72562 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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. 

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-toshore 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/incidentaltake-authorizations-other-energyactivities-renewable. In case of problems 

accessing these documents, please call 

the contact listed above (see FOR

FURTHER INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

This final rule, as promulgated, 

provides a framework under the 

authority of the MMPA (16 U.S.C. 1361 

et seq.) for NMFS to authorize the take 

of marine mammals incidental to 

construction of the Project within the 

Project Area. NMFS received a request 

from 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: 

• U.S. Citizens—Individual U.S. 

citizens or any corporation or similar 

entity if it is organized under the laws 

of the United States or any 

governmental unit defined in 16 U.S.C. 

1362(13) (50 CFR 216.103); 

• Take—to harass, hunt, capture, or 

kill, or attempt to harass, hunt, capture, 

or kill any marine mammal (16 U.S.C. 

1362(13); 50 CFR 216.3); 

• Incidental harassment, incidental 

taking, and incidental, but not 

intentional taking—an accidental 

taking. This does not mean that the 

taking is unexpected, but rather it 

includes those takings that are 

infrequent, unavoidable or accidental 

(see 50 CFR 216.103); 

• Serious Injury—any injury that will 

likely result in mortality (50 CFR 216.3); 

• Level A harassment—any act of 

pursuit, torment, or annoyance which 

has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (16 U.S.C. 1362(18); 50 CFR 216.3); 

and 

• Level B harassment—any act of 

pursuit, torment, or annoyance which 

has the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (16 U.S.C. 

1362(18); 50 CFR 216.3). 

Section 101(a)(5)(A) of the MMPA and 

the implementing regulations at 50 CFR 

part 216, subpart I, provide the legal 

basis for proposing and, if appropriate, 

issuing regulations and an associated 

LOA(s). This final rule establishes 

permissible methods of taking and 

mitigation, monitoring, and reporting 

requirements for Revolution Wind’s 

construction activities. 

Summary of Major Provisions Within 

the Final Rule 

The major provisions of this final rule 

are: 

• The authorized take of marine 

mammals by Level A harassment and/or 

Level B harassment; 

• No authorized take of marine 

mammals by mortality or serious injury; 

• The establishment of a seasonal 

moratorium on impact pile driving of 

foundation piles during the months of 


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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; 

• 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; 

• A requirement for both visual and 

passive acoustic monitoring (PAM) to 

occur by trained, NOAA Fisheriesapproved Protected Species Observers 

(PSOs) and PAM operators (where 

required) before, during, and after select 

activities; 

• A requirement for training for all 

Revolution Wind personnel to ensure 

marine mammal protocols and 

procedures are understood; 

• The establishment of clearance and 

shutdown zones for all in-water 

construction activities to prevent or 

reduce the risk of Level A harassment 

and to minimize the risk of Level B 

harassment; 

• A requirement to use sound 

attenuation device(s) during all 

foundation impact pile driving 

installation activities and UXO/MEC 

detonations to reduce noise levels to 

those modeled assuming 10 decibels 

(dB); 

• A delay to the start of foundation 

installation and UXO/MEC detonations 

if a North Atlantic right whale is 

observed at any distance by PSOs or 

acoustically detected within certain 

distances; 

• A delay to the start of foundation 

installation and UXO/MEC detonations 

if other marine mammals are observed 

entering or within their respective 

clearance zones; 

• A requirement to shut down impact 

pile driving (if feasible) if a North 

Atlantic right whale is observed or if 

any other marine mammals are observed 

entering their respective shut down 

zones; 

• A requirement to implement sound 

field verification during impact pile 

driving of foundation piles and during 

UXO/MEC detonations to measure in 

situ noise levels for comparison against 

the modeled results; 

• A requirement to implement softstarts during impact pile driving using 

the least amount of hammer energy 

necessary for installation; 

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

geophysical (HRG) marine site 

characterization survey equipment; 

• A requirement for PSOs to continue 

to monitor for 30 minutes after any 

impact pile driving for foundation 

installation and after any UXO/MEC 

detonations; 

• A requirement for the increased 

awareness of North Atlantic right whale 

presence through monitoring of the 

appropriate networks and Channel 16, 

as well as reporting any sightings to the 

sighting network; 

• A requirement to implement 

various vessel strike avoidance 

measures; 

• A requirement to implement 

measures during fisheries monitoring 

surveys, such as removing gear from the 

water if marine mammals are 

considered at-risk or are interacting 

with gear; and 

• A requirement for frequently 

scheduled and situational reporting 

including, but not limited to, 

information regarding activities 

occurring, marine mammal observations 

and acoustic detections, and sound field 

verification monitoring results. 

NMFS must withdraw or suspend an 

LOA issued under these regulations, 

after notice and opportunity for public 

comment, if it finds the methods of 

taking or the mitigation, monitoring, or 

reporting measures are not being 

substantially complied with (16 U.S.C. 

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

Additionally, failure to comply with the 

requirements of the LOA may result in 

civil monetary penalties and knowing 

violations may result in criminal 

penalties (16 U.S.C. 1375; 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-windfarm-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-authorizationrevolution-wind-llc-constructionrevolution-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/incidentaltake-authorizations-other-energyactivities-renewable. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 

Atlantic right whale vessel speed 

regulations (87 FR 46921, August 1, 

2022) to further reduce the likelihood of 

mortalities and serious injuries to 

endangered right whales from vessel 

collisions, which are a leading cause of 

the species’ decline and a primary factor 

in an ongoing Unusual Mortality Event 

(UME). Should a final vessel speed rule 

be issued and become effective during 

the effective period of these regulations 

(or any other MMPA incidental take 

authorization), the authorization holder 

will be required to comply with any and 

all applicable requirements contained 

within the final rule. Specifically, where 

measures in any final vessel speed rule 

are more protective or restrictive than 

those in this or any other MMPA 

authorization, authorization holders 

will be required to comply with the 

requirements of the vessel speed rule. 

Alternatively, where measures in this or 

any other MMPA authorization are more 

restrictive or protective than those in 

any final vessel speed rule, the 

measures in the MMPA authorization 

will remain in place. The responsibility 

to comply with the applicable 

requirements of any vessel speed rule 

will become effective immediately upon 

the effective date of any final vessel 

speed rule, and when notice is 

published on the effective date, NMFS 

will also notify 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 shorebased converter stations and inter-array 

cables between turbines; HRG vesselbased 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 activityspecific durations can be found in the 

proposed rule and are not repeated here. 

BILLING CODE 3510–22–P 


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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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Table 1 -- Revolution Wind's Construction and Operations Schedule1•2 

Project Phase Project Phase Component Expected Duration and Timing 

WTG foundation installation - 5 months Q2 - Q3 2024 

OSS foundation installation - 2 - 3 days Q2 2024 

R WF Construction Array cable installation - 8 months QI - Q4 2024 

HRG surveys Any time of year 

UXO/MEC detonation -up to 7 days 

Cable landfall installation 

(temporary cofferdam, or casing - up to 4 months Q4 2023 - Q 1 

pipe and goal post installation 2024 

and removal) 

R WEC Construction Offshore export cable - 5 months Q4 2023 - Q4 2024 installation 

HRG surveys Any time of year 

UXO/MEC detonation -up to 6 days 

Operations HRG surveys Any time of year Q4 2024-Q3 

2028 

Note: "QI, Q2, Q3, and Q4" each refer to a quarter of the year, starting in January and comprising 3 

months each. Therefore, QI represents January through March, Q2 represents April through June, Q3 

represents July through September, and Q4 represents October through December. 

I - Project components in italics are not expected to result in take. 

2 - We acknowledge that the schedule may need to shift, given unforeseeable circumstances (e.g., 

inclement weather, mechanical difficulties) but the dates and durations presented here represent the most 

realistic schedule. 
72566 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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-undermarine-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 largediameter 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 (Ku ̈ sel et 

al., 2022)), there is variance in the 

underlying ITAP data and there are 

parametric choices for the FD model in 

the different environments, so an exact 

match is not expected. As part of the 

comparison, it was found that different 

(but reasonable) parametric input 

choices in the FD modeling can result 

in output differences on the order of the 

variance in the ITAP data so it was 

concluded that the FD modeling 

approach performed as well as can be 

discernible given the available data. 

While adding 3 dB to the JASCO 

predictions at 750 m may bring JASCO’s 

source predictions into line with the 

finite-element (FE) predictions for the 

portmanteau combining computation, 

comparison, and pile (COMPILE) 

scenario but it is not clear that this 

would be more accurate. This approach 

assumes that the FE models are correct 

but Lippert et al. (2016) also state ‘‘a 

drawback of (the FE) approach is that it 

simulates the energy loss due to friction 

in an indirect and rather nonphysical 

way.’’ The Commission also suggested 

that NMFS could have used damped 

cylindrical spreading model (DCSM; 

Lippert et al., 2018) and the source 

levels provided by 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 

(1mPa)) 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 


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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/km2, 

there are usually tens of thousands of 

animats meaning there are tens of 

thousands of Monte Carlo samples. If 

the suggestion is to run the simulations 

(with tens of thousands of animats) 30 

times, that is equivalent to increasing 

the modeling density by 30. Previous 

work, such as the work done by Houser 

(2006), has indicated that such high 

modeling densities are not necessary. 

Please refer to NMFS’ related response 

to Comment 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 × 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 


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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 

(ER95%) 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. 


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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 reevaluated 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 windenergy 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 


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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/km2) is 

approximately half of the Lease Area 

maximum average monthly density. 

(0.0762 individuals/km2). 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 


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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-englandmid-atlantic/population-assessments/ 

atlantic-marine-assessment-programprotected). 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/incidentaltake-authorizations-other-energyactivities-renewable#expiredauthorizations), the group sizes 

observed align more with estimates 

found in Kraus et al. (2016) and 

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

reasons, the group sizes proposed by 

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 (Lpk). While NMFS 

agrees with the Commission’s comment 

that big bubble curtains (BBCs) 

attenuate high-frequency (HF) sound (<1 

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

2020) that corresponds to most of the 

UXO/MEC energy, the broadband 

attenuation is expected to be similar, if 

the bubble curtain radius is large 

enough to avoid nearfield effects of the 

explosive detonations. While it is true 

that theoretical explosive spectra are flat 

at low frequencies and decay at highfrequencies, there remains significant 

energy at frequencies at which bubble 

curtains have been shown to be effective 

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

of UXO/MEC detonations in the North 

Sea (Robinson et al., 2022) showed that 

measured spectra at 5.1 km had the 

majority of its energy between 32 and 

250 Hz, in this range, the insertion loss 

data from Bellman (2021) has a 

minimum attenuation of approximately 

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

is greater than 20 dB for all other bands. 

Further, Verfuss et al. (2019) summarize 

the effectiveness of bubble curtains on 

UXO/MEC detonations beyond those 

sizes considered in Bellman et al. (2021) 

which, while variable, provide support 

for the 10-dB broadband assumption 

when bubble curtains are deployed 

correctly (i.e., with a sufficiently large 

diameter to suppress the flow of 

displaced water). Therefore, the choice 

of 10 dB as a broadband attenuation for 

UXO/MEC detonations in our analysis is 

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 nonlinear zone. 

NMFS is requiring Revolution Wind 

to meet the noise levels modeled 

assuming 10-dB attenuation, which 


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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 


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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 projectrelated 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 


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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/newengland-mid-atlantic/consultations/ 

section-7-take-reporting-programmaticsgreater-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) softstart 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 mPa 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, 


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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 fulltime 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 piledriving clearance and shutdown zones 

for large whales (other than North 

Atlantic right whale) that are large 

enough to avoid all take by Level A 

harassment and 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. 


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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 mothercalf 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 


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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 

§ 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 


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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 directdrive, 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 preclearance 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 reinitiation 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 


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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 NMFSapproved 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, realtime 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. 


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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 modelestimated zones (i.e., acoustic ranges, 

exposure ranges, mitigation zones, 

monitoring zones) and which metrics 

(i.e., flat Rmax, flat R95%) 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 R95%

SEL and R95% SPLrms 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 SPLrms 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 

(SELcum) 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 SPLrms) 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 


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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-assessmentreports) and provides the most recent 

and best available estimate, including 

improvements to NMFS’ right whale 

abundance model. Specifically, Pace 

(2021) looked at a different way of 

characterizing annual estimates of agespecific survival. The results from the 

Pace (2021) paper that informed the 

final 2022 SARs strengthened the case 

for a change in mean survival rates after 

2010 through 2011, but did not 

significantly change other current 

estimates (population size, number of 

new animals, adult female survival) 

derived from the model. Furthermore, 

NMFS notes that the SARs are peer 

reviewed by other scientific review 

groups prior to being finalized and 

published and that the North Atlantic 

Right Whale Report Card (Pettis et al., 

2022) does not undertake this process. 

Based on this, NMFS has considered all 

relevant information regarding North 

Atlantic right whale, including the 

information cited by the commenters. 

However, NMFS has relied on the final 

2022 SAR in this final rule as it reflects 

the best available scientific information. 

