84674 Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 240917–0242] 

RIN 0648–BM32 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Maryland 

Offshore Wind Project, Offshore of 

Maryland 

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 US Wind, Inc. 

(US Wind) during the construction of an 

offshore wind energy project (the 

Project) in Federal and State waters off 

of Maryland, 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–0490) 

(referred to as the Lease Area) and along 

associated export cable routes to sea-toshore transition points (collectively, the 

project area), over the course of 5 years 

(January 1, 2025 through December 31, 

2029). These regulations, which allow 

for the issuance of a Letter of 

Authorization (LOA) for the incidental 

take of marine mammals during specific 

construction related activities within 

the project area during the effective 

dates of the regulations, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: This rule is effective from 

January 1, 2025, through December 31, 

2029. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Taylor, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of US Wind’s application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/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.) to authorize the take of marine 

mammals incidental to construction of 

the Project within the project area. 

NMFS received a request from US Wind 

to incidentally take a small number of 

marine mammals from 19 species of 

marine mammals, comprising 20 stocks 

(5 stocks by Level A harassment and 

Level B harassment; 15 stocks by Level 

B harassment only), incidental to US 

Wind’s construction activities. US Wind 

did not request and NMFS neither 

anticipates nor allows take by serious 

injury or mortality incidental to the 

specified activities 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). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to as ‘‘mitigation’’); and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

the takings are set forth. 

As noted above, US Wind did not 

request and NMFS neither anticipates 

nor allows take by serious injury or 

mortality incidental to the specified 

activities in this final rulemaking. 

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; 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; 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; 

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 this rule containing 5-year 

regulations and associated LOA. This 

final rule also establishes required 

mitigation, monitoring, and reporting 

requirements for US Wind’s 

construction activities. 

Summary of Major Provisions Within 

the Final Rule 

The major provisions within this final 

rule include: 

• Allowing NMFS to authorize, under 

a LOA, the take of small numbers of 

marine mammals by Level A harassment 

and/or Level B harassment (50 CFR 

217.312) incidental to the Project and 

prohibiting take of such species or 

stocks in any manner not permitted (50 

CFR 217.313) (e.g., mortality or serious 

injury); 

• Establishing a seasonal moratorium 

on foundation impact pile driving 


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during December 1–April 30, annually, 

as well as avoiding foundation impact 

pile driving in November to the 

maximum extent practicable to 

minimize impacts to North Atlantic 

right whales (Eubalaena glacialis); 

• Conducting both visual and passive 

acoustic monitoring (PAM) by trained, 

NMFS-approved Protected Species 

Observers (PSO) and PAM operators 

before, during, and after select in-water 

construction activities; 

• Requiring training for all Project 

personnel to ensure marine mammal 

protocols and procedures are clearly 

understood; 

• Establishing clearance and 

shutdown zones for all in-water 

construction activities and highresolution geophysical (HRG) marine 

site characterization surveys to prevent 

or reduce the risk of Level A harassment 

and to minimize the risk of Level B 

harassment, including a delay or 

shutdown of foundation impact pile 

driving if a North Atlantic right whale 

is observed at any distance by PSOs or 

acoustically detected within certain 

distances; 

• Establishing minimum visibility 

and PAM monitoring zones during 

foundation impact pile driving; 

• Requiring use of at least two sound 

attenuation devices during all 

foundation impact pile driving 

installation activities to reduce noise 

levels to those modeled assuming a 

broadband 10 decibel (dB) attenuation; 

• Requiring sound field verification 

(SFV) monitoring during impact pile 

driving of foundation piles to measure 

in situ noise levels for comparison 

against the modeled results and ensure 

noise levels assuming 10 dB attenuation 

are not exceeded; 

• Requiring SFV during the 

operational phase of the Project; 

• Implementing soft-starts during 

impact pile driving and ramp-up during 

the use of HRG marine site 

characterization survey equipment; 

• Requiring various vessel strike 

avoidance measures; 

• Requiring various measures during 

fisheries monitoring surveys, such as 

removing gear from the water if marine 

mammals are considered at-risk or are 

interacting with gear; 

• Requiring regular and situational 

reporting including, but not limited to, 

information regarding activities 

occurring, marine mammal observations 

and acoustic detections, and SFV 

monitoring results; and 

• Requiring monitoring of the North 

Atlantic right whale sighting networks, 

Channel 16, and PAM data, as well as 

reporting any sightings to the NMFS. 

Through adaptive management (see 

50 CFR 217.347(c)(1)) NMFS Office of 

Protected Resources may modify (e.g., 

remove, revise, or add to) the existing 

mitigation, monitoring, or reporting 

measures summarized above and 

required by the LOA. 

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 216.106(e)). 

Additionally, failure to comply with the 

requirements of the LOA may result in 

civil monetary penalties and knowing 

violations may result in criminal 

penalties (16 U.S.C. 1375; 50 CFR 

216.106(g)). 

Fixing America’s Surface 

Transportation Act (FAST–41) 

This Project is covered under title 41 

of the Fixing America’s Surface 

Transportation Act, or ‘‘FAST–41.’’ A 

‘‘covered project’’ under FAST–41 is 

defined generally as ‘‘any activity in the 

United States that requires authorization 

or environmental review by a Federal 

agency involving construction of 

infrastructure for renewable or 

conventional energy production’’ 

42 U.S.C. 4370m–(6)(A). The Project, 

which involves construction of 

renewable wind energy infrastructure 

off of Maryland, will provide 300 

megawatts (MW) of energy and, upon 

completion, advance the State of 

Maryland’s renewable energy goals. As 

such, the Project falls under FAST–41’s 

definition of ‘‘covered project.’’ 

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). 

The Project is listed on the Permitting 

Dashboard, where milestones and 

schedules related to the environmental 

review and permitting for the Project 

can be found at https://www.permits.

performance.gov/permitting-project/ 

fast-41-covered-projects/marylandoffshore-wind-project. 

Summary of Request 

On August 31, 2022, US Wind 

submitted a request for the 

promulgation of regulations and 

issuance of an associated 5-year LOA to 

take marine mammals incidental to 

construction activities associated with 

implementation of the Project offshore 

of Maryland in the BOEM Lease Area 

OCS–A 0490 and associated export 

cable routes. US Wind’s request is for 

the incidental, but not intentional, 

taking of a small number of 19 marine 

mammal species (comprising 20 stocks) 

by Level B harassment (for all 20 stocks) 

and by Level A harassment (for 5 of the 

20 stocks). US Wind did not request, 

and NMFS does not anticipate, take by 

serious injury or mortality to occur for 

any marine mammal species or stock 

incidental to the specified activities. 

In response to our questions and 

comments and following extensive 

information exchanges between US 

Wind and NMFS, US Wind submitted a 

final, revised application on March 31, 

2023 that NMFS deemed adequate and 

complete on April 3, 2023. This 

application is available on NMFS’ 

website at: https://www.fisheries.

noaa.gov/action/incidental-takeauthorization-us-wind-inc-constructionand-operation-maryland-offshore-wind. 

On May 2, 2023, NMFS published a 

notice of receipt (NOR) of US Wind’s 

adequate and complete application in 

the Federal Register (88 FR 27463), 

requesting comments and soliciting 

information related to US Wind’s 

request during a 30-day public comment 

period. During the NOR public 

comment period, NMFS received 

comment letters from 77 private 

citizens, 6 non-governmental 

organizations, and 1 State government 

organization (Delaware Department of 

Natural Resources and Environmental 

Control). NMFS reviewed all submitted 

material and took these into 

consideration during the drafting of the 

proposed rule. 

On September 6, 2023 and September 

11, 2023, US Wind submitted 

supplemental information related to its 

pilot whale and seal take analyses. The 

corresponding memos, entitled ‘‘US 

Wind NMFS Request for Information 

(RFI) Response Memo and Maryland 

Offshore Wind Project Revised 

Requested Take Tables’’ are available on 

our website at https://www.fisheries.

noaa.gov/action/incidental-takeauthorization-us-wind-inc-constructionand-operation-maryland-offshore-wind. 

On January 4, 2024, NMFS published 

the proposed rule for the Project in the 

Federal Register (89 FR 504). In the 

proposed rule, NMFS synthesized all of 

the information provided by US Wind, 

all best available scientific information 

and literature relevant to the Project, 

outlined, in detail, proposed mitigation 

designed to effect the least practicable 


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adverse impacts on marine mammal 

species and stocks as well as proposed 

monitoring and reporting measures, and 

made preliminary negligible impact and 

small numbers determinations. The 

public comment period on the proposed 

rule was open for 30 days from January 

4, 2024 through February 5, 2024 on 

https://Regulations.gov. A summary of 

public comments received during this 

30-day period are described in the 

Comments and Responses section; full 

public comments may be viewed on 

https://Regulations.gov. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 

Atlantic right whale vessel speed 

regulations (87 FR 46921) 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 this incidental take 

authorization (or any other MMPA 

incidental take authorization), the 

authorization holder would be required 

to comply with any and all applicable 

requirements contained within the final 

rule. Specifically, where measures in 

any final vessel speed rule are more 

protective or restrictive than those in 

this or any other MMPA authorization, 

authorization holders would be required 

to comply with the requirements of the 

rule. Alternatively, where measures in 

this or any other MMPA authorization 

are more restrictive or protective than 

those in any final vessel speed rule, the 

measures in the MMPA authorization 

would remain in place. The 

responsibility to comply with the 

applicable requirements of any vessel 

speed rule would become effective 

immediately upon the effective date of 

any final vessel speed rule and when 

notice is published on the effective date, 

NMFS would also notify US 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 Specified Activity 

Overview 

US Wind plans to construct and 

operate a wind energy facility, the 

Project, in the Atlantic Ocean in lease 

area OCS–A 0490, offshore Maryland. 

The Project consists of 3 construction 

campaigns including MarWin, located 

in the southeastern portion of the Lease 

Area with the potential to generate 

approximately 300 megawatts (MW) of 

energy, Momentum Wind, located 

immediately west of MarWin with the 

potential to generate approximately 808 

MW of energy, and Future 

Development, which encompasses 

buildout of the remainder of the Lease 

Area and for which generation capacity 

has yet to be determined (table 1). Once 

operational, MarWin and Momentum 

Wind would advance the State of 

Maryland’s renewable energy goals, 

providing 50 percent of the State’s goal 

by the year 2030, with the full buildout 

of the Lease Area further achieving 

renewable energy targets. US Wind also 

anticipates completing the Future 

Development campaign within the 

effective period of the rule. 

The Project will consist of several 

different types of permanent offshore 

infrastructure, including up to 114 

WTGs (e.g., 18–MW model with a 250- 

meter (m) rotor diameter platform), four 

OSSs, a MET tower, and inter-array and 

export cables. MarWin will occupy 

approximately 46.6 square kilometers 

(km2) (11,515 acres), which will include 

approximately 21 WTGs and 1 OSS. The 

MarWin campaign, as well as 

subsequent Momentum Wind and 

Future Development, includes 

monopiles as the only potential WTG 

foundation type. For each campaign, the 

OSS would be supported by monopiles 

or jacket foundations with skirt piles. 

Skirt piles are post-piled pin piles. 

Jacket foundations are placed on the 

seabed and pin piles are driven into 

jacket pile guides, which are known as 

skirts. Table 1 provides a summary of 

each construction campaign. 

TABLE 1—US WIND’S ANTICIPATED CONSTRUCTION CAMPAIGN SCHEDULE

Campaigns Construction 

year 

Number of 

11-m monopiles 

for WTGs 

Number 3-m pin piles 

for OSS jacket 

foundations 1

Number of 

1.8-m pin 

piles for 

Met tower 

Onshore 

export 

cables 

Offshore 

substations 

MarWin ................................................................... 1 (2025) 21 4 (1 jacket) ..................... 0 4 1 

Momentum .............................................................. 2 (2026) 55 8 (2 jackets) ................... 3 0 2 

Future Development ............................................... 3 (2027) 38 4 (1 jacket) ..................... 0 0 1 

1Potential OSS foundations could also include monopile and suction bucket jacket foundations. 

Strings of WTGs will connect with the 

OSS via a submarine inter-array cable 

transmission system. Up to four highvoltage alternating current (HVAC) 

offshore export cables will be installed 

during the MarWin campaign, spanning 

approximately 65–97 (kilometers) km 

(40–60 miles (mi)) in length, dependent 

on the location of the OSS and the final 

routing. The Export Cable Corridor 

(ECC) will transmit electricity from the 

OSS to one or two landfall sites in 

Delaware Seashore State Park. 

The second construction campaign, 

Momentum Wind, will contain 

approximately 55 WTGs, 2 OSSs, and 1 

MET tower within an area of 

approximately 142.4 km2 (35,188 acres). 

The Met tower will be supported by pin 

pile foundations. During the third 

construction campaign, Future 

Development, approximately 38 WTGs 

and 1 OSS will be installed within an 

area of approximately 80.3 km2 (19,843 

acres). 

US Wind plans to install all monopile 

or pin pile foundations via impact pile 

driving. If suction bucket foundations 

are selected for OSS jacket foundations, 

impact pile driving would not be 

necessary. US Wind will also conduct 

the following supporting activities: 

temporarily install and subsequently 

remove gravity cells to connect the 

offshore export cables to onshore 

facilities; permanently install scour 

protection around all foundations; 

permanently install and perform 

trenching, laying, and burial activities 

associated with the export cables from 

the OSSs to shore-based switching and 

sub-stations and WTG inter-array cables; 

and, during years 2 and 3, perform HRG 

surveys using active acoustic sources 

with frequencies of less than 180 

kilohertz (kHz). To transport crew, 

supplies, and materials to support 

construction activities, vessels will 

transit within the Lease Area, along 

cable corridors, and between the project 

area and anticipated ports (Port Norris, 

NJ; Lewes, DE; Ocean City, MD; 

Baltimore, MD; Hampton Roads, VA; 

and Cape Charles, VA). 

Up to four offshore export cables will 

be located among up to two corridors 

from the OSSs and connect to the 

planned landfall at either 3R’s Beach or 

Tower Road within Delaware Seashore 

State Park. When the cables reach the 


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landfall site, they will be pulled into a 

cable duct generated by horizontal 

directional drilling (HDD), which will 

route the cables under the existing 

beach to subterranean transition vaults. 

All offshore cables will be connected to 

onshore export cables at the sea-to-shore 

transition point via trenchless 

installation (i.e., underground tunneling 

utilizing micro tunnel boring 

installation methodologies). 

Fishery monitoring surveys, 

performed via recreational boat-based 

surveys and a pot-based monitoring 

approach using ropeless gear 

technology, will be conducted in 

conjunction with the University of 

Maryland Center for Environmental 

Science (UMCES) to enhance existing 

data for specific benthic and pelagic 

species of concern. 

Dates and Duration 

As described above, US Wind will 

conduct 3 campaigns over 3 years: 

MarWin, Momentum Wind, and Future 

Development (table 1). Based on US 

Wind’s planned schedule, the 

installation of all permanent structures 

will be completed by the end of 

November 2027. More specifically, US 

Wind will install piles only between 

May 1 and November 30. Also, the 

installation of WTG foundations and 

OSS 3-m pin pile jacket foundations 

will occur during daylight hours 

between May 1 and November 30 of 

2025, 2026, and 2027 (table 2); however, 

NMFS would allow nighttime pile 

driving if US Wind submits, and NMFS 

approves, an Alternative Monitoring 

Plan, as discussed below. The single 

Met tower foundation will be installed 

in 2026 (table 2). US Wind anticipates 

HRG surveys using sparkers and 

boomers to occur during 2026 and 2027. 

Up to 14 days of HRG survey activity are 

planned from April through June 2026 

during the Momentum campaign. In 

addition, up to 14 days of HRG survey 

activity are planned from April through 

June 2027 during the Future 

Development campaign. Currently, US 

Wind is not planning to conduct 

activities that have the potential to 

result in take in 2028 and 2029. 

However, while table 2 represents US 

Wind’s current schedule, NMFS 

recognizes the potential for activity 

schedules to shift such that they could 

occur during different timeframes 

within the five year effective period of 

this rule. 

TABLE 2—US WIND’S ANTICIPATED CONSTRUCTION AND OPERATIONS SCHEDULE DURING THE EFFECTIVE PERIOD OF THE

LOA 1

Project activity Construction campaign Expected timing 2 Expected duration 

(approximate) 

Scour Protection Pre-Installation ................. MarWin ................................ Year 1: Q2 through Q3 of 2025 ................. 21 days. 

Momentum Wind ................. Year 2: Q2 through Q3 of 2026 ................. 55 days. 

Future Development ............ Year 3: Q2 through Q3 of 2027 ................. 38 days. 

WTG Foundation Installation 3 5 ................... MarWin ................................ Year 1: June through September of 2025 .. 21 days. 

Momentum Wind ................. Year 2: May through August of 2026 ......... 55 days. 

Future Development ............ Year 3: June through August of 2027 ........ 38 days. 

Scour protection post-installation ................. MarWin ................................ Year 1: Q2 through Q3 of 2025 ................. 42 days. 

Momentum Wind ................. Year 2: Q2 through Q3 of 2026 ................. 110 days. 

Future Development ............ Year 3: Q2 through Q3 of 2027 ................. 76 days. 

OSS Foundation installation 3 5 .................... MarWin ................................ Year 1: July of 2025 ................................... 1 day. 

Momentum Wind ................. Year 2: July of 2026 ................................... 2 days. 

Future Development ............ Year 3: July of 2027 ................................... 1 day. 

Met Tower installation 3 4 .............................. Momentum Wind ................. Year 2: June of 2026 .................................. 1 day. 

HRG surveys 5 .............................................. Momentum Wind ................. Year 2: Q2 through Q3 of 2026 ................. 14 days. 

Future Development ............ Year 3: Q2 through Q3 of 2027 ................. 14 days. 

Site preparation ............................................ n/a ........................................ Not anticipated ............................................ n/a. 

Inter-array cable installation ......................... MarWin ................................ Year 1: Q2 through Q4 of 2025 ................. 42 days. 

Momentum Wind ................. Year 2: Q2 through Q4 of 2026 ................. 110 days. 

Future Development ............ Year 3: Q2 through Q4 of 2027 ................. 76 days. 

Export cable installation ............................... MarWin ................................ Year 1: Q1 through Q4 of 2025 ................. 60 days. 

Momentum Wind ................. Year 2: Q1 through Q4 of 2026 ................. 120 days (2 cables). 

Future Development ............ Year 3: Q1 through Q4 of 2027 ................. 60 days. 

Fishery monitoring surveys .......................... MarWin ................................

Momentum Wind 

Future Development 

Q1 through Q4 Years 1–5 .......................... 16 days/year for commercial pot surveys. 

12 days/year for recreational surveys. 

1 Currently, US Wind is not planning to conduct activities that have the potential to result in take in 2028 and 2029. However, while table 2 represents US Wind’s 

current schedule, NMFS recognizes the potential for activity schedules to shift such that they could occur during different timeframes within the five year effective period of this rule. 2 Installation timing will depend on vessel availability, contractor selection, weather, and more. Year 1 is anticipated to be 2025, year 2 to be 2026, and year 3 to be 

2027, although these are subject to change per the factors identified. Note: ‘‘Q1, Q2, Q3, and Q4’’ each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December. 3The months identified here represent US Wind’s planned schedule; however, in case of unanticipated delays, foundation installation may occur between May 1 

and November 30 annually. 4 US Wind anticipates that all WTGs, OSS, and Met tower foundations will be installed by November 30, 2027; however, unanticipated delays may require some 

foundation pile driving to occur in years 4 (2028) or 5 (2029). 5 Represents HRG surveys that may result in take of marine mammals. US Wind plans to conduct HRG surveys that are not expected to result in take of marine 

mammals during Q2 through Q3 of year 1 given those surveys would utilize equipment all operating over 180kHz or have no acoustic output. 

Specified Geographic Region 

A detailed description of the Specific 

Geographic Region, identified as the 

Mid-Atlantic Bight, is provided in the 

proposed rule (89 FR 504, January 4, 

2024). Since the proposed rule was 

published, no changes have been made 

to the Specified Geographic Region. 

Generally, US Wind’s specified 

activities (i.e., impact pile driving of 

monopile and jacket foundations; 

placement of scour protection; 

trenching, laying, and burial activities 

associated with the installation of the 

ECRs and inter-array cables; HRG site 

characterization surveys; and WTG 

operation) are concentrated in the Lease 

Area and ECRs offshore of Maryland. 

However, vessel transit from ports as far 

south as Virginia and as far north as 

New Jersey are anticipated. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

Comments and Responses 

NMFS published a proposed rule in 

the Federal Register on January 4, 2024 

(89 FR 504) for a 30-day public 

comment period. The proposed rule 

described, in detail, US 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 US 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. 

NMFS received 114 comment 

submissions, including from the Marine 

Mammal Commission (Commission), 

Delaware Department of Natural 

Resources (DDNC), Town of Fenwick 

Island, several non-governmental 

organizations, and individual citizens, 

all of which are available for review on 

www.regulations.gov. Most of these 

comments were out-of-scope or not 

applicable to the Project (e.g., general 

opposition to or support of offshore 

wind projects; concerns for other 

species outside NMFS’ jurisdiction (e.g., 

birds and horseshoe crabs) methods for 

conducting site condition identification, 

support for the proposed rule and the 

Project, concern for energy distribution 

and power from the Project, beach 

erosion and flooding, critique of the 

Maryland offshore wind congressional 

hearing held in January 2024), and are 

not described herein or discussed 

further. Non-governmental 

organizations included: Caesar Rodney 

Institute (CRI), Town of Fenwick Island 

(TFI), Wrecker Sportfishing, Deep Sea 

Defenders, and Tower Shore Beach 

Association. We have responded to all 

comments that contained substantive 

information and considered that 

information in this final rule, including 

comments related to the estimated take 

analysis, final determinations, and final 

mitigation, monitoring, and reporting 

requirements. A summary of comments 

is described below, along with NMFS’ 

responses. 

Modeling and Take Estimates 

Comment 1: The Commission notes 

that, based upon SFV reports, 


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discrepancies exist between modeled 

and measured Level A harassment and 

Level B harassment zones. The 

Commission indicates that these 

discrepancies may be related to actual 

installation conditions and should be 

accounted for in the estimation of 

harassment zones, authorized number of 

takes, and mitigation, monitoring, and 

reporting requirements for the Maryland 

Wind Offshore Wind Project. The 

Commission recommends that NMFS 

provide the interim and/or final SFV 

reports for South Fork and Vineyard 

Wind 1 and allow for another 30-day 

public comment period for the 

Maryland Wind proposed rule before 

issuing a final rule. 

Response: Based on the discussion 

below and given our consideration of 

the best available scientific information, 

including available sound field 

verification (SFV) reports from other 

offshore wind construction projects in 

the United States, we disagree with the 

suggestions made by the Commission. 

The Commission has expressed 

concerns about the lack of validation of 

source models in previous Commission 

letters. Since the proposed rule was 

published, NMFS has received interim/ 

final sound field verification reports 

from the South Fork Wind project. In all 

but one case, the measured distances to 

NMFS’ Level B harassment threshold 

were lower than the model predicted. 

The distance to NMFS’ Level B 

harassment threshold for the South Fork 

project was modeled as 4.68 kilometers 

(km) while in-situ measurements 

identified distances ranging from 1.84 

km to 3.25 km. MAI’s modeling predicts 

the distances to the Level B harassment 

threshold during installation of the 

Maryland Wind 11-m monopiles will be 

approximately 5.25 km which is less 

than 1 km larger than South Fork’s 

modeled distance. We note that South 

Fork determined that 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. 

Since the public comment period 

ended on the proposed rule, NMFS has 

also received SFV reports from Vineyard 

Wind 1. However, due to the hammer 

energy assumption in the model versus 

what was used in the field (i.e., more 

hammer energy was used than modeled) 

and other operational challenges, it is 

more challenging to compare the VW 

measured results directly to the 

modeled results, although the modeled 

distances to the Level A harassment 

threshold were larger (the largest 

modeled distance to the Level A 

harassment threshold was for lowfrequency cetaceans at 3.191 km) than 

distances to the Level A harassment 

threshold measured by SFV. The final 

SFV report for the 2023 construction of 

the Vineyard Wind 1 Offshore Wind 

Project is currently posted on our 

website (https://www.fisheries.

noaa.gov/action/incidental-takeauthorization-vineyard-wind-1-llcconstruction-vineyard-wind-offshorewind). 

Importantly, in this final rule, should 

SFV results reveal noise levels are 

louder than those predicted assuming 

10 dB attenuation, NMFS is requiring 

US Wind to implement additional 

measures to reduce sound levels such 

that they do not exceed those modeled 

assuming 10 dB. US Wind is required to 

conduct either thorough or abbreviated 

monitoring on all foundation piles 

installed. 

NMFS has incorporated the best 

available scientific information into this 

final rule, using recent measurements as 

well as estimates obtained through 

modeling. In regards to the 

Commission’s comment recommending 

another 30-day comment period for the 

proposed rule, NMFS disagrees with 

this recommendation and has 

determined that one 30-day comment 

period for the proposed rule is sufficient 

under the MMPA. The MMPA requires 

notice and opportunity for public 

comment. The 30-day public comment 

period for the Maryland Offshore Wind 

Project proposed rule was open to the 

public from January 4, 2024 through 

February 5, 2024. NMFS fulfilled the 

requirements of the MMPA by providing 

notice in the Federal Register and 

opportunity for public comment on this 

proposed rule. 

Comment 2: The Caesar Rodney 

Institute (CRI) notes that NMFS has not 

established a standard version of 

estimated population abundances that 

should be used when evaluating ITA 

requests. CRI indicates that North 

Atlantic right whale best population 

abundance estimates vary between 

projects, ranging from 338 North 

Atlantic right whales (for the proposed 

Maryland Wind Offshore Wind Project 

proposed rule (89 FR 504, January 4, 

2024)) to 346 and 394 North Atlantic 

right whales (for other projects). The 

CRI recommends that NMFS establish a 

North Atlantic right whale population 

abundance to be used in all 

applications, as well as a maximum 

allowed estimated population density 

for the months for which construction 

would take place. 

Response: The MMPA and its 

implementing regulations require that 

incidental take regulations be 

established based on the best available 

information. The dynamic nature of 

population science dictates that 

rulemakings will not be using the same 

population numbers from year to year. 

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. Since 

publication of the proposed rule, NMFS 

has released the draft 2023 Stock 

Assessment Report indicating the North 

Atlantic right whale population 

abundance is estimated as 340 

individuals based on sighting data 

through December 31, 2021 (88 FR 5495, 

January 29, 2024). NMFS has used the 

most recent best available scientific 

information in the analysis of this final 

rule. This new estimate, which is based 

on the analysis from Pace et al. (2017) 

and subsequent refinements found in 

Pace (2021), provides the best available, 

and in this case most recent, estimate, 

including improvements to NMFS’ right 

whale abundance model. NMFS notes 

this estimate aligns with the 2022 North 

Atlantic right whale Report Card (Pettis 

et al., 2022) estimate (also 340) based on 

sighting data through August 2022 but, 

as described above, that the SARs are 

peer reviewed by other scientific review 

groups prior to being finalized and 

published and that the Report Card does 

not undertake this process. Based on 

this, NMFS has considered all relevant 

information regarding North Atlantic 

right whales, including the information 

cited by the commenters. However, 

NMFS has relied on the draft 2023 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 US 

Wind’s construction activities. 

While NMFS does not 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 


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available science regarding marine 

mammal occurrence. 

Mitigation 

Comment 3: Multiple commenters 

recommend strengthening mitigation 

measures for endangered species to 

minimize take by Level A harassment, 

specifically indicating that shutdown 

zones required by the proposed rule for 

fin and sei whales should be expanded 

to encompass the distance to the Level 

A harassment thresholds. One 

commenter stated that, legally, no take 

of endangered species by Level A 

harassment should be allowed. 

Response: NMFS agrees with the 

commenters that take of endangered 

species, such as fin and sei whales, by 

Level A harassment should be 

minimized. As such, the shutdown 

zones for fin and sei whales encompass 

the modeled maximum R95percent

distance to the Level A harassment 

threshold from the pile driving location, 

as described in the Mitigation section of 

this final rule. NMFS disagrees that 

additional or modified mitigation 

measures are necessary to affect the 

least practicable adverse impact on 

marine mammal species or stocks, 

including those listed under the ESA. 

This rule allows a limited number of 

Level A harassment takes to be 

authorized for two ESA-listed species 

(fin whale and sei whale) incidental to 

foundation impact pile driving (table 6). 

We note these take estimates did not 

consider mitigation measures other than 

seasonal restrictions and 10 dB of sound 

attenuation. Some mitigation measures 

in the proposed rule and this final rule 

are centered around North Atlantic right 

whales because of the species status and 

general fitness of individuals. 

If clearance and shutdown zones were 

increased for fin and sei whales, it 

would likely further lengthen 

construction time frames, prolonging 

the time periods over which marine 

mammals may be exposed to 

construction-related stressors (as well as 

creating impracticable operational 

scenarios for the applicant). Southall et 

al. (2021) modeled multiple scenarios 

with different total construction season 

lengths and the results suggest that 

generally shorter construction periods 

are associated with lower risk, which 

aligns with the concept that more days 

of noise exposure and disturbance are 

associated with greater impacts. 

Accordingly, NMFS has determined that 

the current clearance and shutdown 

zones, together with other mitigation 

measures, affect the least practicable 

adverse impact on marine mammals. 

Lastly, regarding the comment that no 

Level A harassment of ESA-listed 

species should be authorized—the 

MMPA mandates that NMFS shall 

authorize the take of marine mammals, 

provided the required findings are 

made. As required, NMFS has 

determined that the Level A and Level 

B harassment allowed under this rule 

will have a negligible impact on all 

marine mammal species and stocks and 

that the required measures affect the 

least practicable adverse impact on 

marine mammal species or stocks. 

Comment 4: A commenter suggests 

that it should be clearly stated in the 

proposed rule that US Wind should be 

responsible for prompt veterinary care, 

rehabilitation, and/or handling of any 

mortally wounded marine mammals 

incidentally taken during the proposed 

activities. 

Response: No serious injury or 

mortality is anticipated or authorized 

for US Wind’s planned activities. In the 

event of sighting any injured marine 

mammals, US Wind would be required 

to follow reporting measures as 

described in the Reporting section and 

217.345(f)(15)(iv), which include 

contacting the regional stranding 

hotline. Further, it would not be 

appropriate to require US Wind to be 

responsible for veterinary care, 

rehabilitation, and/or handling of any 

marine mammal injury or stranding 

cases. 

The best available science indicates 

that the anticipated impacts from the 

specified activities potentially include 

avoidance, cessation of foraging or 

communication, TTS and PTS, stress, 

masking, etc. (as described in the Effects 

of the Specified Activities on Marine 

Mammals and their Habitat section in 

the proposed rule). NMFS emphasizes 

that there is no evidence that noise 

resulting from offshore wind 

development-related specified activities 

would cause marine mammal 

strandings, and there is no evidence 

linking recent large whale mortalities 

and currently ongoing offshore wind 

activities. This point has been well 

supported by other agencies, including 

BOEM and the Marine Mammal 

Commission (Marine Mammal 

Commission Newsletter, Spring 2023). If 

the best available science indicates the 

takings allowed under these regulations 

may be having more than a negligible 

impact, NMFS must suspend or 

withdraw the LOA after notice and 

opportunity for public comment. 

If a marine mammal appears to be 

injured or strands nearby during 

construction activities, the Marine 

Mammal Health and Stranding 

Response Program (MMHSRP), 

established by the MMPA, would be 

responsible for mobilizing a response, if 

and where appropriate. This program 

coordinates emergency responses to 

sick, injured, distressed, or dead seals, 

sea lions, dolphins, porpoises, and 

whales. The MMHSRP works with 

volunteer stranding and entanglement 

networks as well as local, tribal, state, 

and federal government agencies to 

coordinate and conduct emergency 

responses to stranded or entangled 

marine mammals. The networks also 

respond, when safe and feasible, to 

document and recover carcasses. It does 

not and cannot respond to every 

stranded marine mammal, and it is not 

responsible for disposing of carcasses. 

The type of examination conducted 

varies and depends on availability of 

resources, location, carcass accessibility, 

and the decomposition state. A 

necropsy report, when written, includes 

data which are compiled over several 

weeks to months and then analyzed for 

a possible cause of death determination 

and findings. National and Regional 

summaries of stranding statistics are 

available at: https://www.fisheries.

noaa.gov/resource/publicationdatabase/marine-mammal-health-andstranding-response-program-reports. 

Any strandings or marine mammals in 

need of care that occur in the vicinity 

of the Project Area during the specified 

activities would be the responsibility of 

the local stranding and/or entanglement 

network authorized by the MMHSRP. 

Comment 5: The DNREC recommends 

extending the seasonal restriction on 

impact pile driving to November 1 

through April 30, a time period 

reflecting highest activity levels of 

North Atlantic right whales, to reduce 

risk to North Atlantic right whales. 

Response: NMFS has restricted 

foundation installation pile driving from 

December through April, a time period 

which represents the times of year when 

North Atlantic right whales are most 

likely to be in the project area. However, 

we recognize that the density of North 

Atlantic right whales begins to elevate 

in November, as shown by Roberts et al. 

