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16 U.S.C. 1361 et seq., unless otherwise noted.
74 FR 35143, July 20, 2009, unless otherwise noted.
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16 U.S.C. 1361 et seq., unless otherwise noted.
74 FR 35143, July 20, 2009, unless otherwise noted.
87 FR 23120, Apr. 19, 2022, unless otherwise noted.
At 87 FR 23120, Apr.19, 2022, subpart A to part 217 was revised, effective Apr. 21, 2022, through Apr. 20, 2027.
(a) Regulations in this subpart apply only to the Sonoma County Water Agency (SCWA) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to estuary management activities.
(b) The taking of marine mammals by SCWA may be authorized in a Letter of Authorization (LOA) only if it occurs at Goat Rock State Beach or in the Russian River estuary in California.
Regulations in this subpart are effective from April 21, 2022, through April 20, 2027.
(a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.7, the Holder of the LOA (hereinafter “SCWA”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.1(b) of this chapter by Level B harassment associated with estuary management activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) [Reserved]
Except for the takings contemplated in § 217.3 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.7, it is unlawful for any person to do any of the following in connection with the activities described in § 217.1 of this chapter:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.7;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.1(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.7 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) A copy of any issued LOA must be in the possession of SCWA, its designees, and work crew personnel operating under the authority of the issued LOA.
(2) If SCWA observes a pup that may be abandoned, it shall contact the National Marine Fisheries Service (NMFS) West Coast Regional Stranding Coordinator immediately and also report the incident to NMFS Office of Protected Resources within 48 hours. Observers shall not approach or move the pup.
(b) SCWA crews shall cautiously approach the haul-out ahead of heavy equipment.
(c) SCWA staff shall avoid walking or driving equipment through the seal haul-out.
(d) Crews on foot shall make an effort to be seen by seals from a distance.
(e) All work shall be completed as efficiently as possible and with the smallest amount of heavy equipment possible.
(f) Boats operating near river haul-outs during monitoring shall be kept within posted speed limits and driven as far from the haul-outs as safely possible.
(g) SCWA shall implement the following mitigation measures during pupping season (March 15-June 30):
(1) SCWA shall maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach;
(2) A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.
(3) If a pup less than one week old is on the beach where heavy machinery will be used or on the path used to access the work location, the management action shall be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA shall consult with NMFS and the California Department of Fish and Wildlife to determine the appropriate course of action. SCWA shall determine if pups less than one week old are on the beach prior to a breaching event.
(4) Physical and biological monitoring shall not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.
(a) Monitoring and reporting shall be conducted in accordance with the approved Pinniped Monitoring Plan.
(b) Reporting:
(1) Annual reporting:
(i) SCWA shall submit an annual summary report to NMFS not later than ninety days following the end of a given calendar year. SCWA shall provide a final report within thirty days following resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) The number of seals taken, by species and age class (if possible);
(B) Behavior prior to and during water level management events;
(C) Start and end time of activity;
(D) Estimated distances between source and seals when disturbance occurs;
(E) Weather conditions (e.g., temperature, wind, etc.);
(F) Haul-out reoccupation time of any seals based on post-activity monitoring;
(G) Tide levels and estuary water surface elevation; and
(H) Seal census from haul-out monitoring.
(2) [Reserved]
(c) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in § 217.1(a) clearly causes the take of a marine mammal in a prohibited manner, SCWA shall immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS and the West Coast Regional Stranding Coordinator, NMFS. Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with SCWA to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. SCWA may not resume their activities until notified by NMFS. The report must include the following information:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions;
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s).
(2) In the event that SCWA discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), SCWA shall immediately report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (c)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with SCWA to determine whether additional mitigation measures or modifications to the activities are appropriate.
(3) In the event that SCWA discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.1(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SCWA shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. SCWA shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS.
(4) Pursuant to paragraphs (c)(2-3) of this section, SCWA may use discretion in determining what injuries (i.e., nature and severity) are appropriate for reporting. At minimum, SCWA must report those injuries considered to be serious (i.e., will likely result in death) or that are likely caused by human interaction (e.g., entanglement, gunshot). Also pursuant to sections paragraphs (c)(2-3) of this section, SCWA may use discretion in determining the appropriate vantage point for obtaining photographs of injured/dead marine mammals.
(a) To incidentally take marine mammals pursuant to these regulations, SCWA must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, SCWA may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SCWA must apply for and obtain a modification of the LOA as described in § 217.8.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.7 for the activity identified in § 217.1(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.7 for the activity identified in § 217.1(a) may be modified by NMFS under the following circumstances:
(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SCWA regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from SCWA's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.7, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.
90 FR 31794, July 15, 2025, unless otherwise noted.
At 90 FR 31794, July 15, 2025, subpart B was added to part 217, effective Mar. 1, 2026, through Feb, 28, 2031.
(a) The incidental taking of marine mammals by the Port of Alaska (POA) may be authorized in a Letter of Authorization (LOA) only if it occurs at or around the Port of Alaska, including waters of Knik Arm and Upper Cook Inlet near Anchorage, Alaska incidental to the specified activities outlined in paragraph (b) of this section. Requirements imposed on the POA in this subpart must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified activities are construction and demolition activities associated with the Cargo Terminals Replacement Project under the Port of Alaska Modernization Program at the Don Young Port of Alaska in Anchorage, Alaska.
Regulations in this subpart are effective from March 1, 2026, until February 28, 2031.
Under a LOA issued pursuant to §§ 216.106 of this chapter and 217.17, the POA and those persons it authorizes or funds to conduct activities on its behalf may incidentally, but not intentionally, take marine mammals within the specified geographical region by harassment associated with the specified activities provided they are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings permitted in § 217.13 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.17, it is unlawful for any person to do any of the following in connection with the specified activities:
(1) Violate or fail to comply with the terms, conditions, and requirements of this subpart or a LOA issued under this subpart;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than specified;
(4) Take a marine mammal specified in such LOA after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the specified activities identified in § 217.11(b), POA must implement the mitigation measures contained in this section and any LOA issued under § 216.106 of this chapter and § 217.17. These mitigation measures include, but are not limited to:
(1) A copy of any issued LOA must be in the possession of the POA, its designees, and work crew personnel operating under the authority of the issued LOA;
(2) The POA must ensure that construction supervisors and crews, the monitoring team and relevant POA staff are trained prior to the start of all pile driving so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work; and
(3) The POA must employ Protected Species Observers (PSO) and establish monitoring locations pursuant to § 217.16 and as described in a NMFS-approved Marine Mammal Monitoring and Mitigation Plan;
(i) For all pile driving activities, land-based PSOs must be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures. A minimum of 4 locations must be used to monitor the designated harassment zones to the maximum extent possible based on daily visibility conditions. Additional PSOs must be added if warranted by site conditions and/or the level of marine mammal activity in the area. PSOs must be able to implement shutdown or delay procedures when applicable through communication with the equipment operator;
(ii) If during pile driving activities, PSOs can no longer effectively monitor the entirety of the Cook Inlet beluga whale (CIBW) shutdown zone due to environmental conditions (e.g., fog, rain, wind), pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until conditions improve such that the shutdown zone can be effectively monitored. If the shutdown zone cannot be monitored for more than 15 minutes, the entire zone must be cleared again for 30 minutes prior to reinitiating pile driving;
(4) Pre-start clearance monitoring must take place from 30 minutes prior to initiation of pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity;
(i) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals;
(ii) Pile driving may only commence if, following 30 minutes of observation, it is determined by the lead PSO that the shutdown zones are clear of marine mammals and for CIBW, any observed whale(s) is at least 100 meters (m) past the shutdown zone and on a path away from the zone or the whale has not been re-sighted for 30 minutes;
(5) For all pile driving activity, the POA must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.17;
(i) If a marine mammal is observed entering or within the shutdown zone, all pile driving activities, including soft starts, at that location must be halted. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and has been visually confirmed beyond the shutdown zone or 15 minutes (for non-CIBWs) or 30 minutes (for CIBWs) have passed without re-detection of the animal. Specific to CIBW, if a CIBW(s) is observed within or on a path towards the shutdown zone, pile driving activities, including soft starts, must shut down and not re-commence until the whale has traveled at least 100 m beyond the shutdown zone and is on a path away from such zone or until no CIBW has been observed in the shutdown zone for 30 minutes;
(ii) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animal behavior must be monitored and documented;
(iii) If work ceases for more than 30 minutes, the shutdown zones must be cleared again for 30 minutes prior to reinitiating pile driving. A determination that the shutdown zone is clear must be made during a period of good visibility;
(iv) If a shutdown procedure should be initiated but human safety is at risk, as determined by the best professional judgment of the vessel operator or project engineer, the in-water activity, including pile driving, is allowed to continue until the risk to human safety has dissipated. In this scenario, pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until the lead PSO has determined that the shutdown zones are clear of marine mammals and, for CIBW, any observed whale(s) is at least 100 m past the shutdown zone and on a path away from the zone;
(v) For in-water construction activities other than pile driving (e.g., barge positioning; use of barge-mounted excavators; dredging), if a marine mammal comes within 10 m, POA must cease operations and reduce vessel speed to the minimum level required to maintain steerage and safe working conditions. If human safety is at risk, as determined by the best professional judgment of the vessel operator or project engineer, the in-water activity is allowed to continue until the risk to human safety has dissipated;
(6) The POA must use soft start techniques when impact pile driving. Soft start requires the POA to conduct 3 sets of strikes (3 strikes per set) at reduced hammer energy with a 30-second waiting period between each set. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer;
(7) The POA must use bubble curtains for all permanent piles (72-inch (in) diameter) during both vibratory and impact pile driving in waters deeper than 3 m in all months. The bubble curtain must be operated to achieve optimal performance. At a minimum, the bubble curtain must comply with the following:
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact;
(iii) Air flow to the bubblers must be balanced around the circumference of the pile;
(8) Pile driving activity must be halted upon observation of a species entering or within the harassment zone for either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met;
(b) [Reserved]
(a) The POA must submit a Marine Mammal Monitoring and Mitigation Plan to NMFS for approval at least 90 days before the start of construction and abide by the Plan, if approved.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (e.g., employed by a subcontractor) and have no other assigned tasks during monitoring duties;
(2) PSOs must be approved by NMFS prior to beginning work on the specified activities;
(3) PSOs must be trained in marine mammal identification and behavior;
(i) A designated project lead PSO must always be on site. The project lead PSO must have prior experience performing the duties of a PSO during in-water construction activities pursuant to a NMFS-issued ITA or Letter of Concurrence;
(ii) Each PSO station must also have a designated station lead PSO specific to that station and shift. These station lead PSOs must have prior experience working as a PSO during in-water construction activities;
(iii) Other PSOs may substitute other relevant experience (including relevant Alaska Native traditional knowledge), education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(iv) PSOs must also have sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to record required information including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and the ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(4) PSO stations must be elevated platforms constructed on top of shipping containers or a similar base that is at least 8 ft 6 in high (i.e., the standard height of a shipping container) that can support at least 3 PSOs and their equipment. The platforms must be stable enough to support use of a theodolite and must be located to optimize the PSO's ability to observe marine mammals and the shutdown zones. Each PSO station must have at least 2 PSOs on watch at any given time, including the station lead PSO;
(5) If the POA is conducting in-water work for other projects that includes PSOs, the PSOs for the Cargo Terminals Replacement Project must be in real-time contact with those PSOs, and both sets of PSOs must share all information regarding marine mammal sightings with each other.
(c) The POA must submit weekly monitoring reports within 14 days after the conclusion of each calendar week during each Cargo Terminals Replacement Project construction season. These reports must include a summary of marine mammal species and behavioral observations, construction shutdowns or delays, and construction work completed during the reporting period. The weekly reports also must include an assessment of the amount of construction remaining to be completed (i.e., the number of estimated hours of work remaining), in addition to the number of CIBW observed within estimated harassment zones to date.
(d) The POA must submit a draft annual summary monitoring report on all monitoring conducted during each construction season which includes final electronic data sheets within 90 calendar days after the completion of each construction season or 60 days prior to a requested date of issuance of any future incidental take authorization for projects at the same location, whichever comes first. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of year 5 of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days of receipt of the draft report, the report may be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt. At a minimum, the reports must contain:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed, by what method (i.e., impact or vibratory), the total duration of driving time for each pile (vibratory driving), and number of strikes for each pile (impact driving);
(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), Beaufort sea state, and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(4) Upon observation of a marine mammal, the following information should be collected:
(i) Name of the PSO who sighted the animal, observer location, and activity at time of sighting;
(ii) Time of sighting;
(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven for each sighting (if pile driving was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(ix) Detailed information about any implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and
(x) All PSO data in an electronic format that can be queried such as a spreadsheet or database (i.e., digital images of data sheets are not sufficient).
(e) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the POA must report the incident to NMFS Office of Protected Resources (OPR) and to the Alaska Regional Stranding Coordinator no later than 24 hours after the initial observation. If the death or injury was caused by the specified activity, the POA must immediately cease the specified activities described in § 217.11(b) until NMFS OPR is able to review the circumstances of the incident. The POA must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to these regulations, the POA must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the effective dates of this subpart.
(c) If an LOA expires prior to the end of the effective dates of this subpart, the POA may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the POA must apply for and obtain a modification of the LOA as described in § 217.18.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) A LOA issued under §§ 216.106 of this chapter and 217.17 for the specified activities may be modified upon request by the POA, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA were implemented.
(b) For LOA modification by the POA that includes changes to the specified activity or the mitigation, monitoring, or reporting measures that do not change the findings made for the regulations in this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change and solicit public comment before issuing the LOA.
(c) A LOA issued under § 216.106 of this chapter and § 217.17 for the specified activity may be modified by NMFS under the following circumstances:
(1) NMFS may modify the existing mitigation, monitoring, or reporting measures, after consulting with the POA regarding the practicability of the modifications, if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from the POA's monitoring;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.17, a LOA may be modified without prior notice or opportunity for public comment. Notification will be published in the Federal Register within 30 days of the action.
84 FR 70322, Dec. 20, 2019, unless otherwise noted.
At 84 FR 70322, Dec. 20, 2019, subpart D was added to part 217, effective Dec. 1, 2021, through Nov. 30, 2026.
(a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction, maintenance, and operation of the Liberty Drilling and Production Island (LDPI) and associated infrastructure.
(b) The taking of marine mammals by Hilcorp may be authorized in a Letter of Authorization (LOA) only if it occurs within the Beaufort Sea, Alaska.
Regulations in this subpart are effective from December 1, 2021, through November 30, 2026.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, the Holder of the LOA (hereinafter “Hilcorp”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.30(b) by mortality, serious injury, Level A harassment, or Level B harassment associated with the LDPI construction and operation activities, including associated infrastructure, provided the activities are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Notwithstanding takings contemplated in § 217.32 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.36, no person in connection with the activities described in § 217.30 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.36;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified;
(d) Take a marine mammal specified in such LOAs if the National Marine Fisheries Service (NMFS) determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.30(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions.
(1) Hilcorp must renew, on an annual basis, the Plan of Cooperation (POC), throughout the life of the regulations in this subpart;
(2) A copy of any issued LOA must be in the possession of Hilcorp, its designees, and work crew personnel operating under the authority of the issued LOA;
(3) Hilcorp must conduct briefings for construction and ice road supervisors and crews, and the marine mammal and acoustic monitoring teams prior to the start of annual ice road or LDPI construction, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures;
(4) Hilcorp must allow subsistence hunters to use the LDPI for safe harbor during severe storms, if requested by hunters;
(5) In the unanticipated event of an oil spill during LDPI operational years, Hilcorp must notify NMFS of the spill within 48 hours, regardless of size, and implement measures contained within the Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete pile driving and pipeline installation during the ice-covered season.
(7) Except during takeoff and landing and in emergency situations, aircraft must maintain an altitude of at least 457 m (1,500 ft). If a marine mammal is observed, then a horizontal distance of 305 m (100 ft) of whales or seals will be maintained between the aircraft and the observed marine mammals.
(b) Ice road construction, maintenance, and operation.
(1) Hilcorp must implement the NMFS-approved Ice Road and Ice Trail Best Management Practices (BMPs) and the Wildlife Action Plan. These documents may be updated as needed throughout the life of the regulations in this subpart, in consultation with NMFS.
(2) Hilcorp must not approach ringed seal structures (i.e., lairs or breathing holes) within 150 m or ringed seals within 50 m.
(c) Liberty Drilling Production Island construction.
