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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

RIN 0648-BL52

[Docket No. 230928-0235]

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

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Revolution Wind, LLC's (Revolution Wind), a subsidiary wholly owned by Orsted Wind Power North America, LLC (Orsted), construction of the Revolution Wind Offshore Wind Energy Project (hereafter known as the “Project”) in Federal and State waters offshore Rhode Island, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A-0486 (Lease Area) and along two export cable routes to sea-to-shore transition points (collectively referred to as the “Project Area”), over the course of 5 years (November 20, 2023 through November 19, 2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.

DATES:

This rulemaking and issued LOA are effective from November 20, 2023 through November 19, 2028.

FOR FURTHER INFORMATION CONTACT:

Carter Esch, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

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

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

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

FOR FURTHER INFORMATION CONTACT

).

Purpose and Need for Regulatory Action

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

et seq.

) for NMFS to authorize the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Revolution Wind to incidentally take individuals of 16 species of marine mammals, comprising 16 stocks (10 stocks by Level A harassment and Level B harassment and 6 stocks by Level B harassment), incidental to Revolution Wind's 5 years of construction activities. No mortality or serious injury was requested nor is it anticipated or authorized in this final rulemaking.

Legal Authority for the Final Action

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

et seq.

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

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

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

•

U.S. Citizens

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

•

Take

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

•

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

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

•

Serious Injury

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

•

Level A harassment

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

•

Level B harassment

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

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

Summary of Major Provisions Within the Final Rule

The major provisions of this final rule are:

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

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

• The establishment of a seasonal moratorium on impact pile driving of foundation piles during the months of

the highest presence of North Atlantic right whales (

Eubalaena glacialis

) in the Lease Area (December 1-April 30, annually), unless prior approval from NMFS for pile driving in December;

• A requirement for unexploded ordnance or munitions and explosives of concern (UXO/MEC) detonations to only occur during hours of daylight and not during hours of darkness;

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

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

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

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

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

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

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

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

in situ

noise levels for comparison against the modeled results;

• A requirement to implement 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; 50 CFR 216.106(g)).

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

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

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

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

.

Summary of Request

On October 8, 2021, Revolution Wind submitted a request for the promulgation of regulations and issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project in the Project Area. The request was for the incidental, but not intentional, taking of a small number of 16 marine mammal species (comprising 16 stocks) by Level B harassment (all 16 stocks) and by Level A harassment (10 species or stocks). Revolution Wind did not request and NMFS neither expects nor authorizes incidental take by serious injury or mortality.

In response to our questions and comments, and following extensive information exchange between Revolution Wind and NMFS, Revolution Wind submitted a final version of the revised application on February 23, 2022. NMFS deemed it adequate and complete on February 28, 2022. This final application is available on NMFS' website at:

https://www.fisheries.noaa.gov/action/incidental-take-authorization-revolution-wind-llc-construction-revolution-wind-energy

.

On March 21, 2022, NMFS published a notice of receipt (NOR) of Revolution Wind's adequate and complete application in the

Federal Register

(87 FR 15942), requesting public comments and information on Revolution Wind's request during a 30-day public comment period. During the NOR public comment period, NMFS received comment letters from two environmental non-governmental organizations: Oceana and the Rhode Island Saltwater Anglers Association (RISSA).

On December 23, 2022, NMFS published the proposed rule for the Revolution Wind Project in the

Federal Register

(87 FR 79072). In the proposed rule, NMFS synthesized all of the information provided by Revolution Wind, all best available scientific information and literature relevant to the proposed project, outlined, in detail, proposed mitigation designed to effect the least practicable adverse impacts on marine mammal species and stocks as well as proposed monitoring and reporting measures, and made preliminary negligible impact and small numbers determinations. The public comment period on the proposed rule was open for 45-days on

https://www.regulations.gov

starting on December 23, 2022 and closed after February 6, 2023. Specific details on the public comments received during this 45-day period are described in the Comments and Responses section.

NMFS has previously issued four Incidental Harassment Authorizations (IHAs) to Orsted, Revolution Wind's

parent company, for high resolution geophysical marine site characterization surveys of Revolution Wind's BOEM Lease Area OCS-A 0486, two other BOEM lease areas (OCS-A 0487, OCS-A 0500), and along potential export cable routes (see 84 FR 52464, October 2, 2019; 85 FR 63508, October 8, 2020; 87 FR 13975, March 11, 2022; and 87 FR 61575, October 12, 2022). To date, Orsted has complied with all IHA requirements (

e.g.,

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

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

.

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

Description of the Specified Activities

Overview

Revolution Wind plans to construct and operate the Project, a 704 megawatt (MW) offshore wind farm in the Project Area. The Project will allow the states of Rhode Island and Connecticut to meet their renewable energy goals. The Project, which includes the Revolution Wind Farm (RWF) and Revolution Wind Export Cable corridor (RWEC), will consist of several different types of permanent offshore infrastructure, including wind turbine generators (WTGs;

e.g.,

Siemens Gamesa 11 megawatt (MW)) and associated foundations, offshore substations (OSS), offshore substation array cables, offshore export cables, and substation interconnector cables. Overall, Revolution Wind will conduct the following specified activities: install 79 WTGs and 2 OSS on monopile foundations via impact pile driving; install and subsequently remove cofferdams to assist in the installation of the export cable route by vibratory pile driving, or installation of a casing pipe by pneumatic hammering and goal posts by vibratory pile driving; several types of fishery and ecological monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines; HRG vessel-based site characterization surveys using active acoustic sources with frequencies of less than 180 kilohertz (kHz); the detonation of up to 13 UXOs/MECs of different charge weights, as necessary; transit within the Project Area and between ports and the Lease Area to transport crew, supplies, and materials to support pile installation via vessels, and WTG operation. All offshore cables will connect to onshore export cables, substations, and grid connections, which will be located at Quonset Point in North Kingstown, Rhode Island. Marine mammals exposed to elevated noise levels during impact and vibratory pile driving, detonations of UXOs/MECs, and/or site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity. A detailed description of the Project is provided in the published notice of the proposed rule (87 FR 79072, December 23, 2022).

Dates and Duration

Revolution Wind anticipates its specified activities will occur throughout all 5 years of the regulations, beginning on November 20, 2023 and continuing through November 19, 2028. Revolution Wind anticipates the following construction schedule over the 5 year period (Table 1). Revolution Wind has noted that these are the best and conservative estimates for activity durations but that the schedule may shift due to weather, mechanical, or other related delays. Additional information on dates and activity-specific durations can be found in the proposed rule and are not repeated here.

BILLING CODE 3510-22-P

ER20OC23.000

Specific Geographic Region

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

Federal Register

(87 FR 79072, December 23, 2022). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, Revolution Wind's specified activities (

i.e.,

impact pile driving of WTGs and OSS monopile foundations; vibratory pile driving (installation and removal) of temporary cofferdams, or pneumatic hammering of casing pipes and vibratory pile driving of goal posts; placement of scour protection; trenching, laying, and burial activities associated with the installation of the RWEC and inter-array cables; HRG site characterization surveys; UXO/MEC detonation; and WTG operation) are concentrated in the Project Area. Vessel transit from ports in Maryland and Virginia could also occur; therefore, vessel use could occur in the Mid-Atlantic Bight.

ER20OC23.001

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Comments and Responses

A notice of proposed rulemaking was published in the

Federal Register

on December 23, 2022 (87 FR 79072) and a 15-day extension to the public comment period was published on January 19, 2023 (88 FR 3375). The proposed rulemaking described, in detail, Revolution Wind's specified activities, the specific geographic region of the specified activities, the marine mammal species that may be affected by those activities, and the anticipated effects on marine mammals. In the proposed rule, we requested that interested persons submit relevant information, suggestions, and comments on Revolution Wind's request for the promulgation of regulations and issuance of an associated LOA described therein, our estimated take analyses, the preliminary determinations, and the proposed regulations. In total, the proposed rule was available for a 45-day public comment period.

NMFS received 404 comment submissions, including from the Marine Mammal Commission (Commission), several private organizations, and 396 from private citizens. Most of these comments were out-of-scope or not applicable to this specific action and location (

e.g.,

specific opposition to offshore wind development offshore of New Jersey; general opposition to or support of offshore wind projects;

concerns for other species outside NMFS' jurisdiction (

i.e.,

birds)), and are not described herein or discussed further. Four comment letters were from environmental non-governmental organizations, including one from the Responsible Offshore Development Alliance (RODA), one from Oceana, Inc. (Oceana), and two from the Natural Resources Defense Council (NRDC), of which one was a comment letter with an attachment and the other was a request to extend the comment period an additional 15 days (hence, the extension published in the

Federal Register

on January 19, 2023 (88 FR 3375)). We also received one comment letter from a public organization, the Conservation Law Foundation (CLF). These six letters (excluding the NRDC request for a 15-day comment period extension on the proposed regulations) contained substantive information that NMFS considered in its estimated take analysis, final determinations, and final regulations. In addition, we received comment letters from Salty Enterprises, the Washington Dungeness Crab Association, and a group of Rhode Island fishermen. The comments are described below, along with NMFS' responses.

All substantive comments and letters are available on NMFS' website:

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

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

Comment 1:

The Commission recommended that, until JASCO Applied Sciences' (hereafter, “JASCO”) model has been validated with in-situ measurements from the impact installation of monopiles and pin piles in the northwest Atlantic, NMFS should require Revolution Wind and thus JASCO to re-estimate the various Level A harassment and Level B harassment zones for the final rule using source levels that are at a minimum 3 dB greater than those currently used.

Response:

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

Recent measurements taken during the Coastal Virginia Offshore Wind (CVOW) Pilot Project reported the range to the marine mammal Level B threshold (160 dB re 1 microPascal (1μPa)) from the 7.8-m pile installed with a double big bubble curtain to be 3,891 m (12,765.75 feet (ft)) when using a hammer operating at a maximum of 550 kilojoules (kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered piles using a 4,000 kJ hammer is 3,833 m (12,575 ft). The Commission states that, based on the CVOW reported sound levels, it is unrealistic that an impact hammer with seven times more energy intensity would result in a smaller harassment zone. NMFS disagrees. The 3,891-m distance to the Level B harassment threshold measured during the CVOW Pilot Project cited by the Commission was obtained based on the maximum measured sound pressure level (RMS SPL), which is not an ideal statistic to base estimates of Level B harassment isopleths, as it is not representative of average operating conditions and represents one hammer strike. Further, small differences in the propagation environment could account for the ranges being more comparable than expected. Importantly, as described below, NMFS is also now in receipt of measurements from the South Fork project which indicate JASCO's predicted distance to the Level B harassment threshold is realistic and attainable. Based on the expected variance between the Revolution Wind and CVOW projects and measurement data from South Fork (see below), it cannot be concluded that the CVOW measured results (using the maximum RMS SPL reported) indicate that JASCO's 4,684 m modeled distance to Level B harassment threshold should be increased.