We note that this change in 

abundance estimate does not change the 

estimated take of North Atlantic right 

whales or authorized take numbers, nor 

affect our ability to make the required 

findings under the MMPA for 

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, 


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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 interagency 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 

mPa2s) 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 mPa (returning to normal behavior 

within minutes) when exposed to an 

alert signal. However, the authors also 

reported that none of the whales 

responded to noise from transiting 

vessels or playbacks of ship noise even 

though the RLs were at least as 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 dBrms 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 


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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 exposureresponse relationships based on 

currently available data. 

NMFS acknowledges that there may 

be methods of assessing likely 

behavioral responses to acoustic stimuli 

that better capture the variation and 

context-dependency of those responses 

than the simple 160 dB step-function 

used here; there is no agreement on 

what that method should be or how 

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 


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(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 § 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 landbased 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-authorizationrevolution-wind-llc-constructionrevolution-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 


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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 causativelyassociated 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 modelestimated 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 modelestimated Level A harassment (PTS) 

take of sei whales (n=3) and 5 gray seals 

(n=5), as well 20 percent of the modelestimated 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 § 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 

§ 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 

§ 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. 


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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 § 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 onduty 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 R95≠ SEL and R95≠

SPLrms 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/marinemammal-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/marinemammal-stock-assessment-reports. 

BILLING CODE 3510–22–P 


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Table 2 -- Marine Mammal Species that May Occur in the Project Area and be 

Taken, by Harassment 

Stock 

ESA/MMP abundance 

Common Scientific Stock A status; (CV, Nmm, PBR Annual 

Name Name5 Strategic most recent M/SI3 

(Y/N)1 abundance 

survey)2 

Order Artiodactyla - Cetacea - Superfamily Mysticeti (baleen whales) 

Family Balaenidae 

North Eubalaena Western 338 (0; 332; Atlantic E,D,Y 0.7 31.26 

right whale glacial is Atlantic 2020) 6 

Family Balaenopteridae (rorquals) 

Balaenopter Western UNK 

Blue whale North E,D,Y (UNK;402; 0.8 0 a musculus Atlantic 1980-2008) 

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

Humpback Meg apter a Gulf of 1,396 (0; 

whale novaeanglia Maine -, -, y 1,380; 2016) 22 12.15 

e 

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

Balaenopter Canadian 21,968 

Minke a Eastern -, -, N (0.31; 170 10.6 whale acutorostrat Coastal 17,002; 

a 2016) 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae 

Sperm Physeter North 4,349 (0.28; 

whale macrocepha Atlantic E,D,Y 3,451; 2016) 3.9 0 

!us 

Family Delphinidae 

Atlantic Western 93,233 

white-sided Lagenorhyn North -, -, N (0.71; 544 27 

dolphin chus acutus Atlantic 54,433; 

2016) 

Atlantic Western 39,921 

spotted Stenella North -, -, N (0.27; 320 0 

dolphin frontalis Atlantic 32,032; 

2016) 
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Western 62,851 

Bottlenose Tursiops North -, -, N (0.23; 519 28 dolphin truncatus Atlantic 51,914; 

Offshore 2016) 

Western 39,215 

Long-fmned Globicephal North -, -, N (0.30; 306 29 pilot whales a melas Atlantic 30,627; 

2016) 

Western 35,215 

Risso's Grampus North -, -, N (0.19; 301 34 dolphin griseus Atlantic 30,051; 

2016) 

Western 172,897 

Common Delphinus North -, -, N (0.21; 1,452 390 dolphin delphis Atlantic 145,216; 

2016) 

Family Phocoenidae (porpoises) 

Gulf of 95,543 

Harbor Phocoena Maine/Bay -, -, N (0.31; 851 164 porpoise phocoena 74,034; of Fundy 2016) 

Order Carnivora - Superfamily Pinnipedia 

Family Phocidae (earless seals) 

Western 27,300 

Gray seal4 Halichoerus North -, -, N (0.22; 1,458 4,453 

grypus Atlantic 22,785; 

2016) 

Western 61,336 

Harbor seal Phoca North -, -, N (0.08; 1,729 339 vitulina 57,637; Atlantic 2018) 

l - ESA status: Endangered (E), Threatened (T) / MMPA status: Depleted (D). A dash(-) indicates that the 

species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a 

strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is 

determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species 

or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic 

stock. 

2 - NMFS' marine mammal stock assessment reports can be found online 

at: https:/lwwwjisheries.noaa.gov/national/marine-mammal-protectionlmarine-mammal-stockassessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. 

3 - These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious 

injury from all sources combined (e.g., commercial fisheries, vessel strike). 

4 - NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total 

stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is 

for the total stock. 

5 - Information on the classification of marine mammal species can be found on the web page for The 

Society for Marine Mammalogy's Committee on Taxonomy (https://marinemammalscience.org/scienceand-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2023)). 

6 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which 

represented the best available science at the time of publication. However, since the publication of the 

proposed rule, a new estimate (n=338) was released in NMFS' draft and final 2022 SARs and has been 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72591 

BILLING CODE 3510–22–C 

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, shortfinned 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 (Nbest) of North 

Atlantic right whales from 368 to 338 

individuals and the annual M/SI value 

from 8.1 to 31.2 due to the addition of 

estimated undetected mortality and 

serious injury, as described above, 

which had not been previously included 

in the SAR. The population estimate is 

slightly lower than the North Atlantic 

Right Whale Consortium’s 2022 Report 

Card, which identifies the population 

estimate as 340 individuals (Pettis et al., 

2023). Elevated North Atlantic right 

whale mortalities have occurred since 

June 7, 2017, along the U.S. and 

Canadian coast, with the leading 

category for the cause of death for this 

UME determined to be ‘‘human 

interaction,’’ specifically from 

entanglements or vessel strikes. Since 

publication of the proposed rule, the 

number of animals considered part of 

the UME has increased. As of 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-unusualmortality-event. 

Humpback Whale 

Since January 2016, elevated 

humpback whale mortalities have 

occurred along the Atlantic coast from 

Maine to Florida. This event was 

declared a UME in April 2017. Partial or 

full necropsy examinations have been 

conducted on approximately half of the 

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-mortalityevent-along-atlantic-coast). While a 

portion of the whales have shown 

evidence of pre-mortem vessel strike, 

this finding is not consistent across all 

whales examined and more research is 

needed. NOAA is consulting with 

researchers that are conducting studies 

on the humpback whale populations, 

and these efforts may provide 

information on changes in whale 

distribution and habitat use that could 

provide additional insight into how 

these vessel interactions occurred. More 

information is available at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2016-2023- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast. 

Since December 1, 2022, the number 

of humpback strandings along the midAtlantic coast, from North Carolina to 

New York, has been elevated. In some 

cases, the cause of death is not yet 


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incorporated into this final rule. In addition, the total annual average observed North Atlantic right whale 

mortality was updated in the final SARs from 8.1 to 31.2. Total annual average observed North Atlantic 

right whale mortality during the period 2016 through 2020 was 8.1 animals and annual average observed 

fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery 

mortality) are 2015 through 2019 estimated annual means, accounting for undetected mortality and serious 

injury. (Hayes et al., 2023). 
72592 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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 MidAtlantic. 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-minkewhale-unusual-mortality-event-alongatlantic-coast. 

Phocid Seals 

Since June 2022, elevated numbers of 

harbor seal and gray seal mortalities 

have occurred across the southern and 

central coast of Maine. This event was 

declared a UME in July 2022. 

Preliminary testing of samples has 

found some harbor and gray seals 

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-eventalong-maine-coast. 

The above event was preceded by a 

different UME, occurring from 2018– 

2020 (closure of the 2018–2020 UME is 

pending). Beginning in July 2018, 

elevated numbers of harbor seal and 

gray seal mortalities occurred across 

Maine, New Hampshire, and 

Massachusetts. Additionally, stranded 

seals have shown clinical signs as far 

south as Virginia, although not in 

elevated numbers, therefore the UME 

investigation encompassed all seal 

strandings from Maine to Virginia. A 

total of 3,152 reported strandings (of all 

species) occurred from July 1, 2018, 

through March 13, 2020. Full or partial 

necropsy examinations have been 

conducted on some of the seals and 

samples have been collected for testing. 

Based on tests conducted thus far, the 

main pathogen found in the seals is 

phocine distemper virus. NMFS is 

performing additional testing to identify 

any other factors that may be involved 

in this UME. Information on this UME 

is available online at: https://

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

2020-pinniped-unusual-mortality-eventalong. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 


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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 

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

2009; Reichmuth and Holt, 2013). For 

more detail concerning these groups and 

associated frequency ranges, please see 

NMFS (2018) for a review of available 

information. 

NMFS notes that in 2019a, Southall et 

al. recommended new names for 

hearing groups that are widely 

recognized. However, this new hearing 

group classification does not change the 

weighting functions or acoustic 

thresholds (i.e., the weighting functions 

and thresholds in Southall et al. (2019a) 

are identical to NMFS 2018 Revised 

Technical Guidance). When NMFS 

updates our Technical Guidance, we 

will be adopting the updated Southall et 

al. (2019a) hearing group classification. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

the Project’s specified activities have the 

potential to result in the harassment of 

marine mammals in the specified 

geographic region. The proposed rule 

(87 FR 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 midfrequency hearing sensitivities, when 

thresholds and weighting and the 

associated PTS zone sizes are 

considered, the potential for PTS from 

the noise produced by the project is 

negligible. The required mitigation and 

monitoring measures are expected to 

minimize the severity of the taking to 

the extent practicable. 

As described previously, no serious 

injury or mortality is anticipated or 

authorized for this project. Below we 

describe how the take 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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T bl 3 M a e -- arme M amma IH earine: G rou l)S (NMFS 2018) ' 

Hearing Group Generalized Hearing Range* 

Low-frequency (LF) cetaceans 7 Hzto 35 kHz (baleen whales) 

Mid-frequency (MF) cetaceans 

( dolphins, toothed whales, beaked whales, 150 Hz to 160 kHz 

bottlenose whales) 

High-frequency (HF) cetaceans 

(true porpoises, Kogia, river dolphins, 275 Hz to 160 kHz cephalorhynchid, Lagenorhynchus cruciger & L. 

australis) 

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

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the 

group), where individual species' hearing ranges are typically not as broad. Generalized hearing range 

chosen based on ~65 dB threshold from normalized composite audiogram, with the exception for lower 

limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 
72594 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

and, (4) and the number of days of 

activities. We note that while these 

basic factors can contribute to a basic 

calculation to provide an initial 

prediction of takes, additional 

information that can qualitatively 

inform take estimates is also sometimes 

available (e.g., previous monitoring 

results or average group size). Below, we 

describe the factors considered here in 

more detail and present the authorized 

take estimates. 

Marine Mammal Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Thresholds have also been developed to 

identify the levels above which animals 

may incur different types of tissue 

damage (non-acoustic Level A 

harassment or mortality) from exposure 

to pressure waves from explosive 

detonation. Thresholds have also been 

developed identifying the received level 

of in-air sound above which exposed 

pinnipeds would likely be behaviorally 

harassed. A summary of all NMFS’ 

thresholds can be found at (https://

www.fisheries.noaa.gov/national/ 

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

Level B harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

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

noises in the area) and the receiving 

animals (hearing, motivation, 

experience, demography, life stage, 

depth) and can be difficult to predict 

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

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (referenced to re 1 mPa) 

for continuous (e.g., vibratory pile 

driving, drilling) and above RMS SPL 

160 dB re 1 mPa 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 mPa (rms) thresholds are 

applicable. NMFS notes there are 

separate explosive thresholds to account 

for Level B harassment from a single 

detonation per day and those are 

included in Table 5 below. 

Level A harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). As dual metrics, NMFS 

considers onset of PTS (Level A 

harassment) to have occurred when 

either one of the two metrics is 

exceeded (i.e., metric resulting in the 

largest isopleth). 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-technicalguidance. 

BILLING CODE 3510–22–P 


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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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Table 4 -- Onset of Permanent Threshold Shift (PTS) (NMFS, 2018) 

PTS Onset Thresholds* 

Hearing Group (Received Level) 

Impulsive Non-impulsive 

Cell 1 Cell 2 

Low-Frequency (LF) Cetaceans Lp,0-pk,flat: 219 dB LE,p, LF,24h: 199 dB 

LE,p, LF,24h: 183 dB 

Cell 3 Cell 4 

Mid-Frequency (MF) Cetaceans Lp,0-pk,flat: 230 dB LE,p,MF,24h: 198 dB 

LE,p, MF,24h: 185 dB 

Cell 5 Cell 6 

High-Frequency (HF) Cetaceans Lp,0-pk,flat: 202 dB LE,p, HF,24h: 173 dB 

LE,p,HF,24h: 155 dB 

Phocid Pinnipeds (PW) Cell 7 Cell 8 

Lp,o-pk.t1a1: 218 dB LE,p,PW,24h: 201 dB (Underwater) LE,p,PW,24h: 185 dB 

* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for 

calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure 

level thresholds associated with impulsive sounds, these thresholds are recommended for consideration. 

