures. Seasonal work restrictions are 

designed to avoid or minimize 

operations when marine mammals are 

concentrated or engaged in behaviors 

that make them more susceptible or 

make impacts more likely, in order to 

reduce both the number and severity of 

potential takes, and are effective in 

reducing both chronic (longer-term) and 

acute effects. Real-time measures, such 

as implementation of shutdown and 

clearance zones, as well as vessel strike 

avoidance measures, are intended to 

reduce the probability or severity of 

harassment by taking steps in real time 

once a higher-risk scenario is identified 

(e.g., once animals are detected within 

an impact zone). Noise attenuation 

measures, such as bubble curtains, are 

intended to reduce the noise at the 

source, which reduces both acute 

impacts, as well as the contribution to 

aggregate and cumulative noise that may 

result in longer-term chronic impacts. 

Below, we briefly describe the 

required training, coordination, and 

vessel strike avoidance measures that 

apply to all activity types, and then in 

the following subsections we describe 

the measures that apply specifically to 

foundation installation, nearshore 

installation and removal activities for 

cable laying, HRG surveys, and UXO/ 

MEC detonation. Details on specific 

requirements can be 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 Ocean Wind 

employees and contractors conducting 

activities on the water, including, but 

not limited to, all vessel captains and 

crew are trained in marine mammal 

detection and identification, 

communication protocols, and all 

required measures to minimize impacts 

on marine mammals and support Ocean 

Wind’s compliance with the LOA, if 

issued. Additionally, all relevant 

personnel and the marine mammal 

species monitoring team(s) are required 

to participate in joint, onboard briefings 

prior to the beginning of project 

activities. The briefing must be repeated 

whenever new relevant personnel (e.g., 

new PSOs, construction contractors, 

relevant crew) join the project before 

work commences. During this training, 

Ocean Wind is required to instruct all 

project personnel regarding the 

authority of the marine mammal 

monitoring team(s). For example, the 

HRG acoustic equipment operator, pile 

driving personnel, etc., is required to 

immediately comply with any call for a 

delay or 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. Ocean 

Wind will provide documentation of 

training to NMFS. 

North Atlantic Right Whale Awareness 

Monitoring 

Ocean Wind must use available 

sources of information on North 

Atlantic right whale presence, including 

daily monitoring of the Right Whale 

Sightings Advisory System, monitoring 

of U.S. Coast Guard 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 passive acoustic 

monitoring efforts and opportunities 

(outside of Ocean Wind’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 


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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 

217.264(b)). Ocean Wind will be 

required to comply with these measures 

except under circumstances when doing 

so would create an imminent and 

serious threat to a person or vessel or to 

the extent that a vessel is unable to 

maneuver and because of the inability to 

maneuver, the vessel cannot comply. 

While underway, Ocean Wind 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 from North Atlantic right 

whales). 

All project vessels, regardless of size, 

must maintain the following minimum 

separation zones: 500 m from North 

Atlantic right whales; 100 m from sperm 

whales and non-North Atlantic right 

whale baleen whales; and 50 m 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) have 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. 

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 of an underway vessel, the vessel 

is required to immediately reduce 

speeds to 10 kn or less. The 10 kn speed 

restriction will remain in effect as 

outlined in 50 CFR 217.264(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, in addition to the 

required dedicated visual observer, 

Ocean Wind 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 would monitor U.S. 

Coast Guard VHF Channel 16, 

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 onduty 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 would be equipped 

with an AIS and Ocean Wind must 

report all Maritime Mobile Service 

Identify (MMSI) numbers to NMFS 

Office of Protected Resources prior to 

initiating in-water activities. Ocean 

Wind would submit a NMFS-approved 

North Atlantic Right Whale Vessel 

Strike Avoidance Plan at least 90 days 

prior to commencement of vessel use. 

Ocean Wind’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 

Temporal restrictions in places where 

marine mammals are concentrated, 

engaged in biologically important 

behaviors, and/or present in sensitive 

life stages are effective measures for 

reducing the magnitude and severity of 

human impacts. The temporal 

restrictions required here are built 

around North Atlantic right whale 

protection. Based upon the best 

scientific information available (Roberts 

et al., 2023), the highest densities of 

North Atlantic right whales in the 

specified geographic region are expected 

during the months of January through 

April with an increase in density 

starting in December. However, North 

Atlantic right whales may be present in 

the specified geographic region 

throughout the year. 

NMFS is requiring seasonal work 

restrictions to minimize the risk of noise 

exposure to North Atlantic right whales 

incidental to certain specified activities 

to the extent practicable. These seasonal 

work restrictions are expected to greatly 

reduce the number of takes of North 

Atlantic right whales. These seasonal 

restrictions also afford protection to 

other marine mammals that are known 

to use the Project Area with greater 

frequency during winter months, 

including other baleen whales. 

As described previously, no impact 

pile driving activities may occur January 

1 through April 30. A new measure 

included in this final rule requires that 

Ocean Wind install the foundations as 

quickly as possible and avoid pile 

driving in December to the maximum 

extent practicable; however, pile driving 

may occur in December if it is 

unavoidable upon approval from NMFS. 

Ocean Wind has planned to construct 

the cofferdams and goal posts from 

October to May within the first year of 

the effective period of the regulations 

and LOA, with some potential removal 

occurring in April or May, if necessary. 

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 

work would be occurring. Given the 

distance to the Level B harassment 

isopleth is conservatively modeled at 

approximately 10 km, any exposure to 

vibratory pile driving during cofferdams 

and goal posts installation would be at 

levels closer to the 120-dB Level B 

harassment threshold and not at louder 

source levels. There is no specific time 


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of year that UXOs/MECs would be 

detonated as detonations would be 

considered on a case-by-case basis. 

However, Ocean Wind will be restricted 

from detonating UXO/MECs November 

1 through April 30 to reduce impacts to 

North Atlantic right whales during peak 

migratory periods. NMFS is not adding 

seasonal restrictions to HRG surveys; 

however, Ocean Wind would only 

perform a predetermined amount of 24- 

hour survey days within specific years 

(Years 1, 4, 5 = 88 days; Years 2, 3 = 

180 days). 

NMFS is also requiring temporal 

restrictions for some activities. Within 

any 24-hour period, Ocean Wind would 

be limited to installing up to 2 monopile 

foundations. Ocean Wind had requested 

to initiate pile driving during nighttime 

when detection of marine mammals is 

visually challenging. Since the 

publication of the proposed rule, Ocean 

Wind has continued conversations with 

NMFS and BOEM regarding field trials 

they have been performing to prove the 

efficacy of their nighttime monitoring 

methods and systems. These field trials 

have provided information and 

evidence that their systems are capable 

of detecting marine mammals, 

particularly large whales, at distances 

necessary to ensure that the required 

mitigation measures are effective. On 

April 7, 2023, Ocean Wind submitted an 

Alternative Monitoring Plan for 

Nighttime Pile Driving outlining night 

time monitoring protocols and 

equipment. Given existing uncertainty 

with the novelty of the technology, in 

this final rule, NMFS, in agreement with 

BOEM, is allowing nighttime pile 

driving to occur from June 1 through 

October 31 annually, if the Alternative 

Monitoring Plan is approved. This 

period of time has been determined to 

be acceptable based on the Roberts et al. 

(2023) data demonstrating low North 

Atlantic right whale densities during 

these months. Nighttime pile driving 

outside of this period (i.e., May, 

November–December) must not occur. 

From June 1 through to October 31, 

annually, Ocean Wind will have the 

ability to initiate impact pile driving at 

any time (day or night). Subsequent 

reports submitted by Ocean Wind will 

allow NMFS to continue to evaluate the 

efficacy of the technologies and 

methodologies and to initiate adaptive 

management approaches, if necessary. 

We also continue to encourage Ocean 

Wind to further investigate and test 

advanced technology detection systems. 

Any and all vibratory pile driving 

associated with cofferdams and goal 

posts installation and removal would 

only be able to occur during daylight 

hours. Any UXO/MEC detonations will 

be limited to daylight hours only to 

reduce impacts on migrating species 

(such as North Atlantic right whales) 

and to ensure that visual PSOs can 

confirm appropriate clearance of the site 

prior to detonation events occurring. 

Lastly, given the very small Level B 

harassment zone associated with HRG 

survey activities and no anticipated or 

authorized 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 

Ocean Wind is required to employ 

noise abatement systems (NAS), also 

known as noise attenuation systems, 

during all foundation installation (i.e., 

impact pile driving) and UXO/MEC 

detonation activities to reduce the 

sound pressure levels that are 

transmitted through the water in an 

effort to reduce ranges to acoustic 

thresholds and minimize, to the extent 

practicable, any acoustic impacts 

resulting from these activities. Ocean 

Wind is required to use at least two 

NAS to ensure that measured sound 

levels do not exceed the levels modeled 

for a 10-dB sound level reduction for 

foundation installation, which is likely 

to include a double big bubble curtain 

combined with another NAS (e.g., 

hydro-sound damper, or an AdBm 

Helmholz resonator), as well as the 

adjustment of operational protocols to 

minimize noise levels. For UXO/MEC 

detonation, a double big bubble curtain 

must be used and the hoses must be 

placed at distances to avoid damage to 

the bubble curtain during detonation. A 

single bubble curtain, alone or in 

combination with another NAS device, 

may not be used for either pile driving 

or UXO/MEC detonation as received 

SFV data reveals this approach is 

unlikely to attenuate sounds to the 

degree distances to harassment 

thresholds are at or smaller than those 

modeled assuming 10-dB of attenuation. 

Should the research and development 

phase of newer systems demonstrate 

effectiveness, as part of adaptive 

management, Ocean Wind may submit 

data on the effectiveness of these 

systems and request approval from 

NMFS to use them during foundation 

installation and UXO/MEC detonation 

activities. 

Two categories of NAS exist: primary 

and secondary. A primary NAS would 

be used to reduce the level of noise 

produced by foundation installation 

activities at the source, typically 

through adjustments on to the 

equipment (e.g., hammer strike 

parameters). Primary NAS are still 

evolving and will be considered for use 

during mitigation efforts when the NAS 

has been demonstrated as effective in 

commercial projects. However, as 

primary NAS are not fully effective at 

eliminating noise, a secondary NAS 

would be employed. The secondary 

NAS is a device or group of devices that 

would reduce noise as it was 

transmitted through the water away 

from the pile, typically through a 

physical barrier that would reflect or 

absorb sound waves and therefore, 

reduce the distance the higher energy 

sound propagates through the water 

column. Together, these systems must 

reduce noise levels to those not 

exceeding modeled ranges to Level A 

harassment and Level B harassment 

isopleths corresponding to those 

modeled assuming 10-dB sound 

attenuation, pending results of Sound 

Field Verification (SFV; see Sound Field 

Verification section below and Part 

217—Regulations Governing The Taking 

And Importing Of Marine Mammals). 

Noise abatement systems, such as 

bubble curtains, are used to decrease the 

sound levels radiated from a source. 

Bubbles create a local impedance 

change that acts as a barrier to sound 

transmission. The size of the bubbles 

determines their effective frequency 

band, with larger bubbles needed for 

lower frequencies. There are a variety of 

bubble curtain systems, confined or 

unconfined bubbles, and some with 

encapsulated bubbles or panels. 

Attenuation levels also vary by type of 

system, frequency band, and location. 

Small bubble curtains have been 

measured to reduce sound levels but 

effective attenuation is highly 

dependent on depth of water, current, 

and configuration and operation of the 

curtain (Austin et al., 2016; Koschinski 

and Lu ̈demann, 2013). Bubble curtains 

vary in terms of the sizes of the bubbles 

and those with larger bubbles tend to 

perform a bit better and more reliably, 

particularly when deployed with two 

separate rings (Bellmann, 2014; 

Koschinski and Lu ̈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 


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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. 

Da ̈hne et al. (2017) found that single 

bubble curtains that reduce sound levels 

by 7 to 10 dB reduced the overall sound 

level by approximately 12 dB when 

combined as a double bubble curtain for 

6-m steel monopiles in the North Sea. 

During installation of monopiles 

(consisting of approximately 8-m in 

diameter) for more than 150 WTGs in 

comparable water depths (> 25 m) and 

conditions in Europe indicate that 

attenuation of 10 dB is readily achieved 

(Bellmann, 2019; Bellmann et al., 2020) 

using single BBCs for noise attenuation. 

When a double big bubble curtain is 

used (noting a single bubble curtain is 

not allowed), Ocean Wind 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, construction 

contractors must train personnel in the 

proper balancing of airflow to the 

bubble ring and Ocean Wind must 

submit a performance test and 

maintenance report to NMFS within 72 

hours following the performance test. 

Corrections to the attenuation device to 

meet regulatory requirements must 

occur prior to use during foundation 

installation activities and UXO/MEC 

detonation. In addition, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed or any UXO/MEC 

detonated. If Ocean Wind uses a noise 

mitigation device in addition to a 

double big bubble curtain, similar 

quality control measures are required. 

Ocean Wind is required to submit an 

SFV plan to NMFS for approval at least 

180 days prior to installing foundations 

or detonating UXO/MECs. They are 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, cofferdam 

(sheet pile) installation and removal, 

and goal post (pipe pile) installation and 

removal. Regarding cofferdam sheet pile 

and goal post pipe pile installation and 

removal, NAS is not practicable to 

implement due to the physical nature of 

linear sheet piles and angled pipe piles, 

and is of 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 Ocean Wind is 

required to make efforts to minimize 

source levels by using the lowest energy 

settings on equipment that has the 

potential to result in harassment of 

marine mammals (e.g., sparkers, 

boomers) 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 necessary (e.g., noise abatement, 

turning off power) will effect the least 

practicable adverse impact on marine 

mammals. 

Clearance and Shutdown Zones 

NMFS requires the establishment of 

both clearance and, where technically 

feasible, shutdown zones during project 

activities that have the potential to 

result in harassment of marine 

mammals. The purpose of ‘‘clearance’’ 

of a particular zone is to minimize 

potential instances of auditory injury 

and more severe behavioral 

disturbances by delaying the 

commencement of an activity if marine 

mammals are near the activity. The 

purpose of a shutdown is to prevent a 

specific acute impact, such as auditory 

injury or severe behavioral disturbance 

of sensitive species, by halting the 

activity. 

All relevant clearance and shutdown 

zones during project activities would be 

monitored by NMFS-approved PSOs 

and/or PAM operators (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 foundation installation or any 

UXO/MEC detonations 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 (foundation installation, 

cofferdam install and removal, HRG 

surveys, UXO/MEC detonations), Ocean 

Wind must ensure designated areas (i.e., 

clearance zones, Tables 36–39) are clear 

of marine mammals prior to 

commencing activities to minimize the 

potential for and degree of harassment. 

For foundation installation and UXO/ 

MEC detonation, 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 zones represent the 

largest Level A harassment zone for 

each species group plus 20 percent or a 

minimum of 100 m (whichever is 

greater). For foundation installation, the 

minimum visibility zone would extend 

1,650 m from the pile during summer 

months and 2,500 m during December 

(Table 36). This value corresponds to 

the modeled maximum ER95% distances 

to the Level A harassment threshold for 

low-frequency cetaceans, assuming 10 

dB of attenuation. 

For cofferdam and goal post pile 

driving and HRG 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. 

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, 

Ocean Wind 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 is not practicable due to 

imminent risk of injury or loss of life to 

an individual or risk of damage to a 

vessel that creates risk of injury or loss 

of life for individuals or the lead 

engineer determines there is pile refusal 

or pile instability. Because UXO/MEC 

detonations are instantaneous, no 

shutdown is possible; therefore, there 

are clearance zones but no shutdown 

zones for UXO/MEC detonations (Table 

38). In situations when shutdown is 

called for during impact pile driving but 

Ocean Wind determines shutdown is 

not practicable due to aforementioned 

emergency reasons, reduced hammer 

energy must be implemented when the 

lead engineer determines it is 

practicable. Specifically, pile refusal or 

pile instability could result in not being 

able to shut down pile driving 

immediately. Pile refusal occurs when 

the pile driving sensors indicate the pile 

is approaching refusal, and a shut-down 

would lead to a stuck pile which then 

poses an imminent risk of injury or loss 


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of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Pile instability occurs when 

the pile is unstable and unable to stay 

standing if the piling vessel were to ‘‘let 

go.’’ During these periods of instability, 

the lead engineer may determine a shutdown is not feasible because the shutdown combined with impending 

weather conditions may require the 

piling vessel to ‘‘let go’’ which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Ocean Wind must 

document and report to NMFS all cases 

where the emergency exemption is 

taken. 

After shutdown, impact pile driving 

may be reinitiated once all clearance 

zones are clear of marine mammals for 

the minimum species-specific periods, 

or, if required to maintain pile stability, 

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 or 

acoustically detected for 30 minutes. 

Upon re-starting pile driving, soft-start 

protocols must be followed if pile 

driving has ceased for 30 minutes or 

longer. 

The clearance and shutdown zone 

sizes vary by species and are shown in 

Table 36, Table 37, and Table 38. Ocean 

Wind is allowed to request modification 

to these zone sizes pending results of 

sound field verification (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 36—MINIMUM VISIBILITY, CLEARANCE, SHUTDOWN, AND LEVEL B HARASSMENT ZONES DURING IMPACT PILE

DRIVING IN SUMMER (AND WINTER) a

Monitoring zones North atlantic 

right whales 

Large 

whales Delphinids Harbor porpoises Seals 

Minimum Visibility Zone b ............................................................................ 1,650 m (2,500 m) 

Clearance Zone c d ....................................................................................... Any distance .. 2,000 m 

(3,000 m) 

100 m 1,100 m 

(1,750 m) 

100 m 

Shutdown Zone d ......................................................................................... Any distance .. 1,800 m 

(2,500 m) 

100 m 1,000 m 

(1,450 m) 

100 m 

PAM Monitoring Zone .................................................................................. 10,000 m 

Level B Harassment (Acoustic Range, R95%) ............................................. Monopiles: 3,253 m (3,534 m) 

Pin Piles: 2,155 m (2,522 m) 

aWinter (i.e., December) distances are presented in parentheses. bThe minimum visibility zone is equal to the modeled maximum ER95% distances to the Level A harassment threshold for low-frequency 

cetaceans, assuming 10 dB of attenuation. cThe clearance zone is equal to the maximum Level A harassment distance for each species group (assuming 10 dB of attenuation) plus 20 

percent or a minimum of 100 m (whichever is greater). dThis zone applies to both visual and PAM. 

TABLE 37—DISTANCES TO HARASSMENT THRESHOLDS AND MITIGATION ZONES a DURING VIBRATORY DRIVING OF SHEET

PILES AND/OR CASING PIPE PILES FOR COFFERDAMS AND GOAL POSTS d

Marine mammal hearing groups 

Level A 

harassment 

(SELcum) 

(m) 

Level B 

harassment 

(m) 

Clearance 

zone b

(m) 

Shutdown 

zone c

(m) 

Low-frequency cetaceans ................................................................................................ 86.7 10,000 150 100 

Mid-frequency cetaceans ................................................................................................. 7.7 10,000 150 100 

High-frequency cetaceans ............................................................................................... 128.2 10,000 150 150 

Phocid Pinnipeds ............................................................................................................. 52.7 10,000 150 60 

Note: SELcum = cumulative sound exposure level; SPLpk = peak sound pressure level. aZone sizes are based upon a practical spreading loss model and a source level of 165.0 dB re 1 μPa (JASCO, 2021). bThe clearance zones for large whales, porpoises, and seals are based upon the maximum Level A harassment zone for temporary 

cofferdams (128.2 m; Table 37) and rounded up for PSO clarity. cThe shutdown zones for large whales (including North Atlantic right whale) and porpoises are based upon the maximum Level A harassment 

zone for each group and rounded up for PSO clarity. Shutdown zones for other dolphins and pilot whales were set using precautionary distances. dAlthough Ocean Wind is also building temporary goal posts in some locations to aid their nearshore installation work, they have committed to 

using the same zones previously proposed for temporary cofferdams as they are considered more conservative and protective. 

In the proposed rule, we presented 

zone sizes based solely on the largest 

charge weight due to uncertainty on 

how accurately these charge weights 

could be identified in the water. Since 

the proposed rule, Ocean Wind has 

reliably demonstrated that they can 

identify charge weights in the field to 

allow for charge weight-specific 

mitigative zones. Because of this, Ocean 

Wind is required to implement the As 

Low as Reasonably Practicable (ALARP) 

process, as described in the UXO/MEC 

Charge Weight Memo. This process 

requires Ocean Wind to undertake ‘‘liftand-shift’’ (i.e., physical removal) and 

then lead up to in-situ disposal, as 

necessary, which could include loworder (deflagration) to high-order 

(detonation) methods of removal. 

Another approach involves the cutting 

of the UXO/MEC to extract any 

explosive components. Implementing 

the ALARP approach would minimize 

potential impacts to marine mammals as 

UXOs/MECs would only be detonated 

as a last resort. Ocean Wind will follow 

a Risk Management Framework 

designed to align with the ALARP 

principle which includes historical 


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research/hazard profiling, 

communication with all relevant State 

and Federal Agencies, and the standards 

within their removal plan (see the UXO/ 

MEC Charge Weight Memo); we believe 

there is a high level of certainty that 

charge weights and appropriate removal 

approaches can be implemented in the 

field. Furthermore, we believe that this 

approach will ensure the least 

practicable adverse impact on marine 

mammals by mitigating the potential for 

TTS for each charge weight. The UXO/ 

MEC Charge Weight Memo is found on 

NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility. 