(2023). US Wind’s planned pile driving 

activity schedule does not include pile 

driving in November. However, a 

limited amount of pile driving in 

November may occur if the Project 

experiences significant delays. Should 

pile driving in November be necessary, 

US Wind has agreed to restrict pile 

driving to the maximum extent 

practicable. In any time of year when 

foundation installation is occurring, a 

visual sighting of a North Atlantic right 

whale by foundation installation PSOs 

or an acoustic detection within a 10 km 

PAM monitoring zone triggers a delay in 

pile driving commencement or 

shutdown. These mitigation measures 


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are designed to reduce takes of North 

Atlantic right whales to the maximum 

extent possible. 

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 of 10 takes by Level 

B harassment of North Atlantic right 

whales incidental to any Project 

activities over the 5-year effective 

period of this rulemaking, the required 

mitigation will affect the least 

practicable adverse impact on the 

species from these activities. 

Specifically, the largest modeled Level 

B harassment zone size (5.25 km) is for 

impact pile driving of the 11-m 

monopiles, however the clearance and 

shutdown zone for North Atlantic right 

whales for impact pile driving is any 

distance. Any Level B harassment that 

is not avoided is not expected to impact 

important feeding or other behaviors 

that may occur in the Project Area in a 

manner that would pose 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. 

For these reasons, NMFS finds that 

expanded temporal restrictions are not 

warranted. 

Comment 6: DNREC suggests that 

NMFS should require US Wind to 

maintain the 500-meter separation 

distance for North Atlantic right whales 

for all in-water construction activities, 

including activities for which take is not 

requested. The commenters further note 

that increased noise levels may increase 

stress in North Atlantic right whales, 

and the commenters, as well as the 

Caesar Rodney Institute, recommend 

that NMFS should not approve any 

offshore wind activities that may further 

impact North Atlantic right whales. 

Response: NMFS disagrees with the 

commenter’s suggestion for requiring a 

500-m separation distance for North 

Atlantic right whales for all in-water 

construction activities. The required 

vessel separation distance from North 

Atlantic right whales during vessel 

transit and HRG surveys is 500 m, and 

the North Atlantic right whale clearance 

and shutdown zones are ‘‘any distance’’ 

for impact pile driving activities, 

exceeding the Level B harassment zone 

of 5.25 km and further reducing the 

likelihood of harassment for North 

Atlantic right whales in the area. As 

noted by the commenter, NMFS will 

require US Wind to cease activities in 

response to any marine mammal on a 

path toward or that comes within 10 m 

of in-water construction equipment 

involving heavy machinery other than 

pile driving (e.g., trenching, cable 

laying, etc.). These non-pile driving inwater construction operations are 

relatively low impact (take is not 

anticipated or authorized) and the goal 

of the 10 m separation distance is to 

prevent contact between marine 

mammals and heavy construction 

equipment, rather than to limit exposure 

to noise. NMFS has determined that an 

increase in the shutdown distance for 

these in-water construction operations 

involving heavy equipment and not 

anticipated to result in incidental take is 

not necessary to affect the least 

practicable adverse impact. 

The commenters’ recommendation for 

NMFS to not approve offshore wind 

activities that may impact North 

Atlantic right whales is outside the 

scope of this final rule as NMFS does 

not approve offshore wind activities; 

NMFS only authorizes take of marine 

mammals incidental to these activities. 

NMFS is required to authorize the 

requested incidental take if it finds the 

total incidental take of small numbers of 

marine mammals by U.S. citizens 

‘‘while engaging in that (specified) 

activity’’ within a specified geographical 

region during the 5-year period (or less) 

will have a negligible impact on such 

species or stock and, where applicable, 

will not have an unmitigable adverse 

impact on the availability of such 

species or stock for subsistence uses (16 

U.S.C. 1371(a)(5)(A)). As described in 

the proposed rule and this final rule, 

NMFS has included requirements for 

mitigation measures that effect the least 

practicable adverse impact on all marine 

mammal species or stocks, including 

North Atlantic right whales, and their 

habitat, as required under the MMPA 

(16 U.S.C. 1371(a)(5)(A)(i)(II). 

Comment 7: Commenters note that 

there is a higher potential of vessel 

strikes as whales may respond to noise 

harassment by leaving or avoiding the 

Lease Area and moving into high traffic 

shipping lanes. The commenters further 

note that avoidance of the Project Area 

may increase stress and confusion for 

whales, resulting in an increased 

potential for vessel strikes and 

entanglement. 

Response: NMFS disagrees that there 

is necessarily a higher potential for 

vessel strikes specifically due to whales 

leaving the area to avoid noise from 

project activities. NMFS analyzed the 

potential for vessel strike in the 

proposed rule. While acknowledging 

that whales may temporarily avoid the 

area where the specified activities occur 

and that elevated stress levels is a 

potential response to noise exposure, 

NMFS does not anticipate, based on the 

best available science, that whales will 

abandon their habitat, be displaced in a 

manner that would specifically result in 

a higher risk of vessel strike, or become 

confused in a manner that would 

specifically result in a higher risk of 

vessel strike. The commenter does not 

provide evidence and no evidence 

identified by NMFS has found that this 

would be a reasonably anticipated 

outcome of the specified activity. The 

primary activity that is anticipated to 

result in temporary avoidance of the 

otherwise used habitat is foundation 

installation impact pile driving. Further, 

not only would this activity be limited 

to times of year when North Atlantic 

right whale presence is low, pile driving 

would be intermittent, and pile driving 

would only occur for a limited time over 

the course of three years, with PSOs 

monitoring both visual and acoustic 

cues. Any sighting of a North Atlantic 

right whale within any distance from 

pile driving activities would 

immediately halt such activity until the 

North Atlantic right whale left the area 

of their own volition. 

Comment 8: DNREC indicates proper 

site condition identification should be 

conducted to minimize the need for US 

Wind to waive the shutdown 

requirement for pile refusal or pile 

instability purposes. DNREC further 

notes that HRG micro-siting surveys 

should be used to identify any seabed 

debris, unexploded ordnances, or other 

substrate conditions that could 

negatively impact pile driving 

operations. 

Response: The need to waive the 

shutdown requirement due to pile 

refusal is expected to be low. However, 

regardless, additional surveying to 

assess the likelihood of pile refusal in 

advance would not change the need to 

waive the shutdown if necessary for 

human safety or to avoid equipment 

damage. Regarding the detection of 

unexploded ordnance, US Wind plans 

to conduct HRG micrositing surveys to 

identify potential UXOs for avoidance of 

Project activities. US Wind has provided 

the information necessary for NMFS to 

conduct its analysis and make the 

necessary determinations, and 

additional survey requirements are not 

warranted. 

Monitoring, Reporting, and Adaptive 

Management 

Comment 9: The Commission 

recommends that NMFS ensure that the 

mitigation, monitoring, and reporting 

requirements for the construction of 

wind energy facilities are sufficiently 

detailed from the start and specified in 

the proposed rule so that these measures 


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84682 Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Rules and Regulations 

are available for public comment. The 

Commission indicates that by not 

requiring US Wind to include mitigation 

and monitoring plans for the specified 

activities as part of the proposed rule, 

NMFS is not able to assess whether US 

Wind would be able to successfully 

implement mitigation measures 

adequate to effect the least practicable 

adverse impact on marine mammal 

species and the transparency of the 

public review process is compromised. 

The Commission suggests that US Wind 

submit the SFV plan, foundation pile 

driving plan, and PAM plan to NMFS 

for approval in advance of promulgating 

the final rule, and NMFS should post 

these plans for public comment. In 

particular, the Commission indicates 

that NMFS include the number of 

platforms that would be required to 

monitor for marine mammals during 

foundation installation. 

Response: Due to other concurrent 

permitting processes and 

acknowledging the need for flexibility 

and project-specific implementation, 

NMFS disagrees these plans must be 

submitted prior to promulgating the 

final rule. The purpose of the Plans is 

for the developer to provide details to 

NMFS on how they would satisfy the 

criteria identified in the rule. These 

criteria are available for public review 

and comment. 

In regards to the Commission’s 

recommendation to include a 

requirement for the number of 

monitoring platforms during foundation 

installation, NMFS has added a 

requirement to the final rule at 

§ 217.345 Monitoring and Reporting 

Requirements for a minimum of 3 

monitoring platforms during foundation 

installation. US Wind will be required 

to employ a minimum of 3 active PSOs 

monitoring from the foundation 

installation vessel as well as a minimum 

of 3 active PSOs monitoring from PSO 

vessels. US Wind must employ at least 

two PSO vessels for monitoring during 

foundation installation. 

Comment 10: A commenter 

recommends that the monitoring area 

should be expanded beyond the 125 

square mile (80,000 acres) Maryland 

Wind Energy Area (MDWEA) to ensure 

that project activities can be halted in 

time for animals to pass through the 

area unharmed. The commenter further 

notes that the monitoring area should be 

expanded before any decisions are 

made. 

Response: NMFS disagrees with the 

commenter that the planned monitoring 

area should be expanded beyond the 

boundaries of the MDWEA. As 

described in the proposed rule and this 

final rule, NMFS is requiring that US 

Wind employ both visual and PAM 

methods for monitoring, as both 

approaches aid and complement each 

other (Van Parijs et al., 2021). The use 

of PAM will augment visual detections 

for foundation pile driving, especially 

for activities with the largest zones, to 

expand observer coverage of the area. 

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. In addition, 

NMFS is requiring US Wind to establish 

species-specific clearance and 

shutdown zones during impact pile 

driving and HRG surveys. The purpose 

of clearance and shutdown zones are to 

minimize and prevent potential 

instances of auditory injury and more 

severe behavioral disturbances by 

delaying the commencement of activity 

or halting the activity. NMFS has 

determined that the planned suite of 

mitigation and monitoring measures 

described in the proposed rule and this 

final rule are sufficient to effect the least 

practicable adverse impact on marine 

mammal species in the project area. 

Effects Assessment 

Comment 11: Multiple commenters 

note that the LOA should not be issued 

until the cumulative effects of all 

proposed projects are fully considered. 

Commenters further indicate that the 

MMPA rulemaking does not assess 

cumulative impacts on the affected 

marine mammal species, that the ITA 

does not align with NEPA, and that the 

NEPA process is incomplete. 

Commenters further indicate that the 

ITA should not be issued until the EIS 

is complete. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the total incidental take of 

small numbers of marine mammals by 

U.S. citizens ‘‘while engaging in that 

(specified) activity’’ within a specified 

geographical region will have a 

negligible impact on such species or 

stock and, where applicable, will not 

have an unmitigable adverse impact on 

the availability of such species or stock 

for subsistence uses (16 U.S.C. 

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

defined as ‘‘an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effect on 

annual rates of recruitment or survival’’ 

(50 CFR 216.103). Consistent with the 

preamble of NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

factored into the baseline, which is used 

in the negligible impact analysis. Here, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline (e.g., as reflected in the 

density/distribution and status of the 

species, population size and growth 

rate, and other relevant stressors). 

The preamble of NMFS’ 

implementing regulations also addresses 

cumulative effects from future, 

unrelated activities. Such effects are not 

considered in making the negligible 

impact determination under MMPA 

section 101(a)(5). NMFS considers: (1) 

cumulative effects that are reasonably 

foreseeable when preparing a National 

Environmental Policy Act (NEPA) 

analysis; and (2) reasonably foreseeable 

cumulative effects under section 7 of the 

ESA for ESA-listed species, as 

appropriate. Accordingly, NMFS has 

reviewed BOEM’s FEIS as part of its 

inter-agency coordination and 

determined that the analysis in the FEIS 

for the Maryland Wind Offshore Wind 

Project is sufficient to cover the scope 

of the marine mammal incidental take 

authorization described in this final 

rule. 

This FEIS addresses cumulative 

impacts related to the Project and 

substantially similar activities in similar 

locations. Cumulative impacts regarding 

the promulgation of regulations and 

issuance of an LOA for activities 

planned by US Wind have been 

adequately addressed in the adopted EIS 

that supports NMFS’ determination that 

this action has been appropriately 

analyzed under NEPA. Separately, the 

cumulative effects of the Project on 

ESA-listed species, including the North 

Atlantic right whale, were analyzed 

under section 7 of the ESA when NMFS 

engaged in formal inter-agency 

consultation with the NOAA Greater 

Atlantic Regional Field Office (GARFO) 

and initiated consultation on December 

5, 2023. The Biological Opinion (BiOp) 

for the Project determined that NMFS’ 

promulgation of regulations and 

issuance of an LOA for activities, 

individually and cumulatively, are 

likely to adversely affect, but not 

jeopardize, listed marine mammals. 

The FEIS was finalized by BOEM on 

August 2, 2024 and adopted by NMFS 

on September 4, 2024, thus completing 

the NEPA process. 

Comment 12: Multiple commenters 

recommend that NMFS consider the 

impacts of structure presence and 

operations, including those from 

operational noise on marine mammals 

as well as ocean mixing and vibrations 

on phytoplankton, zooplankton, and the 

food chain. A commenter noted that 


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analysis of incidental take during wind 

turbine operation is insufficient. 

Commenters indicate that NMFS should 

consider the impacts of operational 

noise on marine mammals since 

construction and operation will proceed 

simultaneously, and actual take from 

construction may be masked by any take 

related to operational noise. 

Commenters further suggest the LOA 

should include a full analysis of impacts 

of operational noise and recommend 

that offshore wind energy projects be 

pushed back a minimum of 20 

kilometers (km) from areas used by 

North Atlantic right whales for feeding 

and other life history activities. 

Response: In the proposed rule, 

NMFS considered the impacts to marine 

mammals from operational noise and to 

their habitat, including prey, based on 

the best available science. In this final 

rule, NMFS has supplemented that 

analysis with new scientific information 

that has become available regarding 

these issues since publishing the 

proposed rule. This new information 

does not change our findings. The 

commenters did not provide scientific 

evidence that suggests the analysis 

within the proposed rule was 

unsupported. NMFS has fully evaluated 

the potential impacts of operational 

noise from issuing this final rule 

authorizing take of marine mammals 

over the five year effective period of this 

rulemaking and the potential impacts 

from long-term operations via the BiOp. 

We refer the reader to the Effects of the 

Specified Activities on Marine 

Mammals and Their Habitat section and 

the Negligible Impact Determination 

section in the proposed and this final 

rule for further details. In addition, US 

Wind will be required to use sound field 

verification (SFV) for measuring 

operational noise as wind turbines 

become operational to further evaluate 

the impacts of operational noise on 

marine mammals and their habitat. 

In regards to moving the Project a 

minimum of 20 km away from North 

Atlantic right whale habitat, NMFS 

disagrees with this recommendation. As 

noted in the proposed rule, the Project 

Area overlaps with a North Atlantic 

right whale biologically important area 

(BIA) for migration but not with any 

feeding, breeding, or calving areas. The 

area over which North Atlantic right 

whales may be harassed is relatively 

small compared to the width of the 

migratory corridor. The width of the 

migratory corridor in this area is 

approximately 163.8 km while the 

width of the Lease Area, at the longest 

point, is approximately 33.1 km. North 

Atlantic right whales may be displaced 

from their normal path and preferred 

habitat in the immediate activity area 

(primarily from pile driving activities), 

however, we do not anticipate 

displacement to be of high magnitude 

(e.g., beyond a few kilometers); thereby, 

any associated bio-energetic 

expenditure is anticipated to be small. 

Comment 13: Several commenters 

claimed the request for an ITA should 

be denied alleging the specified 

activities kill as well as harm marine 

mammals and some commenters 

suggested that the ongoing whale UMEs, 

including the whale deaths occurring in 

the winter of 2022–2023, are linked 

with ongoing offshore wind activities. 

One commenter further claimed that 

although ‘‘the recent deaths and 

strandings of whales and other marine 

mammals along the eastern seaboard 

have not been proven to be the direct 

result of offshore wind activities, these 

activities have not been disproven as a 

contributing factor.’’ 

Response: NMFS disagrees that the 

ITA should be denied, as we have made 

the necessary findings required by the 

MMPA for issuance and these findings 

are supported by the necessary analyses 

and best available science. Neither the 

proposed rule nor this final rule allow 

mortality or serious injury of marine 

mammals to be authorized. The best 

available science indicates that the 

anticipated impacts from the specified 

activities potentially include avoidance, 

cessation of foraging or communication, 

TTS and PTS, stress, masking, etc. (as 

described in the Effects of the Specified 

Activities on Marine Mammals and their 

Habitat section in the proposed rule). 

NMFS emphasizes that there is no 

evidence that noise resulting from 

offshore wind development-related 

specified activities would cause marine 

mammal strandings, and there is no 

evidence linking recent large whale 

mortalities and currently ongoing 

offshore wind activities. The 

commenters offer no such evidence or 

other scientific information to 

substantiate their claim. This point has 

been well supported by other agencies, 

including BOEM and the Marine 

Mammal Commission (Marine Mammal 

Commission Newsletter, Spring 2023). 

Additionally, a recent paper by Thorne 

and Wiley (2024) reviewed 

spatiotemporal patterns of strandings, 

mortalities, and serious injuries of 

humpback whales along the US East 

Coast from 2016–2022. Humpback 

whales were chosen as a case study for 

this analysis as they are currently 

undergoing a UME and strand more 

often than other large whale species. 

Thorne and Wiley (2024) found vessel 

strikes to be a major driver in the 

increase of humpback whale strandings, 

mortalities, and serious injury along the 

east coast. The potential for vessel strike 

increased during the study period due 

to increased vessel traffic in new 

foraging areas, the increased presence of 

juvenile humpback whales, and 

humpback whale foraging in shallow 

areas that overlap with vessel traffic. 

Based upon the spatiotemporal analysis, 

no evidence was found that offshore 

wind development played a role in the 

increased number of strandings over 

time. Future studies should focus on 

gaining a greater understanding of 

spatial and seasonal habitat use patterns 

of large whales, spatiotemporal changes 

in prey abundance and distribution, and 

how habitat use and foraging behavior 

affect the risk of vessel strike. While 

several species of delphinids and 

beaked whales have also stranded off 

New Jersey since 2011 (per data 

provided from the National Marine 

Stranding Network), there is no 

evidence that the acoustic sources used 

during HRG surveys contributed to 

these events. NMFS will continue to 

gather data to help us determine the 

cause of death for these stranded 

whales. 

There are ongoing UMEs for 

humpback whales, North Atlantic right 

whales, and minke whales along the 

Atlantic coast from Maine to Florida, 

which includes animals stranded since 

2016 and 2017, respectively, and we 

provide further information on these 

UMEs in the species specific 

subsections in the Description of Marine 

Mammals in the Specific Geographic 

Region section of this final rule. Vessel 

strikes and entanglement in fishing gear 

are the greatest human threats to large 

whales. Partial or full necropsy 

examinations were conducted on 

approximately half of the humpback 

whales that recently stranded along the 

U.S. east coast. Necropsies were not 

conducted on other carcasses because 

they were too decomposed, not brought 

to land, or stranded on protected lands 

(e.g., national and state parks) with 

limited or no access. Of the humpback 

whales examined (roughly 90), about 40 

percent had evidence of human 

interaction, either ship strike or 

entanglement. Based upon necropsies 

conducted thus far, the preliminary 

cause of mortality, serious injury, and 

morbidity in stranded North Atlantic 

right whales is entanglement or vessel 

strike. Full or partial necropsies have 

been conducted on approximately 60 

percent of the stranded minke whales. 

Preliminary findings have shown 

evidence of human interaction or 

infectious disease. The best available 

science indicates that only a limited 


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amount of Level A harassment (PTS) or 

Level B harassment (disruption of 

behavioral patterns (e.g., avoidance)), 

may occur as a result of US Wind’s 

specified activities. NMFS emphasizes 

that there is no credible scientific 

evidence available suggesting that 

mortality and/or serious injury is a 

potential outcome of the planned 

activities. More information about 

interactions between offshore wind 

energy projects and whales can be found 

at https://www.fisheries.noaa.gov/newengland-mid-atlantic/marine-lifedistress/frequent-questions-offshorewind-and-whales. 

Other 

Comment 14: Multiple commenters 

note that more data are needed on the 

impact of wind turbine construction and 

operation on marine mammals, and that 

projects should be paused until these 

data are available. Commenters also 

recommend collecting sound level 

measurements on similar turbines, such 

as Vineyard Wind 1 Offshore Wind 

Farm, to inform the proposed 

rulemaking and LOA. 

Response: The MMPA requires NMFS 

to evaluate the effects of the specified 

activities in consideration of the best 

scientific evidence available and to 

issue the requested incidental take 

authorization if it makes the necessary 

findings. The MMPA does not allow 

NMFS to delay issuance of the 

requested authorization on the 

presumption that new information or 

new regulations will become available 

in the future. If new information 

becomes available in the future, NMFS 

may modify the mitigation and 

monitoring measures in an LOA issued 

under these regulations through the 

adaptive management provisions, as 

described in § 217.347c(1) of this final 

rule. Furthermore, NMFS is required to 

withdraw or suspend an LOA if, after 

notice and public comment unless an 

emergency exists, it determines the 

authorized incidental take may be 

having more than a negligible impact on 

a species or stock. NMFS has duly 

considered the best scientific evidence 

available in its issuance of the final rule 

and made the required findings to issue 

this rule. 

NMFS also notes that, as proposed, 

this final rule requires that no 

unmitigated piles can be installed and 

that SFV is required for piles to ensure 

that measured sound levels do not 

exceed those modeled assuming 10 dB 

of attenuation. NMFS acknowledges the 

importance of transparency in the 

reporting process and plans to make all 

final annual SFV reports available on 

our website. As mentioned above, since 

the publication of the proposed rule 

NMFS has received SFV reports from 

Vineyard Wind 1 that, although 

challenging, allow for comparison 

between modeled and measured 

distances to the Level A harassment and 

Level B harassment thresholds. These 

results are available on our website at: 

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

incidental-take-authorization-vineyardwind-1-llc-construction-vineyard-windoffshore-wind. 

Comment 15: A commenter states that 

NMFS’ review of the ITA application 

was incomplete and the ITA should be 

denied. Another commenter further 

states that approval of the ITA would be 

a ‘‘dereliction of duty’’ and does not 

align with NOAA’s mission. 

Response: NMFS disagrees with the 

commenter that the ITA should be 

denied. NOAA’s stewardship mission 

includes our responsibility to uphold 

and implement the provisions of 

multiple federal statutes designed to 

protect environmental resources, 

including the MMPA. The MMPA 

allows for the incidental take of marine 

mammals provided the necessary 

findings are made. As described in this 

Federal Register notice, NMFS has 

conducted the necessary analysis to 

support our negligible impact finding. 

In addition, we have required mitigation 

to ensure the least practicable adverse 

impact on marine mammals and their 

habitat. We have also included 

monitoring and reporting requirements 

to monitor compliance and impacts to 

marine mammals. 

Changes From the Proposed to Final 

Rule 

Since the publication of the proposed 

rule in the Federal Register on January 

4, 2024 (89 FR 504), 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. In addition, 

reporting requirements on marine 

mammals have been updated in 

accordance with Greater Atlantic 

Regional Fisheries Office (GARFO), 

Southeast Regional Office (SERO), and 

the Northeast Fisheries Science Center 

(NEFSC) most recent guidance. 

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’ draft 2023 

Stock Assessment Report (SAR) (89 FR 

5495, January 29, 2024), we have 

updated the population estimate for the 

North Atlantic right whale (Eubalaena 

glacialis) from 368 to 340 and the total 

mortality/serious injury (M/SI) amount 

from 8.1 to 27.2. This increase is due to 

the inclusion of undetected M/SI 

(whereas 8.1 accounted only for 

detected M/SI). As described in the draft 

2023 SARs (89 FR 5495, January 29, 

2024), the use of the refined methods of 

Pace et al. (2021), the estimated annual 

rate of total mortality of adults and 

juveniles for the period 2016–2020 was 

27.2, which is 3.4 times larger than the 

8.1 total derived from reported mortality 

and serious injury for the same period. 

Given the availability of new 

information, we have made updates to 

the UME summaries for North Atlantic 

right whales, humpback whales, and 

minke whales. 

The following change is reflected in 

the Potential Effects of Specified 

Activities on Marine Mammals and 

Their Habitat section of the preamble to 

this final rule: 

We have added information relating 

to the broken blade at the Vineyard 

Wind 1 Lease Area, the rarity of this 

event occurring, and that no take was 

requested, anticipated, proposed, or 

authorized incidental to blade failure so 

this is not discussed further in this 

document. 

The following changes are reflected in 

the Estimated Take, Mitigation, and 

Monitoring and Reporting sections of 

the preamble to this final rule: 

This final rule requires US Wind to 

employ a minimum of three monitoring 

platforms, including the pile driving 

vessel platform and a minimum of two 

PSO support vessels. Each platform 

must employ a minimum of three active 

on-duty PSOs. 

We have also added a requirement for 

US Wind to cease pile driving activities 

if there is a live cetacean stranding 

within 50 km of pile driving activities 

and the NMFS Marine Mammal 

Stranding Network is attempting to herd 

or return animals to the water. 

The requirement for PAM operators to 

receive conditional or unconditional 

approval was removed as the PAM 

operators’ experience is relevant to all 

PAM operators and the conditional/ 

unconditional approval framework does 

not apply. 


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The educational requirement for PSOs 

and PAM operators to have received a 

bachelor’s degree from ‘‘an accredited 

college or university’’ has been 

removed. PSOs and PAM operators are 

still required to have received a 

bachelor’s degree, although experience 

can still be substituted for education. 

The requirement for submission of 

PAM detection data to the NEFSC has 

been updated due to a change in NEFSC 

reporting requirements. US Wind must 

submit full PAM detection data within 

90 days after pile driving is complete 

and every 90-calendar days for transit 

lane PAM. 

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. 

We have removed duplicative 

measures and, for clarity and 

consistency, we revised paragraph 

§ 217.340(b) of the regulatory text to 

fully describe the specified geographical 

region. 

We have modified a proposed 

measure that set hammer energy 

guidelines during foundation and MET 

Tower installation to allow greater 

flexibility in response to the 

circumstances of the particular 

installation. We have retained the 

measures related to actions necessary 

should SFV identify that distances to 

NMFS harassment thresholds, 

regardless of hammer energies, are 

longer than anticipated. 

For consistency, NMFS has included 

conditions in § 217.344(a) to clarify 

mitigation requirements discussed in 

the preamble. The conditions for 

commencing pile driving and HRG 

survey activities are clarified. 

NMFS has added additional 

clarification on the authority of PSOs 

and PAM operators in § 217.344(a) to 

ensure compliance and proper 

implementation of the regulations. 

NMFS has clarified language in 

§ 217.344(b) to specify that this measure 

applies to vessels traveling in the 

specified geographical region and when 

Project vessels may deviate from vessel 

speed avoidance measures. NMFS has 

also defined the term ‘‘emergency’’ for 

clarity. 

In § 217.344(b)(1), (11), and (12), 

§ 217.344(c)(10), and (15), 

§ 217.344(d)(2), § 217.345(a)(2), and (4), 

§ 217.345(b)(2), (4), (8), and (9), NMFS 

has made minor changes to formatting 

and wording to more clearly state the 

requirements. 

NMFS has added a requirement for all 

vessel operators to reduce speed to 10 

knots (kn) or less when any large whale 

(other than a North Atlantic right whale, 

for which the requirement was already 

included) or large assemblages of 

cetaceans are observed within 500 m 

(0.31 mi) of a transiting vessel in 

§ 217.344(b). 

To align with the BiOp, NMFS has 

modified thorough SFV requirements 

(§ 217.344) and added a requirement for 

US Wind to conduct abbreviated SFV 

monitoring during pile driving activities 

in § 217.344(c). 

NMFS has updated the requirement 

for US Wind to conduct SFV 

measurements during turbine operations 

instead of upon the commencement of 

turbine operations in § 217.344(c)(16). 

In § 217.345(a), NMFS has updated 

the requirements for PSO and PAM 

operator qualifications. The requirement 

for PAM operators to receive 

conditional or unconditional approval 

was removed because all PAM operators 

are subject to a list of qualifications 

presented in the proposed rule and do 

not need to obtain conditional or 

unconditional approval. In addition, the 

educational requirement for PSOs and 

PAM operators to receive their 

bachelor’s degrees from an accredited 

college or university has been removed, 

although PSOs and PAM operators are 

still required to have received a 

bachelor’s degree, although experience 

can still be substituted for education. 

In § 217.345(b)(7), NMFS has added a 

requirement for visual observations of 

marine mammals by pile driving Project 

personnel to be reported to on-duty 

PSOs and vessel captains to increase 

situational awareness. 

In response to comments and to 

improve detection capabilities, NMFS 

has added a requirement for a minimum 

of 3 PSOs to be on-duty on each 

observation platform during impact pile 

driving and that, in addition to PSOs on 

the pile driving vessel, PSOs must also 

be observing for marine mammals on 

two dedicated PSO vessels. 

In § 271.345(f)(6), NMFS has updated 

the requirement for reporting PAM 

detection data due to a change in 

NEFSC reporting requirements. US 

Wind must submit full PAM detection 

data within 90 days after foundation 

installation ceases. 

Description of Marine Mammals in the 

Area of Specified Activities 

As noted in the Changes from the 

Proposed to Final Rule section, since 

publication of the proposed rule (89 FR 

504, January 4, 2024), 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 

(89 FR 504, January 4, 2024). 

Thirty-eight marine mammal species 

under NMFS’ jurisdiction have 

geographic ranges within the western 

North Atlantic OCS (Hayes et al., 2023). 

Sections 3 and 4 of US Wind’s 

application summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history of the 

potentially affected species (US Wind, 

2023). Additional information regarding 

population trends and threats may be 

found in NMFS’ SARs (https://

www.fisheries.noaa.gov/national/ 

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

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’ 

website (https://www.fisheries.

noaa.gov/find-species). 

Table 3 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 3 

are the most recent available data at the 

time of publication which can be found 

in NMFS’ 2023 draft SARs (89 FR 5495, 

January 29, 2024), available online at: 

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

national/marine-mammal-protection/ 

marine-mammal-stock-assessmentreports. 


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TABLE 3—MARINE MAMMAL SPECIES THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN, BY HARASSMENT

Common name 1 Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 3

PBR Annual 

M/SI 4

Order Artiodactyla—Cetacea—Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale Eubalaena glacialis ................ Western Atlantic ..................... E, D, Y 340 (0; 337; 2021) 5 ............... 0.7 5 27.2 

Family Balaenopteridae 

(rorquals): 

Fin whale .......................... Balaenoptera physalus ........... Western North Atlantic ........... E, D, Y 6,802 (0.24, 5,573, 2021) ...... 11 2.05 

Sei whale ......................... Balaenoptera borealis ............ Nova Scotia ............................ E, D, Y 6,292 (1.02, 3098, 2021) ....... 6.2 0.6 

Minke whale ..................... Balaenoptera acutorostrata .... Canadian Eastern Coastal ..... -, -, N 21,968 (0.31, 17,002, 2021) .. 170 9.4 

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

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Delphinidae: 

Killer whale 8 ..................... Orcinus orca ........................... Western North Atlantic ........... -, -, N UNK (UNK, UNK, 2016) ......... UNK 0 

Long-finned pilot whale .... Globicephala melas ................ Western North Atlantic ........... -, -, N 39,215 (0.3, 30,627, 2021) .... 306 5.7 

Short-finned pilot whale ... Globicephala macrorhynchus Western North Atlantic ........... -, -, Y 18,726 (0.33, 14,292, 2021) .. 143 218 

Bottlenose dolphin ........... Tursiops truncatus .................. Western North Atlantic Offshore.-, -, N 64,587 (0.24, 52,801, 2021) 6 507 28 

Bottlenose dolphin ........... Tursiops truncatus .................. Northern Migratory Coastal .... -, -, Y 6,639 (0.41, 4,759, 2016) 7 .... 48 12.2–21.5 

Common dolphin .............. Delphinus delphis ................... Western North Atlantic ........... -, -, N 93,100 (0.56, 59,897, 2021) .. 1,452 414 

Atlantic spotted dolphin .... Stenella frontalis ..................... Western North Atlantic ........... -, -, N 31,506 (0.28, 25,042, 2021) .. 250 0 

Pantropical spotted dolphin.Stenella attenuata .................. Western North Atlantic ........... -, D, N 2,757 (0.50, 1,56, 2021) ........ 19 0 

Risso’s dolphin ................. Grampus griseus .................... Western North Atlantic ........... -, -, N 44,067 (0.19, 30,662, 2021) .. 307 18 

Rough-toothed dolphin 8 ... Steno bredanensis ................. Western North Atlantic ........... -, -, N unk (unk, unk, 2021) .............. undet 0 

Striped dolphin 8 ............... Stenella coeruleoalba ............. Western North Atlantic ........... -, -, N 48,274 (0.29, 38,040, 2021) .. 529 0 

Family Phocoenidae (porpoises): 

Harbor porpoise ............... Phocoena phocoena .............. Gulf of Maine/Bay of Fundy ... -, -, N 85,765 (0.53, 56,420, 2021) .. 649 145 

Order Carnivora—Pinnipedia 

Family Phocidae (earless 

seals): 

Harbor seal ....................... Phoca vitulina ......................... Western North Atlantic ........... -, -, N 61,336 (0.08, 57,637, 2018) .. 1,729 339 

Gray seal 9 ........................ Halichoerus grypus ................ Western North Atlantic ........... -, -, N 27,911 (0.20, 23,624, 2021) .. 1,512 4,570 

Harp seal .......................... Pagophilus groenlandicus ...... Western North Atlantic ........... -, -, N 7.6M (UNK, 7.1M, 2019) ........ 426,000 178,573 

1 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://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)). 2ESA 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. 3 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. 4These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). 5 In the proposed rule (89 FR 504, January 4, 2023), 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=340) was released in NMFS’ draft 2023 SARs and has been incorporated into this final rule. 