(1) For all pile driving and construction activities involving heavy equipment, Hilcorp must implement a minimum shutdown zone of 10 meters (m) from any marine mammal in water or seals on land. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately;
(2) For all pile driving activity, Hilcorp shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately. NMFS may adjust the shutdown zones pending review and approval of an acoustic monitoring report (see § 217.35);
(3) Hilcorp must employ NMFS-approved protected species observers (PSOs) and designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. NMFS may adjust the monitoring zones pending review and approval of an acoustic monitoring report (see § 217.35);
(4) If a bowhead whale or other low frequency cetacean enters the Level A harassment zone, pile or pipe driving must be shut down immediately. If a beluga whale or pinniped enters the Level A harassment zone while pile driving is ongoing, work may continue until the pile is completed (estimated to require approximately 15-20 minutes), but additional pile driving must not be initiated until the animal has left the Level A harassment zone. During this time, PSOs must monitor the animal and record behavior;
(5) If a marine mammal is approaching a Level A harassment zone and pile driving has not commenced, pile driving must be delayed. Pile driving may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone; 15 minutes have passed without subsequent detections of small cetaceans and pinnipeds; or 30 minutes have passed without subsequent detections of large cetaceans;
(6) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone (which equates to the Level B harassment zone), pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indicated in paragraph (c)(5) of this section, has elapsed;
(7) Hilcorp must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer;
(8) All pipe- and pile-driving activities (impact and vibratory) and LDPI support vessel traffic outside the barrier islands must cease by August 1, annually, and not resume until the official end of the hunt or until the quota has been met, whichever occurs first. Hilcorp must coordinate annually with subsistence users on the dates of these hunts; and
(9) Should an ice seal be observed on or near the LDPI by any Hilcorp personnel, during construction or operation, the sighting must be reported to Hilcorp's Environmental Specialist. No construction activity should occur within 10 m of an ice seal and any vehicles used should use precaution and not approach any ice seal within 10 m.
(d) Vessel restrictions. When operating vessels, Hilcorp must:
(1) Reduce vessel speed to 5 knots (kn) if a whale is observed within 500 m (1641 feet (ft)) of the vessel and is on a potential collision course with the vessel, or if a vessel is within 275 m (902 ft) of whales, regardless of course relative to the vessel;
(2) Avoid multiple changes in vessel direction;
(3) Not approach within 800 m (2,624 ft) of a North Pacific right whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries or major haulouts; and
(4) Avoid North Pacific right whale critical habitat or, if critical habitat cannot be avoided, reduce vessel speed during transit.
(a) All marine mammal and acoustic monitoring must be conducted in accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan (4MP) and Acoustic Monitoring Plan, which includes acoustic monitoring during both the open-water and ice-covered seasons. These plans may be modified throughout the life of the regulations in this subpart upon NMFS review and approval.
(b) Monitoring must be conducted by NMFS-approved PSOs, who must have no other assigned tasks during monitoring periods and be equipped with, at minimum, binoculars and rangefinders. At minimum, two PSOs must be placed on elevated platforms on the island during the open-water season when island construction activities are occurring. These observers will monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.
(c) One PSO will be placed on the side where construction activities are taking place and the other placed on the opposite side of the LDPI; both observers will be on elevated platforms.
(d) PSOs will rotate duties such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period.
(e) An additional island-based PSO will work with an aviation specialist to use an unmanned aircraft system (UAS) to detect marine mammals in the monitoring zones during pile and pipe driving and slope shaping. Should UAS monitoring not be feasible or be deemed ineffective, a boat-based PSO must monitor for marine mammals during pile and pipe driving.
(f) During the open-water season, marine mammal monitoring must take place from 30 minutes prior to initiation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. Pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and documented.
(g) After island construction is complete but drilling activities are occurring, a PSO will be stationed on the LDPI for approximately 4 weeks during the month of August to monitor for the presence of marine mammals around the island in the monitoring zone.
(1) Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
(i) At least one observer must have prior experience working as an observer;
(ii) Other observers may substitute education (degree in biological science or a related field) or training for experience;
(iii) Where a team of three or more observers are required, one observer must be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
(iv) Hilcorp must submit PSO curricula vitae (CVs) for approval by NMFS prior to the onset of pile driving.
(2) PSOs must have the following additional qualifications:
(i) Ability to conduct field observations and collect data according to assigned protocols;
(ii) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(iii) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(iv) Writing skills sufficient to prepare a report of observations including, but not limited to, the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(v) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(h) Hilcorp must deploy autonomous sound recorders on the seabed to conduct underwater passive acoustic monitoring in the open-water season the first four years of the project such that island construction activities, including pile driving, and drilling operations are recorded. Acoustic monitoring will be conducted for the purposes of sound source verification to verify distances from noise sources at which underwater sound levels reach thresholds for potential marine mammal harassment.
(i) Hilcorp must submit incident and monitoring reports.
(1) Hilcorp must submit a draft annual marine mammal and acoustic summary report to NMFS not later than 90 days following the end of each calendar year. Hilcorp must provide a final report within 30 days after receipt of NMFS' comments on the draft report. The reports must contain, at a minimum, the following:
(i) Date and time that monitored activity begins or ends;
(ii) Description of construction activities occurring during each observation period;
(iii) Weather parameters (e.g., wind speed, percent cloud cover, visibility);
(iv) Water conditions (e.g., sea state, tide state);
(v) Species, numbers, and, if possible, sex and age class of marine mammals observed;
(vi) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from construction activity;
(vii) Distance from construction activities to marine mammals and distance from the marine mammals to the observation point;
(viii) An extrapolated total take estimate for each species based on the number of marine mammals observed and the extent of the harassment zones during the applicable construction activities;
(ix) Histograms of the perpendicular distance at which marine mammals were sighted by the PSOs;
(x) Description of implementation of mitigation measures (e.g., shutdown or delay);
(xi) Locations of all marine mammal observations;
(xii) An estimate of the effective strip width of the island-based PSOs and the UAS imagery; and
(xiii) Sightings and locations of marine mammals associated with acoustic detections.
(2) Annually, Hilcorp must submit a report within 90 days of ice road decommissioning. The report must include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (i.e., adult or pup, behavior (avoidance, resting, etc.));
(iii) Activities occurring during observation, including equipment being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate the effects of interaction, emphasizing: which BMPs were successful; which BMPs may need to be improved to reduce interactions with ringed seals; the effectiveness and practicality of implementing BMPs; any issues or concerns regarding implementation of BMPs; and potential effects of interactions based on observation data;
(v) Proposed updates (if any) to the NMFS-approved Wildlife Management Plan(s) or the ice-road BMPs; and
(vi) Reports should be able to be queried for information.
(3) Hilcorp must submit a final 5-year comprehensive summary report to NMFS not later than 90 days following the expiration of this subpart and LOA.
(4) Hilcorp must submit acoustic monitoring reports per the Acoustic Monitoring Plan.
(5) Hilcorp must report on observed injured or dead marine mammals.
(i) In the unanticipated event that the activity defined in § 217.30 clearly causes the take of a marine mammal in a prohibited manner, Hilcorp must immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS, and to the Alaska Regional Stranding Coordinator, NMFS. Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Hilcorp to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. Hilcorp may not resume their activities until notified by NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility);
(D) Description of all marine mammal observations in the 24 hours preceding the incident;
(E) Species identification or description of the animal(s) involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s). Photographs may be taken once the animal has been moved from the waterfront area.
(H) In the event that Hilcorp discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), Hilcorp must immediately report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (i)(5)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Hilcorp to determine whether additional mitigation measures or modifications to the activities are appropriate.
(ii) In the event Hilcorp discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.30 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Hilcorp must report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. Hilcorp must provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area.
(a) To incidentally take marine mammals pursuant to this subpart, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, Hilcorp may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Hilcorp must apply for and obtain a modification of the LOA as described in § 217.37.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) may be modified by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Hilcorp regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in this subpart.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Hilcorp's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.
90 FR 57592, Dec. 11, 2025, unless otherwise noted.
At 90 FR 57592, Dec. 11, 2025, subpart E to part 217 was revised, effective Jan. 1, 2026, through Dec. 31, 2030.
(a) Regulations in this subpart apply only to 8 Star Alaska or successor entities and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section. Requirements imposed on 8 Star Alaska must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The taking of marine mammals by 8 Star Alaska may be authorized in a Letter of Authorization (LOA) only if it occurs within 8 Star Alaska's Alaska liquefied natural gas (LNG) facilities' construction areas, which are located between the Beluga Landing shoreline crossing on the north and the Kenai River south of Nikiski on the south in Cook Inlet, Alaska.
(c) The taking of marine mammals during this project is only authorized if it occurs incidental to activities associated with 8 Star Alaska's construction of LNG facilities.
Regulations in this subpart are effective January 1, 2026, through December 31, 2030.
(a) Under LOAs issued pursuant to § 216.106 of this chapter and this subpart, the holder of the LOAs and those persons it authorizes or funds to conduct activities on its behalf (hereinafter “8 Star Alaska”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.40(b) by Level A harassment and Level B harassment associated with construction of LNG facilities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) [Reserved]
Except for the taking permitted in § 217.42 and authorized by the LOA issued under § 216.106 of this chapter and this subpart, it is unlawful for any person to do any of the following in connection with the activities specified activities in § 217.40:
(a) Violate or fail to comply with the terms, conditions, and requirements of this subpart or the LOA issued under this subpart;
(b) Take any marine mammal not specified in the LOA;
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA;
(d) Take any marine mammal specified in the LOA after NMFS determines such taking results in more than a negligible impact on the species or stock of such marine mammal; or
(e) Take any marine mammal specified in the LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.40(c), the mitigation measures contained in this section and any LOAs issued under § 216.106 of this chapter and this subpart must be implemented. These mitigation measures include:
(a) A copy of any issued LOA must be in the possession of 8 Star Alaska, its designees, and work crew personnel operating under the authority of the issued LOA.
(b) 8 Star Alaska must employ protected species observers (PSOs) and establish monitoring locations pursuant to § 217.45.
(c) 8 Star Alaska must implement shutdown zones for pile driving and clearance zones for anchor handling with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.46.
(1) Monitoring of shutdown or clearance zones must take place from 30 minutes prior to commencing impact and vibratory pile driving or use of tugs for anchor-handling (AHTs), or if there is a 30-minute lapse in such activities, and must continue for 30 minutes following conclusion of the activity.
(i) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the PSO(s) to observe the entirety of the shutdown zone for impact pile driving and at least 2 km for vibratory pile driving and anchor handling, except in cases where anchor handling operations occur during nighttime hours. In these circumstances, 8 Star Alaska must ensure the clearance zones are clear of marine mammals to the maximum extent possible.
(ii) The specified activities identified in § 217.40(c) may only commence following 30 minutes of observation when PSOs determine that the shutdown or clearance zones are clear of marine mammals.
(iii) If the activity is delayed or halted due to the presence of a marine mammal, the activity must not commence until either the animal(s) has voluntarily exited and been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection of the animal in the shutdown zone.
(2) Pile driving must be halted upon observation of a marine mammal entering or within the shutdown zone. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and has been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection in the shutdown zone.
(i) If work ceases for more than 30 minutes, the shutdown zones must be cleared again for 30 minutes prior to reinitiating pile driving. A determination that the pile driving shutdown zone is clear must be made during a period of good visibility.
(ii) If a shutdown procedure should be initiated but human safety is at risk as determined by the best professional judgment of the vessel operator or project engineer, the in-water activity, including pile driving, is allowed to continue until the risk to human safety has dissipated. In this scenario, pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until the Lead PSO has determined that the shutdown zones are clear of marine mammals and for Cook Inlet beluga whales (CIBWs), any observed whale(s) is at least 100 meters (m) past the shutdown zone and on a path away from the zone.
(3) If a PSO(s) can no longer effectively monitor the entirety of the corresponding shutdown zone during impact pile driving, or at least 2 km during vibratory pile driving, due to environmental conditions (e.g., fog, rain, wind), pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until conditions improve such that the zone can be effectively monitored. If the shutdown zone cannot be monitored for more than 15 minutes, the entire zone must be cleared again for 30 minutes prior to reinitiating pile driving.
(4) If a species for which authorization has not been granted or a species for which authorization has been granted but the authorized takes have been reached is observed approaching, entering, or within the corresponding zone, in-water work must be delayed (if during pre-clearance) or shut down (except for AHTs engaged in anchor handling). Activities must not resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown or clearance zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without re-detection of the animal within the shutdown or clearance zone.
(d) 8 Star Alaska must use soft start techniques when impact pile driving. Soft start requires 8 Star Alaska to conduct three sets of strikes (three strikes per set) at reduced hammer energy with a one-minute waiting period between each set. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(e) 8 Star Alaska must coordinate with local subsistence communities as described in their stakeholder engagement plan, notify the communities of any changes in operation, and work with communities to avoid or mitigate impacts to subsistence harvest through pre-construction planning, communication, or other actions.
(f) 8 Star Alaska must not conduct pile driving associated with the Mainline Material Offloading Facility (MOF) from June 1 to September 7.
(g) Between April 15 and October 15, 8 Star Alaska must not conduct pile driving or AHT activities with Level B harassment isopleths that would extend shoreward of the mean lower low water (MLLW) line in the Susitna Delta (Beluga River to the Little Susitna River) and project vessel(s) operating in or transiting through Cook Inlet must maintain a distance of at least 1.5 nautical miles (2.8 km) seaward of the MLLW line in the Susitna Delta (Beluga River to the Little Susitna River).
(h) Operators of vessels must avoid approaching within 100 yards (92 m) of marine mammals.
(i) If a whale's course and speed are such that it would likely cross in front of a vessel that is underway or approach within 100 yards (92 m) of the vessel, if maritime conditions safely allow, and if practicable, the engine must be put in neutral and the whale must be allowed to pass beyond the vessel.
(j) Vessel operators must avoid placing the vessel in the path of a whale and must not cut in front of the whale in a way or at a distance that causes the whale to change direction of travel or behavior (including breathing/surface pattern).
(k) When within 300 yards (274 m) of a whale, vessels must travel at less than 5 knots (9 km/hour), and vessel operators must avoid changes in direction and speed unless doing so is necessary for maritime safety.
(l) Vessel operators must reduce speed to 10 knots (18.5 km/hour) or less when weather conditions reduce visibility to 1.6 km (1 mile) or less.
(m) For vessels operating in the Susitna Delta Exclusion Zone, the following must be implemented:
(1) All project vessels operating within the designated Susitna Delta Exclusion Area must maintain a speed over ground below 4 knots (7.4 km/hour). PSOs must note the numbers, date, time, coordinates, and proximity to vessels of all belugas observed during operations and report these observations to NMFS in monthly PSO reports.
(2) Vessel crew must be trained to monitor for Endangered Species Act (ESA)-listed species prior to and during all vessel movements within the Susitna Delta Exclusion Zone. The vessel crew must report sightings of ESA-listed species to the PSO team for inclusion in the overall sighting database and reports.
(3) Vessel operators must not move their vessels when they are unable to adequately observe the 100-m zone around vessels under power (in gear) due to darkness, fog, or other conditions, unless necessary for ensuring human safety.
(4) The Susitna Delta Exclusion Zones is defined as the union of the areas defined by:
(i) A 16-km (10-mile) buffer of the Beluga River thalweg seaward of the MLLW line;
(ii) A 16-km (10-mile) buffer of the Little Susitna River thalweg seaward of the MLLW line; and
(iii) A 16-km (10-mile) seaward buffer of the MLLW line between the Beluga River and Little Susitna River.
(iv) The buffer extends landward along the thalweg to include intertidal waters within rivers and streams up to their mean higher high water line (MHHW).
(n) 8 Star Alaska must conduct sound source verification (SSV) measurements at the beginning of all pile driving activities at each location. During SSV, a sound attenuation device must be tested for effectiveness. If the results show that a sound source reduction of at least 2 dB is achieved, 8 Star Alaska must employ the use of the sound attenuation device.
(1) Any sound attenuation device used by 8 Star Alaska must meet minimum requirements as determined by NMFS in the SSV plan.
(2) [Reserved]
(o) 8 Star Alaska must abide by the reasonable and prudent measures and terms and conditions of the Biological Opinion and Incidental Take Statement issued by NMFS pursuant to section 7 of the Endangered Species Act.
(a) Visual Monitoring. Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods;
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization or Letter of Concurrence;
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization. PSOs may also substitute Alaska native traditional knowledge for experience;
(4) Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(5) PSOs must be approved by NMFS prior to beginning any activity subject to a NMFS-issued incidental take authorization; and
(6) 8 Star Alaska must adhere to the following marine mammal monitoring protocols:
(i) For all single hammer pile driving activities for the Mainline MOF, between Beluga and Tyonek, and the Marine Terminal near Nikiski, a minimum of two PSOs must be on duty at all times.
(ii) For all concurrent pile driving activities at the Marine Terminal near Nikiski, a minimum of three PSOs must be on duty at all times.
(iii) For anchor handling, two PSOs must be on the barge, and one PSO must be on duty at all times.
(iv) PSOs must monitor for marine mammals from the best available vantage point to allow for an unobstructed view of the water.