Note: Peak sound pressure level (Lp,O-pk) has a reference value of 1 μPa, and weighted cumulative sound 

exposure level (LE,p) has a reference value of 1 μPa2s. In this Table, thresholds are abbreviated to be more 

reflective of International Organization for Standardization standards (ISO, 2017). The subscript "flat" is 

being included to indicate peak sound pressure are flat weighted or unweighted within the generalized 

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

sound exposure level thresholds indicates the designated marine mammal auditory weighting function 

(LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 

hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of 

ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action 

proponents to indicate the conditions under which these thresholds will be exceeded. 
72596 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

Additional thresholds for nonauditory 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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Table 5 -- PTS Onset, TTS Onset, for Underwater Explosives (NMFS, 2018) 

PTS Impulsive TTS Impulsive Behavioral Threshold 

Hearing Group Thresholds (Level A Thresholds (Level B (multiple detonations; 

harassment) harassment) Level B harassment)1 

Low-Frequency (LF) Cell I Cell 2 Cell 3 Lpk,flat: 219 dB Lpk,flat: 213 dB Cetaceans LE,LF,24h: 183 dB LE,LF,24h: 168 dB LE,LF,24h: 163 dB 

Mid-Frequency (MF) Cell 4 Cell 5 Cell 6 Lpk,flat: 230 dB Lpk,flat: 224 dB Cetaceans LE,MF,24h: 185 dB LE,MF,24h: 170 dB LE,MF,24h: 165 dB 

High-Frequency (HF) Cell 7 Cell 8 Cell 9 Lpk,flat: 202 dB Lpk,flat: 196 dB Cetaceans LE,HF,24h: 155 dB LE,HF,24h: 140 dB LE,HF,24h: 135 dB 

Phocid Pinnipeds (PW) Cell JO Cell I I Cell 12 Lpk,flat: 218 dB Lpk,flat: 212 dB (Underwater) LE,PW,24h: 185 dB LE,PW,24h: 170 dB LE,PW,24h: 165 dB 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for 

calculating PTS/TTS onset. 

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

(LE) has a reference value of 1 μPa2s. In this Table, thresholds are abbreviated to reflect American 

National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as 

incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the 

subscript "flat" is being included to indicate peak sound pressure should be flat weighted or unweighted 

within the overall marine mammal generalized hearing range. The subscript associated with cumulative 

sound exposure level thresholds indicates the designated marine mammal auditory weighting function 

(LF, MF, and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 

hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., 

varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to 

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

1 - 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. 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72597 

BILLING CODE 3510–22–C 

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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Table 6 -- Lung and G.I. Tract Injury Thresholds (DoN, 2017) 

Mortality 

Hearing Group 

All Marine Mammals 

(Severe lung injury)* 

Cell I 

Modified Goertner 

model; Equation 1 

Slight Lung Injury* 

Cell 2 

Modified Goertner 

model; Equation 2 

G.I. Tract Injury 

Cell 3 

Lpk,flat.' 23 7 dB 

* Lung injury (severe and slight) thresholds are dependent on animal mass (Recommendation: Table C.9 

from DoN (2017) based on adult and/or cal£'pup mass by species). 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa. In this Table, thresholds are abbreviated 

to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak 

sound pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance. 

Hence, the subscript "flat" is being included to indicate peak sound pressure should be flat weighted or 

unweighted within the overall marine mammal generalized hearing range. 

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

Equation 1: 103M113(1 + D/10.1)1/6 Pa-s 

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

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

D animal depth (meters) 
72598 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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/applyincidental-take-authorization). 

However, on June 20, 2022, the Duke 

Marine Geospatial Ecology Laboratory 

released a new, and more 

comprehensive, set of marine mammal 

density models for the area along the 

East Coast of the United States (Roberts 

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-authorizationrevolution-wind-llc-constructionrevolution-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 subsections 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 rangewide 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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Table 7 --Average Marine Mammal Species Group Sizes Used in Take Estimate 

Calculations 

Species Individuals Sightings Mean Group Size Source 

North Atlantic 145 60 2.4 Kraus et al. (2016) Right Whale* 

Blue Whale* 3 3 1.0 Palka et al. (2017) 

Fin Whale* 155 86 1.8 Kraus et al. (2016) 

Humpback Whale 160 82 2.0 Kraus et al. (2016) 

Minke Whale 103 83 1.2 Kraus et al. (2016) 

Sei Whale* 41 25 1.6 Kraus et al. (2016) 

Sperm Whale* 208 138 1.5 Palka et al. (2017) 

Atlantic Spotted 1334 46 29.0 Palka et al. (2017) Dolphin 

Atlantic White- 223 8 27.9 Kraus et al. (2016) Sided Dolphin 

Bottlenose 259 33 7.8 Kraus et al. (2016) Dolphin 

Common Dolphin 2896 83 34.9 Kraus et al. (2016) 

Pilot Whales 117 14 8.4 Kraus et al. (2016) 

Risso's Dolphin 1215 224 5.4 Palka et al. (2017) 

Harbor Porpoise 121 45 2.7 Kraus et al. (2016) 

Seals 

201 144 1.4 Palka et al. (2017) 

(Harbor and Gray) 

* Denotes species listed under the Endangered Species Act. 
72600 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

The estimated exposure and take 

tables for each activity present the 

density-based exposure estimates, PSOdate 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 activityspecific 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-oceanwind-lcc-construction-revolution-windwind-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., multipath 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 Ku ̈ 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. 


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Table 8 -- Hammer Ener!!V Schedules for Monopile Installation Used in Source Modeling 1 

Monopile foundations (7 /12-m diameter) OSS Foundations (7/15- m diameter) 

Hammer: IHC S-4000 Hammer: IHC S-4000 

Pile Pile 

Energy Level 

Strike Count Penetration Energy Level Strike Count Penetration 

(kilojoule, kJ) Depth (m) (kilojoule, kJ) Depth 

1,000 1,705 0-6 1,000 954 0-5 

2,000 3,590 6-24 2,000 2,944 5-17 

3,000 2,384 24-36 3,000 4,899 17-36 

4,000 3,061 36-50 4,000 2,766 36-50 

Total: 10,740 50 Total: 11,563 50 

1 - Modeled strike rate (min-1) for both schedules= 50 
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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 sitespecific environmental data that 

considers bathymetry, sound speed in 

the water column, and seabed geoacoustics 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 (Rmax) values are 

then compared to predetermined 

threshold levels to determine acoustic 

and exposure ranges to Level A 

harassment and Level B harassment 

zone isopleths. However, the ranges to 

a threshold typically differ among radii 

from a source, and might not be 

continuous along a radii because sound 

levels may drop below threshold at 

some ranges and then exceed threshold 

at farther ranges. To minimize the 

influence of these inconsistencies, 5 

percent of the farthest such footprints 

were excluded from the model data. The 

resulting range, R95%, was chosen to 

identify the area over which marine 

mammals may be exposed above a given 

threshold, because, regardless of the 

shape of the maximum-over-depth 

footprint, the predicted range 

encompasses at least 95 percent of the 

horizontal area that would be exposed 

to sound at or above the specified 

threshold. The difference between Rmax

and R95% depends on the source 

directivity and the heterogeneity of the 

acoustic environment. R95% excludes 

ends of protruding areas or small 

isolated acoustic foci not representative 

of the nominal ensonified zone. For 

purposes of calculating Level A 

harassment take, Revolution Wind 

applied exposure R95% ranges, not 

acoustic R95% ranges, to estimate take 

and determine mitigation distances for 

the reasons described below. 

In order to best evaluate the SELcum

harassment thresholds for PTS, it is 

necessary to consider animal movement, 

as the results are based on how sound 

moves through the environment 

between the source and the receiver. 

Applying animal movement and 

behavior within the modeled noise 

fields provides the exposure range, 

which allows for a more realistic 

indication of the distances at which PTS 

acoustic thresholds are reached that 

considers the accumulation of sound 

over different durations (note that in all 

cases the distance to the peak threshold 

is less than the SEL-based threshold). 

As described in Section 2.6 of 

Appendix A of 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 (ER95%)). The 

ER95% ranges are species-specific rather 

than categorized only by any functional 

hearing group, which allows for the 

incorporation of more species-specific 

biological parameters (e.g., dive 

durations, swim speeds, etc.) for 

assessing the impact ranges into the 

model. Furthermore, because these 

ER95% ranges are species-specific, they 

can be used to develop mitigation 

monitoring or shutdown zones. 

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 rerun 10 times, 1 of the 10 simulations 

would result in an animat exceeding the 

threshold. Similarly, a mean number 

prediction of 33.11 animats can be 

interpreted as re-running the simulation 

where the number of animats exceeding 

the threshold may differ in each 

simulation but the mean number of 

animats over all of the simulations is 

33.11. A portion of an individual marine 

mammal cannot be taken during a 

project, so it is common practice to 

round mean number animat exposure 

values to integers using standard 

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


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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 ER95% 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 SPLpeak and SPLcum 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) habitatbased 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 (ER95%) 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 mPa (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 Nbest 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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Table 9 -- Maximum Monthly Marine Mammal Densities (Animals Per Km2) Within and 

Around the Lease Area Out To 10 Km (6.2 Mi) 

Marine Mammal Species Highest Density 

North Atlantic right whale 1 0.0026 (December) 

Blue whale 1•

2 -

Fin whale 1 0.0029 (July) 

Humpback whale 0.0021 (May) 

Minke whale 0.0174 (May) 

Sei whale 1 0.0013 (May) 

Sperm whale 1 0.0004 (August) 

Atlantic spotted dolphin 0.0005 (October) 

Atlantic white-sided dolphin 0.0174 (May) 

Bottlenose dolphin 0.0091 (August) 

Common dolphin 0.0743 (December) 

Pilot whales3 0.0007 (annual) 

Risso's dolphin 0.0017 (December) 

Harbor porpoise 0.0515 (December) 

Seals (Harbor and Gray) 0.2225 (May) 

1 - Listed as Endangered under the Endangered Species Act. 

2 - Exposure modeling for the blue whale was not conducted because impacts to those species approach zero due to 

their low predicted densities in the Project; therefore, were excluded from all quantitative analyses and tables based 

on modeling results. 

3 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled density 

provided represents both species. However, short-finned pilot whales are not expected to occur in the Project Area, 

therefore, NMFS assumes that any take of pilot whales would be oflong-finned pilot whales. 
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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 (ER95≠) to the Level A SELcum

thresholds and Level B SPLrms 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 (ER95≠) 

calculated using winter sound speed 

profile, which are longer than ER95≠

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 lowfrequency 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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Table 10 -- Exposure Ranges1 (ER9s%), in Kilometers, to Level A (SELcum) Thresholds for 

Installation of One and Three 7/12-m WTG Monopiles (10,740 Strikes) and One 7/15-m 

OSS Monopile (11,564 Strikes) During Summer and Winter Assuming 10-dB Attenuation 

SELcum WTG Monopile (1 WTG Monopile (3 OSS Monopile (1 

Hearing Threshold pile/day) piles/day) pile/day) 

Group (dB re 1 

μPa2 ·s) Summer Winter Summer Winter Summer Winter 

Low- 183 frequency 

North 

Atlantic - 1.85 3.42 1.93 3.97 1.25 2.66 Right 

Whale* 

Fin - 2.15 3.53 2.23 4.38 1.57 2.68 Whale* 

Humpback - 2.46 4.88 2.66 6.29 1.79 3.56 Whale 

Minke - 1.32 3.03 1.51 3.45 0.94 1.81 Whale 

Sei - 1.42 2.82 1.81 3.67 1.22 2.05 Whale* 

Mid- 185 0 0.01 0.02 0.02 0 0 frequency 

High- 155 1.28 2.29 1.34 2.33 0.83 1.25 frequency 

Phocid 185 0.6 0.73 0.44 0.81 0.37 0.37 pinnipeds 

* Denotes species listed under the Endangered Species Act. 

1 - Exposure ranges are a result of animal movement modeling. 
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As mentioned previously, acoustic 

ranges (R95%) 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): 

• WTG monopile: 3,833 m (4,271 m) 

• 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 SELcum threshold 

and associated exposure ranges (Table 

10), as the very short distances to 

isopleths based on the Level A SPLpk

thresholds (Table 14 in the ITA 

application) resulted in no meaningful 

likelihood of take from exposure to 

those sound levels. The Level B 


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Table 11 -- Exposure Ranges1 (ER9s%), in Kilometers, to the Level B (SPLrms) 

Isopleth for Installation of One and Three 7/12-m WTG Monopiles or One 7/15-m 

OSS Monopile During Summer and Winter Assuming 10-dB Attenuation 

Hearing WTG Monopile (1 pile/day) WTG Monopile (3 OSS Monopile (1 pile/day) 

Group piles/day) 

Summer Winter Summer Winter Summer Winter 

North 3.70 4.06 3.67 3.95 3.51 3.75 

Atlantic 

Right 

Whale* 

Fin Whale* 3.72 4.05 3.76 4.09 3.62 3.88 

Humpback 3.75 4.15 3.72 4.11 3.61 3.87 

Whale 

Minke 3.71 4.07 3.63 4.07 3.56 3.84 

Whale 

Sei Whale* 3.66 4.11 3.67 4.02 3.58 3.92 

Mid- 3.69 4.07 3.67 4.03 3.63 3.81 

frequency 

High- 3.71 4.00 3.62 4.03 3.50 3.91 

frequency 

Phocid 3.79 4.21 3.80 4.23 3.75 4.02 

pinnipeds 

* Listed as Endangered under the Endangered Species Act. 