The current draft SAR includes an estimated population (N best 340) based on sighting history through December 2021 (89 FR 5495, January 29, 2024). In October 

2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 

95 percent credible interval ranging from 346 to 363 (Linden, 2023); Total annual average observed North Atlantic right whale mortality during the period 2017–2021 

was 7.1 animals and annual average observed fishery mortality was 4.6 animals. Numbers presented in this table (27.2 total mortality and 17.6 fishery mortality) are 

2016–2020 estimated annual means, accounting for undetected mortality and serious injury. 6As noted in the draft 2023 SAR (89 FR 5495, January 29, 2024), abundance estimates may include sightings of the coastal form. 

7There are two morphologically and genetically distinct forms of common bottlenose dolphin (Duffield et al., 1983; Mead and Potter, 1995; Rosel et al., 2009) described as the coastal and offshore forms in the western North Atlantic (Hersh and Duffield, 1990; Mead and Potter, 1995; Curry and Smith, 1997; Rosel et al., 2009). 

The two morphotypes are genetically distinct based upon both mitochondrial and nuclear markers (Hoelzel et al., 1998; Rosel et al., 2009). The genetic and morphological differences recently led to the coastal form being described as a new species, Tursiops erebennus (Costa et al., 2022; 89 FR 5495, January 29, 2024). Population estimates are based upon recent surveys in 2021. 8 US Wind did not request take of these species; however, their exposure analysis demonstrates there is potential for harassment. Although these species are rare 

in the project area, NMFS would authorize a small amount of Level B harassment in the case of potential presence during pile driving. 9 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. 

Of the marine mammal species and/ 

or stocks with geographic ranges that 

include the western North Atlantic OCS 

(table 3–1 in US Wind incidental take 

authorization (ITA) application), 19 are 

not expected to be present or are 

considered rare or unexpected in the 

project area based on sighting and 

distribution data; they are, therefore, not 

discussed further beyond the 

explanation provided here. Specifically, 

the following cetacean species are 

known to occur off of Maryland but are 

not expected to occur in the project area 

due to the location of preferred habitat 

outside the Lease Area and ECCs, based 

on the best available information, and 

therefore US Wind did not request, and 

NMFS is not authorizing take, of these 

species: Blue whale (Balaenoptera 

musculus), Cuvier’s beaked whale 

(Ziphius cavirostris), four species of 

Mesoplodont beaked whales 

(Mesoplodon densitostris, M. europaeus, 

M. mirus, and M. bidens), Atlantic 

white-sided dolphin (Lagenorhynchus 

acutus), Clymene dolphin (Stenella 

clymene), dwarf sperm whale (Kogia 

sima), false killer whale (Pseudorca 

crassidens), Fraser’s dolphin 


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(Lagenodelphis hosei), melon-headed 

whale (Peponocephala electra), 

northern bottlenose whale (Hyperoodon 

ampullatus), pygmy killer whale (Feresa 

attenuata), pygmy sperm whale (Kogia 

breviceps), sperm whale (Physeter 

macrocephalus), spinner dolphin 

(Stenella longirostris), and white-beaked 

dolphin (Lagenorhynchus albirostris). 

Two species of phocid pinnipeds are 

also uncommon in the project area, 

including: harp seals (Pagophilus 

groenlandica) and hooded seals 

(Cystophora cristata). However, harp 

seals are known to strand in coastal 

Maryland. Therefore, the LOA, if issued, 

would authorize take of harp seals. 

In addition to the species listed in 

table 2, the Florida manatee (Trichechus 

manatus; a sub-species of the West 

Indian manatee) has been previously 

documented as an occasional visitor to 

the Mid-Atlantic region during summer 

months (U.S. Fish and Wildlife Service 

(USFWS), 2019). However, as manatees 

are managed solely under the 

jurisdiction of the U.S. FWS and are 

considered rare or unexpected in the 

Project Area, they are not considered or 

discussed further in this document. 

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 (89 

FR 504, January 4, 2024). Other than 

adjustments to population statistics 

(e.g., North Atlantic right whale 

population abundance) and UME 

updates, we are not aware of any 

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 (89 FR 504, 

January 4, 2024). 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 January 2024, NMFS released its 

draft 2023 SARs, (89 FR 5495, January 

29, 2024) which updated the population 

estimate (Nbest) of North Atlantic right 

whales to 340 individuals (an increase 

from the final 2022 SARs (n=338); the 

annual M/SI value dropped from the 

final 2022 SAR of 31.2 to 27.2 in the 

draft 2023 SAR. Beginning in the 2022 

SARs, the M/SI for North Atlantic right 

whale included the addition of 

estimated undetected mortality and 

serious injury, which had not been 

previously included in the SAR. The 

current population estimate is equal to 

the North Atlantic Right Whale 

Consortium’s 2022 Annual Report Card, 

which identifies the population estimate 

as 340 individuals (Pettis et al., 2023). 

As described in the proposed rule, 

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 3, 2024, there have been 40 

confirmed mortalities (dead, stranded, 

or floaters), 1 pending mortality, and 36 

seriously injured free-swimming whales 

for a total of 77 whales. The UME also 

considers animals with sublethal injury 

or illness (called ‘‘morbidity’’; n=65) 

bringing the total number of whales in 

the UME to 142. More information about 

the North Atlantic right whale UME is 

available online at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2017-2024-northatlantic-right-whale-unusual-mortalityevent. 

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 

known cases. Since publication of the 

proposed rule, the number of animals 

considered part of the UME has 

increased to 227 total mortalities (as of 

September 3, 2024). More information is 

available at: https://www.fisheries.

noaa.gov/national/marine-life-distress/ 

2016-2024-humpback-whale-unusualmortality-event-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 

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 

2022–2023 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 3, 2024, a 

total of 174 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. 

More information is available at: https:// 

www.fisheries.noaa.gov/national/ 

marine-life-distress/2017-2024-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 June 2022 and lasted 

through July 2022. The UME 

Investigative Team reviewed necropsy, 

histopathology, and diagnostic findings. 

They determined the UME was 

attributed to spillover events of the 

highly pathogenic avian influenza H5N1 

virus from infected wild birds to harbor 

and gray seals. An ongoing HPAI H5N1 

global outbreak in domestic and wild 

birds and wild mammals began in 2021. 

Live seals showed signs of respiratory 

and neurological disease including 

nasal and ocular discharge, coughing, 

unresponsiveness, and seizures. 

Eighteen percent of the stranded seals 

(33 out of 180) were tested for avian 

influenza via polymerase-chainreaction. A subset of seals were positive 

for HPAI H5N1 with preliminary 

findings confirmed by the U.S. 

Department of Agriculture’s National 

Veterinary Services Laboratories. Of the 

33 seals tested during the UME period 

19 (58 percent) were positive for H5N1 

(17 harbor seals; 2 gray seals) and 14 (42 

percent) tested negative. Twelve H5N1 

positive seals had histopathology 

conducted; 11 of those seals had lesions 

(primarily respiratory and/or 


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neurologic) suspected or consistent with 

avian influenza infection. Sequencing of 

the H5N1 virus detected in seals 

suggests the seals were infected from 

spillover events from infected wild 

birds to these seals. While the UME was 

not occurring in the area of the Project, 

the populations affected by the UME 

were the same as those potentially 

affected by the Project. Information on 

this UME is available online at: https:// 

www.fisheries.noaa.gov/national/ 

marine-life-distress/active-and-closedunusual-mortality-events. 

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. 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 4. 

TABLE 4—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans ...................................................................................................................................................

(baleen whales) ..........................................................................................................................................................................

7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans ...................................................................................................................................................

(dolphins, toothed whales, beaked whales, bottlenose whales) ................................................................................................

150 Hz to 160 kHz. 

High-frequency (HF) cetaceans ..................................................................................................................................................

(true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. australis) ..........................................

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) ..........................................................................................................................................

(true seals) ..................................................................................................................................................................................

50 Hz to 86 kHz. 

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

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65-dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

Exposure to underwater noise from 

the Project’s specified activities have the 

potential to result in Level A 

harassment or Level B harassment of 

marine mammals in the specified 

geographic region, but no serious injury 

or mortality. The proposed rule (89 FR 

504, January 4, 2024) included a 

discussion of the effects of 

anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from the Project’s 

specified activities on marine mammals 

and their habitat. While some new 

literature regarding marine mammal 

distribution and habitat use has been 

published since publication of the 

proposed rule (e.g., BOEM et al., 2024; 

Holdman et al., 2023; Pirotta et al., 

2024; Roberts et al., 2024; Thorne and 

Wiley, 2024), there is no new 

information that NMFS is aware of that 

changes the analysis in the proposed 

rule. We provide a summary of these 

papers below. 

The recently released BOEM and 

NOAA Fisheries North Atlantic Right 

Whale Strategy (BOEM et al., 2024) 

identified actions related to mitigation 

and decision-support tools, research and 

monitoring, and collaboration, 

communication, and outreach to 

minimize risk and impacts to North 

Atlantic right whales. The identified 

actions would also allow for 

coordinated and efficient collaborations 

between Federal agencies and partners, 

collection and application of the best 

available scientific data, and 

implementation of effective mitigation 

measures. The Strategy also describes 

potential actions for further 

development as well. 

Pirotta et al. (2024) incorporated data 

and analysis of North Atlantic right 

whale length, compiled by the North 

Atlantic Right Whale Consortium, to 

investigate whether the smaller mean 

asymptotic length currently 

documented for North Atlantic right 

whales is associated with lower 

reproductive output. North Atlantic 

right whale mean asymptotic length 

(Stewart et al., 2021) and female calving 

probability (Pirotta et al., 2023) have 

been in decline for decades. Pirotta et al. 

(2024) expanded upon the conducted by 

Stewart et al. (2022) and quantified how 

length contributes to calving 

probability, while taking into account 

variation due to individual health of 

whales. The finding that smaller mean 

asymptotic length contributes to lower 

calving probability for North Atlantic 

right whales provides a greater 

understanding into drivers for 

decreasing reproductive output for this 

species. 

In 2022, the Duke University Marine 

Geospatial Ecology Laboratory provided 

updated habitat-based marine mammal 

density models for the U.S. Atlantic 

(Roberts et al., 2016; Roberts et al., 

2023). The proposed rule incorporated 

these density models into methodology 

for estimating take from foundation 

installation and HRG surveys (89 FR 

504, January 4, 2024). Recently, North 

Atlantic right whale density model 

results were evaluated using 

independently collected passive 

acoustic monitoring (PAM data) 

(Roberts et al., 2024). Positive 

correlations between North Atlantic 

right whale densities and acoustic 

detection rates indicated concurrence 

between visual and acoustic 

observations of North Atlantic right 

whales. Results of this study also further 

quantify the North Atlantic right whale 

distribution shifts that occurred in 2010. 

Moreover, new data also supports our 

inclusion of certain mitigation measures 

in the proposed and this final rule. For 


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example, Crowe et al. (2023) discussed 

the use and importance of real-time data 

for detecting North Atlantic right 

whales. The shift in North Atlantic right 

whale habitat use motivated the 

integration of additional ways to detect 

the presence of North Atlantic right 

whales and passive acoustic detections 

of right whale vocalizations reported in 

near real-time became an increasingly 

important tool to supplement visual 

sightings. The proposed rule did 

include real-time and daily awareness 

measures and sighting communication 

protocols, NMFS evaluated these 

measures and added details for clarity 

or updated the reporting mechanisms, 

such as in the case of sighting an injured 

North Atlantic right whale. Davis et al. 

(2023) analyzed North Atlantic right 

whale individual upcalls from 2 years of 

acoustic recordings in southern New 

England which showed that North 

Atlantic right whales were detected at 

least 1 day every week throughout both 

years, with highest North Atlantic right 

whale presence from October to April. 

Within southern New England (SNE), on 

average, 95 percent of the time North 

Atlantic right whales persisted for 10 

days, and recurred again within 11 days. 

An evaluation of the time period over 

which it is most effective to monitor 

prior to commencing pile driving 

activities showed that with 1 hour of 

pre-construction monitoring there was 

only 4 percent likelihood of hearing a 

North Atlantic right whale, compared to 

74 percent at 18 h. Therefore, 

monitoring for at least 24 hours prior to 

activity will increase the likelihood of 

detecting an up-calling North Atlantic 

right whale. 

Thorne and Wiley (2024) recently 

reviewed spatiotemporal patterns of 

strandings, mortalities, and serious 

injuries of humpback whales along the 

U.S. east coast from 2016–2022 and 

found vessel strikes to be the major 

driver in the increase of humpback 

whale strandings, mortalities, and 

serious injury. Based upon the 

spatiotemporal analysis, no evidence 

was found that offshore wind 

development played a role in the 

increased number of strandings over 

time. In fact, the potential for vessel 

strike increased during the course of the 

study due to increased vessel traffic in 

new foraging areas, the increased 

presence of juvenile humpback whales, 

and humpback whale foraging in 

shallow areas that overlap with vessel 

traffic. 

Similar to the discussion presented in 

the proposed rule, the BiOp stated it is 

likely the Project will produce a wind 

wake from operation of the turbines and 

that the foundations themselves will 

lead to disruptions in local conditions. 

The scale of these effects is expected to 

range from hundreds of meters and up 

to 1 km from each foundation and the 

changes in conditions may alter the 

distribution of nutrients, primary 

production, and plankton (Floeter et al., 

2017; van Berkel et al., 2020). However, 

the BiOp concluded it is not expected 

that the impacts to oceanic conditions 

resulting from the Project will be large 

enough to affect regional conditions that 

could influence the distribution of prey 

or conditions that aggregate prey in the 

broader Mid-Atlantic Bight region or 

within or around the Maryland Wind 

WDA in a way that would have adverse 

effects on ESA-listed species. Therefore, 

NMFS expects any alteration of the 

biomass of plankton in the region, and 

therefore, the total food supply, to be so 

small that adverse effects on ESA-listed 

species are extremely unlikely to occur. 

Overall, there is no new scientific 

information regarding the general 

anticipated effects of OSW construction 

on marine mammals and their habitat 

that was not discussed in the proposed 

rule. The information and analysis 

regarding the potential effects on marine 

mammals and their habitat has not 

changed and is adopted here by 

reference (see 89 FR 504, January 4, 

2024). 

Globally, there are more than 341,000 

operating WTGs (Global Wind Energy 

Council). Turbine failures are known to 

occur but are considered rare events 

(Katsaprakakis et al., 2021, DOE, 2024a). 

For example, fewer than 40 incidents 

were identified in the modern fleet of 

more than 40,000 onshore turbines 

installed in the United States as of 2014 

(DOE, 2024b). In 2022, the total global 

capacity of offshore wind reached 

59,009 MW from 292 operating projects 

and over 11,900 operating wind turbines 

in 2022 (DOE, 2023), and a review of the 

relevant literature and media reports 

indicate blade failure among this cohort 

of turbines continues to be rare, 

consistent with industry performance in 

onshore wind turbines. On July 13, 

2024, however, a blade on one of the 

WTGs at Vineyard Wind 1, a project 

located off of Martha’s Vineyard and 

Nantucket, was damaged during the 

‘‘warm up’’ phase of operations, causing 

a portion of the blade, primarily 

composed of fiberglass, to fall into the 

water. In cooperation with Vineyard 

Wind 1, GE Vernova, the blade 

manufacturer, initiated debris recovery 

efforts and an investigation. Following 

this blade failure incident, the Bureau of 

Safety and Environmental Enforcement 

(BSEE), Department of Interior, issued a 

Suspension Order on July 17, 2024 

(https://www.bsee.gov/newsroom/latestnews/statements-and-releases/pressreleases/bsee-statement-on-vineyardwind) and an additional Order for 

clarification on July 26, 2024 (https://

www.bsee.gov/newsroom/latest-news/ 

statements-and-releases/press-releases/ 

bsee-issues-new-order-to-vineyardwind), which suspends power 

production and any further wind 

turbine generator construction until the 

suspension is lifted. 

As noted above, wind turbine failure 

is considered rare, and NMFS still 

considers the likelihood that blade 

failure would occur pursuant to US 

Wind’s specified activity during the 

effective period of the ITA so low as to 

be discountable. Furthermore, GE 

Vernova’s quality assurance program 

will complete thorough inspections on 

the remaining blades to be installed to 

ensure additional blade malfunction 

incidents do not occur. US Wind did 

not request, NMFS does not anticipate, 

and NMFS has not authorized, take of 

marine mammals incidental to a turbine 

blade failure and, therefore the topic is 

not discussed further. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes that may 

be authorized through this rule, which 

will inform both NMFS’ consideration 

of ‘‘small numbers’’ and the negligible 

impact determination. The analysis 

related to take incidental to HRG 

surveys and foundation installation is 

unchanged since the proposed rule. 

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 (as well as impulse 

metric (Pascal-second) and peak sound 

pressure level thresholds above which 

marine mammals may incur nonauditory injury from underwater 

explosive detonations); (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) the number of days of activities. 

We note that while these 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. Below, we 

describe the factors considered here in 

more detail and present the take 

estimates. 

Marine Mammal Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 


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received level of underwater sound 

above which exposed marine mammals 

are likely 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 identifying the 

received level of in-air sound above 

which exposed pinnipeds would likely 

be behaviorally harassed. A summary of 

NMFS’ 2018 thresholds can be found at: 

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

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

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 state of the 

receiving animals (e.g., 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 (re 1 mPa) for continuous 

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

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

airguns) or intermittent (e.g., scientific 

sonar) sources (table 4). Generally 

speaking, Level B harassment take 

estimates based on these behavioral 

harassment thresholds are expected to 

include any likely takes by temporary 

threshold shift (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 (e.g., 

conspecific communication, predators, 

prey) may result in changes in behavior 

patterns that would not otherwise occur. 

US Wind’s construction activities 

include the use of intermittent (e.g., 

impact pile driving and HRG acoustic 

sources) sources; therefore, the 160 dB 

re 1 mPa (RMS) threshold is applicable. 

Level A harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0; 

Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

constituting 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 (i.e., impulsive or nonimpulsive sources). As dual metrics, 

NMFS considers onset of PTS 

constituting Level A harassment to have 

occurred when either one of the two 

metrics is exceeded (i.e., metric 

resulting in the largest isopleth). The 

Project includes the use of impulsive 

and non-impulsive sources. 

The 2018 thresholds are provided in 

table 5 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. 

TABLE 5—ONSET OF PTS 

[NMFS, 2018] 

Hearing group 

PTS onset thresholds * 

(received level) 

Impulsive Non-impulsive 

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

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

High-frequency (HF) cetaceans .................................... Cell 5: Lp,0-pk,flat: 202 dB; LE,p,HF,24h: 155 dB ............... Cell 6: LE,p,HF,24h: 173 dB. 

Phocid pinnipeds (PW) (Underwater) ............................ Cell 7: Lp,0-pk.flat: 218 dB; LE,p,PW,24h: 185 dB .............. Cell 8: LE,p,PW,24h: 201 dB. 

Otariid pinnipeds (OW) (Underwater) ............................ Cell 9: Lp,0-pk,flat: 232 dB; LE,p,OW,24h: 203 dB .............. Cell 10: LE,p,OW,24h: 219 dB. 

* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound 

has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended 

for consideration. 

Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards 

(ISO, 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the 

designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW 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. 

Take That May Be Authorized 

In the proposed rule, we discussed 

the marine mammal density and 

occurrence information, acoustic 

modeling, and take estimation 

methodologies and results for each of 

US Wind’s specified activities and all 

marine mammal species and stocks. All 

of this information presented in the 

proposed rule, including multiple tables 

(e.g., densities, acoustic ranges, source 

characteristics) remains accurate and 

unchanged and is not reproduced here. 

Below, tables 6 and 7 identify the 

maximum annual allowable take and 

the maximum total allowable take 

across the 5-year effective period of the 

rule. 

As described in the proposed rule (89 

FR 504, January 4, 2024), NMFS used 

the best available science and robust 

models to consider the interaction of 

marine mammal movement, the 

environment, and the Project activities, 

in the context of NMFS’ acoustic 

thresholds, to project the maximum 

number of takes that are reasonably 

expected to occur, by Level A 

harassment and Level B harassment. 

However, NMFS has also acknowledged 


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the uncertainty inherent in certain input 

values (e.g., source levels and spectra) 

and environmental variability present in 

real-life physical and biological systems. 

The LOA would specify maximum 

annual and 5 year takes that may not be 

exceeded, by Level A and Level B 

harassment, but would not specify the 

number of allowable takes by activity 

type, thus allowing for flexibility should 

the number of takes from a specific 

activity type exceed the number 

modeled for the specific activity type, 

provided the manner and impacts of 

those takes remain within those 

considered within the analysis and the 

total takes remain below the annual 

maximum and 5-year totals. 

TABLE 6—MAXIMUM LEVEL A HARASSMENT AND LEVEL B HARASSMENT TAKES FOR ALL ACTIVITIES THAT MAY BE AUTHORIZED DURING THE CONSTRUCTION OF THE PROJECT AND OVER THE COURSE OF THE FIVE YEARS COVERED BY

THE RULE 1

Marine mammal species 

Total take by 

Level A harassment 

that may be authorized 

Total take by 

Level B harassment 

that may be authorized 

North Atlantic right whale 2 ...................................................................................................... 0 10 

Fin whale 2 ............................................................................................................................... 6 35 

Humpback whale ..................................................................................................................... 6 30 

Minke whale ............................................................................................................................. 9 58 

Sei whale 2 ............................................................................................................................... 3 3 

Killer whale .............................................................................................................................. 0 9 

Atlantic spotted dolphin ........................................................................................................... 0 168 

Coastal bottlenose dolphin ...................................................................................................... 0 2,165 

Offshore bottlenose dolphin ..................................................................................................... 0 2,755 

Bottlenose dolphin 3 ................................................................................................................. 0 258 

Common dolphin ...................................................................................................................... 0 488 

Long-finned pilot whale ............................................................................................................ 0 48 

Short-finned pilot whale ........................................................................................................... 0 33 

Pantropical spotted dolphin ..................................................................................................... 0 15 

Risso’s dolphin ......................................................................................................................... 0 70 

Rough-toothed dolphin ............................................................................................................ 0 18 

Striped dolphin ......................................................................................................................... 0 138 

Harbor porpoise ....................................................................................................................... 6 68 

Gray seal 4 ............................................................................................................................... 0 496 

Harbor seal 4

Harp seal 4

1The final rule and LOA would be effective from January 1, 2025 through December 31, 2029, however, US Wind has not planned activities to 

occur in 2028 or 2029. As described in table 2, NMFS recognizes the potential for activity schedules to shift such that they occur during different 

timeframes within the five year effective period of the rule, including the potential for activities to occur in 2028 and 2029. 2 Listed as Endangered under the ESA. 

3The total take over 5 years represented here accounts for HRG surveys wherein the take may occur to either the Northern migratory coastal 

stock and/or the offshore stock of bottlenose dolphins. 4Take that may be authorized includes harbor seals, gray seals, and harp seals. 

To inform both the negligible impact 

analysis and the small numbers 

determination, NMFS also (in addition 

to the five-year total) assesses the 

maximum number of takes of marine 

mammals that could occur within any 

given year. For each species or stock, we 

consider the maximum number of Level 

A harassment takes that could occur and 

may be authorized in any one year, the 

maximum number of Level B 

harassment takes that could occur and 

may be authorized in any one year, and 

the sum of those two annual maxima to 

yield the highest number of total takes 

that could occur in any year (table 7). 

Table 7 also indicates the number of 

takes authorized relative to the 

abundance of each stock. The takes 

enumerated here represent daily 

instances of take, not necessarily 

individual marine mammals taken. One 

take represents a day in which an 

animal was exposed to noise above the 

associated harassment threshold at least 

once. Some takes represent a brief 

exposure above a threshold, while in 

some cases takes could represent a 

longer, or repeated, exposure of one 

individual animal above a threshold 

within a 24-hour period. Whether or not 

every take assigned to a species 

represents a different individual 

depends on the daily and seasonal 

movement patterns of the species in the 

area. For example, activity areas with 

continuous activities (all or nearly every 

day) overlapping known feeding areas 

(where animals are known to remain for 

days or weeks on end) or areas where 

species with small home ranges live 

(e.g., some pinnipeds) are more likely to 

result in repeated takes to some 

individuals. Alternatively, activities that 

are not occurring on consecutive days 

for the duration of the Project (e.g., 

foundation installation) or occurring in 

an area where animals are migratory and 

not expected to remain for multiple 

days, represent circumstances where 

repeat takes of the same individuals are 

less likely. For example, 100 takes could 

represent 100 individuals each taken on 

one day within the year, or it could 

represent 5 individuals each taken on 20 

days within the year. The combination 

of number of individuals each taken and 

number of days on which take would 

occur would depend upon the activity, 

the presence of biologically important 

areas in the project area, and the 

movement patterns of the marine 

mammal species exposed. Where 

information to better contextualize the 

enumerated takes for a given species is 

available, it is discussed in the 

Negligible Impact Analysis and 

Determination and/or Small Numbers 

sections, as appropriate. 


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TABLE 7—MAXIMUM NUMBER OF TAKES BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT THAT MAY BE

AUTHORIZED IN ANY ONE YEAR OF THE PROJECT RELATIVE TO STOCK POPULATION SIZE 1

Marine mammal species NMFS stock 

abundance 

Maximum 

annual 

Level A 

harassment 

Maximum 

annual 

Level B 

harassment 

Maximum 

annual take 

Maximum take 

(instances) as a 

percentage 

of stock 

abundance) 1 2

North Atlantic right whale 3 4 .......................................................... 338 0 4 4 1.18 

Fin whale 3 4 ................................................................................... 6,802 2 18 20 0.29 

Humpback whale 4 ......................................................................... 1,396 2 16 18 1.29 

Minke whale ................................................................................... 21,968 6 41 47 0.21 

Sei whale 3 4 ................................................................................... 6,292 1 1 2 0.03 

Killer whale 4 .................................................................................. UNK 0 3 3 UNK 

Atlantic spotted dolphin 4 ............................................................... 39,921 0 69 69 0.17 

Coastal bottlenose dolphin 5 .......................................................... 6,639 0 1,591 1,591 24.0 

Offshore bottlenose dolphin 5 ......................................................... 62,851 0 1,768 1,768 2.81 

Common dolphin ............................................................................ 172,974 0 298 298 0.17 

Long-finned pilot whale 4 ................................................................ 39,215 0 16 16 0.04 

Short-finned pilot whale 4 ............................................................... 28,924 0 11 11 0.04 

Pantropical spotted dolphin 4 ......................................................... 6,593 0 5 5 0.08 

Risso’s dolphin 4 ............................................................................. 35,215 0 26 26 0.07 

Rough-toothed dolphin 4 ................................................................ 136 0 6 6 4.41 

Striped dolphin 4 ............................................................................. 67,036 0 46 46 0.07 

Harbor porpoise 4 ........................................................................... 95,543 3 39 42 0.04 

Gray seal 6 ..................................................................................... 27,300 0 341 341 1.25 

Harbor seal 6 .................................................................................. 61,336 .................... .................... .................... 0.56 

Harp seal 6 ..................................................................................... 7.6M .................... .................... .................... 0.004 

1Year 2 (2026) represents the most overall impactful year. 

2The values in this column represent the assumption that each take that may be authorized would occur to a unique individual. Given the 

scope of planned work, this is highly unlikely for species common to the project area (e.g., North Atlantic right whales, humpback whales) such 

that the actual percentage of the population taken is less than the percentages identified here. 3 Listed as Endangered under the ESA. 

4Take that may be authorized is based on average group size. 

5The amount of take identified includes the maximum amount of take that could occur from impact pile driving in any given year plus the maximum amount of take from HRG surveys in any given year, assuming all take from HRG surveys is allocated to both bottlenose dolphin stocks. 6Assumes 100 percent of the take by Level B harassment is from either the gray seal stock, harbor seal stock, or harp seal stock. 

Mitigation 

As noted in the Changes from the 

Proposed to Final Rule section, NMFS 

has added new mitigation requirements 

and clarified a few others. These 

changes are described in detail in the 

sections below. Besides these changes, 

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 ITAs 

to include information about the 

availability and feasibility (e.g., 

economic and technological) of 

equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (e.g., likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (i.e., the 

probability of accomplishing the 

mitigating result if implemented as 

planned), the likelihood of effective 

implementation (i.e., the probability if 

implemented as planned); and 

(2) The practicability of the measures 

for applicant implementation, which 

may consider factors such 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 ITAs issued in association 

with in-water construction activities 

(e.g., soft-start, establishing shutdown 

zones). Additional measures have also 

been incorporated to account for the fact 

that the construction activities would 

occur offshore. Modeling was performed 

to estimate harassment zones, which 

were used to inform mitigation 

measures for the Project’s activities to 

minimize Level A harassment and Level 

B harassment to the extent practicable, 

while providing estimates of the areas 

within which Level B harassment might 

occur. 

Generally speaking, the mitigation 

measures considered and required here 

fall into three categories: temporal (i.e., 

seasonal and daily) and spatial work 

restrictions, real-time measures (e.g., 

shutdown, clearance, and vessel strike 

avoidance), and noise attenuation/ 

reduction measures. Temporal and 

spatial work restrictions are designed to 


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avoid or minimize operations when 

marine mammals are concentrated or 

engaged in behaviors that make them 

more susceptible or make impacts more 

likely, in order to reduce both the 

number and severity of potential takes, 

and are effective in reducing both 

chronic (longer-term) and acute effects. 

Real-time measures, such as 

implementation of shutdown and 

clearance zones, as well as vessel strike 

avoidance measures, are intended to 

reduce the probability or severity of 

harassment by taking steps in real time 

once a higher-risk scenario is identified 

(e.g., once animals are detected within 

an impact zone). Noise attenuation 

measures such as bubble curtains are 

intended to reduce the noise at the 

source, which reduces both acute 

impacts, as well as the contribution to 

aggregate and cumulative noise that may 

result in longer term chronic impacts. 

Below, we briefly describe the 

required training, coordination, and 

vessel strike avoidance measures that 

apply to all activity types, and in the 

following subsections we describe the 

measures that apply specifically to 

foundation installation and HRG 

surveys. Details on specific 

requirements can be found in 50 CFR 

part 217, subpart II, set out at the end 

of this rule. 

Training and Coordination 

NMFS requires all US Wind 

employees and contractors conducting 

activities on the water, including but 

not limited to, all vessel captains and 

crew to be trained in marine mammal 

detection and identification, 

communication protocols, and all 

required measures to minimize impacts 

on marine mammals and support US 

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, 

US Wind is required to instruct all 

project personnel regarding the 

authority of the marine mammal 

monitoring team(s). For example, the 

HRG acoustic equipment operator, pile 

driving personnel, etc., is required to 

immediately comply with any call for a 

delay or shutdown by the Lead PSO. 

Any disagreement between the Lead 

PSO and the Project personnel must 

only be discussed after delay or 

shutdown has occurred. In particular, 

all captains and vessel crew must be 

trained in marine mammal detection 

and vessel strike avoidance measures to 

ensure marine mammals are not struck 

by any Project or Project-related vessel. 

Prior to the start of in-water 

construction activities, vessel operators 

and crews will 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 will include 

information and resources available 

regarding applicable Federal laws and 

regulations for protected species. US 

Wind will provide documentation of 

training to NMFS. Since the proposed 

rule, NMFS has added requirements for 

a description of the training program to 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin and for 

confirmation of all required training to 

be documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

Project activities. These measures were 

added in response to several 

commenters’ concerns regarding 

strengthening mitigation and monitoring 

measures. 

North Atlantic Right Whale Awareness 

Monitoring 

US 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 Coast 

Guard VHF Channel 16 throughout each 

day to receive notifications of any 

sightings, and information associated 

with any regulatory management actions 

(e.g., establishment of a zone identifying 

the need to reduce vessel speeds). 

Maintaining daily awareness and 

coordination affords increased 

protection of North Atlantic right 

whales by understanding North Atlantic 

right whale presence in the area through 

ongoing visual and PAM efforts and 

opportunities (outside of US Wind’s 

efforts), and allows for planning of 

construction activities, when 

practicable, to minimize potential 

impacts on North Atlantic right whales. 

The vessel strike avoidance measures 

apply to all vessels associated with the 

Project within U.S. waters and on the 

high seas. 

Vessel Strike Avoidance Measures 

Both the proposed and this final rule 

contain numerous vessel strike 

avoidance measures that reduce the risk 

that a vessel and marine mammal could 

collide. These measures must be 

followed unless doing so would create 

safety risks as described in the 

regulatory text. 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 further avoid 

vessel strikes to the extent practicable. 

While many of these measures are 

proactive, intended to avoid the heavy 

use of vessels during times when marine 

mammals of particular concern may be 

in the area, several are reactive and 

occur when a marine mammal is sighted 

by Project personnel. The mitigation 

requirements are described generally 

here and in detail in the regulatory text 

at the end of this final rule (50 CFR 

217.344(b)). US Wind will be required 

to comply with these measures, except 

under circumstances when doing so 

would create an imminent and serious 

threat to a person or vessel, or to the 

extent that a vessel is unable to 

maneuver and, because of the inability 

to maneuver, the vessel cannot comply. 

While underway, US Wind is required 

to monitor for and maintain a safe 

distance from marine mammals, and 

operate vessels in a manner that reduces 

the potential for vessel strike. 

