# Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-19587 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** September 24, 2024 - **Citation:** 89 FR 77972 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 RIN 0648-BL73 [Docket No. 240827-0228] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, the National Marine Fisheries Service (hereafter, “NMFS”) promulgates regulations to govern the incidental taking of marine mammals by Atlantic Shores Offshore Wind Project 1, LLC, the project company of the original applicant, Atlantic Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC, during the construction of the Atlantic Shores South Project (hereafter, “Atlantic Shores South” or the “Project”), an offshore wind energy project located in Federal and State waters offshore of New Jersey, specifically within the Bureau of Ocean Energy Management (hereafter, “BOEM”) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (hereafter, “OCS”) Lease Areas OCS-A-0499 and OCS-A-0570 (hereafter, “Lease Areas”) and along export cable routes to sea-to-shore transition points. The Project will be divided into 2 projects in 2 areas: Project 1 and Project 2 (the combined hereafter referred to as the “Project Area”), over the course of 5 years (January 1, 2025, through December 31, 2029). Of note, the proposed rule for this action named only OCS-A-0499 and the parent company, Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each component of the Project ( i.e., Project 1 is controlled by Atlantic Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by Atlantic Shores Offshore Wind Project 2, LLC). However, after publication of the proposed rule, Atlantic Shores Offshore Wind LLC notified NMFS that this rulemaking should be issued for Atlantic Shores Offshore Wind Project 1, LLC (“Project Company 1”). Furthermore, Project Company 1 now maintains ownership of both Project 1 and Project 2, rather than 2 separate subsidiaries for each of Project 1 and Project 2. As a result of this, the applicant requested that the Letter of Authorization (hereafter, “LOA”), if issued, be issued to Project Company 1, which would oversee the construction of both Project 1 and Project 2 (where the latter Project would be operated by “Atlantic Shores Offshore Wind Project 2, LLC” (“Project Company 2”)). These regulations, which allow for the issuance of a 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 rule is effective from January 1, 2025, through December 31, 2029. FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401. SUPPLEMENTARY INFORMATION: Availability A copy of Project Company 1's Incidental Take Authorization (hereafter, “ITA”) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT ). Purpose and Need for Regulatory Action This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361 et seq. ) for NMFS to allow the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Project Company 1 to incidentally take 16 species of marine mammals, comprising 17 stocks ( i.e., 9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only), incidental to Project Company 1's 5 years of construction activities. No mortality or serious injury is anticipated or allowed in this final rulemaking. Please see the Legal Authority for the Final Action section below for definitions of harassment, serious injury, and incidental take. 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. Allowing for and authorizing 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: (1) prescribe the permissible methods of taking; (2) analyze “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 (hereafter referred to as “mitigation”); and (3) enact requirements pertaining to the monitoring and reporting of such takings. As noted above, no serious injury or mortality is anticipated or allowed 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 (see 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 (see 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 (see 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 (see 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. This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Project Company 1's construction activities. Summary of Major Provisions Within the Final Rule The major provisions of this final rule are: • The allowed take of marine mammals by Level A harassment and/or Level B harassment; • No allowed take of marine mammals by mortality or serious injury; • The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales ( Eubalaena glacialis ) in the Lease Areas (January 1st through April 30th, annually, and in December unless it is necessary to complete the Project and if it is approved by NMFS to minimize the number of North Atlantic right whale takes); • A requirement for NOAA Fisheries-approved Protected Species Observers (hereafter, “PSOs”) and Passive Acoustic Monitoring (hereafter, “PAM”) operators (where required) to conduct both visual and passive acoustic monitoring before, during, and after select activities; • A requirement for training for all Project Company 1 personnel to ensure marine mammal protocols and procedures are understood; • The establishment and implementation 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 devices during all foundation pile driving installation activities to reduce noise levels to those modeled assuming 10 decibels (dB); • A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within the PAM Clearance/Shutdown Zone (10 kilometer (km) (6.21 miles (mi)); • A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones; • A requirement to shut down pile driving (if feasible, otherwise “powering down” ( i.e., reducing the impact hammer's energy) is required) if a North Atlantic right whale is observed at any distance or if any other marine mammals are observed entering their respective shutdown zones; • A requirement to conduct sound field verification (SFV) during foundation pile driving to measure in situ noise levels for comparison against the modeled results; • A requirement to implement soft-starts during all impact pile driving using the least amount of hammer energy necessary for installation; • A requirement to implement ramp-up during the use of non-binary high-resolution geophysical (HRG) marine site characterization survey equipment; • A requirement to monitor the relevant Right Whale Sightings Advisory System, the United States' Coast Guard's Channel 16, and NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, 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 to submit frequent regularly scheduled and situational reports including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and SFV monitoring results. NMFS must withdraw or suspend any LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.106(g)). Fixing America's Surface Transportation Act (FAST-41) This Project is covered under Title 41 of the Fixing America's Surface Transportation Act or “FAST-41”. 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)). Atlantic Shores South is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at: https://www.permits.performance.gov/permitting-project/fast-41-covered-projects/atlantic-shores-south. Summary of Request On February 8, 2022, NMFS received a request from Project Company 1 (previously, “Atlantic Shores”) for the promulgation of regulations and the issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project located offshore of New Jersey in Lease Area OCS-A-0499 (then, a single lease) and associated export cable corridors. Project Company 1's request is for the incidental, but not intentional, take of a small number of 16 marine mammal species comprising 17 stocks ( i.e., 9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only). Neither Project Company 1 nor NMFS expected serious injury and/or mortality to result from the specified activities. Because of this, Project Company 1 did not request, and NMFS has not allowed mortality or serious injury of any marine mammal species or stock. In response to our questions and comments and following extensive information exchanges with NMFS, Project Company 1 submitted a final, revised application on August 12, 2022 that NMFS deemed adequate and complete on August 25, 2022. The final version of the application is available on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. On September 29, 2022, NMFS published a notice of receipt (NOR) of the adequate and complete application in the Federal Register (87 FR 59061), requesting public comments and information related to Project Company 1's request during a 30-day public comment period. Due to a request from a public group called Save Long Beach Island, Inc. (SaveLBI), NMFS extended the public comment period for an additional 15 days (87 FR 65193, October 28, 2022) for a total of a 45-day public comment period. During the 45-day NOR public comment period, NMFS received 5 comments and letters from the public, including a citizen, an environmental non-governmental organization (hereafter, “eNGO”), and a local citizen group. NMFS has reviewed all submitted material and has taken these into consideration during the drafting of this final rulemaking. On September 22, 2023, NMFS published a proposed rule in the Federal Register for the Project (88 FR 65430). In the proposed rule, NMFS synthesized all of the information provided by Project Company 1, 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 30 days at: https://www.regulations.gov, starting on September 22, 2023 and closing after October 23, 2023. The public comments can be viewed at: https://www.regulations.gov/docket/NOAA-NMFS-2023-0068. A summary of public comments received during this 30-day period and NMFS responses are described in the Comments and Responses section. In June 2022, Duke University's Marine Spatial Ecology Laboratory released updated habitat-based marine mammal density models (Roberts et al., 2016a; Roberts et al., 2023). After consideration by NMFS, and because Project Company 1 applied previous marine mammal densities to their analysis in their initially submitted application, Project Company 1 reanalyzed its Project using the new Duke University data and submitted a final Updated Density and Take Estimation Memorandum on March 28, 2023 that included marine mammal densities and take estimates based on these new models. This memorandum can be found on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. This information was incorporated into the proposed rule (88 FR 65430, September 22, 2023). During the development of the proposed rule during the months of January and February 2023, Project Company 1 informed NMFS that the proposed activity had been narrowed from what was presented in the adequate and complete MMPA application. Specifically, Project Company 1 committed to installing only monopile wind turbine generator (WTG) foundations for Project 1 (and any found in the associated Overlap Area), as opposed to either monopile or jacket foundations. All WTGs built for Project 2 (and any remaining Overlap Area) may still consist of either monopiles or jacket foundations as presented in the adequate and complete MMPA application. Additionally, all offshore substation (OSS) foundations that could be developed across both Projects 1 and 2 continue to maintain build-outs using only jacket foundations. Project Company 1 provided a memo and supplemental materials outlining these changes to NMFS on March 31, 2023. These supplemental materials can be found on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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 (hereafter, “UME”). Should a final vessel speed rule or any other MMPA ITA be issued and become effective during the effective period of these regulations, Atlantic Shores 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 ITA, Atlantic Shores will be required to comply with the requirements of the vessel speed rule. Alternatively, where measures in this or any other MMPA ITA are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA ITA 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 Project Company 1 if the measures in the speed rule were to supersede any of the measures in the MMPA ITA such that they were no longer required. On June 26, 2024, Atlantic Shores Offshore Wind LLC provided a written request to NMFS to change the LOA Holder from Atlantic Shores Offshore Wind LLC to Project Company 1, who would oversee and be responsible for the construction of both Project 1 and Project 2. Furthermore, on June 26, 2024, Atlantic Shores Offshore Wind LLC notified NMFS that it had requested that BOEM segregate a portion of Lease Area OCS-A-0499, which would then be assigned to another subsidiary of Atlantic Shores, Project Company 2, as Lease Area OCS-A-0570. As described above, Project Company 1 requested to NMFS that the incidental take regulation (ITR) governing take of marine mammals incidental to activities associated with both phases of the Project and the associated LOA (if issued by NMFS) be issued to Project Company 1, which would oversee Project 1 (constructed and operated by Project Company 1) and Project 2 (constructed and operated by Project Company 2) of the Atlantic Shores South Project. The lease segregation is expected to be completed by BOEM on September 30, 2024, and will not alter the geographic location or size of the area in which either Project 1 or Project 2 would be built, nor will it cause any