1 - Exposure ranges are a result of animal movement modeling. 
72608 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

exposure estimates shown in Table 12 

are based on the exposure ranges 

resulting from sound exposure modeling 

using the unweighted 160 dB SPLrms

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 ER95%

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 densitybased 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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Table 12 -- Estimated Take, By Level A Harassment and Level B Harassment, for 

79 (7/12-m) WTG and Two (7/15-m) OSS Monopile Foundation Installations 

Assumine: 10-dB Attenuation 

Exposure Modeling Take Authorized Authorized 

Species Estimates1 PSO Data Mean Group Annual Level Annual Level Level A Level B Take Estimate Size 

(SPLcwn) (SPLnn,) A Take B Take 

North Atlantic 17.5 21.6 1.4 2.4 0 22 Right Whale* 

Blue Whale* NIA NIA - 1.0 0 1 

Fin Whale* 6.4 14.9 15.8 1.8 22 16 

Humpback 6.5 11.5 47.1 2.0 7 48 Whale 

Minke Whale 60.9 191.2 5.8 1.2 132 192 

Sei Whale* 2.5 7.8 0.4 1.6 33 8 

Sperm Whale* 0.0 2.8 - 1.5 0 3 

Atlantic 

Spotted 0.0 0.0 - 29.0 0 29 

Dolphin 

Atlantic 

White-Sided 0.1 199.5 4.6 27.9 0 200 

Dolphin 

Bottlenose 0.0 68.8 51.4 7.8 0 69 Dolphin 

Common 0.0 1,327.6 1,308.9 34.9 0 1,328 Dolphin 

Long-finned 0.0 5.5 - 8.4 0 9 pilot whales4 

Risso's 0.0 15.5 3.6 5.4 0 16 Dolphin 

Harbor 320.9 661.0 1.3 2.7 652 661 Porpoise 

Gray Seal 4.9 731.1 3.5 1.4 53 732 

Harbor Seal 32 328.0 4.6 1.4 72 329 

* Denotes species listed under the Endangered Species Act. 

1 - Exposure estimates assume all piles will be installed in a single year. 

2 - NMFS considers it unlikely that 7 fm whales, 61 minke whales, 321 harbor porpoises, and 32 harbor 

seals would enter their respective Level A harassment (PTS) zone undetected and remain there for an 

extended period of time, given the extensive monitoring and mitigation (e.g., large clearance zones) NMFS 

is requiring Revolution Wind to implement. Thus, NMFS is authorizing 20 percent of the model-estimated 

Level A harassment (PTS) (rounded to the nearest whole number). 

3 - NMFS is authorizing take, by Level A harassment, of 3 sei whales and 5 gray seals, both of which are 

based solely on the density-based exposure estimates (rounded up to the nearest whole number) resulting 

from animal movement modeling. We did not apply a 20 percent reduction to density-based exposure 

estimates for these species given the exposure estimates are low in number and/or similar to a group size. 

4 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled 

density provided represents both species. However, short-finned pilot whales are not expected to occur in 

the Project Area; therefore, NMFS assumes that any take of pilot whales would be oflong-finned pilot 

whales. 
72610 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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: 

• Shallow water RWEC: Site S1; In 

the channel within Narragansett Bay (12 

m depth); 

• Shallow water RWEC: Site S2; 

Intermediate waters outside of 

Narragansett Bay (20 m depth); 

• Shallow water Lease Area: Site S3; 

Shallower waters in the southern 

portion of the Hazard Zone 2 area (30 

m depth); 

• Deeper water Lease Area: Site S4; 

Deeper waters in northern portion of the 

Hazard Zone 2 area (45 m depth). 

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 R95% among all sites (S1–S4) to 

the SEL-based PTS-Onset and SELbased 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-authorizationrevolution-wind-llc-constructionrevolution-wind-energy). 

NMFS notes that the more detailed 

results for the mortality and nonauditory 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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Table 13 -- SEL-based R9s% PTS-Onset Ranges, in Meters, from all Site Modeled During UXO/MEC D

Weight1 Assuming 10-dB Sound Attenuation 

Marine 2.3 kg (5.1 lbs) 9.1 kg (20.1 lbs) 45.5 kg (100.3 lbs) 227 kg (500 lbs) 

Mammal 

Hearing Rmax R9s% Rn.ax R9s% Rmax R9s% Rmax R9s% 

Group 

LFC 632 552 1,230 982 2,010 1,730 3,370 2,970 

MFC <50 <50 79 75 175 156 419 337 

HFC 2,100 1,820 3,020 2,590 4,400 3,900 6,130 5,400 

pp 192 182 413 357 822 690 1,410 1,220 

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

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Table 14 -- SEL-based R9s% TTS-Onset Ranges, in Meters, from all Site Modeled During UXO/MEC D

Weight, Assuming 10-dB Sound Attenuation 

Marine 2.3 kg (5.1 lbs) 9.1 kg (20.1 lbs) 45.5 kg (100.3 lbs) 227 kg (500 lbs) 

Mammal 

Hearing 

Group Rmax R95% Rn.ax R95% Rmax R95% Rmax R95% 

LFC 3,140 2,820 5,230 4,680 8,160 7,490 11,700 10,500 

MFC 535 453 910 773 1,520 1,240 2,400 2,120 

HFC 6,920 6,160 8,970 8,000 11,300 10,300 14,600 12,900 

pp 1,730 1,470 2,710 2,350 4,340 3,820 6,640 5,980 

Note: LFC = low-frequency cetaceans; MFC = mid-frequency cetaceans; HFC = high-frequency cetaceans; PP= phocid pinnipeds 
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To estimate the maximum ensonified 

zones that could result from UXO/MEC 

detonations, the R95% 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 

× r2 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 speciesspecific 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 


ddrumheller on DSK120RN23PROD with RULES2ER20OC23.018</GPH>

Table 15 -- Maximum of Average Monthly Marine Mammal Densities 

(Individuals/km2) Within 15 Km of the RWEC and Lease Area (May-November), 

and Associated Month 

RWEC Lease Area 

Species Maximum Density Maximum Density Maximum Density Month Maximum Density Month 

North Atlantic 0.0009 May 0.0019 May right whale* 

Blue whale* 0.0000 Annual 0.0000 Annual 

Fin whale* 0.0015 July 0.0029 July 

Humpback whale 0.0014 May 0.0020 May 

Minke whale 0.0110 May 0.0167 May 

Sei whale* 0.0007 May 0.0012 May 

Sperm whale* 0.0002 August 0.0004 August 

Atlantic spotted 0.0002 October 0.0007 October dolphin 

Atlantic white- 0.0086 May 0.0175 May sided dolphin 

Bottlenose dolphin 0.0047 July 0.0093 August 

Common dolphin 0.0389 November 0.0762 September 

Pilot whales 1 0.0001 Annual 0.0007 Annual 

Risso's dolphin 0.0003 November 0.0006 November 

Harbor porpoise 0.0218 May 0.0392 May 

Grey Seal 0.0769 May 0.0692 May 

Harbor Seal 0.1728 May 0.1554 May 

* Denotes species listed under the Endangered Species Act. 

1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled 

density provided represents both species. However, short-finned pilot whales are not expected to occur in 

the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales. 
72614 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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 R95% 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, 

SELcum) 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 whitesided 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. 

BILLING CODE 3510–22–P 


ddrumheller on DSK120RN23PROD with RULES2
BILLING CODE 3510–22–C 

While there would be no more than 

visually observe for North Atlantic right 

day restrictions; (3) use of PSOs to 

year/seasonal restrictions; (2) time of 

marine mammals, including: (1) time of 

prevent mortality and/or injury of 

specific mitigation measures designed to 

Project activities and therefore have 

cause mortality and injury than other 

detonations have a higher potential to 

(approximately 1 second), UXO/MEC 

which would be of very short duration 

13 detonations of UXOs/MECs, each of 

PAM operators. 

and acoustic monitoring by PSOs and 

(7) post-detonation monitoring visual 

use of noise mitigation technology; and, 

implementation of clearance zones; (6) 

detect North Atlantic right whales; (5) 

whales; (4) use of PAM to acoustically 

The mitigation measures Revolution 

harassment to the extent practicable. 

(PTS) and, to a degree, Level B 

the likelihood of Level A harassment 

MEC detonations are expected to reduce 

Wind must implement during any UXO/ 

Goal Post Installation and Removal 

Temporary Cofferdam or Casing Pipe/ 

harassment (PTS) for multiple species. 

remains potential for Level A 

However, as described above, there 

Acoustic modeling, using JASCO’s 

performed for 

modeling impact pile driving), was 

MONM–BELLHOP model (used for 

;rsted’s Sunrise Wind 

harassment isopleths resulting from 

the Level A harassment and Level B 

Farm project to determine distances to 


ER20OC23.019</GPH>ddrumheller on DSK120RN23PROD with RULES2

Table 16 -- Estimated and Authorized Level A Harassment and Level B Harassment Takes R

Detonation of Up to 13 UXOs, Assuming 10-dB of Sound Attenuation, Over 5 Years 

Modeled Level A Harassment Modeled Level B Harassment 

Species Total (LA LA1 RWEC2 LA +RWEC) 

North 

Atlantic 0.6 0.2 0.8 6.0 Right 

Whale* 

Blue 0.0 0.0 0.0 0.0 Whale* 

Fin Whale* 0.8 0.4 1.2 8.9 

Humpback 0.6 0.4 0.9 6.1 Whale 

Minke 4.8 3.0 7.7 51.1 Whale 

Sei Whale* 0.4 0.2 0.5 3.8 

Sperm 0.0 0.0 0.0 0.1 Whale* 

Atlantic 

Spotted 0.0 0.0 0.0 0.1 

Dolphin 

Atlantic 

White-Sided 0.1 0.0 0.1 2.4 

Dolphin 

Bottlenose 0.0 0.6 0.1 1.3 Dolphin 

Common 0.3 0.2 0.4 10.3 Dolphin 

Long-finned 

Pilot 0.0 0.0 0.0 0.1 

Whales5 

Risso's 0.0 0.0 0.0 0.1 Dolphin 

Harbor 33.1 15.8 48.9 161.9 Porpoise 

Gray Seal 7.9 8.7 16.6 176.7 

Harbor Seal 3.0 3.3 6.3 66.7 

• Denotes species listed under the Endangered Species Act 

1 - LA = Lease Area 

2 - R WEC = Revolution Wind Export Cable route 

Total (LA RWEC andRWEC) 

5.2 11.2 

0.0 0.1 

7.8 16.7 

5.3 11.4 

44.6 95.7 

3.3 7.1 

0.0 0.1 

0.1 0.2 

2.1 4.5 

1.1 2.4 

9.3 19.6 

0.1 0.2 0.1 0.2 

147.0 308.9 150.2 326.8 

56.7 123.5 

PSOData 

Take 

Estimate 

0.5 

-

3.2 

9.6 

2.0 

0.1 

--

0.7 

13.7 

386.9 

-

1.0 

0.3 

0.9 

1.1 

Mean 

Si

2.

1.1.

2.

1.

1.

1.

2927

7.

34

8.

5.

2.

0.

1.

3 - NMFS is authorizing Level A harassment of the modeled number of Level A harassment (PTS) takes. rounded 

and/or group size, as appropriate, in addition to the Level A harassment (PTS) take of harbor porpoises, gray seals, 

authorization (87 FR 79072, December 23, 2022). 

4 - NMFS is authorizing 632 Level B harassment takes of common dolphins incidental to UXO/MEC detonations, 

number of Level B harassment takes Revolution Wind requested (n=387) and an additional 245 takes as a result of 

questioning if the amount of proposed take was sufficient. 

5 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density 

However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any tak

long-fmned pilot whales. 
72616 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

installation and removal of steel sheet 

piles to construct cofferdams and goal 

posts, and installation and removal of 

casing pipes using pneumatic 

hammering (Ku ̈ 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 (Ku ̈ 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 (SELcum) 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 (SPLpk) thresholds are not 

expected to be generated by pneumatic 

hammering. The estimated distances to 

Level A harassment SELcum 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 

SELcum 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 VignessRaposa 2010), (2) the large distance to 

the Level A harassment SELcum

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 (Ku ̈ 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 mPa2·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) (Ku ̈ sel et 

al., 2021). 

Additional details on the acoustic 

modeling conducted for the Sunrise 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 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-sunrisewind-llc-construction-and-operationsunrise-wind. 

Similar to the modeling approach for 

impact pile driving, distances to 

harassment thresholds are reported as 

R95% values (Table 18). Distances to the 

Level A harassment threshold (SELcum) 

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. 

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 

km2 (20.9 mi2) potentially being 

ensonified above the 120 dB threshold. 