Importantly, since the proposed rule phase, NMFS has received interim sound field verification reports from the South Fork Wind project, which used JASCO's modeling. In all but one case, and out of six tapered piles (8/10-m or 7/9.5-m) installed, the measured distances to NMFS' Level B harassment threshold were lower than JASCO's model predicted. The distance to NMFS Level B harassment threshold for the South Fork project was modeled as 4,684 m while

in-situ

measurements identified distances, excluding the one aforementioned pile, ranging from 1.84 kilometers (km) to 3.25 km. JASCO's modeling predicts the distances to the Level B harassment threshold during installation of Revolution Wind monopiles will be approximately 3.8 km in summer, which is slightly greater than the loudest pile installed during the South Fork Wind results. We note that South Fork Wind determined that the one pile generating noise levels above those predicted (the first pile) did so due to a malfunctioning noise attenuation system which was quickly rectified and deployed appropriately on all future piles. Further, in this final rule, we are requiring Revolution Wind's measured sound levels do not exceed those modeled, assuming 10 dB, for at least three consecutively measured monopiles. Based on all these

reasons, NMFS is not requiring Revolution Wind to remodel the harassment zone sizes by adding 3 dB to the source levels and is, instead, carrying forward the modeling results as presented in the proposed rule.

Of note, NMFS has also received interim sound field reports from Vineyard Wind. However, comparisons between the modeled and measured results are not as directly applicable as the South Fork Wind results due to assumptions in the model and operations Therefore, the Vineyard Wind data are less useful in judging predicted alignment between modeled and measured zones for the Revolution Wind project.

Based on this discussion and given our consideration of the best available scientific information, including available interim sound field verification (SFV) reports from other offshore wind construction projects in the United States, we disagree with the suggestions made by the Commission. NMFS has incorporated the best available scientific information into this final rule, using recent measurements as well as estimates obtained through JASCO's modeling.

Comment 2:

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

e.g.,

at least 30) for modeling reports for future rules.

Response:

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

e.g.,

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

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

2

, there are usually tens of thousands of animats meaning there are tens of thousands of Monte Carlo samples. If the suggestion is to run the simulations (with tens of thousands of animats) 30 times, that is equivalent to increasing the modeling density by 30. Previous work, such as the work done by Houser (2006), has indicated that such high modeling densities are not necessary. Please refer to NMFS' related response to Comment 1.

Comment 3:

The Commission recommended that NMFS authorize Level A harassment (permanent threshold shift (PTS)) takes for fin whales, humpback whales, minke whales, common dolphins, bottlenose dolphins, and Atlantic white-sided dolphins during UXO/MEC detonations and increase to group size, if needed, in the final rule.

Response:

NMFS concurs with the Commission's general recommendation and notes that the Commission did not provide specific Level A harassment (PTS) take numbers NMFS should authorize in the final rule. As described in the proposed rule, take by Level A harassment is considered less likely given the required shutdown zones and the instantaneous duration of the detonation, however, NMFS acknowledges the large mitigation and monitoring zone size (particularly for heavier charge weight UXOs/MECs) required for this activity, the cryptic nature of some marine mammal species (

e.g.,

minke whales, dolphin

spp.

), and that the authorized take numbers do not fully account for the effectiveness of the required mitigation measures other than the 10 dB noise attenuation incorporated in acoustic and exposure modeling. Therefore, NMFS is conservatively authorizing the number of model-estimated takes by Level A harassment (PTS) (increased to group size when the modeled exposures were less than a single group size) incidental to UXO/MEC detonations that were included in the exposure estimate table (Table 23) in the proposed rule: 2 fin whales (modeled exposures = 1.2), 2 humpback whales (modeled exposure = 0.9), 8 minke whales (modeled exposures = 7.7), 35 common dolphins (modeled exposure = 0.4), 8 bottlenose dolphins (Western North Atlantic offshore stock) (modeled exposure = 0.1), and 28 Atlantic white-sided dolphins (modeled exposure = 0.1). Consistent with this rationale, NMFS is also authorizing Level A harassment (PTS) of two sei whales (modeled exposure = 0.5) based on the result of exposure modeling rounded to group size.

Comment 4:

The Commission recommended that NMFS revise its take estimates for impact installation of monopiles based on the possibility that only a single monopile is installed per day over 79 days rather than three per day over 26 days.

Response:

The Commission asserted that JASCO should have conducted single-day simulations adjusted by the respective density and multiplied by the number of days of each activity (29 days of the highest mean density month). Further, as addressed in Comment 2, the Commission suggested that single-day simulations run 30 or 50 times per activity, species, and season are more consistent with other entities' methods for conducting exposure modeling and would reduce the variance and standard error in the predictions as compared to single seven-day simulations. Regarding density seeding, the Commission did not provide a justification for the claim that JASCO's assumptions used to seed its exposure modeling were inappropriate. Additionally, the Commission did not provide references for the other “entities” that have conducted exposure modeling using single-day simulations, so we are unable to make direct comparisons. We can, however, further explain and address the use of seven-day simulations. JASCO ran JASCO's Animal Simulation Model Including Noise Exposure (JASMINE) simulations for seven days, assuming piling every day. Separate simulations were run for each scenario (

e.g.,

pile diameter/number of piles per day/season combination). The average number of exposures for a 24-hour window for the scenario in question was then multiplied by the number of days planned for that scenario. For example, if the scenario includes installation of three 7/15-m WTG monopiles per day in the summer, JASCO ran the simulation for 7 days, resetting exposures each day. If the daily counts were 20, 19, 21, 20, 19, 22, and 20 the average number of exposures per day would be 20.14. If Revolution Wind plans to install that particular configuration for 5 days, the exposure estimate would be 20.14 × 5 = 100.71.

JASCO conducted 7-day simulations because there is some variation in the exposure estimates due to the statistical nature of the exposure model and the approach captures installation conditions in multiple possible pile locations across the wind farm area. Modeling every pile location in the area

is not practicable due to computational limitations. For sequential piling simulations, where more than one pile is installed per day, the sound fields may overlap but are temporally separated. Whether or not a particular animat is exposed to sound from installation of one or the other, both, or all piles is dependent on the spacing of the locations and the swimming behaviors of the animats. JASCO modeled all other scenarios (

e.g.,

one pile per day, 7/12-m monopile, summer) completely separately and multiplied the resulting average number of exposures per day for a given scenario by the number of days Revolution Wind plans to conduct the scenario.

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

While Revolution Wind acknowledged that it may not install three piles every day, it indicated it is capable of installing up to three piles per day with the goal is to complete installation as quickly as possible. Hence, to assume only one monopile per day everyday (as recommended by the Commission) would not be consistent with what Revolution Wind, a company with offshore wind farm installation experience, indicated is possible or is planned.

The exposure estimates contained within the proposed rule are a product of modeling that assumes three piles are driven per day. This assumption is most influential when estimating the number of Level B harassment exposures but provides minimal influence over the number of Level A harassment exposures modeled. There are several conservative assumptions that offset the potential to underestimate take should Revolution Wind not be able to install three piles per day every day, including, but not limited to, all piles are installed during 29 days of the highest density month for each species from May-December. This is conservative because pile driving every day within a given month is not possible due to historical weather patterns and potential technical issues that may be encountered and the highest density of every species does not occur in the same month. It is more likely that pile driving will occur over several months in which marine mammal species' densities are lower. For example, for North Atlantic right whales, December is the highest density month (from May-December); this maximum density value was thus conservatively incorporated in take estimation even though NMFS added a requirement in the final rule that Revolution Wind must not plan to impact pile drive monopiles during December, unless NMFS gives approval due to unforeseen circumstances. Further, for some species, group size or PSO data adjustments were made that increased the amount of take authorized compared to the modeled exposure estimates. In addition, the modeled exposure estimates on which the amount of take authorized is based for some species (versus group size or PSO data adjustments) do not consider natural avoidance of marine mammals to noise levels that could elicit PTS, or the use of mitigation such as shutdown or clearance zones, which are designed to effect the least practicable adverse impact on marine mammals, including North Atlantic right whales (

e.g.,

pile driving may not commence and must shut down if a North Atlantic right whale is observed at any distance).

NMFS has retained the exposure estimate methodology from the proposed rule despite the potential for less pile driving per day (equating to more days of pile driving) for the reasons provided above. In some cases, as described in this final rule, we have increased the amount of take authorized from that proposed for some species (

e.g.,

increased Level A harassment for marine mammals with modeled Level A harassment exposures) (see Comments 3, 5, and 6). Furthermore, as described above, there are numerous other conservative assumptions in the model such that, when considered together, support NMFS assessment that the number of take authorized represents the number of take expected to occur incidental to the impact installation of monopiles.

For these reasons, NMFS disagrees with the Commission's assessment that the number of take is underestimated for monopile installation and has not adjusted take based on the possibility that only a single monopile is installed per day.

Comment 5:

The Commission recommended that NMFS should authorize the model-estimated Level A harassment takes of fin whales, minke whales, sei whales, harbor porpoises, gray seals, and harbor seals during impact installation of monopiles.

Response:

NMFS agrees with the Commission that some Level A take of the species referenced may occur; however, NMFS disagrees that the full number of modeled Level A exposures should equate to the number of take authorized for all species. The exposure modeling resulted in the following estimated number of Level A harassment (PTS) exposures incidental to impact installation of monopiles: 7 humpback whales, 7 fin whales, 3 sei whales, 61 minke whales, 321 harbor porpoises, 5 gray seals, and 32 harbor seals. Revolution Wind requested and NMFS proposed to authorize in the proposed rule 7 Level A harassment (PTS) takes of humpback whales because the size of the large whale shutdown zone (summer 2.3 km; winter 4.4 km) is smaller than the distance to the PTS Level A harassment isopleth (summer 2.66 km; winter 6.29 km) for this species. NMFS did not propose Level A harassment of other marine mammals because Revolution Wind did not request it and in consideration of mitigation measures, such as a prescribed shutdown zone that is larger than the 95 percent exposure range (ER

95%

) Level A harassment (PTS) zone for all species except, as noted, humpback whales. While NMFS carried this analysis forward in the proposed rule, in making the final decision to authorize Level A harassment of the additional species indicated above, NMFS considered the impracticality of implementing shutdown measures under certain pile installation circumstances (

i.e.,

pile instability or pile refusal) for safety concerns, and the cryptic nature of minke whales, harbor porpoises, gray seals, and harbor seals (particularly in higher sea states or reduced visibility conditions). Although the combination of visual and acoustic monitoring is designed to reliably detect marine mammals such that effective mitigation can be implemented, NMFS acknowledges PTS may not be entirely avoidable.