Regardless of the vessel’s size, all vessel 

operators, crews, and dedicated visual 

observers (i.e., PSO or trained crew 

member) must maintain a vigilant watch 

for all marine mammals and slow down, 

stop their vessel, or alter course as 

appropriate to avoid striking any marine 

mammal. The dedicated visual observer, 

equipped with suitable monitoring 

technology (e.g., binoculars, night vision 

devices), must be located at an 

appropriate vantage point for ensuring 

vessels are maintaining required vessel 

separation distances from marine 

mammals (e.g., 500 m from North 

Atlantic right whales). 

For all Project-related vessels 

(regardless of size), the vessel is 

required to immediately reduce speeds 

to 10 kn (11.5 mph) or less if any large 

whale, or large assemblage of nondelphinid cetaceans is observed within 

500 m of the vessel. Additionally, all 

Project vessels, regardless of size, must 

maintain a 100-m minimum separation 

zone from sperm whales and non-North 

Atlantic right whale baleen species. 

Vessels are also required to keep a 

minimum separation distance of 50 m 

from all delphinid cetaceans and 

pinnipeds, with an exception made for 

those species that approach the vessel 

(i.e., bow-riding dolphins). If any of 

these non-North Atlantic right whale 

marine mammals are sighted, the 

underway vessel must shift its engine to 

neutral and the engines must not be 


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engaged until the animal(s) have been 

observed to be outside of the vessel’s 

path and beyond 100 m (for sperm 

whales and non-North Atlantic right 

whale large whales) or 50 m (for 

delphinids and pinnipeds). 

TABLE 8—VESSEL STRIKE AVOIDANCE SEPARATION ZONES

Marine mammal species Vessel separation zone 

(m) 

North Atlantic right whale ............................................................................................................................................ 500 

Other ESA-listed species and large whales ................................................................................................................ 100 

Other marine mammals 1 ............................................................................................................................................. 50 

1With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below. 

All of the Project-related vessels are 

required to comply with the measures 

within this rulemaking for operating 

vessels around North Atlantic right 

whales and other marine mammals, as 

well as any existing NMFS vessel speed 

restrictions for North Atlantic right 

whales. When NMFS vessel speed 

restrictions are not in effect and a vessel 

is traveling at greater than 10 kn (11.5 

mph), in addition to the required 

dedicated visual observer, US Wind is 

required to monitor the transit corridor 

in real-time with PAM prior to and 

during transits. To maintain awareness 

of North Atlantic right whale presence 

in the project area, vessel operators, 

crew members, and the marine mammal 

monitoring team will monitor U.S. Coast 

Guard VHF Channel 16, WhaleAlert, the 

Right Whale Sighting Advisory System 

(RWSAS), and the PAM system. Any 

North Atlantic right whale or large 

whale detection will be immediately 

communicated to PSOs, PAM operators, 

and all vessel captains. All vessels will 

be equipped with an Automatic 

Information System (AIS) and US Wind 

must report all Maritime Mobile Service 

Identity (MMSI) numbers to NMFS 

Office of Protected Resources prior to 

initiating in-water activities. US Wind 

will submit a Marine Mammal Vessel 

Strike Avoidance Plan for NMFS 

approval at least 180 days prior to 

commencement of vessel use. 

Compliance with these measures will 

reduce the likelihood of vessel strike to 

the extent practicable. These measures 

increase awareness of marine mammals 

in the vicinity of Project vessels and 

require Project vessels to reduce speed 

when marine mammals are detected (by 

PSOs, PAM, and/or through another 

source, e.g., RWSAS) and maintain 

separation distances when marine 

mammals are encountered. While visual 

monitoring is useful, reducing vessel 

speed is one of the most effective, 

feasible options available to reduce the 

likelihood of, and effects from, a vessel 

strike. Numerous studies have indicated 

that slowing the speed of vessels 

reduces the risk of lethal vessel 

collisions, particularly in areas where 

right whales are abundant and vessel 

traffic is common and otherwise 

traveling at high speeds (Vanderlaan 

and Taggart, 2007; Conn and Silber, 

2013; Van der Hoop et al., 2014; Martin 

et al., 2015; Crum et al., 2019). 

Given the inherent low probability of 

vessel strike, combined with the vessel 

strike avoidance measures included 

herein, NMFS considers the potential 

for vessel strike to be unlikely and 

would not allow take from this activity 

under this final rule. 

Seasonal and Daily Restrictions 

Temporal and spatial 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 the protection of North 

Atlantic right whales. 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. 

NMFS is requiring seasonal work 

restrictions to minimize the risk of noise 

exposure to North Atlantic right whales 

incidental to certain specified activities 

to the extent practicable. These seasonal 

work restrictions are expected to greatly 

reduce the number of takes of North 

Atlantic right whales. These seasonal 

restrictions also afford protection to 

other marine mammals that are known 

to use the project area with greater 

frequency during winter months, 

including other baleen whales. As 

described previously, no impact pile 

driving activities may occur December 1 

through April 30. 

No more than one foundation 

monopile, four 3-m pin piles for jacket 

foundations, or three 1.8-m pin piles for 

the Met tower will be installed per day. 

Monopiles must be no larger than 11-m 

in diameter and pin piles must be no 

larger than 3-m in diameter. For all 

monopiles and pin piles, the minimum 

amount of hammer energy necessary to 

effectively and safely install and 

maintain the integrity of the piles must 

be used. No more than one pile may be 

installed at a given time (i.e., 

concurrent/simultaneous pile driving 

and drilling may not occur). 

US Wind would not initiate pile 

driving earlier than 1 hour prior to civil 

sunrise or later than 1.5 hours prior to 

civil sunset, unless NMFS approves an 

Alternative Monitoring Plan as part of 

the Foundation Installation and Marine 

Mammal Monitoring Plan (i.e., 

Nighttime Monitoring Plan) that reliably 

demonstrates the efficacy of detecting 

marine mammals at night with its 

proposed devices. Foundation 

installation will also not be initiated 

when the minimum visibility zones 

cannot be fully visually monitored, as 

determined by the lead PSO on duty. 

While monitoring itself is not 

mitigation, these measures contribute to 

more reliable detection efficiency and 

animals must be detected to trigger 

mitigative actions which reduce 

impacts. 

Given the very small harassment 

zones resulting from HRG surveys and 

that the best available science indicates 

that any harassment from HRG surveys, 

should a marine mammal be exposed, 

would manifest as minor behavioral 

harassment only (e.g., potentially some 

avoidance of the vessel), NMFS is not 

requiring any seasonal and daily 

restrictions for HRG surveys. However 

US Wind has planned only a limited 

amount of surveys (over 14 days) during 

daylight within the effective period of 

these regulations. 

Noise Attenuation Systems 

US Wind is required to employ noise 

abatement systems (NAS), also known 

as noise attenuation systems, during all 

foundation installation (i.e., impact pile 

driving) activities to reduce the sound 

pressure levels that are transmitted 

through the water in an effort to reduce 

acoustic ranges to the Level A 


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harassment and Level B harassment 

acoustic thresholds and minimize, to 

the extent practicable, any acoustic 

impacts resulting from these activities. 

US Wind is required to use at least two 

NASs 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 

or a double big bubble curtain combined 

with other NAS (e.g., hydro-sound 

damper, or an AdBm Helmholz 

resonator), as well as the adjustment of 

operational protocols to minimize noise 

levels. As part of adaptive management, 

should the research and development 

phase of newer systems demonstrate 

effectiveness, US Wind may submit data 

on the effectiveness of these systems 

and request approval from NMFS to use 

them during foundation installation 

activities. 

Two categories of NASs 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 to the equipment 

(e.g., hammer strike parameters). 

Primary NASs 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 NASs are 

not fully effective at eliminating noise, 

a secondary NAS would be employed. 

The secondary NAS is a device or group 

of devices that would reduce noise as it 

was transmitted through the water away 

from the pile, typically through a 

physical barrier that would reflect or 

absorb sound waves and therefore, 

reduce the distance the higher energy 

sound propagates through the water 

column. Together, these systems must 

reduce noise levels to those not 

exceeding modeled ranges to Level A 

harassment and Level B harassment 

isopleths corresponding to those 

modeled assuming 10-dB sound 

attenuation, pending results of SFV (see 

the Sound Field Verification section 

below and 50 CFR part 217— 

Regulations Governing The Taking And 

Importing Of Marine Mammals). 

Noise abatement systems, such as 

bubble curtains, are used to decrease the 

sound levels radiated from a source. 

Bubbles create a local impedance 

change that acts as a barrier to sound 

transmission. The size of the bubbles 

determines their effective frequency 

band, with larger bubbles needed for 

lower frequencies. There are a variety of 

bubble curtain systems, confined or 

unconfined bubbles, and some with 

encapsulated bubbles or panels. 

Attenuation levels also vary by type of 

system, frequency band, and location. 

Small bubble curtains have been 

measured to reduce sound levels but 

effective attenuation is highly 

dependent on depth of water, current, 

and configuration and operation of the 

curtain (Austin et al., 2016; Koschinski 

and Lu ̈demann, 2013). Bubble curtains 

vary in terms of the sizes of the bubbles 

and those with larger bubbles tend to 

perform a bit better and more reliably, 

particularly when deployed with two 

separate rings (Bellmann, 2014; 

Koschinski and Lu ̈demann, 2013; Nehls 

et al., 2016). Encapsulated bubble 

systems (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. 

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 bubble curtains for noise 

attenuation. 

When a double big bubble curtain is 

used (noting a single bubble curtain is 

not allowed), US Wind is required to 

maintain numerous operational 

performance standards. These standards 

are defined in the regulatory text at the 

end of this rule, and include, but are not 

limited to, construction contractors 

must train personnel in the proper 

balancing of airflow to the bubble ring 

and US Wind must submit a 

performance test and maintenance 

report to NMFS. Corrections to the 

attenuation devices are to be carried out 

prior to impact pile driving. In addition, 

a full maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed. If US Wind uses a 

noise mitigation device in addition to a 

double big bubble curtain, similar 

quality control measures are required. 

Should the research and development 

phase of newer systems demonstrate 

effectiveness, as part of adaptive 

management, US Wind may submit data 

on the effectiveness of these systems 

and request approval from NMFS to use 

them during foundation installation 

activities. 

US Wind is required to submit an SFV 

plan to NMFS for approval at least 180 

days prior to installing foundations. 

They are also required to submit interim 

and final SFV data results to NMFS and 

make corrections to the NASs in the 

case that any SFV measurements 

demonstrate noise levels are above those 

modeled assuming 10 dB. These 

frequent and immediate reports allow 

NMFS to better understand the sound 

fields to which marine mammals are 

being exposed and require immediate 

corrective action should they be 

misaligned with anticipated noise levels 

within our analysis. 

Noise abatement devices are not 

required during HRG surveys as they 

cannot practicably be employed around 

a moving survey ship, but US 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., boomers) and 

turning 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 will be 

monitored by NMFS-approved PSOs 

and PAM operators as described in the 

regulatory text at the end of this rule. At 

least one PAM operator must review 

data from at least 24 hours prior to 

foundation installation, and must 

actively monitor hydrophones for 60 

minutes prior to commencement of 

these activities. Any North Atlantic 

right whale sighting at any distance by 

foundation installation PSOs, or 


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acoustically detected within the PAM 

monitoring zone (10 km), triggers a 

delay to commencing pile driving and 

shutdown. Any large whale sighted by 

a PSO or acoustically detected by a 

PAM operator that cannot be identified 

as a non-North Atlantic right whale 

must be treated as if it were a North 

Atlantic right whale. 

Prior to the start of certain specified 

activities (i.e., foundation installation, 

including soft-start, and HRG surveys), 

US Wind must ensure designated areas 

(i.e., clearance zones as provided in 

tables 24 and 25) are clear of marine 

mammals prior to commencing 

activities to minimize the potential for 

and degree of harassment. For 

foundation installation, PSOs must 

visually monitor clearance zones for 

marine mammals for a minimum of 60 

minutes prior to the activity, where the 

zone must be confirmed free of marine 

mammals at least 30 minutes directly 

prior to commencing these activities. 

During this period, the clearance zones 

will be monitored by both PSOs and a 

PAM operator. If a marine mammal is 

observed within a clearance zone during 

the clearance period, the activity will be 

delayed and may not begin until the 

animal(s) has been observed exiting its 

respective zone, or until an additional 

time period has elapsed with no further 

sightings (i.e., 15 minutes for small 

odontocetes and pinnipeds and 30 

minutes for all other species). In 

addition, foundation installation will be 

delayed upon a confirmed PAM 

detection of a North Atlantic right whale 

if the PAM detection is confirmed to 

have been located within the North 

Atlantic right whale PAM clearance 

zone (10,000 m). Any large whale 

sighted by a PSO that cannot be 

identified to species must be treated as 

if it were a North Atlantic right whale 

for the purposes of mitigation. PSOs and 

PAM operators must continue 

monitoring throughout the duration of 

foundation installation and for 30 

minutes post-completion of the activity. 

Clearance and shutdown zones have 

been developed in consideration of 

modeled distances to relevant PTS 

thresholds with respect to minimizing 

the potential for take by Level A 

harassment. The clearance and 

shutdown zones for North Atlantic right 

whales during monopile, jacket 

foundation, and Met tower foundation 

installation are visual observations at 

any distance by PSOs or any acoustic 

detection within the PAM monitoring 

zone (10 km; table 24). For North 

Atlantic right whales, there is an 

additional requirement that the 

clearance zone may only be declared 

clear if no confirmed North Atlantic 

right whale acoustic detections (in 

addition to visual) have occurred during 

the 60-minute monitoring period. The 

visual clearance zone for other large 

whales from monopile installation is 

equal to the modeled maximum R95

percent distance to the Level B harassment 

threshold (5,250 m). The clearance zone 

for other large whales from 3-m pin pile 

installation is equal to the modeled 

maximum R95 percent distance to the 

Level A harassment threshold (1,400 m). 

The clearance zone for other large 

whales from 1.8-m pin pile installation 

is equal to twice the modeled maximum 

R95 percent distance to the Level B 

harassment threshold given the very 

small Level B harassment zone (100 m), 

which could be encompassed by the 

bubble curtains. The clearance zone for 

non-large whales (i.e., delphinids and 

pilot whales, harbor porpoises, and 

seals) from monopile and 3-m pin pile 

installation is equal to double the 

modeled maximum R95 percent distances 

to the Level A harassment threshold for 

harbor porpoise (the most sensitive 

species). The clearance zone for 1.8-m 

pin pile installation is equal to double 

the modeled maximum R95 percent

distance to the Level B harassment 

threshold given Level A harassment 

thresholds were not exceeded for this 

activity (i.e., 0 m). 

Once an activity begins, any marine 

mammal entering their respective 

shutdown zone would trigger the 

activity to cease. In the case of 

foundation installation, the shutdown 

requirement may be waived if it is not 

practicable to shutdown the equipment 

due to imminent risk of injury or loss 

of life to an individual, risk of damage 

to a vessel that creates risk of injury or 

loss of life for individuals, or where the 

lead engineer determines there is pile 

refusal or pile instability. In situations 

when shutdown is called for during 

impact pile driving, but US Wind 

determines shutdown is not practicable 

due to aforementioned emergency 

reasons, reduced hammer energy must 

be implemented when the lead engineer 

determines it is practicable. 

Specifically, pile refusal or pile 

instability could result in not being able 

to shut down pile driving immediately. 

Pile refusal occurs when the pile driving 

sensors indicate the pile is approaching 

refusal and a shut-down would lead to 

a stuck pile which then poses an 

imminent risk of injury or loss of life to 

an individual, or risk of damage to a 

vessel that creates risk for individuals. 

Pile instability occurs when the pile is 

unstable and unable to stay standing if 

the piling vessel were to ‘‘let go’’. 

During these periods of instability, the 

lead engineer may determine a shutdown is not feasible because the shutdown combined with impending 

weather conditions may require the 

piling vessel to ‘‘let go’’, which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. US Wind must document 

and report to NMFS all cases where the 

emergency exemption is taken. 

After shutdown, foundation 

installation may be reinitiated once all 

clearance zones are clear of marine 

mammals for the minimum speciesspecific periods, or, if required to 

maintain pile stability, at which time 

the lowest hammer energy must be used 

to maintain stability. If foundation 

installation 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 by PSOs and PAM operators 

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 24 and 25. US Wind is allowed 

to request modification to these zone 

sizes pending results of SFV (see the 

regulatory text at the end of this rule). 

Any changes to zone size would be part 

of adaptive management and would 

require NMFS’ approval. The 10 km 

PAM monitoring zone for North Atlantic 

right whales has been carried forward 

from the proposed rule into this final 

rule. A 10-km distance is a reasonable 

distance for a PAM system to monitor; 

thus, 10 km was added as the 

requirement for the PAM monitoring 

zone. 

In addition to the clearance and 

shutdown zones that would be 

monitored both visually and 

acoustically, NMFS is requiring US 

Wind to establish a minimum visibility 

zone during foundation installation 

activities to ensure both visual and 

acoustic methods are used in tandem to 

detect marine mammals resulting in 

maximum detection capability. The 

minimum visibility zone is defined as 

the area over which PSOs must be able 

to visually detect marine mammals and 

must be visible for the duration of the 

60-minute clearance period. This zone 

would extend from the location of the 

pile being driven out to 2,900 m (9,514 

ft) for monopile installation, 1,400 m for 

3-m pin pile installation, and 200 m for 

1.8-m pin pile installation (table 24). 

During monopile and 3-m pin pile 

installation, the minimum visibility 

zone is equal to the modeled maximum 


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R95 percent distances to the Level A 

harassment threshold for low-frequency 

cetaceans. The minimum visibility zone 

for 1.8-m pin piles is equal to the 

clearance zone, which is double the 

modeled maximum R95 percent distance to 

the Level B harassment threshold (100 

m) and four times the modeled 

maximum R95 percent distance to the 

Level A harassment threshold (50 m) for 

low-frequency cetaceans. NMFS 

increased the 1.8-m pin pile minimum 

visibility zone given the very small zone 

sizes from this short (3 piles total) 

activity. 

For HRG surveys, there are no 

mitigation measures prescribed for 

sound sources operating at frequencies 

greater than 180 kHz, as these would be 

expected to fall outside of marine 

mammal hearing ranges and would not 

result in harassment. However, all HRG 

survey vessels would be subject to the 

aforementioned vessel strike avoidance 

measures described earlier in this 

section. Furthermore, due to the 

frequency range and characteristics of 

some of the sound sources associated 

with lesser impacts, shutdown, 

clearance, and ramp-up procedures are 

not planned to be conducted during 

HRG surveys utilizing only nonimpulsive sources (e.g., other parametric 

sub-bottom profilers). Shutdown, 

clearance, and ramp-up procedures are 

planned to be conducted during HRG 

surveys utilizing SBPs and other nonparametric sub-bottom profilers 

(planned survey equipment that may 

result in take of marine mammals are 

presented in table 3 of the proposed rule 

(89 FR 504, January 4, 2024)). PAM 

would not be required during HRG 

surveys. While NMFS agrees that PAM 

can be an important tool for augmenting 

detection capabilities in certain 

circumstances, its utility in further 

reducing impacts during HRG survey 

activities is limited. 

US Wind will be required to 

implement a 30-minute clearance period 

of the clearance zones (table 25) 

immediately prior to the commencing of 

the survey, or when there is more than 

a 30-minute break in survey activities 

and PSOs have not been actively 

monitoring. If a marine mammal is 

observed within a clearance zone during 

the clearance period, ramp up 

(described below) may not begin until 

the animal(s) have been observed 

voluntarily exiting its respective 

clearance zone or until an additional 

time period has elapsed with no further 

sighting (i.e., 15 minutes for small 

odontocetes and seals, and 30 minutes 

for all other species). When the 

clearance process has begun in 

conditions with good visibility, 

including via the use of night vision 

equipment (i.e., infrared (IR)/thermal 

camera), and the Lead PSO has 

determined that the clearance zones are 

clear of marine mammals, survey 

operations would be allowed to 

commence (i.e., no delay is required) 

despite periods of inclement weather 

and/or loss of daylight. 

Once the survey has commenced, US 

Wind would be required to shut down 

SBPs if a marine mammal enters a 

respective shutdown zone (table 25). In 

cases where the shutdown zones 

become obscured for brief periods due 

to inclement weather, survey operations 

would be allowed to continue (i.e., no 

shutdown is required) so long as no 

marine mammals have been detected. 

The use of SBPs will not be allowed to 

commence or resume until the animal(s) 

has been confirmed to have left the 

shutdown zone or until a full 15 

minutes (for small odontocetes and 

seals) or 30 minutes (for all other marine 

mammals) have elapsed with no further 

sighting. Any large whale sighted by a 

PSO within 1,000 m of the SBPs that 

cannot be identified as a non-North 

Atlantic right whale would be treated as 

if it were a North Atlantic right whale 

for the purposes of mitigation 

implementation. 

TABLE 9—MINIMUM VISIBILITY, CLEARANCE, SHUTDOWN, AND LEVEL B HARASSMENT ZONES DURING IMPACT PILE

DRIVING, ASSUMING 10 dB OF ATTENUATION

Monitoring zone North Atlantic right whales Other large whales Delphinids and 

pilot whales 

Harbor 

porpoises Seals 

Minimum visibility zone 1 .................. Monopiles: 2,900 m. 

3-m pin piles: 1,400 m. 

1.8-m pin piles: 200 m. 

Clearance zone ................................ Any distance (visual) from the pile driving location or within PAM Monitoring Zone.Monopiles: 5,250 m ......

3-m pin piles: 1,400 m. 

Monopiles: 500 m. 

1.8-m pin piles: 200 m.2 3-m pin piles, 1.8-m pin piles: 200 m.3

Shutdown zone ................................. Any distance (visual) from the pile driving location or within PAM Monitoring Zone.Monopiles: 2,900 ..........

3-m pin piles: 1,400 m. 

Monopiles: 250 m. 

1.8-m Pin piles: 100 m.4 3-m pin piles, 1.8-m pin piles: 100 m.5

PAM monitoring zone 6 ..................... 10,000 m. 

Level B Harassment (Acoustic ......... Monopiles: 5,250 m. 

Range, R95%) 3-m pin piles: 500 m. 

1.8-m pin piles: 100 m. 

1The minimum visibility zone is equal to the modeled maximum R95 percent distances to the Level A harassment threshold for low-frequency cetaceans for 

monopiles and 3-m pin piles. The minimum visibility zone for 1.8-m pin piles is equal to the clearance zone which is double the modeled maximum R95 percent distance to the Level B harassment threshold (100 m) and four times the modeled maximum R95 percent distance to the Level A harassment threshold (50 m) for low frequency cetaceans. NMFS increased the 1.8 m pile minimum visibility zone given the very small zone sizes from this short (3 piles total) activity. 2The clearance zone for other large whales from monopile installation is equal to the modeled maximum R95 percent distance to the Level B harassment threshold 

(5,250 m). The clearance zone for other large whales from 3-m pin pile installation is equal to the modeled maximum R95 percent distance to the Level A harassment 

threshold (1,400 m) given the Level B harassment zone is less than this distance (500 m). The clearance zone for other large whales from 1.8-m pin pile installation 

is equal to twice the modeled maximum R95 percent distance to the Level B harassment threshold given the very small Level B harassment zone (100 m) which could 

be encompassed by the bubble curtains. 3The clearance zone for non-large whales (i.e., delphinids and pilot whales, harbor porpoises, and seals) from monopile and 3-m pin pile installation is equal to 

double the modeled maximum R95 percent distance to the Level A harassment threshold for harbor porpoise (the most sensitive species). The clearance zone for 1.8- 

m pin pile installation is equal to double the modeled maximum R95 percent distance to the Level B harassment threshold given Level A harassment thresholds were 

not exceeded for this activity (i.e., 0 m). US Wind requested the clearance zone for non-large whales be identical for PSO implementation ease. 4The shutdown zones for other large whales from monopiles and 3-m pin pile installation are equal to the modeled maximum R95 percent distances to the Level A 

harassment threshold for low-frequency cetaceans. The shutdown zone for other large whales from 1.8-m pin piles is equal to two times the modeled maximum R 95

percent distance to the Level A harassment threshold for low-frequency cetaceans. 5The shutdown zones for non large whales from monopile and 3-m pin pile installation are equal to the modeled maximum R95 percent distance to the Level A harassment threshold for harbor porpoise (the most sensitive species). The shutdown zone for non large whales from 1.8-m pin pile installation is equal to the modeled 

maximum R95 percent distance to the Level B harassment threshold, given the Level A harassment thresholds were not exceeded for this activity (i.e., 0 m). US Wind 

requested the shutdown zone for non large whales be identical for PSO implementation ease. 


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6The PAM system must be capable of detecting baleen whales at 10,000 m during pile driving. The system should also be designed to detect other marine mammals; however, it is not required these other species be detected out to 10,000 m given higher frequency calls and echolocation clicks are not typically detectable at 

large distances. 

TABLE 10—HRG SURVEY CLEARANCE AND SHUTDOWN ZONES

Marine mammal species Clearance zone 

(m)2

Shutdown zone 

(m) 

North Atlantic right whale ............................................................................................................................ 500 500 

Other ESA-listed species (i.e., fin, sei, sperm whale) ................................................................................. 500 100 

Other marine mammals 1 ............................................................................................................................. 200 100 

1With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below. 

In addition, NMFS has included a 

measure requiring US Wind to 

shutdown pile driving or HRG surveys 

in the event of a live cetacean stranding 

where the NMFS Marine Mammal 

Stranding Network is engaged in 

herding or other interventions to return 

animals to the water. Marine mammals 

involved in live stranding events (or 

near-shore atypical milling) are 

considered especially susceptible to the 

effects of additional stressors. These 

shutdown procedures are not related to 

the investigation of the cause of any 

such stranding and their 

implementation is not intended to 

imply that the activity of the authorized 

entity is the cause of the stranding. 

Rather, shutdown procedures are 

intended to protect marine mammals 

exhibiting indicators of distress by 

minimizing their exposure to possible 

additional stressors, regardless of the 

factors that contributed to the stranding. 

US Wind would be required to shut 

down pile driving activities according to 

the measure described in the regulatory 

text. 

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. Typically, 

NMFS requires a soft-start procedure of 

the applicant performing four to six 

strikes per minute at 10 to 20 percent of 

the maximum hammer energy, for a 

minimum of 20 minutes. For foundation 

installation, 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 US Wind, in 

consultation with NMFS, considering 

final design details including sitespecific soil properties and other 

considerations. A general soft-start 

requirement for impact pile driving is 

incorporated into the regulations. HRG 

survey operators are required to rampup 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 and gradually increasing to the 

operating level over a period of 

approximately 30 minutes. 

Soft-start and ramp-up will be 

required at the beginning of each day’s 

activity and at any time following a 

cessation of activity of 30 minutes or 

longer. Prior to soft-start or ramp-up 

beginning, the operator must receive 

confirmation from the PSO that the 

clearance zone is clear of any marine 

mammals. 

Fishery Monitoring Surveys 

While the likelihood of US Wind’s 

fishery monitoring surveys impacting 

marine mammals is minimal, NMFS 

requires US 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 rule. 

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 below. Since the 

proposed rule, we have clarified the 

number of platforms for PSOs to be a 

total of three platforms, including the 

pile driving vessel and two PSO support 

vessels, as the number of platforms was 

not specified in the proposed rule. In 

addition, we have added specific 

requirements for SFV monitoring. 

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 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 (i.e., 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 (i.e., behavioral or 

physiological) to acoustic stressors (i.e., 

acute, chronic, or cumulative), other 


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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 (i.e., 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 

will be conducted before, during, and 

after all impact pile driving and HRG 

surveys. PAM will also be conducted 

during impact pile driving. Visual 

observations and acoustic detections 

will be used to support the activityspecific mitigation measures (e.g., 

clearance zones). To increase 

understanding of the impacts of the 

activity on marine mammals, PSOs must 

record all incidents of marine mammal 

occurrence at any distance from the 

piling locations, near the HRG acoustic 

sources. PSOs will document all 

behaviors and behavioral changes, at 

any distance from the foundation 

installation locations (i.e., location of 

impact pile driving) and near the HRG 

acoustic sources. PSOs will document 

all behaviors and behavioral changes, in 

concert with distance from an acoustic 

source. Further, SFV during foundation 

installation and unexploded ordinance 

(UXO)/munition of explosive concern 

(MEC) detonation is required to ensure 

compliance and that the potential 

impacts are within the bounds of that 

analyzed. The required monitoring, 

including PSO and PAM Operator 

qualifications, is described below, 

beginning with PSO measures that are 

applicable to all the aforementioned 

activities and PAM (for specific 

activities). 

Protected Species Observer and PAM 

Operator Requirements 

US 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 and HRG 

surveys. The primary purpose of a PSO 

is to carry out the monitoring, collect 

data, and, when appropriate, call for the 

implementation of mitigation measures. 

In addition to visual observations, 

NMFS requires US Wind to conduct 

PAM by PAM operators during impact 

pile driving and vessel transit. 

The inclusion of PAM, which would 

be conducted by NMFS-approved PAM 

operators, following standardized 

measurement, processing methods, 

reporting metrics, and metadata 

standards for offshore wind, combined 

with visual data collection, is a valuable 

way to provide the most accurate record 

of species presence as possible. 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 or 

odontocetes) may necessitate more 

hydrophones and to be spaced closer 

together given the shorter range of the 

shorter, mid-frequency acoustic signals 

(e.g., whistles and echolocation clicks). 

As there are no ‘‘perfect fit’’ singleoptimal-array configurations, NMFS 

will consider and approve these set-ups, 

as appropriate, on a case-by-case basis 

during the PAM Plan review. 

Specifically, US Wind will be required 

to provide a plan that describes an 

optimal configuration for collecting the 

required marine mammal data, based on 

the real-world circumstances in the 

project area, recognizing that we will 

continue to learn more as monitoring 

results from other wind projects are 

submitted. 

NMFS does not formally administer 

any PSO or PAM operator training 

program or endorse specific providers 

but will approve PSOs and PAM 

operators that have successfully 

completed courses that meet the 

curriculum and trainer requirements 

referenced below and further specified 

in the regulatory text at the end of this 

rule. PSOs can act as PAM operators or 

visual PSOs (but not simultaneously) as 

long as they demonstrate that their 

training and experience are sufficient to 

perform each task. 

NMFS will provide PSO and PAM 

operator approvals in the context of the 

need to ensure that PSOs and PAM 

operators have the necessary training 

and/or experience to carry out their 

duties competently. NMFS may approve 

PSOs as conditional or unconditional. 

Conditional approval may be given to 

one who is trained but has not yet 

attained the requisite experience. 

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 rule 

(see § 217.345(a)(6). 

Conditionally-approved PSOs will be 

paired with an unconditionallyapproved PSO 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., together, the 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. US 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 

US Wind at least 30 days prior to the 

start of the Project. Should US Wind 

require additional PSOs or PAM 

operators throughout the Project, US 

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 


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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, generally 

speaking, with more PSOs being 

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. 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 rule. 

At least three PSOs must be on duty 

at a time on the foundation installation 

vessel/platform. A minimum of three 

PSOs must be active on each of at least 

two dedicated PSO vessels. US Wind 

must employ a minimum of three PSO 

platforms, including the pile driving 

platform and at least two PSO vessels. 

This requirement has been added since 

the proposed rule in response to a 

comment from the Commission to 

clarify the number of required PSO 

platforms during pile driving activity. 

The vessel must be located at the best 

vantage point to observe and document 

marine mammal sightings in proximity 

to the clearance and, if applicable, 

shutdown zones. At least one PAM 

operator per acoustic data stream 

(equivalent to the number of acoustic 

buoys) must be on-duty and actively 

monitoring per platform during 

foundation installation. 

At least 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. 

As part of their 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 (e.g., numbers of animals and 

their behavior), 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 rule. 

US Wind is required to submit a 

Foundation Installation Monitoring Plan 

and a PAM Plan to NMFS 180 days in 

advance of foundation installation 

activities. The Plan must include details 

regarding PSO and PAM monitoring 

protocols and equipment proposed for 

use, as described in the regulatory text 

at the end of this rule. NMFS must 

approve the plan prior to foundation 

installation activities commencing. 

Specific details on NMFS’ PSO or PAM 

operator qualifications and 

requirements can be found in 50 CFR 

part 217, subpart II, set out at the end 

of this rule. Additional information can 

be found in US Wind Marine Mammal 

Monitoring and Mitigation Plan 

(appendix B) on the NMFS’ website at: 

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

incidental-take-authorization-us-windinc-construction-and-operationmaryland-offshore-wind. 

Sound Field Verification 

Previously in the proposed rule, US 

Wind had to conduct SFV 

measurements during all pile driving 

activities associated with the 

installation of, at minimum, the first 

three monopile foundations. SFV 

measurements must continue until at 

least three consecutive piles 

demonstrate distances to thresholds that 

are at or below those modeled assuming 

10 dB of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or additional 

piles be driven that are anticipated to 

produce longer distances to harassment 

isopleths than those previously 

measured (e.g., higher hammer energy, 

greater number of strikes, etc.). 

