[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Rules and Regulations]
[Pages 72562-72673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22056]



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Vol. 88

Friday,

No. 202

October 20, 2023

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Revolution Wind Offshore Wind Farm 
Project Offshore Rhode Island; Final Rule

Federal Register / Vol. 88 , No. 202 / Friday, October 20, 2023 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

RIN 0648-BL52
[Docket No. 230928-0235]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind 
Farm Project Offshore Rhode Island

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

ACTION: Final rule.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS promulgates regulations to govern the incidental taking of 
marine mammals incidental to Revolution Wind, LLC's (Revolution Wind), 
a subsidiary wholly owned by Orsted Wind Power North America, LLC 
(Orsted), construction of the Revolution Wind Offshore Wind Energy 
Project (hereafter known as the ``Project'') in Federal and State 
waters offshore Rhode Island, 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-0486 (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 (November 20, 2023 through November 
19, 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 November 20, 
2023 through November 19, 2028.

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

SUPPLEMENTARY INFORMATION: 

Availability

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

Purpose and Need for Regulatory Action

    This final rule, as promulgated, provides a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize 
the take of marine mammals incidental to construction of the Project 
within the Project Area. NMFS received a request from Revolution Wind 
to incidentally take individuals of 16 species of marine mammals, 
comprising 16 stocks (10 stocks by Level A harassment and Level B 
harassment and 6 stocks by Level B harassment), incidental to 
Revolution 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:
    <bullet> 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);
    <bullet> 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);
    <bullet> 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);
    <bullet> Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
    <bullet> 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
    <bullet> 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 Revolution Wind's 
construction activities.

Summary of Major Provisions Within the Final Rule

    The major provisions of this final rule are:
    <bullet> The authorized take of marine mammals by Level A 
harassment and/or Level B harassment;
    <bullet> No authorized take of marine mammals by mortality or 
serious injury;
    <bullet> The establishment of a seasonal moratorium on impact pile 
driving of foundation piles during the months of

[[Page 72563]]

the highest presence of North Atlantic right whales (Eubalaena 
glacialis) in the Lease Area (December 1-April 30, annually), unless 
prior approval from NMFS for pile driving in December;
    <bullet> A requirement for unexploded ordnance or munitions and 
explosives of concern (UXO/MEC) detonations to only occur during hours 
of daylight and not during hours of darkness;
    <bullet> A requirement for both visual and passive acoustic 
monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected 
Species Observers (PSOs) and PAM operators (where required) before, 
during, and after select activities;
    <bullet> A requirement for training for all Revolution Wind 
personnel to ensure marine mammal protocols and procedures are 
understood;
    <bullet> 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;
    <bullet> 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);
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> A requirement to implement sound field verification during 
impact pile driving of foundation piles and during UXO/MEC detonations 
to measure in situ noise levels for comparison against the modeled 
results;
    <bullet> A requirement to implement soft-starts during impact pile 
driving using the least amount of hammer energy necessary for 
installation;
    <bullet> A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey 
equipment;
    <bullet> 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;
    <bullet> 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;
    <bullet> A requirement to implement various vessel strike avoidance 
measures;
    <bullet> 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
    <bullet> 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; 50 
CFR 216.106(g)).

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

    This project is covered under Title 41 of the Fixing America's 
Surface Transportation Act, or ``FAST-41.'' FAST-41'' includes a suite 
of provisions designed to expedite the environmental review for covered 
infrastructure projects, including enhanced interagency coordination as 
well as milestone tracking on the public-facing Permitting Dashboard. 
FAST-41 also places a 2-year limitations period on any judicial claim 
that challenges the validity of a Federal agency decision to issue or 
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)).
    Revolution 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/revolution-wind-farm-project.

Summary of Request

    On October 8, 2021, Revolution 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 16 marine mammal 
species (comprising 16 stocks) by Level B harassment (all 16 stocks) 
and by Level A harassment (10 species or stocks). Revolution 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 Revolution Wind and NMFS, Revolution Wind 
submitted a final version of the revised application on February 23, 
2022. NMFS deemed it adequate and complete on February 28, 2022. This 
final application is available on NMFS' website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy.
    On March 21, 2022, NMFS published a notice of receipt (NOR) of 
Revolution Wind's adequate and complete application in the Federal 
Register (87 FR 15942), requesting public comments and information on 
Revolution 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: Oceana and the Rhode 
Island Saltwater Anglers Association (RISSA).
    On December 23, 2022, NMFS published the proposed rule for the 
Revolution Wind Project in the Federal Register (87 FR 79072). In the 
proposed rule, NMFS synthesized all of the information provided by 
Revolution 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 https://www.regulations.gov 
starting on December 23, 2022 and closed after February 6, 2023. 
Specific details on the public comments received during this 45-day 
period are described in the Comments and Responses section.
    NMFS has previously issued four Incidental Harassment 
Authorizations (IHAs) to Orsted, Revolution Wind's

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parent company, for high resolution geophysical marine site 
characterization surveys of Revolution Wind's BOEM Lease Area OCS-A 
0486, two other BOEM lease areas (OCS-A 0487, OCS-A 0500), and along 
potential export cable routes (see 84 FR 52464, October 2, 2019; 85 FR 
63508, October 8, 2020; 87 FR 13975, March 11, 2022; and 87 FR 61575, 
October 12, 2022). To date, Orsted has complied with all IHA 
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/incidental-take-authorizations-other-energy-activities-renewable.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations (87 FR 46921, 
August 1, 2022) to further reduce the likelihood of mortalities and 
serious injuries to endangered right whales from vessel collisions, 
which are a leading cause of the species' decline and a primary factor 
in an ongoing Unusual Mortality Event (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 Revolution 
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

    Revolution Wind plans to construct and operate the Project, a 704 
megawatt (MW) offshore wind farm in the Project Area. The Project will 
allow the states of Rhode Island and Connecticut to meet their 
renewable energy goals. The Project, which includes the Revolution Wind 
Farm (RWF) and Revolution Wind Export Cable corridor (RWEC), will 
consist of several different types of permanent offshore 
infrastructure, including wind turbine generators (WTGs; e.g., Siemens 
Gamesa 11 megawatt (MW)) and associated foundations, offshore 
substations (OSS), offshore substation array cables, offshore export 
cables, and substation interconnector cables. Overall, Revolution Wind 
will conduct the following specified activities: install 79 WTGs and 2 
OSS on monopile foundations via impact pile driving; install and 
subsequently remove cofferdams to assist in the installation of the 
export cable route by vibratory pile driving, or installation of a 
casing pipe by pneumatic hammering and goal posts 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 13 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 at Quonset Point in North Kingstown, Rhode 
Island. 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 published notice of the 
proposed rule (87 FR 79072, December 23, 2022).

Dates and Duration

    Revolution Wind anticipates its specified activities will occur 
throughout all 5 years of the regulations, beginning on November 20, 
2023 and continuing through November 19, 2028. Revolution Wind 
anticipates the following construction schedule over the 5 year period 
(Table 1). Revolution 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 activity-specific durations can be found in 
the proposed rule and are not repeated here.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TR20OC23.000

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 79072, December 23, 2022). Since the proposed rule was published, no 
changes have been made to the Specified Geographic Region. Generally, 
Revolution Wind's specified activities (i.e., impact pile driving of 
WTGs and OSS monopile foundations; vibratory pile driving (installation 
and removal) of temporary cofferdams, or pneumatic hammering of casing 
pipes and vibratory pile driving of goal posts; placement of scour 
protection; trenching, laying, and burial activities associated with 
the installation of the RWEC and inter-array cables; HRG site 
characterization surveys; UXO/MEC detonation; and WTG operation) are 
concentrated in the Project Area. Vessel transit from ports in Maryland 
and Virginia could also occur; therefore, vessel use could occur in the 
Mid-Atlantic Bight.

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[GRAPHIC] [TIFF OMITTED] TR20OC23.001

BILLING CODE 3510-22-C

Comments and Responses

    A notice of proposed rulemaking was published in the Federal 
Register on December 23, 2022 (87 FR 79072) and a 15-day extension to 
the public comment period was published on January 19, 2023 (88 FR 
3375). The proposed rulemaking described, in detail, Revolution 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 Revolution 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.
    NMFS received 404 comment submissions, including from the Marine 
Mammal Commission (Commission), several private organizations, and 396 
from private citizens. Most of these comments were out-of-scope or not 
applicable to this specific action and location (e.g., specific 
opposition to offshore wind development offshore of New Jersey; general 
opposition to or support of offshore wind projects;

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concerns for other species outside NMFS' jurisdiction (i.e., birds)), 
and are not described herein or discussed further. Four comment letters 
were from environmental non-governmental organizations, including one 
from the Responsible Offshore Development Alliance (RODA), one from 
Oceana, Inc. (Oceana), and two from the Natural Resources Defense 
Council (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 
January 19, 2023 (88 FR 3375)). We also received one comment letter 
from a public organization, the Conservation Law Foundation (CLF). 
These six 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. In addition, we received comment 
letters from Salty Enterprises, the Washington Dungeness Crab 
Association, and a group of Rhode Island fishermen. The 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-authorizations-under-marine-mammal-protection-act. Please review the 
corresponding public comment link for full details regarding the 
comments and letters.
    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 Revolution 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 meters (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 Revolution Wind 
Underwater Acoustic and Exposure Modeling report (K[uuml]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 the time-domain finite difference 
pile-driving source model (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 1 microPascal (1[mu]Pa)) from the 7.8-m pile 
installed with a double big bubble curtain to be 3,891 m (12,765.75 
feet (ft)) when using a hammer operating at a maximum of 550 kilojoules 
(kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered 
piles using a 4,000 kJ hammer is 3,833 m (12,575 ft). The Commission 
states that, based on the CVOW reported sound levels, it is unrealistic 
that an impact hammer with seven times more energy intensity would 
result in a smaller harassment zone. 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 Revolution Wind 
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 tapered piles (8/10-m or 7/9.5-m) 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 for the 
South Fork project 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 Level B harassment threshold during installation of 
Revolution Wind monopiles will be approximately 3.8 km in summer, which 
is slightly greater than the loudest pile installed during the South 
Fork Wind results. We note that 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 Revolution Wind's measured sound 
levels do not exceed those modeled, assuming 10 dB, for at least three 
consecutively measured monopiles. Based on all these

[[Page 72568]]

reasons, NMFS is not requiring Revolution 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, comparisons between the modeled and measured 
results are not as directly applicable as the South Fork Wind results 
due to assumptions in the model and operations Therefore, the Vineyard 
Wind data are less useful in judging predicted alignment between 
modeled and measured zones for the Revolution Wind project.
    Based on this discussion and given our consideration of the best 
available scientific information, including available interim sound 
field verification (SFV) reports from other offshore wind construction 
projects in the United States, 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 one 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 
monopiles, 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 animats/km\2\, 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 1.
    Comment 3: The Commission recommended that NMFS authorize Level A 
harassment (permanent threshold shift (PTS)) takes for fin whales, 
humpback whales, minke whales, common dolphins, bottlenose dolphins, 
and Atlantic white-sided dolphins during UXO/MEC detonations and 
increase to group size, if needed, in the final rule.
    Response: NMFS concurs with the Commission's general recommendation 
and notes that the Commission did not provide specific Level A 
harassment (PTS) take numbers NMFS should authorize in the final rule. 
As described in the proposed rule, take by Level A harassment is 
considered less likely given the required shutdown zones and the 
instantaneous duration of the detonation, however, NMFS acknowledges 
the large mitigation and monitoring zone size (particularly for heavier 
charge weight UXOs/MECs) required for this activity, the cryptic nature 
of some marine mammal species (e.g., minke whales, dolphin spp.), and 
that the authorized take numbers do not fully account for the 
effectiveness of the required mitigation measures other than the 10 dB 
noise attenuation incorporated in acoustic and exposure modeling. 
Therefore, NMFS is conservatively authorizing the number of model-
estimated takes by Level A harassment (PTS) (increased to group size 
when the modeled exposures were less than a single group size) 
incidental to UXO/MEC detonations that were included in the exposure 
estimate table (Table 23) in the proposed rule: 2 fin whales (modeled 
exposures = 1.2), 2 humpback whales (modeled exposure = 0.9), 8 minke 
whales (modeled exposures = 7.7), 35 common dolphins (modeled exposure 
= 0.4), 8 bottlenose dolphins (Western North Atlantic offshore stock) 
(modeled exposure = 0.1), and 28 Atlantic white-sided dolphins (modeled 
exposure = 0.1). Consistent with this rationale, NMFS is also 
authorizing Level A harassment (PTS) of two sei whales (modeled 
exposure = 0.5) based on the result of exposure modeling rounded to 
group size.
    Comment 4: The Commission recommended that NMFS revise its take 
estimates for impact installation of monopiles based on the possibility 
that only a single monopile is installed per day over 79 days rather 
than three per day over 26 days.
    Response: The Commission asserted that JASCO should have conducted 
single-day simulations adjusted by the respective density and 
multiplied by the number of days of each activity (29 days of the 
highest mean density month). Further, as addressed in Comment 2, the 
Commission suggested that single-day simulations run 30 or 50 times per 
activity, species, and season are more consistent with other entities' 
methods for conducting exposure modeling and would reduce the variance 
and standard error in the predictions as compared to single seven-day 
simulations. Regarding density seeding, the Commission did not provide 
a justification for the claim that JASCO's assumptions used to seed its 
exposure modeling were inappropriate. Additionally, the Commission did 
not provide references for the other ``entities'' that have conducted 
exposure modeling using single-day simulations, so we are unable to 
make direct comparisons. We can, however, further explain and address 
the use of seven-day simulations. JASCO ran JASCO's Animal Simulation 
Model Including Noise Exposure (JASMINE) simulations for seven days, 
assuming piling every day. Separate simulations were run for each 
scenario (e.g., pile diameter/number of piles per day/season 
combination). The average number of exposures for a 24-hour window for 
the scenario in question was then multiplied by the number of days 
planned for that scenario. For example, if the scenario includes 
installation of three 7/15-m WTG monopiles per day in the summer, JASCO 
ran the simulation for 7 days, resetting exposures each day. If the 
daily counts were 20, 19, 21, 20, 19, 22, and 20 the average number of 
exposures per day would be 20.14. If Revolution Wind plans to install 
that particular configuration for 5 days, the exposure estimate would 
be 20.14 x 5 = 100.71.
    JASCO conducted 7-day simulations because there is some variation 
in the exposure estimates due to the statistical nature of the exposure 
model and the approach captures installation conditions in multiple 
possible pile locations across the wind farm area. Modeling every pile 
location in the area

[[Page 72569]]

is not practicable due to computational limitations. For sequential 
piling simulations, where more than one pile is installed per day, the 
sound fields may overlap but are temporally separated. Whether or not a 
particular animat is exposed to sound from installation of one or the 
other, both, or all piles is dependent on the spacing of the locations 
and the swimming behaviors of the animats. JASCO modeled all other 
scenarios (e.g., one pile per day, 7/12-m monopile, summer) completely 
separately and multiplied the resulting average number of exposures per 
day for a given scenario by the number of days Revolution Wind plans to 
conduct the scenario.
    The Commission cited an assumption in the take estimate methodology 
for installation of monopiles 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 estimation model and 
methodology to produce the maximum take that could occur incidental to 
the specified activity.
    While Revolution Wind acknowledged that it may not install three 
piles every day, it indicated it is capable of installing up to three 
piles per day with the goal is to complete installation as quickly as 
possible. Hence, to assume only one monopile per day everyday (as 
recommended by the Commission) would not be consistent with what 
Revolution Wind, a company with offshore wind farm installation 
experience, indicated is possible or is planned.
    The exposure estimates contained within the proposed rule are a 
product of modeling that assumes three piles are driven per day. This 
assumption is most influential when estimating the number of Level B 
harassment exposures but provides minimal influence over the number of 
Level A harassment exposures modeled. There are several conservative 
assumptions that offset the potential to underestimate take should 
Revolution Wind not be able to install three piles per day every day, 
including, but not limited to, all piles are installed during 29 days 
of the highest density month for each species from May-December. This 
is conservative because 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 in which marine mammal species' 
densities are lower. For example, for North Atlantic right whales, 
December is the highest density month (from May-December); this maximum 
density value was thus conservatively incorporated in take estimation 
even though NMFS added a requirement in the final rule that Revolution 
Wind must not plan to impact pile drive monopiles during December, 
unless NMFS gives approval due to unforeseen circumstances. Further, 
for some species, group size or PSO data adjustments were made that 
increased the amount of take authorized compared to the modeled 
exposure estimates. In addition, the modeled exposure estimates on 
which the amount of take authorized is based for some species (versus 
group size or PSO data adjustments) 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).
    NMFS has retained the exposure estimate methodology from the 
proposed rule despite the potential for less pile driving per day 
(equating to more days of pile driving) for the reasons provided above. 
In some cases, as described in this final rule, we have increased the 
amount of take authorized from that proposed for some species (e.g., 
increased Level A harassment for marine mammals with modeled Level A 
harassment exposures) (see Comments 3, 5, and 6). Furthermore, as 
described above, there are numerous other conservative assumptions in 
the model such that, when considered together, support NMFS assessment 
that the number of take authorized represents the number of take 
expected to occur incidental to the impact installation of monopiles.
    For these reasons, NMFS disagrees with the Commission's assessment 
that the number of take is underestimated for monopile installation and 
has not adjusted take based on the possibility that only a single 
monopile is installed per day.
    Comment 5: The Commission recommended that NMFS should authorize 
the model-estimated Level A harassment takes of fin whales, minke 
whales, sei whales, harbor porpoises, gray seals, and harbor seals 
during impact installation of monopiles.
    Response: NMFS agrees with the Commission that some Level A take of 
the species referenced may occur; however, NMFS disagrees that the full 
number of modeled Level A exposures should equate to the number of take 
authorized for all species. The exposure modeling resulted in the 
following estimated number of Level A harassment (PTS) exposures 
incidental to impact installation of monopiles: 7 humpback whales, 7 
fin whales, 3 sei whales, 61 minke whales, 321 harbor porpoises, 5 gray 
seals, and 32 harbor seals. Revolution Wind requested and NMFS proposed 
to authorize in the proposed rule 7 Level A harassment (PTS) takes of 
humpback whales because the size of the large whale shutdown zone 
(summer 2.3 km; winter 4.4 km) is smaller than the distance to the PTS 
Level A harassment isopleth (summer 2.66 km; winter 6.29 km) for this 
species. NMFS did not propose Level A harassment of other marine 
mammals because Revolution Wind did not request it and in consideration 
of mitigation measures, such as a prescribed shutdown zone that is 
larger than the 95 percent exposure range (ER<INF>95</INF><not-eq>) 
Level A harassment (PTS) zone for all species except, as noted, 
humpback whales. While NMFS carried this analysis forward in the 
proposed rule, in making the final decision to authorize Level A 
harassment of the additional species indicated above, NMFS considered 
the impracticality of implementing shutdown measures under certain pile 
installation circumstances (i.e., pile instability or pile refusal) for 
safety concerns, and the cryptic nature of minke whales, harbor 
porpoises, gray seals, and harbor seals (particularly in higher sea 
states or reduced visibility conditions). Although the combination of 
visual and acoustic monitoring is designed to reliably detect marine 
mammals such that effective mitigation can be implemented, NMFS 
acknowledges PTS may not be entirely avoidable.
    Density-based exposure modeling results indicate there is potential 
for 7 fin whale, 3 sei whale, 61 minke whale, 321 harbor porpoise, 32 
harbor seal, and 5 gray seal PTS exposures. These numbers represent the 
potential for PTS absent consideration of any mitigation or natural 
aversion that would prevent them from approaching at the closer 
distances associated with PTS and are based on the assumption that all 
piles would be driven in the highest density month (May through 
December) for any given species. Hence, based on modeling assumptions 
alone, these values can be considered a conservative.

[[Page 72570]]

As described above, in the proposed rule, based on Revolution Wind's 
request, we considered the potential for shutdown measures to alleviate 
potential for PTS except for humpback whales. In consideration of the 
Commission's comment, we re-evaluated the potential for marine mammals 
of the aforementioned species to remain undetected and remain close 
enough and for long enough duration to accumulate energy levels 
necessary to elicit PTS. NMFS has determined that where PTS density-
based exposure estimates are very low (i.e., three sei whales, five 
gray seals), exposures could occur. However, where exposure estimates 
are higher, it would be overly conservative to assume that all 
exposures would occur given the required mitigation and monitoring 
measures, natural avoidance responses, and that piles will be installed 
during lower density months. Therefore, NMFS is authorizing Level A 
harassment to sei and gray seals equal to the exposure estimates (three 
sei whale, five gray seal). However, for other species, in order to 
appropriately consider the likelihood of aversion in the closer 
vicinity of the source and the likely effectiveness of the mitigation 
measures, we estimate that 20 percent of the calculated exposure 
estimates could occur (rounded to the nearest whole number), which is 
equal to 2 fin whale exposures, 13 minke whale exposures, 65 harbor 
porpoise exposures, and 7 harbor seal exposures. This adjustment is 
consistent with the adjustment used in the Gulf of Mexico incidental 
take regulations (86 FR 5354, January 19, 2021), which was informed by 
the associated relative risk assessment framework developed by an 
expert working group to support the analyses and findings in those 
regulations. The risk assessment framework referenced Ellison et al. 
(2016), in which modeled scenarios using animal movement models were 
used to evaluate predicted PTS in which no aversion was assumed 
relative to scenarios where reasonable assumptions were made about 
aversion, in line with historical response probability assumptions and 
that existing scientific literature suggest are appropriate. Scenarios 
where no aversion probability was used overestimated the potential for 
high levels of exposure required for PTS by about five times. 
Accordingly, total modeled injurious exposures calculated without 
accounting for behavioral aversion were multiplied by 0.2 as part of 
the Expert Working Group (EWG) risk analysis for the Gulf of Mexico, 
and we have determined that this adjustment is similarly appropriate 
for this analysis.
    Comment 6: The Commission recommended that NMFS include in the 
final rule a small number of Level A harassment takes of harbor 
porpoises incidental to cable landfall construction, specifically 
installation and removal of casing pipes.
    Response: NMFS concurs with the Commission's general recommendation 
and notes the Commission did not recommend a number of takes by Level A 
harassment. NMFS has added a small number of Level A harassment takes 
of harbor porpoises during pneumatic hammering installation and removal 
of casing pipes should this landfall construction activity occur 
(rather than installation of a cofferdam). Since publication of the 
proposed rule, Revolution Wind determined that it will be impracticable 
to monitor a 4-km shutdown zone. Based on NOAA shipboard observations 
of harbor porpoises used in habitat-based density modeling conducted by 
Roberts et al. (2016, 2023), the detection probability for harbor 
porpoises drops off substantially in the 750-1,000 m range when sea 
states are a Beaufort Sea State of 2 or less. Therefore, Revolution 
concluded that 750 m is the maximum practicable extent within which 
they could effectively monitor for harbor porpoise during casing pipe 
installation and removal. NMFS has adjusted the shutdown zone in this 
final rule to 750 m. Given this new information, similar to our 
approach to responding to Comments 3 and 5, we reconsidered the 
available information on this species' habitat distribution, the 
distance to the Level A harassment threshold, and the potential for 
harbor porpoise, a small, fast moving species that can be difficult to 
see, to be exposed to sound energy levels necessary to induce PTS. As 
described in the proposed rule, modeling results estimate that a harbor 
porpoise would have to remain at approximately 4 km for 3 hours of 
hammering per day to experience PTS (or some lesser duration if the 
animal approaches closer). Harbor porpoises are one of the few marine 
mammals known to occur regularly in Narragansett Bay (e.g., Kenney and 
Vigness-Raposa, 2010) and are most frequently observed in winter and 
spring during which casing pipe installation and removal would occur 
(Q4 2023-Q1 2024). The potential temporal and spatial overlap of harbor 
porpoise occurrence with the PTS Level A harassment acoustic footprint 
resulting from pneumatic hammering, the size of the PTS Level A 
harassment zone (3,950 m), and the cryptic nature of harbor porpoises 
(particularly at a distance) support authorization of Level A 
harassment. Revolution Wind expects that it will require 8 days of 
pneumatic hammering to install the casing pipes. Because Revolution 
Wind has not specified exactly which 8 days in Q4 2023-Q1 2024 casing 
pipe installation would occur, it is possible that they would complete 
this activity in December or January, when harbor porpoise densities 
near the landfall construction site are an order of magnitude higher 
than in the other months in which the species consistently utilizes 
habitat in/near Narragansett Bay (March-May), and the potential for 
acoustic impacts from pneumatic hammering is highest. Given that there 
are no modeled results for takes by Level A harassment, NMFS 
conservatively assumes that one group (group size = 2.7 rounded to 3; 
Kraus et al., 2016) may be taken by Level A harassment per day of 
pneumatic hammering (n=8). Therefore, NMFS is authorizing 24 takes by 
Level A harassment zone of harbor porpoises incidental to casing pipe 
installation.
    Comment 7: The Commission is concerned the number of take of common 
dolphin proposed to be authorized (3,913 common dolphins across all 
activities) is an underestimate considering the size of the Level B 
harassment zones, the potential number of days of activities, and the 
known presence of delphinids in the area, and recommended that NMFS 
ensure that the number of Level B harassment takes of common dolphins 
is sufficient for impact driving of monopiles or other activities 
(landfall construction, HRG surveys, and UXO/MEC detonations) and 
increase the total number, as necessary, for the final rule. The 
Commission notes that other wind-energy operators have had to revise 
their HRG survey incidental harassment authorization mid-authorization 
and in some cases, twice when the authorized number of takes had been 
met (e.g., 86 FR 13695, March 10, 2021), thus, there is the potential 
for this to occur for Revolution Wind given the frequency of common 
dolphin occurrence in the Project Area. The Commission notes 4,644 
common dolphins were observed in the lease areas during combined HRG 
surveys (i.e., site assessment surveys) for Revolution Wind and two 
other wind projects from September 2019 to September 2020 (Smultea 
Environmental Sciences, LLC, 2020).
    Response: NMFS acknowledges the importance of accurate take 
estimates. NMFS notes that the IHA referenced by the Commission that 
required multiple revisions to increase the authorized take numbers for 
delphinids, including