As a cautionary approach, this 54.1 km2

(20.9 mi2) 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 habitatbased 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 


ddrumheller on DSK120RN23PROD with RULES2ER20OC23.020</GPH> ER20OC23.021</GPH>

Table 17 -- Sheet Pile Installation Key Piling Assumptions Used in the Source 

Modeline: 

Parameter Model Input 

Vibratory Hammer APE300 

Pile Type Sheet Pile 

Pile Length 30m 

Pile Width 0.6m 

Pile Wall Thickness 2.54 cm 

Seabed Penetration 10m 

Time to Install 1 Pile 2 hours 

Number of Piles per Day 4 

Table 18 -- Acoustic Ranges (R9s%), in Meters, to Level A Harassment {PTS) and 

Level B Harassment Thresholds from Vibratory Pile Driving, Assuming a Winter 

Sound Speed Profile 

Marine Mammal Hearing Group Level A Harassment SELcum Level B Harassment SPLnns 

Thresholds (dB re 1 μPa2·s) Threshold (120 dB re 1 μPa) 

Low-frequency 5 9,740 

Mid-frequency - 9,740 

High-frequency 190 9,740 

Phocid pinniped 10 9,740 
72618 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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 

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*r2, 

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 km2) for installation of sheet piles. 

Given that use of the vibratory hammer 

during cofferdam installation and 


ddrumheller on DSK120RN23PROD with RULES2ER20OC23.022</GPH>

Table 19 -- Maximum Monthly Marine Mammal Densities In and Near the Mouth 

of Narragansett Bay and the Month in Which Each Maximum Density Occurs 

Species Maximum Monthly Density Maximum Density Month (Jnd/km2) 

North Atlantic Right Whale* 0.0002 March 

Blue Whale* 0.0000 Annual 

Fin Whale* 0.0000 -

Humpback Whale 0.0004 December 

Minke Whale 0.0005 May 

Sei Whale* 0.0002 April 

Sperm Whale* 0.0000 -

Atlantic Spotted Dolphin 0.0000 -

Atlantic White-Sided Dolphin 0.0004 November 

Bottlenose Dolphin 0.0002 September 

Common Dolphin 0.0065 November 

Pilot Whales 1 0.0000 -

Risso's Dolphin 0.0000 -

Harbor Porpoise 0.0125 December 

Gray seal 0.128 October 

Harbor seal 0.204 October 

* Denotes species listed under the Endangered Species Act. 

1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled 

density provided represents both species. However, short-finned pilot whales are not expected to occur in 

the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales. 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 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). 

BILLING CODE 3510–22–P 


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Table 20 -- Estimated Level B Harassment Incidental to Cofferdam, Goal Posts, or 

Casing Pipe Construction 

Species Exposure Estimate PSO Data Take Mean Group Size Highest Level B 

Estimate Take 

Atlantic Spotted 0.1 - 29.0 29 Dolphin 

Atlantic White- 1.2 5.2 27.9 28 Sided Dolphin 

Bottlenose 0.5 59.2 7.8 60 Dolphin 

Common Dolphin 19.6 1,666.6 34.9 1,667 

Long-finned Pilot 0.0 - 8.4 9 Whales1 

Risso's Dolphin 0.1 4.1 5.4 6 

Harbor Porpoise 37.8 1.5 2.71 38 

Gray Seal 833.1 2.5 1.4 834 

Harbor Seal 314.7 3.2 1.4 315 

* Denotes species listed under the Endangered Species Act. 

1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled 

density provided represents both species. However, short-finned pilot whales are not expected to occur in 

the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales. 
72620 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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. 

BILLING CODE 3510–22–P 


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Table 21 -- Estimated Level A harassment (PTS) Incidental to Casing Pipe 

Installation 

Species Level A harassment (PTS) take 

Harbor porpoises 241 

1 - NMFS has authorized Level A harassment (PTS) of24 harbor porpoises. NMFS calculated this number 

of takes by multiplying group size (2.7, rounded to 3) times the number of days on which pneumatic 

hammering will occur (n=8). 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72621 

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 

(SPLrms) at the 160-dB isopleth for the 

purposes of estimating the extent of 

Level B harassment isopleths associated 

with HRG survey equipment (NMFS, 

2020). This methodology incorporates 

frequency-dependent absorption and 

some directionality to refine estimated 

ensonified zones. Revolution Wind used 

NMFS’ methodology with additional 

modifications to incorporate a seawater 

absorption formula and account for 


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Table 22 -- Summary of representative HRG Survey equipment 

Equipment IRepresentat Operating Source Source Pulse Repetition Beamwidth Informatio Frequency Level Level 0-pk Duration Type ive Model (kHz) SPLrm,(dB' (dB) (ms) Rate (Hz) (degrees) n Source 

EdgeTech 2-16 195 - 20 6 24 MAN 216 

EdgeTech 4-24 176 - 3.4 2 71 CF 424 

Edgetech 0.7 -12 179 - 9 8 80 CF Sub-bottom 512 

Profiler GeoPulse 2-17 196 50 10 55 MAN 5430A -

Teledyn 

Benthos 2-17 197 60 15 100 MAN CHIRP III -

- TTY 170 

Applied 

Acoustics 

Sparker Dura-Spark 0.3 -1.2 203 211 1.1 4 Omni CF 

UHD (400 

~ips, 500 J)1 

Applied 

Acoustics 

Boomer triple plate 0.1-5 205 211 0.6 4 80 CF S-Boom 

(700-1,000 

J)2 

- = not applicable; ET= EdgeTech; J = joule; kHz= kilohertz; dB = decibels; SL = source level; UHD = 

ultra-high defmition; AA = Applied Acoustics; rms = root-mean square; μPa= microPascals; re = 

referenced to; SPL = sound pressure level; PK = zero-to-peak pressure level; Omni = omnidirectional 

source. 

1 - The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used 

for all sparker systems that will be used in the surveys. These include variants of the Dura-spark sparker 

system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in 

Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with 

comparable operating methods and settings when manufacturer or other reliable measurements are not 

available. 

2 - Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources 

(CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 J measurements but not in the 

1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted 

in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom. 
72622 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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 

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). 


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Table 23 -- Distances to the Level B Harassment Thresholds for Each HRG Sound 

Source or Comparable Sound Source Category for Each Marine Mammal Hearing 

Group 

Distance to Level B harassment 

Equipment Type Representative Model threshold (m) 

All (SPLnns) 

EdgeTech 216 9 

EdgeTech 424 4 

Sub-bottom Profiler Edgetech 512 6 

GeoPulse 5430A 21 

Teledyn Benthos CHIRP III - 48 TTV 170 

Applied Acoustics Dura-Spark 

UHD (700 tips, 1,000 J) 34 

Sparker Applied Acoustics Dura-Spark 141 UHD ( 400 tips, 500 J) 

Applied Acoustics Dura-Spark 

UHD ( 400 tips, 500 J) 141 

Boomer Applied Acoustics triple plate S- 141 Boom (700-1,000 J) 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72623 

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 × 2r) + pi*r2

Where r is the linear distance from the 

source to the harassment isopleth. 

The largest daily ZOI (19.8 km2), 

associated with the use of boomers and 

sparkers, was applied to all planned 

vessel days. 

Potential Level B harassment densitybased 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 densitybased, PSO based, or average group sizebased 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 


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Table 24 -- Annual Average Marine Mammal Densities (lndiv/km.2) Along the 

RWEC and Lease Area 

Species RWEC Lease Area 

North Atlantic Right Whale* 0.0011 0.0027 

Blue Whale* 0.0000 0.0000 

Fin Whale* 0.0008 0.0016 

Humpback Whale 0.0008 0.0010 

Minke Whale 0.0022 0.0044 

Sei Whale* 0.0003 0.0004 

Sperm Whale* 0.0001 0.0001 

Atlantic Spotted Dolphin 0.0000 0.0001 

Atlantic White-Sided Dolphin 0.0038 0.0090 

Bottlenose Dolphin 0.0021 0.0049 

Common Dolphin 0.0202 0.0409 

Pilot Whales 1 0.0001 0.0005 

Risso's Dolphin 0.0001 0.0003 

Harbor Porpoise 0.0191 0.0316 

Seals (Harbor and Gray) 0.1477 0.1182 

* Denotes species listed under the Endangered Species Act. 

1 - Roberts et al. (2023) does not distinguish between short- and long-finned pilot whales, thus the pooled 

density provided represents both species. However, short-finned pilot whales are not expected to occur in 

the Project Area, thus NMFS assumes that any take of pilot whales would be oflong-finned pilot whales. 

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Table 25 -- Estimated Take, by Level B Harassment, Incidental to HRG Surveys during the Construction Period (Y

1) 

Modeled Modeled Total Density- PSO Data Take Authorized L

Species Exposures Lease Exposures RWEC based Take Estimate Mean Group Size BTake Area Estimate 

North Atlantic 7.4 1.8 9.2 2.4 10 Right Whale* -

Blue Whale* 0.0 0.0 0.0 - 1.0 1 

Fin Whale* 4.4 1.4 5.8 6.6 1.8 7 

Humpback Whale 2.8 1.2 4.0 16.5 2.0 17 

Minke Whale 11.8 3.7 15.5 5.9 1.2 16 

Sei Whale* 1.1 0.4 1.6 - 1.6 2 

Sperm Whale* 0.4 0.1 0.5 - 1.5 2 

Atlantic Spotted 0.3 0.1 0.3 - 29.0 29 Dolphin 

Atlantic White- 24.5 6.5 31.0 27.9 31 Sided Dolphin -

Bottlenose 13.2 3.8 17.0 100.1 7.8 101 Dolphin 

Common Dolphin 110.5 33.5 144.0 2,353.4 34.9 4,457 1 

Long-Finned Pilot 1.4 0.1 1.5 - 8.4 9 Whales2 

Risso's Dolphin 0.8 0.2 1.0 2.3 5.4 6 

Harbor Porpoise 85.4 30.9 116.3 - 2.7 117 

Gray Seal 232.0 177.9 410.0 7.1 1.4 410 

Harbor Seal 87.7 67.2 154.9 11.2 1.4 155 

* Denotes species listed under the Endangered Species Act. 

1 - In response to consideration of a comment from the Commission, NMFS is authorizing 4,457 Level B harassment takes of common dolphins 

incidental to HRG surveys during construction (Years 1), which is an 80 percent increase from the number in the proposed rule (2,354). The 

percentage increase is based on PSO observations in/near the Lease Area (Smultea Environmental Services, 2020). 

2 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represents both spec

However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales would be of

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

BILLING CODE 3510–22–P 


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Activities 

Total Authorized Take Across All 

BILLING CODE 3510–22–C 

NMFS is authorizing take by Level A 

Project activities combined (

and Level B harassment incidental to 

i.e., impact 

hammering to install and remove 

cofferdams and goal posts, pneumatic 

install and remove temporary 

attenuation), vibratory pile driving to 

monopile foundations (assuming 10-dB 

pile driving to install WTG and OSS 

30.2 days of HRG surveys, and potential 

UXO/MEC detonations. Year 2 includes 

installation/removal, and mitigated 

OSS foundations, cofferdam 

surveys, impact installation of WTG and 

estimates include 165.7 days of HRG 

provided in Table 27. The Year 1 take 

Revolution Wind’s current schedule, is 

that would occur in each year, based on 

shown in Table 27. The number of takes 

attenuation), and HRG surveys) as 

detonations (assuming 10-dB 

temporary casing pipes UXO/MEC 

outside of Year 1; however, all of the 

WTGs and OSSs could also occur 

impact pile driving activities for the 

most accurate construction scenario. All 

allocated to Year 1 as this represents the 

2, all of the authorized takes were 

installation/removal could occur in Year 

Although temporary cofferdam 

include 30.2 days of HRG surveys. 

for Year 1 occur. Years 3, 4, and 5 each 

whether or not delays in the schedule 

monopile foundations, depending on 

impact installation of WTG and OSS 


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Table 26 -- Estimated Take, by Level B Harassment, from HRG Surveys During Non-constru

and Total 4-year Take 

Annual Total AnnualPSO Mean Group Hi

Species Lease Area RWEC Density-based Data Take Size L

Exposures Estimate 

North Atlantic 1.6 0.5 Right Whale* 2.1 - 2.4 

Blue Whale* 0.0 0.0 0.0 - 1.0 

Fin Whale* 1.0 0.4 1.3 1.6 1.8 

Humpback 0.6 0.4 1.0 4.0 2.0 

Whale 

Minke Whale 2.6 1.0 3.6 1.5 1.2 

Sei Whale* 0.3 0.1 0.4 - 1.6 

Sperm Whale* 0.1 0.0 0.1 - 1.5 

Atlantic Spotted 0.1 0.0 0.1 - 29.0 

Dolphin 

Atlantic White- 5.4 1.8 Sided Dolphin 7.2 - 27.9 

Bottlenose 2.9 1.0 3.9 24.6 7.8 

Dolphin 

Common 24.5 9.4 33.8 578.0 34.9 

Dolphin 

Long-Finned 0.3 0.0 0.3 - 8.4 

Pilot Whales2 

Risso's Dolphin 0.2 0.1 0.2 0.6 5.4 

Harbor Porpoise 18.9 8.9 27.8 - 2.7 

Gray Seal 64.1 29.8 113.9 1.7 1.4 

Harbor Seal 24.2 18.8 43.0 2.7 1.4 

* Denotes species listed under the Endangered Species Act. 