Density-based exposure modeling results indicate there is potential for 7 fin whale, 3 sei whale, 61 minke whale, 321 harbor porpoise, 32 harbor seal, and 5 gray seal PTS exposures. These numbers represent the potential for PTS absent consideration of any mitigation or natural aversion that would prevent them from approaching at the closer distances associated with PTS and are based on the assumption that all piles would be driven in the highest density month (May through December) for any given species. Hence, based on modeling assumptions alone, these values can be considered a conservative.

As described above, in the proposed rule, based on Revolution Wind's request, we considered the potential for shutdown measures to alleviate potential for PTS except for humpback whales. In consideration of the Commission's comment, we re-evaluated the potential for marine mammals of the aforementioned species to remain undetected and remain close enough and for long enough duration to accumulate energy levels necessary to elicit PTS. NMFS has determined that where PTS density-based exposure estimates are very low (

i.e.,

three sei whales, five gray seals), exposures could occur. However, where exposure estimates are higher, it would be overly conservative to assume that all exposures would occur given the required mitigation and monitoring measures, natural avoidance responses, and that piles will be installed during lower density months. Therefore, NMFS is authorizing Level A harassment to sei and gray seals equal to the exposure estimates (three sei whale, five gray seal). However, for other species, in order to appropriately consider the likelihood of aversion in the closer vicinity of the source and the likely effectiveness of the mitigation measures, we estimate that 20 percent of the calculated exposure estimates could occur (rounded to the nearest whole number), which is equal to 2 fin whale exposures, 13 minke whale exposures, 65 harbor porpoise exposures, and 7 harbor seal exposures. This adjustment is consistent with the adjustment used in the Gulf of Mexico incidental take regulations (86 FR 5354, January 19, 2021), which was informed by the associated relative risk assessment framework developed by an expert working group to support the analyses and findings in those regulations. The risk assessment framework referenced Ellison

et al.

(2016), in which modeled scenarios using animal movement models were used to evaluate predicted PTS in which no aversion was assumed relative to scenarios where reasonable assumptions were made about aversion, in line with historical response probability assumptions and that existing scientific literature suggest are appropriate. Scenarios where no aversion probability was used overestimated the potential for high levels of exposure required for PTS by about five times. Accordingly, total modeled injurious exposures calculated without accounting for behavioral aversion were multiplied by 0.2 as part of the Expert Working Group (EWG) risk analysis for the Gulf of Mexico, and we have determined that this adjustment is similarly appropriate for this analysis.

Comment 6:

The Commission recommended that NMFS include in the final rule a small number of Level A harassment takes of harbor porpoises incidental to cable landfall construction, specifically installation and removal of casing pipes.

Response:

NMFS concurs with the Commission's general recommendation and notes the Commission did not recommend a number of takes by Level A harassment. NMFS has added a small number of Level A harassment takes of harbor porpoises during pneumatic hammering installation and removal of casing pipes should this landfall construction activity occur (rather than installation of a cofferdam). Since publication of the proposed rule, Revolution Wind determined that it will be impracticable to monitor a 4-km shutdown zone. Based on NOAA shipboard observations of harbor porpoises used in habitat-based density modeling conducted by Roberts

et al.

(2016, 2023), the detection probability for harbor porpoises drops off substantially in the 750-1,000 m range when sea states are a Beaufort Sea State of 2 or less. Therefore, Revolution concluded that 750 m is the maximum practicable extent within which they could effectively monitor for harbor porpoise during casing pipe installation and removal. NMFS has adjusted the shutdown zone in this final rule to 750 m. Given this new information, similar to our approach to responding to Comments 3 and 5, we reconsidered the available information on this species' habitat distribution, the distance to the Level A harassment threshold, and the potential for harbor porpoise, a small, fast moving species that can be difficult to see, to be exposed to sound energy levels necessary to induce PTS. As described in the proposed rule, modeling results estimate that a harbor porpoise would have to remain at approximately 4 km for 3 hours of hammering per day to experience PTS (or some lesser duration if the animal approaches closer). Harbor porpoises are one of the few marine mammals known to occur regularly in Narragansett Bay (

e.g.,

Kenney and Vigness-Raposa, 2010) and are most frequently observed in winter and spring during which casing pipe installation and removal would occur (Q4 2023-Q1 2024). The potential temporal and spatial overlap of harbor porpoise occurrence with the PTS Level A harassment acoustic footprint resulting from pneumatic hammering, the size of the PTS Level A harassment zone (3,950 m), and the cryptic nature of harbor porpoises (particularly at a distance) support authorization of Level A harassment. Revolution Wind expects that it will require 8 days of pneumatic hammering to install the casing pipes. Because Revolution Wind has not specified exactly which 8 days in Q4 2023-Q1 2024 casing pipe installation would occur, it is possible that they would complete this activity in December or January, when harbor porpoise densities near the landfall construction site are an order of magnitude higher than in the other months in which the species consistently utilizes habitat in/near Narragansett Bay (March-May), and the potential for acoustic impacts from pneumatic hammering is highest. Given that there are no modeled results for takes by Level A harassment, NMFS conservatively assumes that one group (group size = 2.7 rounded to 3; Kraus

et al.,

2016) may be taken by Level A harassment per day of pneumatic hammering (n=8). Therefore, NMFS is authorizing 24 takes by Level A harassment zone of harbor porpoises incidental to casing pipe installation.

Comment 7:

The Commission is concerned the number of take of common dolphin proposed to be authorized (3,913 common dolphins across all activities) is an underestimate considering the size of the Level B harassment zones, the potential number of days of activities, and the known presence of delphinids in the area, and recommended that NMFS ensure that the number of Level B harassment takes of common dolphins is sufficient for impact driving of monopiles or other activities (landfall construction, HRG surveys, and UXO/MEC detonations) and increase the total number, as necessary, for the final rule. The Commission notes that other wind-energy operators have had to revise their HRG survey incidental harassment authorization mid-authorization and in some cases, twice when the authorized number of takes had been met (

e.g.,

86 FR 13695, March 10, 2021), thus, there is the potential for this to occur for Revolution Wind given the frequency of common dolphin occurrence in the Project Area. The Commission notes 4,644 common dolphins were observed in the lease areas during combined HRG surveys (

i.e.,

site assessment surveys) for Revolution Wind and two other wind projects from September 2019 to September 2020 (Smultea Environmental Sciences, LLC, 2020).

Response:

NMFS acknowledges the importance of accurate take estimates. NMFS notes that the IHA referenced by the Commission that required multiple revisions to increase the authorized take numbers for delphinids, including

common dolphins, was associated with HRG surveys occurring off the coast of Virginia and therefore, is not representative of occurrence patterns in the Project Area. Regarding the cited monitoring results from Smultea Environmental Sciences, LLC (Smultea) (2020) from Orsted Wind Power, LLC's HRG surveys (84 FR 52464, October 2, 2019), NMFS also notes that this survey covered 103,186 km while Revolution Wind only plans to survey 29 percent of that distance (30,345 km). However, the common dolphin sighting data in the Smultea (2020) monitoring report can inform estimates of take within the Project Area, given that the area surveyed included the Revolution Wind and surrounding leases.

Importantly, the common dolphin take numbers Revolution Wind requested and NMFS proposed for authorization were based on the best scientific information available and a conservative methodology, including that the number of takes was the largest estimate among multiple take estimation methods (

i.e.,

modeled density-based exposures, PSO data-derived estimates, and published group size value) and the data used to estimate take incidental to cofferdam installation were collected outside Narragansett Bay, where common dolphin occur more frequently.

NMFS disagrees that authorization of additional take of common dolphins incidental for landfall construction activities and WTG foundation installation is warranted. While common dolphins are known to occur near the landfall construction location in Narragansett Bay, the frequency of occurrence is expected to be significantly less than that in open water; thus, the number of takes is conservative as it is based on oceanic PSO data. In addition, common dolphins are rarely sighted in Narragansett Bay in the winter months (Kenney and Vigness-Raposa, 2010) when cable landfall construction will take place. The proposed common dolphin density-based Level B harassment take estimate for impact foundation installation incorporated the maximum monthly average density, which occurs in December. However, the final rule specifies that Revolution Wind must not plan to install foundations in December and may only do so with NMFS-explicit approval. Thus the take estimate for landfall construction activities is conservative.

NMFS agrees with the Commission's recommendation to increase the number of Level B harassment take of common dolphins incidental to UXO/MEC detonation given the prevalence of the species in southern New England; however, the Commission did not provide any suggested number of takes NMFS should authorize and, as described previously, based their recommendation partially on PSO sighting data that include observations of common dolphins over a much larger spatial scale than the Project Area. While there is no new information to consider, similar to our approach to responding to Comments 3, 5 and 6, we reconsidered the available information on this species' monthly densities, which NMFS considers the best available science for this purpose, and the currently unpredictable timing of UXO/MEC detonations. Given the timing of UXO/MEC detonations is unknown, it's equally possible that detonations could occur when common dolphin densities are highest or lowest in the Project Area, although take estimation did conservatively incorporate the maximum average monthly common dolphin density from May-December in the Lease Area (November) and export cable route (September). In addition, Revolution Wind assumed six and seven detonations would occur in the export cable corridor and Lease Area, respectively. However, it is possible that more than the estimated number of UXO/MECs could be located and detonated in either area. The maximum average monthly density used to estimate take in the export cable corridor (0.0389 individuals/km

2

) is approximately half of the Lease Area maximum average monthly density. (0.0762 individuals/km

2

). Thus, should more than seven detonations (if required) occur in the Lease Area, the estimated Level B harassment take incidental to UXO/MEC detonation could be underestimated. Based on these factors, NMFS assumed that one group (group size = 34.9, rounded to 35) could be taken by Level B harassment incidental to approximately half (n=7) of all UXO/MEC detonations, and is, therefore, authorizing a total of 632 common dolphin Level B harassment takes due to UXO/MEC detonations; a change from the proposed rule of 211 as the corrected number of Level B harassment takes of common dolphin which Revolution Wind requested was 387 and the addition of 245 takes by Level B harassment as a result of a comment from the Commission.