[[Page 72571]]

common dolphins, was associated with HRG surveys occurring off the 
coast of Virginia and therefore, is not representative of occurrence 
patterns in the Project Area. Regarding the cited monitoring results 
from Smultea Environmental Sciences, LLC (Smultea) (2020) from Orsted 
Wind Power, LLC's HRG surveys (84 FR 52464, October 2, 2019), NMFS also 
notes that this survey covered 103,186 km while Revolution Wind only 
plans to survey 29 percent of that distance (30,345 km). However, the 
common dolphin sighting data in the Smultea (2020) monitoring report 
can inform estimates of take within the Project Area, given that the 
area surveyed included the Revolution Wind and surrounding leases.
    Importantly, the common dolphin take numbers Revolution Wind 
requested and NMFS proposed for authorization were based on the best 
scientific information available and a conservative methodology, 
including that the number of takes was the largest estimate among 
multiple take estimation methods (i.e., modeled density-based 
exposures, PSO data-derived estimates, and published group size value) 
and the data used to estimate take incidental to cofferdam installation 
were collected outside Narragansett Bay, where common dolphin occur 
more frequently.
    NMFS disagrees that authorization of additional take of common 
dolphins incidental for landfall construction activities and WTG 
foundation installation is warranted. While common dolphins are known 
to occur near the landfall construction location in Narragansett Bay, 
the frequency of occurrence is expected to be significantly less than 
that in open water; thus, the number of takes is conservative as it is 
based on oceanic PSO data. In addition, common dolphins are rarely 
sighted in Narragansett Bay in the winter months (Kenney and Vigness-
Raposa, 2010) when cable landfall construction will take place. The 
proposed common dolphin density-based Level B harassment take estimate 
for impact foundation installation incorporated the maximum monthly 
average density, which occurs in December. However, the final rule 
specifies that Revolution Wind must not plan to install foundations in 
December and may only do so with NMFS-explicit approval. Thus the take 
estimate for landfall construction activities is conservative.
    NMFS agrees with the Commission's recommendation to increase the 
number of Level B harassment take of common dolphins incidental to UXO/
MEC detonation given the prevalence of the species in southern New 
England; however, the Commission did not provide any suggested number 
of takes NMFS should authorize and, as described previously, based 
their recommendation partially on PSO sighting data that include 
observations of common dolphins over a much larger spatial scale than 
the Project Area. While there is no new information to consider, 
similar to our approach to responding to Comments 3, 5 and 6, we 
reconsidered the available information on this species' monthly 
densities, which NMFS considers the best available science for this 
purpose, and the currently unpredictable timing of UXO/MEC detonations. 
Given the timing of UXO/MEC detonations is unknown, it's equally 
possible that detonations could occur when common dolphin densities are 
highest or lowest in the Project Area, although take estimation did 
conservatively incorporate the maximum average monthly common dolphin 
density from May-December in the Lease Area (November) and export cable 
route (September). In addition, Revolution Wind assumed six and seven 
detonations would occur in the export cable corridor and Lease Area, 
respectively. However, it is possible that more than the estimated 
number of UXO/MECs could be located and detonated in either area. The 
maximum average monthly density used to estimate take in the export 
cable corridor (0.0389 individuals/km\2\) is approximately half of the 
Lease Area maximum average monthly density. (0.0762 individuals/km\2\). 
Thus, should more than seven detonations (if required) occur in the 
Lease Area, the estimated Level B harassment take incidental to UXO/MEC 
detonation could be underestimated. Based on these factors, NMFS 
assumed that one group (group size = 34.9, rounded to 35) could be 
taken by Level B harassment incidental to approximately half (n=7) of 
all UXO/MEC detonations, and is, therefore, authorizing a total of 632 
common dolphin Level B harassment takes due to UXO/MEC detonations; a 
change from the proposed rule of 211 as the corrected number of Level B 
harassment takes of common dolphin which Revolution Wind requested was 
387 and the addition of 245 takes by Level B harassment as a result of 
a comment from the Commission.
    Please note that Revolution Wind is required to implement the As 
Low as Reasonably Practicable (ALARP) process, which indicates that 
detonation would occur as a last resort after all other methods (e.g., 
lift-and-shift) are exhausted.
    NMFS agrees with the Commission's recommendation to increase take 
of common dolphins incidental to HRG surveys and is authorizing an 
additional number of common dolphin takes based on data in the PSO 
monitoring report cited in their comment, which NMFS considers to be 
the best available science for this purpose. The total number of common 
dolphins sighted by PSOs is highly variable, depending on the survey 
timing (which may align more or less with peaks in expected common 
dolphin occurrence), the number of kilometers surveyed, and survey 
conditions, among other factors. As described above, Revolution Wind 
anticipates that they may conduct HRG surveys at any time of year 
throughout construction and non-construction years. Given common 
dolphins are one of the most frequently sighted species during HRG 
surveys (as reported by PSOs in the monitoring reports cited here) and 
the number of dolphins sighted is highly variable and dependent on 
multiple influencing factors (e.g., time of year), NMFS is 
conservatively authorizing 4,457 common dolphin Level B harassment 
takes incidental to HRG surveys during the year of construction, which 
is equivalent to the number of common dolphins taken by Level B 
harassment during the HRG surveys the Commission refers to in their 
comment (Smultea Environmental Sciences, LLC, 2020). This is an 89 
percent increase from the 2,354 common dolphin Level B harassment takes 
proposed for authorization (87 FR 79072, December 23, 2022). 
Accordingly, NMFS is authorizing 1,094 takes per year (89 percent 
increase from 579 per year, as presented in the proposed rule) of 
common dolphins, by Level B harassment, incidental to HRG surveys for 
each of the 4 years following construction (4,376 total in the years 
following construction).
    Comment 8: The Commission recommended that NMFS determine if the 
2017 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 (see Borcuk et al., 2017). 
If so, the Commission suggested the take numbers be amended in the 
final rule for all of Revolution Wind's activities.
    Response: We appreciate the Commission's suggestion to review the 
2017 Department of the Navy's (2017) group size estimates to see if 
they are more applicable for the Project (see Borcuk et al., 2017). 
Based on our review, we disagree that the Navy's group size estimates 
are the most

[[Page 72572]]

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 in Kraus et al. (2016) (used 
for 10 species in our analysis) are derived from data gathered 
specifically in the Massachusetts and Rhode Island/Massachusetts Wind 
Energy Areas (MA and RI/MA WEAs), where Revolution Wind's Project will 
occur. The group sizes in the Navy (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. Furthermore, Atlantic Marine Assessment 
Program for Protected Species (AMAPPS) data (Palka et al., 2017; which 
was used as a group size reference for six species in our analyses) 
uses more recent information, as demonstrated in the 2010-2021 annual 
reports found on NMFS' web page, (https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected). The Navy (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://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations), 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 Revolution Wind, 
any adjustments using Kraus et al. (2016) or AMAPPS data, and any group 
sizes used in the proposed and final rules are based on the best 
available scientific information.
    Comment 9: The Commission disagrees with NMFS that the potential 
for non-auditory injury and mortality during UXO/MEC detonations are 
considered de minimis. They 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 went further 
to state 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 Revolution Wind (i.e., 100 grams (g), 5 kilograms (kg), 
10 kg compared to 454 kg). The Commission also adds 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 recommended that NMFS estimate and authorize 
Level B harassment behavior takes of marine mammals, in addition to 
takes from temporary threshold shift (TTS), for UXO/MEC detonations in 
the final rule. Finally, the Commission recommended that, because of 
the reasons already explained regarding attenuating UXO/MEC 
detonations, NMFS should require that Revolution Wind utilize a double 
big bubble curtain (DBBC) during all detonations and that NMFS not 
allow Revolution Wind to detonate UXOs/MECs when currents are moving 
faster than 2 knots (kn; 2.3 miles per hour (mph)).
    Response: NMFS appreciates the Commission's recognition that 
European waters offer a different environment than the Atlantic Ocean 
and that the conditions and size of explosives potentially encountered 
in the Revolution 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 (L<INF>pk</INF>). While NMFS agrees with the Commission's 
comment that big bubble curtains (BBCs) attenuate high-frequency (HF) 
sound (<1 kHz) more efficiently than low-frequency (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 high-frequencies, 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 based on the best scientific information 
available and thus is 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 ``deployment'' and ``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 shock wave produced by the detonation 
event, we acknowledge that this would require the bubble curtain to be 
placed in the area outside of the non-linear zone.
    NMFS is requiring Revolution Wind to meet the noise levels modeled 
assuming 10-dB attenuation, which

[[Page 72573]]

must be verified by SFV and, as recommended by the Commission, is 
requiring Revolution Wind deploy a double big bubble curtain (DBBC) 
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 (2.3 mph) or less but, as described above, is requiring Revolution 
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 
this final rule where appropriate.
    NMFS agrees with the Commission that 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. The current take estimation 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 TTS threshold, which is 5-dB 
higher than the explosive behavioral harassment threshold. The 
behavioral threshold for underwater detonations (i.e., 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 final rule, we have clarified that (1) Revolution Wind will 
be limited to detonating one UXO/MEC per day, and (2) that the TTS 
thresholds provided in Table 5 are used to estimate the potential for 
Level B (behavioral) harassment. In both the proposed and this final 
rule, NMFS applied the TTS thresholds 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 are 
necessary.
    Comment 10: Citing the dire situation of North Atlantic right 
whales, the 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 whales 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 27 and 28 show 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.

Mitigation

    Comment 11: Commenters recommended that NMFS require Revolution 
Wind to implement the best commercially available combined noise 
attenuation system (NAS) technology to achieve the greatest level of 
noise reduction and attenuation possible for pile driving. One 
commenter recommended that NMFS require, at a minimum, a 10-dB 
reduction in sound exposure level (SEL), but other commenters 
recommended that NMFS require a minimum of 15-dB or greater reductions, 
citing 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 Revolution 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 that underwater noise levels should be 
reduced to the greatest degree practicable to reduce impacts on marine 
mammals as required by the MMPA. As described in both the proposed and 
final rule, NMFS has included requirements for sound attenuation 
methods that successfully (evidenced by required sound field 
verification measurements) reduce real-world noise levels produced by 
impact pile driving of foundation installation to, at a minimum, the 
levels provided by JASCO modeled assuming 10 dB reduction, as analyzed 
in the proposed rule. Preliminary sound measurements from South Fork 
Wind, another 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 Revolution 
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

[[Page 72574]]

below those modeled assuming a 10-dB reduction.
    Regarding the recommendation that Revolution 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 12: To minimize the risk of vessel strikes for all whales, 
especially in recognition of the imperiled state of North Atlantic 
right whales, commenters recommended that NMFS require a mandatory 10-
kn (11.5 mph) speed restriction for all project vessels (including PSO 
survey vessels) at all times, except for reasons of safety, and in all 
places except in limited circumstances where the best available 
scientific information demonstrates that whales do not occur in the 
area. Another commenter made the same recommendation but suggested no 
exceptions. Alternatively, commenters suggest that project proponents 
could work with NMFS to develop an ``Adaptive Plan'' that modifies 
vessel speed restrictions if the monitoring methods informing the 
Adaptive Plan are proven as effective when for vessels traveling 10 kn 
(11.5 mph) or less and must follow a scientific study design. One 
commenter suggests 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. Commenters also recommend that NMFS (1) require all 
offshore personnel to be trained to identify North Atlantic right 
whales and other large whales, (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, (3) 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, and (4) that NMFS require vessels to 
maintain a separation distance from North Atlantic right whales at all 
times.
    Response: NMFS acknowledges that vessel strikes pose a risk to all 
large whales, including North Atlantic right whales. Based on the 
density information provided by Roberts et al. (2023), many large whale 
species are less frequently found within the Revolution Wind Project 
Area during the months when foundation installation, which requires the 
use of multiple vessels, would occur (i.e., May through November and 
possibly December, if approved by NMFS). Furthermore, while we 
acknowledge that North Atlantic right whales can be found year round in 
the Project Area, NMFS, as described in the proposed rule and included 
in this final rule, is requiring Revolution Wind to reduce speeds to 10 
kn (11.5 mph) or less in 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), when traveling between ports in New 
Jersey, New York, Maryland, or Virginia from November 1-April 30, and 
if a North Atlantic right whale is detected visually or acoustically at 
any distance or reported within 10 km. Vessels are also required to 
slow and maintain separation distances if other species of large whales 
are observed. Additionally, aside from any requirements of this rule, 
Revolution Wind is required to comply with all spatial and temporal 
speed restrictions outlined in existing regulations. Together, these 
speed requirements align with the commenters' recommendations.
    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 
Section 217.274(b) of the regulatory text. 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. At least 180 days prior to the start of 
vessel operations commencing, Revolution Wind must submit both a Vessel 
Strike Avoidance Plan, including plans for conducting PAM in the 
transit corridors should Revolution Wind determine they wish to travel 
over 10 kn (11.5 mph) in the transit corridors, to NMFS for review and 
approval.
    While NMFS acknowledges that vessel strikes can result in injury or 
mortality, we have analyzed the potential for vessel strike resulting 
from Revolution Wind's activity and have determined that based on the 
required mitigation measures specific to vessel strike avoidance 
included in the final rule, the potential for vessel strike is so low 
as to be discountable and thus, no vessel strikes are expected or 
authorized to occur. These measures also ensure the least practicable 
adverse impact on species or stocks and their habitat. Therefore, we 
are not requiring project-related vessels to travel 10 kn (11.5 mph) or 
less at all times.
    Comment 13: 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. A commenter recommends 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.
    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. 
Revolution Wind has indicated that to complete the project, pile 
driving in December will be avoided as much as possible but may be 
required. In this final rule, NMFS has included an additional measure 
wherein impact pile driving must be avoided to the maximum extent 
practicable in December; however, with prior approval by NMFS, it may 
occur if necessary to complete the project. In any time of year when 
foundation installation is occurring, a visual or acoustic detection of 
a North Atlantic right whale at any distance triggers a pile driving 
delay or shutdown. We also reiterate that Revolution Wind is required 
to implement a larger minimum visibility zone in December (4.4 km (2.7 
mi)) as compared to other project months (2.3 km), 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 Project 
Area.
    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 shifting due to climate

[[Page 72575]]

change and other factors, and they are now present year round in the 
vicinity of the project (e.g., Quintana-Rizzo et al., 2021), with 
observations of feeding behavior and some detections of mothers with 
calves. However, as shown in Roberts et al. (2023), which is considered 
the best available science 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 extensive feeding behaviors in the Project 
Area, in November, relative to the extent of foraging in habitat to the 
east (e.g., in and around Nantucket Shoals). For these reasons and 
given the inclusion of December in the pile driving temporal 
restrictions, except with NMFS prior approval, NMFS finds that further 
expansion of the pile driving restrictions (beyond December-April) is 
unwarranted.
    Inasmuch as commenters may be suggesting prohibiting 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. The measures prescribed in this final rule 
ensure the least practicable adverse impact on species or stocks and 
their habitat.
    Comment 14: Commenters recommended that NMFS increase the size of 
the clearance and shutdown zones for HRG surveys, require a delay in 
the start and resumption of HRG surveys and pile driving if a large 
whale is visually or acoustically detected in the clearance and 
shutdown zones, require soft start for pile driving and ramp up for HRG 
surveys, and require PAM during HRG surveys. In addition, a commenter 
acknowledges the purpose of an exemption from shutdown for safety 
reasons for pile driving but recommends that, if this exemption occurs, 
Revolution Wind must immediately notify NMFS and provide justification 
for using the exemption. Additionally, a commenter stated that a 
summary of the frequency of these exceptions must be made publicly 
available.
    Response: NMFS disagrees with the commenters' recommendation to 
increase HRG survey clearance and shutdown zone sizes, and the 
commenters' do not provide additional scientific information for NMFS 
to consider to support their recommendation. As described in the 
proposed rule and this final rule, 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 during this activity. For other Endangered Species Act 
(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-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) 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.
    NMFS notes that the recommended requirement that any detection of a 
North Atlantic right whale (visually, and acoustically for pile 
driving) in the associated clearance zone during the clearance period 
would trigger a delay to the onset of HRG surveys and pile driving was 
included in the proposed rule and is included in this final rule. 
Similarly, NMFS notes that 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 or acoustically detected at 
any distance within the PAM monitoring zone.
    Regarding the resumption of pile driving and HRG surveys following 
a shutdown, NMFS notes that the following requirements were included in 
the proposed rule and in this final rule: (1) PSOs must monitor 
clearance zones prior to impact pile driving or use of survey equipment 
starting, (2) impact pile driving and survey activities must 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 (for pile driving), and (3) soft-start to pile driving or 
ramp-up to HRG surveys are required.
    The commenters do not provide additional scientific information for 
NMFS to consider to support their recommendation to require PAM during 
HRG surveys. NMFS disagrees that this measure is warranted because it 
is not expected to be effective for use in detecting the species of 
concern given 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 dB re 1 
[mu]Pa 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 do not agree 
that use of PAM is warranted for HRG surveys. 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. 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 (particularly because of flow 
noise masking vocalizations). 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,

[[Page 72576]]

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 specific activity), and the cost and impracticability of 
implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to effect the least 
practicable adverse impact on the affected species or stocks and their 
habitat during HRG surveys.
    Regarding the recommendation that Revolution Wind should be 
required to notify NMFS in the event that mitigation actions are not 
undertaken based on specific exceptions (e.g., unable to shutdown pile 
driving for safety reasons), NMFS notes that both the proposed and 
final rules require weekly, monthly, and annual reports where 
Revolution 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 
available to the public given the amount of total reports that would be 
obtained over a 5-year period.
    NMFS has determined that the prescribed mitigation requirements are 
sufficient to effect the least practicable adverse impact on all 
affected species or stocks.
    Comment 15: Commenters recommended that NMFS require pile-driving 
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 minimize 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 shutdown and clearance 
zones (equally sized) for large whales (other than North Atlantic right 
whale) are based on the largest exposure range calculated for any 
mysticete, other than humpback whales, that represents the distance to 
the Level A harassment (isopleth for the low frequency hearing group, 
rounded up to the nearest hundred for PSO clarity. Required monitoring 
and mitigation for these zones will minimize Level A harassment and 
Level B harassment to the extent practicable and avoid most Level A 
harassment of large whales (note that for all but minke whales (n = 
21), other species of large whales have 9 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 16: Commenters recommended that NMFS require clearance and 
shutdown zones for North Atlantic right whales specifically, including 
(1) a minimum of 5,000 m (3.1 mi) 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 (1.2 mi) 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 concludes 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 17: For all large whale species, commenters recommended 
that NMFS require real-time PAM during 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 29 to clearly specify this 10-km PAM monitoring 
zone. Revolution 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, Revolution 
Wind may launch PAM drones from shore; hence, NMFS is not requiring 
that Revolution Wind deploy any monitoring systems from a vessel.
    Comment 18: 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'' 
by the commenter) cannot be visually monitored, as determined by the 
Lead PSO.

[[Page 72577]]

    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 in order to maximize 
monitoring capabilities during hours of optimal visibility/daylight. 
The commenters also recommended that 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.
    Commenters caveat this 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.
    Commenters suggested that if pile driving must continue after dark 
due to safety reasons, Revolution Wind should be required to notify 
NMFS with these reasons and an explanation for exemption. Additionally, 
a commenter states 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 acknowledges the limitations inherent in visual 
detection of marine mammals at night and that these could potentially 
result in some limited number of marine mammals being exposed to higher 
levels of sound for a longer duration before a shutdown was 
implemented. However, there are offsetting benefits to completing the 
pile driving in a shorter total amount of time, in that some number of 
marine mammals (those that might intersect the much larger Level B 
harassment zone) would be exposed to fewer overall days of pile driving 
noise, and potentially a smaller magnitude or severity of behavioral 
disturbance as a result given repeated exposures would be minimized. 
Further, Revolution Wind submitted a final draft Alternative Monitoring 
Plan (AMP) on August 4, 2023. NMFS will review the AMP to determine 
sufficiency in maximizing nighttime detection to support the required 
mitigation measures. Should NMFS approve the AMP, nighttime pile 
driving may occur given Revolution Wind adherence to the AMP.
    NMFS disagrees with the recommendation to require Revolution Wind 
to notify NMFS each time that pile(s) must be finished after dark due 
to safety and/or stability concerns and note that the rule already 
requires weekly reports during foundation installation, which must 
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 Revolution Wind must submit to NMFS; however, as 
described in Comment 39, we do plan to make the final reports 
available, which must summarize all of the information contained in the 
weekly and monthly reports. Accordingly, NMFS has determined requiring 
additional reporting beyond that described in the proposed rule is not 
warranted and that the existing reporting requirements support a suite 
of measures that will effect the least practicable adverse impact on 
marine mammals and their habitat.
    Comment 19: Commenters recommended that NMFS implement diel 
restrictions for HRG surveys within 1.5 hours of civil sunset and in 
low visibility conditions when the visual clearance zone and shutdown 
zone (referred to as the ``exclusion zone'' by the commenter) cannot be 
visually monitored by the Lead PSO.
    Response: NMFS acknowledges the limitations inherent in visual 
detection of marine mammals at night. As proposed, 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 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 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 20: Commenters recommended that NMFS prohibit HRG surveys 
during times of highest risk for North Atlantic right whales (foraging 
and migration and times when mother-calf pairs, pregnant females, 
surface active groups, or aggregations of three or more whales 
(indicative of feeding or social behavior), using the best available 
science to define high-risk timeframes. Commenters stated that the 
Project is sited in critically important year round North Atlantic 
right whale foraging and socializing habitat; thus, NMFS should require 
corresponding year-round protections and critical mitigation measures. 
Commenters recommended that NMFS develop a real-time mitigation and 
monitoring protocol to dynamically manage the timing of HRG surveys to 
ensure those activities are undertaken during times of lowest risk for 
all relevant large whale species.
    Response: NMFS neither anticipates nor authorizes take of North 
Atlantic right whales by Level A harassment (PTS) from this activity. 
While NMFS is authorizing a total 22 Level B harassment takes of North 
Atlantic right whales incidental to HRG surveys over the 5-year 
effective period of this rulemaking, the required mitigation will

[[Page 72578]]

affect the least practicable adverse impact on the species from this 
activity. 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 must be treated as if it 
were a North Atlantic right whale, triggering associated mitigation. 
Any Level B harassment that is not avoided is not expected to impact 
important feeding or other behaviors that may occur throughout the year 
in the Project Area in a manner that poses energetic or reproductive 
risks for any individuals. NMFS also notes that North Atlantic right 
whale presence, while not completely absent, decreases significantly 
during summer months as compared to winter when the majority of 
foundation installation would occur. Given the minimal anticipated 
impacts of the HRG survey, NMFS disagrees that additional mitigation 
measures, including dynamic management of HRG surveys timing, are 
warranted.
    Comment 21: Commenters 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 suggest that visual 
monitoring must continue for 30 minutes after pile driving has ceased.
    Response: The recommended requirements were included in the 
proposed rule and are carried forward in this final rule. Also, as 
proposed, this final rule includes a requirement that Revolution Wind 
review PAM data collected for at least 24 hours immediately prior to 
pile driving, for situational awareness. NMFS notes that if PAM 
continues throughout any pauses in pile driving, Revolution Wind is not 
required to begin the clearance process again (i.e., monitor for 60 
minutes, ensuring the clearance zone is free of marine mammals for 30 
minutes immediately prior to recommencing pile driving). However, pile 
driving would not be allowed to recommence until the clearance zones 
are confirmed to be visually and acoustically clear of marine mammals.
    Comment 22: Commenter recommends that UXOs/MECs must first be 
evaluated to see if they can be moved without detonation. If detonation 
must occur, the commenter states that the mitigation measures for pile 
driving should be the same with regards to 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 proposed, this final rule requires Revolution Wind to 
use the ALARP approach such that detonation would be the last resort to 
removing a UXO/MEC. That is, Revolution Wind is required to use 
detonation as a means of removing UXO/MECs only if all other options of 
removal have been exhausted. The following proposed mitigation measures 
are also required by this final rule: Revolution Wind will be required 
to implement visual monitoring using PSOs and PAM prior to detonation; 
these PSOs and PAM operators will be required to clear the appropriate 
zones prior to Revolution Wind detonating any UXO/MEC; SFV must be 
conducted on every UXO/MEC; and 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 retains 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 23: Commenter asserts 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 state that exceptions and 
exemptions will create enforcement uncertainty and incentives to evade 
regulations through reclassification and redesignation. They recommend 
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 agrees and notes, as described in the proposed rule 
and this final rule, that the regulations apply to Revolution Wind and 
those persons it authorizes or funds to conduct the specified 
activities on its behalf; a copy of the LOA must be in the possession 
of Revolution Wind, its designees, all vessel operators, PSOs/PAM 
operators; and Revolution 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 24: A commenter raised concerns about offshore wind 
activities leading to increases in vessel traffic and vessel noise, 
which may increase the risk of North Atlantic right whales being struck 
by a vessel and may disrupt normal North Atlantic right whale behavior. 
Another commenter recommends that NMFS restrict vessels of all sizes 
associated with the projects to travel at 10 kn (11.5 mph) or less at 
all times to avoid vessel strikes to North Atlantic right whales. Other 
commenters recommend that NMFS require management measures of all boats 
that reduces the risk of lethal vessel strikes to a level approaching 
zero. They suggest implementing a mandatory 10 kn (11.5 mph) speed 
restriction for all project-associated vessels at all times, except in 
limited circumstances where the best available scientific information 
demonstrates that whales do not use an area. In addition, a commenter 
claims that vessel speed restrictions are not `fully mandated' or 
enforced for offshore wind vessels.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Revolution Wind's activities and have determined that 
based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in the 
rulemaking, the potential for vessel strike is so low as to be 
discountable. All of the mitigation measures that were included in the 
proposed rulemaking are now required in the final regulations (see 
Sec.  217.274(b)). Based on our analysis, 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.
    Furthermore, we contend that the commenter who raised concerns 
about offshore wind activities leading to increases in vessel traffic 
and vessel noise is conflating two different points: there is a 
difference between vessel strike risks and impacts to marine mammals 
due to noise from construction. NMFS acknowledges the aggregate impacts 
of Revolution Wind's vessel operations on the acoustic habitat of 
marine mammals and has considered it in the analysis (see responses to 
Comments 14 and 42). Another commenter's reference to vessel speed 
restrictions being ``not fully mandated'' is unclear. NMFS refers again 
to the required vessel strike avoidance measures described above. The 
commenter does not provide a rationale for its suggestion that vessel 
speed restrictions are not enforced for offshore

[[Page 72579]]

wind vessels. We note that all vessels associated with Revolution 
Wind's activities must be equipped with a properly installed, 
operational Automatic Identification System (AIS) device and Revolution 
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to 
NMFS Office of Protected Resources, thus facilitating monitoring of 
vessel speeds. In addition, NMFS maintains an Enforcement Hotline for 
members of the public to report violations of vessel speed 
restrictions. Further, the LOA states that the authorization may be 
modified, suspended, or revoked if the holder fails to abide by the 
conditions prescribed therein.
    Comment 25: A commenter states 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: The MMPA requires that we include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, 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 this 
requirement to effect the least practicable adverse impact. The 
commenter does not make any specific recommendations of measures to add 
to the rulemaking. 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 
Revolution 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.
    Comment 26: 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 gear 
boxes.
    Response: The commenter's reference to a ``preferred alternative'' 
suggests this comment is specific to the Environmental Impact Statement 
(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 Revolution Wind's MMPA application, which includes 
installation of monopiles. 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. Revolution Wind has confirmed with NMFS that direct drive 
turbines will be used for the Revolution Wind project.

Monitoring, Reporting, and Adaptive Management

    Comment 27: 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: Regarding the recommendation that NMFS have a mechanism 
in place to undertake review and adaptive management on an ad hoc basis 
if a serious issue is identified, there are no timing restrictions in 
the adaptive management provisions and, therefore, NMFS may undertake 
review and adaptive management actions at any time under the 
regulations, as written. Regarding the recommendation to increase the 
frequency of information review, Revolution 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: Commenters recommended that NMFS require robust 
monitoring protocols during pre-clearance and when HRG surveys 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 two on-duty PSOs each scanning 
180 degrees and with another two PSOs stationed on the vessel (for a 
total of four PSOs on the survey vessel), 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 14, 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 before HRG surveys begin; 
hence, this recommendation has already been satisfied.
    Comment 29: Commenters recommended that NMFS require infrared 
technology to support visual monitoring for all vessels responsible for 
crew transport and during any pile driving 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 the commenter's recommendations were included 
in the proposed rule and are 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. Moreover, since 
publication of the proposed rule, Revolution Wind has

[[Page 72580]]

submitted an Alternative Monitoring Plan that includes details about 
advanced technologies for monitoring marine mammals at night for both 
trained crew observers and PSOs. As for the recommendation to 
specifically require drones, NMFS would evaluate any proposal including 
drones on a case-by-case basis but is not requiring use of this 
technology. The commenter did not provide data indicating drones would 
be more effective than other monitoring technology already required.
    Comment 30: 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 another commenter 
suggesting that human observation be supplemented with infrared (IR) 
technology and drones.
    Response: NMFS notes the proposed rule aligned with the 
recommendation, requiring a total of four PSOs on each monitoring 
vessel, two on-duty and two off-duty, working in rotation. On-duty PSOs 
on the pile driving vessel and the secondary PSO vessel, circling at a 
distance from the pile, would each monitor 180 degrees. To ensure 
marine mammal detection is maximized, and in response to public 
comments, NMFS is now requiring monitoring for marine mammals before, 
during, and after foundation installation and is requiring in this 
final rule three on-duty PSOs on both platforms such that each PSO is 
responsible for 120 degree coverage. In addition, as proposed, this 
final rule requires that visual observers must be equipped with 
alternative monitoring technology (e.g., night vision devices, infrared 
cameras) to monitor clearance and shutdown zones during periods of low 
visibility (e.g., darkness, rain, fog, etc.).
    Comment 31: Commenters recommended that NMFS should require sound 
field verification 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. Finally, the Commission 
recommended that NMFS require wind farm applicants to include 
monitoring of operational sound in their SFV plans in all future 
proposed rules.
    Response: NMFS notes that, as proposed, this final rule requires 
that no unmitigated piles can be installed and that SFV is required for 
the first three piles and additional piles where conditions suggest 
noise levels may be higher or propagate farther than those piles 
previously measured. Furthermore, under this final rule, Revolution 
Wind must ensure that measured sound levels do not exceed those modeled 
assuming 10 dB of attenuation, which will be validated through SFV. 
Revolution Wind has the Lease Area data to identify if a pile would be 
more difficult to drive than the initial piles measured, and the 
requirement that they would have to conduct SFV on such piles where 
information suggests a pile may be more difficult to drive. Given these 
requirements, NMFS does not believe random sampling is necessary.
    NMFS acknowledges the importance of transparency in the reporting 
process (see Comment 39) and plans to make all final SFV reports on our 
website. Regarding the Commission's suggestion that NMFS require SFV 
during operations, NMFS notes this requirement was included in the 
proposed rule and in this final rule
    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 2.3 to 4.4 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 Revolution Wind would be conducting 
the majority of pile driving is when North Atlantic right whale density 
in the Project Area is relatively low, given that pile driving is 
seasonally restricted from December 1-April 30, unless Revolution Wind 
receives NMFS' prior approval to conduct activities in December. 
Although modeling predicts 17.5 Level A harassment North Atlantic right 
whale exposures (Table 12 in final rule), this estimate does not 
consider any mitigation measures, other than 10 dB of sound 
attenuation, or natural avoidance of the animal to loud sounds. 
Revolution Wind must delay or shutdown impact pile driving if a North 
Atlantic right whale is visually detected at any distance or 
acoustically detected at any distance within the PAM monitoring zone, a 
measure that is more conservative than the finite clearance and 
shutdown zones determined for other large whale species. 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 
claim that visual monitoring would prove difficult. We note that these 
``trained lookouts'' are Navy personnel who are specifically trained as 
lookouts in contrast to NMFS-approved PSOs who are required to have 
specific education backgrounds, trainings, and experience before 
undertaking PSO duties (see requirements found in the regulatory text 
at Section 217.275(a)). NMFS disagrees that the statistics generated 
from that report are equivalent to the effectiveness of monitoring for 
the Revolution Wind project. 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 (11.5 mph)) for a total of nine PSOs. Concurrently, real-time PAM 
is required to supplement visual monitoring during impact pile driving 
and UXO/MEC detonation. Further, Revolution Wind must monitor several 
times daily supplemental marine mammal detection information systems 
(e.g., the Right Whale Sighting Advisory System) to increase 
situational awareness. 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 Revolution 
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 recommendation and have 
incorporated it into the final rule.