(v) When conducting observations from the barge during anchor handling, PSOs must have an unobstructed 360-degree view of the water.
(vi) PSO(s) must use a combination of equipment to scan the appropriate monitoring area and to verify the required monitoring distance from the project site, including the naked eye, standard (7x) binoculars, and high-magnification (25x) binoculars.
(vii) Monitoring distances must be measured with range finders, and distances to animals must be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.
(viii) PSOs must not exceed 4 consecutive watch hours; must have a minimum 2-hour break between watches; and may not exceed a combined watch schedule of more than 12 hours in a 24-hour period.
(ix) PSOs must have no other construction-related tasks while conducting monitoring.
(x) Monitoring must take place from 30 minutes prior to initiation of pile driving or anchor handling activity, through 30 minutes post completion of pile driving activity or anchor handling activity.
(b) Acoustic Monitoring. Acoustic monitoring must be conducted in accordance with the following conditions:
(1) 8 Star Alaska must conduct SSV at the beginning of pile driving at each location to characterize the sound source levels associated with different pile and hammer types and assess attenuation devices. The SSV must be conducted in accordance with the following conditions:
(i) 8 Star Alaska's SSV plan must be approved by NMFS.
(ii) 8 Star Alaska must measure a minimum of two piles of each type, size, and installation method for single pile driving scenarios.
(iii) The following data, at minimum, shall be collected during acoustic monitoring and reported:
(A) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(B) Type and size of pile being driven, substrate type, method of driving during recordings (e.g., hammer model and energy), and total pile driving duration;
(C) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(D) For impact pile driving (per pile): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
(E) For vibratory driving/removal (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged);
(F) Transmission loss values for attenuated and unattenuated impact and vibratory installation of each pile size and type;
(iv) An SSV report must be submitted to NMFS for approval within 5 days after the finalization of field measurements and report data.
(v) If appropriate, the results of the SSV report may be used to adjust the extent of the Level A and Level B harassment zones and shutdown zones for in-water pile driving. NMFS must approve any such adjustments.
(c) Reporting. 8 Star Alaska must adhere to the following reporting requirements:
(1) 8 Star Alaska must submit interim monthly reports for all months in which pile driving or anchor handling occurs. Monthly reports are due 14 days after the conclusion of each calendar month. The monthly reports must include the following:
(i) Summary of marine mammal species and behavioral observation, delays, and activities completed.
(ii) Assessment of the amount of work (pile driving and anchor handling) remaining to be completed.
(iii) Number of Cook Inlet beluga whales observed within estimated harassment zones to date.
(2) 8 Star Alaska must submit a draft annual report to NMFS within 90 calendar days of the completion of construction (pile driving and anchor handling) each year. Each report must include an overall description of all work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets (data must be submitted electronically in a format that can be queried such as a spreadsheet or database). Specifically, the report must include the following information:
(i) Date and time that monitored activity begins and ends;
(ii) Activities occurring during each observation period, including:
(A) The type of activity,
(B) The total duration of each type of activity,
(C) When nighttime operations were required,
(D) The number and type of piles that were driven and the method (e.g., impact, vibratory), and
(E) Total duration of driving time for each pile (vibratory driving) and total number of strikes for each pile (impact driving);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at the beginning and end of the PSO shift and whenever conditions change significantly), including Beaufort sea state, tidal state, and any other relevant weather conditions, including cloud cover, fog, sun glare, overall visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal:
(A) Name of PSO who sighted the animal(s);
(B) PSO location and activity at time of sighting;
(C) Time of sighting;
(D) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified);
(E) PSO confidence in identification and the composition of the group if there is a mix of species;
(F) Distance and location of each observed marine mammal relative to the tugs or pile being driven for each sighting;
(G) Estimated number of animals (min/max/best estimate);
(H) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(I) Animal's closest point of approach and estimated time spent within the harassment zone;
(J) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(vi) Number of marine mammals detected within the harassment zones, by species; and
(vii) Detailed information about implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(3) If no comments are received from NMFS within 30 days of receipt of the draft annual report, the report shall be considered final. If comments are received, 8 Star Alaska must submit a final report addressing NMFS' comments within 30 days following receipt of any NMFS comments on the draft reports.
(4) In the event that personnel involved in 8 Star Alaska's activities discover an injured or dead marine mammal, 8 Star Alaska must report the incident to NMFS Office of Protected Resources (OPR) and to the Alaska Regional Stranding Coordinator no later than 24 hours after the initial observation. If the death or injury was caused by the specified activity, 8 Star Alaska must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident. 8 Star Alaska must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to this subpart, 8 Star Alaska must apply for and obtain an LOA;
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed December 31, 2030, the expiration date of this subpart;
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by the LOA, 8 Star Alaska must apply for and obtain a modification of the LOA as described in § 217.47;
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the regulations of this subpart; and
(f) Notice of issuance or denial of the LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.46 for the specified activities may be modified upon request by 8 Star Alaska, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS' OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For an LOA modification request by 8 Star Alaska that includes changes to the specified activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS' OPR determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and
(2) NMFS' OPR may, if appropriate, publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 and 217.46 of this chapter for the specified activity may be modified by NMFS OPR under the following circumstances:
(1) Through adaptive management, NMFS' OPR may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with 8 Star Alaska regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from the 8 Star Alaska's monitoring;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS' OPR shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS' OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 216.106 of this chapter and 217.46, the LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
87 FR 22492, Apr. 15, 2022, unless otherwise noted.
At 87 FR 22492, Apr. 15, 2022, subpart F was added to part 217, effective May 15, 2022, through May 14, 2027.
(a) Regulations in this subpart apply only to the St. George Reef Lighthouse Preservation Society (Society) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to lighthouse repair and tour operation activities.
(b) The taking of marine mammals by the Society may be authorized in a Letter of Authorization (LOA) only if it occurs within Pacific Ocean waters in the vicinity of Northwest Seal Rock near Crescent City, California.
Regulations in this subpart are effective from May 15, 2022 through May 14, 2027.
Under LOAs issued pursuant to § 216.106 of this chapter and § 217.56, the Holder of the LOA (hereinafter “Society”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.50(b) by Level B harassment associated with lighthouse repair and tour operation activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Except for taking authorized by a LOA issued under §§ 216.106 and 217.56 of this chapter, it shall be unlawful for any person to do any of the following in connection with the activities described in § 217.50:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.56;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified; or
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
When conducting the activities identified in § 217.50(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.56 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions.
(1) A copy of any issued LOA must be in the possession of the Society, supervisory personnel, pilot, protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Society must conduct training between supervisors and crews and the marine mammal monitoring team and relevant Society staff prior to the start of all trips and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. Visitors to the Station must be instructed to avoid unnecessary noise and not expose themselves visually to pinnipeds around the base of the lighthouse.
(3) All personnel must avoid direct physical interaction with marine mammals during activity. If a marine mammal comes within 10 m of such activity, operations must cease until the animal leaves of its own accord.
(4) Loud outside activity must be halted upon observation on Northwest Seal Rock (NWSR) of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met.
(5) No more than two restoration trips, or 6 days of flight operations, are permitted per month.
(b) Protocols.
(1) The pilot must ensure that helicopter approach patterns to the NWSR are such that the timing and techniques are least disturbing to marine mammals. To the extent possible, the helicopter must approach NWSR when the tide is too high for marine mammals to haul out on NWSR. The helicopter must avoid rapid and direct approaches to the station by approaching NWSR at a relatively high altitude (e.g., 800-1,000 ft; 244-305 m). Before the final approach, the helicopter must circle lower, and approach from an area where the density of pinnipeds is the lowest. If for any safety reasons (e.g., wind conditions or visibility) such helicopter approach and timing techniques cannot be achieved, the Society must abort the restoration and maintenance session for the day.
(2) Monitoring must be conducted by a trained PSO, who must have no other assigned tasks during monitoring periods. Trained PSOs must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement mitigation procedures when applicable. The Society must adhere to the following additional PSO qualifications:
(i) Independent PSOs are required;
(ii) At least one PSO must have prior experience working as an observer;
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience; and
(iv) The Society must submit PSO resumes for approval by NMFS prior to beginning any activity subject to these regulations.
(3) The PSO must monitor the project area to the maximum extent possible based on the required monitoring locations and environmental conditions. They must record all observations of marine mammals as described in Section 5 of any LOA, regardless of distance from the activity. A PSO with a high definition camera must be on the first flight to the station each day. For 15 minutes before and after all other takeoffs and landings a PSO must be stationed on the platform of the lantern room gallery, and a PSO must be on the last departing helicopter of the day.
(a) PSOs must document any behavioral reactions in concert with distance from any project activity.
(b) Reporting —
(1) Reporting frequency.
(i) The Society must submit a quarterly summary report to NMFS not later than 90 days following the end of each work quarter; after the first three quarterly submissions, NMFS will evaluate whether it is appropriate to modify to annual reports, and modify future LOAs as appropriate to indicate annual reporting requirements if so. The Society must provide a final report within 30 days following resolution of comments on each draft report.
(ii) These reports must contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal monitoring;
(B) Activities occurring during all marine mammal monitoring (e.g., helicopter takeoffs and landings, construction activities);
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(E) Upon each flight, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; time of sighting; identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; distance and bearing of each marine mammal observed relative to the activity for each flight; estimated number of animals (min/max/best estimate); estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); and description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity according to the 3-point scale as defined in the LOA (e.g., no response or changes in behavioral state such as changing direction or flushing);
(F) Number of marine mammals detected, by species; and
(G) Detailed information about any implementation of any mitigation triggered, a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(2) The Society must submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.
(c) Reporting of injured or dead marine mammals.
(1) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the LOA-holder must immediately report the incident to the Office of Protected Resources (OPR) (PR.ITP.MonitoringReports@noaa.gov), NMFS and to West Coast Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by activities specified at § 217.50, the Society must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of these regulations and LOAs. The LOA-holder must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
(a) To incidentally take marine mammals pursuant to these regulations, the Society must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Society may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Society must apply for and obtain a modification of the LOA as described in § 217.57.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under § 216.106 of this chapter and § 217.56 for the activity identified in § 217.50(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 and 217.56 of this chapter for the activity identified in § 217.50(a) may be modified by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the Society regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Society's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound or disturbance research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.56, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 25182, Apr. 10, 2024, unless otherwise noted.
At 89 FR 25182, Apr. 10, 2024, subpart G to part 217 was revised, effective Apr. 10, 2024, through Apr. 9, 2029.
(a) Regulations in this subpart apply only to the United States Space Force (USSF) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section incidental to rocket and missile launches and supporting operations.
(b) The incidental taking of marine mammals under this subpart may be authorized in a Letter of Authorization (LOA) only for activities originating at Vandenberg Space Force Base (VSFB).
(a) Regulations in this subpart are effective from April 10, 2024, through April 10, 2029.
(b) [Reserved]
(a) Under an LOA issued pursuant to § 216.106 of this chapter and § 217.66 or § 217.67, the Holder (hereinafter the USSF) may incidentally, but not intentionally, take marine mammals by Level B harassment, as described in § 217.60(a) and (b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals by the activities listed in § 217.60 is limited to the following species and stocks:
| Species | Stock |
|---|---|
| California sea lion | United States. |
| Northern fur seal | California. |
| Guadalupe fur seal | Mexico. |
| Steller sea lion | Eastern. |
| Harbor seal | California. |
| Northern elephant seal | California Breeding. |
(a) Except for takings contemplated in § 217.62 and authorized by a LOA issued under § 216.106 of this chapter and §§ 217.66 and 217.67, it shall be unlawful for any person to do any of the following in connection with the activities listed in § 217.60:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.66 or § 217.67;
(2) Take any marine mammal species or stock not specified in this subpart or such LOAs;
(3) Take any marine mammal specified in this subpart or such LOAs in any manner other than as specified; or
(4) Take a marine mammal specified in this subpart or such LOAs if NMFS determines after notice and comment that the taking allowed for one or more activities under 16 U.S.C. 1371(a)(5)(A) is having or may have more than a negligible impact on the species or stocks of such marine mammal.
(b) [Reserved]
(a) When conducting the activities identified in § 217.60(a) and (b), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.66 or § 217.67 must be implemented. These mitigation measures include (but are not limited to):
(1) USSF must provide pupping information to launch proponents at the earliest possible stage in the launch planning process and direct launch proponents to, if practicable, avoid scheduling launches during pupping seasons on VSFB from 1 March to 30 April and on the Northern Channel Islands from 1 June-31 July. If practicable, rocket launches predicted to produce a sonic boom on the Northern Channel Islands >3 pounds per square foot (psf) from 1 June-31 July will be scheduled to coincide with tides in excess of +1.0 ft (0.3 m), with an objective to do so at least 50 percent of the time.
(2) For manned flight operations, aircraft must use approved routes for testing and evaluation. Manned aircraft must also remain outside of a 1,000-ft (305 m) buffer around pinniped rookeries and haul-out sites (except in emergencies such as law enforcement response or Search and Rescue operations, and with a reduced, 500-ft (152 m) buffer at Small Haul-out 1).
(3) Unscrewed aerial systems (UAS) classes 0-2 must maintain a minimum altitude of 300 ft (91 m) over all known marine mammal haulouts when marine mammals are present, except at take-off and landing. Class 3 must maintain a minimum altitude of 500 ft (152 m), except at take-off and landing. UAS classes 4 and 5 only operate from the VSFB airfield and must maintain a minimum altitude of 1,000 ft (305 m) over marine mammal haulouts except at take-off and landing. USSF must not fly class 4 or 5 UAS below 1,000 ft (305 m) over haulouts.
(b) [Reserved]
(a) Monitoring at VSFB and NCI must be conducted by at least one NMFS-approved Protected Species Observer (PSO) trained in marine mammal science. PSOs must have demonstrated proficiency in the identification of all age and sex classes of all marine mammal species that occur at VSFB and on Northern Channel Islands (NCI). They must be knowledgeable of approved count methodology and have experience in observing pinniped behavior, especially that due to human disturbances.
(b) In the event that the PSO requirements described in paragraph (a) of this section cannot be met (e.g., access is prohibited due to safety concerns), daylight or nighttime video monitoring must be used in lieu of PSO monitoring. In certain circumstances where the daylight or nighttime video monitoring is also not possible (e.g., USSF is unable to access a monitoring site due to road conditions or human safety concerns), USSF must notify NMFS.
(c) At VSFB, USSF must conduct marine mammal monitoring and take acoustic measurements for all new rockets, for rockets (existing and new) launched from new facilities, and for larger or louder rockets (including those with new launch proponents) than those that have been previously launched from VSFB during their first three launches and for the first three launches from any new facilities during March through July.
(1) For launches that occur during the harbor seal pupping season (March 1 through June 30) or when higher numbers of California sea lions are present (June 1 through July 31), monitoring must be conducted by at least one NMFS-approved PSO trained in marine mammal science.
(2) When launch monitoring is required, monitoring must begin at least 72 hours prior to the launch and continue through at least 48 hours after the launch. Monitoring must include multiple surveys each day, with a minimum of four surveys per day.
(3) For launches within the harbor seal pupping season, USSF must conduct a follow-up survey of pups.
(4) For launches that occur during daylight, USSF must make time-lapse video recordings to capture the reactions of pinnipeds to each launch. For launches that occur at night, USSF must employ night video monitoring, when feasible.
(5) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(d) USSF must conduct sonic boom modeling prior to the first three small or medium rocket launches from new launch proponents or at new launch facilities, and all heavy or super-heavy rocket launches.
(e) USSF must conduct marine mammal monitoring and take acoustic measurements at the NCI if the sonic boom model indicates that pressures from a boom will reach or exceed 7 psf from 1 January through 28 February, 5 psf from 1 March through 31 July, or 7 psf from 1 August through 30 September. No monitoring is required on NCI from 1 October through 31 December.
(1) The monitoring site must be selected based upon the model results, prioritizing a significant haulout site on one of the islands where the maximum sound pressures are expected to occur.
(2) USSF must estimate the number of animals on the monitored beach and record their reactions to the launch noise and conduct more focused monitoring on a smaller subset or focal group.
(3) Monitoring must commence at least 72 hours prior to the launch, during the launch and at least 48 hours after the launch, unless no sonic boom is detected by the monitors and/or by the acoustic recording equipment, at which time monitoring may be stopped.
(4) For launches that occur in darkness, USSF must use night vision equipment.
(5) Monitoring for each launch must include multiple surveys each day that record, when possible: species, number, general behavior, presence of pups, age class, gender, and reaction to sonic booms or natural or human-caused disturbances.
(6) USSF must collect photo and/or video recordings for daylight launches when feasible, and if the launch occurs in darkness night vision equipment will be used.
(7) USSF must record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(f) USSF must continue to test equipment and emerging technologies, including but not limited to night vision cameras, newer models of remote video cameras and other means of remote monitoring at both VSFB and on the NCI.