changes to the construction schedule, planned activities, or take. In short, no changes to the overall Project were requested or are expected, with the exception of the name change. As a result, where appropriate, Project Company 1, the owner of the Project, has henceforth been incorporated as the “applicant” or “LOA Holder” throughout this final rule. NMFS has previously issued 5 Incidental Harassment Authorizations (hereafter, “IHAs”), including 1 renewal IHA to Project Company 1 authorizing take incidental to high-resolution site characterization surveys offshore New Jersey in the now segregated OCS-A-0499 (to include OCS-A-0570) (see 85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021 (renewal); 87 FR 24103, April 22, 2022; 88 FR 38821, June 14, 2023; and 89 FR 20434, March 22, 2024). To date, Project Company 1 has complied with all the requirements ( e.g., mitigation, monitoring, and reporting) of the previous IHAs and information regarding Project Company 1's take estimates, and monitoring results may be found in the Estimated Take section. Final monitoring reports can be found on NMFS' website, along with previously issued IHAs at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Description of the Specified Activities Overview Project Company 1 plans to construct and operate two offshore wind projects, Project 1 and Project 2, (collectively, Atlantic Shores South, or the Project) in the Lease Areas. These Lease Areas are located within the New Jersey Wind Energy Area (hereafter, “NJ WEA”). Collectively, Atlantic Shores South will consist of up to 200 WTGs, 10 OSSs, and 1 Met Tower divided into two projects: Project 1 and Project 2. These projects would assist the State of New Jersey to meet its renewable energy goals under the New Jersey Offshore Wind Economic Development Act (hereafter, “OWEDA”). Project Company 1 has been given an allowance by the New Jersey Board of Public Utilities through an Offshore Renewable Energy Certificate (hereafter, “OREC”) to construct a facility capable of delivering 1,510 megawatts (MW) of renewable energy to the State of New Jersey through Project 1. Project 1 would be capable of powering approximately 700,000 homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/ ). Project Company 1 also intends to compete for a second OREC award through a competitive solicitation process to develop Project 2, which will be owned by another affiliate company of Project Company 1, Project Company 2, although Project Company 1 will oversee Project 2'sdevelopment. Collectively, the entire Project is capable of powering over 1 million homes (see https://atlanticshoreswind.com/atlantic-shores-offshore-wind-receives-record-of-decision-for-atlantic-shores-project-1-and-2/ ). The Project will consist of several different types of permanent offshore infrastructure, including: (1) up to 200 15-MW WTGs and up to 10 OSSs; (2) a single Met Tower; and (3) OSS array cables and interconnector cables. All permanent foundations (WTGs, OSSs, and the single Met Tower) will be installed using impact pile driving only. For the permanent foundations, Project Company 1 originally considered three construction scenarios for the completion of Projects 1 and 2. All three Schedules assume a start year of 2026 for WTG, Met Tower, and OSS foundation installation. Schedules 1 and 3 assume monopile foundations for all WTGs and the Met Tower across both Projects 1 and 2. Schedule 2 originally assumed a full jacket foundation buildout for both Projects 1 and 2. However, Project Company 1 has modified Schedule 2 to now assume that all WTGs and the Met Tower in Project 1 would be built using monopiles. The WTGs for Project 2 would still consist of either jacket or monopile foundations. In all Schedules, the OSS foundations would always be built out using jacket foundations. However, these may vary in size between the two Projects ( i.e., small, medium, or large OSSs). Under Schedules 1 and 2, foundations would be constructed in 2 years. Under Schedule 3, all permanent foundations would be installed within a single year. Project Company 1 would also conduct the following specified activities: (1) temporarily installation and removal, by vibratory pile driving, of up to eight nearshore cofferdams to connect the offshore export cables to onshore facilities; (2) deployment of up to four temporary meteorological and oceanographic (hereafter, “metocean”) buoys (three in Project 1 and one in Project 2); (3) conducting of several types of fishery and ecological monitoring surveys; (4) placement of scour protection, trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based switching and substations and inter-array cables between turbines; (5) conducting of HRG vessel-based site characterization and assessment surveys using active acoustic sources with frequencies of less than 180 kilohertz (hereafter, “kHz”); (6) transiting within the Project Area and between ports and the Lease Areas to transport crew, supplies, and materials to support pile installation via vessels; and (7) WTG operation. All offshore cables would be connected to onshore export cables at the sea-to-shore transition points located in Atlantic City, New Jersey (hereafter, “Atlantic City landfall site”) and in Sea Girt, New Jersey (hereafter, “Monmouth landfall site”). From the sea-to-shore transition point, onshore underground export cables are then connected in series to switching stations/substations, overhead transmission lines, and ultimately to the grid connection. No detonations of unexploded ordnance or munitions and explosives of concern (hereafter, “ UXOs/MECs ”) were planned to occur, nor are they included in this final rulemaking. Therefore, these are not discussed further and no take has been allowed for these activities. Marine mammals exposed to elevated noise levels during vibratory and impact pile driving and site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity and species. A detailed description of the specified activities is provided in the proposed rule as published in the Federal Register (88 FR 65430, September 22, 2023). Since the proposed rule was published, Project Company 1 has not modified the specified activities. Please refer to the proposed rule for more information on the description of the specified activities. Dates and Duration Project Company 1 anticipates its specified activities to occur throughout all 5 years of the effective period of the regulations, beginning on January 1, 2025 and continuing through December 31, 2029. Project Company 1's anticipated construction schedule can be found in table 1. Project Company 1 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. Table 1—Construction Schedule Activity Duration a (months) Expected schedule b Project 1 start date Project 2 start date Onshore Interconnection Cable Installation 9-12 2024-2025 Q1—2024 Q1—2024 Onshore Substation and/or Onshore Converter Station Construction 18-24 2024-2026 Q1—2025 Q1—2025 HRG Survey Activities 3-6 2025-2029 Q2—2025 Q3—2025 Export Cable Installation 6-9 2025 Q2—2025 Q3—2025 Temporary Cofferdam Installation and Removal c 18-24 2025-2026 Q2—2025 Q3—2025 OSS installation and Commissioning 5-7 2025-2026 Q2—2026 Q2—2026 WTG Foundation and Met Tower Installation d e 10 2026-2027 Q1—2026 Q1—2026 Inter-Array Cable Installation 14 2026-2027 Q2—2026 Q3—2026 WTG Installation and Commissioning f 17 2026-2027 Q2—2026 Q1—2027 Met Buoy Deployments 36 2025-2027 Q1—2025 Q1—2025 Scour Protection Pre-Installation 17 2025-2027 Q2—2025 Q3—2025 Scour Protection Post-Installation 17 2025-2027 Q2—2025 Q3—2025 Site Preparation 60 2025-2029 Q1—2025 Q4—2029 Fishery Monitoring Surveys 60 2025-2029 Q1—2025 Q4—2029 Note: Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through December. a These durations are a total across all years the activity may occur. b The expected timeframe, based on a modified Schedule 2, is indicative of the most probable duration for each activity; the timeframe could shift and/or extend depending on supply chains, weather, mechanical, or other related delays. c Project Company 1 intends to install the temporary cofferdams for a limited duration annually between Labor Day and Memorial Day ( i.e., between early September and late May). However, given limited species presence, the limited amount of work planned for the entire cable landfall activity, and the expected impact is not anticipated to rise above a small subset of take by Level B harassment ( i.e., no take by Level A harassment is expected), this rulemaking does not specifically require time-of-year restrictions on this activity. d As described in the proposed rule (88 FR 65430, September 22, 2023), the expected timeframe is dependent on the completion of the preceding Project 1 activities ( i.e., Project 1 inter-array cable installation and WTG installation) and the Project 2 foundation installation schedule. e A seasonal pile driving moratorium is in place from January 1st through April 30th, annually, unless pile driving must occur in December to complete the Project and NMFS allows for December pile driving to also occur. f Project Company 1 anticipates that WTGs for each Project would be commissioned starting in 2026 and 2027 but turbines would not become operational until 2028 and 2029. Specific Geographic Region A detailed description of the Specific Geographic Region is provided in the proposed rule as published in the Federal Register (88 FR 65430, September 22, 2023). Since the proposed rule was published, no changes have been made to the Specified Geographic Region. Generally, Project Company 1's planned activities ( i.e., impact pile driving of WTG, OSS, and Met Tower foundations; vibratory pile driving of temporary cofferdams (installation and removal); placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable and inter-array cables; HRG site characterization surveys; and WTG operation) are concentrated in the Project Area (figure 1). A couple of Project Company 1's specified activities ( i.e., fishery and ecological monitoring surveys and transport vessels) will occur in the Mid-Atlantic Bight. BILLING CODE 3510-22-P ER24SE24.000 BILLING CODE 3510-22-C Comments and Responses A proposed rule was published in the Federal Register on September 22, 2023 (88 FR 65430). The proposed rule described, in detail, Project Company 1's specified activities, the specified 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 Project Company 1's request and the promulgation of regulations and issuance of an associated LOA described therein, our estimated take analyses, the preliminary determinations, and the proposed regulations. The proposed rule was available for a 30-day public comment period. In total, NMFS received 57 comment submissions, comprising 55 individual comments from private citizens, 1 comment letter from the Marine Mammal Commission (hereafter, “the Commission”), and 1 comment letter with supplemental attachments from the public group, SaveLBI. Some of the comments received were considered out-of-scope, including, but not limited to: comments related to constructing wind farms on land; comments on language found in the draft Environmental Impact Statement (EIS); comments related to offshore wind in Europe; comments specifically about activities found in HRG IHAs; visibility of WTGs from the coast; concerns for other species outside of NMFS' jurisdiction ( i.e., birds); the pros and cons of renewable energy and nuclear power; costs and finances regarding the construction of offshore wind farms; fishing activities from commercial industries; lifespan of WTGs located offshore; and tourism. These comments are not described herein or discussed further. Moreover, where comments recommended that the final rule include mitigation, monitoring, or reporting measures that were already included in the proposed rule and such measures are carried forward in this final rule, they are not included here, as those comments did not raise significant points for NMFS to consider. Furthermore, if a comment received was unclear, we do not include it here as we could not determine whether it raised a significant point for NMFS to consider. The two letters and supplemental attachments from the Commission and SaveLBI, as well as the individual comments, received during the public comment period contained significant points that NMFS considered in its estimated take analysis, including: required mitigation, monitoring, and reporting measures; final determinations; and final regulations. These are described and responded to below. All substantive comments and letters are available on NMFS' website at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please review the corresponding public comment link for full details regarding the comments and letters. Modeling and Take Estimates Comment 1: A commenter recommended that NMFS revise its take estimates from impact pile driving using a 5 dB broadband noise source attenuation, rather than the 10 dB of sound attenuation, with no attenuation at low frequencies. Response: In the proposed rule, NMFS described the best available science, which supports the assumption that at least 10 dB attenuation can be reliably achieved using the required noise attenuation systems, including a double bubble curtain. This included data from Bellmann et al. (2020) where double bubble curtains achieved between 8 to 18 dB of broadband noise attenuation depending on water