[[Page 72581]]

    Comment 34: A commenter stated that Revolution Wind should be 
required to use PSOs at all times when underway.
    Response: NMFS is not requiring PSOs to be onboard every transiting 
vessel. However, as described in the proposed rule and carried forward 
in this final rule, Revolution Wind must have trained observers onboard 
all vessels. The dedicated observer may be a PSO or a crew member with 
no other concurrent duties. NMFS is also requiring Revolution Wind to 
provide a Vessel Strike Avoidance Plan to NMFS 180 days prior to the 
onset of vessel use. Revolution Wind submitted that plan on July 13, 
2023, and a revised version on August 25, 2023. Once approved, all 
plans will be made available on NMFS' website.
    Comment 35: A commenter recommended that the LOA should require all 
vessels supporting site characterization to be equipped with and to use 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. The commenter suggested this requirement should 
apply to all vessels, regardless of size, associated with the survey.
    Response: NMFS agrees and has included an AIS requirement in more 
recently issued IHAs and wind construction proposed rules. This final 
rule includes a requirement that all vessels associated with the 
project be equipped with AIS.
    Comment 36: The Commission recommended that NMFS require Revolution 
Wind to submit a PAM plan and to allow for public comments to occur 
prior to the issuance of the final rule. The Commission specifies 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 recommend that Revolution 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 that the Commission's recommendation for 
Revolution Wind to submit a PAM Plan to NMFS for approval is consistent 
with the proposed rule and this final rule. As proposed, under this 
final rule a PAM plan must be submitted to NMFS at least 180 days prior 
to the start of the activity. Further, NMFS identified the requirements 
that Revolution Wind must meet in its PAM plan in the proposed rule, 
which was made available for public comment, and those requirements are 
included in 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 37: The Commission recommended that in the final rule NMFS: 
(1) specify which model-estimated zones (i.e., acoustic ranges, 
exposure ranges, mitigation zones, monitoring zones) and which metrics 
(i.e., flat R<INF>max</INF>, flat R<INF>95</INF><not-eq>) should be 
compared to the in-situ 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 agree with the Commission about the importance of 
specifying quantities to be compared following SFV and have required in 
the final rule that calculations of the R<INF>95</INF><not-eq> SEL and 
R<INF>95</INF><not-eq> SPL<INF>rms</INF> acoustic ranges for Level A 
harassment and Level B harassment, respectively, based on in situ 
measurements must be compared to the same modeled metrics.
    Regarding the Commission's third suggestion, NMFS notes that, under 
the proposed rule, if a monopile installation site or construction 
scenario was determined to be not representative of the rest of the 
monopile installation sites, Revolution 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 agree with 
the Commission that this information is important and include the same 
requirement in the final rule. However, we do not agree with 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 the maximum number of piles installed per day, maximum 
strikes predicted, and maximum hammer energies. Because of this, 
Revolution 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 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 38: The Commission recommended that NMFS require Revolution 
Wind to include in the pile driving SFV report additional metrics not 
identified in the proposed rule, including SPL<INF>rms</INF> source 
levels, cumulative SEL, ranges to Level A harassment and Level B 
harassment thresholds, and types and locations of sound attenuation 
systems. In addition, the Commission recommended that NMFS require 
Revolution Wind to deploy a minimum of three hydrophones for SFV during 
impact pile driving
    Response: NMFS partially concurs with the Commission's 
recommendations. This final rule requires the interim report to include 
peak, sound pressure level (SPL), and cumulative sound exposure level 
(SEL<INF>cum</INF>) metrics for all hydrophones, estimated distances to 
NMFS Level A harassment and Level B harassment threshold isopleths, 
types and locations of sound attenuation systems. 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 modeled distances 
to isopleths corresponding 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, 
cumulative SEL, and SPL<INF>rms</INF>) be included in the final SFV 
report. Regarding the hydrophones for SFV during pile driving, NMFS is 
requiring that Revolution Wind place two hydrophones at four locations 
at an azimuth of least propagation loss and

[[Page 72582]]

two at 750 m and 90 degrees from this azimuth (total = 10 hydrophones).
    Comment 39: Commenters stated that the LOA must include a 
requirement for all phases of the Revolution Wind 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 stated that to foster stakeholder relationships and allow 
public engagement and oversight of the permitting, the ITA should 
require all reports and data to be accessible on a publicly available 
website. Another commenter also suggested that all quarterly reports of 
PSO sightings must be made publicly 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 section 217.275(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 
Section 217.275(g) for more information on reporting requirements in 
the regulations.

Effects Assessment

    Comment 40: Commenters stated that NMFS must utilize the best 
available science in their 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. 
Another commenter further added that NMFS should use the most 
comprehensive models for estimating marine mammal take and developing 
robust mitigation measures.
    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 Marine Mammal Stock Assessments Report 
(SAR; Hayes et al., 2023) to be the best available information for a 
particular marine mammal stock because of the MMPA's rigorous SAR 
procedural requirements, which includes peer review by a statutorily 
established Scientific Review Group.
    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 (Nbest; 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 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-assessment-reports) 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 age-specific 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 Revolution Wind's construction activities.
    While NMFS cannot require applicants to utilize specific models for 
the purposes of estimating take incidental to offshore wind 
construction activities, we evaluate the models used to support take 
estimates to ensure that they are methodologically sound and 
incorporate the best available science. NMFS does require use of the 
Roberts et al. (2016, 2023) density data and SARs abundance estimates 
for all species, both of which represent the best available science 
regarding marine mammal occurrence.
    Comment 41: Several commenters raised concerns regarding the 
cumulative impacts of the multiple offshore wind projects being 
developed throughout the range of North Atlantic right whales and other 
marine mammal species and specifically recommend that we carefully 
consider the take from all of these projects in combination when 
conducting the negligible impact analysis for Revolution Wind. One 
commenter recommended NMFS establish an ``IHA threshold'' for offshore 
wind activities regionally and across project phases. Another commenter 
suggests NMFS' issuance of ITAs for offshore wind construction projects 
should be based on a Programmatic Environmental Impact Statement that 
assesses cumulative impacts analyses of individual projects as well as 
the cumulative impacts from the consequent multiple project 
developments rather than separate EISs for each project. Another 
commenter suggested that NMFS should analyze the cumulative impacts of 
the multiple concurrent phases of offshore wind energy development on 
right whales and other marine mammal species in southern New England 
waters prior to proceeding with permitting the Revolution Wind Project.
    Response: Neither the MMPA nor NMFS' implementing regulations call 
for consideration of the take resulting from other specified activities 
in the negligible impact analysis. The preamble to NMFS' implementing 
regulations (54 FR 40338, September 29,

[[Page 72583]]

1989) states, in response to comments, that the impacts from other past 
and ongoing anthropogenic activities are to be incorporated into the 
negligible impact analysis via their impacts on the baseline. 
Consistent with that direction, NMFS has factored into its negligible 
impact analysis the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline (e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors). The 1989 final rule for the 
MMPA implementing regulations also addressed public comments regarding 
cumulative effects from future, unrelated activities. There, NMFS 
stated that such effects are not considered in making findings under 
section 101(a)(5) concerning negligible impact. In this case, this 
incidental take regulation (ITR), as well as other ITRs currently in 
effect or proposed within the specified geographic region, are 
appropriately considered an unrelated activity relative to the others. 
The ITRs are unrelated in the sense that they are discrete actions 
under section 101(a)(5)(A) issued to discrete applicants. Section 
101(a)(5)(A) of the MMPA requires NMFS to make a determination that the 
take incidental to a ``specified activity'' will have a negligible 
impact on the affected species or stocks of marine mammals.
    NMFS' implementing regulations require applicants to include in 
their request a detailed description of the specified activity or class 
of activities that can be expected to result in incidental taking of 
marine mammals. 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, 
Revolution Wind was the applicant for the ITR, and we are responding to 
the specified activity as described in that application and making the 
necessary findings on that basis.
    Through the response to public comments in the 1989 implementing 
regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) 
that we would consider cumulative effects that are reasonably 
foreseeable when preparing a National Environmental Policy Act (NEPA) 
analysis and (2) that reasonably foreseeable cumulative effects would 
also be considered under Section 7 of the ESA for listed species, as 
appropriate. Accordingly, NMFS has adopted an EIS written by BOEM and 
reviewed by NMFS as part of its inter-agency coordination. This EIS 
addresses cumulative impacts related to Revolution Wind 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 Revolution 
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 Revolution 
Wind on ESA-listed species, including North Atlantic right whales, was 
analyzed under Section 7 of the ESA when NMFS engaged in formal inter-
agency consultation with GARFO. The Biological Opinion for Revolution 
Wind 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.
    Comment 42: Commenters stated that (1) NMFS' reliance on the 160 dB 
(re 1 [mu]Pa\2\s) threshold for behavioral harassment is not supported 
by the best available scientific information and grossly underestimates 
takes by Level B harassment and (2) an assertion the monitoring 
protocols prescribed for the clearance zones are under-protective.
    Response: For the reasons described below, NMFS disagrees that the 
160-dB threshold for behavioral harassment is not supported by the best 
available science. The potential for behavioral response to an 
anthropogenic source can be highly variable and context-specific 
(Ellison et al., 2012). While NMFS acknowledges the potential for Level 
B harassment at exposures to received levels below 160 dB rms, it 
should also be acknowledged 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 and 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 
[mu]Pa (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 loud 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 received sound pressure level for 
estimating the onset of Level B behavioral harassment takes and is 
currently considered the best available science while acknowledging 
that the 160 dB<INF>rms</INF> 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

[[Page 72584]]

in responses across different received levels in our discussion and 
analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt behavioral patterns is difficult because responses depend on 
the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007; Ellison et al., 2012; 
Southall et al., 2021). For example, Gomez et al. (2016) reported that 
RL was not an appropriate indicator of behavioral response.
    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 the best 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, as suggested by Tyack and Thomas 
(2019), is complex. The recent systematic review by Gomez et al. (2016) 
was unable to derive criteria expressing these types of exposure-
response relationships based on currently available data.
    NMFS 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 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.
    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 13, 14, 
22, 30.
    Comment 43: Commenters 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 find that the total taking from the 
specified activities will have a negligible impact on species and 
stocks among other requirements, and subsequently prescribe 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 specified activities will have a negligible 
impact on species and stock and the mitigation measures will affect 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 large 
whale species that occur off of Massachusetts during winter months. For 
example, fin whales are the second-most commonly occurring baleen whale 
species, based on density (Roberts et al., 2023), in the Project Area 
from December through February and the fin whale feeding Biological 
Important Area (BIA) (March through October) overlaps the seasonal 
restriction period (March and April). Harbor porpoises, as another 
example, are also more 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 and a small feeding BIA for fin whales.
    Comment 44: A commenter claimed that the analyses supporting the 
proposed rule did not comprehensively consider potential indirect 
negative impacts to fishermen and coastal communities that could result 
from cumulative offshore wind activities, particularly as those 
activities impact North Atlantic right whales (i.e., vessel strike). In 
addition, a commenter requested an explanation of how the offshore wind 
industry will be held accountable for their impacts and asserts that 
the offshore wind industry must be accountable for incidental takes 
from construction and operations separately from the take 
authorizations for managed commercial fish stocks.
    Commenters expressed concern about the potential impacts of 
offshore wind development on marine species, particularly the North 
Atlantic right whale, and the potential that any disturbance, added 
distress, and mortality of North Atlantic right whales will be 
attributed to the commercial, charter, and recreational fishers who 
frequently access these same areas in which offshore wind development 
is occurring. They requested a moratorium on new incidental harassment 
authorizations until more is known about the potential impacts of 
offshore wind development on marine species.
    Response: NMFS has determined that no serious injury or mortality 
is anticipated to result from Revolution Wind's specified activities, 
and as discussed in the Negligible Impact Analysis and Determination 
section in this final rule, NMFS has determined that Revolution Wind's 
specified activities will have a negligible impact on marine mammal 
species or stocks. Furthermore, NMFS has determined that the mitigation 
measures will effect the least practicable adverse impact on marine 
mammals and their habitat. Neither the MMPA nor our implementing 
regulations require NMFS to analyze impacts to other industries (e.g., 
fisheries) or coastal communities from issuance of an ITA pursuant to 
section 101(a)(5)(A). We note that the Revolution Wind Final EIS 
assesses the impacts of both BOEM and NMFS' actions (permitting 
Revolution Wind's activities and authorizing the associated take of 
marine mammals, respectively) on the human environment, including to 
fishermen and coastal communities, and NMFS considered the analysis, as 
appropriate, in the final decisions under the MMPA.
    Regarding accountability, Revolution Wind would be required to 
submit frequent monitoring reports, which would include accounts of any 
takes by Level A harassment or Level B harassment. NMFS must withdraw 
or suspend any LOA, if 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

[[Page 72585]]

(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). NMFS notes the anticipated impacts from Revolution Wind's 
activities (e.g., behavioral harassment, acoustic disturbance, 
temporary hearing loss) are different from those anticipated from 
fishing activities (e.g., entanglement).

Other

    Comment 45: 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. Both commenters also state that due 
to the precarious nature of the North Atlantic right whale, this annual 
approach is necessary to implement flexible protections.
    Response: While NMFS acknowledges the commenters' rationale, we do 
not think it is necessary to issue annual LOAs as: (1) the final rule 
includes requirements for annual reports (in addition to weekly and 
monthly requirements) to support annual evaluation of the activities 
and monitoring results, and (2) the final rule includes an Adaptive 
Management provision (see Sec.  217.277(c)) that allows NMFS to make 
modifications to the mitigation, monitoring, and reporting measures 
found in the LOA if new information supports the modifications and 
doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the measures.
    Comment 46: The Commission recommended that NMFS specify in section 
217.275(d)(9)(ii) of the final rule that the final SFV report must 
include source levels at 10 m during wind turbine operations, received 
levels at 50 m, 100 m, and 250 m from the wind turbine, operational 
parameters (i.e., direct drive/gearbox information, turbine rotation 
rate), sea state conditions, and any nearby anthropogenic activities. 
In addition, the Commission recommends that NMFS rectify in the final 
rule the following proposed rule omissions and errors: (1) Proposed 
section 217.272(a) should also specify impact pile driving and removal 
of casing pipes and vibratory pile installation or removal of goal 
posts, (2) Proposed section 217.272(b) omitted impact removal of casing 
pipes, (3) Proposed section 217.274(d)(3)(vii) contradicts proposed 
section 217.274(f)(5)(1), which specifies that SFV must be conducted 
for each UXO/MEC detonation, (4) Proposed section 217.274(f)(2) 
specified that seasonal restrictions for UXO/MEC detonations would be 
in place from 1 December through 31 April; however, April has only 30 
days, (5) Bellmann (2021) was cited incorrectly as Bellmann and Betke 
(2021) in the preamble to the final rule. (6) The terms `small 
odontocetes', `delphinids and harbor porpoises', and `dolphins and 
porpoises' were used interchangeably throughout the various mitigation 
measures in proposed section 217.274, and the terms `seals' and 
`pinnipeds' were used interchangeably or omitted altogether from the 
various mitigation measures in proposed section 217.274.
    Response: We appreciate the specific suggestions provided by the 
Commission here. We have rectified all of the concerns described in the 
Commission's list, except for those found in (6) above. Please note 
that the Section references for each of the items noted by the 
Commission have changed from those in the proposed rule due to 
reorganization. We have not made adjustments with respect to the 
suggestions regarding the intermixed use of ``seals'' versus 
``pinnipeds,'' and ``small odontocetes'' (which we now refer to as 
``odontocetes''), ``delphinids and harbor porpoises'', and ``dolphins 
and porpoises,'' as those terms 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 47: A commenter claimed that NMFS, and BOEM should have 
conducted more public outreach for the Revolution Wind project and 
sought public comments from parties outside of the states in which the 
project's land-based operations will occur, given that marine mammals 
have migratory patterns that range the entire East Coast.
    Response: NMFS disagrees that public outreach regarding the 
Revolution Wind project was limited to individuals in particular 
states. Both NMFS and BOEM provided all members of the general public 
from any location opportunities to comment on and provide information 
pertaining to Revolution Wind's potential impacts on marine mammals and 
the environment. BOEM published a Notice of Intent to prepare an EIS on 
April 30, 2021 (86 FR 22972) in the Federal Register, followed by a 30-
day public comment period and three virtual scoping meetings (May 13, 
18, and 20, 2021) to facilitate public engagement in development of an 
assessment of potential impacts from Revolution Wind's planned 
activities. Additionally, BOEM's draft EIS (Revolution Wind Draft 
Environmental Impact Statement (DEIS) for Commercial Wind Lease OCS-A 
0486) was made available for public comment on September 2, 2022 (87 FR 
54248), which included a 45-day comment period. Finally, BOEM held 
three in-person public hearings on October 4, 2022, in Aquinnah, MA, 
October 5, 2022, in East Greenwich, CT, and October 6, 2022, in New 
Bedford, MA, and two virtual public hearings (again, open to all 
members of the public from any location) on September 29 and October 
11, 2022. On March 21, 2022, NMFS published a Notice of Receipt (NOR) 
of Revolution Wind's adequate and complete MMPA ITA application in the 
Federal Register (87 FR 15942), which included a 30-day public comment 
period and access to the full application, which was posted on NMFS' 
publicly available website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy). NMFS considered all of this information when 
developing the proposed rule, which was published in the Federal 
Register on December 23, 2022 (87 FR 79072). A 45-day public comment 
period followed publication of the proposed rule, during which NMFS 
received 404 comment submissions. NMFS carefully considered each of the 
received comments when developing this final rule. Comments submitted 
on the NOI, DEIS, NOR, and proposed rule were submitted by individuals 
from a variety of states, rather than the select few in Revolution 
Wind's Project Area. Thus, all members of the public had notice and 
opportunity to comment on multiple occasions and had access to relevant 
documents via NMFS' and BOEM's websites.
    Comment 48: A commenter claimed that recent whale strandings are 
the result of offshore wind pre-construction activities. Another 
commenter suggested that NMFS should consider whether or not 
authorizing Level A harassment or Level B harassment should be 
permissible given the recent elevated public concern about potential 
impacts on marine mammals from offshore wind activities.
    Response: NMFS emphasizes that there is no evidence that noise 
resulting from offshore wind development-related marine site 
characterization surveys, cause marine mammal strandings, and there is 
no evidence linking recent large whale mortalities and currently 
ongoing surveys. The commenters offer no such

[[Page 72586]]

evidence or other scientific information to substantiate their claim. 
The best scientific information available indicates that only Level B 
harassment, or disruption of behavioral patterns (e.g., avoidance), may 
occur as a result of Revolution Wind's HRG surveys. NMFS will continue 
to gather data to help us determine the cause of these strandings. NMFS 
notes the Commission's statement: ``There continues to be no evidence 
to link these large whale strandings to offshore wind energy 
development, including no evidence to link them to sound emitted during 
wind development-related site characterization surveys, known as HRG 
surveys. Although HRG surveys have been occurring off New England and 
the mid-Atlantic coast, HRG devices have never been implicated or 
causatively-associated with baleen whale strandings'' (Marine Mammal 
Commission Newsletter, Spring 2023). There is an ongoing UME for 
humpback whales along the Atlantic coast from Maine to Florida, which 
includes animals stranded since 2016, and we provide further 
information on the humpback UME in the humpback whale subsection in the 
Description of Marine Mammals in the Specific Geographic Region section 
of this final rule.

Changes From the Proposed to Final Rule

    Since the publication of the proposed rule in the Federal Register 
(87 FR 79072, December 23, 2022), NMFS has made changes, where 
appropriate, that are reflected in the preamble text of this final rule 
and the final regulatory text. These changes are briefly identified 
below, with more information included in the indicated sections of the 
preamble to this final rule.

Changes to Information Provided in the Preamble

    The information found in the preamble of the proposed rule was 
based on the best available information at the time of publication. 
Since publication of the proposed rule, new information has become 
available, which has been incorporated into this final rule as 
discussed below.
    The following changes are reflected in the Description of Marine 
Mammals in the Specific Geographic Region section of the preamble to 
this final rule:
    Given the release of NMFS' 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 North Atlantic right whales, humpback whales, 
minke whales, and phocid seals (pinnipeds).
    The following changes are reflected in the Estimated Take section 
the preamble to this final rule:
    Seal take estimates were previously calculated by scaling the take 
estimates derived from a single ``seal'' guild density using 
proportions calculated from the range-wide abundance values in the NMFS 
stock assessment reports. To more accurately estimate take for each 
species for all activities in the final rule, Revolution Wind scaled 
the single seal guild exposure estimate using proportions calculated 
from the relative occurrence of each species reported in PSO monitoring 
reports for HRG surveys conducted in the Project Area from 2018-2021 
(AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; Stevens and 
Mills, 2021) and more recent data collected in 2023 during construction 
of the South Fork Wind Farm (South Fork Wind 2023, unpublished data).
    Based on a recommendation by the Commission, we have increased the 
number of takes by Level A harassment of harbor porpoises incidental to 
cable landfall construction, specifically pneumatic hammering, from 0 
to 24, should Revolution Wind choose to install casing pipes.
    Based on a recommendation by the Commission, we have increased the 
number of common dolphin takes by Level B harassment for UXO/MEC 
detonations (from 211 to 632); HRG surveys during construction (from 
2,354 to 4,457); and HRG surveys during operations (from 2,312 to 
4,376).
    Based on our consideration of the Commission's recommendation, we 
are authorizing the number of model-estimated Level A harassment (PTS) 
take (increased to group size where applicable) incidental to UXO/MEC 
detonations: fin whales (n=2), sei whales (n=2), humpback whales (n=2), 
minke whales (n=8), common dolphins (n=35), bottlenose dolphins 
(Western North Atlantic offshore stock) (n=8), and Atlantic white-sided 
dolphins (n=28). The proposed rule did not authorize Level A harassment 
(PTS) of these species incidental to UXO/MEC detonations.
    Based on consideration of comments from the Commission, we are now 
also authorizing the amount of model-estimated Level A harassment (PTS) 
take of sei whales (n=3) and 5 gray seals (n=5), as well 20 percent of 
the model-estimated Level A harassment (PTS) for the other species, 
including fin whales (2), minke whales (13), harbor porpoises (65), and 
harbor seals (7) during impact installation of monopiles. The proposed 
rule did not authorize Level A harassment (PTS) of these species 
incidental to impact pile driving monopiles.
    In Tables 27 and 28, we have corrected mathematical errors 
reflected in Tables 32 and 33 of the proposed rule resulting from 
transcription errors and incorrect summation of take numbers for a 
given species across all activities (i.e., foundation installation, 
landfall construction, UXO/MEC detonations, and HRG surveys). The 
corrections do not change NMFS' findings.
    In the proposed rule, NMFS proposed to authorize take by Level B 
harassment of sperm whales (n=2) incidental to cofferdam installation. 
In this final rule, NMFS is not authorizing Level B harassment of sperm 
whales incidental to this specified activity because the sperm whale 
exposure estimate is 0.1 and the species exhibits a preference for deep 
oceanic habitat rather than the shallow waters in Narragansett Bay, 
thus, the probability of take is de minimis.

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 Sec.  
217.270 Specified activity and specified geographical region of the 
regulatory text to fully describe the specified activity and specified 
geographical region.
    The following changes are reflected in Sec.  217.272 Permissible 
Methods of Taking.
    NMFS added vibratory pile driving of goal posts to the list of 
permissible methods of taking by Level B harassment as ``goal posts'' 
was inadvertently excluded;
    Based on the Commission's recommendation to authorize take by Level 
A harassment from pneumatic hammering and NMFS' concurrence, NMFS added 
pneumatic hammering of casing pipes to the list of permissible methods 
of taking by Level A harassment.
    The following changes are reflected in Sec.  217.274 Mitigation 
Requirements and the associated Mitigation section of the preamble to 
this final rule.
    Based on a recommendation by a commenter, NMFS added a requirement 
that all project vessels must utilize AIS.

[[Page 72587]]

    Given that North Atlantic right whale density in the Project Area 
increases by an order of magnitude from November to December, NMFS 
expanded the seasonal restriction for impact pile driving to include 
December, during which impact pile driving must be avoided, although, 
with prior approval by NMFS, it may occur if necessary to complete the 
project.
    NMFS 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.
    We now specify that the mitigation measure restricts all Project 
vessels, rather than only crew transfer vessels, from traveling over 10 
kn (11.5 mph) in the transit corridor unless Revolution Wind conducts 
real-time acoustic monitoring to detect large whales (including North 
Atlantic right whales) in and near the transit corridor, and that this 
measure applies only when other speed restrictions are not in place.
    We now specify that an acoustic detection of any large whale 
(rather than only North Atlantic right whales) via the PAM system 
within the transit corridor will trigger a 10 kn (11.5 mph) or less 
speed restriction for all Project vessels until the whale can be 
confirmed visually beyond 500m of the vessel or 24 hours following the 
detection and any re-detection has passed.
    The following changes are reflected in the Sec.  217.275 Monitoring 
and Reporting requirements and the associated Monitoring and Reporting 
section of the preamble to this final rule:
    NMFS 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.
    NMFS 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.
    NMFS increased the PAM shutdown zone from 3.9 km (summer) and 4.4 
km (winter) by now requiring Revolution Wind to delay or shutdown if a 
North Atlantic right whale is acoustically detected at any distance 
within the PAM monitoring zone.
    Based on a recommendation by the Marine Mammal Commission, NMFS 
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).
    NMFS added a requirement that a double big bubble curtain must be 
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, NMFS 
added a requirement that a pressure transducer must be used during all 
UXO/MEC detonations.
    NMFS added a requirement stating that Revolution Wind must use two 
NAS to ensure that measured sound levels do not exceed the levels 
modeled for a 10-dB sound level reduction for foundation installation 
(e.g., double BBC (DBBC), hydro-sound damper, an AdBm Helmholz 
resonator). A single bubble curtain must not be used;
    NMFS 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 that SFV 
is required for each UXO/MEC detonation.
    NMFS added a requirement that Revolution 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 is now requiring Revolution Wind deploy two dedicated PSOs 
vessels to monitor the clearance and shutdown zones prior to and during 
impact pile driving installation of monopile foundations. In addition 
to the three PSOs on the pile driving platform, three PSOs must be 
deployed on each of the dedicated PSO vessels to monitor for marine 
mammals.
    NMFS is now requiring that Revolution Wind must deploy at least 
three PSOs on each observation platform 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 on-duty 
PSOs) must be used.
    NMFS added a requirement that Revolution Wind submit a UXO/MEC PAM 
plan for NMFS' approval 180 days prior to the start of any UXO/MEC 
detonation.
    NMFS now specifies that, for SFV during monopile installations, 
calculations of the R<INF>95%</INF> SEL and R<INF>95%</INF> 
SPL<INF>rms</INF> acoustic ranges for Level A harassment and Level B 
harassment, respectively, based on in situ measurements must be 
compared to the same modeled metrics.
    Based on consideration of the Commission recommendation, NMFS has 
added additional specified reporting requirements for SFV conducted 
during operations, and clarified the general SFV reporting metrics to 
align with the Commission's comments;
    NMFS updated the North Atlantic right whale detection (visual and 
acoustic) reporting guidance.
    NMFS 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 publication of the proposed rule (87 FR 79092, December 23, 
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 Specific Geographic Region section 
has not changed since the publication of the proposed rule in the 
Federal Register (87 FR 79072, December 23, 2022).
    Sections 3 and 4 of Revolution Wind's application summarize 
available information regarding status and trends, distribution and 
habitat preferences, and behavior and life history of the potentially 
affected species (Revolution Wind, 2022). 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/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS'

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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 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/marine-mammal-stock-assessment-reports.
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    All species that could potentially occur in the Project Area are 
included in Table 5 in Revolution Wind ITA application and discussed 
therein. While the majority of these species have been documented or 
sighted in southern New England (including off the coast of Rhode 
Island) 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, due to their 
spatial distribution (i.e., more northern or southern ranges) and/or 
the geomorphological characteristics of the underwater environment 
(i.e., water depth in the development area). There are two pilot whale 
species, long-finned (Globicephala melas) and short-finned 
(Globicephala macrorhynchus), with distributions that overlap in the 
latitudinal range of the Project Area (Hayes et al., 2023; Roberts et 
al., 2016; Roberts et al., 2023). Because it is difficult to 
differentiate between the two species at sea, sightings, and thus the 
densities calculated from them, are generally reported together as 
Globicephala spp. (Roberts et al., 2016; Hayes et al., 2023). However, 
based on the best available information, short-finned pilot whales 
occur in habitat that is both further offshore on the shelf break and 
further south than the project area (Hayes et al., 2020). Therefore, 
NMFS assumes that any take of pilot whales would be of long-finned 
pilot whales. Similarly, in the Western North Atlantic, there are two 
morphologically and genetically distinct common bottlenose morphotypes, 
the Western North Atlantic Northern Migratory Coastal stock and the 
Western North Atlantic Offshore stock. The western North Atlantic 
offshore stock is primarily distributed along the outer shelf and slope 
from Georges Bank to Florida during spring and summer and has been 
observed in the Gulf of Maine during late summer and fall (Hayes et al. 
2020), whereas the northern migratory coastal stock is distributed 
along the coast between southern Long Island, New York, and Florida 
(Hayes et al. 2018). Given their distribution, only the offshore stock 
is likely to occur in the Project Area and is the only stock included 
in this application.
    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 79072, December 23, 2022). Since that time, a 
new SAR (Hayes et al., 2023) has become available for the North 
Atlantic right whale. Estimated abundance for 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 79072, December 23, 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 (N<INF>best</INF>) 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 September 11, 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 sublethal 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-unusual-mortality-event.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event was 
declared a UME in April 2017. Partial or full necropsy examinations 
have been conducted on approximately half of the 208 known cases (as of 
September 2023). Of the whales examined (approximately 90), about 40 
percent had evidence of human interaction either from vessel strike or 
entanglement (refer to https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast). While a portion of the whales have shown evidence of 
pre-mortem vessel strike, this finding is not consistent across all 
whales examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, from North Carolina to New York, has been elevated. 
In some cases, the cause of death is not yet

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known; in others, vessel strike has been deemed the cause of death. As 
the humpback whale population has grown, they are seen more often in 
the Mid-Atlantic. These whales may be following their prey (small fish) 
which were reportedly close to shore in the 2022-2033 winter. Changing 
distributions of prey impact larger marine species that depend on them, 
and result in changing distribution of whales and other marine life. 
These prey also attract fish that are targeted by recreational and 
commercial fishermen, which increases the number of boats and amount of 
fishing gear in these areas. This nearshore movement increases the 
potential for anthropogenic interactions, particularly as the increased 
presence of whales in areas traveled by boats of all sizes increases 
the risk of vessel strikes.