1 - In response to consideration of a comment from the Commission, NMFS is authorizing 1,094 Level B harassmen

year (Years 2-5) incidental to HRG surveys, which an 80 percent increase from the number in the proposed rule (57

B harassment takes of common dolphins in non-construction year. The percentage increase is based on PSO observa

(Smultea Environmental Services, 2020). 

2 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density pr

However, short-finned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take 

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


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Table 27 -- Annual and Total 5-Year Estimated Level A Harassment and Level B Harassment Ta

Conducted During the Revolution Wind Offshore Wind Energy Facility Project (2023-2028) 

NMFS Year 1 (Maximum) Year2 Year3 Year4 Year 5 

Species Stock Abundanc Level A Level B Level A Level B Level A Level B Level A Level B Level A L

e 

North 

Atlantic 3381 0 44 0 3 0 3 0 3 0 

Right 

Whale* 

Blue 4122 0 3 0 1 0 1 0 1 0 

Whale* 

Fin 6,802 4 40 0 2 0 2 0 2 0 

Whale* 

Humpbac 1,396 9 77 0 5 0 5 0 5 0 

k Whale 

Minke 21,968 21 304 0 4 0 4 0 4 0 

Whale 

Sei 6,292 5 18 0 2 0 2 0 2 0 

Whale* 

Sperm 4,349 0 7 0 2 0 2 0 2 0 

Whale* 

Atlantic 

Spotted 39,921 0 116 0 29 0 29 0 29 0 

Dolphin 

Atlantic 

White- 93,233 28 287 0 28 0 28 0 28 0 

sided 

Dolphin 

Bottlenos 62,851 8 244 0 25 0 25 0 25 0 

e Dolphin 

Common 172,974 35 8,084 0 1,094 0 1,094 0 1,094 0 

Dolphin 

Longfinned 39,2154 0 36 0 9 0 9 0 9 0 

Pilot 

Whales3 

Risso's 35,215 0 34 0 6 0 6 0 6 0 

Dolphin 

Harbor 95,543 138 1,125 0 28 0 28 0 28 0 

Porpoise 
In making the negligible impact 

marine mammals that could occur 

greatest number of authorized take of 

numbers finding, NMFS assesses the 

determination and the necessary small 

harassment (PTS) takes in any one year 

maximum estimated number of Level A 

1 for all species. In this calculation, the 

this rule is based on the predicted Year 

within any 1 year, which in the case of 

take that could occur in any year. We 

to yield the highest amount of estimated 

takes in any one year for each species 

estimated number of Level B harassment 

is summed with the maximum 


ER20OC23.031</GPH>ddrumheller on DSK120RN23PROD with RULES2

Grav Seal 27,300 22 2,303 0 114 0 114 0 114 0 

Harbor 61,336 14 923 0 44 0 44 0 44 0 

Seal 

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

1 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the b

time of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS' fm

incorporated into this fmal rule. In addition, the total annual average observed North Atlantic right whale mortality was upd

8.1 to 31.2. Total annual average observed North Atlantic right whale mortality during the period 2016 through 2020 was 8

average observed fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mo

2019 estimated annual means, accounting for undetected mortality and serious injury. (Hayes et al., 2023). 

2 - The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this 

determination, as shown in parenthesis. 

3 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided 

However, short-fmned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilo

fmned pilot whales. 

4 - Long-finned pilot whale abundance estimate (Hayes et al., 2023). 
BILLING CODE 3510–22–C 


ER20OC23.032</GPH>ddrumheller on DSK120RN23PROD with RULES2

Table 28 -- Maximum Number of Authorized Takes (Level A Harassment and Level B Harassment) tha

in Any 1 Year of the Project and the Total Percent Stock that Would be Taken Based on the Maximum 

Authorized Take 

Max Annual Take (Max To

Species NMFS Max Max Level A Harassment + 

Stock Abundance Level A Harassment Level B harassment MaxLevelB 

Harassment) Max

North Atlantic Right2 338 0 44 44 

Whale* 

Blue Whale* 402 3 0 3 3 

Fin Whale* 6,802 4 40 44 

Humpback Whale 1,396 9 77 86 

Minke Whale 21,968 21 304 325 

Sei Whale* 6,292 5 18 23 

Sperm Whale* 4,349 0 7 7 

Atlantic Spotted 39,921 0 116 116 

Dolphin 

Atlantic White-Sided 93,233 28 287 315 

Dolphin 

Bottlenose Dolphin 62,851 8 244 252 

Common Dolphin 172,974 35 8,084 8,119 

Long-finned Pilot 39,2155 0 36 36 

Whales4 

Risso's Dolphin 35,215 0 34 34 

Harbor Porpoise 95,543 138 1,125 1,263 

Gray Seal 27,300 22 2,303 2,325 

Harbor Seal 61,336 14 923 937 

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

1 - Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any one year plus the 

Level B harassment take in any one year and then compared against the best available abundance estimate as shown in Table 2. For 

available abundance estimates are derived from the NMFS Stock Assessment Reports (Hayes et al., 2023). 

2 - In the proposed rule (87 FR 79072, December 23, 2022), a population estimate of 368 was used which represented the best availa

time of publication. However, since the publication of the proposed rule, a new estimate (n=338) was released in NMFS' draft and f

has been incorporated into this fmal rule. In addition, the total annual average observed North Atlantic right whale mortality was upd

SARs from 8.1 to 31.2. Total annual average observed North Atlantic right whale mortality during the period 2016 through 2020 wa

annual average observed fishery mortality was 5. 7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mort

through 2019 estimated annual means, accounting for undetected mortality and serious injury. (Hayes et al., 2023). 

3 - The minimum blue whale population is estimated at 412, although the exact value is not known. NMFS is utilizing this value for 

determination, as shown in parenthesis. 

4 - Roberts et al. (2023) does not distinguish between short- and long-fmned pilot whales, thus the pooled density provided represen

However, short-fmned pilot whales are not expected to occur in the Project Area, thus NMFS assumes that any take of pilot whales w

fmned pilot whales. 

5 - Long-finned pilot whale abundance estimate (Hayes et al., 2023). 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 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 projectrelated 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 


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72632 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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-indistress 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 NMFSapproved 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). 


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


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72634 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

isopleths corresponding to those 

modeled assuming 10-dB sound 

attenuation, pending results of Sound 

Field Verification (SFV; see Sound Field 

Verification section below and 

§ 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 Lu ̈demann, 2013). Bubble curtains 

vary in terms of the sizes of the bubbles 

and those with larger bubbles tend to 

perform a bit better and more reliably, 

particularly when deployed with two 

separate rings (Bellmann, 2014; 

Koschinski and Lu ̈demann, 2013; Nehls 

et al., 2016). Encapsulated bubble 

systems (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. 

Da ̈hne et al. (2017) found that single 

bubble curtains that reduce sound levels 

by 7 to 10 dB reduced the overall sound 

level by approximately 12 dB when 

combined as a double bubble curtain for 

6-m steel monopiles in the North Sea. 

During installation of monopiles 

(consisting of approximately 8-m in 

diameter) for more than 150 WTGs in 

comparable water depths (>25 m) and 

conditions in Europe indicate that 

attenuation of 10 dB is readily achieved 

(Bellmann, 2019; Bellmann et al., 2020) 

using single BBCs for noise attenuation. 

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 ER95% 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, 


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


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Table 29 -- Clearance, Shutdown, Minimum Visibility, and Level B Harassment Zones (in Meter

Driving in Summer And Winter1 

Monitoring North Atlantic right Other large whales Delphinids Harbor porpoises 

details whales 

Foundation WTG oss WTG oss WTG oss WTG oss 

Type 

Clearance 

any distance 2,300 1,600 NAS2 NAS 1,400 900 (1,300

Zone (4,400) (2,700) (2,400) 

PAM 

any distance within Clearance n/a 

Zone PAM Monitoring Zone 

Shutdown 

any distance 2,300 1,600 NAS NAS 1,400 900 (1,300

Zone (4,400) (2,700) (2,400) 

PAM 

any distance within Shutdown n/a 

Zone PAM Monitoring Zone 

PAM 

Monitoring 10,000 m 

Zone 

Minimum 

Visibility WTG: 2,300 (4,400) OSS: 1,600 (2,700) 

Zone 

Level B 

Harassmen WTG: 3,833 (4,271) OSS: 4,100 (4,698) 

tZone 

1 - Winter (i.e., December) distances are presented in parentheses. 

2 - NAS (noise abatement system) means that the zone is small enough that it will be encompassed by the bubble curtain. 

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Table 30 -- Distances to Harassment Thresholds and Mitigation Zones During Vibratory Pile Dr

Marine Mammal Species Level A harassment Level B harassment (m) Clearance 

(SELcum) (m) Zone (m) 

Low-frequency cetaceans 5 9,740 100 

Mid-frequency cetaceans 

- 9,740 100 

(Sperm whale) 

Mid-frequency cetaceans 

- 9,740 50 

(non-Sperm whale) 

High-frequency cetaceans 190 9,740 2001 

Phocid Pinnipeds (in water) 10 9,740 50 

1 - Distance has been increased from 100 m, as initially proposed by Revolution Wind, to ensure the clearance and shutdow

Level A harassment zone (190 m). 

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Table 31 -- Distances to Harassment Thresholds and Mitigation Zones During Pneumatic Hammerin

Marine Mammal Hearing Level A harassment Clearance Level B harassment (m) 

Group (SELcum) (m) Zone (m) 

Low-frequency 3,870 920 3,900 

Mid-frequency 230 920 250 

High-frequency 3,950 920 4,000 

Phocid pinnipeds 1,290 920 1,300 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 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-andshift’’ (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-authorizationrevolution-wind-llc-constructionrevolution-wind-energy. 

In following this charge weightspecific 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. 


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72640 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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 subbottom profilers). Prior to initiating HRG 


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Table 32 -- Clearance, Level A Harassment, and Level B Harassment Zones During 

UXO/MEC Detonations, by Charge Weight and Assuming 10 dB of Sound Attenuation 

Low-frequency Mid-frequency High- Phocid UXO/MEC Charge Weights cetaceans cetaceans frequency Pinnipeds cetaceans 

Level A 552 50 1,820 182 

harassment (m) 

E4 (2.3 kg) Level B 2,82 453 6,160 1,470 harassment (m) 

Clearance Zone 

(m)•· b 2,500 500 2,500 1,000 

Level A 982 75 2,590 357 

harassment (m) 

E6 (9.1 kg) Level B 4,680 773 8,000 2,350 harassment (m) 

Clearance Zone 

4,000 600 4,000 1,500 (m)•· b 

Level A 1,730 156 3,900 690 harassment (m) 

E8 (45.5 kg) Level B 7,490 1,240 10,300 3,820 harassment (m) 

Clearance Zone 

(m)•· b 6,000 1,000 6,000 3,000 

Level A 2,970 337 5,400 1,220 harassment (m) 

ElO (227 Level B 10,500 2,120 12,900 5,980 kg) harassment (m) 

Clearance Zone 

(m)•· b 9,000 1,500 9,000 4,000 

Level A 3,780 461 6,200 1,600 harassment (m) 

E12 (454 Level B 11,900 2,550 14,100 7,020 kg) harassment (m) 

Clearance Zone 

(m)•· b 10,000 2,000 10,000 5,000 

a - The clearance zones presented here for the Level B harassment thresholds were derived based on an approximate 

proportion of the size of the Level B harassment isopleth. 

b - Some of the zones have been rounded for PSO clarity. 
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 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. 

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 softstart 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 


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Table 33 -- Level B Harassment Threshold Ranges and Mitigation Zones During HRG 

Surveys 

Marine Mammal Level B Harassment Zone (m) Clearance Zone Shutdown Zone 

Species (m) (m) 

Boomer/Sparker CHIRPs 

Low-frequency 

cetacean (North 500 500 Atlantic right 

whale) 

Other low- 141 48 

frequency 

cetaceans (non- 100 100 North Atlantic 

right whale 

species) 

Mid-frequency 141 48 100 100a 

cetaceans 

High-frequency 141 48 100 100 

cetaceans 

Phocid Pinnipeds 141 48 100 100 (in water) 

* Denotes species is listed under the Endangered Species Act. 

a - An exception is noted for bow-riding delphinids of the following genera: Delphinus, Stene/la, Lagenorhynchus, 

and Tursiops. 
72642 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 

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. 

• Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and/or 

• Mitigation and monitoring 

effectiveness. 

Separately, monitoring is also 

regularly used to support mitigation 

implementation, which is referred to as 

mitigation monitoring, and monitoring 

plans typically include measures that 

both support mitigation implementation 

and increase our understanding of the 

impacts of the activity on marine 

mammals. 

During the planned activities, visual 

monitoring by NMFS-approved PSOs 

would be conducted before, during, and 

after all impact pile driving, vibratory 

pile driving, UXO/MEC detonations, 

and HRG surveys. PAM 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). 

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Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72643 

optimal-array configurations, these setups would need to be considered on a 

case-by-case basis. 

NMFS does not formally administer 

any PSO or PAM operator training 

program or endorse specific providers 

but will approve PSOs and PAM 

operators that have successfully 

completed courses that meet the 

curriculum and 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 

§ 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-authorizationrevolution-wind-llc-constructionrevolution-wind-energy. 