depth and supplied air volume. Bubble curtain effectiveness depends significantly on the supplied air volume and the water depth, with performance increasing with air flow and decreasing with depth. Notably, the proposed rule requires an air flow rate of at least 0.5 m 3 /(minute*m) and the Project Area has depths ranging from 19 to 37 meters (m) (62.34 to 121.39 feet (ft)). In the set of measurements from Bellmann et al. (2020), broadband noise attenuation was only less than 10 dB for supplied air flow rates between 0.3 and 0.4 m 3 /(minute*m) and in depths of approximately 40 m (131.23 ft). Because the double bubble curtain used in this Project will be in shallower water and have more supplied air volume, it is reasonable to expect performance greater than 8 dB and closer to the measurements of curtains with higher airflow and in shallower water (12-18 dB). Finally, results from Vineyard Wind 1's SFV (Küsel et al., 2024) indicate that the median near pile (750 m (2,460.63 ft)) sound pressure level while using double bubble curtains, along with a near pile resonator, was approximately 171 dB. The modeling for Vineyard Wind 1, which assumed 6 dB attenuation, implied levels near 180 dB at 750 m (JASCO Applied Sciences (USA) Inc. (JASCO and LGL., 2019)). This indicates that the combination of source modeling and an assumption of 10 dB would have been conservative in that case. Finally, Project Company 1 is required to conduct SFV during installation of every pile and provide bubble curtain performance reports to NMFS which will assist in determining if the double bubble curtain is working properly and is optimized and noise levels are as expected. Thus, NMFS finds that the mitigation requirements in the proposed rule, which include the use of a double bubble curtain and adherence to best practice standards for operation of noise mitigation systems, are capable of providing an expected 10 dB of attenuation, as evidenced by the extensive data from Bellmann et al. (2020) and initial SFVs in US waters. With regard to the fact that NMFS' assumed 10 dB attenuation rate is broadband in nature and assumes this level of noise reduction at all frequencies, NMFS agrees that attenuation levels vary by frequency band and that bubble curtains attenuate higher frequency sounds more effectively; however, NMFS disagrees that lower frequency bands, which are important to consider when evaluating impacts, are not attenuated at all. The data from Bellmann (2021), shows that for both single and double bubble curtains, more than 10 dB of attenuation was achieved for bands as low as 32 Hz. And while it is true that performance diminishes significantly at lower frequencies (< 32 Hz), those bands also contain significantly less pile driving sound and are +16 dB outside the most susceptible frequency range for low-frequency cetaceans. Comment 2: A commenter stated that NMFS did not provide an explanation of the revised take numbers from JASCO's August 10, 2022 Exposure Modeling Report in the proposed rule. They further stated that NMFS did not disclose information on how the source levels, exposure ranges, and proposed takes were calculated. Response: The proposed rule clearly describes that the take estimates were updated due to the release of the new Duke Habitat-Based Density Models (Roberts et al., 2023) which are the best available science. Modeling methodology, including source, propagation, and exposure modeling methodology were summarized in the proposed rule and were thoroughly described in the JASCO Exposure Modeling Report and ITA application materials. Moreover, the proposed rule reflected the most recent information provided by the applicant, which is available on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Comment 3: A commenter stated that NMFS underestimated Level A harassment and Level B harassment take estimates because the proposed rule applied density models to the take calculations that, according to the commenter, do not account for North Atlantic right whale migration and NMFS should not use the 160 dB rms threshold to estimate behavioral harassment from pile driving. The commenter recommended that NMFS revise the take estimates based on the North Atlantic right whale density estimates contained within the application (Roberts et al., 2016a, 2016b, 2017, 2018, 2021a, 2021b), not the updated Roberts et al. (2023) densities, and the Wood et al. (2012) step-function in lieu of the 160 dB rms threshold. Additionally, the commenter suggested a new approach to calculate take of marine mammals, wherein NMFS should calculate the ranges to elevated noise levels perpendicular to the whale's path and assume that the number of whales heading toward that is proportional to that range divided by 60 mi (96.6 km). They state that this approach will better allow MMPA ITAs to assess the Project's potential impact. The commenter provided their independent take calculations using these alternative methods. Response: NMFS disagrees with the commenter's recommendations. First, the Wood et al. (2012) probabilistic step-function recommended for use by the commenter was derived by a select group of experts to assess the impacts of seismic air gun surveys involving moving sources. The commenter did not provide information that demonstrates the 160 dB rms threshold is less appropriate other than that the alternative method they proposed, which only results in slightly more take than both the proposed and final rules, which was also inclusive of a 3.8 mean group size of North Atlantic right whales from the Ocean Biodiversity Information System (OBIS) repository (OBIS, 2022) ( i.e., the commenters suggested 27 takes against the proposed rule's 21 takes against the final rule's 25 takes of North Atlantic right whales over a 5-year period). While NMFS acknowledges the potential for behavioral disturbance 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 be behaviorally disturbed. The 160-dB threshold functions as a mid-point and serves as a practical generalized tool for informing the predicted likelihood, and quantification, of Level B harassment. Additionally, there are a variety of studies indicating that contextual variables ( e.g., range to source, received levels (RL) above background noise, novelty of the signal, and differences in behavioral state) play a very important role in responses to anthropogenic noise (Ellison et al., 2012; Gong et al., 2014), and the severity of effects are not necessarily linear when compared to a received level. 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. 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 received level was not an appropriate indicator of behavioral response. Further, 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. Given there is currently no concurrence on these complex issues, 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. 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 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 best available science. With respect to the commenters' claim that different densities should be used, the most recent Duke University habitat-based density models are considered the best available science. The models statistically correlate sightings with sightings from shipboard and aerial surveys with oceanographic conditions. In 2023, Duke University updated the North Atlantic right whale model to also include independently collected PAM data, expanding the data set used in the model since the previous model that was recommended for use by the commenter (see https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html ). Marine mammal behavior, such as foraging and migration, are not part of the metadata used in the Duke University density models; however, the survey data was collected along the entire coast which includes migratory habitat (including the mid-Atlantic where the Project would be constructed). Therefore, the commenters claim that North Atlantic right whale migration was not accounted for in the models is incorrect. NMFS applied the most recent Duke University models to the analysis contained within this rule as it represents the best available science (versions 12, 12.1, and 12.2 for North Atlantic right whales ( https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html ). Project Company 1 conducted sophisticated modeling using simulated animals exposed to foundation pile driving noise levels above NMFS' thresholds to estimate exposures. The details of how this modeling is conducted was summarized in the proposed rule and is fully described in appendix B of Project Company 1's application at: https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf. For North Atlantic right whales, the exposure estimates were adjusted upwards to account for group size. For example, the estimated modeled Level B harassment exposures from full build out assuming Construction Schedule 2 for North Atlantic right whales was 8.13 (see table 16 in appendix B of Project Company 1's ITA application); however, the applicant requested 12 takes by Level B harassment (see table 17). Therefore, NMFS' final rule considered 12 takes by Level B harassment. The simple take estimate approach recommended by the commenter which considers whales heading perpendicular to a certain distance and assuming that the number of whales heading toward that is proportional to that range divided by 60 mi (96.6 km) is illogical. First, the commenter claims that the Duke University density data suggests that over the January through April time period, most North Atlantic right whale migration is occurring within 60 mi (96.6 km) of shore. However, this is irrelevant as no pile driving would be occurring January through April; therefore, using 60 mi (96.6 km) in any take calculation is not supported. Moreover, the commenter does not identify the method by which a number of whales perpendicular a distance should be derived. The commenter did not provide reasoning for why this approach would better allow MMPA ITAs to assess the Project's potential impact. For these reasons, NMFS has determined the number of takes that would be authorized for North Atlantic right whales is based on the best available science. Comment 4: Regarding HRG surveys, commenters stated that take estimates were underestimated because the use of a SIG ELC 820 unit as a proxy for the Dura-Spark unit is unjustified and not consistent with other higher values found in the technical literature ( i.e., Crocker and Fratantonio (2016)). The comment stated that NMFS should instead be utilizing a source level of 211 dB in their analysis, rather than the 203 dB used in the proposed rule and ITA application materials, and that NMFS should apply a more conservative spreading loss coefficient when calculating distances to the Level B harassment threshold. The commenter asserts that NMFS has underestimated exposure based on the use of the SIG ELC 820 unit, and noise source levels from vessels operating in the same area are comparable or higher than 211 dB. In addition, the commenter cited other recent HRG IHAs in the New York Bight and Mid-Atlantic Bight that have been previously authorized to use the Dura-Spark (400 tip), ranging at 5,500 to 2,000 joules (J), which result in a higher dB level that what is presented in the proposed rule for the Atlantic Shores South Project. The commenter also stated that the 203 dB value is inconsistent with the Endangered Species Act (ESA) programmatic consultation report that NMFS uses for ESA compliance and that NMFS should not issue any more ITAs for offshore wind work and should, consequently, cancel the Project. Response: There is little data available regarding appropriate choice of spreading loss (or transmission loss coefficient) for sparker acoustic sources. The commonly used convention, which is applied here by NMFS, is to use spherical spreading for HRG sources (Ruppel et al., 2022). The field measurements by Rand (2023) imply spreading coefficients greater than 20, which shows that spherical spreading in that case is a good approximation. With regard to source level, the ITA application specifies that the Dura-Spark 240 is typically operated between 500-600 J and chose a source level based on the SIG ELC 820 of 203 dB (Crocker and Fratantonio, 2016). However, the developer has since informed NMFS that the survey team intends to use only the Geo Marine Geo-source sparker and has clarified that it will be nominally operated with 400 tips and an energy of 400 J. Based on this, the most representative proxy equipment from Crocker and Fratantonio (2016) appears to be the Dura-Spark operating with 400 tips and 500 J, which was measured to have a source level of 203 dB. Notably, the SIG ELC 820 operating at 750 J and at a depth of 5 m (16.4 ft) also has a source level of 203 dB, according to Crocker and Fratantonio (2016). For these reasons, NMFS finds that the source level used in the analysis (203 dB) is appropriate for the planned activity and disagrees that any change to the analysis is necessary. NMFS disagrees that the source level used in Project Company 1's sparker analysis is inconsistent with NMFS Greater Atlantic Regional Fisheries Office's (GARFO) 2021 ESA programmatic consultation for site assessment surveys. That analysis considered the loudest sources potentially used by all offshore wind developers conducting site assessment and site characterization surveys