Minke Whale

    Since January 2017, a UME has been declared based on elevated minke 
whale mortalities detected along the Atlantic coast from Maine through 
South Carolina. As of September, 2023, a total of 158 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-minke-whale-unusual-mortality-event-along-atlantic-coast.

Phocid Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event was declared a UME in July 2022. Preliminary testing 
of samples has found some harbor and gray seals positive for highly 
pathogenic avian influenza. While the UME is not occurring in the 
Project Area, the populations affected by the UME are the same as those 
potentially affected by the Project. Information on this UME is 
available online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.
    The above event was preceded by a different UME, occurring from 
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 
2018, elevated numbers of harbor seal and gray seal mortalities 
occurred across Maine, New Hampshire, and Massachusetts. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation 
encompassed all seal strandings from Maine to Virginia. A total of 
3,152 reported strandings (of all species) occurred from July 1, 2018, 
through March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME. 
Information on this UME is available online at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in Table 3.

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

Potential Effects of 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 
79072, December 23, 2022) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from the Revolution Wind's project activities on 
marine mammals and their habitat. While some new literature has been 
published since publication of the proposed rule (e.g., Meyer-Gutbrod 
et al., 2023), there is no new information that NMFS is aware of that 
changes the analysis in the proposed rule. The information and analysis 
included in the proposed rule is incorporated by reference into this 
final rule and is not repeated here; please refer to the notice of the 
proposed rule (87 FR79072, December 23, 2022).

Estimated Take

    As noted in the Changes From the Proposed to Final Rule section, 
NMFS has revised take estimates for several species based on our 
concurrence with comments received on the proposed rule and due to 
transcription and mathematical errors summing take estimates across 
activities for several species. These changes are described in detail 
in the sections below and, otherwise, the methodology for and number 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 be primarily 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). As described 
below, the larger distances to the PTS thresholds, when considering 
marine mammal weighting functions, demonstrate this potential. For mid-
frequency hearing sensitivities, when thresholds and weighting and the 
associated PTS zone sizes are considered, the potential for PTS from 
the noise produced by the project is negligible. 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 numbers are estimated.
    Generally speaking, we estimate take by considering: (1) acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas;

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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/marine-mammal-acoustic-technical-guidance).
    Level B harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., other noises in the area) and the 
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-mean-squared pressure received levels 
(RMS SPL) of 120 dB (referenced to re 1 [mu]Pa) for continuous (e.g., 
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources (Table 4). Generally speaking, Level B 
harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by 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.
    Revolution Wind's construction activities include the use of 
continuous (i.e., vibratory pile driving) and intermittent (i.e., 
impact pile driving, pneumatic hammering, HRG acoustic sources) 
sources, therefore, the 120 and 160 dB re 1 [mu]Pa (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 non-impulsive). As dual 
metrics, NMFS considers onset of PTS (Level A harassment) to have 
occurred when either one of the two metrics is exceeded (i.e., metric 
resulting in the largest isopleth). Revolution Wind's project includes 
the use of both impulsive and non-impulsive sources.
    These thresholds are provided in Table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
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    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 incidental to explosive detonations. Given Revolution 
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).

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    Additional thresholds for non-auditory injury to lung and 
gastrointestinal (GI) tracts from the blast shock wave and/or onset of 
high peak pressures are also relevant (at relatively close ranges) 
(Table 6). These criteria have been developed by the U.S. Navy (DoN 
(U.S. Department of the Navy) 2017) and are based on the mass of the 
animal and the depth at which it is present in the water column. 
Equations predicting the onset of the associated potential effects are 
included below (Table 6).

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    Below, we discuss the acoustic modeling, marine mammal density 
information, and take estimation for each of Revolution Wind's 
construction activities. NMFS has carefully considered all information 
and analysis presented by Revolution Wind as well as all other 
applicable information and, based on the best available science, 
concurs that Revolution Wind's estimates of the types and amounts of 
take for each species and stock are complete and accurate.

Marine Mammal Density and Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. As noted above, depending on the species and as described 
in the take estimation section for each activity, take estimates may be 
based on the Roberts et al. (2023) density estimates, marine mammal 
monitoring results from HRG surveys, or average group sizes.
    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 
Project Area. More recently, these data have been updated with new

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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.
    Revolution Wind's initial densities and take estimates were 
included in the ITA application that was considered Adequate & Complete 
on February 28, 2022, in line with NMFS' standard ITA guidance (https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-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 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 19, 2022 after continued discussion 
between Revolution 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-revolution-wind-llc-construction-revolution-wind-energy) 
on August 26, 2022.
    Immediately below, we describe observational data from monitoring 
reports and average group size information, both of which are 
appropriate to inform take estimates for certain activities or species 
in lieu of density estimates. As noted above, the density and 
occurrence information type resulting in the highest take estimate was 
used, and the explanation and results for each activity are described 
in the specific activity sub-sections in the Modeling and Take 
Estimation section.
    For some species, observational data from PSOs aboard HRG and 
geotechnical (GT) survey vessels indicate that the density-based 
exposure estimates may be insufficient to account for the number of 
individuals of a species that may be encountered during the planned 
activities. PSO data from HRG and GT surveys conducted in and near the 
Project Area from October 2018 through February 2021 (AIS-Inc., 2019; 
Bennett, 2021; Stevens et al., 2021; Stevens and Mills, 2021) were 
analyzed to determine the average number of individuals of each species 
observed per vessel day. For each species, the total number of 
individuals observed (including the ``proportion of unidentified 
individuals'') was divided by the number of vessel days during which 
observations were conducted in 2018-2021 HRG surveys (407 vessel days) 
to calculate the number of individuals observed per vessel day, as 
shown in the final columns of Tables 7a and 7b in the Updated Density 
and Take Estimation Memo.
    For other less-common species, the predicted densities from Roberts 
et al. (2023) are very low and the resulting density-based exposure 
estimate is less than a single animal or a typical group size for the 
species. In such cases, the mean group size was considered as an 
alternative to the density-based or PSO data-based take estimates to 
account for potential impacts on a group during an activity. Mean group 
sizes for each species were calculated from recent aerial and/or 
vessel-based surveys as shown in Table 7.
    The estimated monthly density of seals provided in Roberts et al. 
(2023) includes all seal species present in the region as a single 
guild. To split the resulting ``seal'' density-based take estimate by 
species (harbor and gray seals), the estimate was multiplied by the 
proportion of the combined abundance attributable to each species. In 
the proposed rule, seal take estimates were previously calculated by 
scaling the exposure estimates derived from a single ``seal'' guild 
density using proportions calculated from the range-wide abundance 
values in the NMFS stock assessment reports (87 FR 79072, December 23, 
2022). To more accurately estimate take for each species for all 
activities in the final rule, Revolution Wind instead scaled the single 
seal guild take estimates using proportions calculated from the 
relative occurrence of each species reported in PSO monitoring reports 
for HRG surveys conducted in the Project Area from 2018-2021 (AIS-Inc., 
2019; Bennett, 2021; Stevens et al., 2021; Stevens and Mills, 2021) and 
more recent data collected during construction of the South Fork Wind 
Farm in 2023 (South Fork Wind 2023, unpublished data). In the combined 
dataset, there were 62 seal sightings recorded to the species level. Of 
those, 17 individuals were harbor seals (0.27 or 27 percent) and 45 
were gray seals (0.73 or 73 percent). Revolution Wind used these 
proportions to recalculate the species-specific seal take shown in 
Tables 12, 16, 20, 25, and 26.
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    The estimated exposure and take tables for each activity present 
the density-based exposure estimates, PSO-date derived take estimate, 
and mean group size for each species. The number of takes by Level B 
harassment Revolution Wind requested and NMFS authorizes is based on 
the largest of these three values. As mentioned previously, the amount 
of take by Level A harassment authorized is based strictly on density-
based exposure modeling results, rounded up to the nearest whole number 
or group size, as appropriate. As described in the Comments and 
Responses section and based on specific recommendations by the 
Commission during the 45-day public comment period, NMFS is authorizing 
additional take for a subset of species for particular activities. 
Details are included in the following activity-specific sections.

Modeling and Take Estimation

    Revolution Wind estimated potential density-based exposures in two 
separate ways, depending on the activity. For WTG and OSS monopile 
foundation installation, sophisticated sound and animal movement 
modeling was conducted to more accurately account for the movement and 
behavior of marine mammals and their exposure to the underwater sound 
fields produced during impact pile driving, as described below. For 
landfall construction activities, HRG surveys, and in-situ UXO/MEC 
disposal (i.e., detonation), takes were estimated by multiplying the 
expected densities of marine mammals in the activity area(s) by the 
area of water likely to be ensonified above harassment threshold levels 
in a single day (24-hour period). The result was then multiplied by the 
number of days on which the activity is expected to occur, resulting in 
a density-based exposure estimate for each activity. In addition to the 
sophisticated modeling conducted for WTG and OSS monopile foundation 
installation, this method was used to produce a take estimate for each 
species for comparison with the exposure-based estimate, PSO-data 
estimate, and group size. Again, in some cases, these results directly 
inform the take estimates while, in other cases, adjustments are made 
based on monitoring results or average group size.
    Below, we describe, in detail, the approach used to estimate take, 
in consideration of the acoustic thresholds and appropriate marine 
mammal density and occurrence information described above for each of 
the four different activities (WTG/OSS foundation installation, UXO/MEC 
detonation, landfall construction activities, and HRG surveys). The 
activity-specific exposure estimates (as relevant to the analysis) and 
activity-specific take estimates are also presented, alongside the 
combined totals annually, across the entire 5-year project, and as the 
maximum take of marine mammals that could occur within any 1 year.
WTG and OSS Monopile Foundation Installation
    Here, for WTG and OSS monopile foundation installation, we provide 
summary descriptions of the modeling methodology used to predict sound 
levels generated from the Project with respect to harassment thresholds 
and potential exposures using animal movement, the density and/or 
occurrence information used to support the take estimates for this 
activity, and the resulting acoustic and exposure ranges, exposures, 
and authorized takes. Additional modeling details are available in the 
proposed rule Federal Register document (87 FR 79092, December 23, 
2022).
    In this section, we present Revolution Wind's acoustic and exposure 
estimates for installation of up to 79 WTG foundations and 2 OSS 
foundations, as requested by Revolution Wind.
    The full installation parameters for each size monopile are 
described below. The two impact pile driving installation acoustic 
modeling scenarios are:
    (1) 7/12-m diameter WTG monopile foundation: A total of 10,740 
hammer strikes per pile modeled over 220 minutes (3.7 hours); and,
    (2) 7/15-m diameter OSS foundation: A total of 11,564 hammer 
strikes per pile modeled over 380 minutes (6.3 hours).
    Representative hammering schedules (Table 8), including increasing 
hammer energy with increasing penetration depth, were modeled because 
maximum sound levels usually occur during the last stage of impact pile 
driving, where the greatest resistance is typically encountered (Betke 
2008). The hammering schedule includes a soft start, or a period of 
hammering at a reduced hammer energy (relative to full operating 
capacity).

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    Revolution Wind will install monopiles vertically to a maximum 
penetration depth of 50 m; therefore, the model includes this 
assumption. While pile penetration depth among the foundation positions 
might vary slightly, this value was chosen as a reasonable penetration 
depth for the purposes of acoustic modeling based on Revolution Wind's 
engineering designs. All modeling was performed assuming that only one 
pile is driven at a time (i.e., Revolution Wind will not conduct 
concurrent monopile installations), up to three WTG foundations will be 
installed per day, and no more than one OSS foundation will be 
installed per day.
    Sound fields produced during impact pile driving were modeled by 
first characterizing the sound signal produced during pile driving 
using the industry standard GRLWEAP (wave equation analysis of pile 
driving) model and JASCO Applied Sciences' (JASCO) 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 Revolution Wind's ITA application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-revolution-wind-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. 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).
    Two WTG and three OSS locations within the Lease Area were selected 
for acoustic modeling to provide representative propagation conditions 
and sound fields (see Figure 2 in K[uuml]sel et al., 2021). The two WTG 
locations were selected to represent the relatively shallow (36.8 m) 
northwest section of the Lease Area to the somewhat deeper (41.3 m) 
southeast section. The three potential OSS locations (of which only two 
will be used to install the two OSS foundations) selected occupy 
similar water depths (33.7, 34.2, and 34.4 m). The acoustic propagation 
fields applied to exposure modeling (described below) were 
conservatively based on the WTG (1 of 2) and OSS (1 of 3) locations 
resulting in the largest fields.

[[Page 72602]]

    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-November) and winter 
(December only).
    Next, Revolution 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 site-specific environmental data that considers 
bathymetry, sound speed in the water column, and seabed geo-acoustics 
in the construction area.
    Revolution 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 (R<INF>max</INF>) 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 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, R<INF>95</INF><not-eq>, 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 R<INF>max</INF> and 
R<INF>95</INF><not-eq> depends on the source directivity and the 
heterogeneity of the acoustic environment. R<INF>95</INF><not-eq> 
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, Revolution Wind applied exposure 
R<INF>95</INF><not-eq> ranges, not acoustic R<INF>95</INF><not-eq> 
ranges, to estimate take and determine mitigation distances for the 
reasons described below.
    In order to best evaluate the SEL<INF>cum</INF> 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 Revolution 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 
(ER<INF>95</INF><not-eq>)). The ER<INF>95</INF><not-eq> 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 
ER<INF>95</INF><not-eq> ranges are species-specific, they can be used 
to develop mitigation monitoring or shutdown zones.
    Sound exposure modeling, like JASCO's JASMINE, involves the use of 
a 3D computer simulation in which simulated animals (animats) move 
through the modeled marine environment over time in ways that are 
defined by the known or assumed movement patterns for each species 
derived from visual observation, animal borne tag, or other similar 
studies. 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 sound field produced by the activity, in this case impact pile 
driving, is then added to the modeling environment at the location and 
for the duration of time anticipated for one or more pile 
installations. At each time step in the simulation, each animat records 
the received sound levels at its location resulting in a sound exposure 
history for each animat. These exposure histories are then analyzed to 
determine whether and how many animats (i.e., simulated animals) were 
exposed above harassment threshold levels. Finally, the density of 
animats used in the modeling environment, which is usually much higher 
than the actual density of marine mammals in the activity area so that 
the results are more statistically robust, is compared to the actual 
density of marine mammals anticipated to be in or near the Lease Area.
    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 densities 
for an animal results in the mean number of animats expected to be 
exposed 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 re-run 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 low-probability events it is more 
precise to

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provide the actual values. For this reason, mean number values are not 
rounded. A more detailed description of this method is available in 
Appendix A of Revolution Wind's application.
    For the Project, JASMINE animal movement model was used to predict 
both the ER<INF>95</INF><not-eq> ranges and the probability of marine 
mammal exposure to impact pile driving sound generated by monopile 
installation. Sound fields generated by the acoustic propagation 
modeling described above were input into the JASMINE model, and animats 
were programmed based on the best available information to ``behave'' 
in ways that reflect the behaviors of the 16 marine mammal species 
expected to occur in or near the Lease Area. 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), or by extrapolating from a species expected to 
behave similarly (e.g., fin and sei whales). More information regarding 
modeling parameters can be found Appendix A of the ITA application.
    The mean numbers of animats that may be exposed to noise exceeding 
acoustic thresholds were calculated based on installation of 1, 2, or 3 
WTG foundations and, separately, 1 or 2 OSS foundations in 24 hours. 
Animats were modeled to move throughout the 3D sound fields produced by 
each construction schedule for the entire construction period. For PTS 
exposures, both SPL<INF>peak</INF> and SPL<INF>cum</INF> 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. For Level A harassment, an individual animat's exposure 
levels are summed over that 24-hour period to determine its total 
received energy, and then compared to the appropriate PTS threshold. 
Takes by behavioral disturbance are predicted when an animat is modeled 
to come within the area ensonified by sound levels exceeding the 
corresponding Level B harassment thresholds. Please note that animal 
aversion was not incorporated into the JASMINE model runs that were the 
basis for the take estimate for any species. See Appendix A of the ITA 
application for more details on the JASMINE modeling methodology.
    Revolution Wind will 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. In modeling the sound fields produced by 
Revolution Wind's planned activities, hypothetical broadband 
attenuation levels of 0 dB, 6 dB, 10 dB, 12 dB, 15 dB, and 20 dB for 
were modeled to gauge effects on the ranges to threshold isopleths 
given these levels of attenuation. Although six attenuation levels were 
evaluated, Revolution Wind anticipates that the noise abatement system 
ultimately chosen will be capable of reliably reducing source levels by 
10 dB; therefore, modeling results assuming 10-dB attenuation are 
carried forward in this analysis. Additional information related to 
Revolution Wind's use of noise abatement systems is provided in the 
Mitigation and Monitoring and Reporting sections.
    As described more generally above, updated Roberts et al. (2023) 
habitat-based marine mammal density models provided the densities used 
to inform and scale the marine mammal exposure estimates produced by 
the JASMINE model. For monopile installation, specifically, mean 
monthly densities for all species were calculated by first selecting 
density data from 5 x 5 km (3.1 x 3.1 mile) grid cells (Roberts et al., 
2016; Roberts et al. (2023) both within the Lease Area and out to 10 km 
(6.2 mi) from the perimeter of the Lease Area. This is a reduction from 
the 50 km (31 mi) perimeter used in the ITR application. The relatively 
large area selected for density estimation encompasses and extends 
approximately to the largest estimated exposure acoustic range 
(ER<INF>95</INF><not-eq>) to the isopleth corresponding to Level B 
harassment, assuming no noise attenuation) (see Tables 19 and 20 of the 
ITA application) for all hearing groups using the unweighted threshold 
of 160 dB re 1 [mu]Pa (rms). Please see Figure 6 in Revolution Wind's 
Updated Density and Take Estimation Memo for an example of a density 
map showing Roberts and Halpin (2022) density grid cells overlaid on a 
map of the Lease Area.
    Although there is some uncertainty in the monopile foundation 
installation schedule, Revolution Wind anticipates that it could occur 
over approximately 1 month provided good weather conditions and no 
unexpected delays. The exposure calculations were thus conducted using 
marine mammal densities from the month with the highest average density 
estimate for each species, based on the assumption that all 79 WTG and 
2 OSS foundations will be installed in the highest density month (78 
WTG monopile (3 per day for 26 days), 1 WTG monopile (1 per day for 1 
day) and 2 OSS monopile foundations (1 per day for 2 days)). Due to 
differences in the seasonal migration and occurrence patterns, the 
month selected differs for each species. The estimated monthly density 
of seals provided in Roberts et al. (2023) includes all seal species 
present in the region as a single guild. To split the resulting 
``seal'' density-based exposure estimate by species (harbor and gray 
seals), the estimate was multiplied by the proportion of the combined 
abundance attributable to each species. Specifically, the SAR 
N<INF>best</INF> abundance estimates (Hayes et al., 2023) for the two 
species (gray seal = 27,300, harbor seal = 61,336; total = 88,636) were 
summed and divided the total by the estimate for each species to get 
the proportion of the total for each species (gray seal = 0.308; harbor 
seal = 0.692). The total estimated exposure value based on the pooled 
seal density provided by Roberts et al. (2023) was then multiplied by 
these proportions to get the species-specific exposure estimates. 
Monthly densities were unavailable for pilot whales, so the annual mean 
density was used instead. The blue whale density was considered too low 
to be carried into exposure estimation so the amount of blue whale take 
Revolution Wind requested (see Estimated Take) is instead based on 
group size. Table 9 shows the maximum average monthly densities by 
species that were incorporated in exposure modeling to obtain 
conservative exposure estimates.
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    For the exposure analysis, it was assumed that a maximum of three 
WTG monopile foundations may be driven in 24 hours, presuming 
installations are permitted to continue in darkness and would occur in 
the highest density month for any species. It is unlikely that this 
installation rate will be consistently possible throughout the WTG 
foundation construction phase, but this scenario was considered to have 
the greatest potential impact on marine mammals and was, therefore, 
carried forward into take estimation. Exposure ranges 
(ER<INF>95%</INF>) to the Level A SEL<INF>cum</INF> thresholds and 
Level B SPL<INF>rms</INF> threshold resulting from animal exposure 
modeling for installation of one (for comparative purposes) or three 
(assumed for exposure modeling) WTG foundations and one OSS foundation 
per day (assumed for exposure modeling), assuming 10-dB of attenuation, 
for the summer (when Revolution Wind intends to install the majority of 
monopile foundations) and winter are shown in Tables 10 and 11. 
Exposure ranges were also modeled assuming installation of two WTG 
foundations per day (not shown here); see Appendix A of Revolution 
Wind's ITA application for those results. Although only allowed with 
NMFS approval in the case of unforeseen circumstances, any activities 
conducted in the winter (December) will utilize monitoring and 
mitigation measures based on the exposure ranges (ER<INF>95%</INF>) 
calculated using winter sound speed profile, which are longer than 
ER<INF>95%</INF> modeled using a summer sound speed profile. Revolution 
Wind does not plan to install two OSS foundations in a single day due 
to the distance between the OSS locations coupled with the longer 
installation time for the larger diameter monopile (7/15-m versus 7/12-
m diameter WTG monopile); therefore, modeling results are provided for 
installation of a single OSS foundation per day. Meaningful differences 
(greater than 500 m) between species within the same hearing group 
occurred for low-frequency cetaceans, so exposure ranges are shown 
separately for those species (Tables 10 and 11). For mid-frequency 
cetaceans and pinnipeds, the largest value among the species in the 
hearing group was selected to be included in Tables 10 and 11.

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    As mentioned previously, acoustic ranges (R<INF>95</INF><not-eq>) 
were also modeled. These thresholds were used to define the Level B 
harassment threshold (160 dB rms) for all species (see Mitigation) for 
WTG and OSS foundation installation in summer and winter (in 
parentheses):

<bullet> WTG monopile: 3,833 m (4,271 m)
<bullet> OSS monopile: 4,100 m (4,698 m)

    Finally, the results of marine mammal exposure modeling, assuming 
10-dB attenuation, for installation of 79 WTG and 2 OSS monopile 
foundations are shown in columns 2 and 3 of Table 12; these values 
assume that all 81 foundations (79 WTGs and 2 OSSs) will be installed 
in a single year and form the basis for the amount of take requested by 
Revolution Wind and authorized by NMFS. Columns 4 and 5 show what the 
take estimates would be if the PSO data or average group size, 
respectively, were used to inform the take by Level B harassment in 
lieu of the density and exposure modeling. The last two columns 
represent the take, by Level A harassment (PTS) and Level B harassment, 
respectively, NMFS is authorizing, The Level A exposure estimates shown 
in Table 12 are based only on the Level A SEL<INF>cum</INF> threshold 
and associated exposure ranges (Table 10), as the very short distances 
to isopleths based on the Level A SPL<INF>pk</INF> thresholds (Table 14 
in the ITA application) resulted in no meaningful likelihood of take 
from exposure to those sound levels. The Level B

[[Page 72608]]

exposure estimates shown in Table 12 are based on the exposure ranges 
resulting from sound exposure modeling using the unweighted 160 dB 
SPL<INF>rms</INF> threshold (Table 11). For each species, the number of 
takes, by Level B harassment, in the last column of Table 12 is based 
on the highest of the three estimates shown in columns 3 (Exposure 
Modeling Take Estimates--Level B), 4 (PSO Date Take Estimate), and 5 
(Mean Group Size).
    Revolution Wind requested, and NMFS proposed to authorize, Level A 
harassment (PTS) take for humpback whales (n=7) incidental to 
foundation installation because, for this species only, the shutdown 
zone is smaller (summer = 2,300 m; winter = 4,400 m) than the PTS Level 
A harassment ER<INF>95</INF><not-eq> distance (summer = 2,660 m; winter 
= 6,290 m), thus humpback whales could be exposed to noise levels 
capable of inducing PTS before pile driving is shutdown. However, based 
on consideration of a comment from the Commission, NMFS is also 
authorizing a portion of the model-estimated Level A harassment (PTS) 
take of additional species. Revolution Wind must monitor extensive 
zones prior to and during pile driving during both daytime and 
nighttime pile driving, if it occurs. Although the combination of PSOs 
using promising new alternative visual monitoring equipment and PAM 
operators conducting extensive acoustic monitoring is expected to 
facilitate detection of marine mammals in the clearance and shutdown 
zones during daytime and nighttime (if it occurs) pile installation, 
it's possible that a marine mammal may enter the shutdown zone 
undetected. This situation is more likely for species that are 
challenging to detect (particularly in higher sea states), including 
minke whales, harbor porpoises, gray seals, and harbor seals. As 
indicated in the proposed rule, modeling resulted in the following 
number of Level A harassment (PTS) takes incidental to foundation 
installation for the indicated species: 7 fin whales, 3 sei whales, 61 
minke whales, 321 harbor porpoises, 5 gray seals, and 32 harbor seals. 
Although some of these species are more difficult to detect, 
particularly at the farthest extent of the shutdown zones (e.g., minke 
whale: summer = 2,300 m, winter = 4,400 m; harbor porpoise: summer = 
1,400 m, winter = 2,400 m), NMFS considers it unlikely that 7 fin 
whales, 61 minke whales, 321 harbor porpoises, and 32 harbor seals 
would enter the Level A harassment (PTS) zone undetected and remain 
there for an extended duration, given the extensive monitoring and 
mitigation (e.g., large clearance zones) NMFS is requiring Revolution 
Wind to implement. Thus, for these species, NMFS is authorizing 20 
percent of the model-estimated Level A harassment (PTS) take proposed 
for authorization (rounded up to the nearest whole number) incidental 
to foundation installation, which is equal to 2 fin whales, 13 minke 
whales, 65 harbor porpoises, and 7 harbor seals. Additionally, NMFS is 
authorizing take, by Level A harassment, of 7 humpback whales (included 
in the proposed rule), 3 sei whales, and 5 gray seals, all of which are 
based solely on the density-based exposure estimate resulting from 
animal movement modeling presented in the proposed rule. We did not 
apply a 20 percent reduction to density-based exposure estimates for 
sei whales and harbor seals given the estimates are low in number and 
similar to a group size.
    Although model estimated, Level A harassment of 18 North Atlantic 
right whales is not anticipated or authorized, given the extensive 
mitigation and monitoring measures prescribed to avoid this level of 
harassment for North Atlantic right whales.
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UXO/MEC Detonations