For the final rule, NMFS has 

expanded this requirement for SFV 

during foundation installation to align 

with the BiOp. At minimum, thorough 

SFV must be conducted in: for each 

construction year, for the first three 

monopiles installed and the first three 

full jacket foundations (all piles) 

installed. While pile driving is 

prohibited from December–April, if pile 

driving is required and must occur in 

December due to unforeseen 

circumstances, thorough SFV must be 

conducted on the first monopile and 

first jacket foundation (all piles) 

installed in December (winter sound 

speed profile). Thorough SFV must also 

be conducted for the first foundation for 

any foundation scenarios that were 

modeled for the exposure analysis but 

do not fall into one of the scenarios 

described above. During thorough SFV, 

installation of the next foundation (of 

the same type/foundation method) may 

not proceed until US Wind has 

reviewed the initial results from the 

thorough SFV and determined that there 

were no exceedances of any distances to 

the identified thresholds based on 

modeling assuming 10 dB of 

attenuation. 

If any of the thorough SFV 

measurements from any pile indicate 

that the distance to any isopleth of 

concern for any species is greater than 

those modeled assuming 10 dB of 

attenuation, US Wind must notify 

NMFS within 24 hours of reviewing the 

thorough SFV measurements and must 

implement the measures described in 

detail in the regulatory text at the end 

of this final rule for the next pile of the 

same type/installation methodology, as 

applicable. 

Abbreviated SFV monitoring must be 

performed on all foundation 

installations for which the thorough 

SFV monitoring described above is not 

conducted. In addition, SFV 

measurements must be conducted upon 

commencement of turbine operations to 

estimate turbine operational source 

levels, in accordance with a NMFSapproved Foundation Installation Pile 

Driving SFV Plan. The measurements 

and reporting associated with SFV can 

be found in the regulatory text at the 

end of this rule. The requirements are 

extensive to ensure monitoring is 

conducted appropriately and the 

reporting frequency is such that US 

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 experiencing noise 

levels above those considered in this 

analysis. For recommended SFV 

protocols for impact pile driving, please 

consult International Organization for 

Standardization (ISO) 18406, 

‘‘Underwater acoustics—Measurement 

of radiated underwater sound from 

percussive pile driving’’ (2017). 

Reporting 

Prior to any construction activities 

occurring, US Wind will provide a 

report to NMFS Office of Protected 

Resources that demonstrates that all US 

Wind personnel, including the vessel 

crews, vessel captains, PSOs, and PAM 

operators, have completed all required 

trainings. 

NMFS will require standardized and 

frequent reporting from US Wind during 

the life of the regulations and the LOA. 

All data collected relating to the Project 

will be recorded using industrystandard software (e.g., Mysticetus or a 

similar software) installed on field 

laptops and/or tablets. US Wind is 


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required to submit weekly, monthly, 

annual, situational, and final 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, US Wind would 

be required to compile and submit 

weekly marine mammal monitoring 

reports for foundation installation 

activities to NMFS Office of Protected 

Resources that document the daily start 

and stop of all pile-driving activities, 

the start and stop of associated 

observation periods by PSOs, details on 

the deployment of PSOs, a record of all 

detections of marine mammals (acoustic 

and visual), any mitigation actions (or if 

mitigation actions could not be taken, 

provide reasons why), and details on the 

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

type, distance deployed from the pile, 

bubble rate, etc.), and abbreviated SFV 

results. Weekly reports will be due on 

Wednesday for the previous week 

(Sunday to Saturday). The weekly 

reports are also required to identify 

which turbines become operational and 

when (a map must be provided). Once 

all foundation pile installation is 

complete, weekly reports would no 

longer be required. 

Monthly Report—US 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. The monthly report 

would identify which turbines become 

operational and when, and a map must 

be provided. Once all foundation pile 

installation is complete, monthly 

reports would no longer be required. 

Annual Reporting—US Wind is 

required to submit an annual marine 

mammal monitoring (both PSO and 

PAM) report to NMFS Office of 

Protected Resources annually, 

describing, in detail, all of the 

information required in the monitoring 

section above for the previous calendar 

year. A final annual report must be 

prepared and submitted within 30 

calendar days following receipt of any 

NMFS comments on the draft report. 

Final Reporting—US Wind must 

submit its draft 5-year report(s) to NMFS 

Office of Protected Resources. The 

report must contain, but is not limited 

to, a description of activities conducted 

(including GIS files where relevant), and 

all visual and acoustic monitoring, 

including SFV and monitoring 

effectiveness, 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. 

Full PAM detection data, metadata, and 

location of recorders must be submitted 

within 90 days following completion of 

impact pile driving foundations and 

every 90 calendar days for transit lane 

PAM using the International 

Organization for Standardization (ISO) 

standard metadata forms and 

instructions available on the NMFS 

Passive Acoustic Reporting System 

website (https://www.fisheries.

noaa.gov/resource/document/passiveacoustic-reporting-system-templates. 

Concurrently, the full acoustic 

recordings from real-time systems must 

also be sent to the National Centers for 

Environmental Information (NCEI, 

https://www.ncei.noaa.gov/products/ 

passive-acoustic-data) for archiving. 

Situational Reporting—Specific 

situations encountered during the 

development of the Project would 

require immediate reporting. For 

instance, if a North Atlantic right whale 

is observed at any time by PSOs or 

Project personnel, the sighting must be 

immediately (if not feasible, as soon as 

possible, and no longer than 24 hours 

after the sighting) reported to NMFS. 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 must be reported within 24 

hours to NMFS Office of Protected 

Resources, the NMFS Greater Atlantic 

Stranding Coordinator for the New 

England/Mid-Atlantic area (866–755– 

6622) in the Northeast Region (if in the 

Southeast Region (NC to FL), contact 

877–942–5343), and the U.S. Coast 

Guard within 24 hours. 

In the event of a vessel strike of a 

marine mammal by any vessel 

associated with the Project or if Project 

activities cause a non-auditory injury or 

death of a marine mammal, US Wind 

must immediately report the incident to 

NMFS. If in the Greater Atlantic Region 

(Maine to Virginia), US Wind must call 

the NMFS Greater Atlantic Stranding 

Hotline. Separately, US Wind must also 

and immediately report the incident to 

NMFS Office of Protected Resources and 

GARFO. US Wind must immediately 

cease all on-water activities, including 

pile driving, 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 

MMPA. NMFS Office of Protected 

Resources may impose additional 

measures covered in the adaptive 

management provisions of this rule to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. US Wind may not resume 

their activities until notified by NMFS. 

In the event of any lost gear associated 

with the fishery surveys, US Wind must 

report to the loss to 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—US Wind is 

required to submit interim SFV reports 

after each foundation installation as 

soon as possible but within 48 hours for 

thorough SFV. Abbreviated SFV reports 

must be included in the weekly 

monitoring reports. A final SFV report 

for all foundation installations will be 

required within 90 days following 

completion of acoustic monitoring. 

Adaptive Management 

These regulations contain an adaptive 

management component. Our 

understanding of the effects of offshore 

wind construction activities (e.g., 

acoustic stressors) on marine mammals 

continues to evolve, 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 will 

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 US 

Wind regarding practicability, if such 

modifications will have a reasonable 

likelihood of more effectively 

accomplishing the goal of the measures. 


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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 

research on marine mammals, noise 

impacts, or other related topics; and (3) 

any information that reveals that marine 

mammals may have been taken in a 

manner, extent, or number not 

authorized by these regulations or 

subsequent LOA. Adaptive management 

decisions may be made at any time, as 

new information warrants it. NMFS may 

consult with US Wind regarding the 

practicability of the modifications. 

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, or by Level 

A harassment and Level B harassment, 

we consider other factors, such as the 

likely nature of any behavioral 

responses (e.g., intensity, duration), the 

context of any such responses (e.g., 

critical reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

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

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

In the Estimated Take section, we 

listed the maximum number of 

allowable takes by Level A harassment 

and Level B harassment that could 

occur from US Wind’s specified 

activities based on the methods 

described in the proposed rule. 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 fitnesslevel impacts to individuals, etc.). In 

this final rule, we evaluate the likely 

impacts of the enumerated harassment 

takes that may be authorized in the 

context of the specific circumstances 

surrounding these predicted takes. We 

also collectively evaluate this 

information, as well as other more taxaspecific 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 may be 

authorized for any species or stock. 

The Description of the Specified 

Activities section describes US Wind’s 

specified activities that may result in 

take of marine mammals and an 

estimated schedule for conducting those 

activities. US 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, US Wind 

would not be authorized to exceed the 

maximum annual of take authorized in 

any given year or across the five year 

effective period of the regulations, 

indicated in tables 6 and 7, respectively. 

We base our analysis and negligible 

impact determination on the maximum 

number of takes expected to occur 

annually and across the 5-year effective 

period of these regulations, as well as 

extensive qualitative consideration of 

other contextual factors that influence 

the severity and nature of impact the 

takes have on the affected individuals 

and the number and the number of 

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 3 given that some of the 

anticipated effects of US Wind’s 

construction activities on marine 

mammals are expected to be relatively 

similar in nature. Then, we subdivide 

into more detailed discussions for 

mysticetes, odontocetes, and pinnipeds 

which have broad life history traits that 

support an overarching discussion of 

some factors considered within the 

analysis for those groups (e.g., habitatuse patterns, high-level differences in 

feeding strategies). 

Last, we provide a negligible impact 

determination for each species or stock, 

providing species or stock-specific 

information or analysis, where 

appropriate, for example, for North 

Atlantic right whales given the 

population status. Organizing our 

analysis by grouping species or stocks 

that share common traits or that would 

respond similarly to effects of US 

Wind’s activities, and then providing 

species- or stock-specific information 

allows us to avoid duplication while 

ensuring that we have analyzed the 

effects of the specified activities on each 

affected species or stock. It is important 

to note that in the group or species 

sections, we base our negligible impact 

analysis on the maximum annual take 

that is predicted under the 5-year rule, 

as well as the 5-year total; however, 

WTG, Met tower, and OSS foundation 

installation, which are expected to 

result in the majority of the impacts, are 

scheduled to occur within the first 3 

years of the five year effective period of 

this rule (2025 through 2027) (table 20 

in the proposed rule and tables 6 and 7 

in this final rule). 

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 

detonations). The amount of harassment 

US Wind has requested, and NMFS has 

authorized, is based on exposure models 

that consider the outputs of acoustic 

source and propagation models and 

other data such as frequency of 

occurrence or group sizes. Several 

conservative parameters and 

assumptions are ingrained into these 

models, modeling the impact 

installation of all piles at a maximum 

hammer energy and application of the 

May sound speed profile to all months 

within a given season. The exposure 

model results do not reflect the 

clearance or shutdown measures or 

avoidance response. The amount of take 

requested and authorized also reflects 

careful consideration of other data (e.g., 

group size data) and, for Level A 

harassment potential of some large 

whales, the consideration of mitigation 

measures. For all species, the amount of 

take authorized represents the 

maximum amount of Level A 

harassment and Level B harassment that 

could occur. 

Behavioral Disturbance 

In general, NMFS anticipates that 

impacts on an individual that has been 

harassed are likely to be more intense 

when exposed to higher received levels 


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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 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 the specified 

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 the 

specified 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 exposures that might 

result in Level B harassment (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 avoidance response and 

leaving a larger area for a day or more 

or potentially losing feeding 

opportunities for a day or more. Such 

severe behavioral effects are expected to 

occur infrequently, though, and given 

the extensive mitigation and monitoring 

measures included in this rule, we 

expect severe behavioral effects to be 

minimized. 

Many species perform vital functions, 

such as feeding, resting, traveling, and 

socializing, on a diel cycle (i.e., a 24- 

hour cycle). Behavioral reactions to 

noise exposure, when taking place in a 

biologically important context, such as 

disruption of critical life functions, 

displacement, or avoidance of important 

habitat, are more likely to be significant 

if they last more than 1 day or recur on 

subsequent days (Southall et al., 2007) 

due to diel and lunar patterns in diving 

and foraging behaviors observed in 

many cetaceans (Baird et al., 2008; 

Barlow et al., 2020; Henderson et al., 

2016; Schorr et al., 2014). It is important 

to note the water depth in the Project 

area is shallow (ranging up to 10–45 m 

in the ECRs, and 13 to 41.5 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 important to identify that the 

estimated number of takes for each stock 

does not necessarily equate to the 

number of individual marine mammals 

expected to be harassed (which may be 

lower, depending on the circumstances), 

but rather to the instances of take (e.g., 

exposures above the Level B harassment 

thresholds) that may occur. These 

instances may represent brief exposures 

of either seconds to minutes for HRG 

surveys, or, in some cases, longer 

durations of exposure within (but not 

exceeding) a day (e.g., pile driving). 

Some members of a species or stock may 

experience one exposure (i.e., be taken 

on one day) as they move through an 

area, while other individuals may 

experience recurring instances of take 

over multiple days throughout the year, 

in which case the number of individuals 

taken is smaller than the total estimated 

take for that species or stock. 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. However, for non-migrating 

species and/or 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 US Wind, impact pile driving of 

foundation piles is most likely to result 

in a higher magnitude and severity of 

behavioral disturbance than HRG 

surveys. Impact pile driving has higher 

source levels and longer durations (on 

an annual basis) than HRG surveys. 

HRG survey equipment also produces 

much higher frequencies than pile 

driving, resulting in minimal sound 

propagation. While impact pile driving 

for foundation installation is anticipated 

to be most impactful for these reasons, 

impacts are minimized through 

implementation of mitigation measures, 

including use of a sound attenuation 

system, soft-starts, the implementation 

of clearance zones that would facilitate 

a delay to pile driving commencement, 

and implementation of shutdown zones. 

All these measures are designed to 

avoid or minimize harassment. For 

example, given sufficient notice through 

the use of soft-start, marine mammals 

are expected to move away from a 

sound source that is disturbing prior to 

becoming exposed to very loud noise 

levels. The requirement to couple visual 

monitoring and PAM before and during 

all foundation installation would 

increase the overall capability to detect 

marine mammals rather than when one 

method is used alone. 

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 


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reduce the likelihood of more 

significant behavioral impacts, for 

example 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; VillegasAmtmann et al., 2015). 

Temporary Threshold Shift 

TTS is one form of Level B 

harassment that marine mammals may 

incur through exposure to the specified 

activities and, as described earlier, the 

takes by Level B harassment may 

represent takes in the form of direct 

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 pile driving is a 

broadband noise source but generates 

sounds in the lower frequency ranges 

(with most of the energy below 1–2 kHz, 

but with a small amount energy ranging 

up to 20 kHz); therefore, in general and 

all else being equal, we would 

anticipate the potential for TTS is 

higher in low-frequency cetaceans (i.e., 

mysticetes) than other marine mammal 

hearing groups and would be more 

likely to occur in frequency bands in 

which they communicate. However, we 

would not expect the TTS to span the 

entire communication or hearing range 

of any species given that the frequencies 

produced by these activities do not span 

entire hearing ranges for any particular 

species. Additionally, though the 

frequency range of TTS that marine 

mammals might sustain would overlap 

with some of the frequency ranges of 

their vocalizations, the frequency range 

of TTS from US Wind’s pile driving 

activities would not typically span the 

entire frequency range of one 

vocalization type, much less span all 

types of vocalizations or other critical 

auditory cues for any given species. The 

required mitigation measures further 

reduce the potential for TTS in 

mysticetes. 

Generally, both the degree of TTS and 

the duration of TTS would be greater if 

the marine mammal is exposed to a 

higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS was discussed 

previously (refer back to Estimated Take 

section). 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 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. 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 

NMFS may authorize a very small 

amount of take by PTS to some marine 

mammal individuals. The numbers of 

annual takes by Level A harassment that 

may be authorized are relatively low for 

all marine mammal stocks and species 

(table 22). The only activity incidental 

to which we anticipate PTS may occur 

is from exposure to impact pile driving, 

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 recorded 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 that 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 (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, 

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. 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. 

Masking may also 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 


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is fundamentally more of a concern at 

lower frequencies (which are piledriving dominant frequencies) because 

low frequency signals propagate 

significantly further than higher 

frequencies. Low frequency signals are 

also more likely to overlap with the 

narrower low frequency calls of 

mysticetes, 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. As mentioned 

above, the project area does not overlap 

critical habitat for any species, and 

temporary avoidance of the pile driving 

area by marine mammals would likely 

displace animals to areas of sufficient 

habitat. 

In summary, the nature of the 

specified activities, paired with habitat 

use patterns by marine mammals, makes 

it unlikely that the level of masking that 

could occur would have the potential to 

affect reproductive success or survival. 

Impacts on Habitat and Prey 

Construction activities (i.e., 

foundation installation) may result in 

fish and invertebrate mortality or injury 

very close to the source, and all of the 

specified 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 NAS during 

foundation installation would further 

limit the degree of impact. Behavioral 

changes in prey in response to 

construction activities could 

temporarily impact marine mammals’ 

foraging opportunities in a limited 

portion of the foraging range but, 

because of the relatively small area of 

the habitat that may be affected at any 

given time (e.g., around a pile being 

driven), the impacts to marine mammal 

habitat are not expected to cause 

significant or long-term negative 

consequences. 

Cable presence is not anticipated to 

impact marine mammal habitat as these 

would be buried, and any 

electromagnetic fields emanating from 

the cables are not anticipated to result 

in consequences that would impact 

marine mammals’ prey to the extent 

they would be unavailable for 

consumption. Although many species of 

marine mammal prey can detect 

electromagnetic fields, previous studies 

have shown little impacts on habitat use 

(Hutchinson et al., 2018). The inclusion 

of protective shielding on cables will 

also minimize any impacts of 

electromagnetic fields on marine 

mammal prey. 

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 an extensive 

number of structures such as wind 

turbines are, in general, likely to result 

in local and broader oceanographic 

effects in the marine environment, and 

may disrupt dense aggregations and 

distribution of marine mammal 

zooplankton prey through altering the 

strength of tidal currents and associated 

fronts, changes in stratification, primary 

production, the degree of mixing, and 

stratification in the water column (Chen 

et al., 2021; Johnson et al., 2021; 

Christiansen et al., 2022; Dorrell et al., 

2022). However, the scale of impacts is 

difficult to predict and may vary from 

hundreds of meters for local individual 

turbine impacts (Schultze et al., 2020) to 

large-scale changes stretching hundreds 

of kilometers (Christiansen et al., 2022). 

As discussed in the ‘‘Potential Effects 

of the Specified Activities on Marine 

Mammals and their Habitat’’ section of 

the proposed rule, the Project would 

consist of no more than 119 foundations 

(114 WTGs, 4 OSSs, 1 Met tower) in the 

Lease Area, which will gradually 

become operational following 

construction completion. While there 

are likely to be oceanographic impacts 

from the presence of the Project, 

meaningful oceanographic impacts 

relative to stratification and mixing that 

would significantly affect marine 

mammal habitat and prey over large 

areas in key foraging habitats during the 

effective period of the regulations are 

not anticipated, nor is the project area 

located in the vicinity of any key marine 

mammal foraging areas. For these 

reasons, if oceanographic features are 

affected by the Project during the 

effective period of the regulations, the 

impact on marine mammal habitat and 

their prey is likely to be comparatively 

minor. 

The Maryland Wind BiOp provided 

an evaluation of the presence and 

operation of the Project on, among other 

species, listed marine mammals and 

their prey. Overall, the BiOp concluded 

that impacts from loss of soft 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 BiOp also concluded 

that while the presence and operation of 

the wind farm may change the 

distribution of plankton within the area 

of the wind farm locally, these changes 

are not expected to affect the 

oceanographic forces transporting 

zooplankton into the area. Regional 

distribution of plankton may vary from 

pre-wind facility conditions; however, 

given the lack of a known bathymetric 

feature that aggregates zooplankton prey 

in the lease area and acknowledging the 

information and uncertainty presented 

in the BiOp, the BiOp concluded that 

adverse effects on North Atlantic right 

whale foraging success due to near-field 

effects are not reasonably certain to 

occur. Relative to far-field effects (tens 

of kilometers from the outermost row of 

foundations in the Maryland Wind 

Lease Area), the BiOp does not 

anticipate disruption to conditions that 

would aggregate prey in or outside the 

Maryland Wind Energy Area (MD WEA) 

that would have significant effects on 

ESA listed species. This is due to the 

scale of the Project. Therefore, the BiOp 

concluded that an overall reduction in 

biomass of plankton is not an 

anticipated outcome of operating the 

Project. Thus, because broader 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 BiOp, 

measurable, detectable, or significant 

changes to marine mammal prey 

abundance and distribution from wind 

farm operation are not anticipated. 

Mitigation To Reduce Impact on All 

Species 

This rule includes an extensive suite 

of mitigation measures designed to 

minimize impacts on all marine 

mammals, with a focus on North 

Atlantic right whales. The Mitigation 

section discusses the manner in which 

the required mitigation measures reduce 

the magnitude and/or severity of the 

take of marine mammals. For impact 

pile driving of foundation piles, ten 

overarching mitigation measures are 

required: (1) seasonal work restrictions; 

(2) use of multiple PSOs to visually 

observe for marine mammals (with any 

detection within specifically designated 

zones triggering a delay or shutdown); 

(3) use of PAM to acoustically detect 

marine mammals, with a focus on 

detecting baleen whales (with any 

detection within designated zones 

triggering delay or shutdown); (4) 


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implementation of clearance zones; (5) 

implementation of shutdown zones; (6) 

use of soft-start; (7) use of noise 

attenuation technology; (8) maintaining 

situational awareness of marine 

mammal presence through the 

requirement that any marine mammal 

sighting(s) by US Wind’s personnel 

must be reported to PSOs; (9) SFV 

monitoring; and (10) vessel strike 

avoidance measures to reduce the risk of 

a collision with a marine mammal and 

vessel. For HRG surveys, we are 

requiring six measures: (1) measures 

specifically for vessel strike avoidance; 

(2) specific requirements during 

daytime 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 US Wind’s personnel 

must be reported to PSOs. 

For activities with large harassment 

isopleths, US Wind will be required to 

reduce the noise levels generated to the 

lowest levels practicable and will be 

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 (US Wind will not use a 

hammer energy greater than necessary 

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. For all 

activities, clearance zone and shutdown 

zone implementation, which are 

required when marine mammals are 

within given distances associated with 

certain impact thresholds for all 

activities, will reduce the magnitude 

and severity of marine mammal take. 

Additionally, the use of multiple PSOs 

(WTG, OSS, and Met tower foundation 

installation; HRG surveys), PAM (for 

impact foundation installation), and 

maintaining awareness of marine 

mammal sightings reported in the region 

during all specified activities will aid in 

detecting marine mammals that would 

trigger the implementation of the 

mitigation measures. The reporting 

requirements including SFV reporting 

(for foundation installation and 

foundation operation), will assist NMFS 

in identifying if impacts beyond those 

analyzed in this final rule are occurring, 

potentially leading to the need to enact 

adaptive management measures in 

addition to or in place of the mitigation 

measures. 

Mysticetes 

Five mysticete species (comprising 

five stocks) of cetaceans (North Atlantic 

right whale, humpback whale, fin 

whale, sei whale, and minke whale) 

may be taken by harassment. These 

species, to varying extents, utilize the 

specified geographic region, including 

the project area, for the purposes of 

migration, foraging, and socializing. 

Mysticetes are in the low-frequency 

hearing group. 

Behavioral data on mysticete 

reactions to pile-driving noise are scant. 

Kraus et al. (2019) predicted that the 

three main impacts of offshore wind 

farms on marine mammals would 

consist of displacement, behavioral 

disruptions, and stress. Broadly, we can 

look to studies that have focused on 

other noise sources such as seismic 

surveys and military training exercises, 

which suggest that exposure to loud 

signals can result in avoidance of the 

sound source (or displacement if the 

activity continues for a longer duration 

in a place where individuals would 

otherwise have been staying, which is 

less likely for mysticetes in this area), 

disruption of foraging activities (if they 

are occurring in the area), local masking 

around the source, associated stress 

responses, impacts to prey, and TTS or 

PTS (in some cases). 

NMFS reviewed recent PSO 

observational data from offshore wind 

projects in southern New England (i.e., 

South Fork at OCS–A–0517 and 

Vineyard Wind 1 at OCS–A–0501) 

where pile driving construction 

activities occurred. During pile-driving 

construction activities for Vineyard 

Wind 1, in 2023 from early June through 

December (RPS, 2023), there were 36 

whale observations consisting of 4 

unidentified non-North Atlantic right 

whales, 17 detections of humpback 

whales, eight detections of fin whales, 

six detections of minke whales, and one 

unidentified baleen whale (RPS, 2023). 

Three of these observations of 

mysticetes (one humpback whale 

sighting, one fin whale sighting, and one 

group of three fin whales) occurred 

while the hammer was engaged (which 

was operating at full power). Behaviors 

noted included surfacing, blowing, 

fluking, and feeding. At South Fork, a 

total of 39 hours 32 minutes of active 

impact pile driving was conducted 

across installation of the 13 monopiles 

on 15 different days. The most PSO 

visual watch effort occurred aboard the 

Bokalift 2 (908 hours), and PSO effort 

from the four dedicated monitoring 

vessels ranged from 426 to 757 hours. In 

total (with and without pile driving) 

foundation installation PSOs observed 

348 mysticete groups comprising 552 

individuals; 29 of these detections, 

totaling 51 individuals, occurred during 

pile driving (table 14 in South Fork 

Wind (2023)). South Fork’s Trained 

Lookouts confirmed two separate 

sightings of individual NARWs during 

vessel transits in support of offshore 

construction-related activities during 

the reporting period. Each animal was 

observed opportunistically during nontransit periods when vessels were not 

underway. None of the observed 

behaviors of mysticetes noted by either 

the Vineyard Wind 1 or South Fork 

PSOs were indicative of distress, alarm, 

or other adverse reactions (RPS, 2023; 

South Fork Wind, 2023). 

Mysticetes encountered in the project 

area are expected to primarily be 

migrating and, to a lesser degree, may be 

engaged in foraging behavior. The extent 

to which an animal engages in these 

behaviors in the area is species-specific 

and varies seasonally. Many mysticetes 

are expected to predominantly be 

migrating through the project area 

towards or from feeding grounds located 

further north (e.g., southern New 

England region, Gulf of Maine, Canada). 

While we acknowledged above that 

mortality, hearing impairment, or 

displacement of mysticete prey species 

may result locally from impact pile 

driving, given the very short duration of 

and broad availability of prey species in 

the area and the availability of 

alternative suitable foraging habitat for 

the mysticete species most likely to be 

affected, any impacts on mysticete 

foraging is expected to be minor. Whales 

temporarily displaced from the project 

area are expected to have sufficient 

remaining feeding habitat available to 

them and would not be prevented from 

feeding in other areas within the 

biologically important feeding habitats 

found further north. In addition, any 

displacement of whales or interruption 

of foraging bouts would be expected to 

be relatively temporary in nature. 

The potential for repeated exposures 

is dependent upon the residency time of 

whales with migratory animals unlikely 

to be exposed on repeated occasions and 

animals remaining in the area to be 

more likely exposed repeatedly. For 

mysticetes, where relatively low 

amounts of species-specific take by 

Level B harassment are predicted 

(compared to the abundance of each 

mysticete species or stock, such as is 

indicated in table 22) 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 


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different individual; the behavioral 

impacts would, therefore, be expected to 

occur within a single day within a 

year—an amount that NMFS would not 

expect to impact reproduction or 

survival. Species with longer residence 

time in the project area may be subject 

to repeated exposures across multiple 

days. 

In general, for this Project, the 

duration of exposures will not be 

continuous throughout any given day, 

and pile driving will not occur on all 

consecutive days within a given year 

due to weather delays or any number of 

logistical constraints US Wind has 

identified. Species-specific analysis 

regarding potential for repeated 

exposures and impacts is provided 

below. 

Fin, humpback, minke, and sei 

whales are the only mysticete species 

for which PTS is anticipated and 

authorized. As described previously, 

PTS for mysticetes from some Project 

activities may overlap frequencies used 

for communication, navigation, or 

detecting prey. However, given the 

recent data from VW1 and South Fork, 

the nature and duration of the activity, 

the mitigation measures, and likely 

avoidance behavior, any PTS is 

expected to be of a small degree, would 

be limited to frequencies where piledriving noise is concentrated (i.e., only 

a small subset of their expected hearing 

range) and would not be expected to 

impact reproductive success or survival. 

North Atlantic Right Whale 

North Atlantic right whales are listed 

as endangered under the ESA and as 

both a depleted and strategic stock 

under the MMPA. As described in the 

‘‘Potential Effects to Marine Mammals 

and Their Habitat’’ section of the 

proposed rule, North Atlantic right 

whales are threatened by a low 

population abundance, higher than 

average mortality rates, and lower than 

average reproductive rates. Recent 

studies have reported individuals 

showing high stress levels (e.g., 

Corkeron et al., 2017) and poor health, 

which has further implications on 

reproductive success and calf survival 

(Christiansen et al., 2020; Stewart et al., 

2021; Stewart et al., 2022). As described 

below, a UME has been designated for 

North Atlantic right whales. Given this, 

the status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis and consideration. 

No Level A harassment, serious injury, 

or mortality is anticipated or may be 

authorized for this species. 

For North Atlantic right whales, this 

rule may allow up to ten takes to be 

authorized, by Level B harassment only, 

over the 5-year period, with a maximum 

annual allowable take by Level B 

harassment of four (equating to 

approximately 1.18 percent of the stock 

abundance, if each take were considered 

to be of a different individual). The 

project area is known as a migratory 

corridor for North Atlantic right whales 

and given the nature of migratory 

behavior (e.g., continuous path), as well 

as the very low number of total takes, 

we do not anticipate that any of the 

instances of take would represent repeat 

takes of any individual, though it could 

occur if whales are engaged in 

opportunistic foraging behavior. Barco 

et al. (2015) observed North Atlantic 

right whales engaging in open mouth 

behavior, north of the project area in 

Virginia coastal waters which is 

suggestive, though not necessarily 

indicative, of feeding. While 

opportunistic foraging may occur in the 

project area, the area does not support 

prime foraging habitat. 

The highest density of North Atlantic 

right whales in the project area occurs 

in the winter (table 6). The MidAtlantic, including the project area, may 

be a stopover site for migrating North 

Atlantic right whales moving to or from 

southeastern calving grounds. North 

Atlantic right whales have been 

acoustically detected in the vicinity of 

the project area year-round (Bailey et 

al., 2018) with the highest occurrences 

documented during late winter/early 

spring. Similarly, the waters off the 

coast of Maryland, including those 

surrounding the project area in the MD 

WEA, have documented North Atlantic 

right whale presence as the area is an 

important migratory route for the 

species to the northern feeding areas 

near the Gulf of Maine and Georges 

Banks and to their southern breeding 

and calving grounds off the southeastern 

United States (CETAP, 1982; LaBrecque 

et al., 2015; Salisbury et al., 2016; Davis 

et al., 2017). However, comparatively, 

the project area is not known as an 

important area for feeding, breeding, or 

calving. 

North Atlantic right whales range 

outside the project area for their main 

feeding, breeding, and calving activities 

(Hayes et al., 2023). Additional 

qualitative observations include animals 

feeding and socializing in New England 

waters, north of the MD WEA 

(Quintana-Rizzo et al., 2021). The North 

Atlantic right whales observed north of 

the MD WEA were primarily 

concentrated in the northeastern and 

southeastern sections of the 

Massachusetts WEA (MA WEA) during 

the summer (June–August) and winter 

(December–February). North Atlantic 

right whale distribution shifted to the 

west into the Rhode Island/ 

Massachusetts (RI/MA) WEA in the 

spring (March–May).Quintana-Rizzo et 

al. (2021) found that approximately 23 

percent of the right whale population 

was present from December through 

May, and the mean residence time 

tripled to an average of 13 days during 

these months. The MD WEA is not in or 

near these areas important to feeding, 

breeding, and calving activities. 

In general, North Atlantic right 

whales in the project area are expected 

to be engaging in migratory behavior. 

Given the species’ migratory behavior in 

the project area, we anticipate 

individual whales would be typically 

migrating through the area during most 

months when foundation installation 

would occur (given the seasonal 

restrictions on foundation installation, 

rather than lingering for extended 

periods of time). Other work that 

involves much smaller harassment 

zones (e.g., HRG surveys) may also 

occur during periods when North 

Atlantic right whales are using the 

habitat for migration. It is important to 

note the activities occurring from 

December through May that may impact 

North Atlantic right whale would be 

HRG surveys which are planned to take 

place during years 2 and 3 for only 14 

days each year from April through June 

and would not result in very high 

received levels. Across all years, if an 

individual were to be exposed during a 

subsequent year, the impact of that 

exposure is likely independent of the 

previous exposure given the duration 

between exposures. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities, 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 may be 

authorized. Any disturbance to North 

Atlantic right whales due to US Wind’s 

activities is expected to result in only 

temporary avoidance of the immediate 

area of construction. As no injury, 

serious injury, or mortality is expected 

or may be authorized, and Level B 

harassment of North Atlantic right 

whales will be reduced to the level of 

least practicable adverse impact through 


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use of mitigation measures, the number 

of takes of North Atlantic right whales 

to be authorized would not exacerbate 

or compound the effects of the ongoing 

UME. 

As described in the general Mysticetes 

section above, foundation installation is 

likely to result in the highest amount of 

annual take and is of greatest concern 

given loud source levels. This activity 

would likely be limited to up to 119 

days (114 for WTG monopile 

foundations, 4 days for OSS jacket 

foundations, and 1 day for Met tower 

pin pile foundations) over a maximum 

of 3 years, during times when, based on 

the best available scientific data, North 

Atlantic right whales are less frequently 

encountered due to their migratory 

behavior. The potential types, severity, 

and magnitude of impacts are also 

anticipated to mirror that described in 

the general Mysticetes section above, 

including avoidance (the most likely 

outcome), changes in foraging or 

vocalization behavior, masking, a small 

amount of TTS, and temporary 

physiological impacts (e.g., change in 

respiration, change in heart rate). 