Sound Field Verification 

Revolution Wind must conduct SFV 

measurements during all UXO/MEC 

detonations and for all impact piledriving activities associated with the 

installation of, at minimum, the first 

three monopile foundations. SFV 

measurements must continue until at 

least three consecutive piles 

demonstrate distances to thresholds are 

at or below those modeled assuming 10 

dB of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or additional 

piles be driven that are anticipated to 

produce longer distances to harassment 

isopleths than those previously 

measured (e.g., higher hammer energy, 

greater number of strikes). 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 


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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 piledriving activities, the start and stop of 

associated observation periods by PSOs, 

details on the deployment of PSOs, a 

record of all detections of marine 

mammals (acoustic and visual), any 

mitigation actions (or if mitigation 

actions could not be taken, provide 

reasons why), and details on the noise 

abatement system(s) (e.g., system type, 

distance deployed from the pile, bubble 

rate, etc.). Weekly reports will be due on 

Wednesday for the previous week 

(Sunday–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-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template. 

If a sighting of a stranded, entangled, 

injured, or dead marine mammal occurs, 

the sighting would be reported to NMFS 

Office of Protected Resources, the NMFS 

Greater Atlantic Stranding Coordinator 

for the New England/Mid-Atlantic area 

(866–755–6622), and the U.S. Coast 

Guard within 24 hours. If the injury or 

death was caused by a project activity, 

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 onwater 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 


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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., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, Level A 

harassment and Level B harassment, we 

consider other factors, such as the likely 

nature of any behavioral responses (e.g., 

intensity, duration), the context of any 

such responses (e.g., critical 

reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

In the Estimated Take section 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., habitatuse patterns, high-level differences in 

feeding strategies). 

Last, we provide a negligible impact 

determination for each species or stock, 

providing species or stock-specific 

information or analysis, where 

appropriate (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 


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propagation models and other data such 

as frequency of occurrence or group 

sizes. Several conservative parameters 

and assumptions are ingrained into 

these models, such as assuming forcing 

functions that consider direct contact 

with piles (i.e., no cushion allowances) 

and application of the average summer 

sound speed profile to all months 

within a given season. The exposure 

model results do not reflect any 

mitigation measures (other than 10-dB 

sound attenuation 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 stressrelated 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 


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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 


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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 longterm 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 


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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 lowfrequency hearing group. 

Behavioral data on mysticete 

reactions to pile driving noise are scant. 

Kraus et al. (2019) predicted that the 

three main impacts of offshore wind 

farms on marine mammals would 

consist of displacement, behavioral 

disruptions, and stress. Broadly, we can 

look to studies that have focused on 

other noise sources such as seismic 

surveys and military training exercises, 

which suggest that exposure to loud 

signals can result in avoidance of the 

sound source (or displacement if the 

activity continues for a longer duration 

in a place where individuals would 

otherwise have been staying, which is 

less likely for mysticetes in this area), 

disruption of foraging activities (if they 

are occurring in the area), local masking 

around the source, associated stress 

responses, and impacts to prey, as well 

as TTS or PTS in some cases. 

Mysticetes encountered in the Project 

Area are expected to 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 


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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 


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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 preexposure levels shortly after migrating 

through the area or moving away from 

the sound source. 

As described in the Potential Effects 

to Marine Mammals and Their Habitat 

section of the proposed rule, the 

distance of the receiver to the source 

influences the severity of response with 

greater distances typically eliciting less 

severe responses. NMFS recognizes 

North Atlantic right whales migrating 

could be pregnant females (in the fall) 

and cows with older calves (in spring) 

and that these animals may slightly alter 

their migration course in response to 

any foundation pile driving; however, 

we anticipate that course diversion 

would be of small magnitude. Hence, 

while some avoidance of the piledriving 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 km2 for OCS– 

A–0486 versus the size of the full North 

Atlantic right whale migratory BIA, 

269,448 km2). Because of this, the 

overall North Atlantic right whale 

migration is not expected to be 

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 


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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 softstart for impact pile driving would 

provide an opportunity for whales to 

move away from the source if they are 

undetected, reducing received levels. 

The UXO/MEC detonations mitigation 

measures described above would further 

reduce the potential to be exposed to 

high received levels. 

For HRG surveys, the maximum 

distance to the Level B harassment 

threshold is 141 m. The estimated take 

by Level B harassment 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, rampup of sub-bottom profilers must be 

delayed during the clearance period if 

PSOs detect a North Atlantic right 

whale (or any other ESA-listed species) 

within 500 m of the acoustic source. 

With implementation of the mitigation 

requirements, take by Level A 

harassment is 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 


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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 km2) 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 lowlevel TTS and masking that may limit 

the detection of acoustic cues for 

relatively brief periods of time. Any 

potential PTS would be minor (limited 

to a few dB) and any TTS would be of 

short duration and concentrated at half 

or one octave above the frequency band 

of pile driving noise (most sound is 

below 2 kHz) which does not include 

the full predicted hearing range of fin 

whales. 

Fin whales are present in the waters 

off of New 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 

km2) 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 km2) 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 


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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 deepocean 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 


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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 farreaching 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 


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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, 


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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 § 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 

inÖuenza (HPAI) H5N1. Although 

elevated strandings continue, neither 

UME (alone or in combination) provide 

cause for concern regarding populationlevel impacts to any of these stocks. For 

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 


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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 onethird of the species or stock abundance, 

the take is considered to be of small 

numbers. Additionally, other qualitative 

factors may be considered in the 

analysis, such as the temporal or spatial 

scale of the activities. 

NMFS is authorizing incidental take 

by Level A harassment and/or Level B 

harassment of 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 onethird 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/stateactivities/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, 


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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/stateactivities/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-undermarine-mammal-protection-act. 

Executive Order 12866 

The Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 

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 

■ 1. The authority citation for part 217 

continues to read: 

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

otherwise noted. 

■ 2. Add subpart BB, consisting of 

§§ 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 

§ 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 shoreVerDate Sep<11>2014 19:13 Oct 19, 2023 Jkt 262001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\20OCR2.SGM 20OCR2

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based converter stations and inter-array 

cables between turbines. 

§ 217.271 Effective dates. 

The regulations in this subpart are 

effective from November 20, 2023, 

through November 19, 2028. 

§ 217.272 Permissible methods of taking. 

Under the LOA, issued pursuant to 

§§ 217.276, and 217.277, and § 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 

§§ 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 glacialis .......................................... Western Atlantic. 

Blue whale ......................................................... Balaenoptera musculus .................................... Western North Atlantic. 

Fin whale ............................................................ Balaenoptera physalus ..................................... Western North Atlantic. 

Humpback whale ............................................... Megaptera novaeangliae .................................. Gulf of Maine. 

Minke whale ....................................................... Balaenoptera acutorostrata .............................. Canadian Eastern Coastal. 

Sei whale ........................................................... Balaenoptera borealis ...................................... Nova Scotia. 

Sperm whale ...................................................... Physeter macrocephalus .................................. North Atlantic. 

Atlantic spotted dolphin ...................................... Stenella frontalis ............................................... Western North Atlantic. 

Atlantic white-sided dolphin ............................... Lagenorhynchus acutus ................................... Western North Atlantic. 

Bottlenose dolphin ............................................. Tursiops truncatus ............................................ Western North Atlantic—Offshore. 

Northern Migratory Coastal. 

Common dolphin ................................................ Delphinus delphis ............................................. Western North Atlantic. 

Long-finned pilot whale ...................................... Globicephala melas .......................................... Western North Atlantic. 

Risso’s dolphin ................................................... Grampus griseus .............................................. Western North Atlantic. 

Harbor porpoise ................................................. Phocoena phocoena ........................................ Gulf of Maine/Bay of Fundy. 

Gray seal ............................................................ Halichoerus grypus .......................................... Western North Atlantic. 

Harbor seal ........................................................ Phoca vitulina ................................................... Western North Atlantic. 

§ 217.273 Prohibitions. 

Except for the takings described in 

§ 217.272 and authorized by an LOA 

issued under §§ 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 

§§ 217.276 and 217.277; 

(b) Take any marine mammal stock 

not specified in § 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 § 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. 

§ 217.274 Mitigation requirements. 

When conducting the activities 

identified in § 217.270(c) within the 

specified geographical area described in 

§ 217.270(b), LOA Holder must 

implement the mitigation measures 

contained in this section and any LOA 

issued under §§ 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 inwater construction activities in order to 

explain responsibilities, communication 

procedures, marine mammal detection 

and identification, mitigation, 

monitoring, and reporting requirements, 

safety and operational procedures, and 

authorities of the marine mammal 

monitoring team(s). This training must 

be repeated for new personnel who join 

the work during the project. A 

description of the training program must 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin. Confirmation of 

all required training must be 

documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

project activities; 

(3) Prior to and when conducting any 

in-water activities and vessel 

operations, LOA Holder personnel and 

contractors (e.g., vessel operators, PSOs) 

must use available sources of 

information on North Atlantic right 

whale presence in or near the Project 

Area including daily monitoring of the 

Right Whale Sightings Advisory System, 

and monitoring of Coast Guard VHF 

Channel 16 throughout the day to 

receive notification of any sightings 

and/or information associated with any 

Slow Zones (i.e., Dynamic Management 

Areas (DMAs) and/or acousticallytriggered Slow Zones) to provide 

situational awareness for both vessel 

operators, PSO(s), and PAM operator(s); 

The marine mammal monitoring team 


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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 

§ 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° direction of the 

forward path of the vessel (90° port to 

90° starboard) located at an appropriate 

vantage point for ensuring vessels are 

maintaining appropriate separation 

distances. Visual observers must be 

equipped with alternative monitoring 

technology (e.g., night vision devices, 

infrared cameras) for periods of low 

visibility (e.g., darkness, rain, fog, etc.). 

The dedicated visual observer must 

receive prior training on protected 

species detection and identification, 

vessel strike minimization procedures, 

how and when to communicate with the 

vessel captain, use of visual monitoring 

and alternative monitoring equipment, 

and reporting requirements in this 

subpart. Visual observers may be thirdparty observers (i.e., NMFS-approved 

PSOs as defined in § 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); 


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(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 softstart 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 


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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 m3/(minute*m). The 

bubble curtain(s) must surround 100 

percent of the piling perimeter 

throughout the full depth of the water 

column. In the unforeseen event of a 

single compressor malfunction, the 

offshore personnel operating the bubble 

curtain(s) must adjust the air supply and 

operating pressure such that the 

maximum possible sound attenuation 

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 NMFSapproved 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 piledriving 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 

§ 217.275(c). At least 3 on-duty PSOs 

must be deployed on the pile driving 

platform. Additionally, two dedicatedPSO vessels must be used at least 60 

minutes before, during, and 30 minutes 

after all pile driving, and each 

dedicated-PSO vessel must have at least 

three PSOs on duty during these time 

periods. 

(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 


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throughout the installation of the pile. 

The frequency range of SFV 

measurement systems must cover the 

range of at least 20 hertz (Hz) to 20 

kilohertz (kHz). The SFV measurement 

systems must be designed to have 

omnidirectional sensitivity so that the 

broadband received level of all pile 

driving exceeds the system noise floor 

by at least 10 dB. The dynamic range of 

the SFV measurement system must be 

sufficient such that at each location, and 

the signals avoid poor signal-to-noise 

ratios for low amplitude signals and 

avoid clipping, nonlinearity, and 

saturation for high amplitude signals; 

(iv) All hydrophones used in SFV 

measurements systems are required to 

have undergone a full system, traceable 

laboratory calibration conforming to 

International Electrotechnical 

Commission (IEC) 60565, or an 

equivalent standard procedure, from a 

factory or accredited source to ensure 

the hydrophone receives accurate sound 

levels, at a date not to exceed 2 years 

before deployment. Additional in-situ 

calibration checks using a pistonphone 

are required to be performed before and 

after each hydrophone deployment. If 

the measurement system employs filters 

via hardware or software (e.g., highpass, low-pass, etc.), which is not 

already accounted for by the calibration, 

the filter performance (i.e., the filter’s 

frequency response) must be known, 

reported, and the data corrected before 

analysis; 

(v) LOA Holder must be prepared 

with additional equipment (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 § 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, 


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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 § 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 § 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 highorder 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 

§ 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 NMFSapproved PAM systems, as described in 

the PAM Plan see § 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 m3/(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 


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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 § 217.275(e) 

conducted by PSOs, as described in 

§ 217.275(b); 

(2) LOA Holder must utilize PSO(s), 

as described in § 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 rampup acoustic sources prior to 

commencing full power, unless the 

equipment operates on a binary on/off 

switch, and ensure visual clearance 

zones are fully visible (e.g., not 

obscured by darkness, rain, fog) 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 (prestart 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 


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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. 