    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) 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 and associated water depths in the Project Area (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 RWEC (S1 and S2) and the 
Lease Area (S3 and S4).
    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, Revolution 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. Because 
of implementation of mitigation and monitoring measures, the potential 
for mortality and non-auditory injury is low and Revolution Wind did 
not request and we are not authorizing take by mortality or non-
auditory injury. All modeling results, including mortality and non-
auditory injury, can be found in Appendix B of the application.
    UXOs/MECs were modeled at the locations listed below. The locations 
for these modeling sites are shown in Figure 1 of Appendix B in 
Revolution Wind's application:
    <bullet> Shallow water RWEC: Site S1; In the channel within 
Narragansett Bay (12 m depth);
    <bullet> Shallow water RWEC: Site S2; Intermediate waters outside 
of Narragansett Bay (20 m depth);
    <bullet> Shallow water Lease Area: Site S3; Shallower waters in the 
southern portion of the Hazard Zone 2 area (30 m depth);
    <bullet> Deeper water Lease Area: Site S4; Deeper waters in 
northern portion of the Hazard Zone 2 area (45 m depth).
    For the RWEC, JASCO selected the largest distances to the PTS and 
TTS isopleths between S1 and S2 to carry forward for take estimation 
(Tables 45 and 47 in ITA application). This same approach was used to 
determine the largest distances to these isopleths for the Lease Area 
(S3 and S4; Tables 46 and 48 in ITA application). The distances were 
not always consistently larger for one site versus the other, so the 
results in Tables 45 and 47 in the ITA application represent a mixture 
of S1 and S2 for the RWEC and Tables 46 and 48 represent a mixture of 
results for S3 and S4 for the Lease Area. For all species, the distance 
to the SEL threshold isopleth exceeded that for the SPL peak isopleth 
(Table 29 in Appendix B of the ITA application). Model results for all 
sites and all charge weights can be found in Appendix B of Revolution 
Wind's application. Further, Revolution Wind presented results for both 
mitigated and unmitigated scenarios in the ITA application and the 
August 2022 Updated Densities and Takes Estimation Memo; however, 
Revolution Wind has committed to use a noise abatement system capable 
of 10-dB attenuation (minimally a double bubble curtain) during all 
detonations. As a result, the Updated Densities and Take Estimation 
Memo mitigated UXO/MEC scenario is the one carried forward into 
exposure and take estimation here. Tables 13 and 14 provide the largest 
ranges R<INF>95</INF><not-eq> among all sites (S1-S4) to the SEL-based 
PTS-Onset and SEL-based TTS-Onset, assuming 10-dB attenuation. 
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-revolution-wind-llc-construction-revolution-wind-energy).
    NMFS notes that the more detailed results for the mortality and 
non-auditory injury analysis for marine mammals for onset 
gastrointestinal injury, onset lung injury, and onset of mortality can 
be found in Appendix B of the ITA application, which can be found on 
NMFS' website. NMFS concurs with Revolution Wind's analysis and neither 
expects nor authorizes 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 enough that they can be effectively monitored 
(i.e., 5-353 m; see Tables 35-38 in Appendix B of Revolution Wind's 
application) and these types of impacts avoided, given the robust 
mitigation and monitoring measures required. The modeled distances to 
non-auditory injury thresholds range from 5-648 m (see Tables 30-34 in 
Appendix B of the application). Revolution Wind will be 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 Revolution Wind will be employing multiple platforms to visually 
monitor marine mammals as well as conducting passive acoustic 
monitoring, it is reasonable to assume that marine mammals will be 
reliably detected within approximately 660 m of the UXO/MEC being 
detonated and mortality or non-auditory injury is not likely to occur.
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BILLING CODE 3510-22-C
    To estimate the maximum ensonified zones that could result from 
UXO/MEC detonations, the R<INF>95</INF><not-eq> to PTS and TTS 
threshold isopleths within the RWEC (S1 and S2; Tables 47 and 47 in ITA 
application), respectively, were used as radii to calculate the area of 
a circle (pi x r\2\ where r is the range to the threshold level) for 
each marine mammal hearing group. The results represent the largest 
area potentially ensonified above threshold levels from a single 
detonation within the RWEC. The same method was used to calculate the 
maximum ensonified area from a single detonation in the Lease Area (S3 
and S4), based on the distances in Tables 46 and 48 in the ITA 
application. Again, modeling results are presented here for mitigated 
(i.e., using a noise abatement system) detonations of UXO/MECs. The 
results for unmitigated detonations can be found Tables 44-48 in the 
ITA application.
    As mentioned previously, Revolution Wind used the Duke Habitat-
based Density Models to determine species-specific densities for 
inclusion in estimation of take incidental to UXO/MEC detonation. To 
avoid detonations of UXO/MECs during periods when North Atlantic right 
whale densities are highest in and near the Project Area, NMFS is 
imposing a seasonal restriction on detonations from December 1-April 
30. For each species, Revolution Wind selected the highest average 
monthly marine mammal density among the months of May through November 
(Roberts et al. (2023)) to conservatively estimate exposures from UXO/
MEC

[[Page 72614]]

detonation for a given species (i.e., assumed all 13 UXO/MECs would be 
detonated in the month with the highest average density). This approach 
is similar to what was used for determining the most appropriate 
species densities for monopile foundation installation take estimation. 
Given that UXOs/MECs detonations have the potential to occur anywhere 
within the Lease Area and RWEC, a 15-km (9.32 mi) perimeter was applied 
around the Lease Area when selecting density data to include in take 
estimation (reduced from the 50 km (31 mi) perimeter in the ITA 
application) and a 10 km (6.2 mi) perimeter was applied to the RWEC 
(see Figures 12 and 13 of the Updated Density and Take Estimation 
Memo). In some cases where monthly densities were unavailable, annual 
densities were used instead for certain species (i.e., blue whales, 
pilot whale spp.).
    Table 15 provides those densities and the associated months in 
which the species-specific densities are highest for the RWEC and Lease 
Area, respectively.
    In addition to assuming all detonations would be of the largest 
charge weight, Revolution Wind assumed six detonations would occur in 
the RWEC and seven would occur in the Lease Area. To estimate take 
incidental to UXO/MEC detonations in the RWEC, the maximum ensonified 
areas based on the largest R<INF>95</INF><not-eq> to Level A harassment 
(PTS) and Level B harassment (TTS) thresholds (assuming 10-dB 
attenuation) from a single detonation in the RWEC, shown in Tables 45 
and 47 in Revolution Wind's ITA application, were multiplied by six 
(the estimated number of UXOs/MECs that may be encountered in the RWEC) 
and then multiplied by the marine mammal densities shown in Table 15, 
resulting in the take estimates in Table 16. For the Lease Area, the 
same method was applied, using the maximum ensonified areas in Tables 
46 and 48 in the ITA application multiplied by seven (the estimated 
number of UXOs/MECs that may be encountered in the Lease Area) and then 
multiplied by the marine mammal densities shown in Table 15, resulting 
in the values shown in the columns for the Lease Area (with the heading 
``LA'') of Table 16. Again, Revolution Wind based the amount of 
requested take on the number of exposures estimated assuming 10-dB 
attenuation using a noise abatement system because they believe 
consistent, successful implementation of this mitigation measure will 
be possible.
    Revolution Wind's mitigation and monitoring measures are intended 
to avoid Level A take of most species and the extent and severity of 
Level B harassment (see Mitigation and Monitoring and Reporting 
sections below). However, given the relatively large distances to the 
high-frequency cetacean Level A harassment (PTS, SEL<INF>cum</INF>) 
isopleth applicable to harbor porpoises, and the difficulty detecting 
this species at sea, Revolution Wind requested and NMFS authorizes take 
by Level A harassment of 49 harbor porpoises. Similarly, seals are 
difficult to detect at longer ranges and, although the distance to the 
phocid hearing group SEL PTS threshold is not as large as that for 
high-frequency cetaceans, it may not be possible to detect all seals 
within the threshold distances even with the required monitoring 
measures. Therefore, in addition to the requested Level B harassment in 
Table 16, Revolution Wind requested Level A harassment of three gray 
seals and five harbor seals. For the proposed rule, NMFS adjusted the 
amount of take proposed for authorization to 7 gray seals and 16 harbor 
seals to correct for Revolution Wind's arithmetic error in the 
application when summing the density-based Level A exposures for the 
Lease Area and RWEC for each species. As described in the Comments and 
Responses section in the final rule, NMFS is also authorizing the 
amount of model-estimated Level A harassment (PTS) take (increased to 
group size where applicable) incidental to UXO/MEC detonations: 2 fin 
whales, 2 humpback whales, 8 minke whales, 35 common dolphins, 8 
bottlenose dolphins (Western North Atlantic offshore stock), and 28 
Atlantic white-sided dolphins. In making the decision to authorize the 
take indicated above, NMFS considered the Commission's recommendation, 
the challenge of monitoring the large mitigation and monitoring zone 
size (particularly for heavier charge weight UXOs/MECs) required for 
this activity, difficulty visually detecting smaller, cryptic marine 
mammals (e.g., minke whales, dolphin spp.) at the furthest extent of 
the clearance zones, and that the authorized take numbers do not fully 
account for the effectiveness of the required mitigation measures other 
than the 10-dB noise attenuation incorporated in acoustic and exposure 
modeling.
    As described for WTG and OSS installation, the Commission suggested 
that, given the frequency of common dolphin occurrence in the Project 
Area, NMFS should authorize an increased (relative to the amount 
included in the proposed rule) number of common dolphin takes, by Level 
B harassment, for all activities. Before we addressed the Commission's 
suggestion, we corrected the following transcription errors included in 
the proposed rule: the proposed take, by Level B harassment, should 
have been 14, not 9, bottlenose dolphins and 387, not 211, common 
dolphins. NMFS concurs with the Commission's suggestion and has 
included 245 Level B harassment takes of common dolphins incidental to 
UXO/MEC detonations (in addition to the corrected number (n=387) of 
estimated Level B harassment takes). Because Revolution Wind did not 
specify the time of year for this activity, it's equally possible that 
detonations could occur when common dolphin densities are highest or 
lowest in the Project Area. To account for this in determining the 
appropriate number of additional common dolphin takes to authorize, 
NMFS assumed that one group (group size = 34.9, rounded to 35) could be 
taken by Level B harassment incidental to every other detonation (n=7), 
equaling 245 common dolphin takes. Table 16 incorporates a total number 
of 632 Level B harassment takes (387 plus 245) of common dolphins 
incidental to UXO/MEC detonations.
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BILLING CODE 3510-22-C
    While there would be no more than 13 detonations of UXOs/MECs, each 
of which would be 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 prevent 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.
    The mitigation measures Revolution Wind must implement during any 
UXO/MEC detonations are expected to reduce the likelihood of Level A 
harassment (PTS) and, to a degree, Level B harassment to the extent 
practicable. However, as described above, there remains potential for 
Level A harassment (PTS) for multiple species.

Temporary Cofferdam or Casing Pipe/Goal Post Installation and Removal

    Acoustic modeling, using JASCO's MONM-BELLHOP model (used for 
modeling impact pile driving), was performed for [Oslash]rsted's 
Sunrise Wind Farm project to determine distances to the Level A 
harassment and Level B harassment isopleths resulting from

[[Page 72616]]

installation and removal of steel sheet piles to construct cofferdams 
and goal posts, and installation and removal of casing pipes using 
pneumatic hammering (K[uuml]sel et al., 2022b). Revolution Wind will 
install the same type of sheet piles and casing pipes in a similar 
location using the exact same methods as Sunrise Wind used to inform a 
published analysis, therefore, the modeling results described for 
Sunrise Wind (K[uuml]sel et al., 2022b) and presented here are 
considered applicable to Revolution Wind's project. For take assessment 
purposes, the sheet pile cofferdam scenario results in a larger amount 
(compared to pneumatic hammering for casing pipe installation and 
vibratory pile driving for goal posts) of take by Level B harassment 
and was, therefore, the scenario carried further in the Estimated Take 
section. This is because acoustic propagation modeling predicts that 
the distance to the Level B harassment threshold isopleth produced by 
vibratory pile driving is approximately 10 km, while the distance to 
the same isopleth produced by pneumatic hammering is approximately 0.92 
km. The sheet pile cofferdam scenario will require up to 56 days of 
vibratory hammer use for installation and removal, while the casing 
pipe scenario (including goal posts) will require 8 days of pneumatic 
hammering (2 days to install and 2 days to remove each casing pipe) and 
up to 12 days of vibratory pile driving. Removal of the casing pipes 
also involves the use of a pneumatic pipe ramming tool, but the pipe 
would be pulled out of the seabed while hammering was occurring instead 
of pushed into it. The larger number of total days of pile driving for 
the sheet pile cofferdam scenario coupled with the fact that vibratory 
pile driving on all of those days will produce the larger Level B 
harassment zone means the anticipated take, by Level B harassment, from 
the sheet pile cofferdam scenario will necessarily be higher and is, 
therefore, carried forward as the more conservative Level B harassment 
assumption. The acoustic ranges to the Level A harassment 
(SEL<INF>cum</INF>) thresholds from pneumatic hammering of the casing 
pipe are estimated to be the following for each hearing group: low 
frequency = 3.87 km, mid frequency = 0.23 km, high frequency = 3.95 km, 
and phocid pinnipeds = 1.29 km. Level A harassment (SPL<INF>pk</INF>) 
thresholds are not expected to be generated by pneumatic hammering. The 
estimated distances to Level A harassment SEL<INF>cum</INF> thresholds 
are larger than the distance to the Level B harassment threshold (920 
m). This is due to the high strike rate of the pneumatic hammer 
resulting in a high number of accumulated strikes per day. Most 
cetacean species are not expected to occur frequently close to this 
nearshore site, and individuals of any species (including seals) are 
not expected to remain within the estimated SEL<INF>cum</INF> threshold 
distances for the entire 3-hour duration of hammering in a day. 
However, based on the Commission's recommendation (see Comments and 
Responses section) and given the (1) relatively frequent occurrence of 
harbor porpoises in Narragansett Bay, particularly at the time of year 
when Revolution Wind will conduct landfall construction (Kenney and 
Vigness-Raposa 2010), (2) the large distance to the Level A harassment 
SEL<INF>cum</INF> threshold isopleth for harbor porpoises (3.95 km), 
and (3) the difficulty visually detecting harbor porpoises 
(particularly with increasing distance from the source), it's possible 
that this species may be exposed to noise levels that rise to the level 
of Level A harassment (PTS). In addition, since publication of the 
proposed rule, Revolution Wind determined that it will be impracticable 
to monitor a 4-km shutdown zone, as described in the proposed rule (87 
FR 79072, December 23, 2022). Based on NOAA shipboard observations of 
harbor porpoises used in habitat-based density modeling conducted by 
Roberts et al. (2016, 2023), the detection probability for harbor 
porpoises drops off substantially in the 750-1000 m range when sea 
states are a Beaufort Sea State of 2 or less. Therefore, Revolution 
concluded that 750 m is the maximum practicable extent within which 
they could effectively monitor for harbor porpoise during casing pipe 
installation and removal. NMFS has adjusted the shutdown zone in this 
final rule to 750 m. Based on these factors and a recommendation from 
the Commission (see Comments and Responses section), NMFS is 
authorizing take of harbor porpoises, by Level A harassment (PTS), 
incidental to pneumatic hammering of casing pipe installation should 
this activity occur. Given (1) that work will occur within Narragansett 
Bay, a habitat that few marine mammal species typically use, (2) the 
short duration of pneumatic hammering, and (3) the implementation of 
mitigation and monitoring measures, Level A harassment of all other 
marine mammal species incidental to pneumatic hammering of casing pipe 
installation is not expected or authorized. In addition, given the 
nature of vibratory pile driving and the small distances to Level A 
harassment thresholds (5-190 m), sheet pile cofferdam installation is 
also not expected to result in Level A harassment. Revolution Wind did 
not request and NMFS is not authorizing any Level A harassment 
incidental to installation of sheet pile cofferdams via vibratory pile 
driving.
    In summary, the Level B harassment zone produced by vibratory pile 
driving of sheet piles (9.74 km) is significantly larger than that 
produced by pneumatic hammering of a casing pipe (0.92 km). 
Additionally, as mentioned previously, the sheet pile cofferdam 
scenario will require up to a total of 56 days of vibratory pile 
driving for installation and removal, while the casing pipe scenario 
will require up to 24 days of vibratory pile driving plus 8 days of 
pneumatic hammering. The larger spatial impact for Level B harassment 
combined with the longer duration of sheet pile cofferdam installation 
will produce a larger amount of Level B harassment; therefore, this 
landfall construction activity was carried forward as the most 
conservative scenario to estimate the amount of Level B harassment.
    JASCO used its MONM-BELLHOP to predict acoustic propagation for 
frequencies between 5 Hz and 25 kHz produced by vibratory pile driven 
installation of the steel sheet piles that will be used to construct 
temporary cofferdams (K[uuml]sel et al., 2022b). Acoustic propagation 
modeling was based on a winter sound speed profile, which was deemed 
both conservative and appropriate for the Project because of the timing 
of landfall construction (Q4 2023-Q1 2024). Additional modeling 
assumptions are included in Table 17.
    Decidecade band SEL levels were obtained from vibratory pile 
driving measurements available in the literature (Illingworth and 
Rodkin, 2017). The Illingworth and Rodkin (2017) measurements are for 
vibratory driving of four 12-in wide connected sheet piles (48 inch/122 
centimeter total width) using an APE Model 300 vibratory hammer (1842.0 
kilonewton (kN) centrifugal force). Illingworth and Rodkin (2017) 
included SEL at 10 m from the pile in the frequency band 5-25,000 Hz. 
The average (from 10 piling measurements) maximum broadband SEL was 
182.7 dB re 1 [micro]Pa\2\[middot]s. For modeling of vibratory driving 
of sheet piles at the landfall construction horizontal directional 
drilling (HDD) location, SEL band levels were corrected for spherical 
spreading (+20 dB, corresponding to 10 m range) (K[uuml]sel et al., 
2021).
    Additional details on the acoustic modeling conducted for the 
Sunrise

[[Page 72617]]

Wind project can be found in the Sunrise Wind Farm Project Underwater 
Noise and Exposure Modeling report available on NMFS' website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind.
[GRAPHIC] [TIFF OMITTED] TR20OC23.020

    Similar to the modeling approach for impact pile driving, distances 
to harassment thresholds are reported as R<INF>95</INF><not-eq> values 
(Table 18). Distances to the Level A harassment threshold 
(SEL<INF>cum</INF>) are relatively small, ranging from 5 m for low-
frequency cetaceans to 190 m for high-frequency cetaceans. The distance 
to the Level B harassment threshold is 9,740 m for all species.
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    Accounting for the effects that nearby land would have on sound 
propagation using geospatial information systems (GIS) (Environmental 
Systems Research Institute, Inc. (ESRI), 2017) results in a reduction 
in the estimated area of 54.1 km\2\ (20.9 mi\2\) potentially being 
ensonified above the 120 dB threshold. As a cautionary approach, this 
54.1 km\2\ (20.9 mi\2\) includes some areas beyond 9.74 km (6.05 mi) 
from the landfall location and reflects the maximum area potentially 
ensonified above threshold levels from construction activities at that 
site, including if a larger vibratory pile driving hammer were to be 
used.
    Regarding how density and occurrence information was applied in 
estimating take for cofferdam installation, the export cable landfall 
construction work will take place near Quonset Point in North 
Kingstown, Rhode Island, which is within Narragansett Bay. However, the 
habitat-based marine mammal densities from Roberts et al. (2023) do not 
include waters within Narragansett Bay. As an alternative, densities 
calculated from the area just outside of Narragansett Bay were used in 
exposure estimation. This is a conservative approach since there have 
been few reported sightings of marine mammals, other than seals, within 
Narragansett Bay (Raposa, 2009).
    To select marine mammal density grid cells from the Roberts et al. 
(2023) data representative of the area just outside of Narragansett 
Bay, a zone representing the ensonified area plus a 5-km buffer from 
the mouth of Narragansett Bay was created in GIS (ESRI, 2017). This 
buffer was then intersected with the density grid cells for each 
individual species to select those near the mouth of

[[Page 72618]]

Narragansett Bay (Figure 8 in Revolution Wind's Updated Density and 
Take Estimation Memo). Since the timing of landfall construction could 
vary somewhat from the planned schedule, the maximum average monthly 
density from January through December for each species was selected 
(Table 19) and used to estimate exposures from landfall construction.
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
Cable Landfall Construction Take Estimation
    Given the short duration of the activity and shallow, coastal 
location, animat exposure modeling was not conducted for cofferdam or 
casing pipe and goal post installation and removal to determine 
potential exposures from vibratory pile driving. Rather, the modeled 
acoustic ranges to Level A harassment (PTS) and Level B harassment 
isopleths were used to calculate the area around the cofferdam 
predicted to be ensonified daily to levels that exceed the thresholds, 
or the Ensonified Area. The Ensonified Area was calculated as the 
following:

Ensonified Area = pi*r\2\,

    where r is the linear acoustic range from the source to the Level A 
harassment and Level B harassment isopleths. Because the distance to 
the Level B harassment threshold for cofferdam installation and removal 
(9,740 m) is larger than the distance for pneumatic hammering of casing 
pipes (920 m), the amount of Level B harassment take authorized 
assuming cofferdam will be installed encompasses any take that may 
occur incidental to installing goal posts or casing pipes.
    To calculate density-based exposures estimates incidental to 
installation of two cofferdams, the average marine mammal densities 
from Table 19 were multiplied by the daily ensonified area (54.1 km\2\) 
for installation of sheet piles. Given that use of the vibratory hammer 
during cofferdam installation and

[[Page 72619]]

removal may occur on up to 56 days, the daily estimated take was 
multiplied by 56 to produce the results shown in Table 20. However, as 
noted above, to be conservative, Revolution Wind has requested take by 
Level B harassment based on the highest exposures predicted among the 
density-based, PSO-based, or average group size-based estimates; the 
authorized take is indicated in column 5 of Table 20. Mysticete whales 
are unlikely to occur in the immediate vicinity of the activity or 
within Narragansett Bay (Raposa, 2009); therefore, Revolution Wind did 
not request and NMFS is not authorizing take of these species. In their 
ITR application, Revolution Wind requested two sperm whale Level B 
harassment takes incidental to landfall construction, which we included 
in the proposed rule. In this final rule, NMFS is not authorizing Level 
B harassment of sperm whales incidental to the specified activity 
because the sperm whale exposure estimate is 0.1 and the species 
exhibits a preference for deep oceanic habitat rather than the shallow 
waters in Narragansett Bay, thus, the probability of take is de 
minimis. Finally, we addressed the following transcription errors 
included in the proposed rule: the proposed take, by Level B 
harassment, should have been 60, not 36, bottlenose dolphins and 1,667, 
not 905, common dolphins.
    As mentioned in the Comments and Responses section, the Commission 
recommended that NMFS authorize Level A harassment (PTS) of harbor 
porpoises incidental to pneumatic hammering of casing pipes, should 
Revolution choose to conduct that activity. Harbor porpoises are one of 
the few marine mammals known to occur regularly in Narragansett Bay 
(e.g., Kenney and Vigness-Raposa, 2010), particularly in the winter 
during which casing pipe installation would occur (Q4 2023--Q1 2024). 
The likely temporal and spatial overlap of harbor purpose occurrence 
with the Level A harassment (PTS) acoustic footprint resulting from 
pneumatic hammering, the size of the Level A harassment zone (PTS) 
(3,950 m), and the species' cryptic nature support authorization of 
Level A harassment. Revolution Wind expects that it will require 8 days 
of pneumatic hammering to install and remove the casing pipes. Because 
Revolution Wind has not specified exactly which 8 days in Q4 2023-Q1 
2024 casing pipe installation would occur, it is possible that they 
would complete this activity in December or January, when harbor 
porpoise densities near the landfall construction site are an order of 
magnitude higher than in the other months in which the species 
consistently utilizes habitat in/near Narragansett Bay (March-May), and 
the potential for acoustic impacts from pneumatic hammering is highest. 
Thus, NMFS conservatively assumed that one group (group size = 2.7; 
Kraus et al., 2016) rounded to the nearest whole number may be taken by 
Level A harassment per day of pneumatic hammering (n=8). Therefore, 
NMFS is authorizing 24 takes, by Level A harassment, of harbor 
porpoises incidental to casing pipe installation (Table 21).
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BILLING CODE 3510-22-C

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 in NMFS (2018) 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. Revolution 
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 that will be 
used during HRG surveys. These included variants of the Dura-spark 
sparker system and various configurations of the GeoMarine Geo-Source 
sparker system. The data provided in Crocker and Fratantonio (2016) 
represent the most applicable data for similar sparker systems with 
comparable operating methods and settings when manufacturer or other 
reliable measurements are not available. Crocker and Fratantonio (2016) 
provide S-Boom measurements using two different power sources (CSP-D700 
and CSP-N). The CSP-D700 power source was used in the 700 joules (J) 
measurements but not in the 1,000 J measurements. The CSP-N source was 
measured for both 700 J and 1,000 J operations but resulted in a lower 
source level; therefore, the single maximum source level value was used 
for both operational levels of the S-Boom.
    Table 22 identifies all the representative survey equipment that 
operates below 180 kHz (i.e., at frequencies that are audible and have 
the potential to disturb marine mammals) that may be used in support of 
planned survey activities and are likely to be detected by marine 
mammals given the source level, frequency, and beamwidth of the 
equipment.
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[[Page 72621]]

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BILLING CODE 3510-22-C
    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 Revolution 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 (SPL<INF>rms</INF>) 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. Revolution Wind 
used NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for

[[Page 72622]]

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 22). The lowest frequency of the source was used when 
calculating the absorption coefficient.
    Results of modeling using the methodology described above indicated 
that, of the HRG equipment planned for use by Revolution Wind that has 
the potential to result in Level B harassment of marine mammals, sound 
produced by the Applied Acoustics sparkers and Applied Acoustics 
triple-plate S-boom will propagate furthest to the Level B harassment 
isopleth (141 m; Table 23). For the purposes of take estimation, it was 
conservatively assumed that sparkers and/or boomers will be the 
dominant acoustic source for all vessel days (although, again, this may 
not always be the case). Thus, the distances to the isopleth 
corresponding to the threshold for Level B harassment for the boomer 
and sparkers (141 m) was used as the basis of take calculations for all 
marine mammals.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR20OC23.026

    To estimate densities for the HRG surveys occurring both within the 
Lease Area and within the RWEC based on Roberts et al. (2023), a 5-km 
(3.11 mi) perimeter was applied around each area (see Figures 10 and 11 
of the Updated Density and Take Estimation Memo). Given this work could 
occur year-round, the annual average density for each species was 
calculated using average monthly densities from January through 
December (Table 24).