Importantly, the effects of the specified 

activities are expected to be sufficiently 

low-level and localized to specific areas 

as to not meaningfully impact important 

behaviors, such as migratory behavior of 

North Atlantic right whales. These takes 

are expected to result in temporary 

behavioral reactions, such as slight 

displacement (but not abandonment) of 

migratory habitat or temporary cessation 

of feeding. Further, given these 

exposures are generally expected to 

occur to different individual right 

whales migrating through (i.e., most 

individuals would not be expected to be 

impacted on more than 1 day in a year), 

they are unlikely to result in energetic 

consequences that could affect 

reproduction or survival of any 

individuals. 

Overall, NMFS expects that any 

behavioral harassment of North Atlantic 

right whales incidental to the specified 

activities would not result in changes to 

their migration patterns or foraging 

success, as only temporary avoidance of 

an area during construction is expected 

to occur. As described previously, North 

Atlantic right whales migrating through 

the project area are not expected to 

remain in this habitat for extensive 

durations, and any temporarily 

displaced animals would be able to 

return to or continue to travel through 

and forage in these areas once activities 

have ceased. 

Although acoustic masking may occur 

in the vicinity of the foundation 

installation activities, based on the 

acoustic characteristics of noise 

associated with pile driving (e.g., 

frequency spectra, short duration of 

exposure) and construction surveys 

(e.g., intermittent signals), NMFS 

expects masking effects to be minimal 

(e.g., impact pile driving) to none (e.g., 

HRG surveys). In addition, masking 

would likely only occur during the 

period of time that a North Atlantic 

right whale is in the relatively close 

vicinity of pile driving, which is 

expected to be intermittent within a 

day, and confined to the months in 

which North Atlantic right whales are at 

lower densities and primarily moving 

through the area, anticipated mitigation 

effectiveness, and likely avoidance 

behaviors. TTS is another potential form 

of Level B harassment that could result 

in brief periods of slightly reduced 

hearing sensitivity affecting behavioral 

patterns by making it more difficult to 

hear or interpret acoustic cues within 

the frequency range (and slightly above) 

of sound produced during impact pile 

driving; however, any TTS would likely 

be of low amount, limited duration, and 

limited to frequencies where most 

construction noise is centered (below 2 

kHz). NMFS expects that right whale 

hearing sensitivity would return to preexposure levels shortly after migrating 

through the area or moving away from 

the sound source. 

As described in the ‘‘Potential Effects 

of Specified Activities on Marine 

Mammals and Their Habitat’’ section of 

the proposed rule, the distance of the 

receiver to the source influences the 

severity of response with greater 

distances typically eliciting less severe 

responses. NMFS recognizes North 

Atlantic right whales migrating could be 

pregnant females (in the fall) and cows 

with older calves (in spring) and that 

these animals may slightly alter their 

migration course in response to any 

foundation pile driving; however, as 

described in the ‘‘Potential Effects of 

Specified Activities on Marine 

Mammals and Their Habitat’’ section of 

the proposed rule, we anticipate that 

course diversion would be of small 

magnitude. Hence, while some 

avoidance of the pile driving activities 

may occur, we anticipate any avoidance 

behavior of migratory North Atlantic 

right whales would be similar to that of 

gray whales (Tyack et al., 1983), on the 

order of approximately hundreds of 

meters up to 1 to 2 km. This diversion 

from a migratory path otherwise 

uninterrupted by the planned 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, US Wind has proposed, and 

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) will 

not only avoid the likelihood of vessel 

strikes but also will 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 will 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, US Wind will still be installing 

foundations when the presence of North 

Atlantic right whales is expected to be 

lower. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, the 

Project will 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 area over which 

North Atlantic right whales may be 

harassed is relatively small compared to 

the width of the migratory corridor. The 

width of the migratory corridor, at the 

widest point across the corridor, 

offshore of Maryland where the corridor 

overlaps the Lease Area is 

approximately 163.8 km while the 

width of the Lease Area, at the longest 

point, is approximately 33.1 km. North 

Atlantic right whales may be displaced 

from their normal path and preferred 

habitat in the immediate activity area 

(primarily from pile driving activities), 

however, we do not anticipate 

displacement to be of high magnitude 

(e.g., beyond a few kilometers); thereby, 


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any associated bio-energetic 

expenditure is anticipated to be small. 

There are no known North Atlantic right 

whale feeding, breeding, or calving 

areas within the project area. Prey 

species are mobile (e.g., calanoid 

copepods can initiate rapid and directed 

escape responses) and are broadly 

distributed throughout the project area 

(noting again that North Atlantic right 

whale prey is not particularly 

concentrated in the project area relative 

to more northern foraging habitats). 

Therefore, any impacts to prey that may 

occur are also unlikely to impact marine 

mammals. 

The most significant measure to 

minimize impacts to individual North 

Atlantic right whales is the seasonal 

moratorium on all foundation 

installation activities from December 1 

through April 30, when North Atlantic 

right whale abundance in the project 

area is expected to be highest. NMFS 

also expects this measure to greatly 

reduce the potential for mother-calf 

pairs to be exposed to impact pile 

driving noise above the Level B 

harassment threshold during their 

annual spring migration through the 

project area from calving grounds to 

primary foraging grounds (e.g., Cape 

Cod Bay). NMFS expects that exposures 

to North Atlantic right whales will be 

reduced due to the additional required 

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 may only begin in the 

absence of North Atlantic right whales 

(based on visual and passive acoustic 

monitoring). If pile driving has 

commenced, NMFS anticipates North 

Atlantic right whales would avoid the 

area, utilizing nearby waters to carry on 

pre-exposure behaviors. However, 

foundation installation activities must 

be shut down if a North Atlantic right 

whale is sighted at any distance unless 

a shutdown is not feasible due to risk of 

injury or loss of life or pile refusal or 

instability. NMFS anticipates that if 

North Atlantic right whales go 

undetected and they are exposed to 

foundation installation noise, it is 

unlikely a North Atlantic right whale 

would approach the sound source 

locations to the degree that they would 

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 required 

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 and 

any TTS that may occur would likely be 

of low degree and with recovery 

occurring quickly. 

The required 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, US Wind proposed, 

and NMFS is requiring, the combination 

of PAM and visual observers. NMFS is 

requiring communication protocols with 

other Project vessels, and other 

heightened awareness efforts (e.g., daily 

monitoring of North Atlantic right 

whale sighting databases) such that as a 

North Atlantic right whale approaches 

the source (and thereby could be 

exposed to higher noise energy levels), 

PSO detection efficacy would increase, 

the whale would be detected, and a 

delay to commencing foundation 

installation or shutdown (if feasible) 

would occur. In addition, the 

implementation of a soft-start for impact 

pile driving would provide an 

opportunity for whales to move away 

from the source if they are undetected, 

reducing received levels. 

For HRG surveys, the maximum 

distance to the Level B harassment 

threshold is 200 m. The estimated take, 

by Level B harassment only, associated 

with HRG surveys is to account for any 

North Atlantic right whale sightings 

PSOs may miss when HRG acoustic 

sources are active. However, because of 

the relatively short maximum distance 

to the Level B harassment threshold, the 

requirement that vessels maintain a 

distance of 500 m from any North 

Atlantic right whales, the fact that 

whales are unlikely to remain in close 

proximity to an HRG survey vessel for 

any length of time, and that the acoustic 

source would be shut down if a North 

Atlantic right whale is observed within 

500 m of the source, any exposure to 

noise levels above the harassment 

threshold (if any) would be very brief. 

To further minimize exposures, rampup of sub-bottom profilers must be 

delayed during the clearance period if 

PSOs detect a North Atlantic right 

whale (or any other ESA-listed species) 

within 500 m of the acoustic source. 

With implementation of the required 

mitigation measures, take by Level A 

harassment is unlikely and, therefore, 

not authorized. Potential impacts 

associated with Level B harassment 

would include low-level, temporary 

behavioral modifications, most likely in 

the form of avoidance behavior. Given 

the high level of precautions taken to 

minimize both the amount and intensity 

of Level B harassment on North Atlantic 

right whales, it is unlikely that the 

anticipated low-level exposures would 

lead to reduced reproductive success or 

survival. 

As described above, no serious injury 

or mortality, or Level A harassment, of 

North Atlantic right whale is anticipated 

or may be 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 

area, the majority of the individuals 

predicted to be taken (including no 

more than ten instances of take, by 

Level B harassment only, over the 

course of the 5-year rule, with an annual 

maximum of no more than four) would 

be impacted on only 1, or maybe 2, days 

in a year as North Atlantic right whales 

utilize this area for migration and would 

be transiting rather than residing in the 

area for extended periods of time. 

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, US 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take (by Level B 

harassment only) anticipated and to be 

authorized would have a negligible 

impact on the North Atlantic right 

whale. 

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 may 

be authorized for this species. 

This rule would allow for the 

authorization of up to 41 takes, by Level 

A harassment and Level B harassment, 

over the 5-year period. The maximum 

annual allowable take by Level A 

harassment and Level B harassment, 

would be 2 and 18, respectively 

(combined, this annual take (n=20) 

equates to approximately 0.29 percent of 

the stock abundance if each take were 

considered to be of a different 

individual). The project area does not 


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overlap with any known areas of 

specific biological importance to fin 

whales. It is possible 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 onehalf 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. If TTS is incurred, hearing 

sensitivity would likely return to preexposure levels relatively shortly after 

exposure ends. Any masking or 

physiological responses would also be 

of low magnitude and severity for 

reasons described above. 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. There is no known 

foraging habitat for fin whales within 

the project area. Any fin whales in the 

project area would be expected to be 

migrating through the area and would 

have sufficient space to move away from 

Project activities. 

Fin whales are frequently observed in 

the waters off of Maryland and are one 

of the most commonly detected large 

baleen whales in continental shelf 

waters, principally from Cape Hatteras 

in the Mid-Atlantic northward to Nova 

Scotia, Canada (CETAP, 1982; Hain et 

al., 1992; BOEM 2012; Barco et al., 

2015; Edwards et al., 2015; Bailey et al., 

2018; Hayes et al., 2023). Fin whales 

have high relative abundance in the 

Mid-Atlantic and project area, and most 

observations occur in the winter and 

early spring months (Williams et al., 

2015d; Barco et al., 2015), with larger 

group sizes occurring during the winter 

months (Barco et al., 2015). However, 

fin whales typically feed in waters off of 

New England and within the Gulf of 

Maine, areas north of the project area, as 

New England and Gulf of St. Lawrence 

waters represent major feeding ground 

for fin whales (Hayes et al., 2023). Hain 

et al. (1992) based on an analysis of 

neonate stranding data, suggested that 

calving takes place during October to 

January in latitudes of the U.S. midAtlantic region; however, it is unknown 

where calving, mating, and wintering 

occur for most of the population (Hayes 

et al., 2023). 

Given the documented habitat use 

within the area, some of the individuals 

taken may be exposed on multiple days. 

However, as described, the project area 

does not include areas where fin whales 

are known to concentrate for feeding or 

reproductive behaviors and the 

predicted takes are expected to be in the 

form of lower-level impacts. Given the 

magnitude and severity of the impacts 

discussed above (including no more 

than 18 takes, by Level A harassment 

and Level B harassment, over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

2 and 18 respectively), and in 

consideration of the required mitigation 

and other information presented, US 

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 A 

harassment and Level B harassment) 

anticipated and to be authorized would 

have a negligible impact on the western 

North Atlantic stock of fin whales. 

Humpback Whale 

The West Indies DPS of humpback 

whales is not listed as threatened or 

endangered under the ESA, but the Gulf 

of Maine stock, which includes 

individuals from the West Indies DPS, 

is considered Strategic under the 

MMPA. However, as described in the 

Description of Marine Mammals in the 

Geographic Area of Specified Activities, 

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 would not be authorized. 

Despite the UME, the relevant 

population of humpback whales (the 

West Indies breeding population, or 

DPS, of which the Gulf of Maine stock 

is a part) remains stable at 

approximately 12,000 individuals. 

This final rule would allow for the 

authorization of up to 36 takes, by Level 

A harassment and Level B harassment, 

over the 5-year period. The maximum 

annual allowable take by Level A 

harassment and Level B harassment 

would be 2 and 16, respectively 

(combined, this maximum annual take 

(n=18) equates to approximately 1.29 

percent of the stock abundance if each 

take were considered to be of a different 

individual). Given that humpback 

whales are known to forage in areas just 

south of Maryland during the winter 

and could potentially be foraging off 

Maryland during this time as well, it is 

likely that some subset of the individual 

whales exposed could be taken several 

times annually. 

Among the activities analyzed, impact 

pile driving is likely to result in the 

highest amount of Level A harassment 

annual take of (n=2) humpback whales. 

The maximum amount of annual take to 

be authorized (n=14), by Level B 

harassment, is highest for impact pile 

driving. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, 

humpback whales are known to occur 

regularly throughout the Mid-Atlantic 

Bight, including Maryland waters, with 

strong seasonality of peak occurrences 

during winter and spring (Barco et al., 

2015; Bailey et al., 2018; Hayes et al., 

2023). 

In the western North Atlantic, 

humpback whales feed during spring, 

summer, and fall over a geographic 

range encompassing the eastern coast of 

the United States. Feeding is generally 

considered to be focused in areas north 

of the project area, including a feeding 

BIA in the Gulf of Maine/Stellwagen 

Bank/Great South Channel, but has been 

documented farther south and off the 

coast of Virginia. When foraging, 

humpback whales tend to remain in the 

area for extended durations to capitalize 

on the food sources. 

Assuming humpback whales who are 

feeding in waters within or surrounding 

the project area behave similarly, we 

expect that the predicted instances of 

disturbance could be comprised of some 

individuals that may be exposed on 

multiple days if they are utilizing the 

area as foraging habitat. Also similar to 

other baleen whales, if migrating, 

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 one-half or one octave 

above the frequency band of pile driving 

noise (most sound is below 2 kHz) 

which is lower than the full predicted 

hearing range of humpback 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. Limited foraging 


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habitat exists for humpback whales 

within the project area as their main 

foraging habitat is located further north. 

Any humpback whales in the project 

area would more likely be migrating 

through the area. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 36 humpback whale takes 

over the course of the 5-year rule, a 

maximum annual allowable take by 

Level A harassment and Level B 

harassment, of 2 and 16, respectively), 

and in consideration of the required 

mitigation measures and other 

information presented, US 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 to be authorized would have a 

negligible impact on the Gulf of Maine 

stock of humpback whales. 

Minke Whale 

Minke whales are not listed under the 

ESA, and the Canadian east coast stock 

is neither considered Depleted nor 

Strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the project 

area. As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities, a UME has 

been designated for this species but is 

pending closure. No serious injury or 

mortality is anticipated or may be 

authorized for this species. 

This final rule would allow for the 

authorization of up to 67 minke whale 

takes, by Level A harassment and Level 

B harassment, over the 5-year period. 

The maximum annual allowable take by 

Level A harassment and Level B 

harassment, would be 6 and 41, 

respectively (combined, this annual take 

(n=47) equates to approximately 0.21 

percent of the stock abundance if each 

take were considered to be of a different 

individual). As described in the 

Description of Marine Mammals in the 

Geographic Area of Specified Activities 

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., 

2023). In the project area, minke whales 

are predominantly migratory and their 

known feeding areas are north, 

including a feeding BIA in the 

southwestern Gulf of Maine and 

George’s Bank. Therefore, they would be 

more likely to be moving through (with 

each take representing a separate 

individual), though it is possible that 

some subset of the individual whales 

exposed could be taken up to a few 

times annually. 

As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities 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, and preliminary 

findings in several of the whales have 

shown evidence of human interactions 

or infectious diseases. However, we note 

that the population abundance is greater 

than 21,000 and the take to be 

authorized through this action is not 

expected to exacerbate the UME in any 

way. 

We anticipate the impacts of this 

harassment to follow those described in 

the general Mysticetes section above. 

Any potential PTS would be minor 

(limited to a few dB) and any TTS 

would be of short duration and 

concentrated at one-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. If TTS is incurred, hearing 

sensitivity would likely return to preexposure levels relatively shortly after 

exposure ends. Any masking or 

physiological responses would also be 

of low magnitude and severity for 

reasons described above. 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. Limited foraging 

habitat for minke whales exists in the 

project area as major foraging habitats 

are located further north near New 

England. Any minke whales in the 

project area would be expected to 

migrate through the area and would 

have sufficient space to move away from 

Project activities. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 67 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 

harassment and Level B harassment, of 

6 and 41, respectively), and in 

consideration of the required mitigation 

measures and other information 

presented, US 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 

to be authorized would 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 may 

be authorized for this species. 

This final rule would allow for the 

authorization of up to six takes, by Level 

A harassment and Level B harassment, 

over the 5-year period. The maximum 

annual allowable take by Level A 

harassment and Level B harassment, 

would be one and one, respectively 

(combined, this annual take (n=2) 

equates to approximately 0.03 percent of 

the stock abundance, if each take were 

considered to be of a different 

individual). As described in the 

Description of Marine Mammals in the 

Geographic Area of Specified Activities 

section, most of the sei whale 

distribution is concentrated in Canadian 

waters and seasonally in northerly U.S. 

waters, though they are uncommonly 

observed in the waters off of Maryland. 

Because sei whales are migratory and 

their known feeding areas are east and 

north of the project area (e.g., there is a 

feeding BIA in the Gulf of Maine), they 

would be more likely to be moving 

through and, considering this and the 

very low number of total takes, it is 

unlikely that any individual would be 

exposed more than once within a given 

year. 

With respect to the severity of those 

individual takes by behavioral Level B 

harassment, we would anticipate 

impacts to be limited to low-level, 

temporary behavioral responses with 

avoidance and potential masking 

impacts in the vicinity of the turbine 

installation to be the most likely type of 

response. Any potential PTS and TTS 

would likely be concentrated at one-half 

or one octave above the frequency band 

of pile driving noise (most sound is 

below 2 kHz) which is below 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. There is no 

known foraging habitat that exists in the 

project area for sei whales. Any sei 

whales in the project area would be 

expected to be migrating through the 

area. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than six takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level A 


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harassment and Level B harassment, of 

one and one, respectively), and in 

consideration of the required mitigation 

measures and other information 

presented, US 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 

to be authorized would have a negligible 

impact on the Nova Scotia stock of sei 

whales. 

Odontocetes 

In this section, we include 

information here that applies to all of 

the odontocete species and stocks 

addressed below. Odontocetes include 

dolphins, porpoises, and all other 

whales possessing teeth, and we further 

divide them into the following 

subsections: sperm whales, small 

whales and dolphins, and harbor 

porpoise. These sub-sections include 

more specific information, as well as 

conclusions for each stock represented. 

All of the takes of odontocetes that 

may be authorized incidental to US 

Wind’s specified activities are by pile 

driving and HRG surveys. No serious 

injury or mortality is anticipated or may 

be authorized. We anticipate that, given 

ranges of individuals (i.e., that some 

individuals remain within a small area 

for some period of time), and nonmigratory nature of some odontocetes in 

general (especially as compared to 

mysticetes), these takes are more likely 

to represent multiple exposures of a 

smaller number of individuals than is 

the case for mysticetes, though some 

takes may also represent one-time 

exposures to an individual. Foundation 

installation is likely to disturb 

odontocetes to the greatest extent, 

compared to HRG surveys. While we 

expect animals to avoid the area during 

foundation installation, their habitat 

range is extensive compared to the area 

ensonified during these activities. 

As described earlier, Level B 

harassment may include direct 

disruptions in behavioral patterns (e.g., 

avoidance, changes in vocalizations 

(from masking) or foraging), as well as 

those associated with stress responses or 

TTS. Odontocetes are highly mobile 

species and, similar to mysticetes, 

NMFS expects any avoidance behavior 

to be limited to the area near the sound 

source. While masking could occur 

during foundation installation, it would 

only occur in the vicinity of and during 

the duration of the activity and would 

not generally occur in a frequency range 

that overlaps most odontocete 

communication or any echolocation 

signals. The mitigation measures (e.g., 

use of sound attenuation systems, 

implementation of clearance and 

shutdown zones) would also minimize 

received levels such that the severity of 

any behavioral response would be 

expected to be less than exposure to 

unmitigated noise exposure. 

Any masking or TTS effects are 

anticipated to be of low severity. First, 

the frequency range of pile driving, the 

most impactful activity that would be 

conducted in terms of response severity, 

falls within a portion of the frequency 

range of most odontocete vocalizations. 

However, odontocete vocalizations span 

a much wider range than the lowfrequency construction activities 

planned for the Project. As described 

above, recent studies suggest 

odontocetes have a mechanism to selfmitigate (i.e., reduce hearing sensitivity) 

the impacts of noise exposure, which 

could potentially reduce TTS impacts. 

Any masking or TTS is anticipated to be 

limited and would typically only 

interfere with communication within a 

portion of an odontocete’s range and as 

discussed earlier, the effects would only 

be expected to be of a short duration 

and, for TTS, a relatively small degree. 

Furthermore, odontocete echolocation 

occurs predominantly at frequencies 

significantly higher than low-frequency 

construction activities. Therefore, there 

is little likelihood that threshold shift 

would interfere with feeding behaviors. 

For HRG surveys, the sources operate at 

higher frequencies than foundation 

installation activities. 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 during HRG surveys, if it 

does occur, is anticipated to be very low 

in severity based on the lack of 

avoidance previously demonstrated by 

these species. 

The waters off the coast of Maryland 

are used by several odontocete species. 

None of these species are listed under 

the ESA, and there are no known 

habitats of particular importance. In 

general, odontocete habitat ranges are 

far-reaching along the Atlantic coast of 

the United States, and the waters off of 

Maryland, including the project area, do 

not contain any unique odontocete 

habitat features. 

Dolphins and Small Whales (Including 

Delphinids) 

The 10 species and 11 stocks included 

in this group for which NMFS may 

authorize take are not listed under the 

ESA; however, short-finned pilot whales 

are listed as Strategic under the MMPA. 

There are no known areas of specific 

biological importance in or around the 

project area for any of these species and 

no UMEs have been designated for any 

of these species. No serious injury, 

mortality, or take by Level A harassment 

is anticipated or may be authorized for 

these species. 

The 10 delphinid species for which 

NMFS may authorize take are: Atlantic 

spotted dolphin, Pantropical spotted 

dolphin, common bottlenose dolphin 

(coastal and northern migratory stocks), 

common dolphin, long-finned pilot 

whale, short-finned pilot whale, killer 

whale, rough-toothed dolphin, striped 

dolphin, and Risso’s dolphin. This final 

rule would allow for the authorization 

of between 3 and 3,013 takes 

(depending on species), by Level B 

harassment only, over the 5-year period. 

The maximum annual allowable take for 

these species by Level B harassment, 

would range from 3 to 1,762, 

respectively (this annual take equates to 

approximately 0.07 to 24.0 percent of 

the stock abundance, depending on each 

stock, if each take were considered to be 

of a different individual). 

For both stocks of bottlenose 

dolphins, given the comparatively 

higher number of total annual takes 

(1,591 for coastal and 1,768 for offshore) 

and the relative number of takes as 

compared to the stock abundance (24.0 

and 2.81, respectively), primarily due to 

the progression of the location of impact 

pile driving each year, while some of 

the takes likely represent exposures of 

different individuals on 1 day a year, it 

is likely that some subset of the 

individuals exposed could be taken 

several times annually. For Atlantic 

spotted dolphins, Pantropical spotted 

dolphins, common dolphins, long- and 

short-finned pilot whales, killer whales, 

rough-toothed dolphins, striped 

dolphins, and Risso’s dolphins, 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. 

Dolphins and small delphinids engage 

in social, reproductive, and foraging 

behavior in the waters offshore of 

Maryland. However, the number of 

takes, likely movement patterns of the 

affected species, and the intensity of any 

Level B harassment, combined with the 


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availability of alternate nearby habitat 

that supports the aforementioned 

behaviors 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. No Level A 

harassment (PTS) is anticipated or may 

be authorized. Some TTS could occur, 

but it would be limited to the frequency 

ranges of the activity and any loss of 

hearing sensitivity is anticipated to 

return to pre-exposure conditions 

shortly after the animals move away 

from the source or the source ceases. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, US 

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 to be authorized would 

have a negligible impact on all of the 

species and stocks addressed in this 

section. 

Harbor Porpoise 

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 nor 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 and may be 

authorized for this stock. 

This final rule would allow for the 

authorization of up to 74 takes, by Level 

A harassment and Level B harassment, 

over the 5-year period. The maximum 

annual allowable take by Level A 

harassment and Level B harassment, 

would be 3 and 39, respectively 

(combined, this annual take (n=42) 

equates to approximately 0.04 percent of 

the stock abundance if each take were 

considered to be of a different 

individual). Given the number of takes, 

many of the takes likely represent 

exposures of different individuals on 1 

day a year. 

Regarding the severity of takes by 

Level B harassment, because harbor 

porpoises are particularly sensitive to 

noise, it is likely that a fair number of 

the responses could be of a moderate 

nature, particularly to pile driving. In 

response to pile driving, harbor 

porpoises are likely to avoid the area 

during construction, as previously 

demonstrated in Tougaard et al. (2009) 

in Denmark, in Dahne et al. (2013) in 

Germany, and in Vallejo et al. (2017) in 

the United Kingdom, although a study 

by Graham et al. (2019) may indicate 

that the avoidance distance could 

decrease over time. Given that 

foundation installation is scheduled to 

occur off the coast of Maryland and, 

given alternative foraging areas nearby, 

any avoidance of the area by individuals 

is not likely to impact the reproduction 

or survival of any individuals. 

With respect to PTS and TTS, the 

effects on an individual are likely 

relatively low given the frequency bands 

of pile driving (most energy below 2 

kHz) compared to harbor porpoise 

hearing (150 Hz to 160 kHz peaking 

around 40 kHz). Specifically, TTS is 

unlikely to impact hearing ability in 

their more sensitive hearing ranges, or 

the frequencies in which they 

communicate and echolocate. We 

expect any PTS that may occur to be 

within the very low end of their hearing 

range where harbor porpoises are not 

particularly sensitive, and any PTS 

would affect a relatively small portion 

of the individual’s hearing range. As 

such, any PTS would not interfere with 

key foraging or reproductive strategies 

necessary for reproduction or survival. 

Harbor porpoises are seasonally 

distributed (Hayes et al., 2023). During 

fall (October through December) and 

spring (April through June), harbor 

porpoises are widely dispersed from 

New Jersey to Maine, with lower 

densities farther north and south. 

During winter (January to March), 

intermediate densities of harbor 

porpoises can be found in waters off 

New Jersey to North Carolina, and lower 

densities are found in waters off New 

York to New Brunswick, Canada. In 

non-summer months they have been 

seen from the coastline to deep waters 

(>1800 m; Westgate et al., 1998), 

although the majority are found over the 

continental shelf. While harbor 

porpoises are likely to avoid the area 

during any of the Project’s construction 

activities, as demonstrated during 

European wind farm construction, the 

time of year in which work would occur 

is when harbor porpoises are not in 

highest abundance, and any work that 

does occur would not result in the 

species’ abandonment of the waters off 

of Maryland. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, US 

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 to be authorized would 

have a negligible impact on the Gulf of 

Maine/Bay of Fundy stock of harbor 

porpoises. 

Phocids (Harbor Seals, Gray Seals, and 

Harp Seals) 

The harbor seal, gray seal, and harp 

seal are not listed under the ESA, and 

these stocks are not considered Depleted 

or Strategic under the MMPA. There are 

no known areas of specific biological 

importance in or around the project 

area. As described in the Description of 

Marine Mammals in the Geographic 

Area of Specified Activities section, a 

UME was designated for harbor seals 

and gray seals from June 20 through July 

20, 2023 but has since been closed. No 

serious injury or mortality is anticipated 

or may be authorized for any seal 

species. 

As limited occurrence data for seals 

are available for the project area, take 

estimates for harbor seals, gray seals, 

and harp seals are presented as one 

estimate. For the three seal species, this 

final rule would allow for the total 

authorization of up to 496 seals by Level 

B harassment, over the 5-year period. 

The maximum annual allowable take for 

these species, by Level B harassment, 

would be 341 seals. If all of the 

allocated take was attributed to gray 

seals, this take would equate to 1.25 

percent of the gray seal stock 

abundance, if each take were considered 

to be of a different individual. If all of 

the allocated take was attributed to 

harbor seals, this take would equate to 

0.56 percent of the harbor seal stock 

abundance, if each take were considered 

to be of a different individual. If all of 

the allocated take was attributed to harp 

seals, this take would equate to 0.004 

percent of the harp seal stock 

abundance. Gray seals, harbor seals, and 

harp seals are considered migratory and 

none of these species have specific 

feeding areas that have been designated 

in the area, therefore, it is likely that 

takes of seals would represent exposures 

of different individuals throughout the 

Project duration. 

Harp seals are considered extralimital 

in the project area, however, harp seal 

strandings have been documented in 

Maryland during the winter and spring 

(Hayes et al., 2023; NAB, 2023a; NAB, 

2023b). Harbor and gray seals occur in 

Maryland waters most often from late 


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winter to early spring, with harbor seal 

occurrences being more common than 

gray seals (Hayes et al., 2023). 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 and HRG surveys would be 

expected to be at comparatively lower 

levels. Although a gray seal rookery may 

occur off the coast of Cape Henlopen, 

north of the project area, based on the 

distance of this area from the project 

area it is not expected that in-air sounds 

produced would cause the take of 

hauled out pinnipeds. As this is the 

closest documented pinniped haul-out 

to the project area, NMFS does not 

expect any harassment to occur, nor 

plans to authorize any take from in-air 

impacts on hauled out seals. 

As described in the Potential Effects 

of Specified Activities on Marine 

Mammals and Their Habitat section, 

construction of wind farms in Europe 

resulted in pinnipeds temporarily 

avoiding construction areas but 

returning within short time frames after 

construction was complete (Carroll et 

al., 2010; Hamre et al., 2011; Hastie et 

al., 2015; Russell et al., 2016; Brasseur 

et al., 2010). Effects on pinnipeds that 

are taken by Level B harassment in the 

project area would likely be limited to 

reactions such as increased swimming 

speeds, increased surfacing time, or 

decreased foraging (if such activity were 

occurring). Most likely, individuals 

would simply move away from the 

sound source and be temporarily 

displaced from those areas (Lucke et al., 

2006; Edren et al., 2010; Skeate et al., 

2012; Russell et al., 2016). Given the 

low anticipated magnitude of impacts 

from any given exposure (e.g., 

temporary avoidance), even potential 

repeated Level B harassment across a 

few days of some small subset of 

individuals, which could occur, is 

unlikely to result in impacts on the 

reproduction or survival of any 

individuals. Moreover, pinnipeds would 

benefit from the mitigation measures 

described in 50 CFR part 217— 

Regulations Governing the Taking and 

Importing of Marine Mammals 

Incidental to Specified Activities. 

As described above, noise from pile 

driving is mainly low-frequency and, 

while any TTS that does occur would 

fall within the lower end of pinniped 

hearing ranges (50 Hz to 86 kHz), TTS 

would not occur at frequencies around 

5 kHz, where pinniped hearing is most 

susceptible to noise-induced hearing 

loss (Kastelein et al., 2018). No Level A 

harassment (PTS) is anticipated or may 

be authorized. In summary, any TTS 

would be of small degree and not occur 

across the entire, or even most sensitive, 

hearing range. Hence, any impacts from 

TTS are likely to be of low severity and 

not interfere with behaviors critical to 

reproduction or survival. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, US 

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 may be authorized 

would have a negligible impact on 

harbor, gray, and harp seals. 

Negligible Impact Determination 

No mortality or serious injury is 

anticipated to occur or may be 

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 for which take may be 

authorized through effects on annual 

rates of recruitment or survival. Based 

on the analysis contained herein of the 

likely effects of the specified activity on 

marine mammals and their habitat and 

taking into consideration the 

implementation of the required 

mitigation and monitoring measures, 

NMFS finds that the marine mammal 

take from all of US 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 (86 FR 5322, January 19, 2021). 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The final rule allows for incidental 

take (by Level A harassment and/or 

Level B harassment) of 19 species of 

marine mammal (with 20 managed 

stocks). The maximum number of 

instances of takes by combined Level A 

harassment and Level B harassment 

possible within any one year and that 

would be authorized relative to the best 

available population abundance is less 

than one-third for all species and stocks 

potentially impacted. 

For 13 of these species (13 stocks), the 

allowable take by Level A and/or Level 

B harassment equates to less than 1 

percent as compared to the stock 

abundance. For five stocks, the 

allowable take by Level A and/or Level 

B harassment equates to less than 5 

percent as compared to the stock 

abundance, and for one stock the take 

by Level A and/or Level B harassment 

equates to just under 25 percent as 

compared to the stock abundance 

(coastal stock of bottlenose dolphins), 

assuming that each instance of take 

represents a different individual. 

Specific to the North Atlantic right 

whale, the maximum amount of take in 

any given year, which is by Level B 

harassment only, is four, or 1.18 percent 

of the stock abundance, assuming that 

each instance of take represents a 

different individual. Please see table 22 

for information relating to this small 

numbers analysis. 

Based on the analysis contained 

herein of the planned 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 


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consults internally whenever we 

propose to authorize take for 

endangered or threatened species, in 

this case with the NOAA GARFO. 