(g) USSF must evaluate UAS based or space-based technologies that become available for suitability, practicability, and for any advantage that remote sensing may provide to existing monitoring approaches.
(h) USSF must monitor marine mammals during the first three launches of the missiles for the new Ground Based Strategic Defense program during the months of March through July across the 5-year duration of this subpart.
(1) When launch monitoring is required, monitoring must include multiple surveys each day, with a minimum of four surveys per day.
(2) When possible, PSOs must record: species, number, general behavior, presence and number of pups, age class, gender, and reaction to launch noise, or to natural or other human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(i) USSF must conduct semi-monthly surveys (two surveys per month) to monitor the abundance, distribution, and status of pinnipeds at VSFB. Whenever possible, these surveys will be timed to coincide with the lowest afternoon tides of each month when the greatest numbers of animals are usually hauled out. If a VSFB or area closure precludes monitoring on a given day, USSF must monitor on the next best day.
(1) PSOs must gather the following data at each site: species, number, general behavior, presence and number of pups, age class, gender, and any reactions to natural or human-caused disturbances. PSOs must also record environmental conditions, including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction.
(2) [Reserved]
(j) USSF must submit an annual report each year to NMFS Office of Protected Resources and West Coast Region on March 1st of each year that describes all activities and monitoring for the specified activities during that year. This includes launch monitoring information in paragraphs (j)(1) through (3) of this section for each launch where monitoring is required or conducted. The annual reports must also include a summary of the documented numbers of instances of harassment incidental to the specified activities, including non-launch activities (e.g., takes incidental to aircraft or helicopter operations observed during the semi-monthly surveys). Annual reports must also include the results of the semi-monthly sentinel marine mammal monitoring described in paragraph (i) of this section.
(1) Launch information, including:
(i) Date(s) and time(s) of the launch (and sonic boom, if applicable); and
(ii) Number(s), type(s), and location(s) of rockets or missiles launched;
(2) Monitoring program design; and
(3) Results of the monitoring program, including, but not necessarily limited to:
(i) Date(s) and location(s) of marine mammal monitoring;
(ii) Number of animals observed, by species, on the haulout prior to commencement of the launch or recovery;
(iii) General behavior and, if possible, age (including presence and number of pups) and sex class of pinnipeds hauled out prior to the launch or recovery;
(iv) Number of animals, by species, age, and sex class that responded at a level indicative of harassment. Harassment is characterized by:
(A) Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees; or
(B) All retreats (flushes) to the water;
(v) Number of animals, by species, age, and sex class that entered the water, the length of time the animal(s) remained off the haulout, and any behavioral responses by pinnipeds that were likely in response to the specified activities, including in response to launch noise or a sonic boom;
(vi) Environmental conditions including visibility, air temperature, clouds, wind speed and direction, tides, and swell height and direction; and
(vii) Results of acoustic monitoring, including the following:
(A) Recorded sound levels associated with the launch (in SEL, SPLpeak, and SPLrms);
(B) Recorded sound levels associated with the sonic boom (if applicable), in psf; and
(C) The estimated distance of the recorder to the launch site and the distance of the closest animals to the launch site.
(k) USSF must submit a final, comprehensive 5-year report to NMFS Office of Protected Resources. This report must:
(1) Summarize the activities undertaken and the results reported in all annual reports;
(2) Assess the impacts at each of the major rookeries; and
(3) Assess the cumulative impacts on pinnipeds and other marine mammals from the activities specified in § 217.60(a) and (b).
(l) If the activity identified in § 217.60(a) likely resulted in the take of marine mammals not identified in § 217.62, then the USSF must notify the NMFS Office of Protected Resources and the NMFS West Coast Region stranding coordinator within 24 hours of the discovery of the take.
(m) If real-time monitoring during a launch shows that the activity identified in § 217.60(a) is reasonably likely to have resulted in the mortality or injury of any marine mammal, USSF must notify NMFS within 24 hours (or next business day). NMFS and USSF must then jointly review the launch procedure and the mitigation requirements and make appropriate changes through the adaptive management process, as necessary and before any subsequent launches of rockets and missiles with similar or greater sound fields and/or sonic boom pressure levels.
(a) To incidentally take marine mammals pursuant to this subpart, the USSF must apply for and obtain an LOA in accordance with § 216.106 of this chapter.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed expiration of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the USSF may apply for and obtain a renewal LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 217.67(c)(1) required by an LOA, USSF must apply for and obtain a modification of the LOA as described in § 217.67.
(e) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species and its habitat; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of a LOA shall be published in the Federal Register within 30 days of a determination.
(a) A LOA issued under § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) shall be modified upon request by USSF, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for this subpart or that result in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of proposed changes to the LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under § 216.106 of this chapter and § 217.66 for the activity identified in § 217.60(a) and (b) may be modified by NMFS under the following circumstances:
(1) After consulting with the USSF regarding the practicability of the modifications, NMFS, through adaptive management, may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the USSF's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or a subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.62, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 5692, Jan. 29, 2024, unless otherwise noted.
At 89 FR 5692, Jan. 29, 2024, subpart I to part 217 was revised, effective Oct. 1, 2024, until Sept. 30, 2029.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occur in the areas outlined in paragraph (b) of this section and that occur incidental to construction activities, including maintenance and replacement of piles, at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, Washington.
Regulations in this subpart are effective from October 1, 2024, until September 30, 2029.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.86, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.80 (b) by harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.82 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.86, it is unlawful for any person to do any of the following in connection with the activities described in § 217.80:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.86;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.80(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and §§ 217.86 or 217.87 must be implemented. These mitigation measures include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA;
(2) The Navy must follow mitigation procedures as described in § 217.84. Protected Species Observers (PSO) must monitor designated harassment zones described in the LOA to the maximum extent practicable based on daily visibility conditions.
(3) The Navy must ensure that construction supervisors and crews, the PSO team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work;
(4) The Navy must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction;
(5) For all pile driving activity, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and §§ 217.86 or 217.87. If a marine mammal comes within or approaches the shutdown zone, pile driving activity must cease;
(6) The Navy must shut down in-water activities when cetaceans are observed approaching or within any harassment zone;
(7) The Navy must use soft start techniques when impact pile driving. Soft start requires an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer;
(8) The Navy must employ bubble curtain systems during impact driving of 36-in steel piles except under conditions where the water depth is less than 0.67 meters (2 feet) in depth. Bubble curtains must meet the following requirements;
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact; and
(iii) The bubble curtain must be operated such that there is equal balancing of air flow to all bubblers;
(9) The Navy must deploy PSOs as indicated in its Marine Mammal Monitoring Plan that has been approved by NMFS;
(10) For all pile driving activities, land-based PSOs must be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures. At least one vessel-based PSO must be employed when practicable. Additional PSOs must be added if warranted by site conditions and/or the level of marine mammal activity in the area;
(11) Monitoring must take place from 30 minutes prior to initiation of pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity. Pre-activity monitoring must be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may only commence when PSOs have declared the shutdown zone clear of marine mammals;
(12) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and documented. If a marine mammal is observed within the shutdown zone, a soft start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring must occur throughout the time required to drive a pile;
(13) If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility;
(14) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location must be halted. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal;
(15) Pile driving activity must be halted upon observation of a species entering or within the harassment zone for either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met; and
(16) Trained PSOs must be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.
(b) [Reserved]
(a) The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval at least 90 days before the start of construction and abide by the Plan if approved.
(b) The Navy must deploy PSOs as indicated in its approved Marine Mammal Monitoring Plan.
(c) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods;
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(4) Where a team of three or more PSOs are required, a lead PSO or monitoring coordinator must be designated. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) PSOs must be approved by NMFS prior to beginning any activity subject to these regulations.
(d) PSOs must be trained in marine mammal identification and behaviors.
(e) The Navy must monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB root-mean-squared (rms) threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the maximum extent practicable and the shutdown zones.
(f) The Navy must coordinate with the Center for Whale Research, Orca network, and NMFS to avoid noise exposure of southern resident killer whales. The Navy must shut down in-water activities when southern resident killer whales are observed or reported within or approaching any harassment zone.
(g) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must contain the informational elements described at minimum below including:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed, by what method (i.e., impact or vibratory), the total duration of driving time for each pile (vibratory driving), and number of strikes for each pile (impact driving);
(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), Beaufort sea state, and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(4) Upon observation of a marine mammal, the following information should be collected:
(i) PSO who sighted the animal, observer location, and activity at time of sighting:
(ii) Time of sighting;
(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven for each sighting (if pile driving was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(ix) Detailed information about any implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and
(x) All PSO datasheets and/or raw sightings data.
(h) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), and to the West Coast Regional Stranding Coordinator, as soon as feasible. If the death or injury was caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under § 216.106 of this chapter and § 217.86. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.87.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.86 for the activity identified in § 217.80(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.86 for the activity identified in § 217.80 (a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a notice of proposed LOA in the Federal Register and solicit public comment; and
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.86, a LOA may be modified without prior notice or opportunity for public comment. Notification will be published in the Federal Register within 30 days of the action.
90 FR 27252, June 26, 2025; 90 FR 30215, July 9, 2025, unless otherwise noted.
At 90 FR 27252, June 26, 2025, subpart K was added to part 217, effective June 26, 2025 through June 26, 2030.
(a) Regulations in this subpart apply only to the University of California Santa Cruz's Multi-Agency Rocky Intertidal Network (UCSC/MARINe) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occur in the areas outlined in paragraph (b) of this section and that occur incidental to rocky intertidal monitoring research surveys.
(b) The taking of marine mammals by UCSC/MARINe may be authorized in a Letter of Authorization (LOA) only if it occurs on the coasts of Oregon or California.
Regulations in this subpart are effective from June 26, 2025, through June 26, 2030.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, the Holder of the LOA (hereinafter “UCSC/MARINe”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.100 (b) by Level B harassment associated with rocky intertidal monitoring activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Notwithstanding takings contemplated in § 217.100 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.106, no person in connection with the activities described in § 217.100 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.106;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner other than as specified in § 217.102;
(d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.100(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.106 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions.
(1) Researchers must observe a site from a distance for at least five minutes, using binoculars if necessary, to detect any marine mammals prior to approach to determine if mitigation is required. Site surveys will not be conducted if other species of pinnipeds are present. Researchers will approach with caution, walking slowly, quietly, and close to the ground to avoid surprising any hauled out individuals and to reduce flushing (i.e., disturbing from its position).
(2) Researchers shall avoid pinnipeds along access ways to sites by locating and taking a different access way. Researchers shall keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to approach a marine mammal in order to continue conducting research (i.e., if a site cannot be accessed or sampled due to the presence of pinnipeds).
(3) Researchers shall avoid making loud noises (e.g., using hushed voices) and keep bodies low to the ground in the visual presence of pinnipeds.
(4) Researchers shall monitor the offshore area for predators (e.g., killer whales and great white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters.
(5) Researchers shall promptly vacate sites at the conclusion of sampling.
(6) Researchers shall not operate unmanned aerial vehicles (UAVs) at an altitude below 10 meters while in the presence of pinnipeds.
(7) Research occurring on the Channel Islands, Farallon Islands, or Año Nuevo Island will be coordinated with researchers who regularly work in these areas.
(b) Pup protection measures.
(1) Intentional approach will not occur if dependent pups are present to avoid mother/pup separation and trampling of pups. Staff shall reschedule work at sites where pups are present, unless other means of accomplishing the work can be done without causing disturbance to mothers and dependent pups.
(2) [Reserved]
(a) Visual monitoring program.
(1) Standard information recorded will include species counts (with numbers of pups/juveniles when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event.
(2) UCSC/MARINe must note observations of:
(i) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel;
(ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and
(iii) Rare or unusual species of marine mammals for agency follow-up.
(3) For consistency, any reactions by pinnipeds to researchers must be recorded according to a three-point pinniped disturbance scale included in any LOA issued under § 216.106 of this chapter and § 217.106.
(4) UCSC/MARINe must note information regarding the date and time that research is conducted, as well as the physical and biological conditions pertaining to a site.
(b) Prohibited take.
(1) If at any time the specified activity clearly causes the take of a marine mammal in a manner prohibited by these regulations or LOA, such as an injury (Level A harassment), serious injury, or mortality, UCSC/MARINe shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s) (if equipment is available).
(2) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with UCSC/MARINe to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. UCSC/MARINe must not resume the activities until notified by NMFS via letter, email, or telephone.
(c) Notification of dead or injured marine mammals.
(1) In the event that UCSC/MARINe discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), UCSC/MARINe shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (b)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with UCSC/MARINe to determine whether additional mitigation measures or modifications to the activities are appropriate; and
(2) In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the regulations and LOA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), UCSC/MARINe shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. UCSC/MARINe shall provide photographs, video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident.
(d) Annual report.
(1) A draft annual report shall be submitted to NMFS Office of Protected Resources within 90 days after the conclusion of each annual field season. The final annual report after year five may be included as part of the final report (see paragraph (e) of this section). The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in this section and in the LOA; and
(2) A final annual report shall be submitted to the Director of the NMFS Office of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report. If no comments are received from NMFS, the draft annual report will be considered the final report.
(a) To incidentally take marine mammals pursuant to these regulations, UCSC/MARINe must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, UCSC/MARINe may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, UCSC/MARINe must apply for and obtain a modification of the LOA as described in § 217.107.
(e) The LOA shall set forth:
(1) Permissible methods and numbers of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS' Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS' Office of Protected Resources may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) may be modified by NMFS' Office of Protected Resources under the following circumstances:
(1) Adaptive Management. NMFS' Office of Protected Resources may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with UCSC/MARINe regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in this subpart.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from UCSC/MARINe's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS' Office of Protected Resources will publish a notice of proposed LOA in the Federal Register and solicit public comment; and
(2) Emergencies. If NMFS' Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, an LOA may be modified without prior notice or opportunity for public comment. Notice will publish in the Federal Register within 30 days of the action.
88 FR 31654, May 18, 2023, unless otherwise noted.
At 88 FR 31654, May 18, 2023, subpart L was added to part 217, effective May 18, 2023, through May 18, 2028.
(a) Regulations under this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities related to the replacement of Pier 3 at Naval Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Naval Station Norfolk, Norfolk, Virginia.
Regulations under this subpart are effective from May 18, 2023, through May 18, 2028.
Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.116, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in 217.110(b) by harassment associated with construction activities related to replacement of Pier 3, provided the activity is in compliance with all terms, conditions, and requirements of the regulations under this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.112 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.116, it is unlawful for any person to do any of the following in connection with the activities described in § 217.110:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.116;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determined such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.110(a), the mitigation measures contained under this subpart and any LOA issued under §§ 216.106 of this chapter and 217.116 must be implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Navy operating under the authority of the LOA at all times that activities subject to the LOA are being conducted.
(2) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of activities subject to any issued LOA, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.
(3) The Navy, construction supervisors and crews, and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.
(4) The Navy must employ PSOs and establish monitoring locations as described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
(5) For all pile driving and drilling activity, the Navy shall implement shutdown zones with radial distances as identified in a LOA issued under § 217.116. If a marine mammal is observed entering or within the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving or drilling activity.
(7) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving and drilling may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(8) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Holder shall delay in-water construction activities until observers are confident marine mammals within the shutdown zone could be detected.
(9) If pile driving and/or drilling is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(10) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(b) [Reserved]
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity subject to any issued LOA.
(6) For all pile driving activities, a minimum of two PSOs shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures.
(7) For all pile driving activities, a minimum of two PSOs shall be stationed at the active pile driving site, docks, or piers to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan. For shutdown zones exceeding 1,000 m, a minimum of three PSOs shall be stationed appropriately, as described in the Marine Mammal Monitoring Plan, to monitor the entire shutdown zone.
(8) The Navy shall monitor the harassment zones to the extent practicable and the entire shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days.
(9) The Navy shall conduct hydroacoustic data collection in accordance with a Marine Mammal Monitoring Plan that must be approved by NMFS in advance of construction.
(10) The shutdown/monitoring zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(11) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must, at minimum, contain the informational elements described below (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal monitoring;
(ii) Construction activities occurring during each daily observation period, including the number and type of piles that were driven or removed and by what method (i.e., impact, vibratory or drilling), total duration of driving time for each pile (vibratory and drilling) and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal, the follow information:
(A) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(D) Distance and location of each observed marine mammal relative to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); and
(G) Animal's closest point of approach and estimated time spent within the harassment zone.
(vi) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted form the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(vii) Number of marine mammals detected within the harassment zones, by species; and
(viii) Detailed information about implementation of any mitigation (e.g., shutdown and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(12) The Holder must submit all PSO datasheets and/or raw sighting data within the draft report.
(13) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.corcoran@noaa.gov.