Please note that Revolution Wind is required to implement the As Low as Reasonably Practicable (ALARP) process, which indicates that detonation would occur as a last resort after all other methods (

e.g.,

lift-and-shift) are exhausted.

NMFS agrees with the Commission's recommendation to increase take of common dolphins incidental to HRG surveys and is authorizing an additional number of common dolphin takes based on data in the PSO monitoring report cited in their comment, which NMFS considers to be the best available science for this purpose. The total number of common dolphins sighted by PSOs is highly variable, depending on the survey timing (which may align more or less with peaks in expected common dolphin occurrence), the number of kilometers surveyed, and survey conditions, among other factors. As described above, Revolution Wind anticipates that they may conduct HRG surveys at any time of year throughout construction and non-construction years. Given common dolphins are one of the most frequently sighted species during HRG surveys (as reported by PSOs in the monitoring reports cited here) and the number of dolphins sighted is highly variable and dependent on multiple influencing factors (

e.g.,

time of year), NMFS is conservatively authorizing 4,457 common dolphin Level B harassment takes incidental to HRG surveys during the year of construction, which is equivalent to the number of common dolphins taken by Level B harassment during the HRG surveys the Commission refers to in their comment (Smultea Environmental Sciences, LLC, 2020). This is an 89 percent increase from the 2,354 common dolphin Level B harassment takes proposed for authorization (87 FR 79072, December 23, 2022). Accordingly, NMFS is authorizing 1,094 takes per year (89 percent increase from 579 per year, as presented in the proposed rule) of common dolphins, by Level B harassment, incidental to HRG surveys for each of the 4 years following construction (4,376 total in the years following construction).

Comment 8:

The Commission recommended that NMFS determine if the 2017 Department of the Navy's (2017) group size estimates are more appropriate or reflective of the expected group size estimates for the Project than those used in the proposed rule (see Borcuk

et al.,

2017). If so, the Commission suggested the take numbers be amended in the final rule for all of Revolution Wind's activities.

Response:

We appreciate the Commission's suggestion to review the 2017 Department of the Navy's (2017) group size estimates to see if they are more applicable for the Project (see Borcuk

et al.,

2017). Based on our review, we disagree that the Navy's group size estimates are the most

applicable in this case. First, the Navy only provides group size estimates for odontocetes, which means we would still need to find applicable estimates for non-odontocete species found in the Atlantic Ocean. Second, the group sizes provided in Kraus

et al.

(2016) (used for 10 species in our analysis) are derived from data gathered specifically in the Massachusetts and Rhode Island/Massachusetts Wind Energy Areas (MA and RI/MA WEAs), where Revolution Wind's Project will occur. The group sizes in the Navy (2017) report are based on data collected more broadly across the entire East Coast of the United States and Canada, including the Gulf of Mexico, Sargasso Sea, Labrador Sea, and Labrador Basin. Furthermore, Atlantic Marine Assessment Program for Protected Species (AMAPPS) data (Palka

et al.,

2017; which was used as a group size reference for six species in our analyses) uses more recent information, as demonstrated in the 2010-2021 annual reports found on NMFS' web page, (

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

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

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

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

et al.

(2016) and AMAPPS (Palka

et al.,

2017). For these reasons, the group sizes proposed by Revolution Wind, any adjustments using Kraus

et al.

(2016) or AMAPPS data, and any group sizes used in the proposed and final rules are based on the best available scientific information.

Comment 9:

The Commission disagrees with NMFS that the potential for non-auditory injury and mortality during UXO/MEC detonations are considered

de minimis.

They stated that although non-auditory injury and mortality could be unlikely, these outcomes are not

de minimis

because these assumptions were based off Bellmann

et al.

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

i.e.,

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

i.e.,

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

The Commission also recommended that NMFS estimate and authorize Level B harassment behavior takes of marine mammals, in addition to takes from temporary threshold shift (TTS), for UXO/MEC detonations in the final rule. Finally, the Commission recommended that, because of the reasons already explained regarding attenuating UXO/MEC detonations, NMFS should require that Revolution Wind utilize a double big bubble curtain (DBBC) during all detonations and that NMFS not allow Revolution Wind to detonate UXOs/MECs when currents are moving faster than 2 knots (kn; 2.3 miles per hour (mph)).

Response:

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

et al.

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

pk

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

et al.,

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

et al.,

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

et al.,

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

et al.

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

et al.

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

i.e.,

with a sufficiently large diameter to suppress the flow of displaced water). Therefore, the choice of 10 dB as a broadband attenuation for UXO/MEC detonations in our analysis is based on the best scientific information available and thus is appropriate.

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

NMFS is requiring Revolution Wind to meet the noise levels modeled assuming 10-dB attenuation, which

must be verified by SFV and, as recommended by the Commission, is requiring Revolution Wind deploy a double big bubble curtain (DBBC) during all UXO/MEC detonations. Further, we are requiring that the bubble curtain be placed at a distance such that the nozzle hose remains undamaged. Given the best available science suggests 10-dB attenuation is achievable, the additional information provided above by JASCO, the requirement to meet the noise levels modeled assuming 10 dB, and the requirement to use a double big bubble curtain, as well as the extensive monitoring requirements associated with the clearance requirements (including aerial surveys if the clearance zone is greater than 5 km), NMFS has not adjusted any distances to thresholds or take estimates assuming no noise attenuation. At this time, NMFS is not requiring UXO/MEC detonation be limited to times when current speed is 2 kn (2.3 mph) or less but, as described above, is requiring Revolution Wind to meet the noise levels modeled. Should SFV identify that noise levels are not being met, NMFS will consider the current conditions during detonation and determine if such a measure is necessary to meet the noise levels modeled assuming 10-dB attenuation. Nonetheless, regarding the Commission's comment about use of the term “

de minimis

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

NMFS agrees with the Commission that there is potential for behavioral disturbance from a single detonation per day and this impact is accounted for with the Level B harassment takes authorized from UXO/MEC detonations. The current take estimation framework allows for the consideration of animals exhibiting behavioral disturbance during single explosions as they are counted as “taken by Level B harassment” if they are exposed above the TTS threshold, which is 5-dB higher than the explosive behavioral harassment threshold. The behavioral threshold for underwater detonations (

i.e.,

5 dB less than the TTS thresholds for each functional hearing group) that the Commission identifies in its comment is only applicable to multiple detonations per day. We acknowledge in our analysis that individuals exposed above the TTS threshold may also be harassed by behavioral disruption and those potential impacts are considered in the negligible impact determination. NMFS is not aware of evidence to support the assertion that animals will have behavioral responses that would qualify as take to temporally and spatially isolated explosions at received levels below the TTS threshold. However, if any such responses were to occur, they would be expected to be few and to result from exposure to the somewhat higher received levels bounded by the TTS thresholds and would, thereby, be accounted for in the take estimates. The derivation of the explosive injury criteria is provided in the 2017 technical report titled “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III).”

In the final rule, we have clarified that (1) Revolution Wind will be limited to detonating one UXO/MEC per day, and (2) that the TTS thresholds provided in Table 5 are used to estimate the potential for Level B (behavioral) harassment. In both the proposed and this final rule, NMFS applied the TTS thresholds to determine the received level at which Level B harassment (which includes both behavioral responses and TTS) may occur. Hence, no adjustments to take estimates are necessary.

Comment 10:

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

Response:

The proposed rule clearly states that no take of North Atlantic right whales by Level A harassment, mortality, or serious injury was requested or proposed for authorization (see the Estimated Take and Negligible Impact Analysis and Determination sections in the proposed rule) and those statements are also included in this final rule. In this final rule, for example, Tables 27 and 28 show that only Level B harassment is authorized for North Atlantic right whales, and the North Atlantic right whale sub-section in the Negligible Impact Analysis and Determination section also states that no take of North Atlantic right whale by Level A harassment, mortality, or serious injury is anticipated or authorized and any take that is authorized is limited to Level B harassment only.

Mitigation

Comment 11:

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

et al.

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

Response:

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

In response to the recommendation by the commenters for NMFS to confirm that a 10-dB reduction is achieved, NMFS clarifies that, because no unattenuated piles would be driven, there is no way to confirm a 10-dB reduction; rather, in-situ SFV measurements will be required to confirm that sound levels are at or

below those modeled assuming a 10-dB reduction.

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

Comment 12:

To minimize the risk of vessel strikes for all whales, especially in recognition of the imperiled state of North Atlantic right whales, commenters recommended that NMFS require a mandatory 10-kn (11.5 mph) speed restriction for all project vessels (including PSO survey vessels) at all times, except for reasons of safety, and in all places except in limited circumstances where the best available scientific information demonstrates that whales do not occur in the area. Another commenter made the same recommendation but suggested no exceptions. Alternatively, commenters suggest that project proponents could work with NMFS to develop an “Adaptive Plan” that modifies vessel speed restrictions if the monitoring methods informing the Adaptive Plan are proven as effective when for vessels traveling 10 kn (11.5 mph) or less and must follow a scientific study design. One commenter suggests that if the Adaptive Plan is scientifically proven to be equally or more effective than a 10-kn speed restriction, that the Adaptive Plan could be used as an alternative to the 10-kn speed restriction. Commenters also recommend that NMFS (1) require all offshore personnel to be trained to identify North Atlantic right whales and other large whales, (2) that all vessels maintain a 500 m separation distance from North Atlantic right whale, 100 m for other large whale species while also maintaining a vigilant watch for North Atlantic right whale and other large whale species, (3) that NMFS require vessels to slow down or maneuver their vessels appropriately to avoid a potential interaction with a North Atlantic right whale and other large whale species, and (4) that NMFS require vessels to maintain a separation distance from North Atlantic right whales at all times.

Response:

NMFS acknowledges that vessel strikes pose a risk to all large whales, including North Atlantic right whales. Based on the density information provided by Roberts

et al.

(2023), many large whale species are less frequently found within the Revolution Wind Project Area during the months when foundation installation, which requires the use of multiple vessels, would occur (

i.e.,

May through November and possibly December, if approved by NMFS). Furthermore, while we acknowledge that North Atlantic right whales can be found year round in the Project Area, NMFS, as described in the proposed rule and included in this final rule, is requiring Revolution Wind to reduce speeds to 10 kn (11.5 mph) or less in circumstances when North Atlantic right whales are known to be present or more likely to be in the area, which include, but are not limited to, all Slow Zones (Dynamic Management Area or acoustic Slow Zone), when traveling between ports in New Jersey, New York, Maryland, or Virginia from November 1-April 30, and if a North Atlantic right whale is detected visually or acoustically at any distance or reported within 10 km. Vessels are also required to slow and maintain separation distances if other species of large whales are observed. Additionally, aside from any requirements of this rule, Revolution Wind is required to comply with all spatial and temporal speed restrictions outlined in existing regulations. Together, these speed requirements align with the commenters' recommendations.