[[Page 72623]]

[GRAPHIC] [TIFF OMITTED] TR20OC23.027

BILLING CODE 3510-22-C
    The maximum range (i.e., 141 m) to the Level B harassment threshold 
and the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) were used to calculate the daily ensonified area, 
or zone of influence (ZOI), around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a HRG sound source over a 24-hr period. The ZOI for each 
piece of equipment operating at or below 180 kHz was calculated per the 
following formula:

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

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

    The largest daily ZOI (19.8 km\2\), associated with the use of 
boomers and sparkers, was applied to all planned vessel days.
    Potential Level B harassment density-based exposures were estimated 
by multiplying the average annual density of each species within the 
survey area by the daily ZOI. That product was then multiplied by the 
number of planned vessel days in each sector during the approximately 
1-year construction timeframe (82.1 in RWEC, 165.7 in Lease Area), and 
the product was rounded to the nearest whole number. These results are 
shown in columns 2 (Lease Area) and 3 (RWEC) of Table 25. Similar to 
the approach described above, to be conservative, Revolution Wind has 
requested take by Level B harassment based on the highest exposures 
predicted by the density-based, PSO based, or average group size-based 
estimates, and the authorized take is indicated in column 7 of Table 25 
below.
    As described in the Comments and Responses section, the Commission 
suggested that, given the frequency of common dolphin occurrence in the 
Project Area, NMFS should authorize an increased (relative to the 
amount included in the proposed rule) number of common dolphin takes, 
by Level B harassment for HRG surveys. Common dolphins are regularly 
sighted by PSOs during HRG surveys but, as described previously, only a 
portion of those sighted are actually within the Level B harassment 
zone, as evidenced by PSO monitoring reports for the Project Area 
(e.g., Smultea Environmental Sciences, LLC, 2020; Valencia et al., 
2021; Smultea Environmental Sciences, LLC, 2022). The total number of 
common dolphins sighted by PSOs is highly variable, depending on the 
survey timing (which may align more or less with peaks in expected 
common dolphin occurrence), the number of kilometers surveys, and 
survey conditions, among other factors. As described above, Revolution 
Wind anticipates that they may conduct HRG

[[Page 72624]]

surveys throughout the effective period of the authorization. Given 
common dolphins are one of the most frequently sighted species during 
HRG surveys (as reported by PSOs in the monitoring reports cited here) 
and the number of dolphins sighted is highly variable and dependent on 
multiple influencing factors (e.g., time of year), NMFS concurs with 
the Commission and is conservatively authorizing 4,457 common dolphin 
Level B harassment takes incidental to HRG surveys during the year of 
construction, which is equivalent to the number of common dolphins 
taken by Level B harassment during the HRG surveys the Commission 
refers to in their comment. This is an 89 percent increase from the 
2,354 common dolphin Level B harassment takes proposed for 
authorization.
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[GRAPHIC] [TIFF OMITTED] TR20OC23.028


[[Page 72625]]


BILLING CODE 3510-22-C
    Authorized takes will be by Level B harassment, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor authorized. Consideration of 
the anticipated effectiveness of the mitigation measures (i.e., pre-
start clearance and shutdown measures), discussed in detail below in 
the Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably expected outcome of the survey activity. 
Revolution 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.
    As mentioned previously, HRG surveys will also routinely be carried 
out during the period of time following construction of the RWF and 
RWEC which, for the purposes of exposure modeling, Revolution Wind 
assumed to be 4 years. Revolution Wind estimates that HRG surveys will 
cover 2,117 km within the Lease Area and 1,642 km along the RWEC 
annually. Assuming 70 km are surveyed per day, this amounts to 30.2 
days of survey activity in the Lease Area and 23.5 days of survey 
activity along the RWEC each year, or 214.8 days total for the 4-year 
timeframe following the construction period (assuming all construction 
activities occur in a single year). Density-based take was estimated 
using the same approach outlined above by multiplying the daily ZOI by 
the annual average densities and separately by the number of vessel 
days planned for the RWEC and Lease Area; the results are shown in 
columns 2 and 3, respectively, in Table 26. Using the same approach 
described above, Revolution Wind estimated a conservative amount of 
annual take, by Level B harassment, based on the highest exposures 
predicted by the density-based, PSO-based, or average group size-based 
estimates. The highest predicted exposure value was multiplied by four 
to yield the amount of take Revolution Wind requested and NMFS is 
authorizing, shown in column 8 of Table 26 below. Consistent with the 
method used above to determine the increased number of common dolphin 
Level B harassment takes incidental to HRG surveys during construction, 
NMFS is authorizing 1,094 takes per year (89 percent increase from 579 
per year, as presented in the proposed rule) of common dolphins, by 
Level B harassment, for each of the 4 years following construction 
(4,376 total over 4 years).
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[[Page 72626]]

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BILLING CODE 3510-22-C

Total Authorized Take Across All Activities

    NMFS is authorizing take by Level A and Level B harassment 
incidental to Project activities combined (i.e., impact pile driving to 
install WTG and OSS monopile foundations (assuming 10-dB attenuation), 
vibratory pile driving to install and remove temporary cofferdams and 
goal posts, pneumatic hammering to install and remove temporary casing 
pipes UXO/MEC detonations (assuming 10-dB attenuation), and HRG 
surveys) as shown in Table 27. The number of takes that would occur in 
each year, based on Revolution Wind's current schedule, is provided in 
Table 27. The Year 1 take estimates include 165.7 days of HRG surveys, 
impact installation of WTG and OSS foundations, cofferdam installation/
removal, and mitigated UXO/MEC detonations. Year 2 includes 30.2 days 
of HRG surveys, and potential impact installation of WTG and OSS 
monopile foundations, depending on whether or not delays in the 
schedule for Year 1 occur. Years 3, 4, and 5 each include 30.2 days of 
HRG surveys. Although temporary cofferdam installation/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 1; however, all of the

[[Page 72627]]

takes were allocated to Year 1 as this represents the most likely 
scenario.
    The mitigation and monitoring measures provided in the Mitigation 
and Monitoring and Reporting sections are activity-specific and are 
designed to minimize acoustic exposures to marine mammal species.
    The number of takes that NMFS authorized is considered conservative 
for several reasons, including, but not limited to, the following: 
authorized take numbers are based on the highest number resulting from 
among three take estimate methodologies (density-based exposure, PSO 
data-derived, and group size); authorized take numbers assume all 
foundation piles (n=81) will be installed and all UXO/MECs detonations 
would occur in the month with the highest monthly average density for 
each marine mammal species; authorized Level B harassment take numbers 
for landfall construction assume 56 days of vibratory pile driving for 
cofferdam installation, although the casing pipe and goal post 
alternative would only require 24 days of vibratory pile driving and a 
short period of pneumatic hammering which has shorter distances to the 
Level B harassment isopleth than cofferdam installation, if installed; 
authorized take numbers assume sparkers and/or boomers, which result in 
the largest acoustic footprint, would be the dominant source for all 
HRG surveys days, although this may not be the case; authorized take 
numbers for Level A harassment (PTS) do not fully account for the 
likelihood that marine mammals will avoid a stimulus when possible 
before the individual accumulates enough acoustic energy to potentially 
cause auditory injury, nor do the take numbers fully account for the 
effectiveness of the required mitigation and monitoring measures 
(exception for foundation installation and UXO/MEC detonations, which 
incorporate 10-dB of sound attenuation).
    NMFS also presents the percentage of each marine mammal stock 
estimated to be taken based on the total amount of allowable annual 
take for each species, which is presented in Table 28. Table 27 
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 throughout the 5 years. However, the 5-
year total amount of take for each species, shown in Table 27, and the 
maximum amount of take in any 1 year (Table 28) would not be exceeded. 
Additionally, NMFS has required extensive mitigation and monitoring 
measures, provided in the Mitigation and Monitoring and Reporting 
sections, which are activity-specific and are designed to minimize, to 
the extent practicable, impacts to marine mammal species.
BILLING CODE 3510-22-P

[[Page 72628]]

[GRAPHIC] [TIFF OMITTED] TR20OC23.030


[[Page 72629]]


[GRAPHIC] [TIFF OMITTED] TR20OC23.031

    In making the negligible impact determination and the necessary 
small numbers finding, NMFS assesses the greatest number of authorized 
take of marine mammals that could occur within any 1 year, which in the 
case of this rule is based on the predicted Year 1 for all species. In 
this calculation, the maximum estimated number of Level A harassment 
(PTS) 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 amount of estimated take that could occur in any year. We

[[Page 72630]]

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 28 in any year.
[GRAPHIC] [TIFF OMITTED] TR20OC23.032

BILLING CODE 3510-22-C

[[Page 72631]]

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, 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 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 specified 
activities, and then in the following subsections we describe the 
measures that apply specifically to foundation installation, landfall 
construction, 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 Revolution 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 Revolution 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, 
Revolution Wind is required to instruct all project personnel regarding 
the authority of the marine mammal monitoring team(s). For example, 
training must include that the HRG acoustic equipment operator is 
required to immediately comply with any call for a delay or shut down 
by the Lead PSO, and that 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. Revolution Wind will provide 
documentation of training to NMFS.

North Atlantic Right Whale Awareness Monitoring

    Revolution 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

[[Page 72632]]

right whale presence in the area through ongoing visual and passive 
acoustic monitoring efforts and opportunities (outside of Revolution 
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 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 217.274(b)). 
Revolution Wind will be required to comply with these 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 (11.5 mph) to fulfill 
those responsibilities, while in the specified geographical region.
    While underway, Revolution 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 during all vessel 
operations and slow down, stop their vessel, or alter course (as 
appropriate) to avoid striking any marine mammal. The dedicated visual 
observer on each vessel, equipped with and trained to use 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. All project vessels, 
regardless of size, must immediately reduce speed to 10 kn (11.5 mph) 
or less for at least 24 hours when a North Atlantic right whale is 
sighted at any distance by any project-related personnel or 
acoustically detected by any project-related PAM system. Each 
subsequent observation or acoustic detection in the Project Area will 
trigger an additional 24-hour period. If a North Atlantic right whale 
is reported via any of the monitoring systems within 10 km (6.2 miles 
(mi)) of a transiting vessel(s), that vessel must operate at 10 kn 
(11.5 mph) or less for 24 hours following the reported detection. 
Additionally, in the event that any project-related vessel, regardless 
of size, observes any unidentified large whale within 500 m of an 
underway vessel, the vessel is required to immediately reduce speeds to 
10 kn (11.5 mph) or less until the minimum separation distance is 
established.
    All 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 no other speed 
restrictions are in place, all Project-related vessels (including crew 
transfer vessels) are restricted from traveling over 10 kn (11.5 mph), 
unless traveling in a frequently traveled transit corridor (e.g., crew 
transfer corridor) from port to the Lease Area while Revolution Wind 
conducts real-time PAM to detect large whales, in addition to visual 
monitoring. All Revolution Wind's vessels, regardless of size, must 
immediately reduce speed to 10 kn (11.5 mph) or less for at least 24 
hours when a North Atlantic right whale is sighted at any distance by 
any project-related personnel or acoustically detected by any project-
related PAM system (e.g., in transit corridor). Each subsequent 
observation or acoustic detection in the Project area must trigger an 
additional 24-hour period. If a North Atlantic right whale is reported 
via any of the monitoring systems within 10 kilometers (km; 6.2 miles 
(mi)) of a transiting vessel(s), that vessel must operate at 10 kn 
(11.5 mph) or less for 24 hours following the reported detection. If a 
large whale (other than a North Atlantic right whale) is detected via 
the transit corridor PAM system, all vessels must travel at 10 kn (11.5 
mph) until the whale can be confirmed visually beyond 500 m of the 
vessel or 24 hours has passed.
    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 on-duty PSOs, PAM operator(s), and all vessel captains. Any 
North Atlantic right whale or large whale observation or acoustic 
detection by PSOs or PAM operators must be conveyed to all vessel 
captains. All vessels would be equipped with an AIS and Revolution Wind 
must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS 
Office of Protected Resources prior to initiating in-water activities. 
Revolution Wind is required to submit a NMFS-approved North Atlantic 
Right Whale Vessel Strike Avoidance Plan at least 90 days prior to 
commencement of vessel use.
    Revolution 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., 2015; Martin et al., 2015; Crum et al., 2019).

[[Page 72633]]

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 
Project Area are expected during the months of January through April, 
with an increase in density starting in December. However, North 
Atlantic right whales may be present in the Project Area throughout the 
year, although the numbers of North Atlantic right whales are not 
expected to be as large as those in foraging grounds to the east (south 
of Martha's Vineyard and Nantucket) and north (e.g., Cape Cod Bay, Gulf 
of St. Lawrence) or calving grounds in the southeast U.S. from Cape 
Fear, North Carolina, to below Cape Canaveral, Florida.
    NMFS is requiring seasonal work restrictions to minimize the North 
Atlantic right whales risk of exposure to noise incidental to some 
project activities. These seasonal work restrictions are expected to 
greatly reduce the number of takes of North Atlantic right whales, and 
also afford protection to other marine mammals that are known to use 
the Project Area with greater frequency during winter months, including 
minke whales.
    As described previously, no foundation impact pile driving 
activities will occur January 1 through April 30. A new measure 
included in this final rule requires Revolution Wind to avoid impact 
pile driving to the maximum extent practicable in December; however, 
pile driving may occur in December if it is unavoidable upon approval 
from NMFS. Revolution Wind plans to complete landfall construction from 
Q4 2023 through Q1 2024; however, NMFS is not seasonally restricting 
this activity given its location (nearshore, inside Narragansett Bay) 
and relatively short duration of work (particularly for installation 
and removal of casing pipes), and the minimal expected impacts to 
marine mammals. Detonations will be considered on a case-by-case basis, 
thus Revolution Wind did not specify a particular time of year during 
which they will detonate UXOs/MECs. However, Revolution Wind will be 
restricted from detonating UXO/MECs December 1 through April 30 to 
reduce impacts to North Atlantic right whales during peak occurrence 
periods. Seasonal restrictions do not apply to HRG surveys; however, 
Revolution Wind will only survey a predetermined number of survey days 
each year (Year 1 = 218.7; Years 2-5 = 53.7/year or 214.8 total).
    NMFS is also requiring temporal restrictions for some activities. 
Within any 24-hour period, Revolution Wind is limited to installing up 
to three monopile foundations. Revolution Wind had requested to 
initiate pile driving during nighttime when detection of marine mammals 
is visually challenging. Since the publication of the proposed rule, 
Revolution Wind has continued discussions with NMFS and BOEM regarding 
field trials they have been performing to demonstrate 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 20, 2023, Revolution Wind submitted an AMP for 
Nighttime Pile Driving outlining nighttime monitoring protocols and 
equipment. We reviewed their AMP and, after further discussions and 
revisions based on our comments back to Revolution Wind, Revolution 
Wind submitted a final draft AMP on August 4, 2023. NMFS will review 
the AMP to determine sufficiency. Should NMFS approve the AMP, 
nighttime pile driving may occur given Revolution Wind adherence to the 
AMP and additional mitigation and monitoring measures prescribed by 
NMFS.
    Any and all vibratory pile driving associated with cofferdams and 
goal post installation and removal must only occur during daylight 
hours. UXO/MEC detonation will be limited to daylight hours only to 
ensure PSOs can most effectively carry out visual clearance to the 
farthest extent of the clearance zone prior to detonation, should they 
need to detonate a UXO/MEC of the largest charge weight. 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

    Revolution Wind is required to employ 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. 
Revolution 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 less than or equal to those modeled assuming 10-dB of 
attenuation. Should the research and development phase of newer systems 
demonstrate effectiveness, as part of adaptive management, Revolution 
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

[[Page 72634]]

isopleths corresponding to those modeled assuming 10-dB sound 
attenuation, pending results of Sound Field Verification (SFV; see 
Sound Field Verification section below and Sec.  217.274(c)(14)).
    Noise abatement systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be 
effective within their targeted frequency ranges (e.g., 100-800 Hz), 
and when used in conjunction with a bubble curtain appear to create the 
greatest attenuation. The literature presents a wide array of observed 
attenuation results for bubble curtains. The variability in attenuation 
levels is the result of variation in design as well as differences in 
site conditions and difficulty in properly installing and operating in-
water attenuation devices.
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6-m steel monopiles in the North Sea. During installation 
of monopiles (consisting of approximately 8-m in diameter) for more 
than 150 WTGs in comparable water depths (>25 m) and conditions in 
Europe indicate that attenuation of 10 dB is readily achieved 
(Bellmann, 2019; Bellmann et al., 2020) using single BBCs for noise 
attenuation. If a double big bubble curtain is used (noting a single 
bubble curtain is not allowed), Revolution 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 Revolution 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 
Revolution Wind uses a noise mitigation device in addition to a double 
big bubble curtain, similar quality control measures are required.
    Revolution 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 systems are not required during landfall 
construction activities and HRG surveys. Although NAS is not 
practicable to implement during landfall construction due to the 
physical nature of linear sheet piles and angled pipe piles, there is a 
low risk for impacts to marine mammals due to the short work duration 
and lower noise levels produced during the activities. Regarding HRG 
surveys, NAS cannot practicably be employed around a moving survey 
ship, but Revolution 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 within the PAM 
monitoring zone of a North Atlantic right whale will trigger a delay to 
commencing pile driving and shutdown.
    Prior to the start of certain specified activities (i.e., 
foundation installation, landfall construction, UXO/MEC detonations, 
HRG surveys), Revolution Wind must ensure designated areas (i.e., 
clearance zones, Tables 29-33) 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 and acoustically 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. For foundation installation, the minimum visibility 
zone must extend 2,300 m from the pile May 1 through November 30 and 
4,400 m during December (Table 29). These values correspond to the 
seasonally-specific modeled maximum ER<INF>95</INF><not-eq> distances 
to the Level A harassment isopleths among all low-frequency cetaceans 
(excluding humpback whales), rounded up to the nearest hundred, 
assuming three monopiles are driven in a day and 10-dB attenuation.
    For vibratory pile driving for cofferdam or goal post installation,

[[Page 72635]]

pneumatic hammering for casing pipe installation, and HRG surveys, 
monitoring must be conducted for 30 minutes prior to initiating 
activities and the clearance zones (Tables 30, 31, and 33) 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, Revolution 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 activity cessation. For impact 
pile driving, the shutdown requirement may be waived if it is not 
practicable due to imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals or the lead engineer determines there is 
pile refusal or pile instability. In situations when shutdown is called 
for during impact pile driving but Revolution 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. Revolution Wind must document and report to NMFS all 
cases where the emergency exemption is taken. Because UXO/MEC 
detonations are instantaneous, no shutdown is possible; therefore, 
there are clearance zones but no shutdown zones for UXO/MEC detonations 
(Table 32).
    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 Tables 29 through 33. For foundation installation and UXO/MEC 
detonation, Revolution 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.
BILLING CODE 3510-22-P

[[Page 72636]]

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[[Page 72637]]


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[[Page 72638]]


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[[Page 72639]]


    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, 
Revolution Wind has demonstrated that they can reliably identify charge 
weights in the field charge, which will allow for implementation of 
weight-specific mitigative zones. Because of this, Revolution Wind is 
required to implement the ALARP process, as described in the UXO/MEC 
Charge Weight Memo. This process requires Revolution Wind to undertake 
``lift-and-shift'' (i.e., physical removal) and then lead up to in situ 
disposal, as necessary, which could include low-order (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. 
Revolution Wind will follow a Risk Management Framework designed to 
align with the ALARP principle, which includes historical 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); there is a high level of certainty that charge 
weights and appropriate removal approaches can be implemented in the 
field. Furthermore, we are confident 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-revolution-wind-llc-construction-revolution-wind-energy.
    In following this charge weight-specific approach, Revolution Wind 
is required to clear the relevant zones that apply to detonation of a 
specific charge weight, as specified in Table 32. 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 injury.

[[Page 72640]]

[GRAPHIC] [TIFF OMITTED] TR20OC23.036

    Revolution Wind must establish clearance and shutdown zones around 
HRG survey equipment based upon the radial distance (Table 33) from the 
acoustic source rather than the vessel itself and monitor Level B 
harassment zones specific to equipment type (i.e., boomers, sparkers, 
and CHIRP sub-bottom profilers). Prior to initiating HRG

[[Page 72641]]

survey activities, Revolution Wind must implement a 30-minute pre-start 
clearance period, during which the entire clearance zone must be 
visible. If an HRG source is active and a marine mammal is observed 
within or entering a relevant shutdown zone (as described above), an 
immediate shutdown of the HRG survey equipment is required.
[GRAPHIC] [TIFF OMITTED] TR20OC23.037

BILLING CODE 3510-22-C

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. Revolution 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 Revolution 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 impact 
pile driving and use of HRG equipment and at any time following a 
cessation of activity of 30 minutes or longer. Prior to soft-start or 
ramp-up beginning, the operator must receive confirmation from the PSO 
that the clearance zone is clear of any marine mammals.

Fishery Monitoring Surveys

    While the likelihood of Revolution Wind's fishery monitoring 
surveys

[[Page 72642]]

impacting marine mammals is minimal, NMFS requires Revolution 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.
    <bullet> Monitoring and reporting requirements prescribed by NMFS 
should contribute to improved understanding of one or more of the 
following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> 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);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
    <bullet> 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 must be conducted during impact pile driving and UXO/MEC 
detonation. Revolution must verify that distances to harassment 
isopleths are not larger than those modeled assuming 10-dB attenuation 
by performing SFV during impact pile driving and UXO/MEC detonations. 
Visual observations and acoustic detections would be used to support 
the activity-specific mitigation measures (e.g., clearance zones). To 
increase understanding of the impacts of the activity on marine 
mammals, PSOs must record all incidents of marine mammal occurrence at 
any distance from the piling locations, during active 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

    Revolution 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, 
HRG surveys, and pneumatic hammering. 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 that Revolution Wind conduct PAM using 
trained, experienced 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). As there are no ``perfect fit'' 
single-

[[Page 72643]]

optimal-array configurations, these set-ups would need to be considered 
on a case-by-case basis.
    NMFS does not formally administer any PSO or PAM operator training 
program or endorse specific providers but will approve PSOs and PAM 
operators that have successfully completed courses that meet the 
curriculum and training 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 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. Revolution 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 Revolution Wind at least 30 days prior to the start of 
the project. Should Revolution Wind require additional PSOs or PAM 
operators throughout the project, Revolution 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 each UXO/MEC detonation 
event; at least two PSOs must be on duty during cable landfall 
construction (vibratory pile installation and removal of sheet piles or 
pneumatic hammering of casing pipes); 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.
    Revolution 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 monitoring and PAM protocols and equipment 
proposed for us. More specifically, the PAM Plan must include a 
description of all proposed PAM equipment, address how the proposed PAM 
must follow standardized measurement, processing methods, reporting 
metrics, and metadata standards for offshore wind as described in 
``NOAA and BOEM Minimum Recommendations for Use of Passive Acoustic 
Listening Systems in Offshore Wind Energy Development Monitoring and 
Mitigation Programs'' (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 Sec.  217.275(a) at the 
end of this rulemaking. Additional information can be found in 
Revolution 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-revolution-wind-llc-construction-revolution-wind-energy.

Sound Field Verification

    Revolution Wind must conduct SFV measurements during all UXO/MEC 
detonations and for all impact pile-driving activities associated with 
the installation of, at minimum, the first three monopile foundations. 
SFV measurements must continue until at least three consecutive piles 
demonstrate distances to thresholds 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). 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 
Revolution Wind is required to make adjustments quickly (e.g., ensure 
bubble curtain hose maintenance, check bubble curtain air pressure 
supply, add additional sound attenuation, etc.) to ensure marine 
mammals are not

[[Page 72644]]

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, Revolution Wind 
would provide a report to NMFS Office of Protected Resources that 
demonstrates that all required training for Revolution 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 
Revolution 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. Revolution 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, 
Revolution 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 pile-driving activities, the start and stop of associated 
observation periods by PSOs, details on the deployment of PSOs, a 
record of all detections of marine mammals (acoustic and visual), any 
mitigation actions (or if mitigation actions could not be taken, 
provide reasons why), and details on the noise abatement system(s) 
(e.g., system type, distance deployed from the pile, bubble rate, 
etc.). Weekly reports will be due on Wednesday for the previous week 
(Sunday-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--Revolution 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--Revolution 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--Revolution 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-reporting-system-templates). Calling the hotline is 
not necessary when reporting PAM detections via the template.
    If a sighting of a stranded, entangled, injured, or dead marine 
mammal occurs, the sighting would be reported to NMFS Office of 
Protected Resources, the NMFS Greater Atlantic Stranding Coordinator 
for the New England/Mid-Atlantic area (866-755-6622), and the U.S. 
Coast Guard within 24 hours. If the injury or death was caused by a 
project activity, Revolution 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. Revolution 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, Revolution Wind must immediately report 
the strike incident. If the strike occurs in the Greater Atlantic 
region (Maine to Virginia), Revolution Wind must call the NMFS Greater 
Atlantic Stranding Hotline. Separately, Revolution Wind must also 
immediately report the incident to NMFS Office of Protected Resources 
and GARFO. Revolution 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. Revolution Wind may not resume their activities 
until notified by NMFS.
    In the event of any lost gear associated with the fishery surveys, 
Revolution 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--Revolution 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 
Revolution Wind's construction activities contain an adaptive 
management component. Our understanding of the effects of offshore

[[Page 72645]]

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 Revolution 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, 
Revolution 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., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, Level A harassment and Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    In the Estimated Take section in this preamble, we discuss the 
estimated maximum number of takes by Level A harassment and Level B 
harassment that could occur incidental to Revolution 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 Revolution Wind's specified activities that may 
result in take of marine mammals and an estimated schedule for 
conducting those activities. Revolution 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 27 and 28, 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 the project's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, we subdivide into 
more detailed discussions for mysticetes, odontocetes, and pinnipeds 
which have broad life history traits that support an overarching 
discussion of some factors considered within the analysis for those 
groups (e.g., habitat-use patterns, high-level differences in feeding 
strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate (e.g., North Atlantic right whales given their 
population status). Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of the project 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 will occur largely within the first year 
of the effective period of these regulations (2023-2024). 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 27 and 28).
    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 number of takes by harassment Revolution Wind 
requested and NMFS is authorizing is based on exposure models that 
consider the outputs of acoustic source and

[[Page 72646]]

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 for impact pile 
driving and UXO/MEC detonations) or avoidance response. The number of 
takes requested and authorized also reflects careful consideration of 
other data (e.g., group size data) and for Level A harassment of some 
large whales, the consideration of mitigation measures. For all 
species, the number of take to be 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 Revolution Wind's activities 
is dependent upon a number of contextual factors including, but not 
limited to, sound source frequencies, whether the sound source is 
moving towards the animal, hearing ranges of marine mammals, behavioral 
state at time of exposure, status of individual exposed (e.g., 
reproductive status, age class, health) and an individual's experience 
with similar sound sources. Southall et al. (2021), Ellison et al. 
(2012) and Moore and Barlow (2013), among others, emphasize the 
importance of context (e.g., behavioral state of the animals, distance 
from the sound source) in evaluating behavioral responses of marine 
mammals to acoustic sources. Harassment of marine mammals may result in 
behavioral modifications (e.g., avoidance, temporary cessation of 
foraging or communicating, changes in respiration or group dynamics, 
masking) or may result in auditory impacts such as hearing loss. In 
addition, some of the lower level physiological stress responses (e.g., 
change in respiration, change in heart rate) discussed previously would 
likely co-occur with the behavioral modifications, although these 
physiological responses are more difficult to detect and fewer data 
exist relating these responses to specific received levels of sound. 
Takes by Level B harassment, then, may have a stress-related 
physiological component as well; however, we would not expect 
Revolution Wind's activities to produce conditions of long-term and 
continuous exposure to noise leading to long-term physiological stress 
responses in marine mammals that could affect reproduction or survival.
    In the range of behavioral effects that might be expected to be 
part of a response that qualifies as an instance of Level B harassment 
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within 1 day), the less severe end might include 
exposure to comparatively lower levels of a sound, at a greater 
distance from the animal, for a few or several minutes. A less severe 
exposure of this nature could result in a behavioral response such as 
avoiding an area that an animal would otherwise have chosen to move 
through or feed in for some amount of time, or breaking off one or a 
few feeding bouts. More severe effects could occur if an animal gets 
close enough to the source to receive a comparatively higher level, is 
exposed continuously to one source for a longer time, or is exposed 
intermittently to different sources throughout a day. Such effects 
might result in an animal having a more severe flight response, and 
leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects are 
expected to occur infrequently.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than one day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008; 
Barlow et al., 2020; Henderson et al., 2016; Schorr et al., 2014). It 
is important to note the water depth in the Project Area is shallow 
(ranging from 2 to 40 m in the RWEC and 24 to 50 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 
Revolution 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 Revolution 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, 
pneumatic hammering, 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 13 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

[[Page 72647]]

these reasons, impacts are minimized, to the extent practicable, 
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 soft-start, marine mammals are expected to move away 
from a sound source that is disturbing prior to becoming exposed to 
very loud noise levels. The requirement to couple visual monitoring and 
PAM before and during all foundation installation 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 Revolution 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, pneumatic hammering, 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 anticipate the potential for TTS is higher 
in low-frequency cetaceans (i.e., mysticetes) than other marine mammal 
hearing groups and would be more likely to occur in frequency bands in 
which they communicate. However, we would not expect the TTS to span 
the entire communication or hearing range of any species given the 
frequencies produced by these activities do not span entire hearing 
ranges for any particular species. Additionally, though the frequency 
range of TTS that marine mammals might sustain would overlap with some 
of the frequency ranges of their vocalizations, the frequency range of 
TTS from Revolution 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 mitigation measures 
required by NMFS further reduce the potential for TTS in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(see to 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 detonations 
also have 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 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 27). 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

[[Page 72648]]

detonation (i.e., the low-frequency region below 2 kHz) (Cody and 
Johnstone, 1981; McFadden, 1986; Finneran, 2015), not severe hearing 
impairment. If hearing impairment occurs from either impact pile 
driving or UXO/MEC detonation, it is most likely that the affected 
animal would lose a few decibels in its hearing sensitivity, which in 
most cases is not likely to meaningfully affect its ability to forage 
and communicate with conspecifics. Revolution Wind estimates 13 UXO/
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 UXO/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 pile 
driving dominant frequencies), because low frequency signals propagate 
significantly further than higher frequencies and because they are more 
likely to overlap both the narrower low frequency calls of mysticetes, 
as well as many non-communication cues related to fish and invertebrate 
prey, and geologic sounds that inform navigation. However, the area in 
which masking would occur for all marine mammal species and stocks 
(e.g., predominantly in the vicinity of the foundation pile being 
driven) is small relative to the extent of habitat used by each species 
and stock. In summary, the nature of Revolution 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