In following this charge weightspecific approach, Ocean Wind is 

required to clear the relevant zones as 

described in Table 38. These zones are 

based on (but not equal to) the greatest 

TTS threshold distances for each charge 

weight at any modeled site. We note 

that harbor porpoises and seals are 

difficult to detect at great distances but, 

due to the UXO/MEC detonation time of 

year restrictions, their abundance is 

likely to be relatively low. These zone 

sizes may be adjusted based on SFV and 

confirmation of the UXO/MEC or donor 

charge sizes after approval by NMFS. 

No minimum visibility zone is 

required for UXO/MEC detonation as 

the entire visual clearance zone must be 

clear given the potential for lung and 

gastrointestinal tract injury. 

TABLE 38—CLEARANCE, LEVEL A HARASSMENT, AND LEVEL B HARASSMENT ZONES DURING UXO/MEC DETONATIONS, 

BY CHARGE WEIGHT AND ASSUMING 10 dB OF SOUND ATTENUATION

UXO/MEC charge 

weights 

Lowfrequency 

cetaceans 

Midfrequency 

cetaceans 

Highfrequency 

cetaceans 

Phocid 

pinnipeds 

E4 (2.3 kg) .................... Level A harassment (m) ....................................................... 552 50 1,820 182 

Level B harassment (m) ....................................................... 2,82 453 6,160 1,470 

Clearance Zone (m) a b ......................................................... 2,500 500 2,500 1,000 

E6 (9.1 kg) .................... Level A harassment (m) ....................................................... 982 75 2,590 357 

Level B harassment (m) ....................................................... 4,680 773 8,000 2,350 

Clearance Zone (m) a b ......................................................... 4,000 600 4,000 1,500 

E8 (45.5 kg) .................. Level A harassment (m) ....................................................... 1,730 156 3,900 690 

Level B harassment (m) ....................................................... 7,490 1,240 10,300 3,820 

Clearance Zone (m) a b ......................................................... 6,000 1,000 6,000 3,000 

E10 (227 kg) ................. Level A harassment (m) ....................................................... 2,970 337 5,400 1,220

Level B harassment (m) ....................................................... 10,500 2,120 12,900 5,980 

Clearance Zone (m) a b ......................................................... 9,000 1,500 9,000 4,000 

E12 (454 kg) ................. Level A harassment (m) ....................................................... 3,780 461 6,200 1,600

Level B harassment (m) ....................................................... 11,900 2,550 14,100 7,020 

Clearance Zone (m) a b ......................................................... 10,000 2,000 10,000 5,000 

aThe clearance zones presented here for the Level B harassment thresholds were derived based on an approximate proportion of the size of 

the Level B harassment isopleth. bSome of the zones have been rounded for PSO clarity. 

TABLE 39—LEVEL B HARASSMENT THRESHOLD RANGES AND MITIGATION ZONES DURING HRG SURVEYS

Marine mammal species 

Level B harassment zone 

(m) Clearance 

zone (m) 

Shutdown 

zone (m) Boomer/ 

sparker CHIRPs 

Low-frequency cetacean (North Atlantic right whale) ..................................................... 141 48 500 500 

Other low-frequency cetaceans (non-North Atlantic right whale species) ...................... .................... .................... 100 100 

Mid-frequency cetaceans ................................................................................................. 141 48 100 a 100 

High-frequency cetaceans ............................................................................................... 141 48 100 b 100 

Phocid Pinnipeds ............................................................................................................. 141 48 100 100 

aAn exception is noted for bow-riding delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. 

b NMFS corrects a typo here where the shutdown zone size for high-frequency cetaceans was incorrectly labeled as 199 m. This has been corrected to 100 m. 

Soft-Start/Ramp-Up 

The use of a soft-start or ramp-up 

procedure is believed to provide 

additional protection to marine 

mammals by warning them, or 

providing them with a chance to leave 

the area prior to the hammer or HRG 

equipment operating at full capacity. 

Soft-start typically involves initiating 

hammer operation at a reduced energy 

level (relative to full operating capacity) 

followed by a waiting period. Ocean 

Wind must utilize a soft-start protocol 

for impact pile driving of monopiles by 

performing four to six 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. The final methodology will 

be developed by Ocean Wind 

considering final design details 

including site-specific soil properties 

and other considerations. 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. 

Given the instantaneous nature of UXO/ 

MEC detonations, no ramp-up/soft-start 

protocol is possible. 

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 


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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 Ocean Wind’s 

fishery monitoring surveys impacting 

marine mammals is minimal, NMFS 

requires Ocean Wind to adhere to gear 

and vessel mitigation measures to 

reduce potential impacts to the extent 

practicable. In addition, all crew 

undertaking the fishery monitoring 

survey activities are required to receive 

protected species identification training 

prior to activities occurring and attend 

the aforementioned onboarding training. 

The specific requirements that NMFS 

has set for the fishery monitoring 

surveys can be found in the regulatory 

text at the end of this rulemaking. 

Based on our evaluation of the 

mitigation measures, as well as other 

measures considered by NMFS, NMFS 

has determined that these measures will 

provide the means of affecting the least 

practicable adverse impact on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Monitoring and Reporting 

As noted in the Changes From the 

Proposed to Final Rule section, we have 

added, modified, or clarified a number 

of monitoring and reporting measures 

since the proposed rule. These changes 

are described in detail 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 authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the proposed action area. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and/or 

• Mitigation and monitoring 

effectiveness. 

Separately, monitoring is also 

regularly used to support mitigation 

implementation, which is referred to as 

mitigation monitoring, and monitoring 

plans typically include measures that 

both support mitigation implementation 

and increase our understanding of the 

impacts of the activity on marine 

mammals. 

During the planned activities, visual 

monitoring by NMFS-approved PSOs 

would be conducted before, during, and 

after all impact pile driving, vibratory 

pile driving, UXO/MEC detonations, 

and HRG surveys. PAM would be also 

conducted during impact pile driving 

and UXO/MEC detonations. Visual 

observations and acoustic detections 

would be used to support the activityspecific mitigation measures (e.g., 

clearance zones). To increase 

understanding of the impacts of the 

activity on marine mammals, PSOs must 

record all incidents of marine mammal 

occurrence at any distance from the 

piling locations, near the HRG acoustic 

sources, and during UXO/MEC 

detonations. 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 and PAM 

Operator Requirements 

Ocean Wind is required to employ 

NMFS-approved PSOs and PAM 

operators. PSOs are trained 

professionals who are tasked with 

visually monitoring for marine 

mammals during pile driving, UXO/ 

MEC detonation, 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 

Ocean Wind to conduct PAM by PAM 

operators during impact pile driving, 

UXO/MEC detonations, 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 together (e.g., 

Barlow and Taylor, 2005; Clark et al., 

2010; Gerrodette et al., 2011; Van Parijs 

et al., 2021). Acoustic monitoring (in 

addition to visual monitoring) increases 

the likelihood of detecting marine 

mammals within the shutdown and 

clearance zones of project activities, 

which when applied in combination of 

required shutdowns helps to further 

reduce the risk of marine mammals 

being exposed to sound levels that 

could otherwise result in acoustic injury 

or more intense behavioral harassment. 

The exact configuration and number 

of PAM systems depends on the size of 

the zone(s) being monitored, the amount 

of noise expected in the area, and the 

characteristics of the signals being 

monitored. More closely spaced 

hydrophones would allow for more 

directionality, and perhaps, range to the 

vocalizing marine mammals; although, 

this approach would add additional 

costs and greater levels of complexity to 

the project. Larger baleen cetacean 

species (i.e., mysticetes), which produce 

loud and lower-frequency vocalizations, 

may be able to be heard with fewer 

hydrophones spaced at greater 

distances. However, smaller cetaceans 

(such as mid-frequency delphinids; 

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). 


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As there are no ‘‘perfect fit’’ singleoptimal-array configurations, these setups 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 

unconditional-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’’ or ‘‘Lead PAM 

operator’’) who would be required to 

meet the unconditional approval 

standard. 

Although PSOs and PAM operators 

must be approved by NMFS, third-party 

observer providers and/or companies 

seeking PSO and PAM operator staffing 

should expect that those having 

satisfactorily completed acceptable 

training and with the requisite 

experience (if required) will be quickly 

approved. Ocean Wind is required to 

request PSO and PAM operator 

approvals 60 days prior to those 

personnel commencing work. An initial 

list of previously approved PSO and 

PAM operators must be submitted by 

Ocean Wind at least 30 days prior to the 

start of the project. Should Ocean Wind 

require additional PSOs or PAM 

operators throughout the project, Ocean 

Wind must submit a subsequent list of 

pre-approved PSOs and PAM operators 

to NMFS at least 15 days prior to 

planned use of that PSO or PAM 

operator. A PSO may be trained and/or 

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 

marine mammals during foundation 

installation and UXO/MEC detonation. 

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 

and any UXO/MEC detonation event; at 

least two PSOs must be on duty during 

cable landfall construction vibratory 

pile installation and removal; 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. 

Ocean Wind is required to submit a 

Pile Driving and UXO/MEC Marine 

Mammal Monitoring Plan and a PAM 

Plan to NMFS 180 days in advance of 

foundation installation activities. The 

Plan must include details regarding PSO 

and PAM monitoring protocols and 

equipment proposed for us. More 

specifically, 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 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 or UXO/MEC 

detonation 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 Ocean Wind’s Protected 

Species Mitigation and Monitoring Plan 

(PSMMP) (Appendix B) found in their 

ITA application on NMFS’ website at 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-lcc-construction-ocean-wind-1- 

wind-energy-facility. 

Sound Field Verification 

Ocean Wind must conduct SFV 

measurements during all UXO/MEC 

detonations and for all impact piledriving activities associated with the 

installation of, at minimum, the first 

three monopile foundations. SFV 

measurements must continue until at 

least three consecutive piles 

demonstrate distances to thresholds are 

at or below those modeled assuming 10 

dB of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or additional 

piles be driven that are anticipated to 

produce longer distances to harassment 

isopleths than those previously 

measured (e.g., higher hammer energy, 

greater number of strikes, etc.). The 

measurements and reporting associated 

with SFV 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 

Ocean Wind is required to make 

adjustments quickly (e.g., ensure bubble 

curtain hose maintenance, check bubble 

curtain air pressure supply, add 

additional sound attenuation, etc.) to 


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ensure marine mammals are not 

experiencing noise levels above those 

considered in this analysis. For 

recommended SFV protocols for impact 

pile driving, please consult ISO 18406 

Underwater acoustics—Measurement of 

radiated underwater sound from 

percussive pile driving (2017). 

Reporting 

Prior to any construction activities 

occurring, Ocean Wind would provide a 

report to NMFS Office of Protected 

Resources that demonstrates that all 

required training for Ocean Wind 

personnel, which includes the vessel 

crews, vessel captains, PSOs, and PAM 

operators have completed all required 

trainings. 

NMFS would require standardized 

and frequent reporting from Ocean 

Wind 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. 

Ocean Wind is required 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, Ocean Wind 

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 piledriving activities, the start and stop of 

associated observation periods by PSOs, 

details on the deployment of PSOs, a 

record of all detections of marine 

mammals (acoustic and visual), any 

mitigation actions (or if mitigation 

actions could not be taken, provide 

reasons why), and details on the noise 

abatement system(s) (e.g., system type, 

distance deployed from the pile, bubble 

rate, etc.). Weekly reports will be due on 

Wednesday for the previous week 

(Sunday to Saturday). The weekly 

reports are also required to identify 

which turbines become operational and 

when (a map must be provided). Once 

all foundation pile installation is 

complete, weekly reports would no 

longer be required. 

Monthly Report—Ocean Wind is 

required to compile and submit monthly 

reports to NMFS Office of Protected 

Resources that include a summary of all 

information in the weekly reports, 

including project activities carried out 

in the previous month, vessel transits 

(number, type of vessel, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

actions taken. Monthly reports would be 

due on the 15th of the month for the 

previous month. The monthly report 

would also identify which turbines 

become operational and when (a map 

must be provided). Once all foundation 

pile installation is complete, monthly 

reports would no longer be required. 

Annual Reporting—Ocean Wind is 

required to submit an annual marine 

mammal monitoring (both PSO and 

PAM) report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year describing, in detail, all of 

the information required in the 

monitoring section above. A final 

annual report must be prepared and 

submitted within 30 calendar days 

following receipt of any NMFS 

comments on the draft report. 

Final 5-Year Reporting—Ocean Wind 

must submit its draft 5-year report(s) to 

NMFS Office of Protected Resources on 

all visual and acoustic monitoring 

conducted under the LOA within 90 

calendar days of the completion of 

activities occurring under the LOA. A 

final 5-year report must be prepared and 

submitted within 60 calendar days 

following receipt of any NMFS 

comments on the draft report. 

Information contained within this report 

is described at the beginning of this 

section. 

Situational Reporting—Specific 

situations encountered during the 

development of the Project requires 

immediate reporting. For instance, if a 

North Atlantic right whale is observed 

at any time by PSOs or project 

personnel, the sighting must be 

immediately (if not feasible, as soon as 

possible and no longer than 24 hours 

after the sighting) reported to NMFS. If 

a North Atlantic right whale is 

acoustically detected at any time via a 

project-related PAM system, the 

detection must be reported as soon as 

possible and no longer than 24 hours 

after the detection to NMFS via the 24- 

hour North Atlantic right whale 

Detection Template (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-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, 

Ocean Wind must immediately cease all 

activities until NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Ocean Wind 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, Ocean Wind 

must immediately report the strike 

incident. If the strike occurs in the 

Greater Atlantic Region (Maine to 

Virginia), Ocean Wind must call the 

NMFS Greater Atlantic Stranding 

Hotline. Separately, Ocean Wind must 

also and immediately report the 

incident to NMFS Office of Protected 

Resources and GARFO. Ocean Wind 

must immediately cease all on-water 

activities until NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Ocean Wind may not 

resume their activities until notified by 

NMFS. 

In the event of any lost gear associated 

with the fishery surveys, Ocean Wind 

must report to the 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—Ocean 

Wind is required to submit interim SFV 

reports after each foundation 

installation and UXO/MEC detonation 

monitored as soon as possible but 

within 48 hours. A final SFV report for 

all monopile foundation installation and 

UXO/MEC detonations would be 

required within 90 days following 

completion of acoustic monitoring. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to Ocean 

Wind’s construction activities contain 

an adaptive management component. 

Our understanding of the effects of 


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offshore wind construction activities 

(e.g., acoustic and explosive stressors) 

on marine mammals continues to 

evolve, which makes the inclusion of an 

adaptive management component both 

valuable and necessary within the 

context of 5-year regulations. 

The monitoring and reporting 

requirements in this final rule 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 Ocean Wind 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 authorized by these regulations or 

subsequent LOA. During the course of 

the rule, Ocean Wind (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. 

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., populationlevel 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 to this 

preamble, we discuss the estimated 

maximum number of takes by Level A 

harassment and Level B harassment that 

could occur from Ocean Wind’s 

specified activities based on the 

methods described. The impact that any 

given take would have is dependent on 

many case-specific factors that need to 

be considered in the negligible impact 

analysis (e.g., the context of behavioral 

exposures such as duration or intensity 

of a disturbance, the health of impacted 

animals, the status of a species that 

incurs fitness-level impacts to 

individuals, etc.). In this final rule, we 

evaluate the likely impacts of the 

enumerated harassment takes that are 

authorized in the context of the specific 

circumstances surrounding these 

predicted takes. We also collectively 

evaluate this information, as well as 

other more taxa-specific information 

and mitigation measure effectiveness, in 

group-specific discussions that support 

our negligible impact conclusions for 

each stock. As described above, no 

serious injury or mortality is expected 

or authorized for any species or stock. 

The Description of the Specified 

Activities section of this preamble 

describes Ocean Wind’s specified 

activities that may result in take of 

marine mammals and an estimated 

schedule for conducting those activities. 

Ocean Wind has provided a realistic 

construction schedule although we 

recognize schedules may shift for a 

variety of reasons (e.g., weather or 

supply delays). However, the total 

amount of take would not exceed the 5- 

year totals and maximum annual total in 

any given year indicated in Tables 34 

and 35, respectively. 

We base our analysis and negligible 

impact determination on the maximum 

number of takes that could occur and 

are authorized 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 maximum annual and 5-year total, 

alone are only a part of the analysis. 

To avoid repetition, we provide some 

general analysis in this Negligible 

Impact Analysis and Determination 

section that applies to all the species 

listed in Table 2, given that some of the 

anticipated effects of Ocean Wind’s 

construction activities on marine 

mammals are expected to be relatively 

similar in nature. Then, we subdivide 

into more detailed discussions for 

mysticetes, odontocetes, and pinnipeds 

which have broad life-history traits that 

support an overarching discussion of 

some factors considered within the 

analysis for those groups (e.g., habitatuse patterns, high-level differences in 

feeding strategies). 

Last, we provide a negligible impact 

determination for each species or stock, 

providing species or stock-specific 

information or analysis, where 

appropriate, for example, for North 

Atlantic right whales given their 

population status. Organizing our 

analysis by grouping species or stocks 

that share common traits or that would 

respond similarly to effects of Ocean 

Wind’s activities, and then providing 

species- or stock-specific information 

allows us to avoid duplication while 

ensuring that we have analyzed the 

effects of the specified activities on each 

affected species or stock. It is important 

to note that in the group or species 

sections, we base our negligible impact 

analysis on the maximum annual take 

that is predicted under the 5-year rule; 

however, the majority of the impacts are 

associated with WTG foundation and 

OSS foundation installation, which 

would occur largely within the first 2 to 

3 years (2023 through 2024 or 2025). 

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 33, 

34, and 35). 

As described previously, no serious 

injury or mortality is anticipated or 

authorized in this rule. Any Level A 

harassment authorized would be in the 

form of auditory injury (i.e., PTS) and 

not non-auditory injury (e.g., lung injury 

or gastrointestinal injury from UXO/ 

MEC detonation). The amount of 

harassment Ocean Wind has requested, 

and NMFS is authorizing, is based on 

exposure models that consider the 

outputs of acoustic source and 


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propagation models and other data such 

as frequency of occurrence or group 

sizes. Several conservative parameters 

and assumptions are ingrained into 

these models, such as assuming forcing 

functions that consider direct contact 

with piles (i.e., no cushion allowances) 

and application of the average summer 

sound speed profile to all months 

within a given season. The exposure 

model results do not reflect any 

mitigation measures (other than 10 dB 

sound attenuation) or avoidance 

response. The amount of take requested 

and authorized also reflects careful 

consideration of other data (e.g., group 

size data) and for Level A harassment 

potential of some large whales, the 

consideration of mitigation measures. 

For all species, the amount of take 

authorized represents the maximum 

amount of Level A harassment and 

Level B harassment that could occur. 

Behavioral Disturbance 

In general, NMFS anticipates that 

impacts on an individual that has been 

harassed are likely to be more intense 

when exposed to higher received levels 

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, the 

intensity and duration of any impact 

resulting from exposure to Ocean 

Wind’s activities is dependent upon a 

number of contextual factors including, 

but not limited to, sound source 

frequencies, whether the sound source 

is moving towards the animal, hearing 

ranges of marine mammals, behavioral 

state at time of exposure, status of 

individual exposed (e.g., reproductive 

status, age class, health) and an 

individual’s experience with similar 

sound sources. Southall et al. (2021), 

Ellison et al. (2012) and Moore and 

Barlow (2013), among others, emphasize 

the importance of context (e.g., 

behavioral state of the animals, distance 

from the sound source) in evaluating 

behavioral responses of marine 

mammals to acoustic sources. 

Harassment of marine mammals may 

result in behavioral modifications (e.g., 

avoidance, temporary cessation of 

foraging or communicating, changes in 

respiration or group dynamics, masking) 

or may result in auditory impacts such 

as hearing loss. In addition, some of the 

lower level physiological stress 

responses (e.g., change in respiration, 

change in heart rate) discussed 

previously would likely co-occur with 

the behavioral modifications, although 

these physiological responses are more 

difficult to detect and fewer data exist 

relating these responses to specific 

received levels of sound. Takes by Level 

B harassment, then, may have a stressrelated physiological component as 

well; however, we would not expect 

Ocean Wind’s activities to produce 

conditions of long-term and continuous 

exposure to noise leading to long-term 

physiological stress responses in marine 

mammals that could affect reproduction 

or survival. 

In the range of behavioral effects that 

might be expected to be part of a 

response that qualifies as an instance of 

Level B harassment by behavioral 

disturbance (which by nature of the way 

it is modeled/counted, occurs within 1 

day), the less severe end might include 

exposure to comparatively lower levels 

of a sound, at a greater distance from the 

animal, for a few or several minutes. A 

less severe exposure of this nature could 

result in a behavioral response such as 

avoiding an area that an animal would 

otherwise have chosen to move through 

or feed in for some amount of time, or 

breaking off one or a few feeding bouts. 

More severe effects could occur if an 

animal gets close enough to the source 

to receive a comparatively higher level, 

is exposed continuously to one source 

for a longer time, or is exposed 

intermittently to different sources 

throughout a day. Such effects might 

result in an animal having a more severe 

flight response and leaving a larger area 

for a day or more or potentially losing 

feeding opportunities for a day. 

However, such severe behavioral effects 

are expected to occur infrequently. 

Many species perform vital functions, 

such as feeding, resting, traveling, and 

socializing on a diel cycle (24-hour 

cycle). Behavioral reactions to noise 

exposure, when taking place in a 

biologically important context, such as 

disruption of critical life functions, 

displacement, or avoidance of important 

habitat, are more likely to be significant 

if they last more than 1 day or recur on 

subsequent days (Southall et al., 2007) 

due to diel and lunar patterns in diving 

and foraging behaviors observed in 

many cetaceans (Baird et al., 2008; 

Barlow et al., 2020; Henderson et al., 

2016; Schorr et al., 2014). It is important 

to note the water depth in the Project 

Area is shallow (ranging up to 40 m in 

the ECRs and 15 to 36 m in the Lease 

Area) and deep diving species, such as 

sperm whales, are not expected to be 

engaging in deep foraging dives when 

exposed to noise above NMFS 

harassment thresholds during the 

specified activities. Therefore, we do 

not anticipate impacts to deep foraging 

behavior to be impacted by the specified 

activities. 

