Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore of New Jersey

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230901-0209]

RIN 0648-BL36

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore of New Jersey

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Ocean Wind, LLC (Ocean Wind), a subsidiary wholly owned by Orsted Wind Power North America, LLC (Orsted), construction of the Ocean Wind 1 Offshore Wind Energy Project (hereafter known as the “Project”) in Federal and State waters off of New Jersey, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0498 (Lease Area) and along two export cable routes to sea-to-shore transition points (collectively referred to as the “Project Area”), over the course of 5 years (October 13, 2023 through October 12, 2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.

DATES:

This rulemaking and issued LOA are effective from October 13, 2023 through October 12, 2028.

FOR FURTHER INFORMATION CONTACT:

Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Ocean Wind's Incidental Take Authorization (ITA) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

In case of problems accessing these documents, please call the contact listed above (see

FOR FURTHER INFORMATION CONTACT

).

Purpose and Need for Regulatory Action

This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361

et seq.

) for NMFS to authorize the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Ocean Wind to incidentally take individuals of 17 species of marine mammals, comprising 18 stocks (10 stocks by Level A harassment and Level B harassment and 8 stocks by Level B harassment only), incidental to Ocean Wind's 5 years of construction activities. No mortality or serious injury was requested nor is it anticipated or authorized in this final rulemaking.

Legal Authority for the Final Action

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361

et seq.

) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). If such findings are made, NMFS must prescribe the permissible methods of taking; “other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the monitoring and reporting of such takings.

As noted above, no serious injury or mortality is anticipated or authorized in this final rule. Relevant definitions of MMPA statutory and regulatory terms are included below:

•

U.S. Citizens

—individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103);

•

Take

—to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.3);

•

Incidental harassment, incidental taking, and incidental, but not intentional, taking

—an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental (see 50 CFR 216.103);

•

Serious Injury

—any injury that will likely result in mortality (50 CFR 216.3);

•

Level A harassment

—any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and

•

Level B harassment

—any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).

Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated LOA(s). This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Ocean Wind's construction activities.

Summary of Major Provisions Within the Final Rule

The major provisions of this final rule are:

• The authorized take of marine mammals by Level A harassment and/or Level B harassment;

• No authorized take of marine mammals by mortality or serious injury;

• The establishment of a seasonal moratorium on impact pile driving of foundation piles during the months of the highest presence of North Atlantic right whales (

Eubalaena glacialis

) in the Lease Area (December 1-April 30,

annually), unless prior approval from NMFS for pile driving in December;

• The establishment of a seasonal moratorium on unexploded ordnance or munitions and explosives of concern (UXOs/MECs) detonations from November 1-April 30, annually;

• A requirement for UXO/MEC detonations to only occur during hours of daylight and not during hours of darkness;

• A requirement for both visual and passive acoustic monitoring to occur by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM; where required) operators before, during, and after select activities;

• A requirement for training for all Ocean Wind personnel to ensure marine mammal protocols and procedures are understood;

• The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment;

• A requirement to use sound attenuation device(s) during all foundation impact pile driving installation activities and UXO/MEC detonations to reduce noise levels to those modeled assuming 10 decibels (dB);

• A delay to the start of foundation installation and UXO/MEC detonations if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within certain distances;

• A delay to the start of foundation installation and UXO/MEC detonations if other marine mammals are observed entering or within their respective clearance zones;

• A requirement to shut down impact pile driving (if feasible) if a North Atlantic right whale is observed or if any other marine mammals are observed entering their respective shut down zones;

• A requirement to implement sound field verification during impact pile driving of foundation piles and during UXO/MEC detonations to measure

in-situ

noise levels for comparison against the modeled results;

• A requirement to implement soft-starts during impact pile driving using the least amount of hammer energy necessary for installation;

• A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;

• A requirement for PSOs to continue to monitor for 30 minutes after any impact pile driving for foundation installation and after any UXO/MEC detonations;

• A requirement for the increased awareness of North Atlantic right whale presence through monitoring of the appropriate networks and Channel 16, as well as reporting any sightings to the sighting network;

• A requirement to implement various vessel strike avoidance measures;

• A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and

• A requirement for frequently scheduled and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results.

NMFS must withdraw or suspend an LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375).

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

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

Ocean Wind's project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the project can be found at

https://www.permits.performance.gov/permitting-projects/ocean-wind-project.

Summary of Request

On October 21, 2021, Ocean Wind submitted a request for the promulgation of regulations and issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project in the Project Area. The request was for the incidental, but not intentional, taking of a small number of 17 marine mammal species (comprising 18 stocks) by Level B harassment (all 18 stocks) and by Level A harassment (10 species or stocks). Ocean Wind did not request and NMFS neither expects nor authorizes incidental take by serious injury or mortality.

In response to our questions and comments and following extensive information exchange between Ocean Wind and NMFS, Ocean Wind submitted a final revised application on February 8, 2022. NMFS deemed it adequate and complete on February 11, 2022. This final application is available on NMFS' website at

https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

On March 7, 2022, NMFS published a notice of receipt (NOR) of Ocean Wind's adequate and complete application in the

Federal Register

(87 FR 12666), requesting public comments and information on Ocean Wind's request during a 30-day public comment period. During the NOR public comment period, NMFS received comment letters from two environmental non-governmental organizations (ENGOs): Clean Ocean Action (COA) and the Natural Resource Defense Council (NRDC) on behalf of several other ENGOs.

On October 26, 2022, NMFS published a proposed rule in the

Federal Register

for the Ocean Wind 1 Project (87 FR 64868). In the proposed rule, NMFS synthesized all of the information provided by Ocean Wind, all best available scientific information and literature relevant to the proposed project, outlined, in detail, proposed mitigation designed to effect the least practicable adverse impacts on marine mammal species and stocks as well as proposed monitoring and reporting measures, and made preliminary negligible impact and small numbers determinations. The public comment period on the proposed rule was open for 45 days on

Regulations.gov

starting on October 26, 2022 and closed after December 10, 2022. Specific details on the public comments received during this 45-day period are described in the Comments and Responses section.

NMFS has previously issued three Incidental Harassment Authorizations (IHAs) to Ocean Wind for related work regarding high resolution site characterization surveys (82 FR 31562, July 7, 2017; 86 FR 26465, May 14, 2021; 87 FR 29289, May 13, 2022). To

date, Ocean Wind has complied with all the requirements (

e.g.,

mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section. These monitoring reports can be found on NMFS' website:

https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921, August 1, 2022) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (UME). Should a final vessel speed rule be issued and become effective during the effective period of these regulations (or any other MMPA incidental take authorization), the authorization holder will be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders will be required to comply with the requirements of the vessel speed rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization will remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule will become effective immediately upon the effective date of any final vessel speed rule, and when notice is published on the effective date, NMFS will also notify Ocean Wind if the measures in the speed rule were to supersede any of the measures in the MMPA authorization such that they were no longer required.

Description of the Specified Activities

Overview

Ocean Wind plans to construct and operate the Project, a 1,100-megawatt (MW) offshore wind farm, in the Project Area. The Project will allow the State of New Jersey to meet its renewable energy goals under the New Jersey Offshore Wind Economic Development Act. The Project will consist of several different types of permanent offshore infrastructure, including wind turbine generators (WTGs;

e.g.,

the GE Haliade-X 12 MW) and associated foundations, offshore substations (OSS), offshore substation array cables, offshore export cables, and substation interconnector cables. Overall, Ocean Wind will conduct the following specified activities: install 98 WTGs and 3 OSS on monopile foundations via impact pile driving; install and subsequently remove cofferdams and goal posts to assist in the installation of the export cable route by vibratory pile driving; several types of fishery and ecological monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines; HRG vessel-based site characterization surveys using active acoustic sources with frequencies of less than 180 kilohertz (kHz); the detonation of up to ten UXOs/MECs of different charge weights, as necessary; transit within the Project Area and between ports and the Lease Area to transport crew, supplies, and materials to support pile installation via vessels; and WTG operation. All offshore cables will connect to onshore export cables, substations, and grid connections, which will be located in Ocean County, New Jersey and Cape May County, New Jersey. Marine mammals exposed to elevated noise levels during impact and vibratory pile driving, detonations of UXOs/MECs, and/or site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity.

A detailed description of the Project is provided in the proposed rule as published in the

Federal Register

(87 FR 64868, October 26, 2022). Since the proposed rule was published, Ocean Wind has modified the project start and end dates, changing them from August 2023 to July 2028 to a new effective period of October 13, 2023 to October 12, 2028. Ocean Wind has also modified its vibratory pile driving activity from vibratory pile driving of seven temporary cofferdams to vibratory pile driving of four temporary cofferdams (Barnegat Bay landfall locations) and three temporary goal posts (two at Island Beach State Park, one at BL England). This modification neither changes the nature of the specified activity (

i.e.,

vibratory pile driving), not the potential impacts to marine mammals associated with the specified activity. As described in the Estimated Take section below, this modification reduces the number of takes anticipated from vibratory pile driving. Ocean Wind has not modified any other activity from what was previously described in the proposed rule. We hereby incorporate the updated Project description, as provided by Ocean Wind, by reference; therefore, a more detailed description is not provided here. Please refer to the proposed rule and Ocean Wind's supporting information (

e.g.,

application, memos) for more information on the description of the specified activities.

Dates and Duration

Ocean Wind anticipates its specified activities to occur throughout all 5 years of the final rule, beginning on October 13, 2023 and continuing through October 12, 2028. Ocean Wind anticipates the following construction schedule over the 5-year period (Table 1). Ocean Wind has noted that these are the best and conservative estimates for activity durations but that the schedule may shift due to weather, mechanical, or other related delays. Additional information on dates and activity-specific durations can be found in the proposed rule and are not repeated here.

Table 1—Construction Schedule

Activity

Estimated

schedule

a

HRG Surveys

Q3 2023-Q2 2028.

UXO/MEC Detonation

Q4 2023-Q3 2028.

Landfall Cable Installation

Q4 2023-Q4 2024.

Offshore Export Cable Installation

Q2 2024-Q1 2025.

Offshore Foundation Installation (WTG and OSS)

Q2 2024-Q4 2024.

Inter-array Cable Installation

Q3 2024-Q2 2025.

WTG and OSS Installation and Commissioning

Q3 2024-Q1 2026.

Fishery Monitoring Surveys

Q2 2022-Q4 2027.

Note:

“Q1, Q2, Q3, and Q4” each refer to a quarter of the year, starting in January and comprising 3 months each. Therefore, Q1 represents January through March, Q2 represents April through June, Q3 represents July through September, and Q4 represents October through December.

a

We acknowledge that the schedule may need to shift, given unforeseeable circumstances (

e.g.,

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

Specific Geographic Region

A detailed description of the Specific Geographic Region is provided in the proposed rule as published in the

Federal Register

(87 FR 64868, October 26, 2022). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, Ocean Wind's specified activities (

i.e.,

impact pile driving of WTGs and OSS monopile foundations; vibratory pile driving (installation and removal) of temporary cofferdams and goal posts; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable route and inter-array cables; HRG site characterization surveys; UXOs/MECs detonation; and WTG operation) are concentrated in the Project Area. A couple of Ocean Wind's specified activities (

i.e.,

fishery and ecological monitoring surveys and transport vessels) will occur in the Mid-Atlantic Bight.

BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

Comments and Responses

A notice of proposed rulemaking was published in the

Federal Register

on October 26, 2022 (87 FR 64868) and a 15-day extension to the public comment period was published on November 25, 2022 (87 FR 72447). The proposed

rulemaking described, in detail, Ocean Wind's specified activities, the specific geographic region of the specified activities, the marine mammal species that may be affected by those activities, and the anticipated effects on marine mammals. In the proposed rule, we requested that interested persons submit relevant information, suggestions, and comments on Ocean Wind's request for the promulgation of regulations and issuance of an associated LOA described therein, our estimated take analyses, the preliminary determinations, and the proposed regulations. In total, the proposed rule was available for a 45-day public comment period.

In total, NMFS received 20 comment submissions, including 14 comments from private individuals. Some of these comments were out-of-scope or not applicable to this specific action (

e.g.,

general support/opposition to the Project itself; concerns for other species outside of NMFS' jurisdiction (

i.e.,

birds); maintenance of the permanent structures; Internal Revenue Service tax filing information), and are not described herein or discussed further. Four comment letters were from ENGOs, including one from COA, one from Oceana, Inc. (Oceana), and two from the NRDC, of which one was a comment letter with an attachment and the other was a request to extend the comment period an additional 15 days (hence, the extension published in the

Federal Register

on November 25, 2022 (87 FR 72447)). We also received one comment letter from a governmental organization, the Marine Mammal Commission (Commission), and one comment letter from a public organization, the Conservation Law Foundation (CLF). These five letters (excluding the NRDC request for a 15-day comment period extension on the proposed regulations) contained substantive information that NMFS considered in its estimated take analysis, final determinations, and final regulations. These comments are described below, along with NMFS' responses. All substantive comments and letters are available on NMFS' website:

https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Please review the corresponding public comment link for full details regarding the comments and letters.

Modeling and Take Estimates

Comment 1:

The Commission recommended that, until JASCO Applied Sciences' (hereafter, “JASCO”) model has been validated with

in-situ

measurements from the impact installation of monopiles and pin piles in the northwest Atlantic, NMFS should require Ocean Wind and thus JASCO to re-estimate the various Level A harassment and Level B harassment zones for the final rule using source levels that are at a minimum 3 dB greater than those currently used.