    Impact pile driving of monopile foundations and UXO/MEC detonation 
may result in fish and invertebrate mortality or injury very close to 
the source, and all of Revolution 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 13 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; however, due to the relatively small 
area of the habitat that may be affected at any given time (e.g., 
around a pile being driven), the impacts to marine mammal habitat are 
not expected to cause significant or long-term negative consequences.
    Cable presence is not anticipated to impact marine mammal habitat 
as these would be buried, and any electromagnetic fields emanating from 
the cables are not anticipated to result in consequences that would 
impact marine mammals prey to the extent they would be unavailable for 
consumption.
    The 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 81 foundations (79 WTGs and 2 
OSSs) in the Lease Area, which will gradually become operational 
following construction completion, likely in Year 2 of the rule (2024-
2025). While there are likely to be oceanographic impacts from the 
presence of the Revolution 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 are 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 these 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 Revolution Wind 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 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

[[Page 72649]]

biomass of plankton is not an anticipated outcome of operating the 
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 to the extent practicable 
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 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 for impact pile driving of foundations; (7) use of noise 
attenuation technology; (8) maintaining situational awareness of marine 
mammal presence through the requirement that any marine mammal 
sighting(s) by Revolution 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, casing pipe, and goal post installation and 
removal, we are requiring five overarching mitigation measures: (1) 
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 
Revolution Wind personnel must be reported to PSOs. Lastly, for HRG 
surveys, we are requiring six measures: (1) measures specifically for 
Vessel Strike Avoidance; (2) required use of one PSO during daytime 
operations and two PSOs utilizing specialized night-vision technologies 
during nighttime operations for 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 Revolution Wind personnel must be reported to PSOs.
    NMFS prescribes mitigation measures based on the following 
rationale. For activities with large harassment isopleths, Revolution 
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 
(Revolution Wind will use the minimum amount of hammer energy to 
install piles). Similarly, ramp-up during HRG surveys will allow 
animals to move away and avoid the acoustic sources before they reach 
their maximum energy level (Revolution Wind will use the lowest energy 
level practicable to conduct survey activities). 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, casing pipe, or 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 casing pipe, or 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 low-frequency hearing group.
    Behavioral data on mysticete reactions to pile driving noise are 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS in some 
cases.
    Mysticetes encountered in the Project Area are expected to be 
migrating through and/or 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 
primary feeding habitats (e.g., Cape Cod Bay, Great South Channel, and 
Gulf of St. Lawrence). While we have acknowledged above that mortality, 
hearing impairment, or displacement of mysticete prey species may 
result locally from impact pile driving and UXO/MEC detonations, given 
the very short duration of and broad availability of prey species in 
the area and the availability of alternative suitable foraging habitat 
for the mysticete species most likely to be affected, any impacts on 
mysticete foraging are expected to be minor. Whales temporarily 
displaced from the Project

[[Page 72650]]

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, including to 
the east near Nantucket Shoals. In addition, any displacement of whales 
or interruption of foraging bouts would be expected to be relatively 
temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. For mysticetes, where relatively low numbers 
of species-specific take by Level B harassment are predicted (compared 
to the abundance of each mysticete species or stock; see Table 28) 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 and is 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, 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 Revolution Wind has identified. 
Species-specific analysis regarding potential for repeated exposures 
and impacts is provided below.
    Humpback whales, minke whales, fin whales and sei whales are the 
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 
pile driving noise is concentrated (i.e., only a small subset of their 
expected hearing range) and would not be expected to impact 
reproductive success or survival.
North Atlantic Right Whale
    North Atlantic right whales are listed as endangered under the ESA 
and as both depleted and strategic 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 56 
takes, by Level B harassment, over the 5-year period, with a maximum 
annual allowable take of 44 (equating to approximately 13 percent of 
the stock abundance, if each take were considered to be of a different 
individual), with far lower numbers expected in the years following 
foundation installation (e.g., years when only HRG surveys would be 
occurring).
    Southern New England, including the Project Area, is part of a 
known migratory corridor for North Atlantic right whales and may be a 
stopover site for migrating North Atlantic right whales moving to or 
from southeastern calving grounds and northern foraging grounds. 
However, North Atlantic right whales range outside of the Project Area 
for their main feeding, breeding, and calving activities. Additional 
qualitative observations in southern New England include animals 
feeding and socializing (Quintana-Rizzo et al., 2021). North Atlantic 
right whales are primarily concentrated in the northeastern and 
southeastern sections of the Massachusetts Wind Energy Area (MA WEA) 
(i.e., east of the Project Area) during the summer (June-August) and 
winter (December-February) while distribution likely shifts to the 
west, closer to the Project Area, into the Rhode Island/Massachusetts 
Wind Energy Area (RI/MA WEA) in the spring (March-May) (Quintana-Rizzo 
et al., 2021). Approximately 23 percent of the right whale population 
is present in southern New England from December through May, and the 
mean residence time has tripled to an average of 13 days during these 
months (Quintana-Rizzo et al., 2021).
    In general, North Atlantic right whales in the Project Area are 
expected to be engaging in migratory and/or feeding behavior. Migrating 
whales would typically be moving through the Project Area, rather than 
lingering for extended periods of time; however, foraging whales may 
remain in the Project Area, with an average residence time of 13 days 
between December and May (Quintana-Rizzo et al., 2021). It is important 
to note that the activities that would occur from December through 
April that may impact North Atlantic right whales using the habitat for 
foraging or migration would be primarily HRG surveys, which are not 
expected to result in very high received levels given the rapid 
transmission loss resulting in the small (less than 150 m) Level B 
harassment zone. 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 of the Proposed Rule, North Atlantic right whales are 
presently experiencing an ongoing UME (beginning in June 2017). 
Preliminary findings support human interactions, specifically vessel 
strikes and entanglements, as the cause of death for the majority of 
North Atlantic right whales. Given the current status of the North 
Atlantic right whale, the loss of even one individual could 
significantly impact the population. No mortality, serious injury, or 
injury of North Atlantic right whales as a result of the project is 
expected or authorized. Any disturbance to North Atlantic right whales 
due to Revolution 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 is 
limited to up to 79 days assuming Revolution Wind is only able to 
install one foundation per day over a maximum of 1 year, (although it 
will likely be less as Revolution Wind anticipates being able to 
install more than one pile per day throughout the construction period), 
during times when, based on the best available scientific data, North 
Atlantic right whales are less frequently encountered

[[Page 72651]]

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 migration and foraging for 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 
many of these exposures are generally expected to occur to different 
individual right whales migrating through (i.e., many individuals would 
not be impacted on more than one day in a year), with some subset 
potentially being exposed on no more than a few days within the year, 
they are unlikely to result in energetic consequences that could affect 
reproduction or survival of any individuals.
    Overall, NMFS expects that any 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 migrate, 
forage, or socialize in the Project Area but are not expected to remain 
in this habitat for extensive durations relative to core foraging 
habitats to the east, south of Nantucket and Martha's Vineyard, Cape 
Cod Bay, or the Great South Channel (Quintana-Rizzo et al., 2021). Any 
temporarily displaced animals would be able to return to or continue to 
travel through the Project Area and subsequently utilize this habitat 
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, pneumatic hammering) 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. 
TTS is another potential form of Level B harassment that could result 
in brief periods of slightly reduced hearing sensitivity affecting 
behavioral patterns by making it more difficult to hear or interpret 
acoustic cues within the frequency range (and slightly above) of sound 
produced during impact pile driving; however, any TTS would likely be 
of low amount, limited duration, and limited to frequencies where most 
construction noise is centered (below 2 kHz). NMFS expects that right 
whale hearing sensitivity would return to pre-exposure levels shortly 
after migrating through the area or moving away from the sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section 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, 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, 
Revolution 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 Specific 
Geographic Region section in the preamble of this rule, Revolution 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 339 km\2\ for OCS-A-0486 versus the size of the full 
North Atlantic right whale migratory BIA, 269,448 km\2\). Because of 
this, the overall North Atlantic right whale migration is not expected 
to be impacted by the proposed activities. Although North Atlantic 
right whales forage to some degree in the Project Area, there are no 
known 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. 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

[[Page 72652]]

primary foraging grounds (e.g., Cape Cod Bay). UXO/MEC detonations 
would also be restricted from December 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 or acoustically 
detected at any distance within the PAM monitoring zone, unless a 
shutdown is not feasible due to risk of injury or loss of life. 
Shutdown may occur anywhere if North Atlantic right whales are seen 
within or beyond the Level B harassment zone, further minimizing the 
duration and intensity of exposure. NMFS anticipates that if North 
Atlantic right whales go undetected and they are exposed to foundation 
installation 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 soft-start for impact pile driving would provide an opportunity for 
whales to move away from the source if they are undetected, reducing 
received levels. The UXO/MEC detonations mitigation measures described 
above would further reduce the potential to be exposed to high received 
levels.
    For HRG surveys, the maximum distance to the Level B harassment 
threshold is 141 m. The estimated take by Level B harassment associated 
with HRG surveys is to account for any potential exposures of North 
Atlantic right whales to active acoustic sources should there be a 
delay shutting it down (if called for). However, the authorized Level B 
harassment takes do not account for mitigation and monitoring, and 
because of the short maximum distance to the Level B harassment 
threshold, the requirement that vessels maintain a distance of 500 m 
from any North Atlantic right whales, the fact whales are unlikely to 
remain in close proximity to an HRG survey vessel for any length of 
time, and that the acoustic source would be shut down if a North 
Atlantic right whale is observed within 500 m of the source, any 
exposure to noise levels above the harassment threshold (if any) would 
be very brief. To further minimize exposures, ramp-up of sub-bottom 
profilers must be delayed during the clearance period if PSOs detect a 
North Atlantic right whale (or any other ESA-listed species) within 500 
m of the acoustic source. With implementation of the mitigation 
requirements, take by Level A harassment is not anticipated 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 number 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 whales is anticipated or authorized. 
Extensive North Atlantic right whale-specific mitigation measures 
(beyond the robust suite required for all species) are expected to 
further minimize the amount and severity of Level B harassment. Given 
the documented habitat use within the Project Area, many of the 
individuals predicted to be taken (including no more than 56 instances 
of take, by Level B harassment) over the course of the 5-year rule 
(with an annual maximum of no more than 44) would be impacted on only 1 
or 2 days in a year, although it is possible that repeated exposures 
beyond this may occur should North Atlantic right whales briefly use 
the Project Area as a `stopover' site and stay or swim in and out of 
the areas with pile driving for more than day. Further, any impacts to 
North Atlantic right whales are expected to be in the form of lower 
level behavioral disturbance.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Revolution 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 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 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 seven takes, by Level B harassment, over 
the 5-year period. The maximum annual allowable take by Level B 
harassment is three, which equates to approximately 0.73 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

[[Page 72653]]

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, Revolution 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 52 takes, by harassment only, over the 5 
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is 4 and 40, respectively (combined, this 
annual take (n=44) equates to approximately 0.65 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 project overlaps a small portion of a 
fin whale feeding BIA (2,933 km\2\) in the months the project will 
occur (March-October) and that southern New England is generally 
considered a feeding area, it is likely that some subset of the 
individual whales exposed could be taken several times annually
    Level B harassment is expected to be in the form of behavioral 
disturbance, primarily resulting in avoidance of the Project Area where 
foundation installation is occurring and some low-level TTS and masking 
that may limit the detection of acoustic cues for relatively brief 
periods of time. Any potential PTS would be minor (limited to a few dB) 
and any TTS would be of short duration and concentrated at half or one 
octave above the frequency band of pile driving noise (most sound is 
below 2 kHz) which does not include the full predicted hearing range of 
fin whales.
    Fin whales are present in the waters off of New England year-round 
and are one of the most frequently observed large whales and cetaceans 
in continental shelf waters, principally from Cape Hatteras, North 
Carolina 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). In the Project Area, fin whales densities are highest in the 
winter and summer months (Roberts et al., 2023) though detections do 
occur in spring and fall (Watkins et al., 1987; Clark and Gagnon, 2002; 
Geo-Marine, 2010; Morano et al., 2012). However, fin whales feed more 
extensively in waters in the Great South Channel north to the Gulf 
Maine into the Gulf of St. Lawrence, areas north and east of the 
Project Area (Hayes et al., 2023).
    As described previously, the Project Area overlaps approximately 11 
percent of a small fin whale feeding BIA (2,933 km\2\) east of Montauk 
Point, New York (Figure 2.3 in LaBrecque et al., 2015) that is active 
from March to October. Foundation installations and UXO/MEC detonations 
have seasonal work restrictions such that the temporal overlap between 
these project activities and the active BIA timeframe would exclude the 
months of March and April. A separate larger year-round feeding BIA 
(18,015 km\2\) located to the east in the southern Gulf of Maine does 
not overlap with the Project Area and would thus not be impacted by 
project activities. We anticipate that if foraging is occurring in the 
Project Area and foraging whales are exposed to noise levels of 
sufficient strength, they would avoid the Project Area and move into 
the remaining 89 percent of the small feeding BIA to continue foraging 
without substantial energy expenditure or, depending on the time of 
year, travel to the larger year-round feeding BIA.
    Given the documented habitat use within the area, some of the 
individuals taken would likely be exposed on multiple days. However, 
low level impacts are generally expected from any fin whale exposure. 
Given the magnitude and severity of the impacts discussed above 
(including no more than 52 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 4 and 40, respectively), and in consideration of the 
required mitigation and other information presented, Revolution 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 Distinct Population Segments (DPS) of humpback 
whales is not listed as threatened or endangered under the ESA but the 
Gulf of Maine stock, which includes individuals from the West Indies 
DPS, is considered strategic under the MMPA. However, as described in 
the Description of Marine Mammals in the Specific Geographic Region 
section of this preamble to the rule, 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 106 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is 9 and 77, respectively (combined, this 
maximum annual take (n=86) equates to approximately 6.16 percent of the 
stock abundance, if each take were considered to be of a different 
individual), with far lower numbers than that expected in the years 
without foundation installation (e.g., years when only HRG surveys 
would be occurring). Given that feeding is considered the principal 
activity of humpback whales in southern New England waters, it is 
likely that some subset of the individual

[[Page 72654]]

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 (n=9) of 
humpback whales. The maximum amount of authorized annual take by Level 
B harassment is highest for impact pile driving (n=77; WTG plus OSS 
foundations).
    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 in a feeding BIA in the Gulf of 
Maine/Stellwagen Bank/Great South Channel, but has been documented off 
the coast of southern New England and as far south as Virginia (Swingle 
et al., 2006). Foraging animals 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 consist 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 106 takes over the course of the 5-year rule, 
and a maximum annual allowable take by Level A harassment and Level B 
harassment, of 9 and 77 respectively), and in consideration of the 
required mitigation measures and other information presented, 
Revolution 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 Specific Geographic Region section of this preamble, 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 21 takes by Level A harassment and 320 
takes by Level B harassment over the 5-year period. The maximum annual 
allowable take by Level A harassment and Level B harassment is 21 and 
304, respectively (combined, this annual take (n=325) equates to 
approximately 1.48 percent of the stock abundance, if each take were 
considered to be of a different individual), with far lower numbers 
than that expected in the years without foundation installation (e.g., 
years when only HRG surveys would be occurring). As described in the 
Description of Marine Mammals in the Specific Geographic Region 
section, 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). Spring 
through fall are times of relatively widespread and common acoustic 
occurrence on the continental shelf. From September through April, 
minke whales are frequently detected in deep-ocean waters throughout 
most of the western North Atlantic (Clark and Gagnon, 2002; Risch et 
al., 2014; Hayes et al., 2023). Because minke whales are migratory and 
their known feeding areas are north and east of the Project Area, 
including a feeding BIA in the southwestern Gulf of Maine and George's 
Bank, they would be more likely to be transiting 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 previously detailed in the Description of Marine Mammals in the 
Specific Geographic Region section, there is a UME for minke whales 
along the Atlantic coast, from Maine through South Carolina, with the 
highest number of deaths in Massachusetts, Maine, and New York. 
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 by harassment 
authorized through this action is not expected to exacerbate the UME.
    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 341 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 21 and 304, respectively), and in consideration of the 
required mitigation and other information presented, Revolution 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 31 takes by harassment only over the 5-
year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, is 5 and 18, respectively (combined, this 
annual take (n=23) equates to approximately 0.37 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 
Specific Geographic Region section of this preamble, most of the sei 
whale distribution is concentrated in Canadian waters and seasonally in 
northerly U.S. waters, although they are uncommonly observed in the 
waters off of Rhode

[[Page 72655]]

Island. 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 Level B 
harassment, we anticipate impacts to be limited to low-level, temporary 
behavioral responses with avoidance and potential masking impacts in 
the vicinity of the WTG 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 31 takes of the course of the 5-year rule, and 
a maximum annual allowable take by Level A harassment and Level B 
harassment, of 5 and 18, respectively), and in consideration of the 
required mitigation and other information presented, Revolution 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.
    The authorized takes of odontocetes are incidental to all specified 
activities. No serious injury or mortality is anticipated or 
authorized. We anticipate that, given ranges of individuals (i.e., that 
some individuals remain within a small area for some period of time) 
and non-migratory nature of some odontocetes in general (especially as 
compared to mysticetes), these takes are more likely to represent 
multiple exposures of a smaller number of individuals than is the case 
for mysticetes, though some takes may also represent one-time exposures 
to an individual. Foundation installation is likely to disturb 
odontocetes to the greatest extent compared to 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 planned 
activity in terms of response severity, falls within a portion of the 
frequency range of most odontocete vocalizations. However, odontocete 
vocalizations span a much wider range than the low frequency 
construction activities planned for the project. As described above, 
recent studies suggest odontocetes have a mechanism to self-mitigate 
(i.e., reduce hearing sensitivity) the impacts of noise exposure, which 
could potentially reduce TTS impacts. Any masking or TTS is anticipated 
to be limited and would typically only interfere with communication 
within a portion of an odontocete's range and as discussed earlier, the 
effects would only be expected to be of a short duration and for TTS, a 
relatively small degree.
    Furthermore, odontocete echolocation occurs predominantly at 
frequencies significantly higher than low frequency construction 
activities. Therefore, there is little likelihood that threshold shift 
would interfere with feeding behaviors. For HRG surveys, the sources 
operate at higher frequencies than foundation installation activities 
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 Rhode Island 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 England, 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 15 takes by Level B harassment over the 
5-year period. The maximum annual allowable take by Level B harassment 
is 7, which equates to approximately 0.16 percent of the stock 
abundance, if each take were considered to be of a different

[[Page 72656]]

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 each 
annually.
    If sperm whales are present in the Project Area during any Project 
activities, they will likely be only transient visitors and not 
engaging in any significant behaviors. Further, the potential for TTS 
is low for reasons described in the general Odontocete section, but if 
it does occur, any hearing shift would be small and of a short 
duration. Because whales are not expected to be foraging in the Project 
Area, any TTS is not expected to interfere with foraging behavior.
    Given the magnitude and severity of the impacts discussed above 
(including no more than 15 takes by Level B harassment over the course 
of the 5-year rule, a maximum annual allowable take of 7, and in 
consideration of the required mitigation and other information 
presented, Revolution 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 North Atlantic stock of 
sperm whales.
Dolphins and Small Whales (Including Delphinids)
    The six species and stocks included in this group (which are 
indicated in Table 2 in the Delphinidae family) are not listed under 
the ESA. 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 six delphinid species with takes authorized for the Project are 
the Atlantic spotted dolphin, Atlantic white-sided dolphin, common 
bottlenose dolphin, common dolphin, long-finned pilot whale, and 
Risso's dolphin. The rule would allow for the authorization of up to 
between 58 and 12,460 takes (depending on species) by Level A 
harassment and/or Level B harassment over the 5-year period. The 
maximum annual allowable take for these species by Level A harassment 
and Level B harassment ranges from 0 to 35 and 34 to 8,086, 
respectively (this annual take equates to approximately 0.09 to 4.7 
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 all stocks listed above, 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 harassment or Level B 
harassment, combined with the availability of alternate nearby foraging 
habitat suggests that the likely impacts would not impact the 
reproduction or survival of any individuals. While delphinids may be 
taken on several occasions, none of these species are known to have 
small home ranges within the Project Area or known to be particularly 
sensitive to anthropogenic noise. 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 activities (which do 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 activities 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, Revolution 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 authorizes up to 1,375 takes, by harassment only, over the 
5-year period. The maximum annual allowable take by Level A harassment 
and Level B harassment, would be 138 and 1,237, respectively (combined, 
this annual take (n=1,263) equates to approximately 1.32 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 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 A harassment and 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, UXO/MEC detonations, and 
pneumatic hammering. 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 Rhode Island and 
given alternative foraging areas, any avoidance of the area by 
individuals is not likely to impact the reproduction or survival of any 
individuals. Regarding UXO/MEC detonations and pneumatic hammering, any 
TTS or behavioral response would be brief and of low severity given 
only 1 UXO/MEC would be detonated on any given day and only up to 13 
UXO/MECs could be detonated under these regulations and the brevity of 
pneumatic hammering required for installation and removal of both 
casing pipes (3 hours per day over 2 days per casing pipe for a total 
of 12 hours over 8 days).
    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,

[[Page 72657]]

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 November) 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 most 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 Rhode Island.
    Given the magnitude and severity of the impacts discussed above, 
and in consideration of the required mitigation and other information 
presented, Revolution 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 Specific Geographic Region 
section of this preamble, 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 2 seal species, the rule authorizes up to between 1,113 
(harbor seals) and 2,781(gray seals) takes, by harassment only, over 
the 5-year period. The maximum annual allowable take for each species 
by Level A harassment and Level B harassment, would range from 14 to 
923 (harbor seals), and 22 to 2,303, respectively (combined, this 
annual take (n=937 to 2,325) equates to approximately 1.53 to 8.5 
percent of the stock abundance, if each take were considered to be of a 
different individual), with far lower numbers than that expected in the 
years without foundation installation (e.g., years when only HRG 
surveys would be occurring). 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 southern New England waters most 
often from December through April. 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 haulouts 
for seals occur along the shores of Massachusetts and throughout 
Narragansett Bay, near the landfall construction location. However, 
neither Revolution Wind nor NMFS expect in-air sounds produced to cause 
take of hauled out pinnipeds at distances greater several hundred 
meters. 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 Sec.  217.275.
    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 in[fllig]uenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provide 
cause for concern regarding population-level impacts to any of these 
stocks. For harbor seals, the population abundance is over 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, Revolution Wind's activities are not expected to result in 
impacts on the

[[Page 72658]]

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 authorized incidental take of 
marine mammals from all of Revolution Wind's specified activities 
combined will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals 
estimated to be taken to the most appropriate estimation of abundance 
of the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. When the 
predicted number of individuals to be taken is less than one-third of 
the species or stock abundance, the take is considered to be of small 
numbers. 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 16 species of marine mammals (with 16 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 one-third for 
all species and stocks potentially impacted.
    For nine stocks, less than 1 percent of the stock abundance is 
authorized for take by harassment; for four stocks, less than or equal 
to 5 percent of the stock abundance is authorized for take by 
harassment; for two stocks, less than 9 percent of the stock abundance 
has been authorized for take by harassment; and for one stock, less 
than 13 percent of the stock abundance has been authorized for take by 
harassment. Specific to the North Atlantic right whale, the maximum 
annual amount of take, which is by Level B harassment only, is 44, or 
13 percent of the stock abundance, assuming that each instance of take 
represents a different individual. Please see Table 28 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 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 
November 1, 2022 with GARFO for the promulgation of this rulemaking. 
NMFS issued a Biological Opinion on July 21, 2023 concluding that the 
promulgation of the rule and issuance of the LOA thereunder is not 
likely to jeopardize the continued existence of threatened and 
endangered species under NMFS' jurisdiction and is not likely to result 
in the destruction or adverse modification of designated or proposed 
critical habitat. The Biological Opinion is available at https://repository.library.noaa.gov/view/noaa/51759.
    Revolution Wind is required to abide by the promulgated 
regulations, as well as 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 regulations) 
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 17, 2023, and is available at: https://www.boem.gov/renewable-energy/state-activities/revolution-wind-final-eis.
    After carefully considering alternatives described and analyzed in 
the Revolution Wind FEIS and comments from the public on the Draft EIS, 
BOEM identified a preferred alternative (Alternative G) for 
consideration, which reduces the number of WTG foundations Revolution 
Wind can install from 79 to 65 but still includes installation of 2 
OSSs (for a total of 67 foundations). NMFS is serving as a cooperating 
agency pursuant to 40 CFR 1501.8 because the scope of the Proposed 
Action (construction of the Revolution Wind offshore wind energy 
facility, as proposed by Revolution Wind) and alternatives (variations 
of the Proposed Action that consider other specific concerns, e.g., 
reducing impacts to the benthic habitat) involves activities that could 
affect marine resources, and due to NMFS' jurisdiction by law and 
special expertise. Issuance of an LOA under the MMPA triggers 
independent NEPA compliance obligations, which may be satisfied by 
adopting the FEIS prepared by BOEM. As a cooperating agency, NMFS 
provided extensive comments on the Draft Environmental Impact 
Statement. Based on BOEM's satisfactory revisions to the DEIS, NMFS 
made the decision to adopt the FEIS. On August 21, 2023, NMFS signed a 
joint Record of Decision (ROD), which satisfied NMFS' obligation under 
NEPA. The full text of the mitigation,

[[Page 72659]]

monitoring, and reporting requirements for Alternative G are available 
in Appendix A of the ROD, which is available on BOEM's website at: 
https://www.boem.gov/renewable-energy/state-activities/revolution-wind.
    In accordance with 40 CFR 1506.3, NMFS independently reviewed and 
evaluated the 2023 Revolution Wind FEIS and determined that it is 
adequate and sufficient to meet our responsibilities under NEPA for the 
promulgation of this rule and issuance of the associated LOA. NMFS, 
therefore, has adopted the 2023 Revolution Wind FEIS through a joint 
ROD with BOEM. The joint ROD for adoption of the 2023 Revolution Wind 
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-under-marine-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.

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 Revolution 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 
Revolution Wind's application in the Federal Register on March 21, 2022 
(87 FR 15942) and published notice of the proposed rule on December 23, 
2022 (87 FR 79072). The state of Rhode Island did not request approval 
from the Director of NOAA's Office for Coastal Management to review 
Revolution 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 29, 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

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

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


0
2. Add subpart BB, consisting of Sec. Sec.  217.270 through 217.279, to 
read as follows:
Subpart BB--Taking Marine Mammals Incidental to Construction of the 
Revolution Wind Project Offshore of Rhode Island
Sec.
217.270 Specified activity and specified geographical region.
217.271 Effective dates.
217.272 Permissible methods of taking.
217.273 Prohibitions.
217.274 Mitigation requirements.
217.275 Monitoring and reporting requirements.
217.276 Letter of Authorization.
217.277 Modifications of Letter of Authorization.
217.278-217.279 [Reserved]

Subpart BB--Taking Marine Mammals Incidental to Construction of the 
Revolution Wind Project Offshore of Rhode Island


Sec.  217.270  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply to activities associated with 
the Revolution Wind project (hereafter referred to as the ``Project'') 
by Revolution Wind, LLC (hereafter referred to as ``Letter of 
Authorization (LOA) Holder'') and those persons it authorizes or funds 
to conduct activities on its behalf in the specified geographical 
region 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 0486 
Commercial Lease of Submerged Lands for Renewable Energy Development, 
two export cable routes, and two sea-to-shore transition points located 
at Quonset Point in North Kingstown, Rhode Island.
    (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; pneumatic hammering (install and subsequently remove) 
of casing pipes; high-resolution geophysical (HRG) site 
characterization surveys; detonation of unexploded ordnances or 
munitions and explosives of concern (UXOs/MECs); 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 routes 
from OSSs to shore-

[[Page 72660]]

based converter stations and inter-array cables between turbines.


Sec.  217.271  Effective dates.

    The regulations in this subpart are effective from November 20, 
2023, through November 19, 2028.


Sec.  217.272  Permissible methods of taking.

    Under the LOA, issued pursuant to Sec. Sec.  217.276, and 217.277, 
and Sec.  216.106 of this chapter, the LOA Holder, and those persons it 
authorizes or funds to conduct activities on its behalf, may 
incidentally, but not intentionally, take marine mammals within the 
vicinity of BOEM Lease Area OCS-A 0486 Commercial Lease of Submerged 
Lands for Renewable Energy Development, along export cable routes, and 
at the two sea-to-shore transition points located at Quonset Point in 
North Kingstown, Rhode Island in the following ways, provided LOA 
Holder is in complete compliance with all terms, conditions, and 
requirements of the regulations in this subpart and an LOA issue under 
Sec. Sec.  217.276 and 217.277:
    (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 goal post 
installation and removal), pneumatic hammering (casing pipe 
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, 
pneumatic hammering of casing pipes, 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 
stocks:

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

Sec.  217.273  Prohibitions.