It is also important to identify that the 

estimated number of takes does not 

necessarily equate to the number of 

individual animals Ocean Wind expects 

to harass (which is lower) but rather to 

the instances of take (i.e., exposures 

above the Level B harassment 

thresholds) that may occur. These 

instances may represent either brief 

exposures of seconds for UXO/MEC 

detonations, seconds to minutes for 

HRG surveys, or, in some cases, longer 

durations of exposure within a day (e.g., 

pile driving). Some individuals of a 

species may experience recurring 

instances of take over multiple days 

throughout the year while some 

members of a species or stock may 

experience one exposure as they move 

through an area, which means that the 

number of individuals taken is smaller 

than the total estimated takes. In short, 

for species that are more likely to be 

migrating through the area and/or for 

which only a comparatively smaller 

number of takes are predicted (e.g., 

some of the mysticetes), it is more likely 

that each take represents a different 

individual whereas for non-migrating 

species with larger amounts of predicted 

take, we expect that the total anticipated 

takes represent exposures of a smaller 

number of individuals of which some 

would be taken across multiple days. 

For Ocean Wind, 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, UXO/MEC detonations, and 

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. While UXO/MEC 

detonations may have higher source 

levels, impact pile driving is planned 

for longer durations (i.e., a maximum of 

10 UXO/MEC detonations are planned, 

which would result in only 

instantaneous exposures). While impact 

pile driving for foundation installation 

is anticipated to be most impactful for 

these reasons, impacts are minimized 


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through implementation of mitigation 

measures, including use of a sound 

attenuation system, soft-starts, the 

implementation of clearance zones that 

would facilitate a delay to pile-driving 

commencement, and implementation of 

shutdown zones. For example, given 

sufficient notice through the use of softstart, marine mammals are expected to 

move away from a sound source that is 

disturbing prior to becoming exposed to 

very loud noise levels. The requirement 

to couple visual monitoring and PAM 

before and during all foundation 

installation and UXO/MEC detonations 

will increase the overall capability to 

detect marine mammals compared to 

one method alone. Measures such as the 

requirement to apply sound attenuation 

devices and implement clearance zones 

also apply to UXO/MEC detonation(s), 

which also have the potential to elicit 

more severe behavioral reactions in the 

unlikely event that an animal is 

relatively close to the explosion in the 

instant that it occurs; hence, severity of 

behavioral responses are expected to be 

lower than would be the case without 

mitigation. 

Occasional, milder behavioral 

reactions are unlikely to cause long-term 

consequences for individual animals or 

populations, and even if some smaller 

subset of the takes are in the form of a 

longer (several hours or a day) and more 

severe response, if they are not expected 

to be repeated over numerous or 

sequential days, impacts to individual 

fitness are not anticipated. Also, the 

effect of disturbance is strongly 

influenced by whether it overlaps with 

biologically important habitats when 

individuals are present—avoiding 

biologically important habitats will 

provide opportunities to compensate for 

reduced or lost foraging (Keen et al., 

2021). Nearly all studies and experts 

agree that infrequent exposures of a 

single day or less are unlikely to impact 

an individual’s overall energy budget 

(Farmer et al., 2018; Harris et al., 2017; 

King et al., 2015; National Academy of 

Science, 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 Ocean Wind’s 

activities and, as described earlier, the 

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, 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 and UXO/MEC detonations 

are broadband noise sources but 

generate sounds in the lower frequency 

ranges (with most of the energy below 

1–2 kHz, but with a small amount 

energy ranging up to 20 kHz); therefore, 

in general and all else being equal, we 

would anticipate the potential for TTS 

is higher in low-frequency cetaceans 

(i.e., mysticetes) than other marine 

mammal hearing groups and would be 

more likely to occur in frequency bands 

in which they communicate. However, 

we would not expect the TTS to span 

the entire communication or hearing 

range of any species given that the 

frequencies produced by these activities 

do not span entire hearing ranges for 

any particular species. Additionally, 

though the frequency range of TTS that 

marine mammals might sustain would 

overlap with some of the frequency 

ranges of their vocalizations, the 

frequency range of TTS from Ocean 

Wind’s pile driving and UXO/MEC 

detonation activities would not 

typically span the entire frequency 

range of one vocalization type, much 

less span all types of vocalizations or 

other critical auditory cues for any given 

species. The required mitigation 

measures further reduce the potential 

for TTS in mysticetes. 

Generally, both the degree of TTS and 

the duration of TTS would be greater if 

the marine mammal is exposed to a 

higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS was discussed 

previously (see the Estimated Take 

section of this preamble). However, 

source level alone is not a predictor of 

TTS. An animal would have to 

approach closer to the source or remain 

in the vicinity of the sound source 

appreciably longer to increase the 

received SEL, which would be difficult 

considering the required mitigation and 

the nominal speed of the receiving 

animal relative to the stationary sources 

such as impact pile driving. The 

recovery time 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), 

some using exposures of almost an hour 

in duration or up to 217 SEL, almost all 

individuals recovered within 1 day (or 

less, often in minutes) and we note that 

while the pile-driving activities last for 

hours a day, it is unlikely that most 

marine mammals would stay in the 

close vicinity of the source long enough 

to incur more severe TTS. UXO/MEC 

detonation also has the potential to 

result in TTS. However, given the 

duration of exposure is extremely short 

(milliseconds), the degree of TTS (i.e., 

the amount of dB shift) is expected to 

be small and TTS duration is expected 

to be short (minutes to hours). Overall, 

given the small number of times that 

any individual might incur TTS, the low 

degree of TTS and the short anticipated 

duration, and the unlikely scenario that 

any TTS overlapped the entirety of a 

critical hearing range, it is unlikely that 

TTS (of the nature expected to result 

from the project’s activities) would 

result in behavioral changes or other 

impacts that would impact any 

individual’s (of any hearing sensitivity) 

reproduction or survival. 

Permanent Threshold Shift (PTS) 

NMFS is authorizing a very small 

amount of take by PTS to some marine 

mammal individuals. The numbers of 

authorized annual takes by Level A 

harassment are relatively low for all 

marine mammal stocks and species 

(Table 33). The only activities incidental 

to which we anticipate PTS may occur 

is from exposure to impact pile driving 

and UXO/MEC detonation, which 

produces sounds that are both 

impulsive and primarily concentrated in 

the lower frequency ranges (below 1 

kHz) (David, 2006; Krumpel et al., 

2021). 

There are no PTS data on cetaceans 

and only one instance of PTS being 

induced in older harbor seals 

(Reichmuth et al., 2019). However, 

available TTS data (of mid-frequency 

hearing specialists exposed to mid- or 

high-frequency sounds (Southall et al., 

2007; NMFS, 2018; Southall et al., 

2019)) suggest that most threshold shifts 

occur in the frequency range of the 

source up to one octave higher than the 

source. We would anticipate a similar 

result for PTS. Further, no more than a 

small degree of PTS is expected to be 

associated with any of the incurred 

Level A harassment, given it is unlikely 

that animals would stay in the close 

vicinity of a source for a duration long 

enough to produce more than a small 

degree of PTS. 

PTS would consist of minor 

degradation of hearing capabilities 

occurring predominantly at frequencies 

one-half to one octave above the 

frequency of the energy produced by 

pile driving or instantaneous UXO/MEC 

detonation (i.e., the low-frequency 

region below 2 kHz) (Cody and 


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Johnstone, 1981; McFadden, 1986; 

Finneran, 2015), not severe hearing 

impairment. If hearing impairment 

occurs from either impact pile driving 

or UXO/MEC detonation, it is most 

likely that the affected animal would 

lose a few decibels in its hearing 

sensitivity, which in most cases is not 

likely to meaningfully affect its ability 

to forage and communicate with 

conspecifics. Ocean Wind estimates 10 

UXOs/MECs may be detonated and the 

exposure analysis conservatively 

assumes that all of the UXOs/MECs 

found would consist of the largest 

charge weight of UXO/MEC (E12; 454 

kg). However, it is highly unlikely that 

all charges would be the maximum size; 

thus, the amount of Level A harassment 

that may occur incidental to the 

detonation of the UXOs/MECs is likely 

less than what is estimated here. In 

addition, during impact pile driving, 

given sufficient notice through use of 

soft-start prior to implementation of full 

hammer energy during impact pile 

driving, marine mammals are expected 

to move away from a sound source that 

is disturbing prior to it resulting in 

severe PTS. 

Auditory Masking or Communication 

Impairment 

The ultimate potential impacts of 

masking on an individual are similar to 

those discussed for TTS (e.g., decreased 

ability to communicate, forage 

effectively, or detect predators), but an 

important difference is that masking 

only occurs during the time of the 

signal, versus TTS, which continues 

beyond the duration of the signal. Also, 

though, masking can result from the 

sum of exposure to multiple signals, 

none of which might individually cause 

TTS. Fundamentally, masking is 

referred to as a chronic effect because 

one of the key potential harmful 

components of masking is its duration— 

the fact that an animal would have 

reduced ability to hear or interpret 

critical cues becomes much more likely 

to cause a problem the longer it is 

occurring. Inherent in the concept of 

masking is the fact that the potential for 

the effect is only present during the 

times that the animal and the source are 

in close enough proximity for the effect 

to occur (and further, this time period 

would need to coincide with a time that 

the animal was utilizing sounds at the 

masked frequency). 

As our analysis has indicated, for this 

project we expect that impact pile 

driving foundations have the greatest 

potential to mask marine mammal 

signals, and this pile driving may occur 

for several, albeit intermittent, hours per 

day, for multiple days per year. Masking 

is fundamentally more of a concern at 

lower frequencies (which are piledriving dominant frequencies), because 

low frequency signals propagate 

significantly further than higher 

frequencies and because they are more 

likely to overlap both the narrower low 

frequency calls of mysticetes, as well as 

many non-communication cues related 

to fish and invertebrate prey, and 

geologic sounds that inform navigation. 

However, the area in which masking 

would occur for all marine mammal 

species and stocks (e.g., predominantly 

in the vicinity of the foundation pile 

being driven) is small relative to the 

extent of habitat used by each species 

and stock. In summary, the nature of 

Ocean Wind’s activities, paired with 

habitat use patterns by marine 

mammals, does not support the 

likelihood that the level of masking that 

could occur would have the potential to 

affect reproductive success or survival. 

Impacts on Habitat and Prey 

Construction activities and UXO/MEC 

detonation may result in fish and 

invertebrate mortality or injury very 

close to the source, and all Ocean 

Wind’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 noise attenuation 

system during impact pile driving and 

UXO/MEC detonation would further 

limit the degree of impact (again noting 

UXO/MEC detonation would be limited 

to 10 events over 5 years). Behavioral 

changes in prey in response to 

construction activities could 

temporarily impact marine mammals’ 

foraging opportunities in a limited 

portion of the foraging range but, 

because of the relatively small area of 

the habitat that may be affected at any 

given time (e.g., around a pile being 

driven), the impacts to marine mammal 

habitat are not expected to cause 

significant or long-term negative 

consequences. 

Cable presence 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 presence of wind turbines within 

the Lease Area could have longer-term 

impacts on marine mammal habitat, as 

the project would result in the 

persistence of the structures within 

marine mammal habitat for more than 

30 years. The presence of structures 

such as wind turbines is, in general, 

likely to result in certain oceanographic 

effects in the marine environment, and 

may alter aggregations and distribution 

of marine mammal zooplankton prey 

through changing the strength of tidal 

currents and associated fronts, changes 

in stratification, primary production, the 

degree of mixing, and stratification in 

the water column (Chen et al., 2021; 

Johnson et al., 2021; Christiansen et al., 

2022; Dorrell et al., 2022). 

As discussed in the Potential Effects 

of the Specified Activities on Marine 

Mammals and their Habitat section of 

the proposed rule, the project would 

consist of no more than 101 foundations 

(98 WTGs and 3 OSSs) in the Lease 

Area, which will gradually become 

operational following construction 

completion, in around Year 3 of the 

rule. While there are likely to be 

oceanographic impacts from the 

presence of the Ocean Wind project, 

meaningful oceanographic impacts 

relative to stratification and mixing that 

would significantly affect marine 

mammal habitat and prey over large 

areas in key foraging habitats during the 

effective period of the regulations is not 

anticipated (which considers 2–3 years 

of turbine operation). For these reasons, 

if oceanographic features are affected by 

the project during the effective period of 

the regulations, the impact on marine 

mammal habitat and their prey is likely 

to be comparatively minor; therefore, we 

are not authorizing take due to habitat 

and prey impacts. 

The Ocean Wind 1 Biological Opinion 

provided an evaluation of the presence 

and operation of the Project on, among 

other species, marine mammals and 

their prey. While the consultation 

considered the life of the project (25+ 

years), we considered the potential for 

the habitat and prey impacts to also 

occur within the 5-year effective time 

frame of this rule. Overall, the 

Biological Opinion concluded that 

impacts from loss of sandy bottom 

habitat (from the presence of turbines 

and placement of scour protection) as 

well as any beneficial reef effects are 

expected to be so small that they cannot 

be meaningfully measured, evaluated, or 

detected and are, therefore, 

insignificant. The Biological Opinion 

also concluded that the presence and 

operation of the wind farm may change 

the distribution of plankton with the 

wind farm, these changes are not 

expected to affect the oceanographic 

forces transporting zooplankton into the 

area. Therefore, the Biological Opinion 

concluded that the overall reduction in 

biomass of plankton is not an 

anticipated outcome of operating the 


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Project. Thus, because changes in the 

biomass of zooplankton are not 

anticipated, any higher trophic level 

impacts are also not anticipated. That is, 

no effects to pelagic fish or benthic 

invertebrates that depend on plankton 

as forage food are expected to occur. 

Zooplankton, fish and invertebrates are 

all considered marine mammal prey 

and, as fully described in the Biological 

Opinion, measurable, detectable or 

significant changes to marine mammal 

prey abundance and distribution from 

wind farm operation is not anticipated. 

Mitigation To Reduce Impacts on All 

Species 

This rulemaking includes a variety of 

mitigation measures designed to 

minimize impacts on all marine 

mammals, with a focus on North 

Atlantic right whales (the latter is 

described in more detail below). For 

impact pile driving of foundation piles 

and UXO/MEC detonations, nine 

overarching mitigation measures are 

required, which are intended to reduce 

both the number and intensity of marine 

mammal takes: (1) seasonal/time of day 

work restrictions; (2) use of multiple 

PSOs to visually observe for marine 

mammals (with any detection within 

specifically designated zones 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; (7) 

use of noise attenuation technology; (8) 

maintaining situational awareness of 

marine mammal presence through the 

requirement that any marine mammal 

sighting(s) by Ocean Wind personnel 

must be reported to PSOs; (9) sound 

field verification monitoring; and (10) 

Vessel Strike Avoidance measures to 

reduce the risk of a collision with a 

marine mammal and vessel. For 

cofferdam and goal post installation and 

removal, we are requiring five 

overarching mitigation 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 Ocean Wind 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 Ocean Wind personnel 

must be reported to PSOs. 

NMFS prescribes mitigation measures 

based on the following rationale. For 

activities with large harassment 

isopleths, Ocean Wind is committed to 

reducing the noise levels generated to 

the lowest levels practicable and is 

required to ensure that they do not 

exceed a noise footprint above that 

which was modeled, assuming a 10-dB 

attenuation. Use of a soft-start during 

impact pile driving will allow animals 

to move away from (i.e., avoid) the 

sound source prior to applying higher 

hammer energy levels needed to install 

the pile (Ocean Wind 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 

(with some exception for UXO/MEC 

detonations, which would not have a 

shutdown zone), 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 and OSS foundation installation, 

temporary cofferdam and goal post 

installation and removal, UXO/MEC 

detonations, HRG surveys), PAM 

operators (for impact foundation 

installation and UXO/MEC detonations), 

and maintaining awareness of marine 

mammal sightings reported in the region 

(WTG and OSS foundation installation, 

temporary cofferdam and goal post 

installation and removal, UXO/MEC 

detonations, 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, foundation 

operation, and UXO/MEC detonations), 

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 

Six mysticete species (comprising six 

stocks) of cetaceans (North Atlantic 

right whale, blue whale, humpback 

whale, fin whale, sei whale, and minke 

whale) may be taken by harassment. 

These species, to varying extents, utilize 

the specified geographic region, 

including the Project Area, for the 

purposes of migration, foraging, and 

socializing. Mysticetes are in the lowfrequency hearing group. 

Behavioral data on mysticete 

reactions to pile-driving noise are scant. 

Kraus et al. (2019) predicted that the 

three main impacts of offshore wind 

farms on marine mammals would 

consist of displacement, behavioral 

disruptions, and stress. Broadly, we can 

look to studies that have focused on 

other noise sources such as seismic 

surveys and military training exercises, 

which suggest that exposure to loud 

signals can result in avoidance of the 

sound source (or displacement if the 

activity continues for a longer duration 

in a place where individuals would 

otherwise have been staying, which is 

less likely for mysticetes in this area), 

disruption of foraging activities (if they 

are occurring in the area), local masking 

around the source, associated stress 

responses, and impacts to prey, as well 

as TTS or PTS in some cases. 

Mysticetes encountered in the Project 

Area are expected to primarily be 

migrating and, to a lesser degree, may be 

engaged in foraging behavior. The extent 

to which an animal engages in these 

behaviors in the area is species-specific 

and varies seasonally. Many mysticetes 

are expected to predominantly be 

migrating through the Project Area 

towards or from feeding 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 and UXO/MEC detonations, 

given the very short duration of and 

broad availability of prey species in the 

area and the availability of alternative 

suitable foraging habitat for the 

mysticete species most likely to be 

affected, any impacts on mysticete 

foraging is expected to be minor. Whales 

temporarily displaced from the Project 

Area are expected to have sufficient 

remaining feeding habitat available to 

them and would not be prevented from 

feeding in other areas within the 

biologically important feeding habitats 

found further north. In addition, any 

displacement of whales or interruption 

of foraging bouts would be expected to 

be relatively temporary in nature. 


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The potential for repeated exposures 

is dependent upon the residency time of 

whales, with migratory animals unlikely 

to be exposed on repeated occasions and 

animals remaining in the area to be 

more likely exposed repeatedly. For 

mysticetes, where relatively low 

amounts of species-specific take by 

Level B harassment are predicted 

(compared to the abundance of each 

mysticete species or stock, such as is 

indicated in Table 33) and movement 

patterns suggest that individuals would 

not necessarily linger in a particular 

area for multiple days, each predicted 

take likely represents an exposure of a 

different individual; the behavioral 

impacts would, therefore, be expected to 

occur within a single day within a 

year—an amount that would clearly not 

be expected to impact reproduction or 

survival. Species with longer residence 

time in the Project Area may be subject 

to repeated exposures across multiple 

days. 

In general, for this project, the 

duration of exposures 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 Ocean Wind has 

identified. Species-specific analysis 

regarding potential for repeated 

exposures and impacts is provided 

below. 

Fin, humpback, minke, and sei 

whales are the only mysticete species 

for which PTS is anticipated and 

authorized. As described previously, 

PTS for mysticetes from some project 

activities may overlap frequencies used 

for communication, navigation, or 

detecting prey. However, given the 

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 piledriving noise is concentrated (i.e., only 

a small subset of their expected hearing 

range) and would not be expected to 

impact reproductive success or survival. 

North Atlantic Right Whale 

North Atlantic right whales are listed 

as endangered under the ESA and as 

both depleted and strategic stock under 

the MMPA. As described in the 

Potential Effects to Marine Mammals 

and Their Habitat section of the 

proposed rule, North Atlantic right 

whales are threatened by a low 

population abundance, higher than 

average mortality rates, and lower than 

average reproductive rates. Recent 

studies have reported individuals 

showing high stress levels (e.g., 

Corkeron et al., 2017) and poor health, 

which has further implications on 

reproductive success and calf survival 

(Christiansen et al., 2020; Stewart et al., 

2021; Stewart et al., 2022). As described 

below, a UME has been designated for 

North Atlantic right whales. Given this, 

the status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis and consideration. 

No injury or mortality is anticipated or 

authorized for this species. 

For North Atlantic right whales, this 

rule authorizes up to 14 takes, by Level 

B harassment only, over the 5-year 

period, with a maximum annual 

allowable take of 7 (equating to 

approximately 2.1 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). The Project Area is 

known as a migratory corridor for North 

Atlantic right whales and given the 

nature of migratory behavior (e.g., 

continuous path), as well as the low 

number of total takes, we anticipate that 

few, if any, of the instances of take 

would represent repeat takes of any 

individual, though it could occur if 

whales are engaged in opportunistic 

foraging behavior. Whitt et al. (2013) 

observed two juveniles potentially skimfeeding off the coast of Barnegat Bay, 

New Jersey in January. While 

opportunistic foraging may occur in the 

Project area, the habitat does not 

support prime foraging habitat. 

The highest density of North Atlantic 

right whales in the Project Area occurs 

in the winter (Table 7). The MidAtlantic, including the Project Area, 

may be a stopover site for migrating 

North Atlantic right whales moving to 

or from southeastern calving grounds. 

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, the waters off the coast of 

New Jersey, including those 

surrounding the Project Area in the New 

Jersey Wind Energy Area (NJ WEA), 

have documented North Atlantic right 

whale presence as the area is an 

important migratory route for the 

species to the northern feeding areas 

near the Gulf of Maine and Georges 

Banks and to their southern breeding 

and calving grounds off the southeastern 

U.S. (CETAP, 1982; Knowlton and 

Kraus, 2001; Knowlton et al., 2022; 

Biedron et al., 2009; DoC, 2016b). 