Response:

The Commission has expressed concerns about the lack of validation of JASCO's models in previous Commission letters for Orsted's other wind projects. JASCO has compared their source model predictions to an empirical model prediction by the Institute of Technical and Applied Physics (ITAP). The empirical model is based on a large data set of pile driving sounds measured at 750 m from the source collected during installation of large-diameter piles (up to 8 m) during wind farm installation in the North Sea (Bellmann, 2020). As no noise measurements exist for tapered 8/11-m monopile at this time (yet to be installed offshore), the ITAP prediction facilitates a way of validating the source levels of the numerical finite difference (FD) model. The ITAP data are averaged across different scenarios; pile sizes are grouped, which includes different hammers, water depths, depths of penetration, and environmental conditions; and the 95th percentile level is reported, whereas the aim of JASCO's modeling is to estimate the median value. While the ITAP forecast and the FD source predictions were comparable (see Appendix I of the Ocean Wind 1 Underwater Acoustic and Exposure Modeling report (Küsel

et al.,

2022)), there is variance in the underlying ITAP data and there are parametric choices for the FD model in the different environments, so an exact match is not expected. As part of the comparison, it was found that different (but reasonable) parametric input choices in the FD modeling can result in output differences on the order of the variance in the ITAP data so it was concluded that the FD modeling approach performed as well as can be discernible given the available data. While adding 3 dB to the JASCO predictions at 750 m may bring JASCO's source predictions into line with the finite-element (FE) predictions for the portmanteau combining computation, comparison, and pile (COMPILE) scenario but it is not clear that this would be more accurate. This approach assumes that the FE models are correct but Lippert

et al.

(2016) also state “a drawback of (the FE) approach is that it simulates the energy loss due to friction in an indirect and rather nonphysical way.” The Commission also suggested that NMFS could have used damped cylindrical spreading model (DCSM; Lippert

et al.,

2018) and the source levels provided by TDFD PDSM; however, for reasons described herein, NMFS has determined JASCO's model results are reliable and achievable.

Recent measurements taken during the Coastal Virginia Offshore Wind (CVOW) Pilot Project reported the range to the marine mammal Level B threshold (160 dB re 1μPa) from the 7.8-m pile installed with a double big bubble curtain to be 3,891 m (12,765.75 ft) when using a hammer operating at a maximum of 550 kJ (WaterProof, 2020). JASCO's model prediction for 11-m piles using a 4,000 kJ hammer is 4,684 m (15,367.45 ft). The Commission states that, based on the CVOW reported sound levels, JASCO's modeled predicted range should be more than double instead of only an approximate 20 percent increase because Ocean Wind's hammer has up to approximately five times more energy (550 kJ vs 4,000 kJ). NMFS disagrees. The 3,891-m distance to the Level B harassment threshold measured during the CVOW Pilot Project cited by the Commission was obtained based on the maximum measured sound pressure level (RMS SPL), which is not an ideal statistic to base estimates of Level B harassment isopleths, as it is not representative of average operating conditions and represents one hammer strike. Further, small differences in the propagation environment could account for the ranges being more comparable than expected. Importantly, as described below, NMFS is also now in receipt of measurements from the South Fork project which indicate JASCO's predicted distance to the Level B harassment threshold is realistic and attainable. Based on the expected variance between the Ocean Wind 1 and CVOW projects and measurement data from South Fork (see below), it cannot be concluded that the CVOW measured results (using the maximum RMS SPL reported) indicate that JASCO's 4,684 m modeled distance to Level B harassment threshold should be increased.

Importantly, since the proposed rule phase, NMFS has received interim sound field verification reports from the South Fork Wind project, which used JASCO's modeling. In all but one case, and out of six 7-8/9.5-m tapered piles installed, the measured distances to NMFS' Level B harassment threshold were lower than JASCO's model predicted. The distance to NMFS Level B harassment threshold was modeled as 4,684 m while

in-situ

measurements identified distances, excluding the one aforementioned pile, ranging from 1.84 kilometers (km) to 3.25 km. JASCO's modeling predicts the distances to the

Level B harassment threshold installation of Ocean Wind 1 monopiles will be approximately 3.3 km in summer, which aligns with the South Fork Wind results. South Fork Wind determined that the one pile generating noise levels above those predicted (the first pile) did so due to a malfunctioning noise attenuation system which was quickly rectified and deployed appropriately on all future piles. Further, in this final rule, we are requiring Ocean Wind's measured sound levels do not exceed those modeled, assuming 10 dB, for at least three consecutively measured monopiles. Based on all these reasons, NMFS is not requiring Ocean Wind to remodel the harassment zone sizes by adding 3 dB to the source levels and is, instead, carrying forward the modeling results as presented in the proposed rule.

Of note, NMFS has also received interim sound field reports from Vineyard Wind. However, some of the assumptions used in the modeling (

e.g.,

maximum hammer energy) do not align with the construction parameters Vineyard Wind is currently using in the field, so comparisons between the modeled and measured results are not as directly applicable and, therefore, are less useful in judging predicted alignment between modeled and measured zones.

Based on this discussion and given our consideration of the available SFV reports from other projects, we disagree with the suggestions made by the Commission. NMFS has incorporated the best available scientific information into this final rule, using recent measurements as well as estimates obtained through JASCO's modeling.

Comment 2:

The Commission suggested that JASCO should consider revising its exposure modeling to include single-day simulations for stationary, discrete sound sources and numerous Monte Carlo simulations (

e.g.,

at least 30) for modeling reports for future rules.

Response:

JASCO typically uses 7-day simulations to get a representative sample of the installation process (

e.g.,

impact piling every day or every other day). From those 7-day simulations, several 24-hour windows within the 7-day simulations are used to find the average exposure expected in a 24-hour period that includes impact pile driving. The average 24-hour estimates are then scaled by the number of days of impact pile driving. The use of the 7-day simulation allows for a robust probability calculation. The Commission recommends that, instead, JASCO run 30 single-day simulations to generate an average daily exposure. While NMFS makes recommendations, as appropriate, regarding the inputs, assumptions, and methods used by applicants to model and estimate marine mammal take, there is no single correct overall methodology. The Commission does not provide any information to support an assertion that the method used by JASCO is not appropriate or sufficient, and NMFS supports the use of this methodology.

Furthermore, it is unclear what the Commission means by “stationary, discrete sound sources.” If the sources referred to are the monopiles or pin piles, then JASCO's modeling approach does use a Monte Carlo approach for sampling the expected sound fields. With the typical modeling density of 0.5 simulated animals (animats)/km

2

, there are usually tens of thousands of animats meaning there are tens of thousands of Monte Carlo samples. If the suggestion is to run the simulations (with tens of thousands of animats) 30 times, that is equivalent to increasing the modeling density by 30. Previous work, such as the work done by Houser (2006), has indicated that such high modeling densities are not necessary. Please refer to NMFS' related response to Comment 5.

Comment 3:

Citing the dire situation of North Atlantic right whales, a commenter stated that NMFS should clearly describe in the regulations or LOA for wind projects that the activities cannot result in any Level A harassment, serious injury, or mortality of North Atlantic right whales.

Response:

The proposed rule clearly states that no take of North Atlantic right whale by Level A harassment, mortality, or serious injury was requested or proposed for authorization (see the Estimated Take and Negligible Impact Analysis and Determination sections in the proposed rule), and those statements are also included in this final rule. In this final rule, for example, Tables 33 and 34 shows that only Level B harassment is authorized for North Atlantic right whales, and the North Atlantic right whale sub-section in the Negligible Impact Analysis and Determination section also states that no take of North Atlantic right whale by Level A harassment, mortality, or serious injury is anticipated or authorized and any take that is authorized is limited to Level B harassment only.

Comment 4:

The Commission recommended that NMFS authorize Level A harassment takes for group size for minke whales and both bottlenose dolphin stocks from UXO/MEC detonations in the final rule.

Response:

We agree that there is some small potential for these smaller species to be exposed to noise levels that may cause PTS. Therefore, in this final rule, NMFS has conservatively authorized additional takes by Level A harassment of both bottlenose dolphins stocks and minke whales from UXO/MEC detonation. Using Ocean Wind's group size information. NMFS has increased the amount of take by Level A harassment from UXO/MEC detonations from 0 in the proposed rule to 11 for each stock of bottlenose dolphins, and from 0 in the proposed rule to 2 for minke whales.

Comment 5:

The Commission recommends that NMFS: (1) require Ocean Wind to revise its take estimates for impact installation of monopiles and pin piles based on an animat density that is greater than any species specific, real-world density and the possibility that only a single monopile is installed per day rather than two per day, and (2) increase the takes by Level A harassment of humpback whales to mean group size for OSS impact installation.

Response:

The Commission cites two of the assumptions in the take estimate methodology that could push the take estimate in the direction of less than the maximum expected takes. However, there are multiple other assumptions in the take estimate methodology that consider conditions that would result in the maximum possible takes, or even an overestimate of possible takes. When all of these assumptions are considered together, NMFS expects the take estimate model and methodology to produce the maximum take that is expected to occur incidental to the specified activities.

While Ocean Wind has acknowledged that it may not install two piles every day, it has indicated it is capable of installing up to two piles per day with the goal to complete installation as quickly as possible. Hence, to assume only one monopile per day every day would not be consistent with what Ocean Wind, a company with offshore wind farm installation experience, has indicated is possible or is planned. The exposure estimates contained within the proposed rule are a product of modeling that assumes two piles are driven per day. There are several conservative assumptions that offset the potential to underestimate take should Ocean Wind not be able to install two piles per day every day, including, but not limited to, all piles are installed during 30 days of the highest density month and 19 days (38 piles) of the second-highest density month for each species from May to December. This is conservative because

pile driving every day within a given month is not possible due to historical weather patterns and potential technical issues that may be encountered and the highest density of every species does not occur in the same month. It is more likely that pile driving will occur over several months which have lower marine mammals species density. Additionally, for some species, group size or PSO data adjustments were made that increased the number of takes authorized compared to the modeled exposure estimates. Furthermore, the exposure estimates modeled and number of takes authorized do not consider natural avoidance of marine mammals to noise levels that could elicit PTS or the use of mitigation such as shutdown or clearance zones, which are designed to effect the least practicable adverse impact on marine mammals, including North Atlantic right whales (

e.g.,

pile driving may not commence and must shut down if a North Atlantic right whale is observed at any distance). Finally, while Ocean Wind may use monopiles for OSS foundations, NMFS has used the pin pile take estimates in the total take authorized. The exposure estimates for pin piles is greater for all species than the exposures estimated for monopiles installation.

Regarding density seeding, the Commission asserts that when a model's density seeding is lower than the real-world density and, as here, 7-day simulations are used (as opposed to using 1-day simulations that are run 30-50 times, as is the case in other models), there is a chance that the model could miss consideration of a rarer event, resulting in a lower than maximum take estimate. As noted by the Commission, for common bottlenose dolphins, the real-world density (0.51) is higher than the density seeded (0.50) in the model. The use of the 0.5 animats/km

2

for all species is to robustly sample (with tens of thousands of animats) the expected sound fields, providing statistically reliable results. Typically the real-world density is much lower than this modeled density and the number of real-world individual animals is found by scaling the number of animats exceeding a threshold by the ratio: real-world density/modeled density. That, rarely, the real-world density may exceed the modeled density, in this case 0.51 versus 0.50 animats/km

2

, does not change the process or the statistical reliability of the results. While the Commission's assertion that, if this were the only factor considered, the fact that the actual density is higher than the seeded density could result in a lesser likelihood that the model would capture circumstances representing a rare event that might result in higher take may be true—in this case, the degree of difference is a real-world density of 0.51 versus a seeded density of 0.50. Additionally, as described above, there are numerous other conservative assumptions in the model such that, when considered together, support NMFS assessment that the number of takes authorized represents the maximum number of takes expected to occur incidental to the specified activities.

For these reasons, NMFS disagrees with the Commission's assessment that the take is underestimated and believes that the Commission's suggestion to double the number of takes authorized as a simplistic solution to their perceived issue would unnecessarily overestimate take. Please see NMFS related response to Comment 2.

NMFS agrees with the Commission's recommendation to increase the amount of Level A harassment of humpback whales to a group size during OSS foundation installation given the more frequent sightings of the species recently off of New Jersey. Based on the 2021-2022 monitoring report the Commission referenced, we have increased the amount of take by Level B harassment of humpback whales to 46 for OSS foundation installation. However, we emphasize that the majority of humpback whale sightings described by the Commission occurred in winter and this rulemaking includes a prohibition on foundation installation January 1 through April 30 (as impact pile driving may only occur in December with prior NMFS approval). All other foundation installation take estimates follow the approach as described in the proposed rule.

Comment 6:

The Commission recommended that NMFS increase the Level B harassment takes for common dolphins and Atlantic white-sided dolphins incidental to cable landfall construction to a mean group size.

Response:

Despite the nearshore location of cable landfall construction, vibratory installation and removal versus the more offshore distribution of these species, as well the short duration of vibratory pile driving, which suggests take of these species is very low, NMFS has accepted the Commission's recommendation as a conservative approach. The final rule includes 30 takes by Level B harassment of common dolphins and 12 takes by Level B harassment of Atlantic white-sided dolphins from cable landfall activities, based on group size information from AMAPPS.

Comment 7:

The Commission recommended that NMFS determine if the Department of the Navy's (2017) group size estimates are more appropriate or reflective of the expected group size estimates for the Project than those used in the proposed rule. If so, the Commission suggests the take numbers be amended in the final rule for all Ocean Wind's activities.

Response:

We appreciate the suggestion by the Commission to review the Department of the Navy's (2017) group size estimates to see if they are more applicable for the Project. Based on our review, we disagree that the Navy's group size estimates are the most applicable in this case. First, the Navy only provides group size estimates for odontocetes, which means we would still need to find applicable estimates for non-odontocete species found in the Atlantic Ocean. Second, the group sizes provided by Ocean Wind used information by Toth

et al.

(2011) for coastal bottlenose dolphins; Kenny and Vigness-Raposa (2010) for sei whales, minke whales, Atlantic spotted dolphins, and pilot whale

spp.;

CeTAP (1982) for humpback whales; and Barkaszi and Kelly (2019) for sperm whales and Risso's dolphin, which are derived from data gathered specifically in the mid- and north-Atlantic, where the Project will occur, whereas the group sizes in the Department of the Navy's (2017) report are based on data collected more broadly across the entire East Coast of the United States and Canada, including the Gulf of Mexico, Sargasso Sea, Labrador Sea, and Labrador Basin. Any additional takes that NMFS has opted to authorize, per recommendations by the Commission, is based on either the group size literature already provided by Ocean Wind (

e.g.,

from Toth

et al.,

2011 for corrections to bottlenose dolphins) or based on group size information from AMAPPS, which derived data for its annual reports from specific transects undertaken in specific regions (New Jersey through Maine, per Figure 1-1 in the 2021 Annual Report,

https://repository.library.noaa.gov/view/noaa/41734

). Furthermore, AMAPPS uses more recent information, as demonstrated in the 2010-2021 annual reports found on NMFS' web page (

https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected

). The Department of the Navy's (2017) group sizes are based on data from 1990 through 2013 (see Table 3-1 in the report). Lastly, based on monitoring reports received from PSOs in the field (and found on NMFS' website:

https://

www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable#expired-authorizations

), the group sizes observed align more with estimates found in Kraus

et al.