The required mitigation measures, all of which were included in the proposed rule and are now required in the final rule, can be found in Section 217.274(b) of the regulatory text. For the final rule, NMFS has also included a requirement that all vessels be equipped with automatic identification system (AIS) to facilitate compliance checks with the speed limit requirements. At least 180 days prior to the start of vessel operations commencing, Revolution Wind must submit both a Vessel Strike Avoidance Plan, including plans for conducting PAM in the transit corridors should Revolution Wind determine they wish to travel over 10 kn (11.5 mph) in the transit corridors, to NMFS for review and approval.

While NMFS acknowledges that vessel strikes can result in injury or mortality, we have analyzed the potential for vessel strike resulting from Revolution Wind's activity and have determined that based on the required mitigation measures specific to vessel strike avoidance included in the final rule, the potential for vessel strike is so low as to be discountable and thus, no vessel strikes are expected or authorized to occur. These measures also ensure the least practicable adverse impact on species or stocks and their habitat. Therefore, we are not requiring project-related vessels to travel 10 kn (11.5 mph) or less at all times.

Comment 13:

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

Response:

NMFS has restricted foundation installation pile driving from January through April which represent the times of year when North Atlantic right whales are most likely to be in the Project Area. We recognize that the density of whales begins to elevate in December; however, it is not until January when density greatly increases. Revolution Wind has indicated that to complete the project, pile driving in December will be avoided as much as possible but may be required. In this final rule, NMFS has included an additional measure wherein impact pile driving must be avoided to the maximum extent practicable in December; however, with prior approval by NMFS, it may occur if necessary to complete the project. In any time of year when foundation installation is occurring, a visual or acoustic detection of a North Atlantic right whale at any distance triggers a pile driving delay or shutdown. We also reiterate that Revolution Wind is required to implement a larger minimum visibility zone in December (4.4 km (2.7 mi)) as compared to other project months (2.3 km), reflecting the results of JASCO's underwater sound propagation modeling. With the application of these enhanced mitigation and monitoring measures in December, impacts to the North Atlantic right whale will be further reduced, if any are encountered when transiting through the Project Area.

Regarding further restrictions on pile driving in the month of November, as noted in the comments and supporting information and acknowledged by NMFS in both the proposed and final rules, North Atlantic right whale distribution is shifting due to climate

change and other factors, and they are now present year round in the vicinity of the project (

e.g.,

Quintana-Rizzo

et al.,

2021), with observations of feeding behavior and some detections of mothers with calves. However, as shown in Roberts

et al.

(2023), which is considered the best available science regarding marine mammal densities in the Atlantic Ocean, it is not until January that densities begin to significantly increase. Further, North Atlantic right whales are not likely to be engaged in extensive feeding behaviors in the Project Area, in November, relative to the extent of foraging in habitat to the east (

e.g.,

in and around Nantucket Shoals). For these reasons and given the inclusion of December in the pile driving temporal restrictions, except with NMFS prior approval, NMFS finds that further expansion of the pile driving restrictions (beyond December-April) is unwarranted.

Inasmuch as commenters may be suggesting prohibiting pile driving when any protected species are present, it would not be practicable to implement as there is no time of year when some species of marine mammals are not present. The measures prescribed in this final rule ensure the least practicable adverse impact on species or stocks and their habitat.

Comment 14:

Commenters recommended that NMFS increase the size of the clearance and shutdown zones for HRG surveys, require a delay in the start and resumption of HRG surveys and pile driving if a large whale is visually or acoustically detected in the clearance and shutdown zones, require soft start for pile driving and ramp up for HRG surveys, and require PAM during HRG surveys. In addition, a commenter acknowledges the purpose of an exemption from shutdown for safety reasons for pile driving but recommends that, if this exemption occurs, Revolution Wind must immediately notify NMFS and provide justification for using the exemption. Additionally, a commenter stated that a summary of the frequency of these exceptions must be made publicly available.

Response:

NMFS disagrees with the commenters' recommendation to increase HRG survey clearance and shutdown zone sizes, and the commenters' do not provide additional scientific information for NMFS to consider to support their recommendation. As described in the proposed rule and this final rule, the required 500-m shutdown zone for North Atlantic right whales exceeds the modeled distance to the largest 160-dB Level B harassment isopleth (141 m during sparker use) by a large margin, minimizing the likelihood that they will be harassed in any manner during this activity. For other Endangered Species Act (ESA)-listed species (

e.g.,

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

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

) determined that a 100-m shutdown zone is sufficient to minimize exposure to noise that could be disturbing. Accordingly, NMFS has adopted this shutdown zone size for all baleen whale species, other than the North Atlantic right whale.

NMFS notes that the recommended requirement that any detection of a North Atlantic right whale (visually, and acoustically for pile driving) in the associated clearance zone during the clearance period would trigger a delay to the onset of HRG surveys and pile driving was included in the proposed rule and is included in this final rule. Similarly, NMFS notes that the recommended requirement that any detection of a North Atlantic right whale (visually, or acoustically in the associated “exclusion” zone) while pile driving is occurring would trigger a shutdown of pile driving (with the noted safety exception) was included in the proposed rule and is included in this final rule. In this final rule, NMFS has also added the requirement that shutdown of pile driving must occur if a North Atlantic right whale is visually detected at any distance or acoustically detected at any distance within the PAM monitoring zone.

Regarding the resumption of pile driving and HRG surveys following a shutdown, NMFS notes that the following requirements were included in the proposed rule and in this final rule: (1) PSOs must monitor clearance zones prior to impact pile driving or use of survey equipment starting, (2) impact pile driving and survey activities must begin only when the Lead PSO confirms that no North Atlantic right whales or other marine mammal species have been detected in the applicable clearance zones, and the PAM operator confirms no detection of North Atlantic right whales (for pile driving), and (3) soft-start to pile driving or ramp-up to HRG surveys are required.

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

et al.,

2012; McKenna

et al.,

2012; Rolland

et al.,

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

et al.,

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

Further, there are several additional reasons why we do not agree that use of PAM is warranted for HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances (

e.g.,

foundation installation), its utility in further reducing impacts during HRG survey activities is limited. For this activity, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 141 m); this reflects the fact that the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low (particularly because of flow noise masking vocalizations). Together, these factors support the limited value of PAM for use in reducing take for activities/sources with smaller zones. Also, PAM is only capable of detecting animals that are actively vocalizing,

while many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially have reduced impacts). Additionally, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult.

Given that the effects to marine mammals from the types of HRG surveys authorized in this final rulemaking are expected to be limited to low level behavioral harassment even in the absence of mitigation, the limited additional benefit anticipated by adding this detection method (especially for North Atlantic right whales and other low frequency cetaceans, species for which PAM has limited efficacy during this specific activity), and the cost and impracticability of implementing a full-time PAM program, we have determined the current requirements for visual monitoring are sufficient to effect the least practicable adverse impact on the affected species or stocks and their habitat during HRG surveys.

Regarding the recommendation that Revolution Wind should be required to notify NMFS in the event that mitigation actions are not undertaken based on specific exceptions (

e.g.,

unable to shutdown pile driving for safety reasons), NMFS notes that both the proposed and final rules require weekly, monthly, and annual reports where Revolution Wind must provide reasons why mitigation actions could not occur (including for this exception). We acknowledge the importance of transparency in the reporting process and plan to make all final annual and 5-year marine mammal monitoring reports and final SFV report on our website. However, NMFS will not be making the weekly or monthly reports available to the public given the amount of total reports that would be obtained over a 5-year period.

NMFS has determined that the prescribed mitigation requirements are sufficient to effect the least practicable adverse impact on all affected species or stocks.

Comment 15:

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

Response:

The commenters do not provide additional scientific information for NMFS to consider to support their recommendation to expand clearance and shutdown zones to effect the least practicable adverse impact on marine mammals, particularly large whales, excluding the North Atlantic right whale. The required shutdown and clearance zones (equally sized) for large whales (other than North Atlantic right whale) are based on the largest exposure range calculated for any mysticete, other than humpback whales, that represents the distance to the Level A harassment (isopleth for the low frequency hearing group, rounded up to the nearest hundred for PSO clarity. Required monitoring and mitigation for these zones will minimize Level A harassment and Level B harassment to the extent practicable and avoid most Level A harassment of large whales (note that for all but minke whales (n = 21), other species of large whales have 9 or fewer takes by Level A harassment across all 5 years of the rule). Further enlargement of these zones could interrupt and delay the project such that a substantially higher number of days would be needed to complete the construction activities, which would incur additional costs but, importantly, also potentially increase the number of days that marine mammals are exposed to the disturbance. Accordingly, NMFS has determined that enlargement of these zones is not warranted, and that the existing required clearance and shutdown zones support a suite of measures that will effect the least practicable adverse impact on other large whales.

Comment 16:

Commenters recommended that NMFS require clearance and shutdown zones for North Atlantic right whales specifically, including (1) a minimum of 5,000 m (3.1 mi) for the visual clearance, acoustic clearance, and shutdown zones in all directions from the driven pile location; and (2) an acoustic shutdown zone that would extend at least 2,000 m (1.2 mi) in all directions from the driven pile location.

Response:

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

Comment 17:

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

Response:

As described in the proposed rule, NMFS is requiring the use of PAM to monitor 10 km zones around the piles and that the systems be capable of detecting marine mammals during pile driving within this zone. However, NMFS acknowledges that this could be made clearer and has modified Table 29 to clearly specify this 10-km PAM monitoring zone. Revolution Wind is required to submit a PAM Plan to NMFS for approval at least 180 days prior to the planned impact pile driving start date. NMFS will not approve a Plan where hydrophones used for PAM would be deployed from the pile driving vessel as this would result in hydrophones inside the bubble curtains, which would clearly be ineffective for monitoring; therefore, there is no need to explicitly state in this rule that this would not be allowed. Further, Revolution Wind may launch PAM drones from shore; hence, NMFS is not requiring that Revolution Wind deploy any monitoring systems from a vessel.