However, comparatively, the area is not 

known as an important area for feeding, 

breeding, or calving. 

North Atlantic right whales range 

outside the Project Area for their main 

feeding, breeding, calving activities 

(Geo-Marine, 2010). Additional 

qualitative observations include animals 

feeding and socializing in New England 

waters, north of the NJ WEA (QuintanaRizzo et al., 2021). The North Atlantic 

right whales observed during the study 

period, north of the NJ WEA, were 

primarily concentrated in the 

northeastern and southeastern sections 

of the Massachusetts WEA (MA WEA) 

during the summer (June–August) and 

winter (December–February). North 

Atlantic right whale distribution did 

shift to the west into the Rhode Island/ 

Massachusetts (RI/MA) WEA in the 

spring (March–May). Quintana-Rizzo et 

al. (2021) found that approximately 23 

percent of the right whale population is 

present from December through May, 

and the mean residence time has tripled 

to an average of 13 days during these 

months. The NJ WEA is not in or near 

these areas important to feeding, 

breeding, and calving activities. 

In general, North Atlantic right 

whales in the Project Area are expected 

to be engaging in migratory behavior. 

Given the species’ migratory behavior in 

the Project Area, we anticipate 

individual whales would be typically 

migrating through the area during most 

months when foundation installation 

and UXO/MEC detonation would occur 

(given the seasonal restrictions on 

foundation installation and UXO/MEC 

detonation, rather than lingering for 

extended periods of time). Other work 

that involves either much smaller 

harassment zones (e.g., HRG surveys) or 

is limited in amount (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 occurring from December 

through May that may impact North 

Atlantic right whale would be primarily 

HRG surveys and the nearshore 

cofferdam and goalpost installation and 

removal, which would not result in very 

high received levels. Across all years, if 

an individual were to be exposed during 

a subsequent year, the impact of that 

exposure is likely independent of the 

previous exposure given the duration 

between exposures. 

As described in the Description of 

Marine Mammals in the Geographic 

Area 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 


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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 authorized. 

Any disturbance to North Atlantic right 

whales due to Ocean Wind’s activities is 

expected to result in temporary 

avoidance of the immediate area of 

construction. As no injury, serious 

injury, or mortality is expected or 

authorized, and Level B harassment of 

North Atlantic right whales will be 

reduced to the level of least practicable 

adverse impact through use of 

mitigation measures, the authorized 

number of takes of North Atlantic right 

whales would not exacerbate or 

compound the effects of the ongoing 

UME. 

As described in the general Mysticetes 

section above, foundation installation is 

likely to result in the highest amount of 

annual take and is of greatest concern 

given loud source levels. This activity 

would likely be limited to up to 116 

days over a maximum of 2 years, during 

times when, based on the best available 

scientific data, North Atlantic right 

whales are less frequently encountered 

due to their migratory behavior. The 

potential types, severity, and magnitude 

of impacts are also anticipated to mirror 

that described in the general Mysticetes 

section above, including avoidance (the 

most likely outcome), changes in 

foraging or vocalization behavior, 

masking, a small amount of TTS, and 

temporary physiological impacts (e.g., 

change in respiration, change in heart 

rate). Importantly, the effects of the 

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., many 

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 forage in these areas once activities 

have ceased. 

Although acoustic masking may occur 

in the vicinity of the foundation 

installation activities, based on the 

acoustic characteristics of noise 

associated with pile driving (e.g., 

frequency spectra, short duration of 

exposure) and construction surveys 

(e.g., intermittent signals), NMFS 

expects masking effects to be minimal 

(e.g., impact pile driving) to none (e.g., 

HRG surveys). In addition, masking 

would likely only occur during the 

period of time that a North Atlantic 

right whale is in the relatively close 

vicinity of pile driving, which is 

expected to be intermittent within a 

day, and confined to the months in 

which North Atlantic right whales are at 

lower densities and primarily moving 

through the area, anticipated mitigation 

effectiveness, and likely avoidance 

behaviors. TTS is another potential form 

of Level B harassment that could result 

in brief periods of slightly reduced 

hearing sensitivity affecting behavioral 

patterns by making it more difficult to 

hear or interpret acoustic cues within 

the frequency range (and slightly above) 

of sound produced during impact pile 

driving; however, any TTS would likely 

be of low amount, limited duration, and 

limited to frequencies where most 

construction noise is centered (below 2 

kHz). NMFS expects that right whale 

hearing sensitivity would return to preexposure 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, 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, we 

anticipate that course diversion would 

be of small magnitude. Hence, while 

some avoidance of the pile-driving 

activities may occur, we anticipate any 

avoidance behavior of migratory North 

Atlantic right whales would be similar 

to that of gray whales (Tyack et al., 

1983), on the order of hundreds of 

meters up to 1 to 2 km. This diversion 

from a migratory path otherwise 

uninterrupted by the project’s activities 

is not expected to result in meaningful 

energetic costs that would impact 

annual rates of recruitment of survival. 

NMFS expects that North Atlantic right 

whales would be able to avoid areas 

during periods of active noise 

production while not being forced out of 

this portion of their habitat. 

North Atlantic right whale presence 

in the Project Area is year-round. 

However, abundance during summer 

months is lower compared to the winter 

months with spring and fall serving as 

‘‘shoulder seasons’’ wherein abundance 

waxes (fall) or wanes (spring). Given 

this year-round habitat usage, in 

recognition that where and when 

whales may actually occur during 

project activities is unknown as it 

depends on the annual migratory 

behaviors, 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 

temporal overlap of project activities 

and North Atlantic right whales). This 

would further ensure that the number of 

takes by Level B harassment that are 

estimated to occur are not expected to 

affect reproductive success or 

survivorship by detrimental impacts to 

energy intake or cow/calf interactions 

during migratory transit. However, even 

in consideration of recent habitat-use 

and distribution shifts, Ocean Wind 

would still be installing foundations 

when the presence of North Atlantic 

right whales is expected to be lower. 

As described in the Description of 

Marine Mammals in the Geographic 

Area section, Ocean Wind would be 

constructed within the North Atlantic 

right whale migratory corridor BIA, 

which represent areas and months 

within which a substantial portion of a 

species or population is known to 

migrate. The Lease Area is relatively 

small compared with the migratory BIA 

area (approximately 277 km2 for OCS– 

A 0498 versus the size of the full North 

Atlantic right whale migratory BIA, 

269,448 km2). Because of this, the 

overall North Atlantic right whale 

migration is not expected to be 


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impacted by the proposed 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 January 1 

through April 30, and the limitation on 

these activities in December (e.g., only 

work with approval from NMFS), when 

North Atlantic right whale abundance in 

the Project Area is expected to be 

highest. NMFS also expects this 

measure to greatly reduce the potential 

for mother-calf pairs to be exposed to 

impact pile driving noise above the 

Level B harassment threshold during 

their annual spring migration through 

the Project Area from calving grounds to 

primary foraging grounds (e.g., Cape 

Cod Bay). UXO/MEC detonations would 

also be restricted from November 1 

through April 30, annually. 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. 

Pile driving and UXO/MEC 

detonations may only begin in the 

absence of North Atlantic right whales 

(based on visual and passive acoustic 

monitoring). If pile driving or UXO/ 

MEC detonations have commenced, 

NMFS anticipates North Atlantic right 

whales would avoid the area, utilizing 

nearby waters to carry on pre-exposure 

behaviors. However, foundation 

installation activities must be shut 

down if a North Atlantic right whale is 

sighted at any distance unless a 

shutdown is not feasible due to risk of 

injury or loss of life. Shutdown may 

occur anywhere if North Atlantic right 

whales are seen within or beyond the 

Level B harassment zone, further 

minimizing the duration and intensity 

of exposure. NMFS anticipates that if 

North Atlantic right whales go 

undetected and they are exposed to 

foundation installation or UXO/MEC 

detonation noise, it is unlikely a North 

Atlantic right whale would approach 

the sound source locations to the degree 

that they would purposely expose 

themselves to very high noise levels. 

This is because typical observed whale 

behavior demonstrates likely avoidance 

of harassing levels of sound where 

possible (Richardson et al., 1985). These 

measures are designed to avoid PTS and 

also reduce the severity of Level B 

harassment, including the potential for 

TTS. While some TTS could occur, 

given the 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 efficiency is maximized, as 

the measures are triggered by a sighting 

or acoustic detection. To maximize 

detection efficiency, 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 softstart for impact pile driving would 

provide an opportunity for whales to 

move away from the source if they are 

undetected, reducing received levels. 

The UXO/MEC detonations mitigation 

measures described above would further 

reduce the potential to be exposed to 

high received levels. 

For HRG surveys, the maximum 

distance to the Level B harassment 

threshold is 141 m. The estimated take, 

by Level B harassment only, associated 

with HRG surveys is to account for any 

North Atlantic right whale sightings 

PSOs may miss when HRG acoustic 

sources are active. However, because of 

the short maximum distance to the 

Level B harassment threshold, the 

requirement that vessels maintain a 

distance of 500 m from any North 

Atlantic right whales, the fact that 

whales are unlikely to remain in close 

proximity to an HRG survey vessel for 

any length of time, and that the acoustic 

source would be shut down if a North 

Atlantic right whale is observed within 

500 m of the source, any exposure to 

noise levels above the harassment 

threshold (if any) would be very brief. 

To further minimize exposures, rampup of sub-bottom profilers must be 

delayed during the clearance period if 

PSOs detect a North Atlantic right 

whale (or any other ESA-listed species) 

within 500 m of the acoustic source. 

With implementation of the mitigation 

requirements, take by Level A 

harassment is unlikely and, therefore, 

not authorized. Potential impacts 

associated with Level B harassment 

would include low-level, temporary 

behavioral modifications, most likely in 

the form of avoidance behavior. Given 

the high level of precautions taken to 

minimize both the amount and intensity 

of Level B harassment on North Atlantic 

right whales, it is unlikely that the 

anticipated low-level exposures would 

lead to reduced reproductive success or 

survival. 

As described above, no serious injury 

or mortality, or Level A harassment, of 

North Atlantic right whale is anticipated 

or allowed. Extensive North Atlantic 

right whale-specific mitigation measures 

(beyond the robust suite required for all 

species) are expected to further 

minimize the amount and severity of 

Level B harassment. Given the 

documented habitat use within the area, 

the majority of the individuals predicted 

taken (including no more than 14 

instances of take, by Level B harassment 

only, over the course of the 5-year rule, 

with an annual maximum of no more 

than 7) would be impacted on only 1, 

or maybe 2, days in a year as North 

Atlantic right whales utilize this area for 

migration and would be transiting rather 

than residing in the area for extended 

periods of time; and, further, any 

impacts to North Atlantic right whales 

are expected to be in the form of lowerlevel behavioral disturbance. Given the 

magnitude and severity of the impacts 

discussed above, and in consideration of 

the required mitigation and other 

information presented, Ocean Wind’s 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have determined 

that the take (by Level B harassment 

only) anticipated and authorized would 

have a negligible impact on the North 

Atlantic right whale. 

Blue Whale 

The blue whale is listed as 

Endangered under the ESA, and the 

western North Atlantic stock is 

considered Depleted and Strategic 

under the MMPA. There are no known 

areas of specific biological importance 

in or around the Project Area, and there 

is no ongoing UME. The actual 

abundance of the stock is likely 

significantly greater than what is 

reflected in the SAR because the most 

recent population estimates are 

primarily based on surveys conducted 

in U.S. waters and the stock’s range 


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extends well beyond the U.S. exclusive 

economic zone (EEZ). No serious injury 

or mortality is anticipated or authorized 

for this species. 

The rule authorizes up to four takes, 

by Level B harassment only, over the 5- 

year period. The maximum annual 

allowable take by Level B harassment, 

four, respectively (combined, this 

annual take (n=4) equates to 

approximately 0.97 percent of the stock 

abundance, if each take were considered 

to be of a different individual). Based on 

the migratory nature of blue whales and 

the fact that there are neither feeding 

nor reproductive areas documented in 

or near the Project Area, and in 

consideration of the very low number of 

predicted annual takes, it is unlikely 

that the predicted instances of takes 

would represent repeat takes of any 

individual—in other words, each take 

likely represents one whale exposed on 

1 day within a year. 

With respect to the severity of those 

individual takes by 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 TTS would be concentrated at 

half or one octave above the frequency 

band of pile-driving noise (most sound 

is below 2 kHz) which does not include 

the full predicted hearing range of blue 

whales. Any hearing ability temporarily 

impaired from TTS is anticipated to 

return to pre-exposure conditions 

within a relatively short time period 

after the exposures cease. Any 

avoidance of the Project Area due to the 

activities would be expected to be 

temporary. 

Given the magnitude and severity of 

the impacts discussed above and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by Level B 

harassment anticipated and authorized 

will have a negligible impact on the 

western North Atlantic stock of blue 

whales. 

Fin Whale 

The fin whale is listed as Endangered 

under the ESA, and the western North 

Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. No UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

authorized for this species. 

The rule authorizes up to 30 takes, by 

harassment only, over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 4 and 13, 

respectively (combined, this annual take 

(n=17) equates to approximately 0.25 

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 lowlevel 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. 

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 MidAtlantic 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; GeoMarine, 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 30 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 13, 

respectively), and in consideration of 

the required mitigation and other 

information presented, Ocean Wind’s 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have determined 

that the take by harassment anticipated 

and authorized will have a negligible 

impact on the western North Atlantic 

stock of fin whales. 

Humpback Whale 

The West Indies DPS of humpback 

whales is not listed as threatened or 

endangered under the ESA, but the Gulf 

of Maine stock, which includes 

individuals from the West Indies DPS, 

is considered Strategic under the 

MMPA. However, as described in the 

Description of Marine Mammals in the 

Geographic Area 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 

(vessel strike or entanglement). The 

UME does not yet provide cause for 

concern regarding population-level 

impacts and take from vessel strike and 

entanglement is not authorized. Despite 

the UME, the relevant population of 

humpback whales (the West Indies 

breeding population, or DPS of which 

the Gulf of Maine stock is a part) 

remains stable at approximately 12,000 

individuals. 

The rule authorizes up to 88 takes by 

harassment only over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 8 and 66, 

respectively (combined, this maximum 

annual take (n=74) equates to 

approximately 5.3 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 


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years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). Given that 

humpback whales are known to forage 

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, impact 

pile driving is likely to result in the 

highest amount of Level A harassment 

annual take (seven) of humpback 

whales. The maximum amount of 

annual take authorized, by Level B 

harassment, is highest for impact pile 

driving (n=60; WTGs plus OSS pin 

piles). 

As described in the Description of 

Marine Mammals in the Geographic 

Area section, Humpback whales are 

known to occur regularly throughout the 

Mid-Atlantic Bight, including New 

Jersey waters, with strong seasonality 

where peak occurrences occur April to 

June (Barco et al., 2002; Geo-Marine, 

2010; Curtice et al., 2019; Hayes et al., 

2022). 

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, 47,701, 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. 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 

any potential PTS and TTS would be 

concentrated at half or one octave above 

the frequency band of pile-driving noise 

(most sound is below 2 kHz) which does 

not include the full predicted hearing 

range of baleen whales. If TTS is 

incurred, hearing sensitivity would 

likely return to pre-exposure levels 

relatively shortly after exposure ends. 

Any masking or physiological responses 

would also be of low magnitude and 

severity for reasons described above. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 88 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 66, respectively), and in 

consideration of the required mitigation 

measures and other information 

presented, Ocean Wind’s activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on the Gulf of Maine stock of humpback 

whales. 

Minke Whale 

Minke whales are not listed under the 

ESA, and the Canadian East Coast stock 

is neither considered Depleted nor 

strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area. As described in the Description of 

Marine Mammals in the Geographic 

Area section, a UME has been 

designated for this species but is 

pending closure. No serious injury or 

mortality is anticipated or authorized 

for this species. 

The rule authorizes up to 141 takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment, would be 22 and 74, 

respectively (combined, this annual take 

(n=96) equates to approximately 0.44 

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 Geographic 

Area section, Minke whales are common 

offshore the U.S. Eastern Seaboard with 

a strong seasonal component in the 

continental shelf and in deeper, off-shelf 

waters (CETAP, 1982; Hayes et al., 

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 Geographic 

Area section, there is a UME for Minke 

whales, 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 authorized through 

this action is not expected to exacerbate 

the UME in any way. 

We anticipate the impacts of this 

harassment to follow those described in 

the general Mysticetes section above. 

Any potential PTS would be minor 

(limited to a few dB) and any TTS 

would be of short duration and 

concentrated at 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 141 takes of the course of 

the 5-year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of 22 and 74, 

respectively), and in consideration of 

the required mitigation and other 

information presented, Ocean Wind’s 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have determined 

that the take by harassment anticipated 

and authorized will have a negligible 

impact on the Canadian Eastern Coastal 

stock of minke whales. 

Sei Whale 

Sei whales are listed as Endangered 

under the ESA, and the Nova Scotia 

stock is considered both Depleted and 

Strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area and no UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

authorized for this species. 

The rule authorizes up to seven takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment, would be one and three, 

respectively (combined, this annual take 

(n=4) equates to approximately 0.6 

percent of the stock abundance, if each 

take were considered to be of a different 

individual). As described in the 

Description of Marine Mammals in the 

Geographic Area section, most of the sei 

whale distribution is concentrated in 


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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 and TTS 

would likely be concentrated at half or 

one octave above the frequency band of 

pile-driving noise (most sound is below 

2 kHz) which does not include the full 

predicted hearing range of sei whales. 

Moreover, any TTS would be of a small 

degree. Any avoidance of the Project 

Area due to the Project’s activities 

would be expected to be temporary. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than seven takes of the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

one and three, respectively), and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on the Nova Scotia 

stock of sei whales. 

Odontocetes 

In this section, we include 

information here that applies to all of 

the odontocete species and stocks 

addressed below. Odontocetes include 

dolphins, porpoises, and all other 

whales possessing teeth, and we further 

divide them into the following 

subsections: sperm whales, small 

whales and dolphins, and harbor 

porpoise. These sub-sections include 

more specific information, as well as 

conclusions for each stock represented. 

All of the takes of odontocetes 

authorized incidental to Ocean Wind’s 

specified activities are by pile driving, 

UXO/MEC detonations, and HRG 

surveys. No serious injury or mortality 

is anticipated or proposed. We 

anticipate that, given ranges of 

individuals (i.e., that some individuals 

remain within a small area for some 

period of time), and non-migratory 

nature of some odontocetes in general 

(especially as compared to mysticetes), 

these takes are more likely to represent 

multiple exposures of a smaller number 

of individuals than is the case for 

mysticetes, though some takes may also 

represent one-time exposures to an 

individual. Foundation installation is 

likely to disturb odontocetes to the 

greatest extent, compared to UXO/MEC 

detonations and HRG surveys. While we 

expect animals to avoid the area during 

foundation installation and UXO/MEC 

detonations, their habitat range is 

extensive compared to the area 

ensonified during these activities. In 

addition, as described above, UXO/MEC 

detonations are instantaneous; therefore, 

any disturbance would be very limited 

in time. 

As described earlier, Level B 

harassment may include direct 

disruptions in behavioral patterns (e.g., 

avoidance, changes in vocalizations 

(from masking) or foraging), as well as 

those associated with stress responses or 

TTS. Odontocetes are highly mobile 

species and similar to mysticetes, NMFS 

expects any avoidance behavior to be 

limited to the area near the sound 

source. While masking could occur 

during foundation installation, it would 

only occur in the vicinity of and during 

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 proposed 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 selfmitigate (i.e., reduce hearing sensitivity) 

the impacts of noise exposure, which 

could potentially reduce TTS impacts. 

Any masking or TTS is anticipated to be 

limited and would typically only 

interfere with communication within a 

portion of an odontocete’s range and as 

discussed earlier, the effects would only 

be expected to be of a short duration 

and, for TTS, a relatively small degree. 

Furthermore, odontocete echolocation 

occurs predominantly at frequencies 

significantly higher than low frequency 

construction activities. Therefore, there 

is little likelihood that threshold shift 

would interfere with feeding behaviors. 

For HRG surveys, the sources operate at 

higher frequencies than foundation 

installation activities and UXO/MEC 

detonations. However, sounds from 

these sources attenuate very quickly in 

the water column, as described above. 

Therefore, any potential for PTS and 

TTS and masking is very limited. 

Further, odontocetes (e.g., common 

dolphins, spotted dolphins, bottlenose 

dolphins) have demonstrated an affinity 

to bow-ride actively surveying HRG 

surveys. Therefore, the severity of any 

harassment, if it does occur, is 

anticipated to be minimal based on the 

lack of avoidance previously 

demonstrated by these species. 

The waters off the coast of 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 Whales 

Sperm whales are listed as 

endangered under the ESA, and the 

North Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. The North Atlantic stock spans 

the East Coast out into oceanic waters 

well beyond the U.S. EEZ. Although 

listed as endangered, the primary threat 

faced by the sperm whale across its 

range (i.e., commercial whaling) has 

been eliminated. Current potential 

threats to the species globally include 

vessel strikes, entanglement in fishing 

gear, anthropogenic noise, exposure to 

contaminants, climate change, and 

marine debris. There is no currently 

reported trend for the stock and, 

although the species is listed as 

endangered under the ESA, there are no 

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 authorized for this 

species. 

The rule authorizes up to 24 takes, by 

Level B harassment only over the 5-year 


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period. The maximum annual allowable 

take by Level B harassment, would be 9, 

which equates to approximately 0.21 

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 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 24 takes, by Level B 

harassment only, over the course of the 

5-year rule, and a maximum annual 

allowable take of 9), and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on the North Atlantic 

stock of sperm whales. 