(2016) and AMAPPS (Palka

et al.,

2017). For these reasons, the group sizes proposed by Ocean Wind, any adjustments using AMAPPS data, and any group sizes used in the proposed and final rules are based on the best available scientific information.

Comment 8:

The Commission recommended that NMFS include in the final rule Level B harassment takes of the coastal stock of bottlenose dolphins during impact installation of monopiles and pin piles, if any pile will be installed in 20 m of water or less or if any Level B harassment zone extends into 20 m or less of water.

Response:

Based on the recommendation by the Commission, JASCO has seeded the coastal bottlenose dolphin stock only in shallow water (defined here as any area less than 20-m water depth). In consultation with Ocean Wind, NMFS has reallocated a conservative 10 percent of the offshore bottlenose dolphin Level B harassment take request to the coastal stock, which revises the authorized take from impact pile driving of permanent foundations to 842 takes by Level B harassment for the offshore stock and 94 takes by Level B harassment for the coastal stock.

We note that no take by Level A harassment of this coastal bottlenose dolphin stock has been authorized as, based on Figure 1 of the Underwater Acoustic and Exposure Modeling Report, all project foundations in the Lease Area will be installed beyond the 20-m isobath. The largest 10-dB attenuation exposure range for the project is approximately 3.5 km. The distance between the shallowest foundation position and shallow water is about this distance or less; thus, it is unlikely that the coastal stock would approach the piles during impact pile driving for the duration necessary to experience Level A harassment.

Comment 9:

The Commission disagreed that non-auditory injury and mortality during UXO/MEC detonations are considered

de minimis.

It stated that although non-auditory injury and mortality could be unlikely, these outcomes are not de minimis because these assumptions were based off Bellmann

et al.

(2020) and Bellmann (2021) and their reports of bubble curtain effectiveness, which are based on information obtained from mitigating UXO/MECs in European waters using a big bubble curtain. The Commission further stated that these results from Bellmann are only potentially possible if the single or double bubble curtain was optimized for the environmental conditions and that these results are specific to European charges, which may not be representative of charges in the United States as charges in Europe have been degrading in the water for approximately 75 years, which compromises the integrity of the trinitrotoluene (TNT)-equivalent material. Additionally, the charge weights described in Bellmann (2021) are much smaller than those described for the Project (

i.e.,

100 grams (g), 5 kilograms (kg), and 10 kg, compared to 454 kg). The Commission also added that the shockwave from the UXO/MEC detonations may displace or disrupt the bubble curtains due to the speed the shockwave travels (

i.e.,

supersonic). Because of these reasons, the Commission recommended that NMFS re-estimate the distances to threshold and the mitigation and monitoring zones for mortality, Level A harassment, and Level B harassment based on 0-dB of sound attenuation.

The Commission also stated that it does not make sense to say that behavioral harassment will not result from exposure to single detonations of UXO. The Commission also recommended that NMFS re-estimate the number of takes from UXO/MEC detonation while increasing to the relevant group sizes, when necessary. Finally, the Commission recommended that because of the reasons already explained regarding attenuating UXO/MEC detonations, NMFS should require that Ocean Wind utilize a double big bubble curtain (DBBC) during all detonations and that NMFS not allow Ocean Wind to detonate UXOs/MECs when currents are moving faster than 2 knots (kn).

Response:

NMFS appreciates the Commission's recognition that European waters offer a different environment than the Atlantic Ocean, and then the conditions and size of explosives potentially encountered in the Ocean Wind project area. Bellmann (2021) summarized findings from Bellmann

et al.

(2021) that showed use of a single big bubble curtain during UXO/MEC detonation reduced noise levels by 11 dB for broadband sound exposure levels and up to 18 dB for peak sound pressure (L

pk

). While NMFS agrees with the Commission's comment that BBCs attenuate high-frequency (HF) sound (<1 kHz) more efficiently than low-frequency (LF) sound (Bellmann

et al.,

2020) that corresponds to most of the UXO/MEC energy, the broadband attenuation is expected to be similar, if the bubble curtain radius is large enough to avoid nearfield effects of the explosive detonations. While it is true that theoretical explosive spectra are flat at low frequencies and decay at high-frequencies, there remains significant energy at frequencies at which bubble curtains have been shown to be effective (Bellmann

et al.,

2020). A recent study of UXO/MEC detonations in the North Sea (Robinson

et al.,

2022) showed that measured spectra at 5.1 km had the majority of its energy between 32 and 250 Hz, in this range, the insertion loss data from Bellman (2021) has a minimum attenuation of approximately 16.8 dB in the 50-hertz (Hz) band, and is greater than 20 dB for all other bands. Further, Verfuss

et al.

(2019) summarize the effectiveness of bubble curtains on UXO/MEC detonations beyond those sizes considered in Bellman

et al.

(2021) which, while variable, provide support for the 10-dB broadband assumption when bubble curtains are deployed correctly (

i.e.,

with a sufficiently large diameter, to suppress the flow of displaced water). Therefore, the choice of 10 dB as a broadband attenuation for UXO/MEC detonations in our analysis is expected to be appropriate.

In addressing the Commission's additional comments regarding mitigating pile driving and UXO/MEC detonations and the efficacy, the physical principles of inserting an impedance change between the source and farther receivers is the same whether the source is an explosive or a pile. It is important, however, that the bubble curtain be placed outside of the region where the explosive causes nonlinear changes in the medium. While we do agree that “the deployment” and the “efficacy” are not synonymous terms, there will be a deployed bubble curtain on each of the piles driven for the project so an understanding of bubble curtain deployment strategies, maintenance, and use will be understood by the operations team. As above, the mechanism of sound attenuation, while frequency dependent, does not change for the source as long as the bubble curtain is deployed at distance where the acoustics is linear. For UXOs/MECs, the distances to thresholds for different sized charges likely to be encountered were calculated by JASCO assuming the sources were full strength and not degraded due to time. While the Commission has also accurately stated that the bubble curtain could be displaced due to the supersonic shockwave produced by the detonation event, we acknowledge that this would require the bubble curtain to be placed

in the area outside of the non-linear zone.

NMFS is requiring Ocean Wind to meet the noise levels modeled assuming 10-dB attenuation, which must be verified by SFV, and, as recommended by the Commission, is requiring Ocean Wind deploy a double big bubble curtain during all UXO/MEC detonations. Further, we are requiring that the bubble curtain be placed at a distance such that the nozzle hose remains undamaged. Given the best available science suggests 10-dB attenuation is achievable, the additional information provided above by JASCO, the requirement to meet the noise levels modeled assuming 10 dB, and the requirement to use a double big bubble curtain, as well as the extensive monitoring requirements associated with the clearance requirements (including aerial surveys if the clearance zone is greater than 5 km), NMFS has not adjusted any distances to thresholds or take estimates assuming no noise attenuation. At this time, NMFS is not requiring UXO/MEC detonation be limited to times when current speed is 2 kn or less but, as described above, is requiring Ocean Wind to meet the noise levels modeled. Should SFV identify that noise levels are not being met, NMFS will consider the current conditions during detonation and determine if such a measure is necessary to meet the noise levels modeled assuming 10-dB attenuation. Nonetheless, regarding the Commission's comment about use of the term “

de minimis

” to describe the likelihood of non-auditory injury or mortality, we concur that “unlikely” is a better descriptor and have changed it in the text where appropriate.

Regarding the Commission's comments regarding behavioral disturbance resulting from single detonations from UXO/MEC, NMFS agrees there is potential for behavioral disturbance from a single detonation per day and this impact is accounted for with the Level B harassment takes authorized from UXO/MEC detonations. NMFS acknowledges the possibility that single underwater detonations can cause a behavioral response. The current take estimate framework allows for the consideration of animals exhibiting behavioral disturbance during single explosions as they are counted as “taken by Level B harassment” if they are exposed above the temporary threshold shift (TTS) threshold, which is 5-dB higher than the explosive behavioral harassment threshold. The behavior threshold for underwater detonations of 5 dB less than the TTS thresholds for each functional hearing group that the Commission identifies in its comment is only applicable to multiple detonations per day. We acknowledge in our analysis that individuals exposed above the TTS threshold may also be harassed by behavioral disruption and those potential impacts are considered in the negligible impact determination. NMFS is not aware of evidence to support the assertion that animals will have behavioral responses that would qualify as take to temporally and spatially isolated explosions at received levels below the TTS threshold. However, if any such responses were to occur, they would be expected to be few and to result from exposure to the somewhat higher received levels bounded by the TTS thresholds and would thereby be accounted for in the take estimates. The derivation of the explosive injury criteria is provided in the 2017 technical report titled “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III).”

In the proposed rule, we did inadvertently include UXO/MEC detonations as an example impulsive source in one location when referencing the 160-dB Level B harassment threshold, which has been removed in this final rule. We have also clarified that given Ocean Wind would be limited to detonating one UXO/MEC per day, the TTS thresholds provided in Table 5 are used to estimate the potential for Level B (behavioral) harassment. In both the proposed rule and this final rule, NMFS applied the TTS threshold to determine the received level at which Level B harassment (which includes both behavioral responses and TTS) may occur. Hence, no adjustments to take estimates is necessary.

Mitigation

Comment 10:

Commenters recommended that NMFS require Ocean Wind to implement the best commercially available combined NAS technology to achieve the greatest level of noise reduction and attenuation possible for pile driving. A commenter recommended that NMFS require, at a minimum, a 10-dB reduction in SEL, but other commenters recommended that NMFS require a minimum of 15-dB or greater reductions, citing to successes described in Bellman

et al.

(2020 and 2022) and recommended “state-of-the art” methods using a combination of two NAS systems simultaneously. A commenter further stated that NMFS should require field measurements to be taken throughout the construction process, including on the first pile installed, to ensure compliance with noise reduction requirements. A commenter also suggested that NMFS require Ocean Wind to use HRG acoustic sources at the lowest practicable source levels needed to meet the objectives of the site characterization surveys.

Response:

NMFS agrees with the suggestion made by the commenters that underwater noise levels should be reduced to the greatest degree practicable to reduce impacts on marine mammals. As described in both the proposed and final rule, NMFS has included requirements for sound noise attenuation methods that successfully (as evidenced by required sound field verification measurements) reduce real-world noise levels produced from impact pile driving of foundation installation to, at a minimum, the levels provided by JASCO modeled for 10-dB reduction, as analyzed in the proposed rule. Preliminary sound measurements from South Fork Wind, also an Orsted project, indicate that with multiple NAS systems, measured sound levels during impact driving foundation piles using a 4,000 kJ hammer are below those modeled assuming a 10-dB reduction and suggest, in fact, that two systems may sometimes be necessary to reach the targeted 10-dB reductions. While NMFS is requiring that Ocean Wind reduce sound levels to match the model outputs analyzed (assuming a reduction of 10 dB), we are not requiring greater reduction as it is currently unclear (based on measurements to date) whether greater reductions are consistently practicable for these activities, even if multiple NAS systems are used.

In response to the recommendation by the commenters for NMFS to confirm that a 10-dB reduction is achieved, NMFS clarifies that, because no unattenuated piles would be driven, there is no way to confirm a 10-dB reduction; rather,

in-situ

SFV measurements will be required to confirm that sound levels are at or below those modeled assuming a 10-dB reduction.

Regarding the recommendation that Ocean Wind should utilize its HRG acoustic sources at the lowest practicable source level to meet the survey objective, NMFS agrees with this suggestion and has incorporated this requirement into the final rule.

Comment 11:

To minimize the risk of vessel strikes for all whales, and especially in recognition of the imperiled state of North Atlantic right whales, commenters recommended that NMFS require a mandatory 10-kn speed restriction for all project vessels (including PSO survey vessels) at all times, except for reasons of safety, and

in all places except in limited circumstances where the best available scientific information demonstrates that whales do not occur in the area. Other commenters made the same recommendation but suggested no exceptions. Alternatively, some suggested that project proponents could work with NMFS to develop an “Adaptive Plan” that modifies vessel speed restrictions if the monitoring methods are proven to be effective when vessels are traveling 10 kn or less. Commenters stated that this Adaptive Plan must follow a scientific study design. A commenter suggested that if the Adaptive Plan is scientifically proven to be equally or more effective than a 10-kn speed restriction, that the Adaptive Plan could be used as an alternative to the 10-kn speed restriction.

Response:

NMFS agrees with the commenters that vessel strikes pose a risk to North Atlantic right whales (and all large whales broadly). Based on the density information provided by Roberts

et al.

(2023), most large whale species are less frequently found within the project area during the months when foundation installation, which requires the use of multiple vessels, would occur (

i.e.,

May through November, and December, if approved by NMFS). Specifically in the New Jersey region, there is no ESA critical habitat or areas wherein large whales are expected to congregate or remain in the area for extended periods of time (

e.g.,

no foraging biologically important areas (BIAs) are located within the project area; thereby, decreasing the time over which they are available to interact with vessels). Furthermore, while we do acknowledge that there is no time of year when North Atlantic right whales are not found within the Project area at all, NMFS, as described in the proposed rule and included in this final rule, is requiring Ocean Wind to reduce speeds to 10 kn or less in several circumstances when North Atlantic right whales are known to be present or more likely to be in the area, which include, but are not limited to, all Slow Zones (Dynamic Management Area or acoustic Slow Zone), from November 1-April 30 in the specified geographical region, and if a North Atlantic right whale is detected visually or acoustically in the project area. Additionally, aside from any requirements of this rule, Ocean Wind is required to comply with all spatial and temporal speed restrictions outlined in applicable regulations. Altogether, these speed requirements align with the commenter's recommendation.

The required mitigation measures, all of which were included in the proposed rule and are now required in the final rule, can be found in § 217.264(b) of the regulatory text. These contain speed restriction requirements, vessel actions in the event mothers and calves/pods approach the vessel (

e.g.,

shifting into neutral,

etc.