in the Atlantic Ocean due to its programmatic nature. Here, Project Company 1 has identified specific sources and operating modes and, therefore, our source level analysis is appropriate. Comment 5: The commenter stated that NMFS' assumption on the spherical spreading and associated spreading loss factor was inaccurate as it calculates spreading beyond what could reasonably occur. They further stated that the 20 dB factor is presented without explanation or justification in equations in various reports, the transmission loss is not consistent with field measurements (Thomsen et al., 2006), and the use of the 20 dB factor is not consistent with the NMFS approach used and described well as “common practice” in the NMFS' own ITAs from December 1, 2021 (86 FR 68223) and December 15, 2021 (86 FR 71162). They recommended that NMFS re-run the analysis, assuming a higher source level of the acoustic source (211 dB) and assuming a 15 dB transmission loss. Response: In support of its position, the commenter cites several examples of use of practical spreading (a useful real-world approximation of conditions that may exist between the theoretical spreading modes of spherical and cylindrical; 15logR) in asserting that this approach is also appropriate here. However, these examples (U.S. Navy construction at Newport, Rhode Island, and NOAA construction in Ketchikan, Alaska) are not relevant to the activity at hand. First, these actions occur in even shallower water ( e.g., less than 10 m (32.81 ft) for Navy construction). NMFS notes that the transmission loss from field measurements referenced (Thomsen et al., 2006) appear to be relative to impact pile driving. For a number of factors, transmission loss and therefore appropriate models depend on source characteristics. The commonly used convention, which is applied here by NMFS, is to use spherical spreading for HRG sources (Ruppel et al., 2022). There is little data available regarding appropriate choice of spreading loss (or transmission loss coefficient) for HRG sources and sparkers in particular. However, the data that do exist for sparkers suggest that spherical spreading is a fair approximation; the field measurements by Rand (2023) imply spreading coefficients greater than 20 (22.5), field measurements from Halvorsen et al. (2018) are reasonably approximated by spherical spreading, and propagation modeling performed by Thomsen (2023) implies a transmission loss coefficient of 20.26. Thus, of the data that do exist, none suggest spherical spreading is a poor approximation. NMFS will continue to evaluate appropriate propagation models for this and other HRG sources as new data and literature become available. Comment 6: The commenter criticized Project Company 1's use of the 2018 NMFS auditory weighting functions with the Wood et al. behavioral criteria as described in the JASCO modeling report, indicating the weighting functions are inappropriate. In addition, they claim that NMFS weighting functions for low-frequency cetaceans incorrectly assume that low-frequency cetaceans weighting functions eliminate most of the pile driving noise. They stated that the NMFS approach artificially underestimated take of low-frequency species as the underlying science was not intended to be used as such and that NMFS must re-estimate the exposure ranges and take using broader weighting functions ( i.e., Southall et al., 2007). Lastly, they also stated the NMFS' use of the 160 dB threshold for impulsive noise resulting from construction activities and vessel surveys is inconsistent by using the 160 dB threshold to assess vessel surveys and Woods et al. to assess construction activities. Overall, they say that this has resulted in NMFS underestimating the take associated with this Project and resulted in insufficient mitigation and monitoring zone sizes. Response: These comments suggest there is confusion in understanding which thresholds were used for the analysis contained within the proposed and this final rule. For NMFS' analysis of behavioral harassment from pile driving and HRG surveys, we have appropriately relied on our 160 dB rms sound pressure level (SPL) threshold, which is unweighted ( i.e., no sound is being eliminated), not the Wood et al. step function. Furthermore, we only rely on our 2018 weighting functions to assess the potential for auditory injury ( i.e., permanent threshold shift (PTS)). NMFS agrees with the commenter that the thresholds associated with Wood et al. are intended to rely on the broader M-weighting functions from Southall et al. (2007), not the weighting associated with our 2018 Technical Guidance. Comment 7: Commenters have stated that NMFS underestimated take by Level A harassment (which the commenter asserts means “instances of serious harm or fatality”) because the rule “does not estimate those” takes “that occur indirectly from Level B behavior disturbances.” The commenters argue that HRG survey efforts in the Atlantic are causing recent whale strandings along the East Coast due to the overlap in time in which these events occur. The commenters claim that HRG surveys being performed for offshore wind development are the cause of recent U.S. East Coast strandings because literature and news reports document that seismic surveys using airguns, multibeam echosounders (MBES), and military sonar have been acknowledged previously as the cause of strandings worldwide. A commenter provided an Addendum to their letter wherein they describe that those sources used have similarities to the proposed HRG noise sources for the Project. All of the commenters thus claimed that HRG surveys conducted by Project Company 1 for the Project would result in whale strandings, including death. Response: There is no evidence to support the assertion that serious injury or mortality is a reasonably anticipated outcome of Project Company 1's specified activities. Further, while NMFS acknowledges military active sonar and seismic airguns have been associated with more severe effects, including strandings for military sonar in limited circumstances, these sources and operational parameters are very dissimilar to HRG surveys and their likely effects are not appropriately compared. While NMFS acknowledges that HRG survey effort has increased in the Atlantic Ocean during the time period of increased whale strandings, there is no scientific evidence that HRG survey effort is a contributing factor to the strandings. NMFS does not agree that mortality is an anticipated outcome of these specified activities, and there is no evidence to suggest otherwise, as described below. Further, the proposed rule (88 FR 65430, September 22, 2023) clearly states that no serious injury and/or mortality is expected or was proposed to be allowed, and the same carries into the final rule for which no take by serious injury or mortality has been allowed (see also 50 CFR 217.302(c)). More specifically, we refer the commenters to the “Prohibitions” portion of the regulatory text (see 50 CFR 217.303). In the event that Project Company 1 takes any marine mammals in a manner that has not been authorized in the final rule (see 50 CFR 217.303), including mortality, these would be in violation of the MMPA and its implementing regulations and NMFS would undertake appropriate actions, as determined to be necessary (see 16 U.S.C. 1371(a)(5)(B)). The best available science indicates that the anticipated impacts from site characterization and site assessment HRG surveys potentially include temporary avoidance of localized areas, cessation of foraging or communication, temporary threshold shift (TTS), stress, masking, etc. (as described in the Effects of the Specified Activities on Marine Mammals and their Habitat section in the proposed rule). NMFS emphasizes that there is no evidence that noise resulting from HRG surveys used for offshore wind development would cause marine mammal strandings, and there is no evidence linking recent large whale mortalities and currently ongoing offshore wind activities ( i.e., HRG surveys). The commenters offer no such evidence or other scientific information to substantiate their claim. This point has been well supported by other agencies, including the Marine Mammal Commission Newsletter, Spring 2023). Additionally, a recent paper by Thorne and Wiley (2024) reviewed spatiotemporal patterns of strandings, mortalities, and serious injuries of humpback whales along the U.S. East Coast from 2016-2022. Humpback whales were chosen as a case study for this analysis as they are currently undergoing a UME and strand more often than other large whale species. Thorne and Wiley (2024) found vessel strikes to be a major driver in the increase of humpback whale strandings, mortalities, and serious injury along the East Coast. The potential for vessel strike increased during the study period due to increased vessel traffic in new foraging areas, the increased presence of juvenile humpback whales, and humpback whale foraging in shallow areas that overlap with vessel traffic. Based upon the spatiotemporal analysis, no evidence was found that offshore wind development played a role in the increased number of strandings over time. Future studies should focus on gaining a greater understanding of spatial and seasonal habitat use patterns of large whales, spatiotemporal changes in prey abundance and distribution, and how habitat use and foraging behavior affect the risk of vessel strike. While several species of delphinids and beaked whales have also stranded off New Jersey since 2011 (per data provided from the National Marine Stranding Network), there is no evidence that the acoustic sources used during HRG surveys contributed to these events. NMFS will continue to gather data to help us determine the cause of death for these stranded whales. There is an ongoing UME for humpback whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016, and we provide further information on the humpback whale and North Atlantic right whale UMEs in the Description of Marine Mammals in the Specific Geographic Region section of this final rule. For humpback whales, partial or full necropsy examinations were conducted on approximately half of the whales that were recently stranded along the U.S. East Coast. Necropsies were not conducted on other carcasses because they were too decomposed, not brought to land, or stranded on protected lands ( e.g., national and state parks) with limited or no access. Of the whales examined (roughly 90), about 40 percent had evidence of human interaction ( i.e., vessel strike or entanglement). Vessel strikes and entanglement in fishing gear are the greatest human threats to large whales. The remaining 50 necropsied whales either had an undetermined cause of death (due to a limited examination or decomposition of the carcass) or had other causes of death including parasite-caused organ damage and starvation. For North Atlantic right whales, starting in 2017, evaluated mortalities were documented in both Canada and the United States, with the whales documented for this UME as being dead, injured, and/or sick to the extent that more than 20 percent of the population has been affected. The preliminary cause of mortality, serious injury, and morbidity ( i.e., sub-lethal injury and illness) in most of these whales is from entanglements or vessel strikes and human impacts continue to threaten the survival of this species. See NMFS' websites at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast and https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2024-north-atlantic-right-whale-unusual-mortality-event for more information on the ongoing humpback whale and North Atlantic right whale UMEs. More information about interactions between offshore wind energy projects and whales can be found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales. In their letters, the commenters referenced several papers documenting strandings associated with airguns and military sonars and cited several global events where animals stranded around the same time as these specific acoustic sources were used. They suggest that these sources are analogous to HRG sources used by Project Company 1. This is unsupported and inaccurate. High-powered seismic airguns and military sonars ensonify much larger areas than the lower-powered HRG survey equipment used in offshore wind activities, typically with distances to harassment thresholds on the order of several to 10s of kilometers, as opposed to the few hundreds of m to the 160-dB isopleth for the largest sources typically used in wind HRG surveys. NMFS assessed the 10 monitoring reports submitted by authorization holders since 2021 for HRG activities (available on NMFS website) and found that overall and averaged across species, fewer than 9 percent of the individual marine mammals authorized for take were observed within the estimated Level B harassment zone (acknowledging that the true percentage is likely higher due to availability and perception bias), with no more than 21 percent of any species, and no North Atlantic right whales, observed within the Level B harassment zone of any survey. Furthermore, the most common behavioral response when the regulated sound sources were both active and inactive was overwhelmingly “None”. “Change Direction” ( i.e., which is broadly defined as “animal(s) alters orientation quickly, noticeably, or abruptly”) was the second most frequent