Dolphins and Small Whales (Including 

Delphinids) 

The seven species and eight stocks 

included in this group (which are 

indicated in Table 2 in the Delphinidae 

family) are not listed under the ESA; 

however, short-finned pilot whales are 

listed as Strategic under the MMPA. 

There are no known areas of specific 

biological importance in or around the 

Project Area for any of these species and 

no UMEs have been designated for any 

of these species. No serious injury or 

mortality is anticipated or authorized 

for these species. 

The seven delphinid species with 

takes authorized for the Project are 

Atlantic spotted dolphin, Atlantic 

white-sided dolphin, common 

bottlenose dolphin, common dolphin, 

long-finned pilot whale, short-finned 

pilot whale, and Risso’s dolphin. The 

rule would allow for the authorization 

of 90 to 4,308 takes (depending on 

species) by Level A harassment and 

Level B harassment, over the five-year 

period. The maximum annual allowable 

take for these species by Level A 

harassment and Level B harassment, 

would range from 0 to 11 and 30 to 

1,584, respectively (this annual take 

equates to approximately 0.08 to 21.3 

percent of the stock abundance, 

depending on each species, if each take 

were considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

For the coastal stock of bottlenose 

dolphins, given the higher number of 

takes relative to the stock abundance, 

while some of the takes likely represent 

exposures of different individuals on 1 

day a year, it is likely that some subset 

of the individuals exposed could be 

taken several times annually. For 

Atlantic spotted dolphin, Atlantic 

white-sided dolphin, common dolphin, 

the offshore stock of bottlenose dolphin, 

long- and short-finned pilot whale, and 

Risso’s dolphin, given the number of 

takes, while many of the takes likely 

represent exposures of different 

individuals on 1 day a year, some subset 

of the individuals exposed could be 

taken up to a few times annually. 

The number of takes, likely movement 

patterns of the affected species, and the 

intensity of any Level A or B 

harassments, combined with the 

availability of alternate nearby foraging 

habitat suggests that the likely impacts 

would not impact the reproduction or 

survival of any individuals. While 

delphinids may be taken on several 

occasions, none of these species are 

known to have small home ranges 

within the Project Area or known to be 

particularly sensitive to anthropogenic 

noise. The potential for PTS in dolphins 

and small whales is very low and, if 

PTS does occur, would occur to a 

limited number of individuals, be of 

small degree, and would be limited to 

the frequency ranges of the activity 

which does not span across most of 

their hearing range. Some TTS can also 

occur but, again, it would be limited to 

the frequency ranges of the activity and 

any loss of hearing sensitivity is 

anticipated to return to pre-exposure 

conditions shortly after the animals 

move away from the source or the 

source ceases. 

Given the magnitude and severity of 

the impacts discussed above and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on all of the species 

and stocks addressed in this section. 

Harbor Porpoises 

Harbor porpoises are not listed as 

Threatened or Endangered under the 

ESA, and the Gulf of Maine/Bay of 

Fundy stock is neither considered 

depleted or strategic under the MMPA. 

The stock is found predominantly in 

northern U.S. coastal waters (less than 

150 m depth) and up into Canada’s Bay 

of Fundy (between New Brunswick and 

Nova Scotia). Although the population 

trend is not known, there are no UMEs 

or other factors that cause particular 

concern for this stock. No mortality or 

non-auditory injury are anticipated or 

authorized for this stock. 

The rule would allow for the 

authorization of up to 608 takes, by 

harassment only, over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 69 and 350, 

respectively (combined, this annual take 

(n=419) equates to approximately 0.44 

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 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. However, 

foundation installation is scheduled to 

occur off the coast of New Jersey and, 

given alternative foraging areas, any 

avoidance of the area by individuals is 

not likely to impact the reproduction or 

survival of any individuals. Given only 

1 UXO/MEC would be detonated on any 

given day and only up to 10 UXO/MEC 

could be detonated under the LOA, any 


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behavioral response would be brief and 

of a low severity. 

With respect to PTS and TTS, the 

effects on an individual are likely 

relatively low given the frequency bands 

of pile driving (most energy below 2 

kHz) compared to harbor porpoise 

hearing (150 Hz to 160 kHz peaking 

around 40 kHz). Specifically, TTS is 

unlikely to impact hearing ability in 

their more sensitive hearing ranges, or 

the frequencies in which they 

communicate and echolocate. We 

expect any PTS that may occur to be 

within the very low end of their hearing 

range where harbor porpoises are not 

particularly sensitive and any PTS 

would be of small magnitude. As such, 

any PTS would not interfere with key 

foraging or reproductive strategies 

necessary for reproduction or survival. 

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; Westgate et al., 1998), 

although the majority are found over the 

continental shelf. While harbor 

porpoises are likely to avoid the area 

during any of the project’s construction 

activities, as demonstrated during 

European wind farm construction, the 

time of year in which work would occur 

is when harbor porpoises are not in 

highest abundance, and any work that 

does occur would not result in the 

species’ abandonment of the waters off 

of New Jersey. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on the 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 Geographic 

Area section, a UME has been 

designated for harbor seals and gray 

seals and is described further below. No 

serious injury or mortality is anticipated 

or authorized for this species. 

For the two seal species, the rule 

authorizes up to between 649 and 1,749 

takes for each species by harassment 

only over the 5-year period. The 

maximum annual allowable take for 

these species by Level A harassment 

and Level B harassment, would range 

from 31 to 35 and 305 to 844 (combined, 

this annual take (n=336 to 879) equates 

to approximately 1.23 to 1.43 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). 

Though gray seals and harbor seals are 

considered migratory and no specific 

feeding areas have been designated in 

the area, the higher number of takes 

relative to the stock abundance suggests 

that while some of the takes likely 

represent exposures of different 

individuals on 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 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. Known 

haul-outs for seals occur near the coastal 

cofferdam and goal post locations 

(Oyster Creek, Island Beach State Park 

in Barnegat Bay, Farm Property, and BL 

England). However, based on the 

analysis conducted in Section 1.5.4 of 

Ocean Wind’s ITA application (Figure 

1–8), neither Ocean Wind nor NMFS 

expect the in-air sounds produced to 

cause take of hauled-out pinnipeds at 

distances greater than 541 m from the 

cofferdam installation/removal location 

(Ocean Wind, 2022b). As all 

documented pinniped haul-outs are 

located further than 541 m from each of 

the cofferdam locations, NMFS does not 

expect any harassment to occur and has 

not authorized any take from in-air 

impacts on hauled-out seals. 

As described in the Potential Effects 

to Marine Mammals and Their Habitat 

section in the proposed rule, 

construction of wind farms in Europe 

resulted in pinnipeds temporarily 

avoiding construction areas but 

returning within short time frames after 

construction was complete (Carroll et 

al., 2010; Hamre et al., 2011; Hastie et 

al., 2015; Russell et al., 2016; Brasseur 

et al., 2010). Effects on pinnipeds that 

are taken by Level B harassment in the 

Project Area would likely be limited to 

reactions such as increased swimming 

speeds, increased surfacing time, or 

decreased foraging (if such activity were 

occurring). Most likely, individuals 

would simply move away from the 

sound source and be temporarily 

displaced from those areas (Lucke et al., 

2006; Edren et al., 2010; Skeate et al., 

2012; Russell et al., 2016). Given the 

low anticipated magnitude of impacts 

from any given exposure (e.g., 

temporary avoidance), even repeated 

Level B harassment across a few days of 

some small subset of individuals, which 

could occur, is unlikely to result in 

impacts on the reproduction or survival 

of any individuals. Moreover, pinnipeds 

would benefit from the mitigation 

measures described in 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. Based on tests conducted so 

far, the main pathogen found in the 

seals belonging to that UME was 

phocine distemper virus, although 

additional testing to identify other 

factors that may be involved in this 

UME are underway. Currently, the only 

active UME is occurring in Maine with 

some harbor and gray seals testing 

positive for highly pathogenic avian 

influenza (HPAI) H5N1. Although 

elevated strandings continue, neither 

UME (alone or in combination) provide 

cause for concern regarding populationlevel impacts to any of these stocks. For 


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harbor seals, the population abundance 

is over 61,000 and annual mortality/ 

serious injury (M/SI) (n=339) is well 

below PBR (1,729) (Hayes et al., 2020). 

The population abundance for gray seals 

in the United States is over 27,000, with 

an estimated overall abundance, 

including seals in Canada, of 

approximately 450,000. In addition, the 

abundance of gray seals is likely 

increasing in the U.S. Atlantic, as well 

as in Canada (Hayes et al., 2020). 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, Ocean 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on harbor and gray 

seals. 

Negligible Impact Determination 

No mortality or serious injury is 

anticipated to occur or authorized. As 

described in the analysis above, the 

impacts resulting from the project’s 

activities cannot be reasonably expected 

to, and are not reasonably likely to, 

adversely affect any of the species or 

stocks through effects on annual rates of 

recruitment or survival. Based on the 

analysis contained herein of the likely 

effects of the specified activity on 

marine mammals and their habitat, and 

taking into consideration the 

implementation of the required 

mitigation and monitoring measures, 

NMFS finds that the marine mammal 

take from all of Ocean Wind’s specified 

activities combined will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals estimated to 

be taken to the most appropriate 

estimation of abundance of the relevant 

species or stock in our determination of 

whether an authorization is limited to 

small numbers of marine mammals. 

When the predicted number of 

individuals to be taken is less than onethird 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 of 17 species of marine 

mammals (with 18 managed stocks). 

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 onethird for all species and stocks 

potentially impacted. 

For 16 stocks, less than 3 percent of 

the stock abundance is authorized for 

take by harassment; for 1 stock, less 

than 6 percent of the stock abundance 

is authorized for take by harassment; 

and for one stock, less than 22 percent 

of the stock abundance is authorized for 

take by harassment. Specific to the 

North Atlantic right whale, the 

maximum amount of take, which is by 

Level B harassment only, is seven, or 2.1 

percent of the stock abundance, 

assuming that each instance of take 

represents a different individual. Please 

see Table 35 for information relating to 

this small numbers analysis. 

Based on the analysis contained 

herein of the activities (including the 

required mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals 

would be taken relative to the 

population size of the affected species 

or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Classification 

Endangered Species Act (ESA) 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

ensure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of designated critical 

habitat. To ensure ESA compliance for 

the promulgation of rulemakings, NMFS 

consults internally whenever we 

propose to authorize take for 

endangered or threatened species, in 

this case with the NOAA GARFO. 

The NMFS Office of Protected 

Resources has authorized the take of 

five marine mammal species, which are 

listed under the ESA: the North Atlantic 

right, sei, fin, blue, and sperm whale. 

The Permit and Conservation Division 

requested initiation of section 7 

consultation on September 12, 2022 

with GARFO for the promulgation of the 

rulemaking. NMFS issued a Biological 

Opinion on April 3, 2023 concluding 

that the promulgation of the rule and 

issuance of LOAs 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://

repository.library.noaa.gov/view/noaa/ 

49689. 

The promulgated regulations, as well 

as requiring the applicant to abide by 

the reasonable and prudent measure 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 (NAO) 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 2023 

Final Environmental Impact Statement 

(FEIS), which was finalized on July 3, 

2023, and is available at https://

www.boem.gov/renewable-energy/stateactivities/ocean-wind-1. In accordance 

with 40 CFR 1506.3, NMFS 

independently reviewed and evaluated 

the 2023 Ocean Wind 1 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 

2023 Ocean Wind 1 FEIS through a joint 

Record of Decision (ROD) with BOEM. 

The joint ROD for adoption of the 2023 

Ocean Wind 1 FEIS and promulgation of 

this final rule and subsequent issuance 

of a LOA can be found at https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. 

Executive Order 12866 

The Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 


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Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (RFA; 5 U.S.C. 601 et seq.), 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) unless that 

collection of information displays a 

currently valid Office of Management 

and Budget (OMB) control number. 

These requirements have been approved 

by OMB under control number 0648– 

0151 and include applications for 

regulations, subsequent LOA, and 

reports. Send comments regarding any 

aspect of this data collection, including 

suggestions for reducing the burden, to 

NMFS. 

Coastal Zone Management Act (CZMA) 

The 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 Ocean Wind’s 

application for an incidental take 

regulations 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 notice of 

receipt of Ocean Wind’s application in 

the Federal Register on March 7, 2022 

(87 FR 12666) and published notice of 

the proposed rule on October 26, 2022 

(87 FR 65868). The state of New Jersey 

did not request approval from the 

Director of NOAA’s Office for Coastal 

Management to review Ocean Wind’s 

application as an unlisted activity, and 

the time period for making such request 

has expired. Therefore, NMFS has 

determined the incidental take 

authorization is not subject to Federal 

consistency review. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Endangered and threatened 

species, Fish, Fisheries, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, Wildlife. 

Dated: September 1, 2023. 

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 

■ 1. The authority citation for part 217 

continues to read: 

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

otherwise noted. 

■ 2. Add subpart AA, consisting of 

§§ 217.260 through 217.269, to read as 

follows: 

Subpart AA—Taking Marine Mammals 

Incidental to Construction of the Ocean 

Wind 1 Project Offshore of New Jersey 

Sec. 

217.260 Specified activity and specified 

geographical region. 

217.261 Effective dates. 

217.262 Permissible methods of taking. 

217.263 Prohibitions. 

217.264 Mitigation requirements. 

217.265 Monitoring and reporting 

requirements. 

217.266 Letter of Authorization. 

217.267 Modifications of Letter of 

Authorization. 

217.268–217.269 [Reserved] 

Subpart AA—Taking Marine Mammals 

Incidental to Construction of the 

Ocean Wind 1 Project Offshore of New 

Jersey 

§ 217.260 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

to activities associated with the Ocean 

Wind 1 project (hereafter referred to as 

the ‘‘Project’’) by Ocean Wind, LLC 

(hereafter referred to as ‘‘LOA Holder’’), 

and those persons it authorizes or funds 

to conduct activities on its behalf in the 

area outlined in paragraph (b) of this 

section. Requirements imposed on LOA 

Holder must be implemented by those 

persons it authorizes or funds to 

conduct activities on its behalf. 

(b) The specified geographical region 

is the Mid-Atlantic Bight, which 

includes, but is not limited to, the 

Bureau of Ocean Energy Management 

(BOEM) Lease Area Outer Continental 

Shelf (OCS)-A 0498 Commercial Lease 

of Submerged Lands for Renewable 

Energy Development, two export cable 

routes, and two sea-to-shore transition 

points located in New Jersey at Oyster 

Creek, Island Beach State Park in 

Barnegat Bay, Farm Property, and BL 

England. 

(c) The specified activities are impact 

pile driving of wind turbine generator 

(WTGs) and offshore substation (OSSs) 

foundations; vibratory pile driving 

(install and subsequently remove) of 

cofferdams and goal posts; highresolution geophysical (HRG) site 

characterization surveys; unexploded 

ordnances or munitions and explosives 

of concern (UXOs/MECs) detonation; 

vessel transit within the specified 

geographical region to transport crew, 

supplies, and materials; WTG operation; 

fishery and ecological monitoring 

surveys; placement of scour protection; 

and trenching, laying, and burial 

activities associated with the 

installation of the export cable route 

from OSSs to shore-based converter 

stations and inter-array cables between 

turbines. 

§ 217.261 Effective dates. 

The regulations in this subpart are 

effective from October 13, 2023, through 

October 12, 2028. 

§ 217.262 Permissible methods of taking. 

Under the LOA, issued pursuant to 

§§ 216.106 and 217.266, LOA Holder, 

and those persons it authorizes or funds 

to conduct activities on its behalf, may 

incidentally, but not intentionally, take 

marine mammals within the vicinity of 

BOEM Lease Area OCS–A 0498 

Commercial Lease of Submerged Lands 

for Renewable Energy Development, 

along export cable routes, and at the two 

sea-to-shore transition points located in 

New Jersey at Oyster Creek, Island 

Beach State Park in Barnegat Bay, Farm 

Property, and BL England 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 of marine 

mammals by impact pile driving (WTG 

and OSS foundation installation), 

vibratory pile driving (cofferdam and 


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goal post installation and removal), 

UXO/MEC detonations, and HRG site 

characterization surveys; 

(b) By Level A harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving of 

WTG and OSS foundations and UXO/ 

MEC detonations; 

(c) Take by mortality or serious injury 

of any marine mammal species is not 

authorized; and 

(d) The incidental take of marine 

mammals by the activities listed in 

paragraphs (a) and (b) of this section is 

limited to the following species: 

TABLE 1 TO PARAGRAPH (d) 

Marine mammal species Scientific name Stock 

North Atlantic right whale .................................. Eubalaena glacialis .......................................... Western Atlantic. 

Blue whale ......................................................... Balaenoptera musculus .................................... Western North Atlantic. 

Fin whale ........................................................... Balaenoptera physalus ..................................... Western North Atlantic. 

Humpback whale ............................................... Megaptera novaeangliae .................................. Gulf of Maine. 

Minke whale ....................................................... Balaenoptera acutorostrata .............................. Canadian Eastern Coastal. 

Sei whale ........................................................... Balaenoptera borealis ...................................... Nova Scotia. 

Sperm whale ...................................................... Physeter macrocephalus .................................. North Atlantic. 

Atlantic spotted dolphin ..................................... Stenella frontalis ............................................... Western North Atlantic. 

Atlantic white-sided dolphin ............................... Lagenorhynchus acutus ................................... Western North Atlantic. 

Bottlenose dolphin ............................................. Tursiops truncatus ............................................ Western North Atlantic—Offshore. 

Northern Migratory Coastal. 

Common dolphin ............................................... Delphinus delphis ............................................. Western North Atlantic. 

Long-finned pilot whale ..................................... Globicephala melas .......................................... Western North Atlantic. 

Short-finned pilot whale ..................................... Globicephala macrorhynchus ........................... Western North 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. 

§ 217.263 Prohibitions. 

Except for the takings described in 

§ 217.262 and authorized by an LOA 

issued under §§ 217.266 or 217.267, it is 

unlawful for any person to do any of the 

following in connection with the 

activities described in this subpart: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or an LOA issued under 

§§ 217.266 and 217.267; 

(b) Take any marine mammal not 

specified in § 217.262(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 § 217.262(d), after NMFS 

Office of Protected Resources 

determines such taking results in more 

than a negligible impact on the species 

or stocks of such marine mammals. 

§ 217.264 Mitigation requirements. 

When conducting the activities 

identified in § 217.260(c) within the 

area described in § 217.260(b), LOA 

Holder must implement the mitigation 

measures contained in this section and 

any LOA issued under §§ 217.266 and 

217.267. 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, and vessel 

personnel and the marine mammal 

monitoring team (PSO and PAM 

operators) prior to the start of all inwater construction activities in order to 

explain responsibilities, communication 

procedures, marine mammal detection 

and identification, mitigation, 

monitoring, and reporting requirements, 

safety and operational procedures, and 

authorities of the marine mammal 

monitoring team(s). This training must 

be repeated for new personnel who join 

the work during the project. A 

description of the training program must 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin. Confirmation of 

all required training must be 

documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

project activities; 

(3) Prior to and when conducting any 

in-water activities and vessel 

operations, LOA Holder personnel and 

contractors (e.g., vessel operators, PSOs) 

must use available sources of 

information on North Atlantic right 

whale presence in or near the Project 

Area including daily monitoring of the 

Right Whale Sightings Advisory System, 

and monitoring of U.S. Coast Guard 

VHF Channel 16 throughout the day to 

receive notification of any sightings 

and/or information associated with any 

Slow Zones (i.e., Dynamic Management 

Areas (DMAs) and/or acousticallytriggered slow zones) to provide 

situational awareness for both vessel 

operators, PSO(s), and PAM operator(s); 

The marine mammal monitoring team 

must monitor these systems no less than 

every 4 hours. For any UXO/MEC 

detonation, these systems must be 

monitored for 24 hours and immediately 

prior to blasting; 

(4) Any marine mammal observed by 

project personnel must be immediately 

communicated to any on-duty PSOs, 

PAM operator(s), and all vessel 

captains. Any large whale observation 

or acoustic detection by PSOs or PAM 

operators must be conveyed to all vessel 

captains; 

(5) For North Atlantic right whales, 

any visual or acoustic detection must 

trigger a delay to the commencement of 

pile driving, UXO/MEC detonation, 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) If a delay to commencing an 

activity is called for by the Lead PSO or 

PAM operator, LOA Holder must take 

the required mitigative action. If a 

shutdown of an activity is called for by 

the Lead PSO or PAM operator, LOA 

Holder must take the required mitigative 

action unless shutdown would result in 


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imminent risk of injury or loss of life to 

an individual, pile refusal, or pile 

instability. Any disagreements between 

the Lead PSO, PAM operator, and the 

activity operator regarding delays or 

shutdowns would only be discussed 

after the mitigative action has occurred; 

(8) If an individual from a species for 

which authorization has not been 

granted, or a species for which 

authorization has been granted but the 

authorized take number has been met, is 

observed entering or within the relevant 

Level B harassment zone prior to 

beginning a specified activity, the 

activity must be delayed. If the activity 

is ongoing, it must be shut down 

immediately, unless shutdown would 

result in imminent risk of injury or loss 

of life to an individual, pile refusal, or 

pile instability. The activity must not 

commence or resume until the animal(s) 

has been confirmed to have left and is 

on a path away from the Level B 

harassment zone or after 15 minutes for 

small odontocetes and pinnipeds, and 

30 minutes for all other species with no 

further sightings; 

(9) For in-water construction heavy 

machinery activities listed in 

§ 217.260(c), if a marine mammal is on 

a path towards or comes within 10 

meters (m) (32.8 feet) 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; 

(10) All vessels must be equipped 

with a properly installed, operational 

Automatic Identification System (AIS) 

device and LOA Holder must report all 

Maritime Mobile Service Identify 

(MMSI) numbers to NMFS Office of 

Protected Resources; 

(11) By accepting the issued LOA, 

LOA Holder consents to on-site 

observation and inspections by Federal 

agency personnel (including NOAA 

personnel) during activities described in 

this subpart, for the purposes of 

evaluating the implementation and 

effectiveness of measures contained 

within the LOA and this subpart; and 

(12) 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, unless an emergency 

situation presents a threat to the health, 

safety, or life of a person or when a 

vessel, actively engaged in emergency 

rescue or response duties, including 

vessel-in-distress or environmental 

crisis response, requires speeds in 

excess of 10 kn to fulfill those 

responsibilities, while in the specified 

geographical region: 

(1) Prior to the start of the Project’s 

activities involving vessels, LOA Holder 

must receive a protected species 

training that covers, at a minimum, 

identification of marine mammals that 

have the potential to occur where 

vessels would be operating; detection 

observation methods in both good 

weather conditions (i.e., clear visibility, 

low winds, low sea states) and bad 

weather conditions (i.e., fog, high 

winds, high sea states, with glare); 

sighting communication protocols; all 

vessel speed and approach limit 

mitigation requirements (e.g., vessel 

strike avoidance measures); and 

information and resources available to 

the project personnel regarding the 

applicability of Federal laws and 

regulations for protected species. This 

training must be repeated for any new 

vessel personnel who join the Project. 