    Except for the takings described in Sec.  217.272 and authorized by 
an LOA issued under Sec. Sec.  217.276 or 217.277, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart:
    (a) Violate or fail to comply with the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.276 
and 217.277;
    (b) Take any marine mammal stock not specified in Sec.  217.272(d);
    (c) Take any marine mammal stock specified in the LOA in any manner 
other than as specified in the LOA; or
    (d) Take any marine mammal stock specified in Sec.  217.272(d) 
after National Marine Fisheries Service (NMFS) Office of Protected 
Resources determines such taking results in more than a negligible 
impact on the stock of marine mammals.


Sec.  217.274  Mitigation requirements.

    When conducting the activities identified in Sec.  217.270(c) 
within the specified geographical area described in Sec.  217.270(b), 
LOA Holder must implement the mitigation measures contained in this 
section and any LOA issued under Sec. Sec.  217.276 and 217.277. 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 in-water construction activities 
in order to explain responsibilities, communication procedures, marine 
mammal detection and identification, mitigation, monitoring, and 
reporting requirements, safety and operational procedures, and 
authorities of the marine mammal monitoring team(s). This training must 
be repeated for new personnel who join the work during the project. A 
description of the training program must be provided to NMFS at least 
60 days prior to the initial training before in-water activities begin. 
Confirmation of all required training must be documented on a training 
course log sheet and reported to NMFS Office of Protected Resources 
prior to initiating project activities;
    (3) Prior to and when conducting any in-water activities and vessel 
operations, LOA Holder personnel and contractors (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the Project Area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information associated with any 
Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-
triggered Slow Zones) to provide situational awareness for both vessel 
operators, PSO(s), and PAM operator(s); The marine mammal monitoring 
team

[[Page 72661]]

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 impact 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 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 odontocetes 
(excluding sperm whales) and pinnipeds, and 30 minutes for sperm and 
baleen whales (including North Atlantic right whales) with no further 
sightings;
    (9) For in-water construction heavy machinery activities listed in 
Sec.  217.270(c), if a marine mammal is on a path towards or comes 
within 10 meters (m) (32.8 feet (ft)) of equipment, LOA Holder must 
cease operations until the marine mammal has moved more than 10 m on a 
path away from the activity to avoid direct interaction with equipment;
    (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 (11.5 miles per hour (mph)) 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. The dedicated visual observers 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. 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 during all vessel 
operations 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 on 
each vessel at all times to monitor for marine mammals primarily within 
a 180[deg] direction of the forward path of the vessel (90[deg] port to 
90[deg] starboard) located at an appropriate vantage point for ensuring 
vessels are maintaining appropriate separation distances. Visual 
observers must be equipped with alternative monitoring technology 
(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, use of visual monitoring and 
alternative monitoring equipment, and reporting requirements in this 
subpart. Visual observers may be third-party observers (i.e., NMFS-
approved PSOs as defined in Sec.  217.275 (a)(1)) or trained crew 
members;
    (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 notifications of North Atlantic right whale Slow 
Zones (DMAs and acoustically-triggered Slow Zones) 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 LOA 
Holder's Project-Wide 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 (11.5 mph) or 
less within any active North Atlantic right whale Seasonal Management 
Area (SMA) and Slow Zone (i.e., Dynamic Management Areas (DMA) or 
acoustically-triggered Slow Zones);

[[Page 72662]]

    (6) Between November 1 and April 30, all vessels, regardless of 
size, must operate port to port (specifically from ports in 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Virginia, and Maryland), and within the Lease Area and Revolution Wind 
Export Cable (RWEC) corridor at 10 k (11.5 mph) or less, except for 
vessels transiting in Narragansett Bay or Long Island Sound;
    (7) All LOA Holder's vessel(s) (including crew transfer vessels) 
are restricted from traveling over 10 kn (11.5 mph), unless traveling 
in a frequently traveled transit corridor (e.g., crew transfer 
corridor) between port to the Lease Area while LOA Holder monitors the 
transit corridor to detect large whales (including North Atlantic right 
whales) in real-time with PAM prior to and during transits. This 
measure only applies when no other vessel speed restrictions are in 
place;
    (8) All LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn (11.5 mph) or less for at least 24 hours when a 
North Atlantic right whale is sighted at any distance by any project-
related personnel or acoustically detected by any project-related PAM 
system. Each subsequent observation or acoustic detection in the 
Project area must trigger an additional 24-hour period of operating at 
10 kn or less. If a North Atlantic right whale is reported via any of 
the monitoring systems (see (b)(4) of this section) within 10 
kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel 
must operate at 10 kn (11.5 mph) or less for 24 hours following the 
reported detection;
    (8) LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 kn (11.5 mph) or less when any large whale (other 
than a North Atlantic right whale) is observed within 500 m (1,640 ft) 
of an underway vessel;
    (9) If a large whale (other than a North Atlantic right whale) is 
detected via the transit corridor PAM system, all vessels must travel 
at 10 kn (11.5 mph) until the whale can be confirmed visually beyond 
500 m of the vessel or 24 hours has passed.
    (10) LOA Holder's vessels must maintain a minimum separation 
distance of 500 m (1,640 ft) from North Atlantic right whales. If 
underway, all vessels must steer a course away from any sighted North 
Atlantic right whale at 10 kn (11.5 mph) or less such that the 500-m 
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;
    (11) 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 (328 ft);
    (12) LOA Holder's vessels must maintain a minimum separation 
distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds 
with an exception made for those that approach the vessel (i.e., bow-
riding dolphins). If a delphinid cetacean that is not bow riding or a 
pinniped is sighted within 50 m of a transiting vessel, LOA Holder's 
vessel operator must shift the engine to neutral, with an exception 
made for those that approach the vessel (e.g., bow-riding dolphins). 
Engines must not be engaged until the animal(s) has moved outside of 
the vessel's path and beyond 50 m;
    (13) When a marine mammal(s) is sighted while LOA Holder's 
vessel(s) is transiting, the vessel must not divert or alter course to 
approach any marine mammal and 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 excessive speed 
or abrupt changes in direction until the animal has left the area). If 
a separation distance is triggered, any vessel underway must avoid 
abrupt changes in course direction and take appropriate action as 
specified in paragraphs (b)(10), (b)(11), and (b)(12) of this section. 
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);
    (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 (11.5 mph) 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 15 m (49 ft) 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 three monopiles may be installed 
per day;
    (3) LOA Holder(s) must not initiate pile driving earlier than 1 
hour after civil sunrise or later than 1.5 hours prior to civil sunset, 
unless LOA Holder submits and NMFS approves an Alternative Monitoring 
Plan as part of the Pile Driving and Marine Mammal Monitoring Plan that 
reliably demonstrates the efficacy of their nighttime monitoring 
equipment and protocols;
    (4) LOA Holder must utilize a soft-start protocol for each impact 
pile driving event of all foundations by performing 4 to 6 strikes per 
minute at 10 to 20 percent of the maximum hammer energy, for a minimum 
of 20 minutes;
    (5) Soft-start must occur at the beginning of impact driving and at 
any time following a cessation of impact pile driving of 30 minutes or 
longer;
    (6) LOA Holder must establish clearance zones, which must be

[[Page 72663]]

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 odontocetes (excluding sperm whales) and pinnipeds, and 30 
minutes for sperm and baleen whales (including the North Atlantic right 
whale);
    (7) For North Atlantic right whales, any visual observation at any 
distance or acoustic detection within the PAM monitoring zone must 
trigger a delay to the commencement of pile driving. Pile driving may 
begin only if no North Atlantic right whale visual detections at any 
distance or acoustic detections within the PAM monitoring zone have 
occurred during the 60-minute clearance zone monitoring period;
    (8) LOA Holder must deploy at least two fully functional, 
uncompromised 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 m\3\/(minute*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must adjust the air supply and operating pressure such that the maximum 
possible sound attenuation performance of the bubble curtain(s) is 
achieved;
    (iii) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (iv) No parts of the ring or other objects may prevent full 
seafloor contact with a bubble curtain ring;
    (v) Construction contractors must train personnel in the proper 
balancing of airflow to the bubble curtain ring. LOA Holder must 
provide NMFS Office of Protected Resources with a bubble curtain 
performance test and maintenance report 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; and
    (vi) Corrections to the bubble ring(s) to meet the performance 
standards, as described in (c)(8)(ii) through (v) of this paragraph, 
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 
paragraph (c)(9) of this section.
    (9) LOA Holder must utilize NMFS-approved PAM systems, as described 
in paragraph (c)(16) 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 pile-driving and vessel noise. The 
PAM system must be able to detect a vocalization of North Atlantic 
right whales up to 10 km.
    (10) LOA Holder must utilize PSO(s) and PAM operator(s), as 
described in Sec.  217.275(c). At least 3 on-duty PSOs must be deployed 
on the pile driving platform. Additionally, two dedicated-PSO 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.
    (11) LOA Holder must establish shutdown zones, which must be 
measured using the radial distance around the pile being driven. 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);
    (12) Any visual observation at any distance or acoustic detection 
within the PAM Monitoring Zone of a North Atlantic right whale triggers 
shutdown requirements under paragraph (c)(11) of this section. If pile 
driving has been shut down due to the presence of a North Atlantic 
right whale, pile driving may not restart until the North Atlantic 
right whale has neither been visually or acoustically detected for 30 
minutes;
    (13) If pile driving has been shut down due to the presence of a 
marine mammal other than a North Atlantic right whale, pile driving 
must not restart until either the marine mammal(s) has voluntarily left 
the specific clearance zones and has been visually or acoustically 
confirmed beyond that clearance zone, or, when specific time periods 
have elapsed with no further sightings or acoustic detections have 
occurred. The specific time periods are 15 minutes for odontocetes 
(excluding sperm whales) and pinnipeds, and 30 minutes for sperm and 
baleen whales (including North Atlantic right whales) whales. 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;
    (14) 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). 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

[[Page 72664]]

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., high-pass, low-pass, etc.), 
which is not already accounted for by the calibration, the filter 
performance (i.e., the filter's frequency response) must be known, 
reported, and the data corrected before analysis;
    (v) LOA Holder must be prepared with additional equipment (e.g., 
hydrophones, recording devices, hydrophone calibrators, cables, 
batteries), 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 measured (see Sec.  217.275(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 are being 
exceeded, LOA Holder must implement additional sound attenuation 
measures such that measured distances to thresholds for future piles do 
not exceed modeled distances to thresholds assuming 10-dB attenuation. 
LOA Holder must also increase clearance and shutdown zone sizes to 
those identified by NMFS until SFV measurements on at least three 
additional foundations all demonstrate acoustic distances to harassment 
threshold isopleths meet or are less than those modeled assuming 10-dB 
of attenuation. LOA Holder must operate fully functional sound 
attenuation systems (e.g., ensure hose maintenance, pressure testing) 
to meet noise levels modeled, assuming 10-dB attenuation;
    (viii) If, after additional measurements conducted pursuant to 
requirements of paragraph (c)(14)(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 equal to or 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 (c)(14)(i) through (v) 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.
    (15) 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
    (16) 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 PAM Plan must describe all 
proposed PAM equipment, procedures, and protocols including proof that 
vocalizing North Atlantic right whales will be detected within the 
clearance and shutdown zones. No pile installation can occur if LOA 
Holder's PAM Plan does not receive approval from NMFS Office of 
Protected Resources and NMFS Greater Atlantic Regional Fisheries Office 
Protected Resources Division.
    (d) Cofferdam and casing pipe/goal post installation and removal. 
The following requirements apply to the installation and removal of 
cofferdams, casing pipes, and goal posts at the cable landfall 
construction sites:
    (1) Installation and removal of cofferdams, casing pipes, and goal 
posts must not occur during nighttime hours;
    (2) LOA Holder must establish and implement clearance zones for the 
installation and removal of cofferdams,

[[Page 72665]]

casing pipes, and goal posts using visual monitoring. These zones must 
be measured using the radial distance from the cofferdam, casing pipe, 
and goal post being installed and/or removed;
    (3) LOA Holder must utilize PSO(s), as described in Sec.  
217.275(d). At least 2 on-duty PSOs must monitor for marine mammals at 
least 30 minutes before, during, and 30 minutes after vibratory pile 
driving associated with installation of cofferdam and goal posts and 
pneumatic hammering associated with casing pipe installation; and
    (4) If a marine mammal is observed entering or within the 
respective shutdown zone after vibratory pile driving or pneumatic 
hammering has begun, the PSO must call for a shutdown of vibratory pile 
driving and pneumatic hammering. LOA Holder must stop vibratory pile 
driving and pneumatic hammering 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 Sec.  217.275(g)).
    (e) UXO/MEC detonations. The following requirements apply to all 
UXO/MEC detonations:
    (1) Upon encountering an UXO/MEC, LOA Holder may only resort to 
high-order removal (i.e., detonation) if all other means of removal are 
impracticable;
    (2) LOA Holder may detonate a maximum of 13 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;
    (3) LOA Holder must not detonate UXO/MECs from December 1 through 
April 30, 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)(6), (7), and (11) through (13) 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 Sec.  217.275(c). At least 3 PSOs on the activity platform 
and on each of 2 dedicated PSO vessels must be used for all detonations 
with clearance zones less than 5 km. 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 on-duty 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 NMFS-approved PAM systems, as described 
in the PAM Plan see Sec.  217.274(c)(16));
    (9) LOA Holder must deploy at least a double big bubble curtain 
during all UXO/MEC detonations. The double 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 m\3\/(minute*m). The bubble curtain(s) must 
surround 100 percent of the UXO/MEC detonation location 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 UXO/MEC is detonated. Additionally, a full maintenance check 
(e.g., manually clearing holes) must occur prior to each UXO/MEC 
detonation; and
    (v) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (e)(9) of this section must occur prior to 
UXO/MEC detonation.
    (10) LOA Holder must conduct SFV during all UXO/MEC detonations as 
described in (c)(14) 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 15 
minutes have elapsed without any redetections of odontocetes (excluding 
sperm whales) and pinnipeds, or 30 minutes have elapsed without any 
redetections of sperm and baleen whales (including the North Atlantic 
right whale); or
    (12) For UXO/MEC detonations, LOA Holder must follow all measures 
described in (c)(8)(ii) through (vi) and (c)(14)(i) through (x), of 
this section as applicable, 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 noise abatement systems 
(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 operate 
fully functional sound attenuation systems (e.g., ensure hose 
maintenance, pressure testing) to meet noise levels modeled, assuming 
10 dB attenuation, for UXO/MECs of the same charge weight or else no 
detonation activities may occur until NMFS and LOA Holder can evaluate 
the situation and ensure future UXO/MEC detonations do 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

[[Page 72666]]

the effectiveness of the sound attenuation methodology would be 
evaluated based on the results. 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
    (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 Sec.  
217.275(e) conducted by PSOs, as described in Sec.  217.275(b);
    (2) LOA Holder must utilize PSO(s), as described in Sec.  
217.275(e);
    (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 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 ramp-up 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) 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;
    (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 must 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 immediately prior to the 
initiation of ramp-up or activation (pre-start clearance). 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. During this 30-minute pre-start clearance period, the 
entire applicable clearance zones must be visible, except as indicated 
in paragraph (f)(10) 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) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up of acoustic sources 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 
odontocetes (excluding sperm whales) and pinnipeds, and 30 minutes for 
sperm and baleen whales, including North Atlantic right whales;
    (10) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(infrared (IR)/thermal camera), and the Lead PSO has determined that 
the clearance zones are clear of marine mammals, survey operations are 
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;
    (11) Once the survey has commenced, LOA Holder must shut down 
acoustic sources if a marine mammal enters a respective shutdown zone. 
In cases when the shutdown zones become obscured for brief periods due 
to inclement weather, survey operations are 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)(11) is 
detected in the shutdown zone;
    (12) If an acoustic source has been shut down due to the presence 
of a marine mammal, the use of an acoustic source may not commence or 
resume until the animal(s) has been confirmed

[[Page 72667]]

to have left the Level B harassment zone or until a full 15 minutes for 
odontocetes (excluding sperm whales) and pinnipeds, or 30 minutes for 
sperm and baleen whales, including North Atlantic right whales, have 
elapsed with no further sighting;
    (13) LOA Holder must immediately shut down any acoustic source if a 
marine mammal is sighted entering or within its respective shutdown 
zones. If there is uncertainty regarding the identification of a marine 
mammal species (i.e., whether the observed marine mammal belongs to one 
of the delphinid genera for which shutdown is waived), the PSOs must 
use their best professional judgment in making the decision to call for 
a shutdown. Shutdown is required if a delphinid that belongs to a genus 
other than those specified in paragraph (f)(11) of this section is 
detected in the shutdown zone; and
    (14) If an acoustic source is shut down for a period longer than 30 
minutes, all clearance and ramp-up procedures must be initiated. If an 
acoustic source is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, acoustic sources may 
be activated again without ramp-up only if PSOs have maintained 
constant observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones.
    (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 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 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 must move again or skip the station;
    (3) If a marine mammal is at risk of interacting with gear after it 
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 
by trained lookouts 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 (3.5 mph);
    (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 buoy lines must include the 
breaking strength of all lines being less than 1,700 pounds (771 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 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.


Sec.  217.275   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, and 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

[[Page 72668]]

were conducted, the dates and time when in-water construction 
activities were suspended to avoid potential incidental take of marine 
mammals from construction noise within a defined shutdown zone, and 
marine mammal behavior; and the ability to communicate orally, by 
radio, or in-person, with project personnel to provide real-time 
information on marine mammals observed in the area;
    (4) All PSOs must be trained in northwestern Atlantic Ocean marine 
mammal identification and behaviors and must be able to conduct field 
observations and collect data according to assigned protocols. 
Additionally, PSOs must have the ability to work with all required and 
relevant software and equipment necessary during observations (as 
described in 217.275(b)(6) and 217.275(b)(7) of this section);
    (5) All PSOs and PAM operators must successfully complete a 
relevant training course within the last 5 years, including obtaining a 
certificate of course completion;
    (6) PSOs and PAM operators are responsible for obtaining NMFS' 
approval. NMFS may approve PSOs and PAM operators as conditional or 
unconditional. A conditionally-approved 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, pneumatic hammering) 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 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 from the 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, with 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 surveys, foundation installations, cable landfall 
activities, UXO/MEC detonations).
    (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, pneumatic 
hammering, 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 (i.e., 
cofferdams, casing pipes, 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

[[Page 72669]]

must monitor the PAM monitoring 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 on-duty PSOs and PAM operator(s) must remain in contact with the 
on-duty construction personnel responsible for implementing mitigations 
(e.g., delay to pile driving 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 applicable ranges of interest to the 
activity occurring via the data collection software system (e.g., 
Mysticetus or similar system) who must be responsible for requesting 
that the designated crewmember implement the necessary mitigation 
procedures (i.e., delay);
    (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 NMFS-approved PAM system to conduct 
monitoring. PAM systems are approved through the PAM Plan, as described 
in Sec.  217.274(c)(16);
    (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 (b)(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 (see 
Sec.  217.274(e)(7)), at least two on-duty 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 NMFS-approved PAM Plan; and
    (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-hr period 
immediately prior to impact pile driving and UXO/MEC detonation 
activities.
    (d) PSO requirements during cofferdam, casing pipe, and goal post 
installation and removal. The following measures apply to PSOs during 
cofferdam, casing pipe, 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, casing pipes, 
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 and pneumatic hammering 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) and clear of marine mammals, as determined by the Lead PSO, 
for at least 30 minutes immediately prior to initiation of vibratory 
pile driving and pneumatic hammering.
    (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 4 and 6 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. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (f) Monitoring requirements during fisheries monitoring surveys. 
The following measures apply during fisheries monitoring surveys and 
must be implemented by LOA Holder:
    (1) All captains and crew conducting fishery surveys must be 
trained in marine mammal detection and identification; and
    (2) Marine mammal monitoring must be conducted within 1 nmi from 
the planned survey location by the trained captain and/or a member of 
the scientific crew for 15 minutes prior to deploying gear, throughout 
gear

[[Page 72670]]

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 
(<a href="/cdn-cgi/l/email-protection#d08082fe998480fe9dbfbeb9a4bfa2b9beb782b5a0bfa2a4a390bebfb1b1feb7bfa6"><span class="__cf_email__" data-cfemail="0353512d4a57532d4e6c6d6a776c716a6d645166736c717770436d6c62622d646c75">[email protected]</span></a>), dates must be in MM/DD/YYYY 
format, and location information must be provided in Decimal Degrees 
and with the coordinate system information (e.g., NAD83, WGS84, etc.);
    (3) For all visual monitoring efforts and marine mammal sightings, 
the following information must be collected and reported to NMFS Office 
of Protected Resources: the date and time that monitored activity 
begins or ends; the construction activities occurring 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 mitigation-related action implemented, or 
mitigation-related actions called for but not implemented, in response 
to the sighting (e.g., delay, shutdown, etc.) and time and location of 
the action; other human activity in the area, and; other applicable 
information, as required in any LOA issued under Sec. Sec.  217.276 and 
217.277;
    (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-
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, MMSI 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-reporting-system-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; 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 
(e.g., days and duration of impact and vibratory pile driving, days and 
number of UXO/MEC detonations, days and amount of HRG survey effort); 
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

[[Page 72671]]

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 model-estimated acoustic 
ranges (R<INF>95</INF><not-eq> SEL and R<INF>95</INF><not-eq> 
SPL<INF>rms</INF>) 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 (SPL<INF>pk</INF>), root-mean-square sound 
pressure level that contains 90 percent of the acoustic energy 
(SPL<INF>rms</INF>), and sound exposure level (SEL, in single strike 
for pile driving, SEL<INF>ss,</INF>), for each hydrophone, including at 
least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 
percent exceedance) statistics for each metric; estimated marine mammal 
Level A harassment and Level B harassment acoustic isopleths, 
calculated using the maximum-over-depth L5 (95 percent exceedance 
level, maximum of both hydrophones) of the associated sound metric; 
comparison of modeled results assuming 10-dB attenuation against the 
measured marine mammal Level A harassment and Level B harassment 
acoustic isopleths; estimated transmission loss coefficients; pile 
identifier name, location of the pile and 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 all UXO/MEC detonation must be submitted as soon as 
possible, but no later than 90 days following completion of SFV 
measurements for each activity. 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 (SPL<INF>pk</INF>), the 
root-mean-square sound pressure level that contains 90 percent of the 
acoustic energy (SPL<INF>rms</INF>), the single strike sound exposure 
level (SEL<INF>ss</INF>), the integration time for SPL<INF>rms</INF>, 
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 (L<INF>50</INF>) and 
L<INF>5</INF> (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 must be reported; the sound levels reported must be in 
median, arithmetic mean, and L<INF>5</INF> (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. The final 
results of SFV measurements during wind turbine operations must include 
source levels at 10 m from the foundation; received levels at 50 m, 100 
m, and 250 m from the foundation; operational parameters (i.e., direct 
drive/gearbox information, turbine rotation rate); sea state 
conditions, and any nearby anthropogenic activities;
    (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-reporting-system-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 after conclusion of activities requiring PAM for mitigation. 
Reporting must use the webform templates on the NMFS Passive Acoustic 
Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. The full acoustic 
recordings from all real-time hydrophones must also be sent to the NCEI 
for archiving within 90 calendar

[[Page 72672]]

days after pile driving has ended and instruments have been pulled from 
the water;
    (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 must 
be sent to NMFS Greater Atlantic Regional Fisheries 
(<a href="/cdn-cgi/l/email-protection#6d03000b1e430a0c1f4304030e04090803190c0140190c06082d03020c0c430a021b"><span class="__cf_email__" data-cfemail="7816151e0b561f190a5611161b111c1d160c1914550c19131d3816171919561f170e">[email protected]</span></a>), NMFS Office of Protected 
Resources, and NMFS Northeast Fisheries Science Center 
(<a href="/cdn-cgi/l/email-protection#620c074c10154c11171014071b220c0d03034c050d14"><span class="__cf_email__" data-cfemail="5b353e75292c75282e292d3e221b35343a3a753c342d">[email protected]</span></a>) 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); 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 any 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 (<a href="/cdn-cgi/l/email-protection#29797b07607d7907644647405d465b40474e7b4c59465b5d5a6947464848074e465f"><span class="__cf_email__" data-cfemail="7222205c3b26225c3f1d1c1b061d001b1c152017021d000601321c1d13135c151d04">[email protected]</span></a>) and, if in the 
Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic 
Regional Fisheries Office (GARFO) (<a href="/cdn-cgi/l/email-protection#a2cccfc4d18cc5c3d08ccbccc1cbc6c7ccd6c3ce8fd6c3c9c7e2cccdc3c38cc5cdd4"><span class="__cf_email__" data-cfemail="741a1912075a1315065a1d1a171d10111a0015185900151f11341a1b15155a131b02">[email protected]</span></a>, 
<a href="/cdn-cgi/l/email-protection#a1cfccc7d28fc6c0d38fd2d5d3c0cfc5c8cfc6e1cfcec0c08fc6ced7"><span class="__cf_email__" data-cfemail="7e1013180d50191f0c500d0a0c1f101a1710193e10111f1f50191108">[email protected]</span></a>) or, if in the Southeast region (North 
Carolina to Florida), NMFS Southeast Regional Office 
(SERO)(<a href="/cdn-cgi/l/email-protection#4a392f29272b27272b26382f3a25383e390a24252b2b642d253c"><span class="__cf_email__" data-cfemail="106375737d717d7d717c6275607f626463507e7f71713e777f66">[email protected]</span></a>) 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; and
    (vi) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Project or if other project activities cause 
a non-auditory injury or death of a marine mammal, LOA Holder must 
immediately report the incident to NMFS. If in the Greater Atlantic 
Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding 
Hotline (866-755-6622) and if in the Southeast Region (North Carolina 
to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). 
Separately, LOA Holder must immediately report the incident to NMFS 
Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#5c0c0e7215080c721133323528332e35323b0e392c332e282f1c32333d3d723b332a"><span class="__cf_email__" data-cfemail="366664187f6266187b59585f4259445f585164534659444245765859575718515940">[email protected]</span></a>) and, 
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO 
(<a href="/cdn-cgi/l/email-protection#e886858e9bc68f899ac681868b818c8d869c8984c59c89838da886878989c68f879e"><span class="__cf_email__" data-cfemail="5e3033382d70393f2c7037303d373a3b302a3f32732a3f353b1e30313f3f70393128">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#81efece7f2afe6e0f3aff2f5f3e0efe5e8efe6c1efeee0e0afe6eef7"><span class="__cf_email__" data-cfemail="046a6962772a6365762a777076656a606d6a63446a6b65652a636b72">[email protected]</span></a>) or, if 
in the Southeast region (North Carolina to Florida), NMFS SERO 
(<a href="/cdn-cgi/l/email-protection#106375737d717d7d717c6275607f626463507e7f71713e777f66"><span class="__cf_email__" data-cfemail="1f6c7a7c727e72727e736d7a6f706d6b6c5f71707e7e31787069">[email protected]</span></a>). 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; and

[[Page 72673]]

    (14) LOA Holder must report any lost gear associated with the 
fishery surveys to the NMFS GARFO Protected Resources Division 
(<a href="/cdn-cgi/l/email-protection#cba5a6adb8e5acaab9e5a2a5a8a2afaea5bfaaa7e6bfaaa0ae8ba5a4aaaae5aca4bd"><span class="__cf_email__" data-cfemail="0e6063687d20696f7c2067606d676a6b607a6f62237a6f656b4e60616f6f20696178">[email protected]</span></a>) as soon as possible or within 24 
hours of the documented time of missing or lost gear. This report must 
include information on any markings on the gear and any efforts 
undertaken or planned to recover the gear.


Sec.  217.276  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 November 19, 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 Sec.  
217.277.
    (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 is consistent with the findings made for the total 
taking allowable under the regulations of this subpart.
    (f) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.277  Modifications of Letter of Authorization.

    (a) A LOA issued under Sec.  217.276, and this section for the 
activities identified in Sec.  217.270(c) 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 modified LOA in the Federal Register, including 
the associated analysis of the change, and solicit public comment 
before issuing the LOA.
    (c) An LOA issued under Sec.  217.276 or this section for the 
activities identified in Sec.  217.270(c) 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 Sec. Sec.  217.272 and 217.276 or this section, an LOA may 
be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.


Sec. Sec.  217.278-217.279  [Reserved]

Subparts CC through KK [Reserved]

0
3. Add and reserve subparts CC through KK.

[FR Doc. 2023-22056 Filed 10-19-23; 8:45 am]
BILLING CODE 3510-22-P


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