This final rule allows for the take of 

three marine mammal species listed 

under the ESA: North Atlantic right, fin, 

and sei whales. The Permits and 

Conservation Division requested 

initiation of section 7 consultation on 

December 5, 2023, with GARFO for the 

promulgation of the rulemaking. NMFS 

GARFO issued a BiOp on June 18, 2024, 

concluding that the promulgation of the 

rule and issuance of LOA thereunder is 

not likely to jeopardize the continued 

existence of threatened and endangered 

species under NMFS’ jurisdiction and is 

not likely to result in the destruction or 

adverse modification of designated or 

proposed critical habitat. The BiOp is 

available at: https://repository.library.

noaa.gov/view/noaa/61632. 

US Wind is required to abide by these 

promulgated regulations, as well as the 

reasonable and prudent measure and 

terms and conditions of the BiOp and 

Incidental Take Statement, as issued by 

NMFS. 

National Environmental Policy Act 

(NEPA) 

To comply with NEPA (42 U.S.C. 

4321 et seq.) and the NOAA 

Administrative Order 216–6A, NMFS 

must evaluate our proposed action (i.e., 

promulgation of regulation) and 

alternatives with respect to potential 

impacts on the human environment. 

NMFS participated as a cooperating 

agency on the BOEM 2024 Final EIS 

(FEIS), which was finalized on, and is 

available at: https://www.boem.gov/ 

renewable-energy/state-activities/ 

maryland-offshore-wind-finalenvironmental-impact-statement-eis. 

When acting as a cooperating agency, 

as is the case with this Project, NMFS 

may satisfy its independent NEPA 

obligations by either preparing a 

separate NEPA analysis for its issuance 

of an incidental take authorization or, if 

appropriate, by adopting the NEPA 

analysis prepared by the lead agency (40 

CFR 1506.3(b)). In accordance with 40 

CFR 1506.3, NMFS independently 

reviewed and evaluated the 2024 

Maryland Offshore 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 

2024 Maryland Offshore Wind FEIS 

through a joint Record of Decision 

(ROD) with BOEM. The joint ROD for 

adoption of the 2024 Maryland Offshore 

Wind FEIS and promulgation of this 

final rule and subsequent issuance of a 

LOA can be found at: https://

www.boem.gov/renewable-energy/stateactivities/maryland-offshore-wind. 

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 (RFA) 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions) directly 

affected by the rule. However, no 

regulatory flexibility analysis is required 

if the head of an agency, or that person’s 

designee, certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

The Chief Counsel for Regulation for the 

Department of Commerce certified at the 

proposed rule stage that this rule would 

not have a significant economic impact 

on a substantial number of small 

entities. US Wind, the sole entity 

subject to these requirements, is not a 

small governmental jurisdiction, small 

organization or small business. We 

received no information that changes 

the factual basis of this certification. As 

a result, a regulatory flexibility analysis 

was not required and none was 

prepared. 

Paperwork Reduction Act (PRA) 

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 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 CZMA requires Federal actions 

within and outside the coastal zone that 

have reasonably foreseeable effects on 

any coastal use or natural resource of 

the coastal zone be consistent with the 

enforceable policies of a State’s 

federally approved coastal management 

program (16 U.S.C. 1456(c)). NMFS has 

determined that US Wind’s application 

for incidental take regulations is not an 

activity listed by the MD DNR pursuant 

to 15 CFR 930.53 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. Consistent with 15 

CFR 930.54, NMFS published Notice of 

Receipt of US Wind’s application for 

this incidental take regulation in the 

Federal Register on May 2, 2023 (88 FR 

27453) and published the proposed rule 

on January 4, 2024 (89 FR 504). The 

State of Maryland did not request 

approval from the Director of NOAA’s 

Office for Coastal Management to review 

US Wind’s application as an unlisted 

activity, and the time period for making 

such request has expired. Therefore, 

NMFS has determined the ITA is not 

subject to Federal consistency review. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Endangered and threatened 

species, Fish, Fisheries, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, Wildlife. 

Dated: September 26, 2024. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

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 II, consisting of 

§§ 217.340 through 217.349, to read as 

follows: 

Subpart II—Taking Marine Mammals 

Incidental to the Maryland Offshore Wind 

Project Offshore of Maryland 

Sec. 

217.340 Specified activity and specified 

geographical region. 

217.341 Effective dates. 

217.342 Permissible methods of taking. 

217.343 Prohibitions. 

217.344 Mitigation requirements. 

217.345 Monitoring and reporting 

requirements. 

217.346 Letter of Authorization. 

217.347 Modifications of Letter of 

Authorization. 


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217.348–217.349 [Reserved] 

Subpart II—Taking Marine Mammals 

Incidental to the Maryland Offshore 

Wind Project Offshore of Maryland 

§ 217.340 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

to activities associated with the 

Maryland Offshore Wind Project 

(hereafter referred to as the ‘‘Project’’) by 

US Wind, Inc. (hereafter referred to as 

‘‘LOA Holder’’), and those persons it 

authorizes or funds to conduct activities 

on its behalf in the area outlined in 

paragraph (b) of this section. 

Requirements imposed on LOA Holder 

must be implemented by those persons 

it authorizes or funds to conduct 

activities on its behalf. 

(b) The specified geographical region 

is the Mid-Atlantic Bight, defined as 

waters from Cape Hatteras, North 

Carolina to Cape Cod, Massachusetts 

and extending into the west Atlantic to 

the 100-meter (m) isobath, and includes, 

but is not limited to, the Bureau of 

Ocean Energy Management (BOEM) 

Lease Area Outer Continental Shelf 

(OCS)–A 0490 Commercial Lease of 

Submerged Lands for Renewable Energy 

Development, along the relevant Export 

Cable Corridors (ECC), and at the sea-toshore transition points located within 

Delaware Seashore State Park. 

(c) The specified activities are impact 

pile driving of wind turbine generator 

(WTG), offshore substation (OSS), and a 

meteorological tower (Met tower) 

foundations; high-resolution 

geophysical (HRG) site characterization 

surveys; vessel transit within the 

specified geographical region to 

transport crew, supplies, and materials; 

WTG and OSS operation; fishery and 

ecological monitoring surveys; 

placement of scour protection; and 

trenching, laying, and cable burial 

activities. 

§ 217.341 Effective dates. 

Regulations in this subpart are 

effective from January 1, 2025, through 

December 31, 2029. 

§ 217.342 Permissible methods of taking. 

Under the LOA, issued pursuant to 

§§ 216.106 of this chapter and 217.346, 

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 0490 Commercial Lease of 

Submerged Lands for Renewable Energy 

Development and associated cable 

corridor, provided the LOA Holder is in 

complete compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

appropriate LOA: 

(a) By Level B harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving (WTG, 

OSS, and Met tower foundation 

installation) and HRG site 

characterization surveys. 

(b) By Level A harassment associated 

with auditory injury of marine 

mammals by impact pile driving of 

WTG foundations. 

(c) Take by mortality or serious injury 

of any marine mammal species is not 

authorized. 

(d) The incidental take of marine 

mammals by the activities listed in 

paragraphs (a) and (b) of this section is 

limited to the following species. 

TABLE 1 TO PARAGRAPH (d) 

Marine mammal species Scientific name Stock 

North Atlantic right whale ................................... Eubalaena glacialis .......................................... Western 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. 

Killer whale ......................................................... Orcinus orca ..................................................... Western North Atlantic. 

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

Pantropical spotted dolphin ................................ Stenella attenuata ............................................ Western North Atlantic. 

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

Northern Migratory Coastal. 

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

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

Short-finned pilot whale ...................................... Globicephala macrorhynchus .......................... Western North Atlantic. 

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

Rough-toothed dolphin ....................................... Steno bredanensis ........................................... Western North Atlantic. 

Striped dolphin ................................................... Stenella coeruleoalba ...................................... 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. 

Harp seal ............................................................ Pagophilus groenlandicus ................................ Western North Atlantic. 

§ 217.343 Prohibitions. 

Except for the takings described in 

§ 217.342 and authorized by the LOA 

issued under this subpart, 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 the LOA issued under 

this subpart. 

(b) Take any marine mammal not 

specified in § 217.342(d). 

(c) Take any marine mammal 

specified in the LOA in any manner 

other than as specified in the LOA. 

(d) Take any marine mammal 

specified in § 217.342(d), after National 

Marine Fisheries Service (NMFS) Office 

of Protected Resources determines such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammals. 

§ 217.344 Mitigation requirements. 

When conducting the activities 

identified in § 217.340(c) within the 

area described in § 217.340(b), LOA 

Holder must implement the mitigation 

measures contained in this section and 

any LOA issued under §§ 217.346 and 

217.347. 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 (PSO), 

passive acoustic monitoring (PAM) 


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operators, pile driver operators, and any 

other relevant designees operating 

under the authority of the issued LOA; 

(2) LOA Holder must conduct training 

for construction, survey, and vessel 

personnel and the marine mammal 

monitoring team (PSO and PAM 

operators) prior to the start of all inwater construction activities in order to 

explain responsibilities, communication 

procedures, marine mammal detection 

and identification, mitigation, 

monitoring, and reporting requirements, 

safety and operational procedures, and 

authorities of the marine mammal 

monitoring team(s). This training must 

be repeated for new personnel who join 

the work during the Project. A 

description of the training program must 

be provided to NMFS at least 60 days 

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

all required training must be 

documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

Project activities; 

(3) Prior to and when conducting any 

in-water activities and vessel 

operations, LOA Holder personnel and 

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

must use available sources of 

information on North Atlantic right 

whale presence in or near the project 

area including daily monitoring of the 

Right Whale Sightings Advisory System, 

and monitoring of U.S. Coast Guard 

VHF Channel 16 throughout the day to 

receive notification of any sightings 

and/or information associated with any 

slow zones (i.e., Dynamic Management 

Areas (DMA) and/or acousticallytriggered slow zones) to provide 

situational awareness for both vessel 

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

the marine mammal monitoring team 

must monitor these systems no less than 

every 4 hours; 

(4) Any large whale observation by 

any project personnel or acoustic 

detection by a PAM operator must be 

conveyed to all vessel captains and onduty PSOs. Any marine mammal 

observed by project personnel during 

pile driving must be conveyed to onduty PSOs; 

(5) 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; 

(6) PSOs and PAM operators have the 

authority to call for a delay or shutdown 

to an activity, and LOA Holder must 

instruct all personnel regarding the 

authority of the PSOs and PAM 

operators. Any disagreements between a 

PSO, PAM operator, and the activity 

operator regarding delays or shutdowns 

may only be discussed after the 

mitigative action has occurred; 

(7) If an individual from a species for 

which authorization has not been 

granted, or a species for which 

authorization has been granted but the 

authorized take number has been met, is 

observed entering or within the relevant 

Level B harassment zone prior to or 

during a specified activity, the activity 

must be delayed or shut down, unless 

doing so would result in imminent risk 

of injury or loss of life to an individual, 

pile refusal, or pile instability. The 

activity must not commence or resume 

until the animal(s) has been confirmed 

to have left and is on a path away from 

the Level B harassment zone or after 15 

minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

species with no further sightings; 

(8) For in-water construction heavy 

machinery activities other than pile 

driving, if a marine mammal is on a 

path towards or comes within 10 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; 

(9) All vessels must be equipped with 

a properly installed, operational 

Automatic Identification System (AIS) 

device and LOA Holder must report all 

Maritime Mobile Service Identity 

(MMSI) numbers to NMFS Office of 

Protected Resources prior to 

commencing initial transits; 

(10) 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; 

(11) 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; and 

(12) The LOA Holder must also abide 

by the reasonable and prudent measures 

and terms and conditions of the 

Biological Opinion and Incidental Take 

Statement, as issued by NMFS, pursuant 

to section 7 of the Endangered Species 

Act. 

(b) Vessel strike avoidance measures. 

LOA Holder must comply with the 

following vessel strike avoidance 

measures while in the specified 

geographical region, unless a deviation 

is necessary to maintain safe 

maneuvering speed and justified 

because the vessel is in an area where 

oceanographic, hydrographic, and/or 

meteorological conditions severely 

restrict the maneuverability of the 

vessel; an emergency situation presents 

a threat to the health, safety, or life of 

a person; or when a vessel is actively 

engaged in emergency rescue or 

response duties, including vessel-indistress or environmental crisis 

response. An emergency is defined as a 

serious event that occurs without 

warning and requires immediate action 

to avert, control, or remedy harm. Speed 

over ground will be used to measure all 

vessel speed restrictions. 

(1) Prior to the start of the Project’s 

activities involving vessels, all vessel 

personnel must receive a protected 

species training that covers, at a 

minimum, identification of marine 

mammals that have the potential to 

occur where vessels would be operating; 

detection observation methods in both 

good weather conditions (i.e., clear 

visibility, low winds, low sea states) and 

bad weather conditions (i.e., fog, high 

winds, high sea states, with glare); 

sighting communication protocols; all 

vessel speed and approach limit 

mitigation requirements (e.g., vessel 

strike avoidance measures); and 

information and resources available to 

the project personnel regarding the 

applicability of Federal laws and 

regulations for protected species. This 

training must be repeated for any new 

vessel personnel who join the Project. 

Confirmation of the observers’ training 

and understanding of the Incidental 

Take Authorization (ITA) requirements 

must be documented on a training 

course log sheet and reported to NMFS 

Office of Protected Resources prior to 

vessel activities; 

(2) LOA Holder, regardless of their 

vessel’s size, must maintain a vigilant 

watch for all marine mammals and slow 

down, stop their vessel, or alter course 

to avoid striking any marine mammal; 

(3) LOA Holder’s underway vessels 

(e.g., transiting, surveying) operating at 

any speed must have a dedicated visual 

observer on duty at all times to monitor 

for marine mammals within a 180° 

direction of the forward path of the 

vessel (90° port to 90° starboard) located 

at an appropriate vantage point for 

ensuring vessels are maintaining 

appropriate separation distances. Visual 


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observers must be equipped with 

alternative monitoring technology (e.g., 

night vision devices, infrared cameras) 

for periods of low visibility (e.g., 

darkness, rain, fog, etc.). The dedicated 

visual observer must receive prior 

training on protected species detection 

and identification, vessel strike 

minimization procedures, how and 

when to communicate with the vessel 

captain, and reporting requirements in 

this subpart. Visual observers may be 

third-party observers (i.e., NMFSapproved PSOs) or trained crew 

members, as defined in paragraph (b)(1) 

of this section; 

(4) LOA Holder must continuously 

monitor the U.S. Coast Guard VHF 

Channel 16 at the onset of transiting 

through the duration of transiting, over 

which North Atlantic right whale 

sightings are broadcasted. At the onset 

of transiting and at least once every 4 

hours, vessel operators and/or trained 

crew member(s) must also monitor the 

Project’s Situational Awareness System, 

WhaleAlert, and relevant NOAA 

information systems such as the Right 

Whale Sighting Advisory System 

(RWSAS) for the presence of North 

Atlantic right whales; 

(5) All LOA Holder’s vessels, 

regardless of size, must transit at 10 kn 

(11.5 mph) or less from November 1– 

April 30 in the specified geographic 

region; 

(6) All LOA Holder’s vessels, 

regardless of size, must travel 10 kn 

(11.5 mph) or less in any Seasonal 

Management Area (SMA) or active Slow 

Zones (i.e., DMAs or acoustically 

triggered slow zone); 

(7) LOA Holder’s vessels, regardless of 

size, must immediately reduce speed to 

10 kn or less for at least 24 hours when 

a North Atlantic right whale is sighted 

at any distance by any project-related 

personnel or acoustically detected by 

any project-related PAM system. Each 

subsequent observation or acoustic 

detection in the project area shall trigger 

an additional 24-hour period. If a North 

Atlantic right whale is reported via any 

of the monitoring systems (refer back to 

(b)(4) of this section) within 10 

kilometers (km; 6.2 miles (mi)) of a 

transiting vessel(s), that vessel must 

operate at 10 knots (kn; 11.5 miles per 

hour (mph)) or less for 24 hours 

following the reported detection; 

(8) LOA Holder’s vessels, regardless of 

size, must immediately reduce speed to 

10 kn or less when any large whale 

(other than a North Atlantic right whale) 

or large assemblages of cetaceans is 

observed within 500 m (1,640 ft) of an 

underway vessel; 

(9) If LOA Holder’s vessel(s) are 

traveling at speeds greater than 10 kn 

(i.e., no speed restrictions are enacted) 

in a transit corridor from a port to the 

Lease Area (or return), in addition to the 

required dedicated visual observer, LOA 

Holder must monitor the transit corridor 

in real-time with PAM prior to and 

during transits. If a North Atlantic right 

whale is detected via visual observation 

or PAM within or approaching the 

transit corridor, all crew transfer vessels 

must travel at 10 kn (11.5 mph) or less 

for 24 hours following the detection. 

Each subsequent detection shall trigger 

a 24-hour reset. A slowdown in the 

transit corridor expires when there has 

been no further visual or acoustic 

detection in the transit corridor in the 

past 24 hours; 

(10) LOA Holder’s vessels must 

maintain a minimum separation 

distance of 100 m (328 ft) from sperm 

whales and non-North Atlantic right 

whale baleen whales. If one of these 

species is sighted within 100 m of a 

transiting vessel, LOA Holder’s vessel 

must turn away from the whale(s), 

reduce speed, and shift the engine(s) to 

neutral. Engines must not be engaged 

until the whale has moved outside of 

the vessel’s path and beyond 100 m; 

(328 ft); 

(11) 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 or 

pinniped is sighted within 50 m (164 ft) 

of a transiting vessel, LOA Holder’s 

vessel must turn away from the 

animal(s), shift the engine to neutral, 

with an exception made for those that 

approach the vessel (e.g., bow-riding 

dolphins). Engines must not be engaged 

until the animal(s) has moved outside of 

the vessel’s path and beyond 50 m; 

(12) When a marine mammal(s) is 

sighted while LOA Holder’s vessel(s) is 

transiting, the vessel must take action as 

necessary to avoid violating the relevant 

separation distances (e.g., attempt to 

remain parallel to the animal’s course, 

slow down, and avoid abrupt changes in 

direction until the animal has left the 

area). This measure does not apply to 

any vessel towing gear or any situation 

where respecting the relevant separation 

distance would be unsafe (i.e., any 

situation where the vessel is 

navigationally constrained); 

(13) LOA Holder’s vessels underway 

must not divert or alter course to 

approach any marine mammal; 

(14) 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; and 

(15) LOA Holder must submit a 

Marine Mammal Vessel Strike 

Avoidance Plan to NMFS Office of 

Protected Resources for review and 

approval at least 180 days prior to the 

planned start of vessel activity if vessels 

will operate over 10 kn (11.5 mph). The 

plan must provide details on the vesselbased 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 the approved 

Marine Mammal Vessel Strike 

Avoidance Plan. 

(c) WTG, OSS, Met tower foundation 

installation. LOA Holder must comply 

with the following mitigation measures 

during impact pile driving activities 

associated with the installation of WTG, 

OSS, and Met tower foundations unless 

compliance is not practicable due to 

imminent risk of injury or loss of life to 

an individual, risk of damage to a vessel 

that creates risk of injury or loss of life 

for individuals, or the lead engineer 

determines there is risk of pile refusal 

or pile instability. 

(1) Impact pile driving (i.e., 

foundation and Met Tower installation) 

must not occur December 1 through 

April 30; 

(2) Monopiles must be no larger than 

11 m (36.1 ft) in diameter. No more than 

one monopile may be installed per day, 

unless otherwise approved in writing by 

NMFS. Pin piles for the OSSs must be 

no larger than 3 m in diameter. No more 

than four 3-m pin piles may be installed 

per day. Met tower pin piles must be no 

larger than 1.8 m in diameter. No more 

than two 1.8-m pin piles may be 

installed per day. The minimum amount 

of hammer energy necessary to 

effectively and safely install and 

maintain the integrity of the piles must 

be used. The impact hammer rating 

must not exceed 4,400 kJ; 

(3) LOA Holder must not initiate pile 

driving earlier than 1 hour prior to civil 

sunrise or later than 1.5 hours prior to 

civil sunset, and may only continue pile 

driving into darkness if stopping 

operations represents a risk to human 

health, safety, and/or pile stability, 

unless the LOA Holder submits, and 

NMFS approves, an Alternative 

Monitoring Plan, which would allow 

pile driving to begin after daylight hours 

have ended. Until this is submitted, 

reviewed, and approved by NMFS, LOA 

Holder may not begin any new pile 

driving outside of the daylight hours 

previously defined in this subsection; 


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(4) 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. Softstart involves initiating hammer 

operation at a reduced energy level 

(relative to full operating capacity) 

followed by a waiting period. The LOA 

Holder must comply with a soft-start 

protocol as described in the approved 

Pile Driving Plan; 

(5) LOA Holder must implement 

clearance and shutdown zones, which 

must be measured using the radial 

distance around the pile being driven; 

(6) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.345. At least three on-duty PSOs 

must be stationed and observing on the 

foundation installation vessel/platform. 

A minimum of three PSOs must be 

active on each of the two dedicated PSO 

vessels. On-duty 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. 

Concurrently, PAM operator(s) must be 

actively monitoring for marine 

mammals with PAM 60 minutes before, 

during, and 30 minutes after pile 

driving in accordance with a NMFSapproved PAM Plan; 

(7) PSOs must visually monitor 

clearance zones for marine mammals for 

a minimum of 60 minutes prior to 

commencing pile driving. The entire 

minimum visibility zone must be visible 

(i.e., not obscured by dark, rain, fog, 

etc.) for a full 60 minutes immediately 

prior to commencing pile driving. If 

PSOs cannot visually monitor the 

minimum visibility zone prior to 

foundation pile driving at all times), 

pile driving operations must not 

commence; 

(8) All clearance zones must be 

confirmed to be free of marine mammals 

for 30 minutes immediately prior to the 

beginning of soft-start procedures. If a 

marine mammal is detected within or 

about to enter the applicable clearance 

zones, prior to the beginning of soft-start 

procedures, impact pile driving must be 

delayed until the animal has been 

visually observed exiting the clearance 

zone or until a specific time period has 

elapsed with no further sightings. The 

specific time periods are 15 minutes for 

small odontocetes and pinnipeds, and 

30 minutes for all other species. PAM 

operators must immediately 

communicate all detections of marine 

mammals at any distance to the Lead 

PSO, including any determination 

regarding species identification, 

distance, and bearing and the degree of 

confidence in the determination; 

(9) For North Atlantic right whales, 

any visual observation or acoustic 

detection within the PAM monitoring 

zone must trigger a delay to the 

commencement of pile driving. The 

clearance zone may only be declared 

clear if no North Atlantic right whale 

acoustic or visual detections have 

occurred within the clearance zone 

during the 60-minute monitoring 

period. If pile driving has been shut 

down due to the presence of a North 

Atlantic right whale, pile driving may 

not restart until the North Atlantic right 

whale has neither been visually nor 

acoustically detected for 30 minutes; 

(10) 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 

shut down 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) (see 

§ 217.345); 

(11) If pile driving has been shut 

down due to the presence of a marine 

mammal other than a North Atlantic 

right whale, pile driving must not restart 

until either the marine mammal(s) has 

voluntarily left the specific clearance 

zones and has been visually or 

acoustically confirmed beyond that 

clearance zone, or, when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred. The specific time periods are 

15 minutes for small odontocetes and 

pinnipeds and 30 minutes for all other 

marine mammal species. In cases where 

these criteria are not met, pile driving 

may restart only if necessary to maintain 

pile stability at which time LOA Holder 

must use the lowest hammer energy 

practicable to maintain stability; 

(12) LOA Holder must deploy at least 

two functional noise abatement systems 

that reduce noise levels to the modeled 

harassment isopleths, assuming 10-dB 

attenuation, during all impact pile 

driving and comply with the following 

measures: 

(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 for review. For piles 

for which thorough sound field 

verification (SFV) is carried out, this 

report must be submitted as soon as it 

is available but no later than when the 

thorough interim SFV report is 

submitted for the respective pile. 

Performance reports for piles with 

abbreviated SFV must be submitted 

with the weekly pile driving reports. 

Additionally, a full maintenance check 

(e.g., manually clearing holes) must 

occur prior to each pile being installed. 

LOA Holder must develop and 

implement a maintenance plan that 

identifies the frequency of hose 

inspection, flushing, pressure tests, and 

re-drilling and that is designed to 

minimize the potential for sediment 

clogging to affect bubble curtain 

performance. Adjustments to the 

frequency of these maintenance steps 

must be made as necessary to ensure 

optimal performance of the bubble 

curtain system; and 

(vi) Corrections to the bubble ring(s) 

to meet the performance standards in 

paragraph (c)(12) of this section must 

occur prior to impact pile driving of 

monopiles, 3-m (9.8 ft) pin piles, and 

1.8-m (5.9 ft) pin piles. If LOA Holder 

uses a noise mitigation device in 

addition to the bubble curtain, LOA 

Holder must maintain similar quality 

control measures as described in this 

paragraph (c)(11) of this section. 

(13) LOA Holder must implement 

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84720 Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Rules and Regulations 

approved PAM Plan, as described in 

paragraph (c)(18) of this section. The 

PAM system components (i.e., acoustic 

buoys) must not be placed closer than 

1 km (3,280 ft) to the pile being driven 

so that the activities do not mask the 

PAM system. LOA Holder must 

demonstrate and prove the detection 

range of the system they plan to deploy 

while considering potential masking 

from concurrent pile driving and vessel 

noise. The PAM system must be 

designed to detect all marine mammals 

to the maximum extent practicable, 

maximize baleen whale detections, and 

must be capable of detecting North 

Atlantic right whales within the PAM 

monitoring zone; 

(14) LOA Holder must conduct 

thorough SFV measurements during pile 

driving activities associated with the 

installation of, at minimum, the first 

three monopile foundations, the first 

three full jacket foundations (inclusive 

of all pin piles for a specific jacket 

foundation), and the first foundation for 

any foundation scenarios that were 

modeled for the exposure analysis (e.g., 

rated hammer energy, number of strikes, 

representative location) that does not 

fall into one of the previously listed 

categories for each of the three 

construction campaigns. Thorough SFV 

measurements must be conducted as 

follows: 

(i) SFV 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 

(2,460 ft) must be made. At each 

measurement location, there must be a 

near bottom and mid-water column 

hydrophone (measurement systems); 

(ii) The recordings must be 

continuous throughout the duration of 

pile driving for each foundation; 

(iii) The SFV measurement systems 

must have a sensitivity appropriate for 

the expected sound levels from pile 

driving received at the nominal ranges 

throughout the installation of the pile. 

The frequency range of SFV 

measurement systems must cover the 

range of at least 20 hertz (Hz) to 20 

kilohertz (kHz). The SFV measurement 

systems must be designed to have 

omnidirectional sensitivity so that the 

broadband received level of all pile 

driving exceeds the system noise floor 

by at least 10 dB. The dynamic range of 

the SFV measurement system must be 

sufficient such that at each location, the 

signals prevent poor signal-to-noise 

ratios for low amplitude signals and 

avoid clipping, nonlinearity, and 

saturation for high amplitude signals; 

(iv) All hydrophones used in SFV 

measurements systems are required to 

have undergone a full system, traceable 

laboratory calibration conforming to 

International Electrotechnical 

Commission (IEC) 60565, or an 

equivalent standard procedure, from a 

factory or accredited source to ensure 

the hydrophone receives accurate sound 

levels, at a date not to exceed 2 years 

before deployment. Additional in-situ 

calibration checks using a pistonphone 

are required to be performed before and 

after each hydrophone deployment. If 

the measurement system employs filters 

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

already accounted for by the calibration, 

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

frequency response) must be known, 

reported, and the data corrected before 

analysis; 

(v) LOA Holder must be prepared 

with additional equipment 

(hydrophones, recording devices, 

hydrophone calibrators, cables, 

batteries, etc.), which exceeds the 

amount of equipment necessary to 

perform the measurements, such that 

technical issues can be mitigated before 

measurement; and 

(vi) LOA Holder must submit interim 

SFV reports within 48 hours after each 

foundation is measured (see § 217.345(g) 

for interim and final reporting 

requirements). 

(15) For thorough SFV on monopile 

and jacket foundations: 

(i) During thorough SFV, installation 

of the next foundation (of the same 

type/foundation method) may not 

proceed until LOA Holder has reviewed 

the initial results from the thorough SFV 

and determined that there were no 

exceedances of any distances to the 

identified thresholds based on modeling 

assuming 10 dB attenuation. Subsequent 

SFV measurements are also required 

should larger piles be installed or if 

additional monopiles are driven that 

may produce louder sound fields than 

those previously measured (e.g., higher 

hammer energy, greater number of 

strikes, etc.); 

(ii) If any of the thorough SFV 

measurements from any foundation 

(monopile or jacket) indicate that the 

distances to the NMFS’ marine mammal 

Level A harassment or Level B 

harassment thresholds for marine 

mammals (peak or cumulative) are 

greater than the modeled distances 

(assuming 10 dB attenuation), before the 

next foundation is installed, LOA 

Holder must notify NMFS by email 

within 24 hours of reviewing the 

thorough SFV measurements as well as 

identify and propose for review and 

concurrence: additional, modified, and/ 

or alternative noise attenuation 

measures or operational changes that 

present a reasonable likelihood of 

reducing sound levels to the modeled 

distances on subsequent foundations; 

provide a written explanation to NMFS 

Office of Protected Resources 

supporting that determination and 

requesting concurrence to proceed; and, 

following NMFS Office of Protected 

Resource’s concurrence, deploy those 

additional measures or modifications on 

any subsequent foundation of the same 

pile type/installation methodology that 

are installed; 

(iii) LOA Holder must also increase 

the clearance and shutdown zones for 

subsequent piles of the same type (e.g., 

if triggered by SFV results for a 

monopile, for the next monopile) so that 

they are at least the size of the distances 

to those thresholds as indicated by SFV. 

For every 1,500 m that a marine 

mammal clearance or shutdown zone is 

expanded, additional PSOs must be 

deployed from additional platforms/ 

vessels to ensure adequate and complete 

monitoring of the expanded shutdown 

and/or clearance zone. LOA Holder 

must deploy any additional PSOs 

consistent with the approved Marine 

Mammal Monitoring Plan in 

consideration of the size of the new 

zones and the species that must be 

monitored; 

(iv) Following installation of a pile 

with additional, alternative, or modified 

noise attenuation measures or 

operational changes if thorough SFV 

results indicate that sound fields are 

within Level A harassment and B 

harassment thresholds, assuming 10 dB 

attenuation, thorough SFV must be 

conducted on two additional piles of the 

same type/installation method (for a 

total of at least three piles with 

consistent noise attenuation measures). 

If the thorough SFV results from all 

three of those piles are within the 

distances to isopleths of concern 

modeled assuming 10 dB attenuation, 

then LOA Holder must continue to 

implement the approved additional, 

alternative, or modified noise 

attenuation measures/operational 

changes. Use of the expanded clearance 

and shutdown zones must continue for 

additional piles until LOA Holder 

requests and receives concurrence from 

NMFS Office of Protected Resources and 

Greater Atlantic Regional Fisheries 


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Office (GARFO) to revert to the original 

clearance and shutdown zones; 

(v) If, after all practicable measures 

that could be taken to reduce noise 

levels have been successfully 

implemented and exhausted, thorough 

SFV measurements continue to indicate 

that the distances to the marine 

mammal harassment thresholds are 

greater than those modeled assuming 10 

dB attenuation, LOA Holder must 

consult with NMFS Office of Protected 

Resources to evaluate the circumstances 

before additional piles are installed; and 

(vi) If, after additional measurements 

conducted pursuant to requirements of 

paragraph (14)(i) of this section, 

acoustic measurements indicate that 

ranges 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 a modification of 

the clearance and shutdown zones from 

the NMFS Office of Protected Resources. 

For NMFS Office of Protected Resources 

to consider a modification request for 

reduced zone sizes, LOA Holder must 

have conducted SFV measurements on 

an additional three foundations (for 

either/or monopile and jackets) and 

ensure that subsequent foundations 

would be installed under conditions 

that are predicted to produce smaller 

harassment zones than those modeled 

assuming 10 dB of attenuation. 

(16) Abbreviated SFV measurements 

must be conducted on the remaining 

piles for which thorough SFV is not 

conducted. Abbreviated SFV must be 

conducted as follows: 

(i) SFV measurements must be made 

at a single acoustic recorder, consisting 

of a near-bottom and mid-water 

hydrophone, at approximately 750 m 

from the pile being driven, in the 

direction of lowest transmission loss to 

record sounds throughout the duration 

of all pile driving of each foundation. 