Confirmation of the observers’ training 

and understanding of the Incidental 

Take Authorization (ITA) requirements 

must be documented on a training 

course log sheet and reported to NMFS; 

(2) LOA Holder’s vessels, regardless of 

their vessel’s size, must maintain a 

vigilant watch for all marine mammals 

and slow down, stop their vessel, or 

alter course to avoid striking any marine 

mammal; 

(3) LOA Holder’s underway vessels 

(e.g., transiting, surveying) operating at 

any speed must have a dedicated visual 

observer on duty at all times to monitor 

for marine mammals within a 180° 

direction of the forward path of the 

vessel (90° port to 90° 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. Visual observers may be 

third-party observers (i.e., NMFSapproved PSOs) or trained crew 

members, as defined in (b)(1) of this 

subsection. 

(4) LOA Holder must continuously 

monitor the U.S. Coast Guard VHF 

Channel 16 at the onset of transiting 

through the duration of transiting, over 

which North Atlantic right whale 

sightings are broadcasted. At the onset 

of transiting and at least once every 4 

hours, vessel operators and/or trained 

crew member(s) must also monitor the 

project’s Situational Awareness System, 

WhaleAlert, and relevant NOAA 

information systems such as the Right 

Whale Sighting Advisory System 

(RWSAS) for the presence of North 

Atlantic right whales; 

(5) All LOA Holder’s vessels must 

transit at 10 kn or less within any active 

North Atlantic right whale Slow Zone 

(i.e., Dynamic Management Areas 

(DMAs) or acoustically-triggered slow 

zone); 

(6) All LOA Holder’s vessels, 

regardless of size, must immediately 

reduce speed to 10 kn or less for at least 

24 hours when a North Atlantic right 

whale is sighted at any distance by any 

project-related personnel or acoustically 

detected by any project-related PAM 

system. Each subsequent observation or 

acoustic detection in the Project area 

shall trigger an additional 24-hour 

period. If a North Atlantic right whale 

is reported via any of the monitoring 

systems (refer back to paragraph (b)(4) of 

this section) within 10 kilometers (km; 

6.2 miles (mi)) of a transiting vessel(s), 

that vessel must operate at 10 knots (kn; 

11.5 miles per hour (mph)) or less for 24 

hours following the reported detection; 

(7) LOA Holder’s vessels, regardless of 

size, must immediately reduce speed to 

10 kn or less when any large whale 

(other than a North Atlantic right whale) 

is observed within 500 meters (m; 1,640 

feet (ft)) of an underway vessel; 

(8) If LOA Holder’s vessel(s) are 

traveling at speeds greater than 10 kn 

(i.e., no speed restrictions are enacted) 

in a transit corridor from a port to the 

Lease Area, in addition to the required 

dedicated visual observer, LOA Holder 

must monitor the transit corridor in 

real-time with PAM prior to and during 

transits. If a North Atlantic right whale 

is detected via visual observation or 

PAM within or approaching the transit 

corridor, all crew transfer vessels must 

travel at 10 kn 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; 

(9) LOA Holder’s vessels must 

maintain a minimum separation 


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distance of 500 m from North Atlantic 

right whales. If underway, all vessels 

must steer a course away from any 

sighted North Atlantic right whale at 10 

kn or less such that the 500-m minimum 

separation distance requirement is not 

violated. If a North Atlantic right whale 

is sighted within 500 m of an underway 

vessel, that vessel must 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. If a whale is observed 

but cannot be confirmed as a species 

other than a North Atlantic right whale, 

the vessel operator must assume that it 

is a North Atlantic right whale and take 

the vessel strike avoidance measures 

described in this paragraph (b)(9) of this 

section; 

(10) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 100 m (328 ft) from sperm 

whales and non-North Atlantic right 

whale baleen whales. If one of these 

species is sighted within 100 m of a 

transiting vessel, LOA Holder’s vessel 

must 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 100 m; 

(11) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 50 m (164 ft) from all 

delphinoid cetaceans and pinnipeds 

with an exception made for those that 

approach the vessel (i.e., bow-riding 

dolphins). If a delphinid cetacean or 

pinniped is sighted within 50 m of a 

transiting vessel, LOA Holder’s 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; 

(12) When a marine mammal(s) is 

sighted while LOA Holder’s vessel(s) is 

transiting, the vessel must take action as 

necessary to avoid violating the relevant 

separation distances (e.g., attempt to 

remain parallel to the animal’s course, 

slow down, and avoid abrupt changes in 

direction until the animal has left the 

area). This measure does not apply to 

any vessel towing gear or any situation 

where respecting the relevant separation 

distance would be unsafe (i.e., any 

situation where the vessel is 

navigationally constrained); 

(13) LOA Holder’s vessels underway 

must not divert or alter course to 

approach any marine mammal. If a 

separation distance is triggered, any 

vessel underway must avoid abrupt 

changes in course direction and transit 

at 10 kn or less until the animal is 

outside the relevant separation distance; 

(14) LOA Holder is required to abide 

by other speed and approach 

regulations. Nothing in this subpart 

exempts vessels from any other 

applicable marine mammal speed and 

approach regulations; 

(15) LOA Holder must check, daily, 

for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(i.e., DMAs, SMAs, Slow Zones) and any 

information regarding North Atlantic 

right whale sighting locations; 

(16) LOA Holder must submit a North 

Atlantic Right Whale Vessel Strike 

Avoidance Plan to NMFS Office of 

Protected Resources for review and 

approval at least 90 days prior to the 

planned start of vessel activity. The plan 

must provide details on the vessel-based 

observer and PAM protocols for 

transiting vessels. If a plan is not 

submitted or approved by NMFS prior 

to vessel operations, all project vessels 

transiting, year round, must travel at 

speeds of 10-kn or less. LOA Holder 

must comply with any approved North 

Atlantic Right Whale Vessel Strike 

Avoidance Plan; and 

(17) Speed over ground will be used 

to measure all vessel speed restrictions. 

(c) WTG and OSS foundation 

installation. The following requirements 

apply to impact pile driving activities 

associated with the installation of WTG 

and OSS foundations: 

(1) Impact pile driving must not occur 

January 1 through April 30. Impact pile 

driving must be avoided to the 

maximum extent practicable in 

December; however, it may occur if 

necessary to complete the project with 

prior approval by NMFS; 

(2) Monopiles must be no larger than 

11 m in diameter, representing the 

larger end of the 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 4,000 kilojoules for 

monopile installation. No more than 

two monopiles may be installed per day. 

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 

three pin piles may be installed per day; 

(3) LOA Holder may initiate impact 

pile driving during hours of darkness 

only from June 1 to October 31, 

annually, in accordance with a NMFSapproved Alternative Monitoring Plan 

for Nighttime Pile Driving; 

(4) For the construction months of 

May and November (as well as 

December, if approval is granted by 

NMFS), impact pile driving must only 

be initiated during daylight hours, 

defined as no later than 1.5 hours prior 

to civil sunset and no earlier than 1 

hour after civil sunrise, and would only 

be allowed to continue into darkness if 

stopping operations represents a risk to 

human health, safety, and/or pile 

stability; 

(5) LOA Holder must utilize a softstart protocol for each impact pile 

driving event of all foundations by 

performing four to six strikes per minute 

at 10 to 20 percent of the maximum 

hammer energy, for a minimum of 20 

minutes; 

(6) 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; 

(7) LOA Holder must establish 

clearance and shutdown zones, which 

must be measured using the radial 

distance around the pile being driven. If 

a marine mammal is detected within or 

about to enter the applicable clearance 

zones, prior to the beginning of soft-start 

procedures, impact pile driving must be 

delayed until the animal has been 

visually observed exiting the clearance 

zone or until a specific time period has 

elapsed with no further sightings. The 

specific time periods are 15 minutes for 

small odontocetes and pinnipeds, and 

30 minutes for all other species; 

(8) For North Atlantic right whales, 

any visual observation or acoustic 

detection must trigger a delay to the 

commencement of pile driving. The 

clearance zone may only be declared 

clear if no North Atlantic right whale 

acoustic or visual detections have 

occurred within the clearance zone 

during the 60-minute monitoring 

period; 

(9) LOA Holder must deploy at least 

two functional noise abatement systems 

that reduce noise levels to the modeled 

harassment isopleths, assuming 10-dB 

attenuation, during all impact pile 

driving: 

(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 m3/(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 


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performance of the bubble curtain(s) is 

achieved; 

(iii) The lowest bubble ring must be 

in contact with the seafloor for the full 

circumference of the ring, and the 

weights attached to the bottom ring 

must ensure 100-percent seafloor 

contact; 

(iv) No parts of the ring or other 

objects may prevent full seafloor contact 

with a bubble curtain ring; 

(v) Construction contractors must 

train personnel in the proper balancing 

of airflow to the bubble curtain ring. 

LOA Holder must provide NMFS Office 

of Protected Resources with a bubble 

curtain performance test and 

maintenance report to review within 72 

hours after each pile using a bubble 

curtain is installed. Additionally, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed; 

(vi) Corrections to the bubble ring(s) 

to meet the performance standards in 

this paragraph (c)(9) must occur prior to 

impact pile driving of monopiles. If 

LOA Holder uses a noise mitigation 

device in addition to the bubble curtain, 

LOA Holder must maintain similar 

quality control measures as described in 

this paragraph (c)(9). 

(10) LOA Holder must utilize NMFSapproved PAM systems, as described in 

paragraph(c)(17) of this section. The 

PAM system components (i.e., acoustic 

buoys) must not be placed closer than 

1 km to the pile being driven so that the 

activities do not mask the PAM system. 

LOA Holder must provide an adequate 

demonstration of and justification for 

the detection range of the system they 

plan to deploy while considering 

potential masking from concurrent piledriving and vessel noise. The PAM 

system must be able to detect a 

vocalization of North Atlantic right 

whales up to 10 km (6.2 mi). 

(11) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.265(c). At least three on-duty 

PSOs must be on the pile driving 

platform. Additionally, two dedicatedPSO vessels must be used at least 60 

minutes before, during, and 30 minutes 

after all pile driving, and each 

dedicated-PSO vessel must have at least 

three PSOs on duty during these time 

periods. LOA Holder may request NMFS 

approval to use alternative technology 

(e.g., drones) in lieu of one or two of the 

dedicated PSO vessels that provide 

similar marine mammal detection 

capabilities. 

(12) If a marine mammal is detected 

(visually or acoustically) entering or 

within the respective shutdown zone 

after pile driving has begun, the PSO or 

PAM operator must call for a shutdown 

of pile driving and LOA Holder must 

stop pile driving immediately, unless 

shutdown is not practicable due to 

imminent risk of injury or loss of life to 

an individual or risk of damage to a 

vessel that creates risk of injury or loss 

of life for individuals, or the lead 

engineer determines there is pile refusal 

or pile instability. If pile driving is not 

shutdown in one of these situations, 

LOA Holder must reduce hammer 

energy to the lowest level practicable 

and the reason(s) for not shutting down 

must be documented and reported to 

NMFS Office of Protected Resources 

within the applicable monitoring 

reports (e.g., weekly, monthly). 

(13) A visual observation or acoustic 

detection of a North Atlantic right whale 

at any distance triggers shutdown 

requirements under paragraph (c)(12) 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 or 

acoustically detected for 30 minutes; 

(14) If pile driving has been shut 

down due to the presence of a marine 

mammal other than a North Atlantic 

right whale, pile driving must not restart 

until either the marine mammal(s) has 

voluntarily left the specific clearance 

zones and has been visually or 

acoustically confirmed beyond that 

clearance zone, or, when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred. The specific time periods are 

15 minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

marine mammal species. In cases where 

these criteria are not met, pile driving 

may restart only if necessary to maintain 

pile stability at which time LOA Holder 

must use the lowest hammer energy 

practicable to maintain stability; 

(15) LOA Holder must conduct sound 

field verification (SFV) measurements 

during pile driving activities associated 

with the installation of, at minimum, 

the first three monopile foundations. 

SFV measurements must continue until 

at least three consecutive piles 

demonstrate noise levels are at or below 

those modeled, assuming 10 decibels 

(dB) of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or if additional 

piles are driven that may produce 

louder sound fields than those 

previously measured (e.g., higher 

hammer energy, greater number of 

strikes, etc.). SFV measurements must 

be conducted as follows: 

(i) Measurements must be made at a 

minimum of four distances from the 

pile(s) being driven, along a single 

transect, in the direction of lowest 

transmission loss (i.e., projected lowest 

transmission loss coefficient), including, 

but not limited to, 750 m (2,460 ft) and 

three additional ranges selected such 

that measurement of Level A 

harassment and Level B harassment 

isopleths are accurate, feasible, and 

avoids extrapolation. At least one 

additional measurement at an azimuth 

90 degrees from the array at 750 m must 

be made. At each location, there must be 

a near bottom and mid-water column 

hydrophone (measurement systems); 

(ii) The recordings must be 

continuous throughout the duration of 

all pile driving of each foundation; 

(iii) The SFV measurement systems 

must have a sensitivity appropriate for 

the expected sound levels from pile 

driving received at the nominal ranges 

throughout the installation of the pile. 

The frequency range of SFV 

measurement systems must cover the 

range of at least 20 hertz (Hz) to 20 

kilohertz (kHz). The SFV measurement 

systems must be designed to have 

omnidirectional sensitivity so that the 

broadband received level of all pile 

driving exceeds the system noise floor 

by at least 10 dB. The dynamic range of 

the SFV measurement system must be 

sufficient such that at each location, and 

the signals 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 (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., highpass, low-pass, etc.), which is not 

already accounted for by the calibration, 

the filter performance (i.e., the filter’s 

frequency response) must be known, 

reported, and the data corrected before 

analysis. 

(v) LOA Holder must be prepared 

with additional equipment 

(hydrophones, recording devices, 

hydrophone calibrators, cables, 

batteries, etc.), which exceeds the 

amount of equipment necessary to 

perform the measurements, such that 

technical issues can be mitigated before 

measurement; 

(vi) LOA Holder must submit 48-hour 

interim reports after each foundation is 


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measured (see § 217.265(g) section for 

interim and final reporting 

requirements); 

(vii) LOA Holder must not exceed 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds, assuming 10- 

dB attenuation, for foundation 

installation. If any of the interim SFV 

measurement reports submitted for the 

first three monopiles indicate the 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation, then LOA Holder must 

implement additional sound attenuation 

measures on all subsequent foundations. 

LOA Holder must also increase 

clearance and shutdown zone sizes to 

those identified by NMFS until SFV 

measurements on at least three 

additional foundations demonstrate 

acoustic distances to harassment 

thresholds meet or are less than those 

modeled assuming 10-dB of attenuation. 

LOA Holder must optimize the sound 

attenuation systems (e.g., ensure hose 

maintenance, pressure testing, etc.) to 

meet noise levels modeled, assuming 

10-dB attenuation, within three piles or 

else foundation installation activities 

must cease until NMFS and LOA Holder 

can evaluate the situation and ensure 

future piles must not exceed noise 

levels modeled assuming 10-dB 

attenuation; 

(viii) If, after additional measurements 

conducted pursuant to requirements of 

paragraph (15)(vii) of this section, 

acoustic measurements indicate that 

ranges to isopleths corresponding to the 

Level A harassment and Level B 

harassment thresholds are less than the 

ranges predicted by modeling (assuming 

10-dB attenuation), LOA Holder may 

request to NMFS Office of Protected 

Resources a modification of the 

clearance and shutdown zones. For 

NMFS Office of Protected Resources to 

consider a modification request for 

reduced zone sizes, LOA Holder must 

have conducted SFV measurements on 

an additional three foundations 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; 

(ix) LOA Holder must conduct SFV 

measurements upon commencement of 

turbine operations to estimate turbine 

operational source levels, in accordance 

with a NMFS-approved Foundation 

Installation Pile Driving SFV Plan. SFV 

must be conducted in the same manner 

as previously described in paragraph 

(c)(15) of this section, with appropriate 

adjustments to measurement distances, 

number of hydrophones, and 

hydrophone sensitivities being made, as 

necessary; and 

(x) LOA Holder must submit a SFV 

Plan to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to planned start of 

foundation installation activities and 

abide by the Plan if approved. At 

minimum, the SFV Plan must describe 

how LOA Holder would ensure that the 

first three monopile foundation 

installation sites selected for SFV 

measurements are representative of the 

rest of the monopile installation sites 

such that future pile installation events 

are anticipated to produce similar sound 

levels to those piles measured. In the 

case that these sites/scenarios are not 

determined to be representative of all 

other pile installation sites, LOA Holder 

must include information in the SFV 

Plan on how additional sites/scenarios 

would be selected for SFV 

measurements. The SFV Plan must also 

include methodology for collecting, 

analyzing, and preparing SFV 

measurement data for submission to 

NMFS Office of Protected Resources and 

describe how the effectiveness of the 

sound attenuation methodology would 

be evaluated based on the results. SFV 

for pile driving may not occur until 

NMFS approves the SFV Plan for this 

activity. 

(16) LOA Holder must submit a 

Foundation Installation Pile Driving 

Marine Mammal Monitoring Plan to 

NMFS Office of Protected Resources for 

review and approval at least 180 days 

prior to planned start of pile driving and 

abide by the 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 a description of all monitoring 

equipment and PAM and PSO protocols 

(including number and location of 

PSOs) for all pile driving. No foundation 

pile installation can occur without 

NMFS’ approval of the Plan; and 

(17) LOA Holder must submit a 

Passive Acoustic Monitoring Plan (PAM 

Plan) to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to the planned start 

of foundation installation activities 

(impact pile driving) and abide by the 

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 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 and goal post 

installation and removal. The following 

requirements apply to the installation 

and removal of cofferdams and goal 

posts at the cable landfall construction 

sites: 

(1) Installation and removal of 

cofferdams and goal posts 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) All installation and removal of 

sheet piles for cofferdams and casing 

pipes for goal posts must only occur for 

up to 12 hours for each cofferdam and 

up to 1 hour daily for each goal post 

(within a single 24-hour period); 

(3) LOA Holder must establish and 

implement clearance zones for the 

installation and removal of cofferdams 

and goal posts using visual monitoring. 

These zones must be measured using 

the radial distance from the cofferdam 

and goal post being installed and/or 

removed; 

(4) LOA Holder must utilize PSO(s), 

as described in § 217.265(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 and casing pipe installation; 

and 

(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 vibratory 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 next 

available weekly report (as described in 

§ 217.265(h)). 

(e) UXO/MEC detonations. The 

following requirements apply to all 

Unexploded Ordnances and Munitions 

and Explosives of Concern (UXO/MEC) 

detonations: 


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(1) Upon encountering an UXO/MEC, 

LOA Holder may only resort to highorder removal (i.e., detonation) if all 

other means of removal are 

impracticable; 

(2) LOA Holder may detonate a 

maximum of 10 UXO/MECs, of varying 

sizes but no larger than 1,000 pounds 

(lbs; 454 kilograms (kg)) charge weight 

(i.e., E12), over the effective period of 

this rulemaking and LOA; 

(3) LOA Holder must not detonate 

UXO/MECs from November 1 through 

April 31, annually; 

(4) UXO/MEC detonations must only 

occur during daylight hours; 

(5) No more than one detonation may 

occur within a 24-hour period; 

(6) LOA Holder must establish and 

implement clearance zones for UXO/ 

MEC detonation using both visual and 

acoustic monitoring, as described in 

paragraphs (c)(7), (8), and (12) through 

(14) of this section. UXO/MEC clearance 

zones are specific to the known charge 

weight size of the UXO/MEC to be 

detonated; if charge weight is unknown 

or uncertain then the largest zone size 

must be used; 

(7) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.265(c). At least three PSOs on 

each of two dedicated PSO vessels must 

be used for all detonations with 

clearance zones less than 5 km (3.1 mi). 

If the clearance zone is larger than 5 km, 

at least one dedicated PSO vessel (with 

at least three on-duty PSOs) and an 

aerial platform (with at least two onduty PSOs) must be used. Clearance 

zone size is measured using the radial 

distance from the UXO/MEC to be 

detonated; 

(8) LOA Holder must utilize NMFSapproved PAM systems, as described in 

(c)(17) of this section. 