), separation distances for specific species, and actions to take in the event marine mammal(s) are sighted, among other requirements. For the final rule, NMFS has also included a requirement that all vessels be equipped with automatic identification system (AIS) to facilitate compliance checks with the speed limit requirements. Per the proposed rule, on July 19, 2023, Ocean Wind submitted a draft Vessel Strike Avoidance Plan to NMFS for review and approval. At least 180 days prior to when the Project would seek to travel above 10 knots and deploy PAM buoys (anticipated in spring 2024), Ocean Wind must submit a PAM plan to NMFS for review and approval. Without an approved PAM Plan for the transit corridor in place, Ocean Wind would not be able to travel over 10 kn.

While NMFS acknowledges that vessel strikes can result in injury or mortality of marine mammals, we have analyzed the potential for vessel strike resulting from Ocean Wind's activity and have determined that based on the required mitigation measures specific to vessel strike avoidance included in the final rule and issued LOA, which are designed to effect the least practicable adverse impact on marine mammals, the potential for vessel strike is so low as to be discountable and no vessel strikes are expected or authorized.

Additionally, based on this information, we have determined no blanket 10-kn vessel-speed restriction is necessary.

Comment 12:

Commenters recommended that NMFS should prohibit pile driving during periods of highest risk for North Atlantic right whales, which they defined as times of the highest relative density of animals during foraging and migration, and times where cow-calf pairs, pregnant females, surface active groups (that are foraging or socializing), or aggregations of three or more whales, are not expected to be present. Citing multiple information sources, commenters further specifically recommended the seasonal restriction for pile driving be expanded to November 1 through April 30 to reflect the period of highest detections of vocal activity, sightings, and abundance estimates of North Atlantic right whales. Commenters recommended prohibiting pile driving during seasons when protected species are known to be present or migrating in the Project area, in addition to any dynamic restrictions due to the presence of North Atlantic right whale or other endangered species. Also, for UXO/MEC detonations, a commenter implied that the seasonal restrictions from January 1 through April 30, annually, are not enough to protect North Atlantic right whales but did not recommend specific times of year when pile driving and UXO/MEC detonation should not occur.

Response:

NMFS has restricted foundation installation pile driving from January through April, which represent the times of year when North Atlantic right whales are most likely to be in the project area. We recognize that the density of whales begins to elevate in December; however, it is not until January when density greatly increases. Ocean Wind has indicated that to complete the project, pile driving in December may be required. In this final rule, NMFS has included an additional measure wherein pile driving in December must be avoided to the maximum extent practicable but may occur if necessary, provided NMFS prior approval. In any time of year when foundation installation is occurring, a sighting or acoustic detection of a North Atlantic right whale at any distance triggers a pile driving delay or shutdown. We also reiterate that Ocean Wind is required to implement a minimum visibility zone in December (2,500 m) as compared to other project months (1,650 m), reflecting the results of JASCO's underwater sound propagation modeling. With the application of these enhanced mitigation and monitoring measures in December, impacts to the North Atlantic right whale will be further reduced, if any are encountered when transiting through the Migratory Corridor.

Regarding further restrictions on pile driving in the month of November, as noted in the comments and supporting information, and acknowledged by NMFS in both the proposed and final rules, North Atlantic right whale distribution is changing due to climate change and other factors, and they are present year round in the vicinity of the project, with some detections of mothers with calves or feeding behaviors in the vicinity of the project. However, as shown in Roberts

et al.

(2023), which NMFS considers the best available scientific information regarding marine mammal densities in the Atlantic Ocean, it is not until January that densities begin to significantly increase. Further, North Atlantic right whales are not likely to be engaged in feeding behaviors in the project area, from May to November or otherwise, as the project area is primarily a migratory corridor for North Atlantic right whales and, while

some opportunistic foraging may occur, the waters off of New Jersey do not include known foraging habitat for North Atlantic right whales. As described in the Marine Mammal section, foraging habitat is located in colder, more northern waters including southern New England, the Gulf and Maine, and Canada. For these reasons, and given the inclusion of December in the seasonal impact pile driving restriction, except with NMFS prior approval, NMFS finds that further expansion of the seasonal impact pile driving restrictions (beyond December-April) is unwarranted.

Inasmuch as comments may be suggesting that NMFS prohibit pile driving when any protected species are present, it would not be practicable to implement, as there is no time of year when some species of marine mammals are not present.

Regarding a commenter's assertion that the January to April pile driving and UXO/MEC detonation moratorium is insufficient, the commenter did not propose a different time period or moratorium for NMFS to evaluate and consider for this final rule. In the proposed rule, we acknowledged that Ocean Wind had committed to not detonating UXOs/MECs from November 1 through April 30, annually, to reduce impacts to the North Atlantic right whale, and we have carried that requirement forward here in the final rule.

Comment 13:

A commenter recommended that, for site assessment surveys, NMFS: (1) increase the size of the clearance and shutdown zones for site assessment surveys to 500 m for all large whales and 1,000 m for North Atlantic right whales, respectively; (2) require a 1,000-m acoustic clearance zone (

i.e.,

necessitating the use of PAM for HRG surveys); and (3) require that any unidentified large whale within 1,000 m of the vessel be considered a North Atlantic right whale.

Response:

As described in the proposed and final rules, the required 500-m Shutdown Zone for North Atlantic right whales exceeds the modeled distance to the largest 160-dB Level B harassment isopleth (141 m during sparker use) by a large margin, minimizing the likelihood that they will be harassed in any manner by this activity. For other ESA-listed species (

e.g.,

fin and sei whales), the NMFS Greater Atlantic Regional Fisheries Office (GARFO) 2021 Offshore Wind Site Assessment Survey Programmatic ESA consultation (see

https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic

) determined that a 100-m shutdown zone is sufficient to minimize exposure to noise that could be disturbing. Accordingly, NMFS has adopted this shutdown zone size for all baleen whale species, other than the North Atlantic right whale. Commenters do not provide additional scientific information for NMFS to consider to support their recommendation to expand the Shutdown Zone. Given that these surveys are relatively low impact and that NMFS has prescribed a precautionary North Atlantic right whale Shutdown Zone that is larger (500 m) than the largest estimated harassment zone (141 m), NMFS has determined that an increase in the size of the Shutdown Zone during HRG surveys is not warranted.

Regarding the use of acoustic monitoring to implement the shutdown zones, NMFS does not consider acoustic monitoring an effective tool for use with HRG surveys for the reasons discussed below and therefore has not required it in this final rule. As described in the Mitigation section, NMFS has determined that the prescribed mitigation requirements are sufficient to effect the least practicable adverse impact on all affected species or stocks.

The commenters do not provide additional scientific information for NMFS to consider to support their recommendation to require PAM during site assessment surveys. NMFS disagrees that this measure is warranted because it is not expected to be effective for use in detecting the species of concern. It is generally accepted that, even in the absence of additional acoustic sources, using a towed passive acoustic sensor to detect baleen whales (including North Atlantic right whales) is not typically effective because the noise from the vessel, the flow noise, and the cable noise are in the same frequency band and will mask the vast majority of baleen whale calls. Vessels produce low-frequency noise, primarily through propeller cavitation, with main energy in the 5-300 Hz frequency range. Source levels range from about 140 to 195 decibel (dB) re 1 μPa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship type, load, and speed, and ship hull and propeller design. Studies of vessel noise show that it appears to increase background noise levels in the 71-224 Hz range by 10-13 dB (Hatch

et al.,

2012; McKenna

et al.,

2012; Rolland

et al.,

2012). PAM systems employ hydrophones towed in streamer cables approximately 500 m behind a vessel. Noise from water flow around the cables and from strumming of the cables themselves is also low frequency and typically masks signals in the same range. Experienced PAM operators (Thode

et al.,

2017) emphasized that a PAM operation could easily report no acoustic encounters, depending on species present, simply because background noise levels rendered any acoustic detection impossible. The same report stated that a typical eight-element array towed 500 m behind a vessel could be expected to detect delphinids, sperm whales, and beaked whales at the required range, but not baleen whales, due to expected background noise levels (including seismic noise, vessel noise, and flow noise).

Further, there are several additional reasons why we disagree that use of PAM is warranted for HRG surveys, specifically. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances (

e.g.,

foundation installation), its utility in further reducing impacts during HRG survey activities is limited. First, for this activity, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 141 m); this reflects the fact that the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low. Together, these factors support the limited value of PAM for use in reducing take for activities/sources with smaller zones. Also, PAM is only capable of detecting animals that are actively vocalizing, while many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially have reduced impacts). Additionally, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult.

Given that the effects to marine mammals from the types of HRG surveys authorized in this final rulemaking are expected to be limited to low level behavioral harassment even in the absence of mitigation, the limited additional benefit anticipated by adding this detection method (especially for North Atlantic right whales and other low frequency cetaceans, species for which PAM has limited efficacy during this activity), and the cost and impracticability of implementing a full-

time PAM program, we have determined the current requirements for visual monitoring are sufficient to ensure the least practicable adverse impact on the affected species or stocks and their habitat during HRG surveys.

Comment 14:

Commenters recommended that NMFS require pile-driving clearance and shutdown zones for large whales (other than North Atlantic right whale) that are large enough to avoid all take by Level A harassment and minimizes Level B harassment to the most practicable extent.

Response:

The commenters do not provide additional scientific information for NMFS to consider to support their recommendation to expand clearance and shutdown zones to effect the least practicable adverse impact on marine mammals, particularly large whales, excluding the North Atlantic right whale. The required clearance zone for large whales (other than North Atlantic right whale) equates to the largest modeled distance to the largest Level A harassment threshold, plus 20 percent, for the low frequency hearing group, assuming 10 dB of sound attenuation. The shutdown zone represents the largest distance to the cumulative sound exposure level (SEL

cum

) for the Level A harassment isopleth. Both of these zones are typically rounded up for PSO clarity. These requirements minimize Level B harassment and avoid almost all Level A harassment of large whales (note that for all but minke whales (n=22), all other species of large whales have 6 or fewer takes by Level A harassment across all 5 years of the rule). Further enlargement of these zones could interrupt and delay the project such that a substantially higher number of days would be needed to complete the construction activities, which would incur additional costs, but importantly also potentially increase the number of days that marine mammals are exposed to the disturbance. Accordingly, NMFS has determined that enlargement of these zones is not warranted, and that the existing required clearance and shutdown zones support a suite of measures that will effect the least practicable adverse impact on other large whales.

Comment 15:

Commenters recommended that NMFS require clearance and shutdown zones for North Atlantic right whales specifically, including: (1) a minimum of 5,000 m for the visual clearance, acoustic clearance, and shutdown zones in all directions from the driven pile location; and (2) an acoustic shutdown zone that would extend at least 2,000 m in all directions from the driven pile location.

Response:

The Commenters do not provide additional scientific information for NMFS to consider to support their recommendation to expand clearance and shutdown zones for impact pile driving to effect the least practicable adverse impact on North Atlantic right whales. The proposed rule and this final rule require impact pile driving to be delayed or shutdown if a North Atlantic right whale is visually or acoustically detected at any distance. Given NMFS neither anticipates nor authorizes any take by Level A harassment of North Atlantic right whales, NMFS believes that these measures will effect the least practicable adverse impact on the species. Delaying the project due to overly enlarged zone sizes would result in longer construction time frames, prolonging the time periods over which marine mammals may be exposed to construction-related stressors. Accordingly, NMFS has determined that enlargement of these zones is not warranted, and that the existing required clearance and shutdown zones support a suite of measures that will effect the least practicable adverse impact on North Atlantic right whales and other affected species.

Comment 16:

For all large whale species, commenters recommended that NMFS require real-time PAM during impact pile driving to monitor the acoustic clearance and acoustic shutdown zones, and must assume a detection range of at least 10 km. They stated that this monitoring must be undertaken from a vessel other than the pile driving vessel or from a stationary unit to avoid masking of the hydrophone from the pile driving vessel or other development-related noise.

Response:

As described in the proposed rule, NMFS is requiring the use of PAM to monitor 10-km zones around the piles, and that the systems be capable of detecting marine mammals during pile driving within this zone. However, NMFS acknowledges that this could be made clearer and has modified Table 36 to clearly describe this 10 km PAM monitoring zone. Ocean Wind is required to submit a PAM Plan to NMFS for approval at least 180 days prior to the planned impact pile driving start date. NMFS will not approve a Plan where hydrophones used for PAM would be deployed from the pile driving vessel as this would result in hydrophones inside the bubble curtains, which would clearly be ineffective for monitoring; therefore, there is no need to explicitly state in this rule that this would not be allowed. Further, Ocean Wind may launch PAM drones from shore; hence, NMFS is not requiring that Ocean Wind deploy any monitoring systems from a vessel.

Comment 17:

Comments recommended that NMFS: (1) require all offshore personnel to be trained to identify North Atlantic right whales and other large whales, and (2) that all vessels maintain a 500-m separation distance from North Atlantic right whale, 100 m for other large whale species while also maintaining a vigilant watch for North Atlantic right whale and other large whale species. Commenter(s) also recommended that NMFS require vessels to slow down or maneuver their vessels appropriately to avoid a potential interaction with a North Atlantic right whale and other large whale species. Commenter(s) also suggested that NMFS require that vessels maintain a separation distance from North Atlantic right whales.

Response:

NMFS notes that these requirements were included in the proposed rule (87 FR 64868, October 26, 2022) and are carried forward into this final rule.

Comment 18:

Commenters recommended that NMFS implement diel restrictions for site assessment and characterization activities within 1.5 hours of civil sunset and in low-visibility conditions when the visual clearance zone and shutdown zone (referred to as the “exclusion zone” in Appendix A) cannot be visually monitored by the Lead PSO.

Response:

NMFS acknowledges the limitations inherent in visual detection of marine mammals at night. The proposed rule and this final rule requires that visual PSOs use alternative technology (

i.e.,

infrared or thermal cameras) during periods of low visibility to monitor the clearance and shutdown zones. We note that no Level A harassment is expected to result from exposure to HRG equipment, even in the absence of mitigation, given the characteristics of the sources planned for use (supported by the very small estimated Level A harassment zones;

i.e.,

<36.5 m (119.8 feet (ft)) for all sources). Regarding Level B harassment, any potential impacts are limited to short-term behavioral responses. Given these factors combined with other mitigation measures, NMFS has determined that more restrictive mitigation requirements are not warranted.