§ 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 


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were conducted, the dates and time 

when in-water construction activities 

were suspended to avoid potential 

incidental take of marine mammals from 

construction noise within a defined 

shutdown zone, and marine mammal 

behavior; and the ability to 

communicate orally, by radio, or inperson, with project personnel to 

provide real-time information on marine 

mammals observed in the area; 

(4) All PSOs must be trained in 

northwestern Atlantic Ocean marine 

mammal identification and behaviors 

and must be able to conduct field 

observations and collect data according 

to assigned protocols. Additionally, 

PSOs must have the ability to work with 

all required and relevant software and 

equipment necessary during 

observations (as described in 

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 conditionallyapproved PSO or PAM operator may be 

one who has completed training in the 

last 5 years but has not yet attained the 

requisite field experience. An 

unconditionally approved PSO or PAM 

operator is one who has completed 

training within the last 5 years and 

attained the necessary experience (i.e., 

demonstrate experience with 

monitoring for marine mammals at 

clearance and shutdown zone sizes 

similar to those produced during the 

respective activity). Lead PSO or PAM 

operators must be unconditionally 

approved and have a minimum of 90 

days in an northwestern Atlantic Ocean 

offshore environment performing the 

role (either visual or acoustic), with the 

conclusion of the most recent relevant 

experience not more than 18 months 

previous. A conditionally approved PSO 

or PAM operator must be paired with an 

unconditionally approved PSO or PAM 

operator; 

(7) PSOs for cable landfall 

construction (i.e., vibratory pile 

installation and removal, 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 NMFSapproval; 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 


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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 onduty PSOs and PAM operator(s) must 

remain in contact with the on-duty 

construction personnel responsible for 

implementing mitigations (e.g., delay to 

pile driving or UXO/MEC detonation) to 

ensure communication on marine 

mammal observations can easily, 

quickly, and consistently occur between 

all on-duty PSOs, PAM operator(s), and 

on-water Project personnel; 

(5) The PAM operator must inform the 

Lead PSO(s) on duty of animal 

detections approaching or within 

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 NMFSapproved PAM system to conduct 

monitoring. PAM systems are approved 

through the PAM Plan, as described in 

§ 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 § 217.274(e)(7)), at least two onduty PSOs must be actively searching 

for marine mammals. Concurrently, at 

least one PAM operator per acoustic 

data stream (equivalent to the number of 

acoustic buoys) must be actively 

monitoring for marine mammals 60 

minutes before, during, and 30 minutes 

after impact pile driving or UXO/MEC 

detonation in accordance with a NMFSapproved PAM Plan; 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. Offeffort PSO monitoring must be reflected 

in the monthly PSO monitoring reports. 

(f) Monitoring requirements during 

fisheries monitoring surveys. The 

following measures apply during 

fisheries monitoring surveys and must 

be implemented by LOA Holder: 

(1) All captains and crew conducting 

fishery surveys must be trained in 

marine mammal detection and 

identification; and 

(2) Marine mammal monitoring must 

be conducted within 1 nmi from the 

planned survey location by the trained 

captain and/or a member of the 

scientific crew for 15 minutes prior to 

deploying gear, throughout gear 


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deployment and use, and for 15 minutes 

after haul back. 

(g) Reporting. LOA Holder must

comply with the following reporting 

measures: 

(1) Prior to initiation of any on-water

project activities, LOA Holder must 

demonstrate in a report submitted to 

NMFS Office of Protected Resources 

that all required training for LOA 

Holder personnel (including the vessel 

crews, vessel captains, PSOs, and PAM 

operators) has been completed; 

(2) LOA Holder must use a

standardized reporting system during 

the effective period of the LOA. All data 

collected related to the Project must be 

recorded using industry-standard 

software that is installed on field 

laptops and/or tablets. Unless stated 

otherwise, all reports must be submitted 

to NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov), 

dates must be in MM/DD/YYYY format, 

and location information must be 

provided in Decimal Degrees and with 

the coordinate system information (e.g., 

NAD83, WGS84, etc.); 

(3) For all visual monitoring efforts

and marine mammal sightings, the 

following information must be collected 

and reported to NMFS Office of 

Protected Resources: the date and time 

that monitored activity begins or ends; 

the construction activities occurring 

during each observation period; the 

watch status (i.e., sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); the PSO who 

sighted the animal; the time of sighting; 

the weather parameters (e.g., wind 

speed, percent cloud cover, visibility); 

the water conditions (e.g., Beaufort sea 

state, tide state, water depth); all marine 

mammal sightings, regardless of 

distance from the construction activity; 

species (or lowest possible taxonomic 

level possible); the pace of the 

animal(s); the estimated number of 

animals (minimum/maximum/high/ 

low/best); the estimated number of 

animals by cohort (e.g., adults, 

yearlings, juveniles, calves, group 

composition, etc.); the description (i.e., 

as many distinguishing features as 

possible of each individual seen, 

including length, shape, color, pattern, 

scars or markings, shape and size of 

dorsal fin, shape of head, and blow 

characteristics); the description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling) and observed changes in 

behavior, including an assessment of 

behavioral responses thought to have 

resulted from the specific activity; the 

animal’s closest distance and bearing 

from the pile being driven or specified 

HRG equipment and estimated time 

entered or spent within the Level A 

harassment and/or Level B harassment 

zone(s); the activity at time of sighting 

(e.g., vibratory installation/removal, 

impact pile driving, construction 

survey), use of any noise attenuation 

device(s), and specific phase of activity 

(e.g., ramp-up of HRG equipment, HRG 

acoustic source on/off, soft-start for pile 

driving, active pile driving, etc.); the 

marine mammal occurrence in Level A 

harassment or Level B harassment 

zones; the description of any mitigationrelated action implemented, or 

mitigation-related actions called for but 

not implemented, in response to the 

sighting (e.g., delay, shutdown, etc.) and 

time and location of the action; other 

human activity in the area, and; other 

applicable information, as required in 

any LOA issued under §§ 217.276 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-reportingsystem-templates; 

(6) LOA Holder must submit a draft

annual report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year. LOA Holder must 

provide a final report within 30 days 

following resolution of NMFS’ 

comments on the draft report. The draft 

and final reports must detail the 

following: the total number of marine 

mammals of each species/stock detected 

and how many were within the 

designated Level A harassment and 

Level B harassment zone(s) with 

comparison to authorized take of marine 

mammals for the associated activity; 

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 


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after each completed foundation 

installation event and 48 hours after a 

detonation. The report must include, at 

minimum: hammer energies/schedule 

used during pile driving, including, the 

total number of strikes and the 

maximum hammer energy; the modelestimated acoustic ranges (R95% SEL and 

R95% SPLrms) to compare with the realworld sound field measurements; the 

estimated UXO/MEC charge size (or 

physical size if charge size is unknown) 

and donor charge size in trinitrotoluene 

(TNT) equivalent weight for either high 

(donor charge used to detonate/destroy 

UXO/MEC) or low order (e.g., 

deflagration where donor charge 

disrupts/consumes UXO/MEC) 

detonations and description of UXO/ 

MEC (e.g., munition type, state of 

submergence, approximate age); peak 

sound pressure level (SPLpk), root-meansquare sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), and sound exposure 

level (SEL, in single strike for pile 

driving, SELss,), for each hydrophone, 

including at least the maximum, 

arithmetic mean, minimum, median 

(L50) and L5 (95 percent exceedance) 

statistics for each metric; estimated 

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 (SPLpk), 

the root-mean-square sound pressure 

level that contains 90 percent of the 

acoustic energy (SPLrms), the single 

strike sound exposure level (SELss), the 

integration time for SPLrms, the 

spectrum, and the 24-hour cumulative 

SEL extrapolated from measurements at 

all hydrophones. The final report must 

also include at least the maximum, 

mean, minimum, median (L50) and L5

(95 percent exceedance) statistics for 

each metric; the SEL and SPL power 

spectral density and/or one-third octave 

band levels (usually calculated as 

decidecade band levels) at the receiver 

locations must be reported; the sound 

levels reported must be in median, 

arithmetic mean, and L5 (95 percent 

exceedance) (i.e., average in linear 

space), and in dB; range of TL 

coefficients; the local environmental 

conditions, such as wind speed, 

transmission loss data collected on-site 

(or the sound velocity profile); baseline 

pre- and post-activity ambient sound 

levels (broadband and/or within 

frequencies of concern); a description of 

depth and sediment type, as 

documented in the Construction and 

Operation Plan (COP), at the recording 

and foundation installation and UXO/ 

MEC detonation locations; the extents of 

the measured Level A harassment and 

Level B harassment zone(s); hammer 

energies required for pile installation 

and the number of strikes per pile; the 

charge weights and other relevant 

characteristics of UXO/MEC 

detonations; the hydrophone equipment 

and methods (i.e., recording device, 

bandwidth/sampling rate; distance from 

the pile and UXO/MEC where 

recordings were made; the depth of 

recording device(s)); a description of the 

SFV measurement hardware and 

software, including software version 

used, calibration data, bandwidth 

capability and sensitivity of 

hydrophone(s), any filters used in 

hardware or software, any limitations 

with the equipment, and other relevant 

information; the spatial configuration of 

the noise attenuation device(s) relative 

to the pile and UXO/MEC charge; a 

description of the noise abatement 

system and operational parameters (e.g., 

bubble flow rate, distance deployed 

from the pile and/or UXO/MEC, etc.), 

and any action taken to adjust the noise 

abatement system. A discussion which 

includes any observations which are 

suspected to have a significant impact 

on the results including but not limited 

to: observed noise mitigation system 

issues, obstructions along the 

measurement transect, and technical 

issues with hydrophones or recording 

devices. 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-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template; 

(12) Full detection data, metadata, 

and location of recorders (or GPS tracks, 

if applicable) from all real-time 

hydrophones used for monitoring 

during construction must be submitted 

within 90 calendar days 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-reportingsystem-templates. The full acoustic 

recordings from all real-time 

hydrophones must also be sent to the 

NCEI for archiving within 90 calendar 


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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 

(nmfs.gar.incidental-take@noaa.gov), 

NMFS Office of Protected Resources, 

and NMFS Northeast Fisheries Science 

Center (ne.rw.survey@noaa.gov) within 

24 hours with the above information 

and the vessel/platform from which the 

sighting was made, activity the vessel/ 

platform was engaged in at time of 

sighting, project construction and/or 

survey activity at the time of the 

sighting (e.g., pile driving, cable 

installation, HRG survey), distance from 

vessel/platform to sighting at time of 

detection, and any mitigation actions 

taken in response to the sighting; 

(iii) If an observation of a large whale 

occurs during vessel transit, LOA 

Holder must report the time, date, and 

location of the sighting; the vessel’s 

activity, heading, and speed (knots); 

Beaufort sea state; water depth (meters); 

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 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS Greater 

Atlantic Regional Fisheries Office 

(GARFO) (nmfs.gar.incidental-take@

noaa.gov, nmfs.gar.stranding@noaa.gov) 

or, if in the Southeast region (North 

Carolina to Florida), NMFS Southeast 

Regional Office 

(SERO)(secmammalreports@noaa.gov) 

as soon as feasible. The report (via 

phone or email) must include contact 

(name, phone number, etc.), the time, 

date, and location of the first discovery 

(and updated location information if 

known and applicable); Species 

identification (if known) or description 

of the animal(s) involved; condition of 

the animal(s) (including carcass 

condition if the animal is dead); 

observed behaviors of the animal(s), if 

alive; if available, photographs or video 

footage of the animal(s); and general 

circumstances under which the animal 

was discovered; 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 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS GARFO 

(nmfs.gar.incidental-take@noaa.gov, 

nmfs.gar.stranding@noaa.gov) or, if in 

the Southeast region (North Carolina to 

Florida), NMFS SERO 

(secmammalreports@noaa.gov). The 

report must include the time, date, and 

location of the incident; species 

identification (if known) or description 

of the animal(s) involved; vessel size 

and motor configuration (inboard, 

outboard, jet propulsion); vessel’s speed 

leading up to and during the incident; 

vessel’s course/heading and what 

operations were being conducted (if 

applicable); status of all sound sources 

in use; description of avoidance 

measures/requirements that were in 

place at the time of the strike and what 

additional measures were taken, if any, 

to avoid strike; environmental 

conditions (e.g., wind speed and 

direction, Beaufort sea state, cloud 

cover, visibility) immediately preceding 

the strike; estimated size and length of 

animal that was struck; description of 

the behavior of the marine mammal 

immediately preceding and following 

the strike; if available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; estimated fate of 

the animal (e.g., dead, injured but alive, 

injured and moving, blood or tissue 

observed in the water, status unknown, 

disappeared); and, to the extent 

practicable, photographs or video 

footage of the animal(s). LOA Holder 

must immediately cease all on-water 

activities until the NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. LOA Holder may not 

resume their activities until notified by 

NMFS Office of Protected Resources; 

and 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Rules and Regulations 72673 

(14) LOA Holder must report any lost 

gear associated with the fishery surveys 

to the NMFS GARFO Protected 

Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or 

within 24 hours of the documented time 

of missing or lost gear. This report must 

include information on any markings on 

the gear and any efforts undertaken or 

planned to recover the gear. 

§ 217.276 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 § 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. 

§ 217.277 Modifications of Letter of 

Authorization. 

(a) A LOA issued under § 217.276, 

and this section for the activities 

identified in § 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 § 217.276 or 

this section for the activities identified 

in § 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 §§ 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. 

§§ 217.278–217.279 [Reserved] 

Subparts CC through KK [Reserved] 

■ 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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