(14) The Navy must report hydroacoustic data collected as required by a LOA issued under §§ 216.106 of this chapter and 217.116 and as discussed in the Navy's Marine Mammal Monitoring Plan approved by NMFS.
(15) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources, NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to the regulations under this subpart, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of the regulations under this subpart.
(c) If an LOA expires prior to the expiration date of the regulations under this subpart, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.116.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations under this subpart.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.116 for the activity identified in § 217.110(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations under this subpart; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations under this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of this chapter and 217.116 for the activity identified in § 217.110(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring for the regulations under this subpart;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by the regulations under this subpart or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.116, a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
88 FR 19539, Mar. 31, 2023, unless otherwise noted.
At 88 FR 19539, Mar. 31, 2023, subpart N was added to part 217, effective Apr. 1, 2023, through Mar. 31, 2028
(a) Regulations in this subpart apply only to taking of marine mammals by the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities that occur incidental to construction activities related to the multifunctional expansion and modification of Dry Dock 1 in the areas outlined in paragraph (b) of this section.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Portsmouth Naval Shipyard, Kittery, Maine.
Regulations in this subpart are effective for a period of 5 years from the date of issuance.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.136, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.130(b) by harassment associated with construction activities related to the multifunctional expansion and modification of Dry Dock 1, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.132 and authorized by a LOA issued under § 216.106 of this chapter and § 217.136, it is unlawful for any person to do any of the following in connection with the activities described in § 217.130:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.136;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.130(a), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this chapter and § 217.136 must be implemented. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA at all times that activities subject to this LOA are being conducted.
(2) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Navy shall delay pile driving and drilling until observers are confident marine mammals within the shutdown zone could be detected.
(3) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, protected species observers (PSOs), and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions as described in this rule and the NMFS-approved Marine Mammal Monitoring Plan.
(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving or drilling activity.
(7) For all pile driving and drilling activities, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136. If a marine mammal comes within or approaches the shutdown zone, such operations must cease.
(8) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and documented. If a marine mammal is observed within the shutdown zone, pile driving or drilling activities may not commence or resume until at least one of the following conditions has been met:
(i) The animal has been observed exiting the shutdown zone;
(ii) The animal is thought to have exited the shutdown zone based on a determination of its course, speed, and movement relative to the pile driving location; or
(iii) The shutdown zone has been clear from any additional sightings for fifteen minutes.
(9) If pile driving or drilling construction activities cease for more than 30 minutes, the pre-activity monitoring of the shutdown zone must commence.
(10) The Navy must conduct monitoring to include the entire region of influence, which includes the area within the Level A and Level B harassment zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start will be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(12) The Navy must install a bubble curtain across the entrance openings during DTH cluster drill and hydraulic rock hammering activities. The bubble curtain must adhere to the following restrictions:
(i) The bubble curtain must distribute air bubbles across 100 percent of the entrance openings for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the substrate for the full extent of the curtain, and the weights attached to the bottom of the curtain must ensure 100 percent substrate contact. No parts of the curtain or other objects shall prevent full substrate contact; and
(iii) Air flow to the bubblers must be balanced across the entrance openings to the super flood basin.
(iv) The Navy shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards. This shall occur prior to the initiation of in-water construction activities.
(13) The bubble curtain may be discontinued for certain activities should the results of hydroacoustic recordings inside the bubble curtain show that the source levels from those activities do not result in the Level A harassment thresholds being achieved across the entire region of influence, upon review of the data by NMFS.
(14) Pile driving and drilling activity must be halted upon observation of either a species entering or within the harassment zone for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.
(b) [Reserved]
(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
(b) Monitoring must be conducted by qualified PSOs in accordance with the following conditions:
(1) PSOs must be independent (i.e., not construction personnel) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(6) PSOs must work in shifts to reduce fatigue and ensure their ability to monitor for marine mammals.
(7) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.
(c) For all pile driving activities, a minimum of three PSOs must be stationed on boats, docks, or piers sufficient to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan.
(d) PSOs must record all observations of marine mammals, regardless of distance from the pile/hole being driven/drilled or the construction activity taking place (i.e., DTH, rotary drilling, rock hammering), as well as additional data indicated in the reporting requirements.
(e) The Navy must conduct hydroacoustic data collection (sound source verification and propagation loss) as described in a LOA and in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction. This plan shall include acoustic monitoring inside the bubble curtain to measure construction generated noise levels.
(f) The harassment and/or shutdown zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy must submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The reports will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.tyson.moore@noaa.gov.
(i) The reports must at minimum contain the informational elements described as follows (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(1) Dates and times (begin and end) of all marine mammal monitoring.
(2) Construction activities occurring during each daily observation period, including:
(i) The number and type of piles that were driven or removed and by what method (i.e., impact, vibratory, DTH, rotary drilling, rock hammering.
(ii) The total duration of driving time for each pile/hole (vibratory driving, rotary drilling) and number of strikes for each pile/hole (impact driving, hydraulic rock hammering).
(iii) For DTH, the duration of operation for both impulsive and non-pulse components as well as the strike rate.
(3) PSO locations during marine mammal monitoring.
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location, as well as the activity at the time of the sighting;
(ii) Time of sighting;
(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven or drilled for each sighting (if pile driving or drilling was occurring at time of sighting).
(v) Estimated number of animals (min/max/best estimate);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(6) Number of marine mammals detected within the harassment zones, by species;
(7) Detailed information about any implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and
(j) The Holder will submit all PSO datasheets and/or raw sightings data with the draft reports.
(k) The Navy must report the hydroacoustic data collected as required by a LOA issued under § 216.106 of this chapter and § 217.136 and as described in the Acoustic Monitoring Plan, which at a minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of driving during recordings (e.g., hammer model and energy), and total pile driving duration;
(3) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(4) For impact pile driving and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELss);
(5) For vibratory driving/removal, rotary drilling, and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged);
(6) One-third octave band spectrum and power spectral density plot; and
(7) General Daily Site Conditions, including the date and time of activities, and environmental data such as wind speed and direction, air temperature, humidity, surface water temperature, tidal state, water depth, wave height, weather conditions, and other factors that could contribute to influencing the airborne and underwater sound levels (e.g., aircraft, boats, etc.).
(l) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report incident to the Office of Protected Resources (OPR), NMFS (PR.ITP.MonitoringReports@noaa.gov and ITP.tyson.moore@noaa.gov) and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator (978-282-8478 or 978-281-9291) as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under § 216.106 of this chapter and § 217.136. The Navy will not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to this subpart, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.137.
(e) The LOA will set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to § 216.106 of this chapter and § 217.136, a LOA may be modified without prior public notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
91 FR 8141, Feb. 20, 2026, unless otherwise noted.
At 91 FR 8141, Feb. 20, 2026, subpart R was added to part 217, effective Feb. 20, 2026, through Feb. 19, 2031.
(a) Regulations in this subpart apply only to Hilcorp Alaska LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals in Cook Inlet, Alaska, and that occurs incidental to the activities described in paragraph (c) of this section. Requirements imposed on Hilcorp must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The incidental taking of marine mammals by Hilcorp may be authorized in a letter of authorization (LOA) only if it occurs within in Cook Inlet, Alaska.
(c) The taking of marine mammals by Hilcorp is only authorized if it occurs incidental to the use of tugs towing, holding, or positioning a jack-up rig, impact pile driving, and pipeline installation and/or replacement involving anchor handling and/or pipe pulling.
Regulations in this subpart are effective from February 20, 2026, through February 19, 2031.
Under an LOA issued pursuant to §§ 217.106 of this chapter and 217.166, the holder of the LOA (hereinafter “Hilcorp”) may incidentally, but not intentionally, take marine mammals within the specified geographical region described in § 217.160(b) by harassment associated with the specified activities provided they are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
Except for the takings permitted in § 217.162 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.166, it is unlawful for any person to do any of the following in connection with the specified activities:
(a) Violate or fail to comply with the terms, conditions, and requirements of this subpart or an LOA issued under this subpart or an LOA issued under §§ 216.106 of this chapter and 217.166;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner other than specified;
(d) Take a marine mammal should NMFS withdraw or suspend such LOA; or
(e) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the specified activities identified in § 217.160(c), Hilcorp must implement the mitigation measures contained in this section and any LOA issued under §§ 216.106 of this chapter and 217.166 unless implementing the mitigation measure would create a risk to human safety or cause pile instability or refusal. These mitigation measures include, but are not limited to:
(a) A copy of any issued LOA should be in the possession of Hilcorp, its designees, and work crew personnel operating under the authority of the issued LOA.
(b) Hilcorp must coordinate with local Tribes as described in its Stakeholder Engagement Plan, notify the communities of any changes in the operation, and take action to avoid or mitigate impacts to subsistence harvests.
(c) Tug boat and pile driving supervisors and crews, the monitoring team, and relevant Hilcorp staff must be trained prior to the start of all activities so that responsibilities, communication procedures, mitigation measures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.
(d) Hilcorp must implement clearance and shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.166.
(e) Pre-start clearance monitoring.
(1) Prior to initiating any activity or resuming those activities after a 30-minute lapse (e.g., pauses between intermittent pile driving), Hilcorp must conduct monitoring of the clearance zones 30 minutes prior to commencing activities identified in § 217.160(c) (i.e., pre-start clearance monitoring).
(2) Except for tugs towing a jack-up rig, activities may commence or resume if, following 30 minutes of observation of the clearance zone, it is determined by a protected species observer (PSO) that the clearance zones are clear of marine mammals.
(3) Should a marine mammal be within the clearance zone during the clearance monitoring period, the activity (except for tugs under tow if tidal restrictions necessitate) must not commence or resume until any animal has left the clearance zone and is on a path away from the clearance zone or at least 30 minutes has elapsed for all baleen whale species and Cook Inlet Beluga Whales (CIBWs) without subsequent detection, or 15 minutes has elapsed without subsequent detection for all other species.
(f) Pile driving at the Tyonek Platform may only occur from November 15 through April 15.
(g) Hilcorp must cease all pile driving activities, including soft starts, if a marine mammal is observed entering or within the shutdown zone. Should safety or pile instability or refusal concerns prevent a shutdown, pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until a PSO has determined that the clearance zones are clear of marine mammals.
(1) If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and is visually confirmed to be beyond the shutdown zone or at least 30 minutes has elapsed for all baleen whale species and CIBWs without subsequent detection or 15 minutes has elapsed without subsequent detection for all other species.
(2) If during pile driving, a PSO can no longer effectively monitor the entirety of the corresponding shutdown zone due to environmental conditions (e.g., fog, rain, wind), pile driving may continue only until the current segment of the pile is driven. No additional sections of pile or additional piles may be driven until conditions improve such that the shutdown zone can be effectively monitored. If the shutdown zone cannot be monitored for more than 15 minutes, the entire zone must be cleared again for 30 minutes prior to reinitiating pile driving.
(h) Hilcorp must use soft-start techniques when impact pile driving. Should safety or pile instability/refusal concerns arise during a soft start wherein this process cannot be met, Hilcorp must use the minimum amount of energy practicable. Prior to soft-start beginning, the operator must receive confirmation from the PSO that the clearance zone is clear of any marine mammals.
(i) For transportation of a jack-up rig to or from the Tyonek platform, in addition to PSOs stationed on the rig during towing, an additional PSO must be stationed on the Tyonek Platform to monitor for marine mammals. The PSO should be on watch for at least 1 hour before tugs are expected to arrive (scheduled to approach the estimated 120-dB isopleth).
(j) Unless deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, life of a person; or a vessel is actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, Hilcorp must:
(1) Maneuver tugs engaged in towing, holding, or positioning a jack-up rig, and anchor handling and pipe pulling activities such that they maintain a consistent speed (approximately 4 knots [kt; 7 kilometers (km)/hr]) and avoid multiple changes of speed and direction to make the course of the vessels as predictable as possible to marine mammals in the surrounding environment, characteristics that are expected to be associated with a lower likelihood of disturbance;
(2) Not actively approach a marine mammal purposefully and must adhere to NOAA Alaska Region Marine Mammal Viewing Guidelines;
(3) Reduce vessel speed to < 9 km/hr (5 kt) when within 274 meters (m; 300 yards) of any whale, reduce speed to 18.5 km/hr (10 kt) or less when weather conditions reduce visibility to 1.6 km (1 mile [mi]) or less, avoid multiple changes in direction and speed when within 274 m (300 yards) of any whale, and place the engine in neutral if a whale is approaching within 91 m (100 yards) of a vessel;
(4) Maintain a distance of at least 2.4 km from the Mean Lower Low Water line of the Susitna River Delta (Beluga River to the Little Susitna River) between April 15 and November 15; and
(5) Maintain a watch for marine mammals while underway and check water immediately adjacent to the vessel prior to engaging propellers; should a marine mammal be observed near propellers and it is determined that interaction is possible, delay engaging propellers.
(k) Hilcorp must maintain clean, taught lines in the water such that no lines are in the water unless both ends are under tension and affixed to vessels or gear.
Hilcorp must implement the following monitoring and reporting measures:
(a) Monitoring must be conducted by NMFS-approved PSOs during all activities for which take is authorized, in accordance with Hilcorp's Marine Mammal Monitoring and Mitigation Plan (which is included in appendix A of Hilcorp's application). PSOs must be independent of the activity contractor (e.g., employed by a subcontractor) and have no other assigned tasks during monitoring duties.
(b) A lead PSO must be designated for all specified activities. The lead PSO must have prior experience performing the duties of a PSO during in-water activities pursuant to a NMFS-issued incidental take authorization or letter of concurrence.
(c) PSOs must monitor for marine mammals from the best available vantage point, ideally an elevated stable platform from which the PSO has an unobstructed 360-degree view of the water or a total 360-degree view of water between all PSOs on watch. Monitoring must occur from 30 minutes before an activity commences to 30 minutes after the activity ceases.
(d) PSOs must use a combination of equipment to scan the appropriate monitoring area and to identify the relevant mitigation distance from an activity, including the naked eye, binoculars (minimum 7x50), and night vision devices for low light and nighttime operations.
(e) PSOs must be in communication with all rig or vessel captains via VHF radio and/or cell phones at all times and alert rig or vessel captains to all marine mammal sightings relative to the vessel location.
(f) PSOs may not work in shifts lasting more than 4 hours without a minimum of 1-hour break and may not be on watch more than 12 hours in a 24-hour period.
(g) Hilcorp must notify NMFS Office of Protected Resources (OPR) at least 48 hours prior to the start of the specified activities each year.
(h) Hilcorp must submit interim monthly monitoring reports on the 15th day of the month after any specified activities occurred. These reports must include a summary of marine mammal species and behavioral observations, delays, shutdowns, and activities completed during the reporting period. The reports also must include an assessment of the amount of work remaining for the year, in addition to the number of CIBWs observed within estimated Level B harassment zones during activities to date, and any instances where mitigation could not be implemented due to safety or pile instability/refusal concerns.
(i) Hilcorp must submit a draft annual summary monitoring report on all monitoring conducted during each project year which includes final electronic data sheets within 90 calendar days of the completion of marine mammal monitoring or 90 days prior to a requested date of issuance of any future incidental take authorization for projects at the same location, whichever comes first. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of year 5 of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days of receipt of the draft reports, the report may be considered final. If comments are received, revised reports addressing NMFS comments must be submitted within 30 days after receipt of comments. At a minimum, the reports must contain:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Activities occurring during each daily observation period, including the type of activity (tugs under load with a jack-up rig, pile driving, anchor handling, pipe pulling), the total duration of each type of activity, when nighttime operations occurred (and if they did, whether night vision devices (NVDs) were employed, including which lenses were utilized), and whether towing against the tide was required;
(3) PSO locations during marine mammal monitoring;
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), Beaufort sea state, and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; and
(5) Upon observation of a marine mammal, the following information must be collected and included in the annual and 5-year reports:
(i) Name of the PSO who sighted the animal, observer location, and activity at time of sighting;
(ii) Time of sighting;
(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the vessel (e.g., tug, pipe lay barge) or pile being driven for each sighting (if pile driving was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(ix) Detailed information about any implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any;
(x) All PSO datasheets and raw sightings data in electronic spreadsheet format; and
(xi) Any instances where mitigation could not be implemented due to safety or pile instability/refusal concerns.
(j) In the event that personnel involved in Hilcorp's activities discover an injured or dead marine mammal, Hilcorp must report the incident to NMFS OPR and the Alaska Regional Stranding Network as soon as feasible. If the death or injury was caused by a specified activity, Hilcorp must immediately cease the specified activity until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the LOA. Hilcorp must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to this subpart, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the effective dates of this subpart in § 217.161.
(c) In the event Hilcorp proposes projected changes to the activity or to mitigation and monitoring measures required by an LOA, Hilcorp must request and obtain a modification of the LOA as described in § 217.167.
(d) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA should be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart.