(9) LOA Holder must deploy at least 

a double big bubble curtain during all 

UXO/MEC detonations. The bubble 

curtain must be deployed at a distance 

that avoids damage to the hose nozzles: 

(i) Any bubble curtain(s) must 

distribute air bubbles using an air flow 

rate of at least 0.5 m3/(minute*m). The 

bubble curtain(s) must surround 100 

percent of the piling perimeter 

throughout the full depth of the water 

column; 

(ii) 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; 

(iii) No parts of the ring or other 

objects may prevent full seafloor contact 

with a bubble curtain ring; 

(iv) Construction contractors must 

train personnel in the proper balancing 

of airflow to the bubble curtain ring. 

LOA Holder must provide NMFS Office 

of Protected Resources with a bubble 

curtain performance test and 

maintenance report to review within 72 

hours after each UO/MEC is detonated. 

Additionally, a full maintenance check 

(e.g., manually clearing holes) must 

occur prior to each UXO/MEC 

detonation; 

(v) Corrections to the bubble ring(s) to 

meet the performance standards in this 

paragraph (e)(9) must occur prior to 

UXO/MEC detonation. 

(10) LOA Holder must conduct SFV 

during all UXO/MEC detonations as 

described in paragraph (c)(15) of this 

section and deploy a pressure 

transducer; 

(11) Clearance zones must be fully 

visible for at least 60 minutes and all 

marine mammal(s) must be confirmed to 

be outside of the clearance zone for at 

least 30 minutes prior to detonation. 

PAM must also be conducted for at least 

60 minutes and the zone must be 

acoustically cleared during this time. If 

a marine mammal is observed entering 

or within the clearance zone prior to 

denotation, the activity must be 

delayed. Detonation may only 

commence if all marine mammals have 

been confirmed to have voluntarily left 

the clearance zones and been visually 

confirmed to be beyond the clearance 

zone, or when 60 minutes have elapsed 

without any redetections for whales 

(including the North Atlantic right 

whale) or 15 minutes have elapsed 

without any redetections of delphinids, 

harbor porpoises, or seals; 

(12) For UXO/MEC detonations, LOA 

Holder must follow all measures 

described in paragraphs (c)(15) and 

§ 217.264(c)(15)(i) through (vi), as well 

as the measures below: 

(i) LOA Holder must not exceed 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds, assuming 10- 

dB attenuation, for UXO/MEC 

detonations. If any of the interim SFV 

measurement reports submitted for any 

UXO/MEC detonations indicate the 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation for future detonations 

will be exceeded, then LOA Holder 

must implement additional sound 

attenuation measures on all subsequent 

UXO/MEC detonations, including but 

not limited to the deployment of 

additional NAS to assist in achieving 

measurements in alignment with the 

modeled ranges. LOA Holder must also 

increase clearance zone sizes to those 

identified by NMFS until SFV 

measurements on UXO/MECs 

demonstrate distances to harassment 

thresholds will be met or will be less 

than those modeled assuming 10 dB of 

attenuation. LOA Holder must optimize 

the sound attenuation systems (e.g., 

ensure hose maintenance, pressure 

testing, etc.) to meet noise levels 

modeled, assuming 10 dB of 

attenuation, for UXO/MECs of the same 

charge weight or else no detonation 

activities must occur until NMFS and 

LOA Holder can evaluate the situation 

and ensure future UXO/MEC 

detonations must not exceed noise 

levels modeled, assuming 10-dB 

attenuation; 

(ii) LOA Holder must submit a SFV 

Plan for UXO/MEC detonation to NMFS 

Office of Protected Resources for review 

and approval at least 180 days prior to 

planned start of UXO/MEC detonation 

activities and abide by the Plan if 

approved. The SFV Plan must include 

methodology for collecting, analyzing, 

and preparing SFV measurement data 

for submission to NMFS Office of 

Protected Resources and describe how 

the effectiveness of the sound 

attenuation methodology would be 

evaluated based on the results. For 

recommended SFV protocols for UXO/ 

MEC, please consult the National 

Physical Laboratory (NPL) Protocol for 

In-Situ Underwater Measurement of 

Explosive Ordnance Disposal for UXO 

(2020). SFV for UXO/MEC detonation 

cannot occur until NMFS approves the 

SFV Plan for this activity; 

(iii) LOA Holder must submit a UXO/ 

MEC Marine Mammal Monitoring Plan 

to NMFS Office of Protected Resources 

for review and approval at least 180 

days prior to planned start of UXO/MEC 

detonation, respectively, and abide by 

the 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 UXO/ 

MEC detonations. The Plan must 

include a description of all monitoring 

equipment and PAM and PSO protocols 

(including number and location of 

PSOs) for all UXO/MEC detonations. 

The Plan must include final UXO/MEC 

detonation project design (e.g., number 

and type of UXO/MECs, removal 

method(s), charge weight(s), anticipated 

start date, etc.) and all information 

related to PAM and PSO monitoring 

protocols for UXO/MEC activities. The 

Plan must detail all plans and 

procedures for sound attenuation as 

well as for monitoring marine mammals 

during all UXO/MEC detonations. No 

UXO/MEC detonations can occur 

without NMFS’ approval of the Plan; 

and 


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(iv) LOA Holder must submit a 

Passive Acoustic Monitoring Plan (PAM 

Plan) to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to the planned start 

of UXO/MEC detonations and abide by 

the 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 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 UXO/MEC detonations 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. 

(f) HRG surveys. The following 

requirements apply to HRG surveys 

operating sub-bottom profilers (SBPs) 

(i.e., boomers, sparkers, and 

Compressed High Intensity Radiated 

Pulse (CHIRPS)): 

(1) LOA Holder must establish and 

implement clearance and shutdown 

zones for HRG surveys using visual 

monitoring, as described in paragraph 

(c) of this section; 

(2) LOA Holder must utilize PSO(s), 

as described in § 217.265(f); 

(3) LOA Holder must abide by the 

relevant Project Design Criteria (PDCs 4, 

5, and 7) of the programmatic 

consultation completed by NMFS’ 

Greater Atlantic Regional Fisheries 

Office on June 29, 2021 (revised 

September 2021), pursuant to section 7 

of the Endangered Species Act (ESA). 

To the extent that any relevant Best 

Management Practices (BMPs) described 

in these PDCs are more stringent than 

the requirements herein, those BMPs 

supersede these requirements; 

(4) SBPs (hereinafter referred to as 

‘‘acoustic sources’’) must be deactivated 

when not acquiring data or preparing to 

acquire data, except as necessary for 

testing. Acoustic sources must be used 

at the lowest practicable source level to 

meet the survey objective, when in use, 

and must be turned off when they are 

not necessary for the survey; 

(5) LOA Holder is required to rampup acoustic sources prior to 

commencing full power, unless the 

equipment operates on a binary on/off 

switch, and ensure visual clearance 

zones are fully visible (e.g., not 

obscured by darkness, rain, fog, etc.) 

and clear of marine mammals, as 

determined by the Lead PSO, for at least 

30 minutes immediately prior to the 

initiation of survey activities using 

acoustic sources specified in the LOA. 

Ramp-up and activation must be 

delayed if a marine mammal(s) enters its 

respective shutdown zone. Ramp-up 

and activation may only be reinitiated if 

the animal(s) has been observed exiting 

its respective shutdown zone or until 15 

minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

species, has elapsed with no further 

sightings; 

(6) 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 prestart clearance period, the entire 

applicable clearance zones must be 

visible, except as indicated in paragraph 

(f)(12) of this section; 

(7) Ramp-ups must be scheduled so as 

to minimize the time spent with the 

source activated; 

(8) 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; 

(9) 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; 

(10) If a marine mammal is observed 

within a clearance zone during the 

clearance period, ramp-up or acoustic 

surveys may not begin until the 

animal(s) has been observed voluntarily 

exiting its respective clearance zone or 

until a specific time period has elapsed 

with no further sighting. The specific 

time period is 15 minutes for small 

odontocetes and pinnipeds, and 30 

minutes for all other species; 

(11) In any case when the clearance 

process has begun in conditions with 

good visibility, including via the use of 

night vision equipment (infrared (IR)/ 

thermal camera), and the Lead PSO has 

determined that the clearance zones are 

clear of marine mammals, survey 

operations would be allowed to 

commence (i.e., no delay is required) 

despite periods of inclement weather 

and/or loss of daylight. 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; 

(12) 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 

would be allowed to continue (i.e., no 

shutdown is required) so long as no 

marine mammals have been detected. 

The shutdown requirement does not 

apply to small delphinids of the 

following genera: Delphinus, Stenella, 

Lagenorhynchus, and Tursiops. If there 

is uncertainty regarding the 

identification of a marine mammal 

species (i.e., whether the observed 

marine mammal belongs to one of the 

delphinid genera for which shutdown is 

waived), the PSOs must use their best 

professional judgment in making the 

decision to call for a shutdown. 

Shutdown is required if a delphinid that 

belongs to a genus other than those 

specified in this paragraph (f)(12) of this 

section is detected in the shutdown 

zone; 

(13) 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; 

(14) LOA Holder must immediately 

shut down any acoustic source if a 

marine mammal is sighted entering or 

within its respective shutdown zones. If 

there is uncertainty regarding the 

identification of a marine mammal 

species (i.e., whether the observed 

marine mammal belongs to one of the 

delphinid genera for which shutdown is 

waived), the PSOs must use their best 

professional judgment in making the 

decision to call for a shutdown. 

Shutdown is required if a delphinid that 

belongs to a genus other than those 

specified in paragraph (f)(12) of this 

section is detected in the shutdown 

zone; 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 


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observation and no additional 

detections of any marine mammal 

occurred within the respective 

shutdown zones. 

(g) Fisheries monitoring surveys. The 

following measures apply to fishery 

monitoring surveys: 

(1) Survey gear must be deployed as 

soon as possible once the vessel arrives 

on station. Gear must not be deployed 

if there is a risk of interaction with 

marine mammals. Gear may be 

deployed after 15 minutes of no marine 

mammal sightings within 1 nautical 

mile (nmi; 1,852 m) of the sampling 

station; 

(2) LOA Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains must 

implement the following ‘‘move-on’’ 

rule: If marine mammals are sighted 

within 1 nmi of the planned location 

and 15 minutes before gear deployment, 

then LOA Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially hired captains, as 

appropriate, must move the vessel away 

from the marine mammal to a different 

section of the sampling area. If, after 

moving on, marine mammals are still 

visible from the vessel, LOA Holder and 

its cooperating institutions, contracted 

vessels, or commercially hired captains 

must move again or skip the station; 

(3) If a marine mammal is deemed to 

be at risk of interaction after the gear is 

deployed or set, all gear must be 

immediately removed from the water. If 

marine mammals are sighted before the 

gear is fully removed from the water, the 

vessel must slow its speed and 

maneuver the vessel away from the 

animals to minimize potential 

interactions with the observed animal; 

(4) LOA Holder must maintain visual 

marine mammal monitoring effort 

during the entire period of time that 

gear is in the water (i.e., throughout gear 

deployment, fishing, and retrieval); 

(5) All fisheries monitoring gear must 

be fully cleaned and repaired (if 

damaged) before each use/deployment; 

(6) LOA Holder’s fixed gear must 

comply with the Atlantic Large Whale 

Take Reduction Plan regulations at 50 

CFR 229.32 during fisheries monitoring 

surveys; 

(7) Trawl tows must be limited to a 

maximum of a 20-minute trawl time at 

3.0 kn; 

(8) All gear must be emptied as close 

to the deck/sorting area and as quickly 

as possible after retrieval; 

(9) 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; 

(10) Baited remote underwater video 

(BRUV) sampling must limit soak 

duration to 60 minutes or less, BRUVs 

must use a weighted line attached to 

surface and subsurface buoys that must 

hold a stereo-camera system in the 

water column and a system at the 

seafloor, and the vessel must remain on 

location with the gear while it is in use; 

(11) Each chevron trap must have a 

vertical buoy line and must limit soak 

duration to 90 minutes or less; 

(12) 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; 

or buoy line with weak inserts that 

result in line having an overall breaking 

strength of 1,700 lbs; 

(13) During any survey that uses 

vertical lines, buoy lines must be 

weighted and must not float at the 

surface of the water and all groundlines 

must consist of sinking lines. All 

groundlines must be composed entirely 

of sinking lines. Buoy lines must utilize 

weak links. Weak links must break 

cleanly leaving behind the bitter end of 

the line. The bitter end of the line must 

be free of any knots when the weak link 

breaks. Splices are not considered to be 

knots. The attachment of buoys, toggles, 

or other floatation devices to 

groundlines is prohibited; 

(14) 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; 

(15) All survey gear must be removed 

from the water whenever not in active 

survey use (i.e., no wet storage); and 

(16) All reasonable efforts, that do not 

compromise human safety, must be 

undertaken to recover gear. 

§ 217.265 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, meaning that the 

PSOs and PAM operators must be 

employed by a third-party observer 

provider, must have no tasks other than 

to conduct observational effort, collect 

data, and communicate with and 

instruct relevant crew with regard to the 

presence of protected species and 

mitigation requirements; 

(2) All PSOs and PAM operators must 

have successfully attained a bachelor’s 

degree from an accredited college or 

university with a major in one of the 

natural sciences, a minimum of 30 

semester hours or equivalent in the 

biological sciences, and at least one 

undergraduate course in math or 

statistics. The educational requirements 

may be waived if the PSO or PAM 

operator has acquired the relevant skills 

through a suitable amount of alternate 

experience. Requests for such a waiver 

must be submitted to NMFS Office of 

Protected Resources and must include 

written justification containing 

alternative experience. Alternate 

experience that may be considered 

includes, but is not limited to: previous 

work experience conducting academic, 

commercial, or government-sponsored 

marine mammal visual and/or acoustic 

surveys; or previous work experience as 

a PSO/PAM operator; 

(3) PSOs must have visual acuity in 

both eyes (with correction of vision 

being permissible) sufficient enough to 

discern moving targets on the water’s 

surface with the ability to estimate the 

target size and distance (binocular use is 

allowable); ability to conduct field 

observations and collect data according 

to the assigned protocols; sufficient 

training, orientation, or experience with 

the construction operation to provide 

for personal safety during observations; 

writing skills sufficient to document 

observations, including but not limited 

to, the number and species of marine 

mammals observed, the dates and times 

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 inperson, with project personnel to 

provide real-time information on marine 

mammals observed in the area; 

(4) All PSOs must be trained in 

northwestern Atlantic Ocean marine 

mammal identification and behaviors 

and must be able to conduct field 

observations and collect data according 

to assigned protocols. Additionally, 

PSOs must have the ability to work with 

all required and relevant software and 

equipment necessary during 

observations (as described in paragraphs 

(b)(6) and (b)(7) of this section); 

(5) All PSOs and PAM operators must 

successfully complete a relevant 


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training course within the last 5 years, 

including obtaining a certificate of 

course completion; 

(6) PSOs and PAM operators are 

responsible for obtaining NMFS’ 

approval. NMFS may approve PSOs and 

PAM operators as conditional or 

unconditional. A conditionallyapproved PSO or PAM operator 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 or PAM 

operator is one who has completed 

training within the last 5 years and 

attained the necessary experience (i.e., 

demonstrate experience with 

monitoring for marine mammals at 

clearance and shutdown zone sizes 

similar to those produced during the 

respective activity). Lead PSO or PAM 

operators must be unconditionally 

approved and have a minimum of 90 

days in an northwestern Atlantic Ocean 

offshore environment performing the 

role (either visual or acoustic), with the 

conclusion of the most recent relevant 

experience not more than 18 months 

previous. A conditionally approved PSO 

or PAM operator must be paired with an 

unconditionally approved PSO or PAM 

operator; 

(7) PSOs for cable landfall 

construction (i.e., vibratory pile 

installation and removal) and HRG 

surveys may be unconditionally or 

conditionally approved. PSOs and PAM 

operators for foundation installation and 

UXO/MEC activities must be 

unconditionally approved; 

(8) At least one on-duty PSO and 

PAM operator, where applicable, for 

each activity (e.g., impact pile driving, 

vibratory pile driving, UXO/MEC 

detonation activities, and HRG surveys) 

must be designated as the Lead PSO or 

Lead PAM operator; 

(9) LOA Holder must submit NMFS 

previously approved PSOs and PAM 

operators to NMFS Office of Protected 

Resources for review and confirmation 

of their approval for specific roles at 

least 30 days prior to commencement of 

the activities requiring PSOs/PAM 

operators or 15 days prior to when new 

PSOs/PAM operators are required after 

activities have commenced; 

(10) For prospective PSOs and PAM 

operators not previously approved, or 

for PSOs and PAM operators whose 

approval is not current, LOA Holder 

must submit resumes for approval at 

least 60 days prior to PSO and PAM 

operator use. Resumes must include 

information related to relevant 

education, experience, and training, 

including dates, duration, location, and 

description of prior PSO or PAM 

operator experience. Resumes must be 

accompanied by relevant 

documentation of successful completion 

of necessary training; 

(11) PAM operators are responsible 

for obtaining NMFS approval. To be 

approved as a PAM operator, the person 

must meet the following qualifications: 

The PAM operator must demonstrate 

that they have prior experience with 

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; must 

be able to distinguish between whether 

a marine mammal or other species 

sound is detected, possibly detected, not 

detected and similar terminology must 

be used across companies/projects; 

where localization of sounds or deriving 

bearings and distance are possible, the 

PAM operators need to have 

demonstrated experience in using this 

technique; PAM operators must be 

independent observers (i.e., not 

construction personnel); PAM operators 

must demonstrate experience with 

relevant acoustic software and 

equipment; PAM operators must have 

the qualifications and relevant 

experience/training to safely deploy and 

retrieve equipment and program the 

software, as necessary; PAM operators 

must be able to test software and 

hardware functionality prior to 

operation; and PAM operators must 

have evaluated their acoustic detection 

software using the PAM Atlantic baleen 

whale annotated data set available at 

National Centers for Environmental 

Information (NCEI) and provide 

evaluation/performance metric; 

(12) PAM operators must 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; 

(13) PSOs may work as PAM 

operators and vice versa, pending 

NMFS-approval; however, they may 

only perform one role at any one time 

and must not exceed work time 

restrictions, which must be tallied 

cumulatively; and 

(14) All PSOs and PAM operators 

must complete a Permits and 

Environmental Compliance Plan 

training and a 2-day refresher session 

that must be held with the PSO provider 

and Project compliance representative(s) 

prior to the start of in-water project 

activities (e.g., HRG survey, foundation 

installation, cable landfall activities, 

UXO/MEC detonations, etc.). 

(b) General PSO and PAM operator 

requirements. The following measures 

apply to PSOs and PAM operators and 

must be implemented by LOA Holder: 

(1) PSOs must monitor for marine 

mammals prior to, during, and 

following impact pile driving, vibratory 

pile driving, UXO/MEC detonation 

activities, 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) For foundation installation and 

UXO/MEC detonation, PSOs must 

visually clear (i.e., confirm no 

observations of marine mammals) the 

entire minimum visibility zone for a full 

30 minutes immediately prior to 

commencing activities. For cable 

landfall activities (e.g., cofferdams and 

goal posts) and HRG surveys, which do 

not have a minimum visibility zone, the 

entire clearance zone must be visually 

cleared and as much of the Level B 

harassment zone as possible; 

(3) All PSOs must be located at the 

best vantage point(s) on any platform, as 

determined by the Lead PSO, in order 

to obtain 360-degree visual coverage of 

the entire clearance and shutdown 

zones around the activity area, and as 

much of the Level B harassment zone as 

possible. PAM operators may be located 

on a vessel or remotely on-shore, the 

PAM operator(s) must assist PSOs in 

ensuring full coverage of the clearance 

and shutdown zones. The PAM operator 

must monitor to and past the clearance 

zone for large whales; 

(4) All on-duty PSOs must remain in 

real-time contact with the on-duty PAM 

operator(s), PAM operators must 

immediately communicate all acoustic 

detections of marine mammals to PSOs, 

including any determination regarding 

species identification, distance, and 

bearing (where relevant) relative to the 

pile being driven and the degree of 

confidence (e.g., possible, probable 

detection) in the determination. All onduty 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 or UXO/MEC detonation) to 

ensure communication on marine 

mammal observations can easily, 

quickly, and consistently occur between 

all on-duty PSOs, PAM operator(s), and 

on-water Project personnel; 

(5) The PAM operator must inform the 

Lead PSO(s) on duty of animal 

detections approaching or within 


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applicable ranges of interest to the 

activity occurring via the data collection 

software system (i.e., Mysticetus or 

similar system) who must be 

responsible for requesting that the 

designated crewmember implement the 

necessary mitigation procedures (i.e., 

delay); 

(6) PSOs must use high magnification 

(25x) binoculars, standard handheld 

(7x) binoculars, and the naked eye to 

search continuously for marine 

mammals. During foundation 

installation and UXO/MEC detonations, 

at least two PSOs on the pile driving 

and detonation-dedicated PSO vessel 

must be equipped with functional Big 

Eye binoculars (e.g., 25 x 150; 2.7 view 

angle; individual ocular focus; height 

control); these must be pedestal 

mounted on the deck at the best vantage 

point that provides for optimal sea 

surface observation and PSO safety. 

PAM operators must have the 

appropriate equipment (i.e., a computer 

station equipped with a data collection 

software system available wherever they 

are stationed) and use a NMFSapproved PAM system to conduct 

monitoring. PAM systems are approved 

through the PAM Plan as described in 

§ 217.264(c)(17); 

(7) During periods of low visibility 

(e.g., darkness, rain, fog, poor weather 

conditions, etc.), PSOs must use 

alternative technology (i.e., infrared or 

thermal cameras) to monitor the 

clearance and shutdown zones as 

approved by NMFS; and 

(8) PSOs and PAM operators must not 

exceed 4 consecutive watch hours on 

duty at any time, must have a 2-hour 

(minimum) break between watches, and 

must not exceed a combined watch 

schedule of more than 12 hours in a 24- 

hour period. If the schedule includes 

PSOs and PAM operators on-duty for 2- 

hour shifts, a minimum 1-hour break 

between watches must be allowed. 