Restricting surveys in the manner suggested by the commenters may reduce marine mammal exposures by some degree at night if, in fact, detectability is less at night and animals

do approach within the small harassment zone, but would not result in any significant reduction in either intensity or duration of noise exposure over the course of the surveys. In fact, the restrictions recommended by the commenters could result in the surveys spending increased total time (number of days) on the water introducing noise into the marine environment, which may result in greater overall impacts to marine mammals; thus, the commenters have not demonstrated that such a requirement would result in a net benefit. Furthermore, restricting the ability of the applicant to begin operations only during daylight hours, which could result in the applicant failing to collect the data they have determined is necessary within the specific timeframe and, subsequently, may necessitate the need to conduct additional surveys in the future across additional days. This would result in significantly increased costs incurred by the applicant. Thus, the restriction suggested by the commenters would not be practicable for the applicant to implement. In consideration of the likely effects of the activity on marine mammals absent mitigation, potential unintended consequences of the measures as proposed by the commenters, and practicability of the recommended measures for the applicant, NMFS has determined that restricting operations as recommended is not warranted or practicable in this case.

Comment 19:

Commenter recommended that NMFS prohibit site assessment and site characterization activities during times of highest North Atlantic right whale risk (foraging and migration, and times when mother-calf pairs, pregnant females, surface active groups, or aggregations of three or more whales, which is indicative of feeding or social behavior), using the best available science to define high-risk timeframes.

Response:

NMFS neither anticipates, nor authorizes, take of North Atlantic right whales by Level A harassment from this activity. Furthermore, NMFS expects that the required Vessel Strike Avoidance and HRG mitigation measures will affect the least practicable adverse impact on the species from this activity. While NMFS is authorizing three total takes of three North Atlantic right whales by Level B harassment from HRG surveys over the 5-year effective period of this rulemaking, the required mitigation measures will affect the least practicable adverse impact on North Atlantic right whales. Specifically, the largest modeled Level B harassment zone size for the sparker (141 m) is already much smaller than the required separation, clearance, and shutdown distances for North Atlantic right whale (500 m) and any unidentified large whale that would be treated as if it were a North Atlantic right whale. Any Level B harassment that is not avoided is not expected to impact feeding or other behaviors in a manner that poses energetic or reproductive risks for any individuals. Given the minimal anticipated impacts of the HRG survey, NMFS disagrees that additional mitigation measures are warranted.

Comment 20:

A commenter suggested that all acoustic and visual monitoring must begin at least 60 minutes prior to the start of or re-start of pile driving and must be conducted throughout the entire duration of the pile-driving event. They also suggested that visual monitoring must continue for 30 minutes after pile driving has ceased.

Response:

NMFS notes that the commenter's recommended mitigation measures were included in the proposed rule and carried forward in this final rule. The proposed rule also included a requirement that Ocean Wind review PAM data at least 24 hours immediately prior to pile driving for situational awareness, which has also been included in this final rule. NMFS notes that if monitoring continues throughout any pauses in pile driving after it commences, monitoring would not have to occur for 60 minutes; however, the clearance zones measures regarding not starting pile driving until the zones are clear would become applicable.

Comment 21:

Commenters recommended that NMFS should restrict pile driving at night and during periods of low visibility to protect all large whale species. This would include no pile driving being allowed to begin after 1.5 hours before civil sunset or during times where the visual clearance zone and shutdown zone (called the “exclusion zone” in the Appendix) cannot be visually monitored, as determined by the Lead PSO.

If nighttime pile driving is to be allowed, the commenters recommended that NMFS require that pile driving be initiated no later than 1.5 hours prior to civil sunset at the latest, rather than 1.5 hours after civil sunset as stated in the proposed rule, in order to maximize monitoring activities during hours of optimal visibility/daylight. Impact pile driving started at least 1.5 hours prior to civil sunset during good visibility conditions can then continue after dark, as necessary providing the best available infrared technologies are used to support visual monitoring of the clearance and exclusion zones during periods of darkness (see Attachment 1).

A commenter did caveat this recommendation by stating that NMFS should only allow pile driving to continue after dark if the activity began during daylight hours and must continue for human safety or due to installation feasibility (

i.e.,

instability or pile refusal) but only if required nighttime monitoring protocols are followed.

A commenter suggested that if pile driving must continue after dark due to safety reasons, Ocean Wind should be required to notify NMFS with these reasons and an explanation for exemption. Additionally, a commenter stated that a summary of the frequency of these exceptions must be made publicly available to ensure that these are indeed exceptions, rather than the norm, for the project.

Response:

NMFS recognizes the need to protect marine mammals that may be exposed to pile-driving noise, as well as the challenges of detecting marine mammals in low-light conditions. However, we note that while it may be more difficult to detect marine mammals at night, there are benefits to completing the pile driving in a shorter total amount of time, and exposing marine mammals to fewer days of pile-driving noise. On July 19, 2023, Ocean Wind submitted to NMFS a final Nighttime Pile Driving Plan. This plan includes use of multiple Electro-Optical/Infra-Red (E.O./IR) cameras with cooled sensors and 32-channel hydrophone arrays to conduct PAM for marine mammal detection at night which will maximize marine mammal detection during nighttime pile driving. With the implementation of this plan, Ocean Wind may conduct pile driving at night from June 1 through October 31, annually, as this is the period, based on the Roberts

et al.

(2023) data, where North Atlantic right whale densities are the lowest. We note that Ocean Wind will not be performing nighttime pile driving for every pile, nor even every day as pile driving will not occur every day. Further, some piles will be finished before hours of darkness and some piles may necessitate completion after dark due to safety and/or stability concerns. NMFS will continue to review reports submitted by Ocean Wind and will maintain the provision to implement adaptive management, if needed. Given the requirements of the nighttime plan, which increase the likelihood of detection and the effective implementation of the required mitigation, NMFS has determined that allowing nighttime pile driving in the identified months is appropriate. For those months when nighttime pile driving is not allowed, the requirement

has been corrected to indicate that initiation of pile driving must begin 1.5 hours prior to (not after) civil sunset, as we agree with the commenter and that was the intention in the proposed rule.

Regarding a commenter's suggestion for additional and specific reporting in the event that piles must be finished after dark due to safety and/or stability concerns, we do not agree that this measure would be either beneficial or necessary. This is a blanket provision necessary for the safety of the crew and vessels and do not see what benefit tracking this available provision would be. As described in the rule, Ocean Wind only intends to install a maximum of 2 piles per day, but may only install 1 pile on many days. Because of the limited duration of pile driving predicted, we do not expect that Ocean Wind finishing pile driving after civil sunset would be a common occurrence, necessitating the need for additional restrictions or specific reporting. Regarding the reporting requirement specified by the commenter, we note that we are already requiring weekly reports during foundation installation, which would contain information that would inform on how long impact pile driving occurred and if it was necessary for this activity to occur during hours of darkness (

i.e.,

information that would document the daily start and stop of all pile-driving activities). These weekly reports would be combined into monthly and annual reports. We do not plan to make the weekly or monthly reports publicly available, due to the number or reports that would become available; however, as described in Comment 25, we do plan to make the final reports available, which would summarize all of the information contained in the weekly and monthly reports.

Comment 22:

A commenter recommended that NMFS not allow pile driving to begin if monitoring results in either an acoustic detection within the acoustic clearance zone or a visual detection within the visual clearance zone of one or more North Atlantic right whales. They also stated that pile driving should not be initiated or must be shut down if underway (with an exception noted due to pile stability and human safety) if monitoring results in an acoustic detection within the acoustic shutdown zone or a visual detection within the visual shutdown zone of one or more North Atlantic right whales. They added that if pile driving is underway and a North Atlantic right whale is visually detected at any distance from the pile by a PSO, pile driving must be shut down. A commenter also recommended NMFS include a condition for resumption of pile driving after the Lead PSO confirms that no North Atlantic right whale or other protected species have been detected within the acoustical and visual clearance zones. Finally, a commenter acknowledged the exemption for safety from shutdown but recommends that if this exemption occurs, the project must immediately notify the NMFS with reasons and explanation for exemption and a summary of the frequency of these exceptions must be publicly available to ensure that these are the exception rather than the norm for the project. Some commenters also recommended that HRG surveys should be required to use a soft start, ramp-up procedure to encourage any nearby marine life to leave the area.

Response:

The recommended requirement that any detection of a North Atlantic right whale (visually or acoustically in the associated clearance zone) during the clearance period would trigger a delay to the onset of pile driving was included in the proposed rule and is included in this final rule. Similarly, the recommended requirement that any detection of a North Atlantic right whale (visually or acoustically in the associated exclusion zone) while pile driving is occurring would trigger a shutdown of pile driving (with the noted safety exception) was included in the proposed rule and is included in this final rule. In this final rule, NMFS has also added the requirement that shutdown of pile driving must occur if a North Atlantic right whale is visually detected at “any distance.” Regarding the resumption of pile driving following a shutdown, PSOs would be required to monitor clearance zones prior to impact pile driving starting. Impact pile driving would be allowed to begin only when the Lead PSO confirms that no North Atlantic right whales or other marine mammal species have been detected in the applicable clearance zones and the PAM operator confirms no detection of North Atlantic right whales. A soft-start to pile driving or ramp-up to HRG surveys would be required, as described in the proposed rule and also included in this final rule.

Regarding a commenter's suggestion that in the event that mitigation actions are not undertaken based on specific exemptions, both the proposed and final rules require reporting weekly, monthly, and annual reports where Ocean Wind must provide reasons why mitigation actions could not occur (including for this exception). We acknowledge the importance of transparency in the reporting process and plan to make all final annual and 5-year marine mammal monitoring reports and final SFV report on our website, however, NMFS will not be making the weekly or monthly reports final given the amount of total reports that would be obtained over a 5-year period.

Comment 23:

A commenter expressed concern regarding 8 hours of pile driving, daily, for monopile foundations as they state that there are “no clear provisions for enforcement of these and other restrictions” given the close proximity of other projects within the region.

Response:

Specific to the Project, NMFS notes that this comment is unfounded, as no other projects will begin impact pile driving off New Jersey during the same period Ocean Wind would begin. However, in discussing the concern more broadly, it is not clear what the commenter means by stating that there are “no clear provisions for enforcement of these and other restrictions.” The MMPA has a prohibition on the take of marine mammals and if Ocean Wind does not comply with the requirements of any issued LOA and their activities result in the take of marine mammals, then they will be subject to law enforcement. Violating the regulations and LOAs can result in civil and criminal penalties. More specifically, the developer is required to submit weekly and monthly reports to NMFS for review, that would detail exactly what was installed, what parameters of the impact hammer were used, and when piling began and ceased, among other things. Additionally, the applicant would provide SFV reports for NMFS' review to allow for a clear understanding as to the effectiveness of the sound attenuation measures and if additional action (

e.g.,

modification to clearance or shutdown zones) is needed.

Comment 24:

A commenter stated that at first, UXOs/MECs must be evaluated to see if they can be moved without detonation. If detonation must occur, the commenter stated that the mitigation measures for pile driving should be observed the same with regards to including noise abatement technology, clearance zones, and the use of PSOs. If the impact area is larger than predicted after detonation, the commenter suggests that expanded mitigation measures should be implemented.

Response:

As described in the proposed rule and included in this final rule, Ocean Wind would use the As Low As Reasonably Practical (ALARP) approach such that detonation would be the last resort to removing a UXO/MEC. That is, Ocean Wind is required to use detonation as a means of removing

UXO/MECs only if all other options of removal have been exhausted. Also as described in the proposed rule and included in this final rule, Ocean Wind would be required to implement visual monitoring using PSOs and PAM prior to detonation. These PSOs and PAM operators would be required to clear the appropriate zones prior to Ocean Wind detonating any UXO/MEC. The proposed rule also included the measure that SFV must be conducted on every UXO/MEC, which has been carried forward in this final rule. Additionally, NMFS requires that a double big bubble curtain must be used that is positioned far enough away from the blast such that the hose nozzles are not damaged.

Furthermore, NMFS notes that we retain the ability to modify existing mitigation measures through adaptive mitigation in the event new information becomes available and if doing so creates a reasonable likelihood of more effectively accomplishing the goal(s) of the measure.

Comment 25:

A commenter asserted that the LOA must include requirements to hold all vessels associated with site characterization surveys accountable to the ITA requirements, including vessels owned by the developer, contractors, employees, and others regardless of ownership, operator, and contract. They stated that exceptions and exemptions will create enforcement uncertainty and incentives to evade regulations through reclassification and redesignation. They recommended that NMFS simplify this by requiring all vessels to abide by the same requirements, regardless of size, ownership, function, contract or other specifics.

Response:

NMFS notes the proposed rule and this final rule includes a general condition that extends the requirements imposed on Ocean Wind to persons it authorizes or funds to conduct activities on its behalf

e.g.,

vessel operators) while conducting the specified activities. The rule also states that Ocean Wind must ensure that the vessel operator and other relevant vessel personnel, including the PSO team, are briefed on all responsibilities, communication procedures, marine mammal monitoring protocols, operational procedures, and rule requirements prior to the start of survey activity, and when relevant new personnel join the survey operations.

Comment 26:

A commenter stated that the LOA must include conditions for the survey and construction activities that will first avoid adverse effects on North Atlantic right whales in and around the area and then minimize and mitigate the effects that cannot be avoided. This should include a full assessment of which activities, technologies and strategies are truly necessary to achieve site characterization and construction to inform development of the offshore wind projects and which are not critical, asserting that NMFS should prescribe the most appropriate techniques that would produce the lowest impact while achieving the same goals while prohibiting those other tools/techniques that would cause more frequent, intense, or long-lasting effects.

Response:

NMFS is required to authorize the requested incidental take if it finds such incidental take of small numbers of marine mammals by the requestor while engaging in the specified activities within the specified geographic region will have a negligible impact on such species or stock and where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. As described in this notice of final rulemaking, NMFS finds that small numbers of marine mammals may be taken relative to the population size of the affected species or stocks and that the incidental take of marine mammal from all of Ocean Wind's specified activities combined will have a negligible impact on all affected marine mammal species or stocks. It is not within NMFS' authority to determine the requestor's specified activities.