(f) Notice of issuance or denial of an LOA should be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.166 for the specified activities may be modified upon request by Hilcorp, provided that:
(1) The changes to the activity or the mitigation, monitoring, or reporting does not change the findings made pursuant to this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or stock or years); and
(2) NMFS determines that Hilcorp implemented the mitigation, monitoring, and reporting measures required by the LOA for which modification is requested.
(b) An LOA issued under §§ 216.106 of this chapter and 217.166 may be modified at NMFS' initiation if:
(1) Doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures; or
(2) NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in an LOA issued pursuant to §§ 216.106 of this chapter and 217.166, in which case, the LOA may be modified without prior notice or opportunity for public comment; however, notification will be published in the Federal Register within 30 days of the action.
(c) If the modifications to the specified activities, mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment prior to making a determination on issuance.
(d) Possible sources of data that could contribute to a decision to modify the LOA include, but are not limited to:
(1) Results from Hilcorp's monitoring;
(2) Results from other marine mammal and/or sound research or studies; and
(3) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs.
86 FR 71178, Dec. 15, 2021; 87 FR 885, Jan. 7, 2022, unless otherwise noted.
At 86 FR 71178, Dec. 15, 2021, subpart R was added to part 217, effective May 15, 2022, through May 14, 2027. At 87 FR 885, Jan. 7, 2022, subpart R was corrected, effective May 15, 2022, through May 14, 2027.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities including for bulkhead replacement and repairs at Naval Station (NAVSTA) Newport, Rhode Island.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at NAVSTA Newport, Rhode Island.
Regulations in this subpart are effective from May 15, 2022, through May 14, 2027.
Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.176, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.170(b) by harassment associated with bulkhead replacement and repairs construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.172 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.176, it is unlawful for any person to do any of the following in connection with the activities described in § 217.170:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.176;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(b) [Reserved]
(a) When conducting the activities identified in § 217.171(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.176 must be implemented. These mitigation measures must include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Navy will follow mitigation procedures as described in this section. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Holder shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected.
(3) The Navy will ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of all activities subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, PSOs, and relevant Navy staff will avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy will employ PSOs and establish monitoring locations as described in this rule and the Marine Mammal Monitoring Plan. The Navy will monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.
(6) Monitoring will take place from 30 minutes prior to initiation of pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity.
(7) If a marine mammal is observed entering or within the shutdown zones indicated in this rule, pile driving activity must be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(8) The Navy will establish shutdown zones for all pile driving activities. Shutdown zones are limited to 150 m from the point of noise generation. Any remaining area within estimated Level A harassment zones shall be considered part of the “disturbance zone,” i.e., the Level B harassment zone and, where present, the Level A harassment zone (PTS onset) beyond 150 m from the point of noise generation. For activities where the estimated Level A (PTS onset) harassment zones are smaller than 150 m, the disturbance zone shall include the entire region of influence (ROI), i.e., estimated Level A and Level B harassment zones). Work may proceed without cessation while marine mammals are in the disturbance zone and marine mammal behavior within the disturbance zone will be monitored and documented.
(9) The Navy will conduct monitoring to include the area within the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving (disturbance zone).
(10) Pre-start clearance monitoring will be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(11) If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated or 15 minutes have passed without re-detection of the animal.
(12) The Navy will use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. A soft start will be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer. Soft start is not required during vibratory pile driving activities.
(13) Pile driving activity must be halted upon observation of either a species entering or within the harassment zone, for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.
(b) [Reserved]
(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent (i.e., not construction personnel) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.
(c) The Navy will establish the following monitoring locations. For all pile driving activities, a minimum of one PSO will be assigned to each active pile driving location to monitor the shutdown zones. Trained PSOs will be placed at the best vantage point(s) practicable such as on nearby breakwaters, Gould Island, Coddington Point, or Taylor Point. Visual monitoring will be conducted by, at a minimum, by two PSOs. It is assumed that two to three PSOs would be sufficient to monitor the respective ROIs given the abundance of suitable vantage points. Any activity that would result in threshold exceedance at or more than 1,000 m would require a minimum of three PSOs to effectively monitor the entire ROI. However, additional monitors may be added if warranted by site conditions and/or the level of marine mammal activity in the area.
(d) PSOs must record all observations of marine mammals, regardless of distance from the pile being driven, as well as the additional data indicated in the reporting requirements.
(e) Acoustic monitoring will be conducted in accordance with the Acoustic Monitoring Plan. The Navy will conduct hydroacoustic data collection (sound source verification and propagation loss) in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction.
(f) The shutdown/disturbances zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy will submit a draft monitoring report to NMFS within 90 calendar days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The report will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov.
(i) The marine mammal report must contain the informational elements described ed in the Marine Mammal Monitoring Plan and, at minimum, include:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including: the number and types of piles were driven or removed and by what method (i.e., impact or vibratory) and the total duration of driving time for each pile (vibratory driving) and number of strikes for each pile (impact driving); and
(3) PSO locations during marine mammal monitoring;
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting.
(ii) Time of sighting; and
(iii) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and location of each marine mammal observed relative to the pile being driven or removed;
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone; and
(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(6) Number of marine mammals detected within the harassment zones, by species;
(7) Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting of the behavior of the animal, if any;
(8) The Navy will submit all PSO datasheets and/or raw sightings data with the draft reports.
(j) The Navy must report the hydroacoustic data collected as required by a LOA issued under §§ 216.106 of this chapter and 217.176 and as described in the Acoustic Monitoring Plan, and at a minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of driving during recordings (e.g., hammer model and energy), and total pile driving duration;
(i) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(ii) For impact pile driving (per pile): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
(iii) For vibratory driving/removal (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged); and
(iv) One-third octave band spectrum and power spectral density plot.
(k) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), NMFS (PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov) Monitoring) and to the Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator, as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under §§ 216.106 of this chapter and 217.176. The Navy will not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.177.
(e) The LOA will set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.176, a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
91 FR 20852, Apr. 17, 2026, unless otherwise noted.
At 91 FR 20852, Apr. 17, 2026, subpart S was revised, effective Apr. 20, 2026, through Apr. 19, 2031.
(a) Regulations in this subpart apply only to oil and gas industry operators (Letter of Authorization (LOA)-holders), and those persons authorized to conduct activities on their behalf, for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to geophysical survey activities.
(b) The taking of marine mammals by oil and gas industry operators may be authorized in an LOA only if it occurs within U.S. waters in the Gulf of America, outside the area previously subject to a Congressional leasing moratorium under the Gulf of Mexico Energy Security Act (GOMESA) (Pub. L. 109-432, section 104).
Regulations in this subpart are effective from April 20, 2026, through April 19, 2031.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.186, LOA-holders may incidentally, but not intentionally, take marine mammals within the area described in § 217.180(b) by Level A and Level B harassment associated with geophysical survey activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Notwithstanding takings contemplated in §§ 217.180 and 217.182, and authorized by an LOA issued under §§ 216.106 of this chapter and 217.186, no person in connection with the activities described in § 217.180 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.186;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified; or
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
When conducting the activities identified in § 217.180, the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.186 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions.
(1) A copy of any issued LOA must be in the possession of the LOA-holder, vessel operator, other relevant personnel, the lead protected species observer (PSO), and any other relevant designees operating under the authority of the LOA.
(2) The LOA-holder must instruct relevant vessel personnel with regard to the authority of the protected species monitoring team (PSO team), and must ensure that relevant vessel personnel and PSO team participate in a joint onboard briefing, led by the vessel operator and lead PSO, prior to beginning work to ensure that responsibilities, communication procedures, protected species monitoring protocols, operational procedures, and LOA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations before work involving those personnel commences.
(3) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source must be avoided. For surveys using airgun arrays as the acoustic source, notified operational capacity (i.e., total array volume) (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be communicated to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(4) PSOs must be used as specified in this paragraph (a)(4).
(i) LOA-holders must use independent, dedicated, qualified PSOs, meaning that the PSOs must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime hazards), and must be qualified pursuant to § 217.185(a) (except as specified in paragraphs (d)(2)(iii) and (iv) of this section). Acoustic PSOs are required to complete specialized training for operating passive acoustic monitoring (PAM) systems and are encouraged to have familiarity with the vessel on which they will be working. PSOs may act as both acoustic and visual observers (but not simultaneously), so long as they demonstrate that their training and experience are sufficient to perform each task.
(ii) The LOA-holder must submit PSO resumes for NMFS review and approval prior to commencement of the survey (except as specified in paragraph (d)(2)(iii) of this section). Resumes should include dates of training and any prior NMFS approval, as well as dates and description of last experience, and must be accompanied by information documenting successful completion of an acceptable training course. NMFS is allowed 1 week to approve PSOs from the time that the necessary information is received by NMFS, after which PSOs meeting the minimum requirements will automatically be considered approved.
(iii) At least one visual PSO and two acoustic PSOs (when required) aboard each acoustic source vessel must have a minimum of 90 days at-sea experience working in those roles, respectively, with no more than 18 months elapsed since the conclusion of the at-sea experience (except as specified in paragraph (d)(2)(iii) of this section). One visual PSO with such experience must be designated as the lead for the entire PSO team. The lead must coordinate duty schedules and roles for the PSO team and serve as the primary point of contact for the vessel operator (note that the responsibility of coordinating duty schedules and roles may instead be assigned to a shore-based, third-party monitoring coordinator). To the maximum extent practicable, the lead PSO must devise the duty schedule such that experienced PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience.
(b) Deep penetration surveys.
(1) Deep penetration surveys are defined as surveys using airgun arrays with total volume greater than 1,500 in3.
(2) Visual monitoring must be conducted as specified in this paragraph (b)(2).
(i) During survey operations (i.e., any day on which use of the acoustic source is planned to occur, and whenever the acoustic source is in the water, whether activated or not), a minimum of two PSOs must be on duty and conducting visual observations at all times during daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes following sunset).
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until 1 hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs must coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and must conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs must immediately communicate all observations of marine mammals to the on-duty acoustic PSO, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Any observations of marine mammals by crew members aboard any vessel associated with the survey must be relayed to the PSO team.
(vi) During good conditions (e.g., daylight hours; Beaufort sea state (BSS) 3 or less), visual PSOs must conduct observations when the acoustic source is not operating for comparison of sighting rates and behavior with and without use of the acoustic source and between acquisition periods, to the maximum extent practicable.
(vii) Visual PSOs may be on watch for a maximum of 2 consecutive hours followed by a break of at least 1 hour between watches and may conduct a maximum of 12 hours of observation per 24-hour period. NMFS may grant an exception for LOA applications that demonstrate such a “2 hours on/1 hour off” duty cycle is not practicable, in which case visual PSOs will be subject to a maximum of 4 consecutive hours on watch followed by a break of at least 2 hours between watches. Combined observational duties (visual and acoustic but not at the same time) must not exceed 12 hours per 24-hour period for any individual PSO.
(3) Acoustic monitoring must be conducted as specified in this paragraph (b)(3).
(i) All source vessels must use a towed PAM system at all times when operating in waters deeper than 100 m, which must be monitored by a minimum of one acoustic PSO beginning at least 30 minutes prior to ramp-up, at all times during use of the acoustic source, and until 1 hour after use of the acoustic source ceases. “PAM system” refers to calibrated hydrophone arrays with full system redundancy to detect, identify, and estimate distance and bearing to vocalizing cetaceans, coupled with appropriate software to aid monitoring and listening by a PAM operator skilled in bioacoustics analysis and computer system specifications capable of running appropriate software. The PAM system must have at least one calibrated hydrophone (per each deployed hydrophone type and/or set) sufficient for determining whether background noise levels on the towed PAM system are sufficiently low to meet performance expectations. Applicants must provide a PAM plan including description of the hardware and software proposed for use prior to proceeding with any survey where PAM is required.
(ii) Acoustic PSOs must immediately communicate all detections of marine mammals to visual PSOs (when visual PSOs are on duty), including any determination by the PSO regarding species identification, distance, and bearing, and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of 4 consecutive hours followed by a break of at least 2 hours between watches, and may conduct a maximum of 12 hours of observation per 24-hour period. Combined observational duties (visual and acoustic but not at the same time) must not exceed 12 hours per 24-hour period for any individual PSO.
(iv) Survey activity may continue for 30 minutes when the PAM system malfunctions or is damaged, while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional 2 hours without acoustic monitoring during daylight hours only under the following conditions:
(A) Sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding delphinids) detected solely by PAM in the applicable exclusion zone in the previous 2 hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began occurring without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of 4 hours in any 24-hour period.
(4) PSOs must establish and monitor applicable exclusion and buffer zones. These zones must be based upon the radial distance from the edges of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source (i.e., anytime the acoustic source is active, including ramp-up), occurrence of marine mammals within the relevant buffer zone (but outside the exclusion zone) should be communicated to the operator to prepare for the potential shutdown of the acoustic source.
(i) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encompassing the area at and below the sea surface out to a radius of 500 meters from the edges of the airgun array (0-500 m) is defined. For special circumstances (defined in paragraph (b)(9)(v) of this section), the exclusion zone encompasses an extended distance of 1,500 meters (0-1,500 m).
(ii) During pre-start clearance monitoring (i.e., before ramp-up begins), the buffer zone acts as an extension of the exclusion zone in that observations of marine mammals within the buffer zone would also preclude airgun operations from beginning (i.e., ramp-up). For all marine mammals (except where superseded by the extended 1,500-m exclusion zone), the buffer zone encompasses the area at and below the sea surface from the edge of the 0-500 meter exclusion zone out to a radius of 1,000 meters from the edges of the airgun array (500-1,000 m). The buffer zone is not applicable when the exclusion zone is greater than 500 meters, i.e., the observational focal zone is not increased beyond 1,500 meters.
(5) A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total active array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. A 30-minute pre-start clearance observation period must occur prior to the start of ramp-up. The LOA-holder must adhere to the following pre-start clearance and ramp-up requirements:
(i) The operator must notify a designated PSO of the planned start of ramp-up as agreed upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up.
(ii) Ramp-ups must be scheduled so as to minimize the time spent with source activated prior to reaching the designated run-in.
(iii) A designated PSO must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed.
(iv) Ramp-up must not be initiated if any marine mammal is within the applicable exclusion or buffer zone. If a marine mammal is observed within the exclusion zone or the buffer zone during the 30-minute pre-start clearance period, ramp-up must not begin until the animal(s) has been observed exiting the zones or until an additional time period has elapsed with no further sightings (15 minutes for small delphinids and 30 minutes for all other species).
(v) Ramp-up must begin by activating a single airgun of the smallest volume in the array and shall continue in stages by doubling the number of active elements at the commencement of each stage, with each stage of approximately the same duration. Total duration must not be less than 20 minutes. The operator must provide information to the PSO documenting that appropriate procedures were followed.
(vi) Ramp-up must cease and the source shut down upon observation of marine mammals within the applicable exclusion zone. Once ramp-up has begun, observations of marine mammals within the buffer zone do not require shutdown.
(vii) Ramp-up may occur at times of poor visibility, including nighttime, if appropriate acoustic monitoring has occurred with no detections of a marine mammal other than delphinids in the 30 minutes prior to beginning ramp-up. Acoustic source activation may only occur at night where operational planning cannot reasonably avoid such circumstances.
(viii) If the acoustic source is shut down for brief periods (i.e., less than 30 minutes) for reasons other than implementation of prescribed mitigation (e.g., mechanical difficulty), it may be activated again without ramp-up if PSOs have maintained constant visual and/or acoustic observation and no visual or acoustic detections of any marine mammal have occurred within the applicable exclusion zone. For any longer shutdown, pre-start clearance observation and ramp-up are required. For any shutdown at night or in periods of poor visibility (e.g., BSS 4 or greater), ramp-up is required, but if the shutdown period was brief and constant observation maintained, pre-start clearance watch is not required.
(ix) Testing of the acoustic source involving all elements requires ramp-up. Testing limited to individual source elements or strings does not require ramp-up but does require the pre-start clearance observation period.
(6) Shutdowns must be implemented as specified in this paragraph (b)(6).
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source pursuant to the requirements of this subpart.
(ii) The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch.
(iii) When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs.
(iv) When the airgun array is active (i.e., anytime one or more airguns is active, including during ramp-up), and:
(A) A marine mammal appears within or enters the applicable exclusion zone; and/or
(B) A marine mammal (excluding delphinids) is detected acoustically and localized within the applicable exclusion zone, the acoustic source must be shut down. When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation.
(v) The extended 1,500-m exclusion zone must be applied upon detection (visual or acoustic) of a baleen whale, sperm whale, beaked whale, or Kogia spp. within the zone.
(vi) Shutdown requirements are waived for dolphins of the following genera: Tursiops, Stenella, Steno, and Lagenodelphis. If a delphinid is visually detected within the exclusion zone, no shutdown is required unless the PSO confirms the individual to be of a genus other than those listed above, in which case a shutdown is required. Acoustic detection of delphinids does not require shutdown.