behavioral change observed, and also occurred during all source activity levels (per definitions commonly utilized in the Mysticetus TM software and based on other 90-day reports associated with oil and gas, geotechnical operations, and HRG operations ( e.g., Aerts et al., 2008; Blees et al., 2010; Lomac-MacNair et al., 2014) and found within Appendix A of the final monitoring report associated with 84 FR 52464 (October 2, 2019)). The data demonstrates that individuals exhibited a change in pace more frequently when the acoustic source was active, as well as a change of pace and direction. Conversely, “Dive” ( i.e., broadly defined as “animal(s) abruptly moves completely below the surface”) and “Look” ( i.e., broadly defined as “animal is watching the vessel, e.g., spy hopping”) were exhibited more frequently when the acoustic source was inactive. Furthermore, a commenter references a 2008 stranding event of melon-headed whales in Madagascar, implying that a similar occurrence may be reasonably anticipated outcome of HRG survey work off of New Jersey. An investigation of the stranding event indicated that use of a 12-kHz MBES (a source unlike any planned for use by Project Company 1 or any other offshore wind companies on the East Coast) was the most plausible and likely initial behavioral trigger of the event (with the caveat that there was no unequivocal and easily identifiable single cause). The investigation panel also noted several site- and situation-specific secondary factors that may have contributed to the avoidance responses that led to the eventual entrapment and mortality of the whales (Southall et al., 2013). Specifically, regarding survey patterns prior to the event and in relation to bathymetry, the vessel transited in a north-south direction on the shelf break parallel to the shore, ensonifying deep-water habitat prior to operating intermittently in a concentrated area offshore from the stranding site. This may have trapped the animals between the sound source and the shore, thus driving them towards the lagoon system. Shoreward-directed surface currents and elevated chlorophyll levels in the area preceding the event may also have played a role. The 12 kHz output frequency (generally in the middle of most marine mammal hearing ranges), significantly higher output power, and complex nature of the system implicated in this event, in context of the other factors noted here, likely produced a fairly unusual set of circumstances that indicate that such events would likely remain rare and are not relevant to use of more commonly used lower-power, higher-frequency systems such as those evaluated for this analysis. Further, the MBES sources included in Project Company 1's activities are all 200 kHz or above ( i.e., beyond marine mammal hearing range) and significantly lower source levels than those used in the survey associated with the Madagascar event. Given this, marine mammals are not expected to hear the MBES sources used for the Project, which means that no behavioral response is anticipated, much less one that might be expected to contribute or lead to a stranding. A commenter suggested a connection between the recent U.S. East Coast strandings and the site characterization surveys, citing different analyses and studies from other sound sources, and compared the source characteristics of sparkers to airgun arrays, arguing they are more similar than is captured by NMFS's respective analysis of these sources. NMFS acknowledges that both sparkers and airguns have wide ranges of configurations and potential source levels. However, low energy sparkers (analyzed as 500-600 J here) are significantly different from common airgun seismic surveys in many ways ( e.g., pulse duration, kurtosis, directionality, frequency content, source levels, and finally in how they are operated). In terms of sound levels, the maximum peak SPL measured for a similar sparker source in the field by Rand (2023) was 151.7 dB at a range of approximately 1 km (0.62 mi). The modeling methodology proposed here implies a peak SPL of 151 at 1 km (0.62 mi), using spherical spreading and a peak source level of 211 dB. In this case it is clear that both modeling and field data show that for similar sound sources the range to 150 dB is approximately 1 km (0.62 mi). By contrast, Martin et al. (2017) measured the distance to the 150 dB peak isopleth for a seismic survey to be 41.8 km (25.97 mi). Similarly, a seismic array analyzed for use in the Gulf of Mexico was modeled to have distances to the 160 dB rms isopleth ranging between 7 to 24 km (4.35 to 14.91 mi) (Gulf of Mexico rule modeling found on NMFS' web page at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-oil-and-gas-industry-geophysical-survey-activity-gulf-mexico), whereas the sparker is estimated by the modeling here to have a 160 dB rms range of 141 m (462.6 ft) and the measurement (Rand, 2023) was significantly below 160 dB at 1 km (0.62 mi). The commenter further states that the frequency range of HRG sparkers likely overlaps that of mid-frequency sonar. Sparkers have a transmission frequency between approximately 300-1400 Hz (Ruppel et al., 2022), and while NMFS agrees that this does overlap with the lower end of what is considered for mid-frequency sonar (mid-frequency sonar is typically defined as 1 to 10 kHz), the frequency content of the 2 sources are different. Further, the commenter acknowledges that mid-frequency sonars have a source level of 235 dB, which is significantly higher than typical source levels for sparkers. For these reasons, NMFS finds that comparison with mid-frequency sonar is not particularly useful in comparison of likely impacts to marine mammals. Lastly, NMFS acknowledges that a commenter, in their Addendum, describes a study performed in the Gulf of Mexico in 2012 where the researchers suggested that the use of airguns in seismic surveys in the Gulf of Mexico may contribute to higher rates of stranding of several species of whale and dolphin. However, NMFS notes that the paper cited on this point is a paper by Pirotta et al. (2015) “Predicting the effects of human developments on individual dolphins to understand potential long-term population consequences.” Contrary to the commenters' description, this paper does not discuss strandings or seismic surveys. Because the cited paper does not correspond to the study described in the comment and no other citation for the study is provided, NMFS is unable to respond to the findings of this study in context to our proposed rulemaking and MMPA action. Comment 8: Commenters erroneously asserted that Level A harassment equates to instances of serious harm or fatality ( i.e., mortality) and that members of the public are opposed to offshore wind construction, including the Project, on the basis that it kills marine mammals. Additionally, a commenter also conflates any take by Level A harassment with Potential Biological Removal (PBR). Response: NMFS reiterates that serious injury and/or mortality is not expected to occur as a result of Project Company 1's planned activities, was not requested by the applicant, and NMFS is not allowing any through this final rulemaking. Furthermore, there is no evidence that construction of the Project will lead to mortality of marine mammals, especially given the rigorous mitigation and monitoring measures NMFS requires Project Company 1 undertake. Turning to the commenter's second point, the commenter misrepresents PBR with the suggestion that it is applicable in the context of Level A harassment. The PBR level is defined as the maximum number of animals, not including natural mortalities, that may be removed from a stock while allowing that stock to reach or maintain its optimum sustainable population (16 U.S.C. 1362(20)). Thus, PBR is only germane in the discussion of “removals” ( i.e., serious injury or mortality) of individual marine mammals from the population and, therefore, PBR is not applicable in this discussion since no serious injury or mortality of any individuals is anticipated or allowed, as mortality has not been authorized. Comment 9: Commenters stated that NMFS must provide more information on the predictions for serious harm and mortality expected by Level A harassment and Level B harassment. Specifically, commenters claim that HRG surveys are causing strandings while a commenter was concerned that Level B disturbances can lead to: (1) avoiding the noise or “standing off” from it in an undesirable direction or location, and in a migratory setting, obstructing or blocking it; (2) if the mammal is between the shore and the vessel source, being driven towards the shore seeking relief; (3) surfacing (demonstrated experimentally by Nowacek et al. (2003)) to seek a lower noise level and becoming more vulnerable to vessel strike; (4) the separation of mothers and calves due to the “masking” of their normal communications, which would be fatal for the calf; and (5) the loss of its navigational ability, cessation of feeding or mating, loss of energy and the ability to detect predators or oncoming ships. Response: NMFS refers to its response to Comment 7 above regarding the potential for HRG surveys to result in marine mammal mortality. With respect to the concern that Level B harassment could lead to harm or mortality, NMFS refers the reader to the description in the proposed rule (88 FR 65430, September 22, 2023) on Population Consequences of Disturbance (PCoD) models. NMFS recognizes that intense, prolonged and repeated behavioral harassment that disrupts key life behaviors could lead to impacts on reproduction or survival. However, as described in the proposed rule and the Negligible Impact Determination section of this final rule, the best available science indicates that behavioral impacts to marine mammals from exposure to HRG surveys, and in consideration of the required mitigation measures, are not anticipated to result in energetic consequences that could lead to Level A harassment, impacts on reproduction or mortality. HRG surveys may result in low-level temporary behavioral disturbance such as slight avoidance of the source. In addressing the comment related to masking of communications between mothers and calves, NMFS agrees that noise pollution in marine waters is an issue with the potential to affect marine mammals, including their ability to communicate when noise reaches certain thresholds. This was addressed, in detail, in the proposed rule in the Effects section (88 FR 65430, September 22, 2023). While the commenter does not specifically address what would cause the mortality of a calf in the event of a separation, NMFS assumes the commenter is referring to missed foraging nursing opportunities. Specifically related to HRG surveys, NMFS disagrees that the noise produced by HRG acoustic sources would be extensive enough to cause effects to the extent that these effects would cascade from minor behavioral impacts into mortality to the calf and has stated in both the proposed and final rules that only take equating to Level B harassment is expected to occur. While the scientific literature supports evidence of reduced vocalizations between a North Atlantic right whale mother-calf pair when at the calving ground, which is located much further south and outside of the Project Area (Parks and Clark, 2007; Parks et al., 2019; Trygonis et al., 2013), vocalizations between the pair are known to increase as the whales undertake their annual travel/migration behaviors to the northern foraging ground (also located outside of the Project Area) and as the calf matures (Cusano et al., 2018; Root-Gutteridge et al., 2018). NMFS refers the commenters to a paper by Videsen et al. (2017), which reports lower-level communication calls between humpback mother-calf pairs and noting the increased risk of cow-calf separation with increases in background noise. We first note that only neonates were tagged and measured in this study ( i.e., circumstances could change with older calves). Further, while vocalizations between these pairs are comparatively lower level than between adults, the cow and neonate calf are in regular close proximity (as evidenced by the extent of measured sound generated by rubbing in this study), which means that the received levels for cow-calf communication are higher than they would be if the animals were separated by the distance typical between adults—in other words, it is unclear whether these lower-level, but close proximity, communications are comparatively more susceptible to masking. Furthermore, by making this comment, the commenter has not considered the movement of both the whale pair and the HRG acoustic sources as they relate spatially, and more specifically off of the New Jersey region which no primary foraging ground currently exists for North Atlantic right whales. While it is possible that North Atlantic right whale mother-calf pairs would pass through the Project Area during HRG survey campaigns, we expect that any overlap in occurrence between the isopleth from the HRG acoustic sources and North Atlantic right whale pairs would be brief, with the whales able to undertake minimal avoidance behaviors ( i.e., avoidance) to further reduce any impacts from the acoustic sources. In considering only the overlap between HRG surveys and North Atlantic right whale presence, the commenter is not accounting for the conservative mitigation measures implemented