The MMPA requires that we include mitigation measures that will effect the least practicable adverse impact on the affected species and stocks. In practice, NMFS agrees that the rule should include conditions for the construction activities that will first avoid adverse effects on North Atlantic right whales in and around the project area, where practicable, and then minimize the effects that cannot be avoided. NMFS has determined that this final rule meets the requirement to effect the least practicable adverse impact on the affected marine mammal stocks and their habitat. The commenter does not make any specific recommendations regarding mitigation measures.

Monitoring, Reporting, and Adaptive Management

Comment 27:

Several commenters recommended that NMFS increase the frequency of information review for adaptive management to at least once a quarter and also have a mechanism in place to undertake review and adaptive management on an ad hoc basis if a serious issue is identified (

e.g.,

if unauthorized levels of Level A take of marine mammals are reported or if serious injury or mortality of an animal occurs).

Response:

NMFS may undertake review and adaptive management actions at any time under the regulations, as written. Ocean Wind is required to submit weekly, monthly, and annual reports that NMFS will review in a timely manner and may act on pursuant to the adaptive management provisions at any time, and therefore, a separate specific quarterly review is unnecessary.

Comment 28:

A commenter recommended that NMFS require robust monitoring protocols during pre-clearance and when site assessment and characterization activities are underway, including: (1) passive acoustic monitoring from a nearby vessel (other than the survey vessel) or a stationary unit to avoid masking; (2) visual monitoring of the clearance zone for North Atlantic right whales and other large whales by four on-duty PSOs on each survey vessel scanning 180 degrees); and (3) visual and acoustic monitoring beginning 30 minutes prior to commencement or re-initiation of survey activities through the duration of the survey.

Response:

Regarding the recommendation to require acoustic monitoring (in any form) to support clearance and shutdown requirements for HRG surveys, please see NMFS response to Comment 13, which describes why PAM is not warranted for HRG surveys. With respect to the number of PSOs, NMFS is not requiring four on-duty PSOs given the very small harassment zone sizes associated with HRG surveys. In the proposed rule, and in this final rule, PSOs are required to commence monitoring for marine mammals 30 minutes prior to the activity before HRG surveys begin; hence, this recommendation has already been satisfied.

Comment 29:

A commenter recommended that NMFS require infrared technology to support visual monitoring for all vessels responsible for crew transport and during any pile-driving activities that occur in periods of darkness or nighttime to supplement the visual monitoring efforts for marine mammals. They additionally included a suggestion that additional observers and monitoring approaches (

i.e.,

infrared, drones, hydrophones) must be used, as determined to be necessary, to ensure that monitoring efforts for the clearance and shutdown zones are effective during daytime, nighttime, and during periods of poor visibility.

Response:

NMFS notes that most of the proposed recommendations were already included in the proposed rule

and have been carried forward here. Specifically, NMFS described in the proposed rule, and is requiring in the final rule, that infrared technologies and PAM hydrophone deployments be available and used before, during, and after pile driving. NMFS concurs with a suggestion by the commenter and has added a new requirement in the final rule to allow Ocean Wind to deploy drones to aid PAM efforts. Moreover, since publication of the proposed rule, Ocean Wind has submitted a nighttime pile driving plan (referred to as the Alternative Monitoring Plan) on July 19, 2023 that includes advanced technologies for monitoring marine mammals at night for both trained crew observers and PSOs. Once approved, NMFS will make the plan available on our website at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.

Comment 30:

Some commenters recommended that additional monitoring of the visual clearance and shutdown zones must be undertaken by PSOs located on the pile-driving vessel and on an additional vessel that would circle the pile-driving site. They specified that a minimum of four PSOs must be on each vessel and must have two PSOs monitoring per shift operating on a two on, two off rotation, with the commenter suggesting that human observation be supplemented with IR technology and drones.

Response:

In the proposed rule, NMFS proposed to require two on-duty PSOs on the pile-driving vessel and two on-duty PSOs on the secondary vessel, each covering 180 degrees, as proposed by a commenter. However, since that time, NMFS has determined that there are too few observers and is now requiring three on-duty PSOs on both platforms such that each PSO is responsible for 120-degree coverage, increasing detection effectiveness.

Comment 31:

A commenter recommended that NMFS should require SFV during installation of WTG and OSS foundations on the first monopile installed and then on a random sample of monopiles throughout the installation process. They also noted that they do not support the installation of unmitigated piles. They added that all sound source validation reports for field measurements must be made publicly available after being evaluated by both NMFS and BOEM prior to the installation of any additional monopiles being installed.

Response:

NMFS notes that the proposed rule and this final rule require noise abatement systems to be deployed during all impact pile driving activities to reduce noise levels to the modeled harassment isopleths, which will be validated through SFV. Additionally, the proposed rule and this final rule require SFV for the first three piles and additional piles where conditions suggest noise levels may be higher or propagate farther than those piles previously measured. Ocean Wind has the Lease Area data to identify if a pile would be more difficult to drive than the initial piles measured. Given these mitigation measures, NMFS disagrees that random sampling is necessary.

As we describe above for Comment 22, we acknowledge the importance of transparency in the reporting process and plan to make all final SFV report on our website, however, NMFS will not be making any weekly or monthly final reports available, given the amount of total reports that would be obtained over a 5-year period. The SFV reports and information gleaned would be available in these final reports.

Comment 32:

The Commission suggested that the monitoring measures included in the proposed rule may not be sufficient in reducing the potential for Level A harassment of North Atlantic right whales, specifically indicating that visually monitoring a 3.5- to 3.8-km would prove difficult and cited literature (Oedekoven and Thomas, 2022) estimating effectiveness of marine mammal observers (MMOs) to be 54 percent for detecting rorquals at 914 m or more, 31 percent for small cetaceans in pods of more than six, and 14 percent for small cetaceans in pods of six or fewer. The Commission did not provide any recommendations to increase visual detection capabilities.

Response:

The time of year when Ocean Wind would be conducting the majority of pile driving is when North Atlantic right whale density in the project area is very low. As provided in Table 17 and 18, one North Atlantic right whale Level A harassment exposure was estimated (0.9 from WTG installation and 0.1 from OSS foundation installation). These estimates were derived without consideration of any mitigation (except 10-dB of sound attenuation) or natural avoidance of marine mammals to avoid loud sounds. Hence, even without any monitoring or mitigation (with exception of 10-dB of sound attenuation from the modeling), the potential for PTS to occur is low. As described in response to Comment 4, the Commission cites information from a paper related to the use of trained lookouts and a team of two on-duty MMOs on moving Navy military vessels actively engaged in sonar training (Oedekoven and Thomas, 2022) to support its argument that visual monitoring would prove difficult. We note that these “trained lookouts” are Navy personnel who are specifically trained as lookouts in contrast to NMFS-approved PSOs who are required to have specific education backgrounds, trainings, and experience before undertaking PSO duties (see requirements found in the regulations text at Section 217.265(a)). NMFS disagrees that the statistics generated from that report are relevant to the effectiveness of monitoring for the Project. Independent, NMFS-approved PSOs are required during all impact pile driving (see requirements found in 217.265). At least three PSOs would be placed on the stationary pile driving platform and three PSOs would also be placed on each of two dedicated PSO vessels traveling at slow speeds (less than 10 kn) for a total of nine PSOs. Concurrently, real-time PAM is required to supplement visual monitoring during impact pile driving, UXO/MEC detonation, and select vessel transport. Further, Ocean Wind must monitor several times daily supplemental marine mammal detection information systems (

e.g.,

the Right Whale Sighting Advisory System) to increase situational awareness. Hence, it is reasonable to assume that the effectiveness of marine mammal monitoring during the project is much greater than the two-person MMO team reported in Oedekoven and Thomas (2022). We note that the MMO team in Oedekoven and Thomas (2022), was not always using PAM in that study, and had significantly more

Balaenoptera spp.

sightings than the lookout team (see Table 2 in Oedekoven and Thomas (2022)). Given the monitoring measures that are required for the Project in combination with the mitigation measures (

i.e.,

clearance and shutdown zones), NMFS disagrees that the monitoring measures will be insufficient to avoid Level A harassment (PTS) of North Atlantic right whales.

Comment 33:

The Commission recommended that NMFS require Ocean Wind to have PAM operators also review acoustic data for at least 24 hours prior to UXO/MEC detonations, when available.

Response:

We appreciate the Commission's suggestion and have incorporated it into the final rule.

Comment 34:

The Commission recommended that NMFS include a provision that the Lead PSO must have a minimum of 90 days of at-sea experience and must have had this experience within the last 18 months.

Response:

We appreciate the Commission's suggestion and have incorporated it into the final rule.

Comment 35:

A commenter stated that Ocean Wind should be required to use PSOs at all times when under way. They also suggested that PSOs complement their survey efforts using additional technologies, such as infrared detection devices when in low-light conditions.

Response:

NMFS is not requiring PSOs to be onboard every transiting vessel. However, as described in the proposed rule, as well as the final rule, Ocean Wind must have trained observers onboard all vessels. This observer may be a PSO or a crew member with no other duties if the vessel is operating above 10 kn. NMFS is also requiring Ocean Wind to provide a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS 90 days prior to the onset of vessel use. Ocean Wind submitted that plan on July 19, 2023. Once approved, this plan will be made available on NMFS' website at

https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-lcc-construction-ocean-wind-1-wind-energy-facility.

Comment 36:

A commenter recommended that the LOA should require all vessels supporting site characterization to be equipped with and using Class A Automatic Identification System (AIS) devices at all times while on the water. A commenter suggested this requirement should apply to all vessels, regardless of size, associated with the survey.

Response:

NMFS agrees that AIS should be required. This final rule includes a requirement that all vessels associated with the project be equipped with AIS.

Comment 37:

A commenter stated that monitoring reports are not enough to evaluate impacts to marine mammals from offshore wind impacts and instead suggests that on-the-ground, independent scientists and response teams be located in the area during activities conducted under incidental take authorizations to monitor for impacts and to respond immediately or investigate if anything occurs. The commenter suggested that an organization charged specifically with responding to endangered marine mammal incidents (which NMFS notes, the commenter did not choose to define or specify further), be fully funded by the State and Federal agencies to collect the animal and conduct an independent and thorough/immediate investigation to determine the cause of death.

Response:

NMFS disagrees with the commenter's recommendations. NMFS emphasizes that this final rule authorizes incidental take by Level A and Level B harassment from auditory injury and behavioral disturbance. Moreover, no mortality or serious injury is anticipated or authorized in this final rule. During the specified activities identified for the Project, NMFS is requiring third-party, independent visual PSOs and PAM operators be present to provide monitoring support and to instigate mitigative actions, if they are needed, such as shutdowns or delays to activities. These specific personnel are also tasked to record instances of marine mammal observations (both visually or acoustically) while also providing additional information of the distance to approach (

i.e.,

how close was the sighting/detected marine mammal to the activity), the behavior of the animal(s), and any actions determined to be necessary to be undertaken, among other requirements. While the commenter suggests an independent team be funded to monitor and respond to events if they occur, it is unclear what action(s) the commenter recommends these individual undertake if a large whale is exposed to noise levels that would cause TTS or PTS nor were any suggestions made for NMFS to consider for this final rule. To the commenter's other suggestion, we note that the MMPA established the Marine Mammal Health and Stranding Response Program (MMHSRP), a national program that coordinates emergency responses to sick, injured, distressed, or dead marine mammals. In the event Ocean Wind discovers a stranded, entangled, injured, or dead marine mammal, it must report the observation to either the NMFS Greater Atlantic Stranding Hotline or the NMFS Southeast Stranding Hotline, depending on exact location, as soon as possible but within 24 hours. We reference the commenter to the Reporting section of the regulations (217.265(g)) for more information.

Comment 38:

The Commission recommended that NMFS require Ocean Wind to submit a PAM plan and to allow for public comments to occur prior to the issuance of the final rule. The Commission specified that this plan should include the number, type(s) (

e.g.,

moored, towed, drifting, autonomous), deployment location(s), bandwidth/sampling rate, sensitivity of the hydrophones, estimated detection range(s) for ambient conditions and during pile driving, and the detection software to be used. They also recommended that Ocean Wind and other wind developers consider whether vector sensors should be used in addition to deployed hydrophones to enhance detection capabilities, with a particular focus on “those vocalizations that may be drowned out by the hammer strikes and resulting reverberation.”

Response:

NMFS notes the Commission's recommendation for Ocean Wind to submit a PAM Plan to NMFS for approval is consistent with the proposed rule and this final rule. However, for the PAM Plan, this final rule requires the lead time for plan submission 180 days prior to the start of foundation installation activities. In order to meet the Commission's recommendation and the FAST-41 timeline, Ocean Wind would have had to submit a plan almost concurrently or shortly after the public comment period on the proposed rule which is not logistically feasible. Further, NMFS has identified the requirements that Ocean Wind must meet in its PAM plan in both the proposed rule, which was made available for public comment, and this final rule. Given NMFS' extensive expertise with passive acoustic monitoring and the fact that we are coordinating with BOEM's Center for Marine Acoustics (CMA), NMFS has determined that approval of the plan does not warrant public input. However, NMFS will share the plan with the Commission for review prior to approval of the plan. NMFS has included the Commission's recommendations, among other things, of what would be required in the PAM plan.

Comment 39:

The Commission recommended that in the final rule NMFS: (1) specify which model-estimated zones (

i.e.,

acoustic ranges, exposure ranges, mitigation zones, monitoring zones) and which metrics (

i.e.,

flat maximum-over-depth (R

max

), flat model-estimated acoustic ranges (R

95

%

)) should be compared to the

in-situ

Level A and B harassment zones, (2) specify which type of

in-situ

Level A harassment zone (

i.e.,

acoustic or exposure ranges) should be calculated, and, (3) require that

in-situ

measurements be conducted for monopiles that are not represented by the previous three locations (

i.e.,

substrate composition, water depth) or by the hammer energies and numbers of strikes needed or number of piles installed in a given day.

Response:

We have required, in the final rule, that the model-estimated acoustic ranges (R

95

%

) be compared with the real-world sound field measurements as exposure ranges (ER

95

%

) cannot be measured in the field. The acoustic ranges NMFS incorporated into the final rule are found in

Appendix H of Ocean Wind's ITA application and use the flat R

95

%

metric.