(vii) If there is uncertainty regarding identification or localization, PSOs may use best professional judgment in making the decision to call for a shutdown.
(viii) Upon implementation of shutdown, the source may be reactivated after the marine mammal(s) has been observed exiting the applicable exclusion zone or following a 30-minute clearance period with no further detection of the marine mammal(s).
(c) Shallow penetration surveys.
(1) Shallow penetration surveys are defined as surveys using airgun arrays with total volume equal to or less than 1,500 in3, single airguns, boomers, or equivalent sources.
(2) LOA-holders conducting shallow penetration surveys must follow the requirements defined for deep penetration surveys in paragraph (b) of this section, with the following exceptions:
(i) Acoustic monitoring is not required for shallow penetration surveys.
(ii) Ramp-up for small airgun arrays must follow the procedure described above for large airgun arrays, but may occur over an abbreviated period of time. Ramp-up is not required for surveys using only a single airgun. For non-airgun sources, power should be increased as feasible to effect a ramp-up.
(iii) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encompassing the area at and below the sea surface out to a radius of 100 meters from the edges of the airgun array (if used) or from the acoustic source (0-100 m) is defined. For special circumstances (defined in paragraph (b)(6)(v) of this section), the exclusion zone encompasses an extended distance of 500 meters (0-500 m).
(iv) The buffer zone encompasses the area at and below the sea surface from the edge of the 0-100 meter exclusion zone out to a radius of 200 meters from the edges of the airgun array (if used) or from the acoustic source (100-200 meters). The buffer zone is not applicable when the exclusion zone is greater than 100 meters.
(d) High-resolution geophysical (HRG) surveys.
(1) HRG surveys are defined as surveys using an electromechanical source that operates at frequencies less than 180 kHz, other than those defined at in paragraph (c)(1) of this section (e.g., side-scan sonar, multibeam echosounder, or chirp sub-bottom profiler).
(2) LOA-holders conducting HRG surveys must follow the requirements defined for shallow penetration surveys defined in paragraph (c) of this section, with the following exceptions:
(i) No shutdowns are required for HRG surveys. Pre-start clearance watch is required as defined in paragraph (c) of this section, i.e., for a period of 30 minutes and over a 200-m radius from the acoustic source.
(ii) During survey operations (e.g., any day on which use of the acoustic source is planned to occur, and whenever the acoustic source is in the water, whether activated or not), a minimum of one trained and experienced independent PSO must be on duty and conducting visual observations at all times during daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes following sunset) when operating in waters deeper than 100 m.
(iii) When operating in waters shallower than 100 m, LOA-holders must employ one trained visual PSO, who may be a crew member, only for purposes of conducting pre-start clearance monitoring. If PSOs are crew members, i.e., are not independent PSOs, the PSOs are not subject to NMFS' approval. In these circumstances, LOA requests must describe the training that will be provided to crew members filling the role of PSO.
(iv) PSOs are not required during survey operations in which the active acoustic source(s) are deployed on an autonomous underwater vehicle.
(e) Time-area closure. From January 1 through May 31, no use of airguns may occur shoreward of the 20-m isobath and between 90-84° W.
(f) Entanglement avoidance. To avoid the risk of entanglement, LOA-holders conducting surveys using ocean-bottom nodes or similar gear must:
(1) Use negatively buoyant coated wire-core tether cable;
(2) Retrieve all lines immediately following completion of the survey; and
(3) Attach acoustic pingers directly to the coated tether cable; acoustic releases should not be used.
(g) Vessel strike avoidance. LOA-holders must adhere to the following requirements:
(1) Vessel operators and crews must maintain a vigilant watch for all marine mammals and must slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel, which shall be defined according to the parameters stated in this subsection. Visual observers monitoring the vessel strike avoidance zone may be third-party observers (i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a baleen whale, sperm whale, or other marine mammal;
(2) Vessel speeds must be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of marine mammals are observed near a vessel;
(3) All vessels must maintain a minimum separation distance of 500 m from baleen whales;
(4) All vessels must maintain a minimum separation distance of 100 m from sperm whales;
(5) All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel; and
(6) When marine mammals are sighted while a vessel is underway, the vessel must take action as necessary to avoid violating the relevant separation distance, e.g., attempt to remain parallel to the animal's course, avoid excessive speed or abrupt changes in direction until the animal has left the area. If marine mammals are sighted within the relevant separation distance, the vessel must reduce speed and shift the engine to neutral, not engaging the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained.
(7) These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
(a) PSO qualifications.
(1) PSOs must successfully complete relevant, acceptable training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(2) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must be submitted to NMFS and shall include written justification. Requests will be granted or denied (with justification) by NMFS within 1 week of receipt of submitted information. Alternate experience that may be considered includes, but is not limited to:
(i) Secondary education and/or experience comparable to PSO duties;
(ii) Previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or
(iii) Previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(b) Equipment. LOA-holders are required to:
(1) Provide PSOs with bigeye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control) of appropriate quality solely for PSO use. These must be pedestal-mounted on the deck at the most appropriate vantage point that provides for optimal sea surface observation, PSO safety, and safe operation of the vessel.
(2) For each vessel required to use a PAM system, provide a PAM system that has been verified and tested by an experienced acoustic PSO who will be using it during the trip for which monitoring is required;
(3) Work with the selected third-party observer provider to ensure PSOs have all equipment (including backup equipment) needed to adequately perform necessary tasks, including accurate determination of distance and bearing to observed marine mammals. (Equipment specified in A. through G. below may be provided by an individual PSO, the third-party observer provider, or the LOA-holder, but the LOA-holder is responsible for ensuring PSOs have the proper equipment required to perform the duties specified herein.) Such equipment, at a minimum, must include:
(i) Reticle binoculars (e.g., 7 x 50) of appropriate quality (at least one per PSO, plus backups);
(ii) Global Positioning Unit (GPS) (plus backup);
(iii) Digital camera with a telephoto lens (the camera or lens should also have an image stabilization system) that is at least 300 mm or equivalent on a full-frame single lens reflex (SLR) (plus backup);
(iv) Compass (plus backup);
(v) Radios for communication among vessel crew and PSOs (at least one per PSO, plus backups); and
(vi) Any other tools necessary to adequately perform necessary PSO tasks.
(c) Data collection. PSOs must use standardized electronic data forms. PSOs must record detailed information about any implementation of mitigation requirements, including the distance of marine mammals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up or activation of the acoustic source. If required mitigation was not implemented, PSOs must record a description of the circumstances. At a minimum, the following information should be recorded:
(1) Vessel names (source vessel and other vessels associated with survey), vessel size and type, maximum speed capability of vessel, port of origin, and call signs;
(2) PSO names and affiliations;
(3) Dates of departures and returns to port with port name;
(4) Dates of and participants in PSO briefings;
(5) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
(6) Vessel location (latitude/longitude) when survey effort began and ended and vessel location at beginning and end of visual PSO duty shifts;
(7) Vessel location at 30-second intervals (if software capability allows) or 5-minute intervals (if location must be manually recorded);
(8) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
(9) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions changed significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon;
(10) Vessel location when environmental conditions change significantly;
(11) Factors that may have contributed to impaired observations during each PSO shift change or as needed as environmental conditions change (e.g., vessel traffic, equipment malfunctions);
(12) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in an array, tow depth of an acoustic source, and any other notes of significance (i.e., pre-start clearance, ramp-up, shutdown, testing, shooting, ramp-up completion, end of operations, streamers, etc.); and
(13) Upon visual observation of a marine mammal, the following information:
(i) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
(ii) PSO who sighted the animal and PSO location (including height above water) at time of sighting;
(iii) Time of sighting;
(iv) Vessel coordinates at time of sighting;
(v) Water depth;
(vi) Direction of vessel's travel (compass direction);
(vii) Speed of the vessel(s) from which the observation was made;
(viii) Direction of animal's travel relative to the vessel;
(ix) Pace of the animal;
(x) Estimated distance to the animal (and method of estimating distance) and its heading relative to vessel at initial sighting;
(xi) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(xii) Estimated number of animals (high/low/best);
(xiii) Estimated number of animals by cohort (adults, juveniles, group composition, etc.);
(xiv) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
(xv) Detailed behavior observations (e.g., number of blows/breaths, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior), including an assessment of behavioral responses to survey activity;
(xvi) Animal's closest point of approach (CPA) and/or closest distance from any element of the acoustic source;
(xvii) Platform activity at time of sighting (e.g., deploying, recovering, testing, shooting, data acquisition, other); and
(xviii) Description of any actions implemented in response to the sighting (e.g., delays, shutdown, ramp-up) and time and location of the action.
(14) Upon acoustic detection of a marine mammal using a PAM system, the following information:
(i) An acoustic encounter identification number, and whether the detection was linked with a visual sighting;
(ii) Date and time when first and last heard;
(iii) Types and nature of sounds heard (e.g., clicks, whistles, creaks, burst pulses, continuous, sporadic, strength of signal); and
(iv) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), spectrogram screenshot, and any other notable information.
(d) Reporting.
(1) Annual reporting must be submitted as specified in this paragraph (d)(1).
(i) LOA-holders must submit a summary report to NMFS on all activities and monitoring results within 90 days of the completion of the survey or expiration of the LOA, whichever comes sooner, and must include all information described above under defined in paragraph (c) of this section. If an issued LOA is valid for greater than 1 year, the summary report must be submitted on an annual basis.
(ii) The report must describe activities conducted and sightings of marine mammals, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities, and information regarding locations where the acoustic source was used). In addition to the report, all raw observational data must be made available to NMFS.
(iii) For operations requiring the use of PAM, the report must include a validation document concerning the use of PAM, which should include necessary noise validation diagrams and demonstrate whether background noise levels on the PAM deployment limited achievement of the planned detection goals. Copies of any vessel self-noise assessment reports must be included with the report.
(iv) The LOA-holder must provide geo-referenced time-stamped vessel tracklines for all time periods in which airguns (full array or single) were operating. Tracklines must include points recording any change in airgun status (e.g., when the airguns began operating, when they were turned off). GIS files must be provided in ESRI shapefile format and include the UTC date and time, latitude in decimal degrees, and longitude in decimal degrees. All coordinates must be referenced to the WGS84 geographic coordinate system.
(v) The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring.
(vi) A final report must be submitted within 30 days following resolution of any comments on the draft report.
(2) Comprehensive reporting must be submitted as specified in this paragraph (d)(2). LOA-holders must contribute to the compilation and analysis of data for inclusion in an annual synthesis report addressing all data collected and reported through annual reporting in each calendar year. The synthesis period shall include all annual reports deemed to be final by NMFS in a given 1 year reporting period. The report must be submitted to NMFS within 90 days following the end of a given 1 year reporting period.
(e) Reporting of injured or dead marine mammals.
(1) In the event that personnel involved in the survey activities discover an injured or dead marine mammal, the LOA-holder must report the incident to the Office of Protected Resources (OPR), NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) In the event of a ship strike of a marine mammal by any vessel involved in the survey activities, the LOA-holder must report the incident to OPR, NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Vessel's speed during and leading up to the incident;
(iv) Vessel's course/heading and what operations were being conducted (if applicable);
(v) Status of all sound sources in use;
(vi) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike;
(viii) Estimated size and length of animal that was struck;
(ix) Description of the behavior of the marine mammal immediately preceding and following the strike;
(x) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
(xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and
(xii) To the extent practicable, photographs or video footage of the animal(s).
(3) For deep penetration surveys, in the event of a live stranding (or near-shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interventions to return animals to the water, the Director of OPR, NMFS (or designee) will advise the LOA-holder of the need to implement shutdown procedures for all active acoustic sources operating within 50 km of the stranding. Shutdown procedures for live stranding or milling marine mammals include the following:
(i) If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise the LOA-holder that the shutdown around the animals' location is no longer needed.
(ii) Otherwise, shutdown procedures will remain in effect until the Director of OPR, NMFS (or designee) determines and advises the LOA-holder that all live animals involved have left the area (either of their own volition or following an intervention).
(iii) If further observations of the marine mammals indicate the potential for re-stranding, additional coordination with the LOA-holder will be required to determine what measures are necessary to minimize that likelihood (e.g., extending the shutdown or moving operations farther away) and to implement those measures as appropriate.
(4) If NMFS determines that the circumstances of any marine mammal stranding found in the vicinity of the activity suggest investigation of the association with survey activities is warranted, and an investigation into the stranding is being pursued, NMFS will submit a written request to the LOA-holder indicating that the following initial available information must be provided as soon as possible, but no later than 7 business days after the request for information. In the event that the investigation is still inconclusive, the investigation of the association of the survey activities is still warranted, and the investigation is still being pursued, NMFS may provide additional information requests, in writing, regarding the nature and location of survey operations prior to the time period above.
(i) Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and
(ii) If available, description of the behavior of any marine mammal(s) observed preceding (i.e., within 48 hours and 50 km) and immediately after the discovery of the stranding.
(a) To incidentally take marine mammals pursuant to this subpart, prospective LOA-holders must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period not to exceed the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the LOA-holder must apply for and obtain a modification of the LOA as described in § 217.187.
(d) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species or stock and its habitat; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under this subpart and a determination that the amount of take authorized under the LOA is of no more than small numbers.
(f) For LOA issuance, where either:
(1) the conclusions put forth in an application (e.g., take estimates) are based on analytical methods that differ substantively from those used in the development of the rule, or
(2) the proposed activity or anticipated impacts vary substantively in scope or nature from those analyzed for the rule, NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the differences, and solicit public comment before making a decision regarding issuance of the LOA.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.186 for the activity identified in § 217.180 shall be modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For LOA modification requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that result in more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under § 216.106 of this chapter and § 217.186 for the activity identified in § 217.180 may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures (after consulting with the LOA-holder regarding the practicability of the modifications) if doing so is practicable and creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for this subpart;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in an LOA issued pursuant to §§ 216.106 of this chapter and 217.186, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
(a) The reference in § 217.186(e) relating to a small numbers determination for the issuance of LOAs is intended to be severable from the remaining provisions of this subpart.
(b) [Reserved]
88 FR 87957, Dec. 20, 2023, unless otherwise noted.
At 88 FR 87957, Dec. 20, 2023, subpart T was added to part 217, effective Mar. 1, 2024, through Feb. 28, 2029.
(a) Regulations in this subpart apply only to incidental taking of marine mammals by the U.S. Coast Guard (Coast Guard) and those persons it authorizes or funds to conduct activities on its behalf in the areas outlined in paragraph (b) of this section and that occurs incidental to maintenance construction activities.
(b) The taking of marine mammals by the Coast Guard may be authorized in a Letter of Authorization (LOA) only if it occurs within Gulf of Alaska waters in the vicinity of one of the following eight Coast Guard facilities: Kodiak, Sitka, Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward.
Regulations in this subpart are effective from March 1, 2024, through February 28, 2029.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.196, the Holder of the LOA (hereinafter “Coast Guard”) may incidentally, but not intentionally, take marine mammals within the areas described in § 217.190(b) by Level A or Level B harassment associated with maintenance construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Except for takings described in § 217.192 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.196, it shall be unlawful for any person to do any of the following in connection with the activities described in § 217.190:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.196;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as authorized;
(d) Take a marine mammal specified in such LOAs after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.190(a), the mitigation measures contained in this subpart and any LOA issued under §§ 216.106 of this chapter and 217.196 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) A copy of any issued LOA must be in the possession of the Coast Guard, supervisory construction personnel, lead protected species observers, and any other relevant designees of the Coast Guard operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Coast Guard shall conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant Coast Guard staff prior to the start of all down-the-hole (DTH), pile driving, cutting or power washing activity and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood.
(3) The Coast Guard shall avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 20 m of an activity regulated under this subpart, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions.
(b) Shutdown zones:
(1) For all DTH, pile driving, cutting or power washing activity, the Coast Guard shall implement a minimum shutdown zone of a 20-m radius around the pile or DTH hole. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(2) For all DTH and pile driving activity, the Coast Guard shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.196. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(3) For all DTH and pile driving activity, the Coast Guard shall designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.196. Anticipated observable zones within the designated monitoring zones shall be identified in the Marine Mammal Monitoring Plan, subject to approval by NMFS.
(c) Shutdown protocols:
(1) The Coast Guard shall deploy Protected Species Observers (PSOs) as indicated in the Marine Mammal Monitoring Plan, which shall be subject to approval by NMFS, and as described in § 217.195.
(2) For all DTH and pile driving activities, a minimum of one PSO shall be stationed at the active pile driving rig or activity site or in reasonable proximity in order to monitor the entire shutdown zone.
(3) Monitoring must take place from 30 minutes prior to initiation of DTH and pile driving activity through 30 minutes post-completion of DTH and pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones are clear of marine mammals. DTH and pile driving activity may commence following 30 minutes of observation when the determination is made.