Comment 18:

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

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

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

i.e.,

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

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

Response:

NMFS acknowledges the limitations inherent in visual detection of marine mammals at night and that these could potentially result in some limited number of marine mammals being exposed to higher levels of sound for a longer duration before a shutdown was implemented. However, there are offsetting benefits to completing the pile driving in a shorter total amount of time, in that some number of marine mammals (those that might intersect the much larger Level B harassment zone) would be exposed to fewer overall days of pile driving noise, and potentially a smaller magnitude or severity of behavioral disturbance as a result given repeated exposures would be minimized. Further, Revolution Wind submitted a final draft Alternative Monitoring Plan (AMP) on August 4, 2023. NMFS will review the AMP to determine sufficiency in maximizing nighttime detection to support the required mitigation measures. Should NMFS approve the AMP, nighttime pile driving may occur given Revolution Wind adherence to the AMP.

NMFS disagrees with the recommendation to require Revolution Wind to notify NMFS each time that pile(s) must be finished after dark due to safety and/or stability concerns and note that the rule already requires weekly reports during foundation installation, which must contain information that would inform on how long impact pile driving occurred and if it was necessary for this activity to occur during hours of darkness (

i.e.,

information that would document the daily start and stop of all pile-driving activities). These weekly reports would be combined into monthly and annual reports. We do not plan to make the weekly or monthly reports publicly available, due to the number or reports that Revolution Wind must submit to NMFS; however, as described in Comment 39, we do plan to make the final reports available, which must summarize all of the information contained in the weekly and monthly reports. Accordingly, NMFS has determined requiring additional reporting beyond that described in the proposed rule is not warranted and that the existing reporting requirements support a suite of measures that will effect the least practicable adverse impact on marine mammals and their habitat.

Comment 19:

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

Response:

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

i.e.,

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

i.e.,

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

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

Comment 20:

Commenters recommended that NMFS prohibit HRG surveys during times of highest risk for North Atlantic right whales (foraging and migration and times when mother-calf pairs, pregnant females, surface active groups, or aggregations of three or more whales (indicative of feeding or social behavior), using the best available science to define high-risk timeframes. Commenters stated that the Project is sited in critically important year round North Atlantic right whale foraging and socializing habitat; thus, NMFS should require corresponding year-round protections and critical mitigation measures. Commenters recommended that NMFS develop a real-time mitigation and monitoring protocol to dynamically manage the timing of HRG surveys to ensure those activities are undertaken during times of lowest risk for all relevant large whale species.

Response:

NMFS neither anticipates nor authorizes take of North Atlantic right whales by Level A harassment (PTS) from this activity. While NMFS is authorizing a total 22 Level B harassment takes of North Atlantic right whales incidental to HRG surveys over the 5-year effective period of this rulemaking, the required mitigation will

affect the least practicable adverse impact on the species from this activity. Specifically, the largest modeled Level B harassment zone size for the sparker (141 m) is already much smaller than the required separation, clearance, and shutdown distances for North Atlantic right whale (500 m) and any unidentified large whale must be treated as if it were a North Atlantic right whale, triggering associated mitigation. Any Level B harassment that is not avoided is not expected to impact important feeding or other behaviors that may occur throughout the year in the Project Area in a manner that poses energetic or reproductive risks for any individuals. NMFS also notes that North Atlantic right whale presence, while not completely absent, decreases significantly during summer months as compared to winter when the majority of foundation installation would occur. Given the minimal anticipated impacts of the HRG survey, NMFS disagrees that additional mitigation measures, including dynamic management of HRG surveys timing, are warranted.

Comment 21:

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

Response:

The recommended requirements were included in the proposed rule and are carried forward in this final rule. Also, as proposed, this final rule includes a requirement that Revolution Wind review PAM data collected for at least 24 hours immediately prior to pile driving, for situational awareness. NMFS notes that if PAM continues throughout any pauses in pile driving, Revolution Wind is not required to begin the clearance process again (

i.e.,

monitor for 60 minutes, ensuring the clearance zone is free of marine mammals for 30 minutes immediately prior to recommencing pile driving). However, pile driving would not be allowed to recommence until the clearance zones are confirmed to be visually and acoustically clear of marine mammals.

Comment 22:

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

Response:

As proposed, this final rule requires Revolution Wind to use the ALARP approach such that detonation would be the last resort to removing a UXO/MEC. That is, Revolution Wind is required to use detonation as a means of removing UXO/MECs only if all other options of removal have been exhausted. The following proposed mitigation measures are also required by this final rule: Revolution Wind will be required to implement visual monitoring using PSOs and PAM prior to detonation; these PSOs and PAM operators will be required to clear the appropriate zones prior to Revolution Wind detonating any UXO/MEC; SFV must be conducted on every UXO/MEC; and a double big bubble curtain must be used that is positioned far enough away from the blast such that the hose nozzles are not damaged.

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

Comment 23:

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

Response:

NMFS agrees and notes, as described in the proposed rule and this final rule, that the regulations apply to Revolution Wind and those persons it authorizes or funds to conduct the specified activities on its behalf; a copy of the LOA must be in the possession of Revolution Wind, its designees, all vessel operators, PSOs/PAM operators; and Revolution Wind must ensure that the vessel operator and other relevant vessel personnel, including the PSO team, are briefed on all responsibilities, communication procedures, marine mammal monitoring protocols, operational procedures, and rule requirements prior to the start of survey activity, and when relevant new personnel join the survey operations.

Comment 24:

A commenter raised concerns about offshore wind activities leading to increases in vessel traffic and vessel noise, which may increase the risk of North Atlantic right whales being struck by a vessel and may disrupt normal North Atlantic right whale behavior. Another commenter recommends that NMFS restrict vessels of all sizes associated with the projects to travel at 10 kn (11.5 mph) or less at all times to avoid vessel strikes to North Atlantic right whales. Other commenters recommend that NMFS require management measures of all boats that reduces the risk of lethal vessel strikes to a level approaching zero. They suggest implementing a mandatory 10 kn (11.5 mph) speed restriction for all project-associated vessels at all times, except in limited circumstances where the best available scientific information demonstrates that whales do not use an area. In addition, a commenter claims that vessel speed restrictions are not ‘fully mandated' or enforced for offshore wind vessels.

Response:

While NMFS acknowledges that vessel strikes can result in injury or mortality, we have analyzed the potential for vessel strike resulting from Revolution Wind's activities and have determined that based on the nature of the activity and the required mitigation measures specific to vessel strike avoidance included in the rulemaking, the potential for vessel strike is so low as to be discountable. All of the mitigation measures that were included in the proposed rulemaking are now required in the final regulations (see § 217.274(b)). Based on our analysis, we have determined that the vessel strike avoidance measures in the rulemaking are sufficient to ensure the least practicable adverse impact on species or stocks and their habitat.

Furthermore, we contend that the commenter who raised concerns about offshore wind activities leading to increases in vessel traffic and vessel noise is conflating two different points: there is a difference between vessel strike risks and impacts to marine mammals due to noise from construction. NMFS acknowledges the aggregate impacts of Revolution Wind's vessel operations on the acoustic habitat of marine mammals and has considered it in the analysis (see responses to Comments 14 and 42). Another commenter's reference to vessel speed restrictions being “not fully mandated” is unclear. NMFS refers again to the required vessel strike avoidance measures described above. The commenter does not provide a rationale for its suggestion that vessel speed restrictions are not enforced for offshore

wind vessels. We note that all vessels associated with Revolution Wind's activities must be equipped with a properly installed, operational Automatic Identification System (AIS) device and Revolution Wind must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources, thus facilitating monitoring of vessel speeds. In addition, NMFS maintains an Enforcement Hotline for members of the public to report violations of vessel speed restrictions. Further, the LOA states that the authorization may be modified, suspended, or revoked if the holder fails to abide by the conditions prescribed therein.

Comment 25:

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

Response:

The MMPA requires that we include measures that will effect the least practicable adverse impact on the affected species and stocks and, in practice, NMFS agrees that the rule should include conditions for the construction activities that will first avoid adverse effects on North Atlantic right whales in and around the Project Area, where practicable and then minimize the effects that cannot be avoided. NMFS has determined that this final rule meets this requirement to effect the least practicable adverse impact. The commenter does not make any specific recommendations of measures to add to the rulemaking. NMFS is required to authorize the requested incidental take if it finds such incidental take of small numbers of marine mammals by the requestor while engaging in the specified activities within the specified geographic region will have a negligible impact on such species or stock and where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. As described in this notice of final rulemaking, NMFS finds that small numbers of marine mammals may be taken relative to the population size of the affected species or stocks and that the incidental take of marine mammal from all of Revolution Wind's specified activities combined will have a negligible impact on all affected marine mammal species or stocks. It is not within NMFS' authority to determine the requestor's specified activities.

Comment 26:

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

Response:

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

Monitoring, Reporting, and Adaptive Management

Comment 27:

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

e.g.,

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

Response:

Regarding the recommendation that NMFS have a mechanism in place to undertake review and adaptive management on an ad hoc basis if a serious issue is identified, there are no timing restrictions in the adaptive management provisions and, therefore, NMFS may undertake review and adaptive management actions at any time under the regulations, as written. Regarding the recommendation to increase the frequency of information review, Revolution Wind is required to submit weekly, monthly, and annual reports that NMFS will review in a timely manner and may act on pursuant to the adaptive management provisions at any time and, therefore, a separate specific quarterly review is unnecessary.

Comment 28:

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

Response:

Regarding the recommendation to require acoustic monitoring (in any form) to support clearance and shutdown requirements for HRG surveys, please see NMFS response to Comment 14, which describes why PAM is not warranted for HRG surveys. With respect to the number of PSOs, NMFS is not requiring four on-duty PSOs given the very small harassment zone sizes associated with HRG surveys. In the proposed rule and in this final rule, PSOs are required to commence monitoring for marine mammals 30 minutes before HRG surveys begin; hence, this recommendation has already been satisfied.

Comment 29:

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

i.e.,

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

Response:

NMFS notes the commenter's recommendations were included in the proposed rule and are carried forward here. Specifically, NMFS described in the proposed rule, and is requiring in the final rule, that infrared technologies and PAM hydrophone deployments be available and used before, during, and after pile driving. Moreover, since publication of the proposed rule, Revolution Wind has

submitted an Alternative Monitoring Plan that includes details about advanced technologies for monitoring marine mammals at night for both trained crew observers and PSOs. As for the recommendation to specifically require drones, NMFS would evaluate any proposal including drones on a case-by-case basis but is not requiring use of this technology. The commenter did not provide data indicating drones would be more effective than other monitoring technology already required.