Regarding the Commission's second suggestions, the

in-situ

analysis for Level A harassment compared to acoustic range which will indicate if ERs modeled are acceptable, because if the acoustic range to the Level A harassment threshold is louder than acoustic range modeled by JASCO, one can assume the ER modeled is too small as animals move through a sound field.

Regarding the Commission's third suggestion, NMFS notes the proposed rule included language where if in the case that a monopile installation site or construction scenario was determined to be not representative of the rest of the monopile installation sites, Ocean Wind would be required to provide information on how additional sites and construction scenarios would be selected for SFV measurements, as would be described in their Foundation Installation Pile Driving SFV Plan. This plan would also be required to describe the methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS. We acknowledge that this information is important and have carried over the same requirement into the final rule. However, we do not agree regarding the suggestion to require additional SFV based on variations in the hammer energies, number of strikes used for installation, or number of piles installed per day. NMFS applied the largest distances modeled, which represents maximum number of piles installed per day, maximum strikes predicted, and maximum hammer energies. Because of this, Ocean Wind is required to stay within the bounds of the analysis. We also note that any variation assuming less hammer strikes, less piles installed per day, or lower hammer energies would most likely result in less anticipated take per day, as the take authorized in the final rule is based on the highest bounds of the analysis. For all these reasons, we are not requiring additional SFV based on variations specific to the hammer energy, number of piles installed, or the total number of strikes.

Comment 40:

The Commission recommended that NMFS require Ocean Wind to report on additional metrics not included in the proposed rule, including sound pressure level (SPL

rms

) source levels, cumulative SEL, ranges to Level A harassment and Level B harassment thresholds, and types and locations of sound attenuation systems. The Commission also recommended the ranges to Level B harassment thresholds be based on the behavioral thresholds, not TTS thresholds. Lastly, the Commission recommended that NMFS require that Ocean Wind deploys a minimum of three hydrophones for SFV during impact pile driving and a minimum of two hydrophones and one pressure transducer for SFV during UXO/MEC detonations.

Response:

NMFS partially concurs with the Commission's recommendations. The interim report must now include peak, SPL, and SEL

cum

metrics for all hydrophones, estimated distances to NMFS Level A harassment and Level B harassment thresholds, types and locations of sound attenuation systems. We also removed reference to the TTS thresholds. This information is also required in the final report. NMFS is not requiring source levels be estimated in interim reports given the quick turnaround time (48 hours) and amount of data needing to be analyzed in that time. The purpose of the interim reports are to determine that distances to Level A harassment and Level B harassment thresholds are not being exceeded and to determine if any mitigative action needs to be taken. Hence knowing source levels is not required at this stage. However, NMFS is requiring source levels (peak, SEL

cum,

and SPL

rms

) be included in the final SFV report. Regarding the hydrophones for SFV during pile driving, NMFS is requiring Ocean Wind place two hydrophones at four locations at an azimuth of least propagation loss and two at 750 m and 90 degrees from this azimuth. This results in a total of 10 hydrophones during SFV. Additionally, we have added a requirement to deploy a pressure transducer for UXO/MEC detonations, as suggested by the Commission.

Comment 41:

Commenters stated that the LOA must include a requirement for all phases of the Ocean Wind 1 site characterization to subscribe to the highest level of transparency, including frequent reporting to Federal agencies, requirements to report all visual and acoustic detections of North Atlantic right whales and any dead, injured, or entangled marine mammals to NMFS or the U.S. Coast Guard as soon as possible and no later than the end of the PSO shift. A commenter states that to foster stakeholder relationships and allow public engagement and oversight of the permitting, the LOA should require all reports and data to be accessible on a publicly available website. A commenter also suggested that all quarterly reports of PSO sightings must be made publically available to continue to inform marine mammal science and protection.

Response:

NMFS notes the commenters' recommendations to report all visual and acoustic detections of North Atlantic right whales and any dead, injured, or entangled marine mammals to NMFS are consistent with the proposed rule and this final rule (see Situational Reporting). We refer the reader to 217.265(g)(13)(i)-(vi) of the regulations for more information on situational reporting.

Daily visual and acoustic detections of North Atlantic right whales and other large whale species along the Eastern Seaboard, as well as Slow Zone locations, are publicly available on WhaleMap (

https://whalemap.org/whalemap.html

). Further, recent acoustic detections of North Atlantic right whales and other large whale species are available to the public on NOAA's Passive Acoustic Cetacean Map website (

https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map

). Given the open access to the resources described above, NMFS does not concur that public access to quarterly PSO reports is warranted and we have not included this measure in the authorization. However, NMFS will post all final reports to our website. We reference the commenters to 217.265(g) for more information on reporting requirements in the regulations.

Comment 42:

A commenter recommended that the use of quieter foundations be given full consideration when selecting a “preferred alternative” and that direct-drive turbines be used in lieu of gearboxes.

Response:

The commenter refers to a “preferred alternative” suggests this comment is specific to the EIS BOEM developed for the project. NMFS agrees with the commenter that full consideration of various turbine foundations should be evaluated in an EIS but also recognizes that there are technological challenges and that the ultimate foundation type chosen must be practicable. Regardless, this rule evaluates the specified activities as described in Ocean Wind's MMPA application which includes installation of monopile and jacket foundations. With respect to direct-drive, NMFS agrees that the best available science indicates that these are known to be less noisy than gearboxes and we understand gearboxes are older technology. Ocean Wind has confirmed with NMFS that direct drive turbines will be used for the Ocean Wind project.

Effects Assessment

Comment 43:

A commenter stated that there is a lack of basic research about the impacts of offshore wind energy development on large whales. They also asserted that the current application

does not adequately assess the impact to prey from construction and operation and suggest that any permits and authorizations (

i.e.,

any IHAs, regulations) for offshore wind development should not be issued until scientific baseline assessments for what harms may occur to whales are available. Prior to issuing any IHAs or regulations, the commenter recommended that an independent pilot project investigating the potential and real marine ecosystem impacts, including assessments for what harms may or could occur to whales, be conducted and sound science supported by planned or currently begun robust scientific baseline assessments and independent and peer-reviewed studies are complete.

Response:

The MMPA requires NMFS to evaluate the effects of the specified activities in consideration of the best scientific evidence available and to issue the requested incidental take authorization if it makes the necessary findings. The MMPA does not allow NMFS to delay issuance of the requested authorization on the presumption that new information will become available in the future. If new information becomes available in the future, NMFS may modify the mitigation and monitoring measures in an LOA issued under these regulations through the adaptive management provisions. Furthermore, NMFS is required to withdraw or suspend an LOA if, after notice and public comment unless an emergency exists, it determines the authorized incidental take may be having more than a negligible impact on a species or stock.

NMFS has duly considered the best scientific evidence available in its effects analysis. The Potential Effects of Underwater Sound on Marine Mammals section of the proposed rule included a broad overview of the potential impacts on marine mammals from anthropogenic noise and provided summaries of several studies regarding the impacts of noise from several different types of sources (

e.g.,

airguns, Navy sonar, vessels) on large whales, including North Atlantic right whales. Offshore wind farm construction generates noise that is similar, or, in the case of vessel noise, identical, to noise sources included in these studies (

e.g.,

impact pile driving and airguns both produce impulsive, broadband sounds where the majority of energy is concentrated in low frequency ranges), and the breadth of the data from these studies helps us predict the impacts from wind activities. In addition, as described in the proposed rule, it is general scientific consensus that behavioral responses to sound are highly variable and context-specific and are impacted by multiple factors including, but not limited to, behavioral state, proximity to the source, and the nature and novelty of the sound. Overall, the ecological assessments from offshore wind farm development in Europe and peer-reviewed literature on the impacts of noise on marine mammals both in the U.S. and worldwide provides the information necessary to conduct an adequate analysis of the impacts of offshore wind construction and operation on marine mammals in the Atlantic OCS. NMFS acknowledges that studies in Europe typically focus on smaller porpoise and pinniped species, as those are more prevalent in the North Sea and other areas where offshore wind farms have been constructed, and notes that the commenter did not provide additional scientific information for NMFS to consider.

With respect to adequately assessing impacts to prey from construction and operation, NMFS considered the information in Ocean Wind's application but greatly expanded on the analysis in the proposed rule. Hence, it is not relevant that Ocean Wind's application did not fully address potential impacts to prey, as NMFS conducted its own analysis for the proposed rule, which is incorporated by reference into this final rulemaking, based on the best scientific information available. Further, the Biological Opinion provides a robust analysis on the impacts on ESA-listed marine mammal prey, many of which (

e.g.,

fish, invertebrates) serve as prey for all marine mammals that we have summarized in this final rule. NMFS notes that the commenter did not provide additional scientific information on impacts on prey for NMFS to consider.

Furthermore, a commenter specifically points out a lack of baseline data available on harbor seals in the New Jersey area. NMFS points the commenter towards two sources of information for marine mammal baseline information: The Ocean/Wind Power Ecological Baseline Studies, January 2008-December 2009, completed by the New Jersey Department of Environmental Protection in July 2010 (

https://tethys.pnnl.gov/sites/default/files/publications/Ocean-Wind-Power-Baseline-Volume1.pdf

) and AMAPPS (

https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected

) with annual reports available from 2010 to 2020 that cover the areas across the Atlantic Ocean.

Comment 44:

Some commenters questioned whether NMFS met its requirement to utilize the best available science in its analysis. A commenter stated that NMFS must use the more recent and best available science in evaluating impacts to North Atlantic right whales, including updated population estimates, recent habitat usage patterns for the project area, and a revised discussion of the acute and cumulative stress on whales in the region. A commenter identified that the North Atlantic right whale population abundance is less than that cited in the proposed rule. A commenter stated that NMFS did not use the best available science for the proposed rule (NMFS originally used n = 368) for the population estimate of North Atlantic right whales when NMFS' website stated that “there are fewer than 350 remaining” and that the North Atlantic right whale Consortium stated that 336 individuals remained in their 2021 Annual Report Card. A commenter also objected to NMFS' determination that no change was needed in the number of takes in the Applicant's request when NMFS acknowledged a revision in the density of the North Atlantic right whale population. A commenter then cited information about North Atlantic right whale population abundance to support this claim.

Response:

The MMPA and its implementing regulations require that incidental take regulations be established based on the best available information, which does not always mean the most recent information. NMFS generally considers the information in the most recent U.S. Atlantic and Gulf of Mexico SAR (Hayes

et al.,

2023) to be the best available information for a particular marine mammal stock because of the MMPA's rigorous SAR procedural requirements, which includes peer review by a statutorily established Scientific Review Group.

Regarding the comment related to the North Atlantic right whale population abundance that was cited in the proposed rule, since publication of the proposed rule, NMFS has finalized the 2022 Stock Assessment Report indicating the North Atlantic right whale population abundance is estimated as 338 individuals (N

est

; 95 percent confidence interval: 325-350; 88 FR 54592, August 11, 2023). NMFS has used this most recent best available scientific information in the analysis of this final rule. This new estimate, which is based off the analysis from Pace

et al.

(2017) and subsequent refinements

found in Pace (2021), is included by reference in the final 2022 SARs (

https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports

) and provides the most recent and best available estimate, including improvements to NMFS' right whale abundance model. Specifically, Pace (2021) looked at a different way of characterizing annual estimates of age-specific survival. The results from the Pace (2021) paper that informed the final 2022 SARs strengthened the case for a change in mean survival rates after 2010 through 2011, but did not significantly change other current estimates (population size, number of new animals, adult female survival) derived from the model. Furthermore, NMFS notes that the SARs are peer reviewed by other scientific review groups prior to being finalized and published and that the North Atlantic Right Whale Report Card (Pettis

et al.,

2022) does not undertake this process. Based on this, NMFS has considered all relevant information regarding North Atlantic right whale, including the information cited by the commenters. However, NMFS has relied on the final 2022 SAR in this final rule as it reflects the best available scientific information.

We note that this change in abundance estimate does not change the estimated take of North Atlantic right whales or authorized take numbers, nor affect our ability to make the required findings under the MMPA for Ocean Wind's construction activities.

Comment 45:

Commenters raised concerns regarding the cumulative impacts of the multiple offshore wind projects being developed throughout the range of North Atlantic right (which they state as from North Carolina to Maine), and specifically recommended that we carefully consider the take from all of these projects in combination when conducting the negligible impact analysis for Ocean Wind. Relatedly, they emphasized the total take of bottlenose dolphins by Ocean Wind across multiple years, especially in combination with multiple projects. Commenters also objected to NMFS's conclusion that the application's take limit of 14 North Atlantic right whales for construction activities in the coastal waters between off New Jersey and New York will have a “negligible impact” on the species, especially in light of the North Atlantic right whale's critically endangered status, the ongoing Unusual Mortality Event that this species is experiencing and, consequently, the asserted existential threat posed to the species by obstacles to even one individual's survival—and they emphasize this comment in combination with the need to consider the take from multiple projects.

Response:

NMFS is required to authorize the requested incidental take if it finds the total incidental take of small numbers of marine mammals by U.S. citizens “

while engaging in that (specified) activity

” within a specified geographic region during the five-year period (or less) will have a negligible impact on such species or stock and where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). Negligible impact is defined as “an impact

resulting from the specified activity

that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effect on annual rates of recruitment or survival” (50 CFR 216.103). Neither the MMPA nor its implementing regulations require consideration of unrelated activities and their impacts on marine mammal populations in the negligible impact determination. Additionally, NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals (50 CFR 216.104(a)(1)). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(A) is generally defined and described by the applicant. Here, Ocean Wind is the applicant, and we analyzed the impact of its specified activity described in its application and made the necessary determinations on that basis.

Consistent with the preamble of NMFS' implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are factored into the baseline, which is used in the negligible impact analysis. Here, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline (

e.g.,

as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors).