before and during HRG surveys, whereas the estimated isopleth size from the Geo-Marine GeoSource, the sparker that Project Company 1 is planning to use, and the acoustic source with the largest distance to the Level B harassment threshold is 141 m (462.6 ft). The Clearance, Shutdown, and Vessel Separation Zones for North Atlantic right whales are all 500 m (1,640 ft), over 3.5 times the size of the isopleth, providing a more protected zone whereas North Atlantic right whale pairs would not be close enough to the edge of the isopleth before mitigative actions would be undertaken ( i.e., shutdown or delay of using the acoustic source). Furthermore, any exposure to HRG acoustic sources would be expected to be minimal and fleeting, and most likely very easy for the whales to avoid the stimulus while experiencing minimal to no real effects. In understanding this very low likelihood of encountering cow-calf pairs, when combined with the fact that any individuals (or cow-calf pairs) would not be expected to be exposed on more than a couple/few days in a year, we expect that they would resume any previously interrupted behaviors quickly and with no long-term detrimental impacts. Similarly, NMFS GARFO's 2021 programmatic consultation determined that the actions considered therein were not likely to adversely affect any ESA-listed species or critical habitat and that, or the activities considered therein, no take is anticipated or exempted, as defined under the ESA (see https://media.fisheries.noaa.gov/2021-12/OSW-surveys-NLAA-programmatic-rev-1-2021-09-30-508-.pdf ). With respect to any behavioral reactions from Project Company 1's activities resulting in increased risk of vessel strike, the commenter did not provide any evidence to support this conclusion. Marine mammals are subject to intense shipping traffic throughout U.S. East Coast waters (as demonstrated by UME data given vessel strikes are the primary cause of recent whale deaths in the Atlantic Ocean) and a slight deflection of migration or other movement patterns by whales in response to Project Company 1's activities does not necessarily mean risk would be increased. We note that GARFO's final Biological Opinion for the Project provided an evaluation of indirect vessel strike risk on marine mammals and found that, while avoidance and localized displacement behaviors are expected, these effects are expected to be temporary. Furthermore, even for those activities expected to be louder ( i.e., foundation impact pile driving) than those activities specifically discussed by the commenter ( i.e., HRG surveys), the Biological Opinion concluded that there is no expected avoidance behavior by a North Atlantic right whale from pile driving noise (or activities that produce quieter sounds) that would result in whales moving to areas with a higher risk of vessel strike. This determination was based on the relatively small size of the area with noise that an individual whale is expected to avoid (no more than 11 km (6.84 mi) from the pile being installed), the short-term nature of any disturbance, the limited number of whales impacted, and the lack of any significant differences in vessel traffic in that 11 km (6.84 mi) area that would put an individual whale at greater risk of vessel strike. Comment 10: A commenter stated that NMFS should provide a description and rationale for the whale behavior assumptions being employed in JASCO's JASMINE model, otherwise NMFS should dispense with utilizing animal avoidance modeling in the ITA. Response: The animal behavior attributes considered by JASCO in their JASMINE model are described in section 2.7 of JASCO's Underwater Acoustic Impact Assessment Report (see appendix B; https://media.fisheries.noaa.gov/2022-09/AtlanticShoresOWF_2022_Appendix%20B_OPR1.pdf ) and include behaviors as diving, foraging, aversion, and surface times. As described in the report, a subset of animal avoidance (called “aversion” in the text) scenarios were run for comparison purposes only (see page 24 in appendix B to section 2.7 of JASCO's Underwater Acoustic Impact Assessment Report) and were not considered in the exposure estimates calculated by JASCO that were used in this MMPA analysis. Monitoring, Reporting, and Adaptive Management Comment 11: Commenters stated that the proposed rulemaking overly relies on the use of PSOs and PAM to mitigate “harm” to marine mammals, claiming PSOs have a limited visual range of 1,500 m (4,921.3 ft) from an elevated platform or 1,000 m (3,280.84 ft) from a vessel bridge and that PSOs cannot observe North Atlantic right whales more than 5-10 ft (1.52-3.05 m) below the water's surface. They further state that PSOs would be even more limited during any nighttime pile driving, as there is no evidence that this specialized equipment is capable of allowing PSOs to detect whales in the dark at distances of more than a few hundred meters, and useless for North Atlantic right whales swimming at depth. The commenter also expressed concern over PAM limitations, including that PAM is effective only for calling animals, and that the probability of detection decreases with distance from the source and within increased background noise levels. To address these limitations, the commenter recommended PAM systems be deployed from multiple support vessels removed from the pile being installed and/or mono-buoys be placed strategically to operate and monitor in near-real time. Response: NMFS disagrees that monitoring efforts ( i.e., using a combination of PSOs and PAM) will not be effective at detecting North Atlantic right whales such that injury or harm can be avoided. Commenters provided no evidence to support the presumed visual observation ranges. Project Company 1 is required to ensure that PSOs can visually monitor an area no smaller than the minimum visibility zone (1,900 m (6,233.6 ft)), which is more than the 1,500 m (4,921.3 ft) distance specified by the commenter. Pile driving may not occur in any conditions ( e.g., fog, rain, darkness) if PSOs are not able to sight marine mammals out to this distance. During construction of Vineyard Wind 1 and South Fork Wind, PSOs observed baleen whales at ranges as distant as 23 km (75,459 ft) (RPS, 2024; South Fork Wind, 2024). NMFS recognizes distances out to which marine mammals may be observed are both species and weather dependent; however, the commenter did not provide evidence to support claims the minimum visibility zone could not be effectively monitored. Regarding PAM, the commenter cited a study titled “ PAMguard Quality Assurance Module for Marine Mammal Detection Using Passive Acoustic Monitoring ”(CSA Ocean Science, Inc., 2020), stating that PAM system have a limited capability detecting marine mammals, especially low-frequency baleen whales, when the animal is not vocalizing, and that this may cause North Atlantic right whales to remain undetected prior to entering the Level A harassment zone, particularly because right whales often go “days or weeks without uttering a sound.” The commenters further described the findings of this study, specifically noting that the probability of detection varies, stating that PAM systems may have a “significant miss rate,” within any individual hour even if marine mammals are vocalizing, in some cases due to limitations related to “the operator's ability to stay attentive and interpret the sound data produced by the monitoring equipment,” and that PAM systems are too easily masked by background noise. The study cited focuses on evaluating the relative performances of automated detectors and human analysts when tasked with identifying the occurrence of species-specific marine mammal call types in PAM data collected using a towed hydrophone array, thus the “miss rate” noted does not necessarily refer to the likelihood that a vocalizing marine mammal would not be detected on a given PAM system, but instead reflects variations in the ability of the automated detector or human analyst to detect a call if it is present in the PAM dataset. Developers are currently using a variety of PAM systems, including bottom-mounted hydrophone arrays and moored acoustic buoys, and assisted classification of received acoustic signals using automated detectors which minimizes strain on the PAM operator, thus reducing fatigue. This approach combines the strengths of both detector “types” ( i.e., human and software), by using automated detection software to cue a PAM operator's attention to potential acoustic detections of a given species during real-time monitoring, which the operator can then probe to determine the context of the detection and verify the detection and classification. The commenter does not provide any support for the claim that right whales are silent for days or weeks. Studies of right whale calling behavior (Davis et al., 2017; Davis et al., 2023; van Parijs et al., 2023) indicate that, where acoustic buoys are deployed in known right whale habitat, upcalls ( i.e., a call type commonly produced by all age groups) are not only detected regularly ( i.e., many calls per hour) when right whales are expected to occur, based on known seasonal distribution patterns understood through visual observation and PAM data, but are also detected consistently during periods when right whales were not expected to occur ( e.g., in southern New England in winter). Both Davis et al. (2017) and Davis et al. (2023) provide evidence that upcalls were detected, at minimum, weekly throughout much of the U.S. Eastern Seaboard and Canadian Maritimes during periods when right whales were present (confirmed by visual observations), and in many cases, much more frequently. These and similar studies report on upcall detection patterns, but right whales frequently produce other types of vocalizations, such as tonal moans and downsweeps, thus increasing the likelihood of detection using PAM. There are a wide variety of PAM systems available on the market (van Parijs et al., 2021), ranging from omnidirectional independent acoustic buoys to multi-channel hydrophone arrays that are capable of detecting marine mammals in real-time. Barkaszi et al. (2020), the paper cited by the commenter focuses on characterizing marine mammal detection performance for towed PAM systems, which are typically most effective for monitoring mid- and high-frequency cetaceans and, to date, have not been proposed by offshore wind developers to monitor for marine mammals during foundation pile driving. While the specific PAM systems that would be used by Atlantic Shores South are still unknown, Atlantic Shores South is required to submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS that demonstrates the system will be able to detect North Atlantic right whales at ranges up to 10 km (32,808.4 ft). To date, offshore wind developers have used bottom-mounted PAM systems located at distance from piles being installed. The proposed rule, and this final rule, require the PAM system be placed no closer than 1 km (3,280.8 ft) from the pile being installed to minimize masking of North Atlantic right whale calls by construction noise. We anticipate Project Company 1 would use similar bottom-mounted recorders in lieu of PAM systems operated from vessels, as recommended by the commenter, particularly given the prevalence of masking of low-frequency sounds like North Atlantic right whale vocalizations by flow noise using towed PAM arrays (Barkaszi et al., 2020; Thode et al., 2021; van Parijs et al., 2021). Comment 12: Commenters stated that NMFS should disclose noise source levels at the 1 m (3.3 ft) and 750 m (2,460.6 ft) points, and the best fit noise transmission spreading loss and attenuation factors as recommended in the recent BOEM pile driving document recommendations. Response: NMFS agrees that inclusion of source levels is important and notes decidecade band spectra are provided at 1 m (3.3 ft) for impact pile driving. Further, the decidecade spectra can be used to estimate broadband source levels. NMFS has performed this and the spectra corresponded to sound exposure level (SEL) source levels of approximately 227 dB for both 12-m and 15-m monopiles at hammer energies of 4,400 kilojoules (kJ). With regard to propagation loss, NMFS does not require best fit coefficients be included when more sophisticated propagation modeling is performed. However, such coefficients can be estimated from the acoustic ranges provided in the ITA application appendices. Effects Assessment Comment 13: Commenters requested that all incidental take issued across multiple ITAs for offshore wind projects be considered cumulatively from previous, ongoing, or potential projects and their specified activities. One commenter specifically suggested that not considering the impacts of both the Atlantic Shores North Project and this Project, that would collectively result in the installation of 357 WTG, leads to an underestimate of exposure ranges and take estimates. A commenter also stated that NMFS did not address the cumulative effects of turbine operation from this Project or others in the New York Bight area. Response: 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 (see 50 CFR 216.104(a)(1)). Thus, the “specified activity” for which incidental take coverage is being sought under § 101(a)(5)(A) is generally defined and described by the applicant. Here, the activities are specific to Atlantic Shores South which is limited to the installation of up to 200 WTGs within the Lease Areas. Per the MMPA and per the ITA application received from the applicant, the findings and determinations in this proposed rule are limited to the Lease Areas for the Project (OCS-A-0499 and OCS-A-0570) and do not include Atlantic Shores North (which is lease area OCS-A-0549). Neither the MMPA nor NMFS' codified implementing regulations call for consideration of the take resulting from other activities in the negligible impact analysis. The preamble for 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, UME status, and other relevant stressors). In this final rule, we also include a summary of the impacts from take authorized through other ITAs. The 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that in determining impact, NMFS must evaluate the total taking expected from the specified activity in a specific geographic area but that cumulative effects are not considered in making findings under § 101(a)(5) concerning negligible impact. In this case, this ITR, as well as other ITAs currently in effect or proposed within the specified geographic region, are appropriately considered unrelated to each other in the sense that they are discrete actions under § 101(a)(5)(A) issued to discrete applicants. 