Comment 30:

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

Response:

NMFS notes the proposed rule aligned with the recommendation, requiring a total of four PSOs on each monitoring vessel, two on-duty and two off-duty, working in rotation. On-duty PSOs on the pile driving vessel and the secondary PSO vessel, circling at a distance from the pile, would each monitor 180 degrees. To ensure marine mammal detection is maximized, and in response to public comments, NMFS is now requiring monitoring for marine mammals before, during, and after foundation installation and is requiring in this final rule three on-duty PSOs on both platforms such that each PSO is responsible for 120 degree coverage. In addition, as proposed, this final rule requires that visual observers must be equipped with alternative monitoring technology (

e.g.,

night vision devices, infrared cameras) to monitor clearance and shutdown zones during periods of low visibility (

e.g.,

darkness, rain, fog,

etc.

).

Comment 31:

Commenters recommended that NMFS should require sound field verification during installation of WTG and OSS foundations on the first monopile installed and then on a random sample of monopiles throughout the installation process. They also noted that they do not support the installation of unmitigated piles. They added that all sound source validation reports for field measurements must be made publicly available after being evaluated by both NMFS and BOEM prior to the installation of any additional monopiles. Finally, the Commission recommended that NMFS require wind farm applicants to include monitoring of operational sound in their SFV plans in all future proposed rules.

Response:

NMFS notes that, as proposed, this final rule requires that no unmitigated piles can be installed and that SFV is required for the first three piles and additional piles where conditions suggest noise levels may be higher or propagate farther than those piles previously measured. Furthermore, under this final rule, Revolution Wind must ensure that measured sound levels do not exceed those modeled assuming 10 dB of attenuation, which will be validated through SFV. Revolution Wind has the Lease Area data to identify if a pile would be more difficult to drive than the initial piles measured, and the requirement that they would have to conduct SFV on such piles where information suggests a pile may be more difficult to drive. Given these requirements, NMFS does not believe random sampling is necessary.

NMFS acknowledges the importance of transparency in the reporting process (see Comment 39) and plans to make all final SFV reports on our website. Regarding the Commission's suggestion that NMFS require SFV during operations, NMFS notes this requirement was included in the proposed rule and in this final rule

Comment 32:

The Commission suggested that the monitoring measures included in the proposed rule may not be sufficient in reducing the potential for Level A harassment of North Atlantic right whales, specifically indicating that visually monitoring a 2.3 to 4.4 km would prove difficult and cited literature (Oedekoven and Thomas (2022)) estimating effectiveness of marine mammal observers (MMOs) to be 54 percent for detecting rorquals at 914 m or more, 31 percent for small cetaceans in pods of more than six, and 14 percent for small cetaceans in pods of six or fewer. The Commission did not provide any recommendations to increase visual detection capabilities.

Response:

The time of year when Revolution Wind would be conducting the majority of pile driving is when North Atlantic right whale density in the Project Area is relatively low, given that pile driving is seasonally restricted from December 1-April 30, unless Revolution Wind receives NMFS' prior approval to conduct activities in December. Although modeling predicts 17.5 Level A harassment North Atlantic right whale exposures (Table 12 in final rule), this estimate does not consider any mitigation measures, other than 10 dB of sound attenuation, or natural avoidance of the animal to loud sounds. Revolution Wind must delay or shutdown impact pile driving if a North Atlantic right whale is visually detected at any distance or acoustically detected at any distance within the PAM monitoring zone, a measure that is more conservative than the finite clearance and shutdown zones determined for other large whale species. The Commission cites information from a paper related to the use of trained lookouts and a team of two on-duty MMOs on moving Navy military vessels actively engaged in sonar training (Oedekoven and Thomas, 2022) to support its claim that visual monitoring would prove difficult. We note that these “trained lookouts” are Navy personnel who are specifically trained as lookouts in contrast to NMFS-approved PSOs who are required to have specific education backgrounds, trainings, and experience before undertaking PSO duties (see requirements found in the regulatory text at Section 217.275(a)). NMFS disagrees that the statistics generated from that report are equivalent to the effectiveness of monitoring for the Revolution Wind project. At least three PSOs would be placed on the stationary pile driving platform and three PSOs would also be placed on each of two dedicated PSO vessels traveling at slow speeds (less than 10 kn (11.5 mph)) for a total of nine PSOs. Concurrently, real-time PAM is required to supplement visual monitoring during impact pile driving and UXO/MEC detonation. Further, Revolution Wind must monitor several times daily supplemental marine mammal detection information systems (

e.g.,

the Right Whale Sighting Advisory System) to increase situational awareness. We note that the MMO team in Oedekoven and Thomas (2022) was not always using PAM in that study and had significantly more

Balaenoptera spp.

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

i.e.,

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

Comment 33:

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

Response:

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

Comment 34:

A commenter stated that Revolution Wind should be required to use PSOs at all times when underway.

Response:

NMFS is not requiring PSOs to be onboard every transiting vessel. However, as described in the proposed rule and carried forward in this final rule, Revolution Wind must have trained observers onboard all vessels. The dedicated observer may be a PSO or a crew member with no other concurrent duties. NMFS is also requiring Revolution Wind to provide a Vessel Strike Avoidance Plan to NMFS 180 days prior to the onset of vessel use. Revolution Wind submitted that plan on July 13, 2023, and a revised version on August 25, 2023. Once approved, all plans will be made available on NMFS' website.

Comment 35:

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

Response:

NMFS agrees and has included an AIS requirement in more recently issued IHAs and wind construction proposed rules. This final rule includes a requirement that all vessels associated with the project be equipped with AIS.

Comment 36:

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

e.g.,

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

Response:

NMFS notes that the Commission's recommendation for Revolution Wind to submit a PAM Plan to NMFS for approval is consistent with the proposed rule and this final rule. As proposed, under this final rule a PAM plan must be submitted to NMFS at least 180 days prior to the start of the activity. Further, NMFS identified the requirements that Revolution Wind must meet in its PAM plan in the proposed rule, which was made available for public comment, and those requirements are included in this final rule. Given NMFS' extensive expertise with passive acoustic monitoring and the fact that we are coordinating with BOEM's Center for Marine Acoustics (CMA), NMFS has determined that approval of the plan does not warrant public input. However, NMFS will share the plan with the Commission for review prior to approval of the plan. NMFS has included the Commission's recommendations, among other things, of what would be required in the PAM plan.

Comment 37:

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

i.e.,

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

i.e.,

flat R

max

, flat 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 agree with the Commission about the importance of specifying quantities to be compared following SFV and have required in the final rule that calculations of the R

95

%

SEL and R

95

%

SPL

rms

acoustic ranges for Level A harassment and Level B harassment, respectively, based on in situ measurements must be compared to the same modeled metrics.

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

Comment 38:

The Commission recommended that NMFS require Revolution Wind to include in the pile driving SFV report additional metrics not identified in the proposed rule, including SPL

rms

source levels, cumulative SEL, ranges to Level A harassment and Level B harassment thresholds, and types and locations of sound attenuation systems. In addition, the Commission recommended that NMFS require Revolution Wind to deploy a minimum of three hydrophones for SFV during impact pile driving

Response:

NMFS partially concurs with the Commission's recommendations. This final rule requires the interim report to include peak, sound pressure level (SPL), and cumulative sound exposure level (SEL

cum

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

rms

) be included in the final SFV report. Regarding the hydrophones for SFV during pile driving, NMFS is requiring that Revolution Wind place two hydrophones at four locations at an azimuth of least propagation loss and

two at 750 m and 90 degrees from this azimuth (total = 10 hydrophones).

Comment 39:

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

Response:

NMFS notes the commenters' recommendations to report all visual and acoustic detections of North Atlantic right whales and any dead, injured, or entangled marine mammals to NMFS are consistent with the proposed rule and this final rule (see Situational Reporting). We refer the reader to section 217.275(g)(13)(i)-(vi) of the regulations for more information on situational reporting.

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

https://whalemap.org/whalemap.html

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

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

). Given the open access to the resources described above, NMFS does not concur that public access to quarterly PSO reports is warranted, and we have not included this measure in the authorization. However, NMFS will post all final reports to our website. We reference the commenters to Section 217.275(g) for more information on reporting requirements in the regulations.

Effects Assessment

Comment 40:

Commenters stated that NMFS must utilize the best available science in their analysis. A commenter stated that NMFS must use the more recent and best available science in evaluating impacts to North Atlantic right whales, including updated population estimates, recent habitat usage patterns for the Project Area, and a revised discussion of the acute and cumulative stress on whales in the region. Another commenter further added that NMFS should use the most comprehensive models for estimating marine mammal take and developing robust mitigation measures.

Response:

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

et al.,

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

Regarding the comment related to the North Atlantic right whale population abundance that was cited in the proposed rule, since publication of the proposed rule, NMFS has finalized the 2022 Stock Assessment Report indicating the North Atlantic right whale population abundance is estimated as 338 individuals (Nbest; 95 percent confidence interval: 325-350; 88 FR 54592, August 11, 2023). NMFS has used this most recent best available scientific information in the analysis of this final rule. This new estimate, which is based off the analysis from Pace

et al.

(2017) and subsequent refinements found in Pace (2021), is included by reference in the final 2022 SARs (

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

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

et al.,

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

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

While NMFS cannot require applicants to utilize specific models for the purposes of estimating take incidental to offshore wind construction activities, we evaluate the models used to support take estimates to ensure that they are methodologically sound and incorporate the best available science. NMFS does require use of the Roberts

et al.

(2016, 2023) density data and SARs abundance estimates for all species, both of which represent the best available science regarding marine mammal occurrence.

Comment 41:

Several commenters raised concerns regarding the cumulative impacts of the multiple offshore wind projects being developed throughout the range of North Atlantic right whales and other marine mammal species and specifically recommend that we carefully consider the take from all of these projects in combination when conducting the negligible impact analysis for Revolution Wind. One commenter recommended NMFS establish an “IHA threshold” for offshore wind activities regionally and across project phases. Another commenter suggests NMFS' issuance of ITAs for offshore wind construction projects should be based on a Programmatic Environmental Impact Statement that assesses cumulative impacts analyses of individual projects as well as the cumulative impacts from the consequent multiple project developments rather than separate EISs for each project. Another commenter suggested that NMFS should analyze the cumulative impacts of the multiple concurrent phases of offshore wind energy development on right whales and other marine mammal species in southern New England waters prior to proceeding with permitting the Revolution Wind Project.