Reports of abbreviated SFV monitoring 

must be included in the weekly pile 

driving reports; 

(ii) The abbreviated SFV data 

collected will be used to compare the 

noise levels defined as a result of 

thorough SFV; 

(iii) Abbreviated SFV monitoring 

duration and equipment must comply 

with the conditions specified in 

paragraphs (c)(14)(ii) through (14)(v) of 

this section; 

(iv) LOA Holder must review 

abbreviated SFV results for each pile 

within 24 hours of completion of the 

foundation installation. If measured 

levels at 750 m did not exceed the 

expected levels defined during thorough 

SFV, LOA Holder does not need to take 

any additional action. If measured levels 

from abbreviated SFV for any pile are 

greater than expected levels (as defined 

by thorough SFV), LOA Holder must 

evaluate the available information from 

the pile installation to determine if there 

is an identifiable cause of the greater 

than expected sound levels (i.e., a 

failure of the noise attenuation system), 

identify and implement corrective 

action, and report this information 

(inclusive of an explanation of the 

suspected or identified cause) to NMFS 

Office of Protected Resources and 

Greater Atlantic Regional Fisheries 

Office within 48 hours of completion of 

the installation of the pile, during which 

the greater than expected sound levels 

occurred. If LOA Holder can 

demonstrate that this greater than 

expected sound level was the result of 

a failure of the noise attenuation system 

(e.g., loss of a generator supporting a 

bubble curtain such that one bubble 

curtain failed during pile driving) that 

can be remedied in a way that returns 

the noise attenuation system to prefailure conditions, or if there is another 

satisfactory explanation for the increase 

in sound that is not expected to be 

repeated for subsequent piles, LOA 

Holder can request concurrence from 

NMFS to proceed without thorough SFV 

monitoring that would otherwise be 

required within 72 hours. LOA Holder 

is required to remedy any such failure 

of the noise attenuation system prior to 

carrying out any additional pile driving; 

(v) If results of abbreviated SFV 

monitoring for any pile exceed the 

expected noise levels at 750 m 

established through the initial thorough 

SFV, LOA Holder must resume 

thorough SFV monitoring (as described 

in paragraph (c)(15)(i) of this section) for 

installation of the same foundation type 

and installation method within 72 hours 

after the completion of pile driving with 

an exceedance. LOA Holder can request 

concurrence from NMFS Office of 

Protected Resources and Greater 

Atlantic Regional Fisheries Office to 

resume abbreviated SFV following 

submission of an interim report from 

thorough SFV that demonstrates ranges 

to the Level A harassment and Level B 

harassment thresholds within expected 

values (assuming 10 dB attenuation). 

LOA Holder may automatically resume 

abbreviated SFV monitoring if three 

consecutive thorough SFV reports 

indicate ranges to the Level A 

harassment and Level B harassment 

thresholds are within modeled distances 

(assuming 10 dB attenuation); and 

(vi) If results from any thorough SFV 

monitoring triggered by results from 

abbreviated SFV indicate that ranges to 

the Level A harassment and Level B 

harassment thresholds (assuming 10 dB 

attenuation) are larger than expected 

values, NMFS Office of Protected 

Resources and Greater Atlantic Regional 

Fisheries Office will meet within 3 

business days to discuss the results of 

SFV monitoring, the severity of 

exceedance of distances to identified 

isopleths of concern, the species 

affected, and modeling assumptions, 

and whether the SFV results 

demonstrate the magnitude and degree 

of impacts from the Project are greater 

than those considered in this final 

rulemaking. Implementation of 

additional measures to reduce pile 

driving noise and/or additional 

thorough SFV may also be required. 

(17) LOA Holder must conduct SFV 

measurements during turbine operations 

to estimate turbine operational source 

levels, in accordance with a NMFSapproved SFV Plan. SFV must be 

conducted in the same manner as 

previously described in paragraphs 

(c)(14)(ii) and (iii) of this section, with 

appropriate adjustments to 

measurement distances, number of 

hydrophones, and hydrophone 

sensitivities being made, as necessary. 

(18) 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/entire 

jacket foundation (inclusive of all pin 

piles for a jacket foundation) installation 

sites selected for SFV measurements are 

representative of the rest of the 

monopile and/or jacket foundation 

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; 

(19) LOA Holder must submit a 

Foundation Installation Pile Driving 

Marine Mammal Monitoring Plan to 

NMFS Office of Protected Resources for 

review and approval at least 180 days 

prior to the planned start of pile driving 


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and abide by the Plan if approved. LOA 

Holder must obtain both NMFS Office of 

Protected Resources and NMFS GARFO 

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 

(20) 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 

PAM Plan if approved. The PAM Plan 

must include a description of all 

proposed PAM equipment and 

hardware, the calibration data, 

bandwidth capacity, 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 

(2021). 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 GARFO Protected 

Resources Division. 

(21) In the event of a cetacean live 

stranding (or near-shore atypical 

milling) event within 50 km of the pile 

driving activities, where the NMFS 

Stranding Network is engaged in 

herding or other interventions to return 

animals to the water, NMFS will advise 

of the need to implement shutdown 

procedures for all active pile driving 

activities operating within 50 km of the 

stranding. Shutdown procedures for live 

stranding or milling cetaceans include 

the following: 

(i) If at any time, the marine 

mammal(s) die or are euthanized, or if 

herding/intervention efforts are stopped, 

NMFS will advise that the shutdown 

around the animals’ location is no 

longer needed; 

(ii) Otherwise, shutdown procedures 

will remain in effect until NMFS 

determines and advises that all live 

animals involved have left the area 

(either of their own volition or following 

an intervention); and 

(iii) If further observations of the 

marine mammals indicate the potential 

for re-stranding, additional coordination 

will be required to determine what 

measures are necessary to minimize that 

likelihood (e.g., extending the shutdown 

or moving operations farther away) and 

to implement those measures as 

appropriate. 

(d) HRG surveys. The following 

requirements apply to HRG surveys 

operating sub-bottom profilers (SBP) 

(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 this 

paragraph (d); 

(2) LOA Holder is required to have at 

least one PSO on active duty per HRG 

vessel during HRG surveys that are 

conducted during daylight hours (i.e., 

from 30 minutes prior to civil sunrise 

through 30 minutes following civil 

sunset) and at least two PSOs on active 

duty per vessel during HRG surveys that 

are conducted during nighttime hours; 

(3) SBPs (hereinafter referred to as 

‘‘acoustic sources’’) must be deactivated 

when not acquiring data or preparing to 

acquire data, except as necessary for 

testing. Acoustic sources must be used 

at the lowest practicable source level to 

meet the survey objective, when in use, 

and must be turned off when they are 

not necessary for the survey; 

(4) LOA Holder is required to rampup acoustic sources prior to 

commencing full power, which involves 

initiating source operation at a reduced 

energy level (relative to full operating 

capacity) followed by a waiting period, 

unless the equipment operates on a 

binary on/off switch. LOA Holder is also 

required to ensure visual clearance 

zones are observable (e.g., not obscured 

from observation by darkness, rain, fog, 

etc.) and clear of marine mammals, as 

determined by the Lead PSO, for at least 

30 minutes immediately prior to the 

initiation of survey activities using 

acoustic sources specified in the LOA. 

Ramp-up and activation must be 

delayed if a marine mammal(s) enters its 

respective shutdown zone. Ramp-up 

and activation may only be reinitiated if 

the animal(s) has been observed exiting 

its respective shutdown zone or until 15 

minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

species, has elapsed with no further 

sightings; 

(5) Prior to a ramp-up procedure 

starting or activating acoustic sources, 

the acoustic source operator (operator) 

must notify a designated PSO of the 

planned start of ramp-up as agreed upon 

with the Lead PSO. The notification 

time should not be less than 60 minutes 

prior to the planned ramp-up or 

activation in order to allow the PSOs 

time to monitor the clearance zone(s) for 

30 minutes prior to the initiation of 

ramp-up or activation (pre-start 

clearance). During this 30-minute prestart clearance period, the entire 

applicable clearance zones must be 

visible, except as indicated in paragraph 

(d)(11) of this section; 

(6) Ramp-ups must be scheduled so as 

to minimize the time spent with the 

source activated; 

(7) 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; 

(8) 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; 

(9) If a marine mammal is observed 

within a clearance zone during the 

clearance period, ramp-up or acoustic 

surveys may not begin until the 

animal(s) has been observed voluntarily 

exiting its respective clearance zone or 

until a specific time period has elapsed 

with no further sighting. The specific 

time period is 15 minutes for small 

odontocetes and pinnipeds, and 30 

minutes for all other species; 

(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 may commence (i.e., no 

delay is required) despite periods of 

inclement weather and/or loss of 

daylight. Ramp-up may occur at times of 

poor visibility, including nighttime, if 

effective 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 

may continue (i.e., no shutdown is 

required) so long as no marine mammals 

have been detected. The shutdown 

requirement does not apply to small 

delphinids of the following genera: 


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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 

(d)(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 

to have left the Level B harassment zone 

or until a full 15 minutes (for small 

odontocetes and seals) or 30 minutes 

(for all other marine mammals) have 

elapsed with no further sighting; 

(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 (d)(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. 

(e) Fisheries monitoring surveys. The 

following measures apply to fishery 

monitoring surveys: 

(1) Survey gear must be deployed as 

soon as possible once the vessel arrives 

on station. Gear must not be deployed 

if there is a risk of interaction with 

marine mammals. Gear may be 

deployed after 15 minutes of no marine 

mammal sightings within 1 nautical 

mile (nmi; 1,852 m) of the sampling 

station; 

(2) LOA Holder and its cooperating 

institutions, contracted vessels, or 

commercially hired captains must 

implement the following ‘‘move-on’’ 

rule: If marine mammals are sighted 

within 1 nmi(1,852 m) of the planned 

location and 15 minutes before gear 

deployment, then LOA Holder and its 

cooperating institutions, contracted 

vessels, or commercially hired captains, 

as appropriate, must move the vessel 

away from the marine mammal to a 

different section of the sampling area. If, 

after moving on, marine mammals are 

still visible from the vessel, LOA Holder 

and its cooperating institutions, 

contracted vessels, or commercially 

hired captains must move again or skip 

the station; 

(3) If a marine mammal is at risk of 

interacting with or becoming entangled 

in the gear after the gear is deployed or 

set, all gear must be immediately 

removed from the water. If marine 

mammals are sighted before the gear is 

fully removed from the water, the vessel 

must slow its speed and maneuver the 

vessel away from the animals to 

minimize potential interactions with the 

observed animal; 

(4) LOA Holder must maintain visual 

marine mammal monitoring effort 

during the entire period of time that 

gear is in the water (i.e., throughout gear 

deployment, fishing, and retrieval) as 

well as for 15 minutes prior to 

deploying gear and for 15 minutes after 

haul back; 

(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) All gear must be emptied as close 

to the deck/sorting area and as quickly 

as possible after retrieval; 

(8) 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; 

(9) All in-water survey gear, including 

buoys, must be properly labeled with 

the scientific permit number or 

identification as LOA Holder’s research 

gear. All labels and markings on the 

gear, buoys, and buoy lines must also be 

compliant with the Atlantic Large 

Whale Take Reduction Plan regulations 

at 50 CFR 229.32, and all buoy markings 

must comply with instructions received 

by the GARFO Protected Resources 

Division; 

(10) All survey gear must be removed 

from the water whenever not in active 

survey use (i.e., no wet storage); and 

(11) All reasonable efforts, that do not 

compromise human safety, must be 

undertaken to recover gear. 

§ 217.345 Monitoring and reporting 

requirements. 

(a) PSO and PAM operator 

qualifications. LOA Holder must 

implement the following measures 

applicable to PSOs and PAM operators: 

(1) LOA Holder must use 

independent, NMFS-approved PSOs 

and PAM operators, meaning that the 

PSOs and PAM operators must be 

employed by a third-party observer 

provider, must have no tasks other than 

to conduct observational effort, collect 

data, and communicate with and 

instruct relevant crew with regard to the 

presence of protected species and 

mitigation requirements; 

(2) All PSOs and PAM operators must 

have successfully attained a bachelor’s 

degree with a major in one of the natural 

sciences. The educational requirements 

may be waived if the PSO or PAM 

operator has acquired the relevant skills 

through a suitable amount of alternate 

experience. Requests for such a waiver 

must be submitted to NMFS Office of 

Protected Resources and must include 

written justification containing 

alternative experience. Alternate 

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 

when in-water construction activities 

were conducted, the dates and time 

when in-water construction activities 

were suspended to avoid potential 

incidental take of marine mammals from 

construction noise within a defined 


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shutdown zone, and marine mammal 

behavior; and the ability to 

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

provide real-time information on marine 

mammals observed in the area; 

(4) All PSOs must be trained in 

northwestern Atlantic Ocean marine 

mammal identification and behaviors 

and must be able to conduct field 

observations and collect data according 

to assigned protocols. Additionally, 

PSOs must have the ability to work with 

all required and relevant software and 

equipment necessary during 

observations (as described in paragraphs 

(b)(6) and (8) 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 that must be 

submitted to NMFS. This requirement is 

waived for any PSOs and PAM 

operators that completed a relevant 

training course more than five years 

prior to seeking approval but have been 

working consistently as a PSO or PAM 

operator within the past five years; 

(6) PSOs are responsible for obtaining 

NMFS’ approval. NMFS may approve 

PSOs as conditional or unconditional. A 

conditionally-approved PSO may be one 

who has completed training in the last 

5 years but has not yet attained field 

experience. An unconditionally 

approved PSO is one who has 

completed training within the last 5 

years and attained the necessary 

experience (i.e., demonstrate experience 

with monitoring for marine mammals at 

clearance and shutdown zone sizes 

similar to those produced during the 

respective activity). Lead PSOs must be 

unconditionally approved and have a 

minimum of 90 days in a 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 must be 

paired with an unconditionally 

approved PSO; 

(7) PSOs for HRG surveys may be 

unconditionally or conditionally 

approved. PSOs for foundation 

installation 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, and HRG surveys) 

must be designated as the Lead PSO or 

Lead PAM operator; 

(9) LOA Holder must submit 

previously approved PSOs and PAM 

operators to NMFS Office of Protected 

Resources for review and confirmation 

of their approval for specific roles at 

least 30 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 have completed 

a PAM operator training course and 

demonstrate prior experience using 

PAM software, equipment, and real-time 

acoustic detection systems. They must 

demonstrate that they have prior 

experience independently analyzing 

archived and/or real-time PAM data to 

identify and classify baleen whale and 

other marine mammal vocalizations by 

species, including North Atlantic right 

whale and humpback whale 

vocalizations, and experience with 

deconflicting multiple species’ 

vocalizations that are similar and/or 

received concurrently. PAM operators 

must be independent observers (i.e., not 

construction personnel), trained to use 

relevant project-specific PAM software 

and equipment, and must also be able 

test software and hardware functionality 

prior to beginning real-time monitoring. 

The PAM operator must be able to 

identify and classify marine mammal 

acoustic detections by species in realtime (prioritizing North Atlantic right 

whales and noting other marine 

mammal vocalizations, when detected). 

At a minimum, for each acoustic 

detection, the PAM operator must be 

able to categorically determine whether 

a North Atlantic right whale is detected, 

possibly detected, or not detected, and 

notify the Lead PSO of any confirmed or 

possible detections, including baleen 

whale detections that cannot be 

identified to species. If the PAM 

software is capable of localization of 

sounds or deriving bearings and 

distance, the PAM operator must 

demonstrate experience using this 

technique. A Lead PAM operator must 

meet all of these requirements and have 

a minimum of 90 days in the specified 

role or sufficient alternative experience; 

(12) PSOs may work as PAM 

operators and vice versa, pending 

NMFS-approval; however, they may 

only perform one role at any time and 

must not exceed work time restrictions, 

which must be tallied cumulatively; and 

(13) All PSOs and PAM operators 

must complete a Permits and 

Environmental Compliance Plan 

training and a 2-day refresher session 

that must be held with the PSO provider 

and Project compliance representative(s) 

prior to the start of in-water project 

activities (e.g., HRG survey, foundation 

installation, etc.). 

(b) General PSO and PAM operator 

requirements. The following measures 

apply to PSOs and PAM operators and 

must be implemented by LOA Holder: 

(1) PSOs must monitor for marine 

mammals prior to, during, and 

following impact pile driving 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) PAM operator(s) must acoustically 

monitor for marine mammals prior to, 

during, and following all pile driving 

activities. PAM operators may be 

located on a vessel or remotely on-shore 

but must have the appropriate 

equipment (i.e., computer station 

equipped with a data collection 

software system available wherever they 

are stationed) and be in real-time 

communication with PSOs and 

transiting vessel captains. The PAM 

operator must monitor to and past the 

clearance zone for large whales; 

(3) For foundation installation, 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 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; 

(4) 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. The PAM operator(s) must 

assist PSOs in ensuring full coverage of 

the clearance and shutdown zones; 

(5) All on-duty PSOs must remain in 

real-time contact with the on-duty PAM 

operator(s), PAM operators must 

immediately communicate all acoustic 


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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) 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; 

(6) The PAM operator must inform the 

Lead PSO(s) on duty of animal 

detections approaching or within 

applicable ranges of interest to the 

activity occurring via the data collection 

software system (i.e., Mysticetus or 

similar system) who must be 

responsible for requesting that the 

designated crewmember implement the 

necessary mitigation procedures (i.e., 

delay); 

(7) Any visual observations of marine 

mammals by any project personnel must 

be communicated immediately to onduty PSOs and vessel captains 

associated with other project vessels to 

increase situational awareness; 

(8) PSOs must use high magnification 

(25x) binoculars, standard handheld 

(7x) binoculars, and the naked eye to 

search continuously for marine 

mammals. During foundation 

installation, at least two PSOs on the 

pile driving vessel must be equipped 

with functional Big Eye binoculars (e.g., 

25 × 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. A minimum of three onduty PSOs must be active on a 

dedicated PSO vessel. PAM operators 

must have the appropriate equipment 

(i.e., a computer station equipped with 

a data collection software system 

available wherever they are stationed) in 

accordance with the NMFS-approved 

PAM Plan as described in 

§ 217.344(c)(20); 

(9) 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; 

(10) During periods of low visibility 

(e.g., darkness, rain, fog, poor weather 

conditions, etc.), PSOs must use 

alternative technology (e.g., infrared or 

thermal cameras) to monitor the 

clearance and shutdown zones as 

approved by NMFS; and 

(11) PSOs must remain in real-time 

contact with the PAM operators and 

construction personnel responsible for 

implementing mitigation (e.g., delay to 

pile driving) to ensure communication 

on marine mammal observations can 

easily, quickly, and consistently occur 

between all on-duty PSOs, PAM 

operator(s), and on-water project 

personnel 

(c) PSO and PAM operator 

requirements during WTG, OSS, and 

Met Tower foundation installation. The 

following measures apply to PSOs and 

PAM operators during WTG, OSS, and 

Met tower foundation installation and 

must be implemented by LOA Holder: 

(1) 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 

activities. If PSOs cannot visually 

monitor the minimum visibility zone 

prior to impact pile driving at all times 

using the equipment described in 

paragraphs (b)(6) and (7) of this section, 

pile driving operations 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 and at least three on-duty PSOs 

must be stationed on each dedicated 

PSO vessel. There must be a minimum 

of three PSO observation platforms 

during impact pile driving. 

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 

in accordance with a NMFS-approved 

PAM Plan; and 

(3) LOA Holder must conduct PAM 

for at least 24 hours immediately prior 

to pile driving activities. The PAM 

operator must review all detections from 

the previous 24-hour period 

immediately prior to pile driving 

activities. 

(d) 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) 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 two 

PSOs during nighttime surveying (if it 

occurs); 

(2) 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; 

(3) Any observations of marine 

mammals must be communicated to 

PSOs on all nearby survey vessels 

during concurrent HRG surveys; and 

(4) 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. 

(e) Monitoring requirements during 

fisheries monitoring surveys. The 

following measures apply during 

fisheries monitoring surveys and must 

be implemented by LOA Holder: 

(1) All captains and crew conducting 

fishery surveys must be trained in 

marine mammal detection and 

identification; and 

(2) Marine mammal monitoring must 

be conducted within 1 nmi from the 

planned survey location by the trained 

captain and/or a member of the 

scientific crew for 15 minutes prior to 

deploying gear, throughout gear 

deployment and use, and for 15 minutes 

after haul back. 

(f) 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 


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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., 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 LOAs issued under § 217.346; 

(4) LOA Holder must compile and 

submit weekly reports during 

foundation installation to NMFS Office 

of Protected Resources that document 

the type of pile, pile diameter, daily 

start and stop of all pile driving 

associated with the Project; the start and 

stop of associated observation periods 

by PSOs; hammer log (number of 

strikes, max hammer energy, duration of 

piling), any changes to noise attenuation 

systems and/or hammer schedule, 

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 must also 

include abbreviated SFV results. The 

weekly reports must also confirm that 

the required SFV was carried out for 

each pile and that results were reviewed 

on the required timelines. Weekly 

reports are due on Wednesday for the 

previous week (Sunday to Saturday) and 

must include the information required 

under this section. The weekly report 

must also identify which turbines 

become operational and when (a map 

must be provided). Once all foundation 

pile installation is completed, weekly 

reports are no longer required by LOA 

Holder; 

(5) LOA Holder must compile and 

submit monthly reports to NMFS Office 

of Protected Resources during 

foundation installation that include a 

summary of all information in the 

weekly reports, including project 

activities carried out in the previous 

month, vessel transits (number, type of 

vessel, MMIS number, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

action taken. Monthly reports are due 

on the 15th of the month for the 

previous month. The monthly report 

must also identify which turbines 

become operational and when (a map 

must be provided); 

(6) Full PAM detection data, 

metadata, and location of recorders (or 

GPS tracks, if applicable) must be 

submitted within 90 calendar days 

following completion of impact pile 

driving foundations and every 90 

calendar days for transit lane PAM 

using the International Organization for 

Standardization (ISO) standard 

metadata forms and instructions 

available on the NMFS Passive Acoustic 

Reporting System website (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates. Concurrently, the full 

acoustic recordings from real-time 

systems must also be sent to the 

National Centers for Environmental 

Information (NCEI, https://www.ncei.

noaa.gov/products/passive-acousticdata) for archiving. 

(7) LOA Holder must submit a draft 

annual report to NMFS Office of 

Protected Resources no later than one 

year following date of LOA issuance 

within each given calendar year. LOA 

Holder must provide a final report 

within 30 days following resolution of 

NMFS’ comments on the draft report. 

The draft and final reports must detail 

the following: the total number of 

marine mammals of each species/stock 

detected and how many were within the 

designated Level A harassment and 

Level B harassment zone(s) with 

comparison to authorized take of marine 

mammals for the associated activity 

type; marine mammal detections and 

behavioral observations before, during, 

and after each activity; what mitigation 

measures were implemented (i.e., 

number of shutdowns or clearance zone 

delays, etc.) or, if no mitigative actions 

was taken, why not; operational details 

(i.e., days and duration of impact and 

vibratory pile driving, days, and amount 

of HRG survey effort, etc.); any PAM 

systems used; the results, effectiveness, 

and which noise attenuation systems 

were used during relevant activities 

(i.e., impact pile driving); summarized 

information related to situational 

reporting; and any other important 

information relevant to the Project, 

including additional information that 

may be identified through the adaptive 

management process; 

(8) LOA Holder must submit its draft 

5-year report to NMFS Office of 

Protected Resources on all visual and 

acoustic monitoring conducted within 

90 calendar days of the completion of 

activities occurring under the LOA. At 

a minimum, the draft and final 5-year 

report must include: the total number 

(annually and across all 5 years) of 

marine mammals of each species/stock 

detected and how many were detected 

within the designated Level A 

harassment and Level B harassment 

zone(s) with comparison to authorized 

take of marine mammals for the 

associated activity type; a summary 

table(s) indicating the amount of each 

activity type (e.g., pile installation, 

HRG) completed in each of the 5 years 

and total; GIS shapefile(s) of the final 

location of all piles, cable routes, and 

other permanent structures including an 

indication of what year installed and 

began operating; GIS shapefile of all 

North Atlantic right whale sightings, 

including dates and group sizes; a 5- 

year summary and evaluation of all SFV 

data collected; a 5-year summary and 

evaluation of all PAM data collected; a 

5-year summary and evaluation of 

marine mammal behavioral 

observations; a 5-year summary and 

evaluation of mitigation and monitoring 

implementation and effectiveness; a list 

of recommendations to inform 

environmental compliance assessments 

for future offshore wind actions. 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 


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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; 

(9) For those foundation piles 

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 as soon as they are 

available and prior to a subsequent 

foundation installation, but no later 

than 48 hours after the installation of 

each pile for which thorough SFV is 

carried out. The report must include, at 

minimum: a summary of pile 

installation activities (pile diameter, 

pile weight, pile length, water depth, 

sediment type, total installation time 

[start time, end time], duration of pile 

driving), hammer energies/schedule 

used during pile driving, including, the 

total number of strikes and the 

maximum hammer energy; the modelestimated acoustic ranges (R95%) to 

compare with the real-world sound field 

measurements; peak sound pressure 

level (SPLpk), root-mean-square sound 

pressure level that contains 90 percent 

of the acoustic energy (SPLrms), and 

sound exposure level (SEL, in single 

strike for pile driving, SELss,), for each 

hydrophone, including at least the 

maximum, arithmetic mean, minimum, 

median (L50) and L5 (95 percent 

exceedance) statistics for each metric; 

estimated marine mammal Level A 

harassment and Level B harassment 

isopleths, calculated using the 

maximum-over-depth L5 (95 percent 

exceedance level, maximum of both 

hydrophones) of the associated sound 

metric; comparison of modeled results 

assuming 10-dB attenuation against the 

measured marine mammal Level A 

harassment and Level B harassment 

acoustic isopleths; estimated 

transmission loss coefficients; pile 

identifier name, location of the pile and 

each hydrophone array location 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;. 

All abbreviated SFV reports must 

include the results from the 

hydrophones at 750m and a comparison 

to the expected levels at 750 m based on 

the previously completed thorough SFV 

for comparable pile type and 

installation method.; 

(10) The final results of SFV 

measurements from each foundation 

installation must be submitted as soon 

as possible, but no later than 90 days 

following completion of each event’s 

SFV measurements. The final reports 

must include all details prescribed 

above for the interim report as well as, 

at minimum, the following: the peak 

sound pressure level (SPLpk), the rootmean-square sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), the single strike sound 

exposure level (SELss), the integration 

time for SPLrms, the spectrum, and the 

24-hour cumulative SEL extrapolated 

from measurements at all hydrophones. 

The final report must also include at 

least the maximum, mean, minimum, 

median (L50) and L5 (95 percent 

exceedance) statistics for each metric; 

the SEL and SPL power spectral density 

and/or one-third octave band levels 

(usually calculated as decidecade band 

levels) at the receiver locations should 

be reported; the sound levels reported 

must be in median, arithmetic mean, 

and L5 (95 percent exceedance) (i.e., 

average in linear space), and in dB; 

range of transmission loss coefficients; 

the local environmental conditions, 

such as wind speed, transmission loss 

data collected on-site (or the sound 

velocity profile); baseline pre- and postactivity 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, at the 

recording and foundation installation 

locations; the extents of the measured 

Level A harassment and Level B 

harassment zone(s); hammer energies 

required for pile installation and the 

number of strikes per pile; the 

hydrophone equipment and methods 

(i.e., recording device, bandwidth/ 

sampling rate; distance from the pile 

where recordings were made; the depth 

of recording device(s)); a description of 

the SFV measurement hardware and 

software, including software version 

used, calibration data, bandwidth 

capability and sensitivity of 

hydrophone(s), any filters used in 

hardware or software, any limitations 

with the equipment, and other relevant 

information; the spatial configuration of 

the noise attenuation device(s) relative 

to the pile; a description of the noise 

abatement system and operational 

parameters (e.g., bubble flow rate, 

distance deployed from the pile, etc.), 

and any action taken to adjust the noise 

abatement system. A discussion which 

includes any observations which are 

suspected to have a significant impact 

on the results including but not limited 

to: observed noise mitigation system 

issues, obstructions along the 

measurement transect, and technical 

issues with hydrophones or recording 

devices; 

(11) If at any time during the Project 

LOA Holder becomes aware of any issue 

or issues which may (to any reasonable 

subject-matter expert, including the 

persons performing the measurements 

and analysis) call into question the 

validity of any measured Level A 

harassment or Level B harassment 

isopleths to a significant degree, which 

were previously transmitted or 

communicated to NMFS Office of 

Protected Resources, LOA Holder must 

inform NMFS Office of Protected 

Resources within 1 business day of 

becoming aware of this issue or before 

the next pile is driven, whichever comes 

first; 

(12) Performance reports for each 

bubble curtain deployed must include 

water depth, current speed and 

direction, wind speed and direction, 

bubble curtain deployment/retrieval 

date and time, bubble curtain hose 

length, bubble curtain radius (distance 

from pile), diameter of holes and hole 

spacing, air supply hose length, 

compressor type (including rated cubic 

feet per minute (CFM) and model 

number), number of operational 

compressors, performance data from 

each compressor (including revolutions 

per minute (RPM), pressure, start times, 

and stop times), free air delivery (m3/ 

min), total hose air volume (m3/(min 

m)), schematic of GPS waypoints during 

hose laying, maintenance procedures 

performed (pressure tests, inspections, 

flushing, re-drilling, and any other hose 

or system maintenance) before and after 

installation and the time and date of 

each of these procedures, and the length 

of time the bubble curtain was on the 

seafloor prior to foundation installation. 

Additionally, the report must include 

any important observations regarding 

performance (before, during, and after 

pile installation), such as any observed 

weak areas of low pressure. The report 

may also include any relevant video 


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and/or photographs of the bubble 

curtain(s) operating during pile driving; 

(13) If a North Atlantic right whale is 

acoustically 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/passiveacoustic-reporting-system-templates). 

Calling the hotline is not necessary 

when reporting PAM detections via the 

template; 

(14) 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 pile 

driving has ended and instruments have 

been pulled from the water. Reporting 

must use the webform templates on the 

NMFS Passive Acoustic Reporting 

System website at https://www.fisheries.

noaa.gov/resource/document/passiveacoustic-reporting-system-templates. 

Submit the completed data templates to 

nmfs.nec.pacmdata@noaa.gov. The full 

acoustic recordings from all real-time 

hydrophones must also be sent to the 

National Centers for Environmental 

Information for archiving within 90 

calendar days following completion of 

activities requiring PAM for mitigation. 

Submission details can be found at: 

https://www.ncei.noaa.gov/products/ 

passive-acoustic-data; 

(15) 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 (https://www.whalealert.org). The 

sighting report must include the time, 

date, and location of the sighting, 

number of whales, animal description/ 

certainty of sighting (provide photos/ 

video if taken), Lease Area/project 

name, PSO/personnel name, PSO 

provider company (if applicable), and 

reporter’s contact information; 

(ii) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must submit a 

summary report to GARFO 

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

and NMFS Office of Protected 

Resources, and NMFS Northeast 

Fisheries Science Center (NEFSC; 

ne.rw.survey@noaa.gov) within 24 hours 

with the above information and the 

vessel/platform from which the sighting 

was made, activity the vessel/platform 

was engaged in at time of sighting, 

project construction and/or survey 

activity at the time of the sighting (e.g., 

pile driving, cable installation, HRG 

survey), distance from vessel/platform 

to sighting at time of detection, and any 

mitigation actions taken in response to 

the sighting; 

(iii) If an observation of a large whale 

occurs during vessel transit, LOA 

Holder must report the time, date, and 

location of the sighting; the vessel’s 

activity, heading, and speed (knots); 

Beaufort sea state, water depth (meters), 

and visibility conditions; marine 

mammal species identification to the 

best of the observer’s ability and any 

distinguishing characteristics; initial 

distance and bearing to marine mammal 

from vessel and closest point of 

approach; and any avoidance measures 

taken in response to the marine 

mammal sighting; 

(iv) 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), 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 

Fisheries 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; 

(v) 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. 


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Federal Register / Vol. 89, No. 205 / Wednesday, October 23, 2024 / Rules and Regulations 84729 

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 

(16) LOA Holder must report any lost 

gear associated with the fishery surveys 

to the NOAA 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. 

§ 217.346 Letter of Authorization. 

(a) To incidentally take marine 

mammals pursuant to this subpart, LOA 

Holder must apply for and obtain an 

LOA; 

(b) The LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed December 31, 2029, 

the expiration date of this subpart; 

(c) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by the 

LOA, LOA Holder must apply for and 

obtain a modification of the LOA as 

described in § 217.347; 

(d) The LOA must set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(e) Issuance of the LOA must be based 

on a determination that the level of 

taking must be consistent with the 

findings made for the total taking 

allowable under the regulations of this 

subpart; and 

(f) Notice of issuance or denial of the 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.347 Modifications of Letter of 

Authorization. 

(a) The LOA issued under §§ 217.342 

and 217.346 or this section for the 

activity identified in § 217.340 shall be 

modified upon request by LOA Holder, 

provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for this 

subpart (excluding changes made 

pursuant to the adaptive management 

provision in paragraph (c)(1) of this 

section); and 

(2) NMFS Office of Protected 

Resources determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under this subpart were implemented. 

(b) For a LOA modification request by 

the applicant that includes changes to 

the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section), the LOA shall be 

modified, provided that: 

(1) NMFS Office of Protected 

Resources determines that the changes 

to the activity or the mitigation, 

monitoring, or reporting do not change 

the findings made for the regulations in 

this subpart and do not result in more 

than a minor change in the total 

estimated number of takes (or 

distribution by species or years); and 

(2) NMFS Office of Protected 

Resources may, if appropriate, publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) The LOA issued under §§ 217.342 

and 217.346 or this section for the 

activities identified in § 217.340 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 the LOA Holder 

regarding the practicability of the 

modifications), if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring; 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in the LOA include, but are 

not limited to: 

(A) Results from LOA Holder’s 

monitoring; 

(B) Results from other marine 

mammals and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

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 §§ 217.342 and 

217.346 or this section, the 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. 

§§ 217.348–217.349 [Reserved] 

[FR Doc. 2024–22601 Filed 10–22–24; 8:45 am] 

BILLING CODE 3510–22–P 


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