(c) PSO and PAM operator 

requirements during WTG and OSS 

foundation installation and UXO/MEC 

detonations. The following measures 

apply to PSOs and PAM operators 

during WTG and OSS foundation 

installation and UXO/MEC detonations 

and must be implemented by LOA 

Holder: 

(1) PSOs and PAM operator(s), using 

a NMFS-approved PAM system, must 

monitor for marine mammals 60 

minutes prior to, during, and 30 

minutes following all pile-driving and 

UXO/MEC detonation activities. If PSOs 

cannot visually monitor the minimum 

visibility zone prior to impact pile 

driving or the clearance zone prior to 

any UXO/MEC detonation at all times 

using the equipment described in 

paragraphs (b)(6) and (7) of this section, 

pile-driving operations or UXO/MEC 

detonation must not commence or must 

shutdown if they are currently active; 

(2) At least three on-duty PSOs must 

be stationed and observing from the 

activity platform during impact pile 

driving or UXO/MEC detonation and at 

least three on-duty PSOs must be 

stationed on each dedicated PSO vessel. 

If an aerial platform is required or used 

(per § 217.264(e)(7)), at least two onduty PSOs must be actively searching 

for marine mammals. Concurrently, at 

least one PAM operator per acoustic 

data stream (equivalent to the number of 

acoustic buoys) must be actively 

monitoring for marine mammals 60 

minutes before, during, and 30 minutes 

after impact pile driving or UXO/MEC 

detonation in accordance with a NMFSapproved PAM Plan; 

(3) LOA Holder must conduct PAM 

for at least 24 hours immediately prior 

to pile driving or UXO/MEC detonation 

activities. The PAM operator must 

review all detections from the previous 

24-hour period immediately prior to 

pile driving and UXO/MEC detonation 

activities. 

(d) PSO requirements during 

cofferdam and goal post installation 

and removal. The following measures 

apply to PSOs during cofferdam and 

goal post 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 goal posts; 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 casing pipe, if installed), and 

for 30 minutes after all vibratory pile 

driving activities have ceased. Sheet 

pile or casing pipe installation 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 

initiation of vibratory pile driving. 

(e) PSO requirements during HRG 

surveys. The following measures apply 

to PSOs during HRG surveys using 

acoustic sources that have the potential 

to result in harassment and must be 

implemented by LOA Holder: 

(1) Between four and six PSOs must 

be present on every 24-hour survey 

vessel and two to three PSOs must be 

present on every 12-hour survey vessel; 

(2) At least one PSO must be on active 

duty monitoring during HRG surveys 

conducted during daylight (i.e., from 30 

minutes prior to civil sunrise through 30 

minutes following civil sunset) and at 

least two PSOs must be on activity duty 

monitoring during HRG surveys 

conducted at night; 

(3) PSOs on HRG vessels must begin 

monitoring 30 minutes prior to 

activating 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. Offeffort 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, and for 15 minutes 

after haul back. 

(g) Reporting. LOA Holder must 

comply with the following reporting 

measures: 

(1) Prior to initiation of any on-water 

project activities, LOA Holder must 

demonstrate in a report submitted to 

NMFS Office of Protected Resources 

that all required training for LOA 

Holder personnel (including the vessel 

crews, vessel captains, PSOs, and PAM 

operators) has been completed. 

(2) LOA Holder must use a 

standardized reporting system during 

the effective period of the LOA. All data 

collected related to the Project must be 

recorded using industry-standard 

software that is installed on field 

laptops and/or tablets. Unless stated 

otherwise, all reports must be submitted 

to NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov), 

dates must be in MM/DD/YYYY format, 

and location information must be 

provided in Decimal Degrees and with 

the coordinate system information (e.g., 

NAD83, WGS84, etc.). 

(3) For all visual monitoring efforts 

and marine mammal sightings, the 

following information must be collected 


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and reported to NMFS Office of 

Protected Resources: the date and time 

that monitored activity begins or ends; 

the construction activities occurring 

during each observation period; the 

watch status (i.e., sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); the PSO who 

sighted the animal; the time of sighting; 

the weather parameters (e.g., wind 

speed, percent cloud cover, visibility); 

the water conditions (e.g., Beaufort sea 

state, tide state, water depth); all marine 

mammal sightings, regardless of 

distance from the construction activity; 

species (or lowest possible taxonomic 

level possible); the pace of the 

animal(s); the estimated number of 

animals (minimum/maximum/high/ 

low/best); the estimated number of 

animals by cohort (e.g., adults, 

yearlings, juveniles, calves, group 

composition, etc.); the description (i.e., 

as many distinguishing features as 

possible of each individual seen, 

including length, shape, color, pattern, 

scars or markings, shape and size of 

dorsal fin, shape of head, and blow 

characteristics); the description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling) and observed changes in 

behavior, including an assessment of 

behavioral responses thought to have 

resulted from the specific activity; the 

animal’s closest distance and bearing 

from the pile being driven 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., vibratory installation/removal, 

impact pile driving, construction 

survey), use of any noise attenuation 

device(s), and specific phase of activity 

(e.g., ramp-up of HRG equipment, HRG 

acoustic source on/off, soft-start for pile 

driving, active pile driving, etc.); the 

marine mammal occurrence in Level A 

harassment or Level B harassment 

zones; the description of any mitigationrelated 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 § 217.266. 

(4) 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; details on the 

deployment of PSOs; a record of all 

detections of marine mammals (acoustic 

and visual); any mitigation actions (or if 

mitigation actions could not be taken, 

provide reasons why); and details on the 

noise attenuation system(s) used and its 

performance. Weekly reports are due on 

Wednesday for the previous week 

(Sunday to Saturday) and must include 

the information required under this 

section. The weekly report must also 

identify which turbines become 

operational and when (a map must be 

provided). Once all foundation pile 

installation is completed, weekly 

reports are no longer required by LOA 

Holder. 

(5) LOA Holder must compile and 

submit monthly reports to NMFS Office 

of Protected Resources during 

foundation installation that include a 

summary of all information in the 

weekly reports, including project 

activities carried out in the previous 

month, vessel transits (number, type of 

vessel, MMIS number, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

action taken. Monthly reports are due 

on the 15th of the month for the 

previous month. The monthly report 

must also identify which turbines 

become operational and when (a map 

must be provided). Full PAM detection 

data and metadata must also be 

submitted monthly on the 15th of every 

month for the previous month via the 

webform on the NMFS North Atlantic 

Right Whale Passive Acoustic Reporting 

System website at https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates. 

(6) LOA Holder must submit a draft 

annual report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year. LOA Holder must 

provide a final report within 30 days 

following resolution of NMFS’ 

comments on the draft report. The draft 

and final reports must detail the 

following: the total number of marine 

mammals of each species/stock detected 

and how many were within the 

designated Level A harassment and 

Level B harassment zone(s) with 

comparison to authorized take of marine 

mammals for the associated activity 

type; marine mammal detections and 

behavioral observations before, during, 

and after each activity; what mitigation 

measures were implemented (i.e., 

number of shutdowns or clearance zone 

delays, etc.) or, if no mitigative actions 

was taken, why not; operational details 

(i.e., days and duration of impact and 

vibratory pile driving, days and number 

of UXO/MEC detonations, days and 

amount of HRG survey effort, etc.); any 

PAM systems used; the results, 

effectiveness, and which noise 

attenuation systems were used during 

relevant activities (i.e., impact pile 

driving, and UXO/MEC detonations); 

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. 

(7) LOA Holder must submit its draft 

5-year report to NMFS Office of 

Protected Resources on all visual and 

acoustic monitoring conducted within 

90 calendar days of the completion of 

activities occurring under the LOA. A 5- 

year report must be prepared and 

submitted within 60 calendar days 

following receipt of any NMFS Office of 

Protected Resources comments on the 

draft report. If no comments are 

received from NMFS Office of Protected 

Resources within 60 calendar days of 

NMFS Office of Protected Resources 

receipt of the draft report, the report 

shall be considered final. 

(8) For those foundation piles and 

UXO/MEC detonations requiring SFV 

measurements, LOA Holder must 

provide the initial results of the SFV 

measurements to NMFS Office of 

Protected Resources in an interim report 

after each foundation installation event 

and each UXO/MEC detonation event as 

soon as they are available and prior to 

a subsequent detonation or foundation 

installation, but no later than 48 hours 

after each completed foundation 

installation event and 48 hours after a 

detonation. The report must include, at 

minimum: hammer energies/schedule 

used during pile driving, including, the 

total number of strikes and the 

maximum hammer energy; the modelestimated acoustic ranges (R95%) to 

compare with the real-world sound field 

measurements; the estimated UXO/MEC 

charge size (or physical size if charge 

size is unknown) and donor charge size 

in trinitrotoluene (TNT) equivalent 

weight for either high (donor charge 

used to detonate/destroy UXO/MEC) or 

low order (e.g., deflagration where 

donor charge disrupts/consumes UXO/ 

MEC) detonations and description of 

UXO/MEC (e.g., munition type, state of 

submergence, approximate age); peak 

sound pressure level (SPLpk), root-meansquare 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 


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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 

UXO/MEC and each hydrophone array 

in latitude/longitude; depths of each 

hydrophone; one-third-octave band 

single strike SEL spectra; if filtering is 

applied, full filter characteristics must 

be reported; and hydrophone 

specifications including the type, 

model, and sensitivity. LOA Holder 

must also report any immediate 

observations which are suspected to 

have a significant impact on the results 

including but not limited to: observed 

noise mitigation system issues, 

obstructions along the measurement 

transect, and technical issues with 

hydrophones or recording devices. If 

any in-situ calibration checks for 

hydrophones reveal a calibration drift 

greater than 0.75 dB, pistonphone 

calibration checks are inconclusive, or 

calibration checks are otherwise not 

effectively performed, LOA Holder must 

indicate full details of the calibration 

procedure, results, and any associated 

issues in the 48-hour interim reports. 

(9) The final results of SFV 

measurements from each foundation 

installation and each UXO/MEC 

detonation must be submitted as soon as 

possible, but no later than 90 days 

following completion of each event’s 

SFV measurements. The final reports 

must include all details prescribed 

above for the interim report as well as, 

at minimum, the following: the peak 

sound pressure level (SPLpk), the rootmean-square sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), the single strike sound 

exposure level (SELss), the integration 

time for SPLrms, the spectrum, and the 

24-hour cumulative SEL extrapolated 

from measurements at all hydrophones. 

The final report must also include at 

least the maximum, mean, minimum, 

median (L50) and L5 (95 percent 

exceedance) statistics for each metric; 

the SEL and SPL power spectral density 

and/or one-third octave band levels 

(usually calculated as decidecade band 

levels) at the receiver locations should 

be reported; the sound levels reported 

must be in median, arithmetic mean, 

and L5 (95 percent exceedance) (i.e., 

average in linear space), and in dB; 

range of TL coefficients; the local 

environmental conditions, such as wind 

speed, transmission loss data collected 

on-site (or the sound velocity profile); 

baseline pre- and post-activity ambient 

sound levels (broadband and/or within 

frequencies of concern); a description of 

depth and sediment type, as 

documented in the Construction and 

Operation Plan (COP), at the recording 

and foundation installation and UXO/ 

MEC detonation 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 

charge weights and other relevant 

characteristics of UXO/MEC 

detonations; the hydrophone equipment 

and methods (i.e., recording device, 

bandwidth/sampling rate; distance from 

the pile and UXO/MEC 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 and UXO/MEC charge; a 

description of the noise abatement 

system and operational parameters (e.g., 

bubble flow rate, distance deployed 

from the pile and/or UXO/MEC, etc.), 

and any action taken to adjust the noise 

abatement system. 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. 

(10) 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 (or UXO/MEC is 

detonated), whichever comes first. 

(11) If a North Atlantic right whale is 

acoustic detected at any time by a 

project-related PAM system, LOA 

Holder must ensure the detection is 

reported as soon as possible to NMFS, 

but no longer than 24 hours after the 

detection via the 24-hour North Atlantic 

right whale Detection Template (https:// 

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template; 

(12) Full detection data, metadata, 

and location of recorders (or GPS tracks, 

if applicable) from all real-time 

hydrophones used for monitoring 

during construction must be submitted 

within 90 calendar days following 

completion of activities requiring PAM 

for mitigation via the ISO standard 

metadata forms available on the NMFS 

Passive Acoustic Reporting System 

website (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Submit the 

completed data templates to 

nmfs.nec.pacmdata@noaa.gov. The full 

acoustic recordings from real-time 

systems must also be sent to the 

National Centers for Environmental 

Information (NCEI) for archiving within 

90 days following completion of 

activities requiring PAM for mitigation. 

Submission details can be found at: 

https://www.ncei.noaa.gov/products/ 

passive-acoustic-data; 

(13) LOA Holder must submit 

situational reports if the following 

circumstances occur (including all 

instances wherein an exemption is 

taken must be reported to NMFS Office 

of Protected Resources within 24 hours): 

(i) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must ensure the 

sighting is immediately (if not feasible, 

as soon as possible and no longer than 

24 hours after the sighting) reported to 

NMFS and the Right Whale Sightings 

Advisory System (RWSAS). If in the 

Northeast Region (Maine to Virginia/ 

North Carolina border) call (866–755– 

6622). If in the Southeast Region (North 

Carolina to Florida) call (877–WHALE– 

HELP or 877–942–5343). If calling 

NMFS is not possible, reports can also 

be made to the U.S. Coast Guard via 

channel 16 or through the WhaleAlert 

app (http://www.whalealert.org/). The 

sighting report must include the time, 

date, and location of the sighting, 

number of whales, animal description/ 

certainty of sighting (provide photos/ 

video if taken), Lease Area/project 

name, PSO/personnel name, PSO 

provider company (if applicable), and 

reporter’s contact information. 

(ii) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must submit a 

summary report to NMFS Greater 


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Atlantic Regional Fisheries (GARFO; 

nmfs.gar.incidental-take@noaa.gov), 

NMFS Office of Protected Resources, 

and NMFS Northeast Fisheries Science 

Center (NEFSC; ne.rw.survey@noaa.gov) 

within 24 hours with the above 

information and the vessel/platform 

from which the sighting was made, 

activity the vessel/platform was engaged 

in at time of sighting, project 

construction and/or survey activity at 

the time of the sighting (e.g., pile 

driving, cable installation, HRG survey), 

distance from vessel/platform to 

sighting at time of detection, and any 

mitigation actions taken in response to 

the sighting. 

(iii) If an observation of a large whale 

occurs during vessel transit, LOA 

Holder must report the time, date, and 

location of the sighting; the vessel’s 

activity, heading, and speed (knots); 

Beaufort sea state, water depth (meters), 

and visibility conditions; marine 

mammal species identification to the 

best of the observer’s ability and any 

distinguishing characteristics; initial 

distance and bearing to marine mammal 

from vessel and closest point of 

approach; and any avoidance measures 

taken in response to the marine 

mammal sighting. 

(iv) LOA Holder must provide NMFS 

Office of Protected Resources with 

notification of planned UXO/MEC 

detonation as soon as possible but at 

least 48 hours prior to the planned 

detonation, unless this 48-hour 

notification would create delays to the 

detonation that would result in 

imminent risk of human life or safety. 

This notification must include the 

coordinates of the planned detonation, 

the estimated charge size, and any other 

information available on the 

characteristics of the UXO/MEC. If an 

UXO/MEC detonation occurs, within 72 

hours after a detonation but before the 

next detonation, whichever is sooner, 

LOA Holder must report to NMFS Office 

of Protected Resources the time, date, 

location (latitude/longitude Decimal 

Degrees), charge weight size, 

justification on why detonation was 

necessary and other means of removal 

or avoidance could not occur, all 

detections of marine mammals within 

the UXO/MEC zones, and any mitigative 

action taken. 

(v) In the event that personnel 

involved in the Project discover a 

stranded, entangled, injured, or dead 

marine mammal, LOA Holder must 

immediately report the observation to 

NMFS. If in the Greater Atlantic Region 

(Maine to Virginia) call the NMFS 

Greater Atlantic Stranding Hotline (866– 

755–6622); if in the Southeast Region 

(North Carolina to Florida), call the 

NMFS Southeast Stranding Hotline 

(877–942–5343). Separately, LOA 

Holder must report the incident to 

NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS Greater 

Atlantic Regional Fisheries Office 

(GARFO; nmfs.gar.incidental-take@

noaa.gov, nmfs.gar.stranding@noaa.gov) 

or, if in the Southeast region (North 

Carolina to Florida), NMFS Southeast 

Regional Office (SERO; 

secmammalreports@noaa.gov) as soon 

as feasible. The report (via phone or 

email) must include contact (name, 

phone number, etc.), the time, date, and 

location of the first discovery (and 

updated location information if known 

and applicable); Species identification 

(if known) or description of the 

animal(s) involved; condition of the 

animal(s) (including carcass condition if 

the animal is dead); observed behaviors 

of the animal(s), if alive; if available, 

photographs or video footage of the 

animal(s); and general circumstances 

under which the animal was discovered. 

(vi) In the event of a vessel strike of 

a marine mammal by any vessel 

associated with the Project or if project 

activities cause a non-auditory injury or 

death of a marine mammal, LOA Holder 

must immediately report the incident to 

NMFS. If in the Greater Atlantic Region 

(Maine to Virginia) call the NMFS 

Greater Atlantic Stranding Hotline (866– 

755–6622) and if in the Southeast 

Region (North Carolina to Florida) call 

the NMFS Southeast Stranding Hotline 

(877–942–5343). Separately, LOA 

Holder must immediately report the 

incident to NMFS Office of Protected 

Resources (PR.ITP.MonitoringReports@

noaa.gov) and, if in the Greater Atlantic 

region (Maine to Virginia), NMFS 

GARFO (nmfs.gar.incidental-take@

noaa.gov, nmfs.gar.stranding@noaa.gov) 

or, if in the Southeast region (North 

Carolina to Florida), NMFS SERO 

(secmammalreports@noaa.gov). The 

report must include the time, date, and 

location of the incident; species 

identification (if known) or description 

of the animal(s) involved; vessel size 

and motor configuration (inboard, 

outboard, jet propulsion); vessel’s speed 

leading up to and during the incident; 

vessel’s course/heading and what 

operations were being conducted (if 

applicable); status of all sound sources 

in use; description of avoidance 

measures/requirements that were in 

place at the time of the strike and what 

additional measures were taken, if any, 

to avoid strike; environmental 

conditions (e.g., wind speed and 

direction, Beaufort sea state, cloud 

cover, visibility) immediately preceding 

the strike; estimated size and length of 

animal that was struck; description of 

the behavior of the marine mammal 

immediately preceding and following 

the strike; if available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; estimated fate of 

the animal (e.g., dead, injured but alive, 

injured and moving, blood or tissue 

observed in the water, status unknown, 

disappeared); and to the extent 

practicable, photographs or video 

footage of the animal(s). LOA Holder 

must immediately cease all on-water 

activities until the NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. LOA Holder may not 

resume their activities until notified by 

NMFS Office of Protected Resources. 

(14) LOA Holder must report any lost 

gear associated with the fishery surveys 

to the NMFS GARFO Protected 

Resources Division (nmfs.gar.incidentaltake@noaa.gov) 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. 

§ 217.266 Letter of Authorization. 

(a) To incidentally take marine 

mammals pursuant to this subpart, LOA 

Holder must apply for and obtain an 

LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed October 12, 2028, the 

expiration date of this subpart. 

(c) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, LOA Holder must apply for and 

obtain a modification of the LOA as 

described in § 217.267. 

(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 


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Federal Register / Vol. 88, No. 176 / Wednesday, September 13, 2023 / Rules and Regulations 62991 

allowable under the regulations of this 

subpart. 

(f) Notice of issuance or denial of an 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.267 Modifications of Letter of 

Authorization. 

(a) An LOA issued under §§ 217.262 

and 217.266 or this section for the 

activity identified in § 217.260(a) shall 

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 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under this subpart were implemented. 

(b) For a LOA modification request by 

the applicant that includes changes to 

the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section), the LOA shall be 

modified, provided that: 

(1) NMFS Office of Protected 

Resources determines that the changes 

to the activity or the mitigation, 

monitoring, or reporting do not change 

the findings made for the regulations in 

this subpart and do not result in more 

than a minor change in the total 

estimated number of takes (or 

distribution by species or years), and 

(2) NMFS Office of Protected 

Resources may, if appropriate, publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) An LOA issued under §§ 217.262 

and 217.266 or this section for the 

activities identified in § 217.260(a) may 

be modified by NMFS Office of 

Protected Resources under the following 

circumstances: 

(1) Through adaptive management, 

NMFS Office of Protected Resources 

may modify (including delete, modify, 

or add to) the existing mitigation, 

monitoring, or reporting measures (after 

consulting with LOA Holder regarding 

the practicability of the modifications), 

if doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of the 

mitigation and monitoring; 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA include, but are not 

limited to: 

(A) Results from LOA Holder’s 

monitoring(s); 

(B) Results from other marine 

mammals and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations in this 

subpart or subsequent LOA. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS Office of Protected 

Resources shall publish a notice of 

proposed LOA in the Federal Register 

and solicit public comment. 

(2) If NMFS Office of Protected 

Resources determines that an emergency 

exists that poses a significant risk to the 

well-being of the species or stocks of 

marine mammals specified in the LOA 

issued pursuant to §§ 217.262 and 

217.266 or this section, an LOA may be 

modified without prior notice or 

opportunity for public comment. Notice 

would be published in the Federal 

Register within 30 days of the action. 

§§ 217.268–217.269 [Reserved] 

[FR Doc. 2023–19351 Filed 9–12–23; 8:45 am] 

BILLING CODE 3510–22–P 


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