Response:

Neither the MMPA nor NMFS' implementing regulations call for consideration of the take resulting from other specified activities in the negligible impact analysis. The preamble to NMFS' implementing regulations (54 FR 40338, September 29,

1989) states, in response to comments, that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline (

e.g.,

as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors). The 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, this incidental take regulation (ITR), as well as other ITRs currently in effect or proposed within the specified geographic region, are appropriately considered an unrelated activity relative to the others. The ITRs are unrelated in the sense that they are discrete actions under section 101(a)(5)(A) issued to discrete applicants. Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals.

NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(A) is generally defined and described by the applicant. Here, Revolution Wind was the applicant for the ITR, and we are responding to the specified activity as described in that application and making the necessary findings on that basis.

Through the response to public comments in the 1989 implementing regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) that we would consider cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis and (2) that reasonably foreseeable cumulative effects would also be considered under Section 7 of the ESA for listed species, as appropriate. Accordingly, NMFS has adopted an EIS written by BOEM and reviewed by NMFS as part of its inter-agency coordination. This EIS addresses cumulative impacts related to Revolution Wind and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of the regulations and issuance of a LOA for construction activities, such as those planned by Revolution Wind, have been adequately addressed under NEPA in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of Revolution Wind on ESA-listed species, including North Atlantic right whales, was analyzed under Section 7 of the ESA when NMFS engaged in formal inter-agency consultation with GARFO. The Biological Opinion for Revolution Wind determined that NMFS' promulgation of the rulemaking and issuance of a LOA for construction activities associated with leasing, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.

Comment 42:

Commenters stated that (1) NMFS' reliance on the 160 dB (re 1 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) an assertion the monitoring protocols prescribed for the clearance zones are under-protective.

Response:

For the reasons described below, NMFS disagrees that the 160-dB threshold for behavioral harassment is not supported by the best available science. The potential for behavioral response to an anthropogenic source can be highly variable and context-specific (Ellison

et al.,

2012). While NMFS acknowledges the potential for Level B harassment at exposures to received levels below 160 dB rms, it should also be acknowledged that not every animal exposed to received levels above 160 dB rms will respond in ways constituting behavioral harassment. There are a variety of studies indicating that contextual variables play a very important role in response to anthropogenic noise, and the severity of effects are not necessarily linear when compared to a received level (RL). Several studies (

e.g.,

Nowacek

et al.,

2004 and Kastelein

et al.,

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

et al.

(2004) reported the behavior of five out of six North Atlantic right whales was disrupted at RLs of only 133-148 dB re 1 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 loud and contained similar frequencies to those of the alert signal. The authors state that a possible explanation for whales responding to the alert signal and not responding to vessel noise is due to the whales having been habituated to vessel noise while the alert signal was a novel sound. In addition, the authors noted differences between the characteristics of the vessel noise and alert signal, which may also have played a part in the differences in responses to the two noise types. Therefore, it was concluded that the signal itself, as opposed to the RL, was responsible for the response. DeRuiter

et al.

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

et al.

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

et al.

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

NMFS uses 160 dB (rms) as the received sound pressure level for estimating the onset of Level B behavioral harassment takes and is currently considered the best available science while acknowledging that the 160 dB

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 what criteria might be more appropriate. Defining sound levels that disrupt behavioral patterns is difficult because responses depend on the context in which the animal receives the sound, including an animal's behavioral mode when it hears sounds (

e.g.,

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

e.g.,

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

et al.,

2007; Ellison

et al.,

2012; Southall

et al.,

2021). For example, Gomez

et al.

(2016) reported that RL was not an appropriate indicator of behavioral response.

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

et al.

(2007), Gomez

et al.

(2016), and Southall

et al.

(2021) did not suggest any specific new criteria due to lack of convergence in the data. NMFS is currently evaluating available information towards development of updated guidance for assessing the effects of anthropogenic sound on marine mammal behavior. However, undertaking a process to derive defensible exposure-response relationships, as suggested by Tyack and Thomas (2019), is complex. The recent systematic review by Gomez

et al.

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

NMFS acknowledges that there may be methods of assessing likely behavioral responses to acoustic stimuli that better capture the variation and context-dependency of those responses than the simple 160 dB step-function used here; there is no agreement on what that method should be or how more complicated methods may be implemented by applicants. NMFS is committed to continuing its work in developing updated guidance with regard to acoustic thresholds but pending additional consideration and process is reliant upon an established threshold that is reasonably reflective of available science.

Regarding the assertion that monitoring protocols prescribed for the clearance and shutdown zones (called “exclusion zones” in the comment letter) are under-protective, please refer to Comments 13, 14, 22, 30.

Comment 43:

Commenters recommended that NMFS fully account for the consequences of any other proposed North Atlantic right whale seasonal restriction on other protected species and evaluate alternative risk reduction strategies that would protect multiple species.

Response:

In order to promulgate a rulemaking under Section 101(a)(5)(A) of the MMPA, NMFS must find that the total taking from the specified activities will have a negligible impact on species and stocks among other requirements, and subsequently prescribe means of effecting the least practicable adverse impact on affected species or stock and its habitat. In the proposed rule and in this final rule, NMFS has determined the specified activities will have a negligible impact on species and stock and the mitigation measures will affect the least practicable adverse impact on all of the affected species or stocks and their habitat. NMFS acknowledges that the seasonal restriction for impact pile driving is to effect the least practicable adverse impact on North Atlantic right whales; however, NMFS notes that this seasonal restriction provides additional protections to large whale species that occur off of Massachusetts during winter months. For example, fin whales are the second-most commonly occurring baleen whale species, based on density (Roberts

et al.,

2023), in the Project Area from December through February and the fin whale feeding Biological Important Area (BIA) (March through October) overlaps the seasonal restriction period (March and April). Harbor porpoises, as another example, are also more likely to be more present when foundation installation and UXO/MEC detonation would not be occurring. As described in this final rule, there is no habitat of significance in the specified geographic region other than the seasonal migratory BIA for North Atlantic right whales and a small feeding BIA for fin whales.

Comment 44:

A commenter claimed that the analyses supporting the proposed rule did not comprehensively consider potential indirect negative impacts to fishermen and coastal communities that could result from cumulative offshore wind activities, particularly as those activities impact North Atlantic right whales (

i.e.,

vessel strike). In addition, a commenter requested an explanation of how the offshore wind industry will be held accountable for their impacts and asserts that the offshore wind industry must be accountable for incidental takes from construction and operations separately from the take authorizations for managed commercial fish stocks.

Commenters expressed concern about the potential impacts of offshore wind development on marine species, particularly the North Atlantic right whale, and the potential that any disturbance, added distress, and mortality of North Atlantic right whales will be attributed to the commercial, charter, and recreational fishers who frequently access these same areas in which offshore wind development is occurring. They requested a moratorium on new incidental harassment authorizations until more is known about the potential impacts of offshore wind development on marine species.

Response:

NMFS has determined that no serious injury or mortality is anticipated to result from Revolution Wind's specified activities, and as discussed in the Negligible Impact Analysis and Determination section in this final rule, NMFS has determined that Revolution Wind's specified activities will have a negligible impact on marine mammal species or stocks. Furthermore, NMFS has determined that the mitigation measures will effect the least practicable adverse impact on marine mammals and their habitat. Neither the MMPA nor our implementing regulations require NMFS to analyze impacts to other industries (

e.g.,

fisheries) or coastal communities from issuance of an ITA pursuant to section 101(a)(5)(A). We note that the Revolution Wind Final EIS assesses the impacts of both BOEM and NMFS' actions (permitting Revolution Wind's activities and authorizing the associated take of marine mammals, respectively) on the human environment, including to fishermen and coastal communities, and NMFS considered the analysis, as appropriate, in the final decisions under the MMPA.

Regarding accountability, Revolution Wind would be required to submit frequent monitoring reports, which would include accounts of any takes by Level A harassment or Level B harassment. NMFS must withdraw or suspend any LOA, if issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with

(16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties, and knowing violations may result in criminal penalties (16 U.S.C. 1375). NMFS notes the anticipated impacts from Revolution Wind's activities (

e.g.,

behavioral harassment, acoustic disturbance, temporary hearing loss) are different from those anticipated from fishing activities (

e.g.,

entanglement).

Other

Comment 45:

Commenters encouraged NMFS to issue LOAs on an annual basis, rather than a single 5-year LOA, to allow for the continuous incorporation of the best available scientific and commercial information and to modify mitigation and monitoring measures as necessary and in a timely manner. Both commenters also state that due to the precarious nature of the North Atlantic right whale, this annual approach is necessary to implement flexible protections.

Response:

While NMFS acknowledges the commenters' rationale, we do not think it is necessary to issue annual LOAs as: (1) the final rule includes requirements for annual reports (in addition to weekly and monthly requirements) to support annual evaluation of the activities and monitoring results, and (2) the final rule includes an Adaptive Management provision (see § 217.277(c)) that allows NMFS to make modifications to the mitigation, monitoring, and reporting measures found in the LOA if new information supports the modifications and doing so creates a reasonable likelihood of more effectively accomplishing the goals of the measures.

Comment 46:

The Commission recommended that NMFS specify in section 217.275(d)(9)(ii) of the final rule that the final SFV report must include source levels at 10 m during wind turbine operations, received levels at 50 m, 100 m, and 250 m from the wind turbine, operational parameters (

i.e.,

direct drive/gearbox information, turbine rotation rate), sea state conditions, and any nearby anthropogenic activities. In addition, the Commission recommends that NMFS rectify in the final rule the following proposed rule omissions and errors: (1) Proposed section 217.272(a) should also specify impact pile driving and removal of casing pipes and vibratory pile installation or removal of goal posts, (2) Proposed section 217.272(b) omitted impact removal of casing pipes, (3) Proposed section 217.274(d)(3)(vii) contradicts proposed section 217.274(f)(5)(1), which specifies that SFV must be conducted for each UXO/MEC detonation, (4) Proposed section 217.274(f)(2) specified that seasonal restrictions for UXO/MEC detonations would be in place from 1 December through 31 April; however, April has only 30 days, (5) Bellmann (2021) was cited incorrectly as Bellmann and Betke (2021) in the preamble to the final rule. (6) The terms `small odontocetes', `delphinids and harbor porpoises', and `dolphins and porpoises' were used interchangeably throughout the various mitigation measures in proposed section 217.274, and the terms `seals' and `pinnipeds' were used interchangeably or omitted altogether from the various mitigation measures in proposed section 217.274.

Response:

We appreciate the specific suggestions provided by the Commission here. We have rectified all of the concerns described in the Commission's list, except for those found in (6) above. Please note that the Section references for each of the items noted by the

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