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) cumulative effects that are reasonably certain to occur 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 on the human environment, including marine mammals, from past, ongoing, and future activities, including offshore wind and non-offshore wind activities that may affect marine mammals. Cumulative impacts regarding the promulgation of the regulations and issuance of a LOA for construction activities, such as those planned by Project Company 1, 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 Project Company 1 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 the Protected Resources Division within NMFS GARFO. GARFO's Biological Opinion for the Atlantic Shores South Project determined that NMFS' promulgation of the rulemaking and issuance of a 5-year LOA for construction activities associated with leasing, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals. Comment 14: A commenter stated that NMFS' proposed rule (88 FR 65430, September 22, 2023) does not discuss the proposed turbine model or noise source level from a proposed turbine model. They also stated that NMFS underestimated operational turbine noises, as the proposed rule only presented impacts of low power and direct drive turbines. Furthermore, the commenter stated that mothers and calves performing migration activities travel at slower speeds ( i.e., approximately 25 percent of these could potentially experience SELs exceeding 199 dB), which would cause permanent hearing loss and that operational sound could lead to North Atlantic right whale cow-calf separation. Response: Commenters specifically made claims based on a reanalysis from the operational noise source levels (181 dB (metric unknown)) for a Vesta-236 turbine model utilizing a monopile foundation (13.6 MW) that were estimated by extrapolating the broadband noise level trends versus turbine power using the Tougaard et al. (2020) and Stober and Thomsen (2021) papers. The commenters asserted that their estimate aligns with the value provided by a separate acoustics company, XI-Engineering, who was commissioned by one of the commenters to determine the operational source level of a single Vesta-236 turbine (181 dB). A commenter stated that these papers show “the trend in noise source level versus increasing turbine power size for a frequency “spectral” component more indicative of the whale's hearing range.” They further extrapolated the results from these 2 papers to yield an estimated operational source level of 192 dB for a single turbine. Based on their analysis, they have estimated a range of 61 mi (98.17 km) from shore for either 200 (the maximum number of WTGs planned for Atlantic Shores South) or 357 WTGs (this is inclusive of the maximum number of WTGs across both Atlantic Shores South and Atlantic Shores North, 2 separate Projects) where whales would experience noise levels above 130 dB rms . As described in the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section in this final rule, the commenter's analysis is not reflective of the best available science. Holme et al. (2023) demonstrated that the model presented in Tougaard et al. (2020) tends to potentially overestimate levels (up to approximately 8 dB) measured to those in the field, especially with measurements closer to the turbine for larger turbines and the authors found no relationship between turbine activity (power production, which is proportional to the blade's revolutions per minute) and noise level. Moreover, Bellmann et al. (2023) note that no relationship between nominal WTG power and operational noise was observed, in contrast with the linear models used by Tougaard et al. (2020) and Stöber and Thomsen (2021). It is theorized that this is related to gearless and more modern WTGs measured as well as increased size and weight reducing transmission of vibrations. With regard to the extent of operational noise levels, Bellmann et al. (2023) concluded that tonal components of the operational noise are clearly observable at a range of 100 m (328 ft), but typically are not resolvable within the prevailing ambient noise at a range of 5 km (3.11 mi). Based on the best available science, the commenters' calculations are flawed. Moreover, the commenter provided no evidence that exposure to operational turbine noise would prevent migration. In contrast, the proposed rule cited literature ( e.g., Malme, 1983; 1984) supporting NMFS' conclusions that the most likely response to noise from the Project would be temporary avoidance or deflection responses from but not abandoning evolutionarily ingrained migratory behavior). The swim speed analysis in the Hain et al. (2013) study that the commenters referenced only analyzed individuals within the North Atlantic right whale's traditional calving grounds in the Southeastern United States (SEUS) which is several hundred kilometers south of the Project Area. Mother-calf pairs have been documented as having extended stationary periods in the SEUS relative to other demographics as the pairs engage in critical development behaviors including nursing, “quiet contact”, play, and rest (Hain et al., 2013). However, mother-calf pairs have been shown to decrease their stationary behaviors as the calf ages and the pair migrate farther north (Cusano et al., 2018). It is therefore likely that the pair's swim speeds may increase to some degree around the Lease Areas discussed here. Furthermore, out of 3 groups analyzed in this study ( i.e., mother-calf pairs, groups of 3 individuals or more, and single/pairs without a calf), mother-calf pairs did not have significantly different swim speeds from groups of 3 or more (average mother-calf swim speed = 1.20 km/hr. (0.75 miles per hour (mph)) +/- 0.76 km/hr. (0.47 mph) vs. 1.26 km/hr. (0.78 mph) +/- 0.50 km/hr. (0.31 mph) for groups of 3 or more). Only single/pairs of right whales without a calf had significantly higher swimming speeds (1.86 km/hr. (1.16 mph) on average, +/- 1.27 km/hr. (0.79 mph)) (Hain et al., 2013). These results indicate that mother-calf pairs do not swim significantly slower than some other right whale demographics, and therefore do not have a disproportionately higher risk for permanent hearing loss as a result of their swim speed compared to the rest of the population. Given that mother-calf pairs are capable of swimming equally as fast as other demographics, and that they reduce their amount of stationary time as the calf continues to grow and the pair moves farther north, it is unlikely that mother-calf pairs would be disproportionately exposed to noise to the level that could cause permanent hearing loss. Furthermore, calves/younger whales may spend more time at the surface; making them more visible to observers ( e.g., Baumgartner and Mate, 2003; Gero et al., 2013; Lomac-MacNair et al., 2018; Cusano et al., 2019; Dombroski et al., 2021). Most importantly, NMFS also requires that Project Company 1's undertake enhanced mitigation and monitoring measures ( i.e., bubble curtains, PAM, use of experienced PSOs, seasonal restrictions when North Atlantic right whales are more likely to be in and around the Project Area) to further reduce risks to North Atlantic right whale demographics (inclusive of any mother-calf pairs that may be migrating through the area), and expect that any harassment experienced by this species would be in the form of Level B harassment, and not Level A harassment. Furthermore, the Project Area is not one where this species is known to reside for long periods of time ( i.e., no extended residency as there is no foraging ground or calving ground off of New Jersey) and most animals would be expected to be migrating through the migratory corridor. Because of this, we disagree with the commenter's assertion as described in their comment letter. Comment 15: A commenter stated that the rule needs to consider the increased risk to marine mammals from commercial and military vessel traffic being channeled into a 20 to 31 mile-wide (32 to 50 km) corridor between Atlantic Shores South's Lease Areas and planned projects in the Hudson South area given higher noise levels within the Project Area due to all WTGs becoming operational as well as overlap between pile driving activities of WTGs while other WTGs intermittently become operational. The commenter further stated that marine mammals attempting to travel within this corridor will incur an increased risk of vessel strike. Response: As part of the Construction and Operations Plan (COP) for this Project, and then incorporated into the analysis in BOEM's final EIS, Project Company 1 was required to evaluate and draft a Navigation Safety Risk Assessment (NSRA; appendix II-S of the COP ( https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/2024-05-01_Appendix%20II-S%20Navigation%20Safety%20Risk%20Assessment.pdf )) to analyze the potential impacts of vessel traffic during construction, operation, and decommissioning of the Project and included considerations for commercial cargo vessels, military vessels, towing, fishing, and recreation vessels. Overall, the NSRA concluded that the construction of the Project as a whole will result in modifications to vessel traffic patterns, but that the risks associated with these changes would not be substantially different from consideration of Projects 1 or 2 or the whole of Atlantic Shores South. While some key commercial traffic waterways currently exist near the Wind Turbine Area (WTA) ( e.g., Ambrose-Barnegat Traffic Separation Scheme leading to and from New York), the NSRA concluded that, given the distance away from the WTA to the south and far from this TSS, there are no expected impedances anticipated for commercial traffic in and out of this area. The NSRA further states that the Project is not anticipated to have an adverse impact to vessel traffic, even though some vessels ( e.g., commercial non-fishing vessels and military vessels) may choose to navigate around the Lease Areas rather than through it. However, although traveling through the Lease Areas would be generally restricted during the short construction period ( i.e., approximately 2-3 years) and may require non-Project vessels to transit through a narrower traffic route, vessels would be able to continue normal traffic patterns during the lengthy operations phase of the Project. Additionally, per the final EIS, the gridded pattern and appropriately marked lighting used for the WTGs, OSSs, and Met Tower is designed to improve vessel navigation, efficiency, and safety to allow for individuals to safely transverse through the Project Area. Here, we discuss both pile driving activities and operations, as Project Company 1 has indicated that some WTGs may become operational during periods where others are continuing to be installed. As the commenter did not specify if the noise relates to all WTGs as operational or not, this review is more comprehensive. In looking at this information biologically, this is addressed, in part, in the final Biological Opinion (which also relied on and incorporated the data and conclusions of the NSRA) wherein NMFS GARFO stated that, while it is reasonable to expect pile driving activities to contribute to the avoidance and temporary localized displacement of ESA-listed whales (and, broadly, other non-ESA listed marine mammal species as well in and around the Project Area), NMFS concluded that we do not expect that any avoidance behaviors from pile driving would result in North Atlantic right whales being driven or moving to areas where there is a higher risk of vessel traffic. This determination was based on the relatively small size of the Project Area with noise that an individual whale is expected to avoid (no more than 11 km (6.84 mi) from the pile being installed), the short-term nature of any disturbance, the limited number of whales impacted, and the lack of any significant differences in vessel traffic in that 11 km (6.84 mi) area that would put an individual whale at greater risk of vessel strike. Regarding operations, NMFS has already included a detailed description of operational noise from commissioned WTGs (see Comment 14 ). This