The preamble of NMFS' implementing regulations also addresses cumulative effects from future, unrelated activities. Such effects are not considered in making negligible impact determination under section 101(a)(5) of the MMPA. Rather, NMFS considers: (1) cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis, and (2) reasonably foreseeable cumulative effects under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has adopted BOEM's Environmental Impact Statement (EIS) and reviewed by NMFS as part of its inter-agency coordination. This EIS addresses cumulative impacts related to the Project and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of the regulations and issuance of a LOA for construction activities, such as those planned by Ocean Wind, have been adequately addressed under NEPA in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of the Project on ESA-listed species, including the North Atlantic right whale, was analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with the NOAA Greater Atlantic Regional Fisheries Office (GARFO). The Biological Opinion for the Project determined that NMFS' promulgation of the rulemaking and issuance of a LOA for construction activities associated with leasing, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.

NMFS disagrees that the authorized take of 14 North Atlantic right whales by Level B harassment incidental to the Project will have a non-negligible impact on the species and notes that the commenter did not provide additional scientific information for NMFS to consider to support this claim. No take by injury, serious injury, or mortality is authorized. NMFS emphasizes that the authorized incidental take is limited to Level B harassment (

i.e.,

behavioral disturbance). As described in the proposed rule and this final rule (see Negligible Impact Analysis and Determination section), NMFS has determined that the Level B harassment of North Atlantic right will not result in impacts to the population through effects on annual rates or recruitment or survival. The project area occurs offshore of New Jersey, which does not include habitat where North Atlantic right whales are known to concentrate in foraging or reproductive behaviors. The project area is a known migratory corridor. Hence, it is likely that most of the authorized takes represent an exposure to a different individual, which means that the behavioral impacts to North Atlantic right whales are limited to behavioral disturbance occurring on 1 or 2 days within a year—

an amount that would not be expected to impact reproduction or survival. Across all years, while it is possible an animal migrating through could have been exposed during a previous year, the low amount of take authorized during the 5-year period (n=14) of the rule makes this scenario unlikely. Any disturbance to North Atlantic right whales due to Ocean Wind's activities is expected to result in temporary avoidance of the immediate area of construction but not abandonment of its migratory path. Slight displacement (but not abandonment) of a migratory pathway is unlikely to result in energetic consequences that could affect reproduction or survival of any individuals. Other impacts such as masking, TTS, and temporary communication and foraging disruption may occur (again noting that North Atlantic right whales concentrate foraging far north of the project area (

e.g.,

southern New England, Gulf of Maine, and Canada)); however, these impacts would also be temporary and unlikely to lead to survival or reproduction impacts of any individual, especially when the extensive suite of mitigation, including numerous measures targeted specifically towards minimizing impacts to North Atlantic right whales, are considered.

Comment 46:

Commenters asserted that: (1) NMFS' reliance on the 160-dB (1 micropascal squared seconds (re 1 µPa

2

s)) threshold for behavioral harassment is not supported by the best available scientific information and grossly underestimates takes by Level B harassment; and (2) the monitoring protocols prescribed for the clearance zones are under-protective.

Response:

Regarding the appropriateness of the 160-dB behavioral harassment threshold, NMFS notes that the potential for behavioral response to an anthropogenic source is highly variable and context-specific and acknowledges the potential for Level B harassment at exposures to received levels below 160 dB rms. Alternatively, NMFS acknowledges the potential that not every animal exposed to received levels above 160 dB rms will respond in ways constituting behavioral harassment. There are a variety of studies indicating that contextual variables play a very important role in response to anthropogenic noise, and the severity of effects are not necessarily linear when compared to a received level (RL). Several studies (

e.g.,

Nowacek

et al.,

2004; Kastelein

et al.,

2012 and 2015) showed there were behavioral responses to sources below the 160-dB threshold, but also acknowledged the importance of context in these responses. For example, Nowacek

et al.

(2004) reported the behavior of five out of six North Atlantic right whales was disrupted at RLs of only 133-148 dB re 1 µPa (returning to normal behavior within minutes) when exposed to an alert signal. However, the authors also reported that none of the whales responded to noise from transiting vessels or playbacks of ship noise even though the RLs were at least as strong, and contained similar frequencies, to those of the alert signal. The authors state that a possible explanation for whales responding to the alert signal and not responding to vessel noise is due to the whales having been habituated to vessel noise, while the alert signal was a novel sound. In addition, the authors noted differences between the characteristics of the vessel noise and alert signal which may also have played a part in the differences in responses to the two noise types. Therefore, it was concluded that the signal itself, as opposed to the RL, was responsible for the response. DeRuiter

et al.

(2012) also indicate that variability of responses to acoustic stimuli depends not only on the species receiving the sound and the sound source, but also on the social, behavioral, or environmental contexts of exposure. Finally, Gong

et al.

(2014) highlighted that behavioral responses depend on many contextual factors, including range to source, RL above background noise, novelty of the signal, and differences in behavioral state. Similarly, Kastelein

et al.

(2015) examined behavioral responses of a harbor porpoise to sonar signals in a quiet pool, but stated behavioral responses of harbor porpoises at sea would vary with context such as social situation, sound propagation, and background noise levels.

NMFS uses 160 dB (rms) as the exposure level for estimating Level B harassment takes and is currently considered the best available science, while acknowledging that the 160-dB rms step-function approach is a simplistic approach. However, there appears to be a misconception regarding the concept of the 160-dB threshold. While it is correct that in practice it works as a step-function,

i.e.,

animals exposed to received levels above the threshold are considered to be “taken” and those exposed to levels below the threshold are not, it is in fact intended as a sort of mid-point of likely behavioral responses (which are extremely complex depending on many factors including species, noise source, individual experience, and behavioral context). What this means is that, conceptually, the function recognizes that some animals exposed to levels below the threshold will in fact react in ways that appropriately considered take, while others that are exposed to levels above the threshold will not. Use of the 160-dB threshold allows for a simplistic quantitative estimate of take, while we can qualitatively address the variation in responses across different received levels in our discussion and analysis.

Overall, we reiterate the lack of scientific consensus regarding appropriate criteria. Defining sound levels that disrupt behavioral patterns is difficult because responses depend on the context in which the animal receives the sound, including an animal's behavioral mode when it hears sounds (

e.g.,

feeding, resting, or migrating), prior experience, and biological factors (

e.g.,

age and sex). Other contextual factors, such as signal characteristics, distance from the source, and signal to noise ratio, may also help determine response to a given received level of sound. Therefore, levels at which responses occur are not necessarily consistent and can be difficult to predict (Southall

et al.,

2007; Ellison

et al.,

2012; Southall

et al.,

2021).

There is currently no concurrence on these complex issues, and NMFS followed its practice at the time of submission and review of this application in assessing the likelihood of disruption of behavioral patterns by using the 160-dB threshold. This threshold has remained in use in part because of the practical need to use a relatively simple threshold based on available information that is both predictable and measurable for most activities. We note that the seminal reviews presented by Southall

et al.

(2007), Gomez

et a

l. (2016), and Southall

et al.

(2021) did not suggest any specific new criteria due to lack of convergence in the data. NMFS is currently evaluating available information towards development of updated guidance for assessing the effects of anthropogenic sound on marine mammal behavior. However, undertaking a process to derive defensible exposure-response relationships is complex. A recent systematic review by Gomez

et al.

(2016) was unable to derive criteria expressing these types of exposure-response relationships based on currently available data.

NMFS acknowledges that there may be methods of assessing likely behavioral responses to acoustic stimuli that better capture the variation and context-dependency of those responses than the simple 160 dB step-function used here; there is no agreement on what that method should be or how

more complicated methods may be implemented by applicants. NMFS is committed to continuing its work in developing updated guidance with regard to acoustic thresholds, but pending additional consideration and process is reliant upon an established threshold that is reasonably reflective of available science. We also note the commenters did not provide additional information for NMFS to consider to support their claim that the 160 dB behavioral harassment threshold is not the best available scientific information.

Regarding the assertion that monitoring protocols prescribed for the clearance and shutdown zones (called “exclusion zones” in the comment letter) are under-protective, please refer to Comments 12, 14, 15, 16, and 18.

Comment 47:

In general, a commenter expressed concern that noise pollution from offshore wind activities would interfere with North Atlantic right whale's social communication and prey detection. They are concerned with the low-frequency noise from large vessels involved in the construction activities overlapping North Atlantic right whale communication.

Response:

As discussed in the Negligible Impact Analysis and Determination section (specifically the

Auditory Masking or Communication Impairment

sections) of both the proposed and final rule, the level of masking that could occur from Ocean Wind's activities will have a negligible impact on marine mammals, including North Atlantic right whales. Inherent in the concept of masking is the fact that the potential for the effect is only present during the times that the animal and the sound source are in close enough proximity for the effect to occur (and further this time period would need to coincide with a time that the animal was utilizing sounds at the masked frequency) and, as our analysis (both quantitative and qualitative components) indicates, because of the relative movement of whales and vessels, as well as the stationary nature of a majority of the activities, we do not expect these exposures with the potential for masking to be of a long duration within a given day. Further, because of the relatively low density of mysticetes during months where most of Ocean Wind's activities would be occurring (May through November in most cases), and relatively large area over which the vessels will travel and where the activities will occur, we do not expect any individual North Atlantic right whales to be exposed to potentially masking levels from these surveys for more than a few days in a year. Furthermore, as many of the activities are occurring in clusters and specific areas rather than sporadically dispersed in the project area (

i.e.,

foundation installation all occurs in the same general area, nearshore cable installation activities occur in relatively similar and nearby areas), animals are likely to temporarily avoid these locations during periods where activities are occurring but are expected to return once activities have ceased.

As noted above, any masking effects of Ocean Wind's activities are expected to be limited in duration, if present. For HRG surveys, given the likelihood of significantly reduced received levels beyond short distances from the transiting survey vessel, the short duration of potential exposure, the lower likelihood of extensive additional contributors to background noise offshore and within these short exposure periods, and the fact that the frequency of HRG signals are primarily above those used in social communication or for detection of other important clues, we believe that the incremental addition of the survey vessel is unlikely to result in more than minor and short-term masking effects. Masking is not a concern for UXO/MEC detonations, given the instantaneous nature of the signal. For pile driving, and especially foundation installation, masking effects are more likely given the larger zones and longer durations, and animals that approach the source could experience temporary masking of some lower frequency cues. However, any such effects would be localized to the areas around these stationary activities, which means that whales transiting through the area could adjust their transit away from the construction location and return once the activity has completed. For the activity as a whole, any masking that might potentially occur would be expected to likely be incurred by the same animals predicted to be exposed above the behavioral harassment threshold, and thereby accounted for in the Level B harassment numbers. NMFS notes that the commenter did not provide additional scientific information for NMFS to consider to support its concern.

Comment 48:

A commenter was concerned that limiting construction to occur during summer and fall months (due to the seasonal moratorium for foundation installation), construction activities would be concentrated into months where other marine mammal species (

i.e.,

dolphins and whales) are using the region for foraging, birthing, nursing, migrating, etc. A commenter recommended that NMFS fully account for the consequences of any other proposed North Atlantic right whale seasonal restriction on other protected species and evaluate alternative risk reduction strategies that would protect multiple species.

Response:

In order to promulgate a rulemaking under section 101(a)(5)(A) of the MMPA, NMFS must set forth, among other requirements, means of effecting the least practicable adverse impact on affected species or stock and its habitat. In the proposed rule and in this final rule, NMFS has determined the mitigation measures will effect the least practicable adverse impact on all of the affected species or stocks and their habitat. NMFS acknowledges that the seasonal restriction for impact pile driving is to effect the least practicable adverse impact on North Atlantic right whales; however, NMFS notes that this seasonal restriction provides additional protections to many other large whale species that tend to concentrate off of New Jersey during winter months. For example, humpback whales are located in higher numbers nearshore in the project area from October through February, with a clear offshore shift starting in March (Roberts

et al.,

2023). Harbor porpoises, as another example, are also likely to be more present when foundation installation and UXO/MEC detonation would not be occurring. As described in this final rule, there is no habitat of significance in the specified geographic region other than the seasonal migratory BIA for North Atlantic right whales.

Comment 49:

A commenter stated that some of the specified activities will increase the number of vessels in the ocean in the project area, which will lead to an increased threat of harm by vessel strikes to marine mammals, specifically North Atlantic right whales.

Response:

NMFS acknowledges that vessel strikes can result in injury or mortality of marine mammals. We analyzed the potential for vessel strike resulting from Ocean Wind's activities and determined that based on the nature of the activity and the required mitigation measures specific to vessel strike avoidance included in this rulemaking, the potential for vessel strike is so low as to be discountable. The required mitigation measures, all of which were included in the proposed rulemaking and are now required in the final regulations, include: a requirement that all vessel operators comply with 10 kn (18.5 km/hour) or less speed restrictions in any SMA, DMA, or Slow Zone while underway, and check daily for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and information regarding North Atlantic

right whale sighting locations; a requirement that all vessels, regardless of size, operating from November 1 through April 30 operate at speeds of 10 kn (18.5 km/hour) or less; a requirement that all vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/calf pairs, pods, or large assemblages of non-delphinid cetaceans are observed near the vessel; a requirement that all project vessels maintain a separation distance of 500 m or greater from North Atlantic right whales; a requirement that, if underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 kn or less until the 500-m minimum separation distance has been established; a requirement that, if a North Atlantic right whale is sighted in a vessel's path, or within 500 m of an underway vessel, the underway vessel must reduce speed and shift the engine to neutral; and, a requirement that all vessels underway must maintain a minimum separation distance of 100 m or 50 m from all other marine mammals (species-dependent and excluding North Atlantic right whales), with an understanding that at times this may not be possible (

e.g.,

for animals that approach the vessel). Based on these, we have determined that the vessel strike avoidance measures in the rulemaking are sufficient to ensure the least practicable adverse impact on species or stocks and their habitat.

Separately, NMFS notes that the commenter's comment appears to conflate vessel strike risks and impacts to marine mammals due to noise from construction vessels.

Comment 50:

A commenter stated that the vessel strike avoidance measures in the proposed rule are insufficient and clearly are directed at vessels specifically engaging in the construction activities for the applicant. They stated that the application never accounted for vessel strikes from non-project-related vessels if North Atlantic right whales are displaced outside of the project area.

Response:

Under the MMPA, NMFS must prescribe regulations setting forth other means of effecting the least practicable adverse impact of the requestor's specified activities on species or stocks and its habitat. NMFS cannot require non-project related vessels to implement mitigation through this rulemaking. NMFS ackno

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