discussion aligns with conclusions found within the Biological Opinion that state the area above ambient noise from operating WTGs is expected to be very small ( i.e., 50 m (164 ft) or less) and any effects to ESA-listed whales (and, broadly other marine mammal species) are likely to be insignificant. Regarding vessel density after construction activities have ended, information gleaned from the NSRA indicate that less vessels are needed during the operation and maintenance phase of the Project, and some vessels, such as fishing vessels, may choose to continue transiting through the WTA, especially given known reef effects when hardened structures are installed into softer sediment environments (see Langhamer, 2012; Stenberg et al., 2015; Degraer et al., 2020; and Gill et al., 2020 for some examples) which would reduce any areas of higher vessel densities outside the WTA that would have existed during the construction period where avoidance of the WTA occurred (although the NSRA indicates this vessel density would not increase substantially even during the construction period, with a minor increase to the east of the WTA). This indicates that, given the already high level of vessel traffic experienced off of New Jersey, these changes would be minimal and temporary, with very little chance to lead to additional opportunities for vessel strikes of whales. Lastly, as the commenter specifically points out projects planned in the Hudson South Call Area, those 6 projects ( i.e., Bluepoint Wind, LLC (OCS-A 0537); Attentive Energy LLC (OCS-A 0538); Community Offshore Wind, LLC (OCS-A 0539); Atlantic Shores Offshore Wind Bight, LLC (OCS-A 0541); Invenergy Wind Offshore LLC (OCS-A 0542); and Vineyard Mid-Atlantic LLC (OCS-A 0544)) are still in the early coordination phase with no construction activities currently planned in the next 5 years that would overlap with the effective period of Project Company 1's rulemaking. As these projects have not even finalized the process to become FAST-41 projects, NMFS does not expect that any construction activities for those lease areas are forthcoming within the effective period of Atlantic Shores South; therefore, no military or commercial vessels would be restricted into a narrow vessel traffic route nor would any whales experience an increased risk of vessel strike when navigating outside of the Project Area for Atlantic Shores South, per the narrow channel referenced by the commenter. NMFS acknowledges that whales may temporarily avoid the area where the specified construction activities or noise from operational WTGs occurs and this was broadly addressed in the proposed rulemaking. However, for the reasons described above, NMFS does not anticipate that whales will be displaced in a manner that would result in a higher risk of vessel strike, and the commenter does not provide evidence that either of these effects should be a reasonably anticipated outcome of the specified activity. Generally, vessel traffic in this region is concentrated closer to shore as vessels leave and return to the coastal ports. The density of vessel traffic dissipates as one moves offshore. The commenter has presented no information supporting the speculation that whales would be displaced from the Project Area into shipping lanes, areas of higher vessel traffic, or a specific corridor in a manner that would be expected to result in higher risks of vessel strike. Other Comment 16: Commenters expressed concern that operational turbines could harm or kill marine mammals if they migrated through the Atlantic Shore South and Hudson South wind areas and that operational noise would impair the echolocation and navigation ability of North Atlantic right whales, increasing risk of predation and vessel strike, and compromise a North Atlantic right whales ability to make it through the corridor. Other commenters expressed similar concern for dolphins and other species that can echolocate. Response: Baleen whales ( e.g., humpback whales, minke whales) do not have the ability to echolocate, a process by which toothed whales ( e.g., sperm whales) and dolphins emit high-frequency sounds from their melon to obtain information about objects (typically prey) in the water. Because baleen whales do not echolocate like toothed whales and dolphins, there is no concern over impeding such ability. All large whales that have stranded along the U.S. East Coast since December 2011, with the exception of 3 sperm whales, have been baleen whales. With respect to toothed whales and dolphins, the low frequency operational noise is not anticipated to impact echolocation. The frequency of echolocation clicks is dependent on their need; however, clicks would be outside the frequency range of operational noise (with some clicks being ultrasonic) typically around 30-100 kHz (Southall et al., 2019; Kuroda et al., 2020) and can be very loud (up to 200 dB peak-to-peak) (Brinkløv et al., 2022). In contrast, operational turbine noise is generally below 1 kHz (Tougaard et al., 2020; Stöber and Thomsen, 2021). Therefore, turbine noise interference with echolocation is not a likely outcome of exposure. Operational noise is also not anticipated to interfere with North Atlantic right whale navigation or migration. During the effective period of the rule, some or all of Atlantic Shores' proposed turbines will become operational. The proposed rule included an evaluation of operational noise impacts on marine mammals, including North Atlantic right whales and described anticipated noise levels from operation. For example, the proposed rule indicated that operational noise levels are likely lower than those ambient levels already present in active shipping lanes, such that operational noise would likely only be detected in very close proximity to the WTG (Thomsen et al., 2006; Tougaard et al., 2020). North Atlantic right whales are well known to transit through heavily used shipping lanes wherein commercial vessels (as well as recreational vessels) continuously elevate background noise levels. The commenter did not provide any scientific support to their statements that navigation and echolocation would be impaired due to operations so NMFS was unable to evaluate these statements further. Comment 17: A member of the public has stated that the work planned for Atlantic Shores South would interfere with the North Atlantic right whale's “migration and reproduction territory” and that NMFS should not issue any ITAs to allow for any type of harassment to marine mammals, particularly those listed under the ESA. Response: NMFS disagrees that the Atlantic Shores South Project would interfere with the “migration and reproduction territory” of the North Atlantic right whale, as suggested by the commenter. NMFS is aware of no evidence to support this claim, nor did the commenter provide any. The migratory Biological Important Area (BIA) is about 177.77 km (101.46 mi) across where the Atlantic Shores South Project (26.4 km (16.4 mi)) intersects and given that the Project Area overlaps approximately less than 15 percent of the width of the migratory corridor, the Project Area is not expected to meaningfully impede the movement of migrating North Atlantic right whales. This information is all publicly available and this analysis can be easily replicated and visualized through data found in NOAA's Marine Cadastre National Viewer at: https://marinecadastre.gov/viewers ). No take by injury, serious injury, or mortality is authorized for the species. NMFS emphasizes that the authorized incidental take of North Atlantic right whales is limited to Level B harassment ( i.e., behavioral disturbance). As described in the proposed rule and this final rule (see Negligible Impact Analysis and Determination section), NMFS has determined that the Level B harassment of North Atlantic right whales will not result in impacts to the population through effects on annual rates or recruitment or survival. Furthermore, no calving habitat or reproductive areas are known off of New Jersey and the BIA for this area is located off the southeast U.S. coast, extending from the Cape Fear, North Carolina to below Cape Canaveral, Florida (calving critical habitat; https://www.fisheries.noaa.gov/species/north-atlantic-right-whale ). These 2 areas are approximately 712 km (443 mi) apart (assuming a straight line that intersects land), from the most southern point of the Lease Areas to the most northern point of the calving area. Therefore, NMFS does not expect that reproductive activities located in the southeast would be affected by the activities occurring off of New Jersey for the Project. Lastly, the commenter seems to have a misconception about how the MMPA and ESA work together. Under section 7(a)(2) of the ESA, Federal agencies are required to consult with NMFS or the U.S. Fish and Wildlife Service, as appropriate, to ensure that the actions they fund, permit, authorize, or otherwise carry out will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitats (16 U.S.C. 1536(a)(2)). For the Atlantic Shores South Project, our office ( i.e., the Office of Protected Resources) requested initiation of a section 7 consultation for ESA-listed species with the NMFS Greater Atlantic Regional Fisheries Office on July 19, 2023. A Biological Opinion was completed on December 18, 2023 (see https://www.fisheries.noaa.gov/s3/2024-02/GARFO-2023-01804.pdf ), which concluded that the promulgation of the rule and issuance of a LOA thereunder is not likely to jeopardize the continued existence of threatened and endangered species under NMFS' jurisdiction and is not likely to result in the destruction or adverse modification of designated or proposed critical habitat. Because of this, NMFS' action of finalizing the rulemaking and issuing a LOA for the Atlantic Shores South Project is consistent with the ESA. Comment 18: The Commission stated concern regarding discrepancies between modeled and measured zones as factors to take into account for rule conditions and recommended that NMFS provide the interim SFV reports for the South Fork and Vineyard Wind 1 projects and allow for another 30-day public comment period for the Atlantic Shores South proposed rule before issuing any final rule. Response: NMFS disagrees that results from the South Fork and Vineyard Wind 1 projects are necessary for the public to comment on the Atlantic Shores South proposed rule. The public had adequate opportunity to comment on the acoustic modeling methods and results in the proposed rule and supporting information, including a detailed acoustic modeling report. Moreover, in situ data on pile driving, in general, including from the Block Island Wind Farm and Coastal Virginia Offshore Wind (CVOW) Pilot Project are publicly available and were described in the proposed rule as well as modeling that has investigated how source levels may increase in relation to pile and hammer specifications. Since that time, NMFS made the Vineyard Wind 1 SFV report available on its website as this report was deemed final. South Fork Wind has not yet submitted a SFV report that NMFS has deemed final; therefore, it is not available. Waiting until the South Fork SFV report is available and opening another 30-day public comment on the Atlantic Shores South proposed rule could constitute an unnecessary delay to the environmental permitting process and would not be aligned with the FAST-41. NMFS has reviewed the final monitoring reports submitted for the South Fork and Vineyard Wind 1—Phase 1 Projects and the results do not conflict with modeled assumptions and estimated/allowed take included in the rule. Further, marine mammal monitoring results indicate that observed behaviors from pile driving activities are in line with NMFS' analysis and assumptions within the NID ( i.e., behaviors of mysticetes included surfacing, blowing, fluking, and feeding, which are expected but not strong reactions to a noise stimulus and indicative of low levels of Level B harassment). For all these reasons, NMFS is not re-publishing the Atlantic Shores South proposed rule for public comment. NMFS acknowledges the Commission's concern regarding potential discrepancies between modeled and measured ensonification zones and has made certain changes within 50 CFR 217.304, including the addition of paragraph (c)(14)(viii)(A), to ensure that a flexible, iterative process is available to the agency in addressing any such discrepancies. Comment 19: The Commission recommended that NMFS ensure that the mitigation, monitoring, and reporting requirements for the construction of wind energy facilities are sufficient at the conclusion of the final rule phase and that by allowing additional sound attenuation technologies to be implemented, as needed, during Project construction could lead to delays and additional impacts to marine mammals if delays necessitate longer construction periods. Response: NMFS understands the suggestion by the Commission but disagrees at this time. Within U.S. waters, offshore wind is relatively new and brings with it new science, technology, and data. To fully ensure conservation benefits to NOAA's trust species, we believe that all mitigation, monitoring, and report approaches are necessary to be both proactive and reactive through our Adaptive Management condition found within the final rulemaking fr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-19587. Public record. Not legal advice.