(4) If DTH and pile driving activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(5) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Coast Guard must delay in-water construction activities until observers are confident marine mammals within the shutdown zone could be detected.
(6) Monitoring shall be conducted by trained PSOs, who shall have no other assigned tasks during monitoring periods. Trained PSOs shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Coast Guard shall adhere to the PSO qualifications in § 217.195.
(d) The Coast Guard must use soft start techniques for impact pile driving. Soft start for impact drivers requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced energy three-strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(a) The Coast Guard must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following:
(1) PSOs must be independent of the activity contractor (i.e. not employed by the construction contractor), and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute education (degree in biological science or related field) or training for prior experience.
(4) Where a team of three or more PSOs are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) The Coast Guard must submit PSO curriculum vitae (CVs) for approval by NMFS. PSOs must be approved by NMFS prior to beginning any activity subject to this regulation.
(c) PSOs must record all observations of marine mammals as described in the Marine Mammal Monitoring Plan, regardless of distance from the pile being driven. PSOs shall document any behavioral reactions in concert with distance from piles being driven or removed.
(d) The Coast Guard shall deploy additional PSOs to monitor harassment zones according to the minimum requirements defined in Marine Mammal Monitoring Plan, subject to approval by NMFS. These observers shall collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity, and shall communicate with the shutdown zone observer(s) as appropriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behaviors.
(e) Reporting:
(1) Annual reporting:
(i) Coast Guard shall submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. Coast Guard shall provide a final report within 30 days following resolution of comments on the draft report. If no work requiring monitoring is conducted within a calendar year, Coast Guard shall provide a statement to that effect in lieu of a draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal monitoring;
(B) Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (i.e., impact or vibratory) and the total equipment duration for vibratory or DTH for each pile. When possible, the number of strikes for each pile/hole (impact driving, DTH); and, for DTH, the duration of operation for both impulsive and non-impulsive components as well as the strike rate must be included;
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(E) Upon observation of a marine mammal, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; Time of sighting; Identification of the animal(s) (e.g., genus and species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; Distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting); Estimated number of animals (min, max, and best estimate); Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); Animal's closest point of approach and estimated time spent within the harassment zone; and Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(F) Number of marine mammals detected within the harassment zones, by species;
(G) Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(2) Coast Guard shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart. All PSO datasheets and/or raw sighting data must be submitted with the draft reports.
(3) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Hotchkin@noaa.gov.
(f) Reporting of injured or dead marine mammals:
(1) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Coast Guard must immediately cease the specified activities and report the incident to the Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov and ITP.Hotchkin@noaa.gov), NMFS and to Alaska Regional Stranding Coordinator as soon as feasible. If the death or injury was likely caused by the specified activity, the Coast Guard must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the regulations under this subpart and LOAs. The Coast Guard must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
(a) To incidentally take marine mammals pursuant to the regulations under this subpart, the Coast Guard must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of the regulations under this subpart.
(c) If an LOA expires prior to the expiration date of the regulations under this subpart, the Coast Guard may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Coast Guard must apply for and obtain a modification of the LOA as described in § 217.197.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.196 for the activity identified in § 217.190(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations under this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations of this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.196 for the activity identified in § 217.190(a) may be modified by NMFS under the following circumstances:
(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the Coast Guard regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Coast Guard's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations under this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.196, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
(a) Regulations in this subpart apply only to the incidental taking of those marine mammals specified in § 217.202(b) by the Port of Anchorage and the U.S. Department of Transportation Maritime Administration (MARAD), and those persons it authorizes to engage in construction activities associated with the Port of Anchorage Marine Terminal Redevelopment Project, specifically in-water pile driving, at the Port of Anchorage, Alaska.
(b) [Reserved]
Regulations in this subpart are effective from July 15, 2009, through July 14, 2014.
(a) Under Letters of Authorization issued pursuant to § 216.106 of this chapter and § 217.207, the Port of Anchorage and MARAD, and persons under their authority, may incidentally, but not intentionally, take marine mammals by harassment, within the area described in § 217.200, provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b) The taking of marine mammals under a Letter of Authorization is limited to the incidental take, by Level B harassment only, of the following species under the activities identified in § 217.200(a): Cook Inlet beluga whales (Delphinapterus leucas), harbor seals (Phoca vitulina), harbor porpoises (Phocoena phocoena), and killer whales (Orcinus orca).
(c) The taking by injury or death of the species listed in paragraph (b) of this section or the taking by Level B harassment, injury or death of any other marine mammal species is prohibited and may result in the modification, suspension, or revocation of a Letter of Authorization.
Notwithstanding takings contemplated in § 217.202(b) and authorized by a Letter of Authorization issued under § 216.106 of this chapter and § 217.207, no person in connection with the activities described in § 217.200 may:
(a) Take any marine mammal not specified in § 217.202(b);
(b) Take any marine mammal specified in § 217.202(b) other than by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in § 217.202(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under § 216.106 of this chapter and § 217.207.
(a) When conducting operations identified in § 217.200(a), the mitigation measures contained in the Letter of Authorization, issued under § 216.106 of this chapter and § 217.207, must be implemented. These mitigation measures are:
(1) Through monitoring described under § 217.205, the Holder of a Letter of Authorization will ensure that no marine mammal is subjected to a sound pressure levels of 190 or 180 dB re: 1 microPa or greater for pinnipeds and cetaceans, respectively. If a marine mammal is detected within or approaching a distance 200 m from in-water pile driving or in-water chipping, operations shall be immediately delayed or suspended until the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting.
(2) If a marine mammal is detected within or approaching the Level B harassment zone designated for impact pile driving (350 m) prior to in-water impact pile driving, operations shall not commence until the animal moves outside this zone or it is not detected within 15 minutes of the last sighting.
(3) If a marine mammal is detected within or approaching the Level B harassment zone designated for vibratory pile driving (1,300 m) prior to in-water vibratory pile driving, operations shall not commence until the marine mammal moves outside this zone or it is not detected within 15 minutes of the last sighting.
(4) A start” technique shall be used at the beginning of each day's in-water pile driving activities or if pile driving has ceased for more than one hour to allow any marine mammal that may be in the immediate area to leave before piling driving reaches full energy. For vibratory hammers, the soft start requires the holder of the Letter of Authorization to initiate noise from the hammers for 15 seconds at reduced energy followed by 1-minute waiting period and repeat the procedure two additional times. If an impact hammer is used, the soft start requires an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one minute waiting period, then two subsequent 3 strike sets.
(5) In-water pile driving or chipping shall not occur when conditions restrict clear, visible detection of all waters within the appropriate harassment zones or the 200 m safety zone. Such conditions that can impair sightibility include, but are not limited to, fog and rough sea state.
(6) In-water piles will be driven with a vibratory hammer to the maximum extent possible (i.e., until a desired depth is achieved or to refusal) prior to using an impact hammer.
(7) In-water impact pile driving shall not occur during the period from two hours before low tide until two hours after low tide.
(8) The following measures apply to all in-water pile driving, except during the “stabbing” phase, and all in-water chipping associated with demolition of the existing dock:
(i) No in-water pile driving (impact or vibratory) or chipping shall occur if any marine mammal is located within 200m of the hammer in any direction. If any marine mammal is sighted within or approaching this 200m safety zone, pile-driving or chipping must be suspended until the animal has moved outside the 200m safety zone or the animal is not resighted within 15 minutes.
(ii) If a group of more than 5 beluga whales is sighted within the Level B harassment isopleths, in-water pile driving shall be suspended. If the group is not re-sighted within 15 minutes, pile driving may resume.
(iii) If a beluga whale calf or group with a calf is sighted within or approaching a harassment zone, in-water pile driving shall cease and shall not be resumed until the calf or group is confirmed to be outside of the harassment zone and moving along a trajectory away from such zone. If the calf or group with a calf is not re-sighted within 15 minutes, pile driving may resume.
(9) If maximum authorized take is reached or exceeded for a particular species, any marine mammal of that species entering into the harassment or safety isopleths will trigger mandatory in-water pile driving shut down.
(10) For Port of Anchorage operated in-water heavy machinery work other than pile driving or chipping (i.e., dredging, dump scowles, tug boats used to move barges, barge mounted hydraulic excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 50 m, those operations will cease and vessels will reduce to the slowest speed practicable while still maintaining control of the vessel and safe working conditions.
(11) In the event the Port of Anchorage conducts out-of-water blasting, detonation of charges will be delayed if a marine mammal is detected anywhere within a visible distance from the detonation site.
(12) Additional mitigation measures as contained in a Letter of Authorization.
(b) [Reserved]
(a) The Holder of a Letter of Authorization issued pursuant to § 216.106 of this chapter and § 217.207, for activities described in § 217.200(a) is required to cooperate with NMFS, and any other Federal, state or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Administrator, Alaska Region, NMFS, by letter, e-mail, or telephone, at least 2 weeks prior to commencement of seasonal activities and dock demolition possibly involving the taking of marine mammals. If the activity identified in § 217.200(a) is thought to have resulted in the mortality or injury of any marine mammals or in any take of marine mammals not identified in § 217.202(b), the Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, NMFS, or designee, by e-mail or telephone (301-713-2289), within 24 hours of the discovery of the injured or dead animal.
(b) The Holder of a Letters of Authorization must designate qualified, on-site marine mammal observers (MMOs), approved in advance by NMFS, as specified in the Letter of Authorization, to:
(1) Conduct visual marine mammal monitoring at the Port of Anchorage beginning 30 minutes prior to and during all in-water pile driving or chipping and out-of-water blasting.
(2) Record the following information on NMFS-approved marine mammal sighting sheets whenever a marine mammal is detected:
(i) Date and time of initial sighting to end of sighting, tidal stage, and weather conditions (including Beaufort Sea State);
(ii) Species, number, group composition, initial and closest distance to pile driving hammer, and behavior (e.g., activity, group cohesiveness, direction and speed of travel, etc.) of animals throughout duration of sighting;
(iii) Any discrete behavioral reactions to in-water work;
(iv) The number (by species) of marine mammals that have been taken;
(v) Pile driving, chipping, or out of water blasting activities occurring at the time of sighting and if and why shut down was or was not implemented.
(3) Employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale abundance, movements, behavior, and habitat use around the Port of Anchorage and observe, analyze, and document potential changes in behavior in response to in-water construction work. This monitoring team is not required to be present during all in-water pile driving operations but will continue monitoring one-year post in-water construction. The on-site MMOs and this marine mammal monitoring team shall remain in contact to alert each other to marine mammal presence when both teams are working.
(c) The Holder of a Letter of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.
(d) The Holder of a Letter of Authorization shall submit a monthly report to NMFS' Headquarters Permits, Education and Conservation Division and the Alaska Region, Anchorage for all months in-water pile driving or chipping takes place. This report must contain the information listed in paragraph (b)(2) of this section.
(e) An annual report must be submitted at the time of application for renewal of a Letter of Authorization. This report will summarize all in-water construction activities and marine mammal monitoring from January 1- December 31, annually, and any discernable short or long term impacts from the Marine Terminal Expansion Project.
(f) A final report must be submitted to NMFS upon application for a subsequent incidental take authorization or, if no future authorization is requested, no later than 90 days post expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported in all previous reports;
(2) Assess the impacts to marine mammals from the port expansion project; and
(3) Assess the cumulative impacts on marine mammals.
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined by § 216.103 of this chapter) conducting the activity identified in § 217.200(a) (the Port of Anchorage and MARAD) must apply for and obtain either an initial Letter of Authorization in accordance with § 217.207 or a renewal under § 217.208.
(b) The application must be submitted to NMFS at least 60 days before the expiration of the initial or current Letter of Authorization.
(c) Applications for a Letter of Authorization and for renewals of Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) The date(s), duration, and the specified geographic region where the activities specified in § 217.200 will occur; and
(3) The most current population estimate of Cook Inlet beluga whales and the estimated percentage of marine mammal populations potentially affected for the 12-month period of effectiveness of the Letter of Authorization;
(4) A summary of take levels, monitoring efforts and findings at the Port of Anchorage to date.
(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with this section and, if adequate and complete, issue a Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, but must be renewed annually subject to annual renewal conditions in § 217.208.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking; and
(2) Requirements for mitigation, monitoring and reporting, including, but not limited to, means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses.
(c) Issuance of a Letter of Authorization will be based on the determination that the number of marine mammals taken during the period the Letter of Authorization is valid will be small, that the total taking of marine mammals by the activities specified in § 217.200(a) will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for subsistence uses.
(d) Notice of issuance or denial of an application for a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
(a) A Letter of Authorization issued under § 216.106 of this chapter and § 217.207 for the activity identified in § 217.200(a) will be renewed annually upon:
(1) Notification to NMFS that the activity described in the application submitted under § 217.206 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under § 217.205(d) and (e), and the Letter of Authorization issued under § 217.207, which has been reviewed and accepted by NMFS; and
(3) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§ 217.204 and 217.205 and the Letter of Authorization issued under § 216.106 of this chapter and § 217.207, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and
(4) A determination by NMFS that the number of marine mammals taken during the period of the Letter of Authorization will be small, that the total taking of marine mammals by the activities specified in § 217.200(a) will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization issued under § 216.106 of this chapter and this section indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request.
(c) Notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization by NMFS, issued pursuant to § 216.106 of this chapter and § 217.207 and subject to the provisions of this subpart, shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 217.208, without modification (except for the period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.202(b), a Letter of Authorization issued pursuant to § 216.106 of this chapter and § 217.207 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the Federal Register within 30 days subsequent to the action.
89 FR 81864, Oct. 9, 2024, unless otherwise noted.
At 89 FR 81864, Oct. 9, 2024, subpart X was added to part 217, effective Jan. 1, 2025, through Dec. 31, 2029. At 89 FR 105477, the effective date was delayed to Aug. 4, 2025, through Aug. 3, 2030.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities related to the repair and replacement of the Q8 bulkhead at Naval Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Naval Station Norfolk, Norfolk, Virginia.
Regulations under this subpart are effective from August 4, 2025, through August 3, 2030.
[89 FR 105477, Dec. 27, 2024]
Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.236, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.230(b) by harassment associated with construction activities related to the repair and replacement of the Q8 bulkhead, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(a) Except for the takings contemplated in § 217.232 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.236, it is unlawful for any person to do any of the following in connection with the activities described in § 217.230:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.236;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determined such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.230(a), the mitigation measures contained in this subpart and any LOA issued under §§ 216.106 of this chapter and 217.236 must be implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSO), and any other relevant designees of the Navy operating under the authority of the LOA at all times that activities subject to the LOA are being conducted;
(2) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of activities subject to any issued LOA, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the Project must be trained prior to commencing work;
(3) The Navy, construction supervisors and crews, and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 meters (m) of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction;
(4) The Navy must employ PSOs and establish monitoring locations as described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy must monitor the Project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions;
(5) For all pile driving activities, the Navy shall implement shutdown zones with radial distances as identified in a LOA issued under § 217.236. If a marine mammal is observed entering or within the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation of a pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of a pile driving activity.
(7) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.
(8) If a marine mammal is observed entering or within the shutdown zones, pile driving activity must be delayed or halted.
(9) If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(10) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(b) [Reserved]
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (e.g., employed by a subcontractor) and have no other assigned tasks during monitoring periods;
(2) At least one PSO must have prior experience performing the duties of an observer during construction activity pursuant to a NMFS-issued incidental take authorization;
(3) Other observers may substitute other relevant experience, education (i.e., degree in biological science or related field), or training for prior experience performing the duties of an observer during construction activity pursuant to a NMFS-issued incidental take authorization;
(4) One observer must be designated as lead observer or monitoring coordinator. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
(5) Observers must be approved by NMFS prior to beginning any activity subject to any issued LOA;
(6) For all pile driving activities, a minimum of two observers shall be stationed at the best vantage points practicable. One of these observers must be positioned to monitor for marine mammals and implement shutdown/delay procedures;
(7) The Navy shall monitor the harassment zones to the maximum extent practicable and the entire shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days;
(8) The Navy shall conduct hydroacoustic data collection in accordance with an Acoustic Monitoring Plan that must be approved by NMFS in advance of construction;
(9) The shutdown/monitoring zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report;
(10) The Navy must submit a draft monitoring report to NMFS within 90 calendar days of the completion of each construction year. A draft comprehensive five-year summary report must also be submitted to NMFS within 90 days of the end of the Project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports and the final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The reports must at minimum contain the informational elements described below (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal monitoring;
(ii) Construction activities occurring during each daily observation period, including the number and type of piles that were driven or removed and by what method (i.e., impact or vibratory), total duration of driving time for each pile (vibratory) and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal, the following information:
(A) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(D) Distance and location of each observed marine mammal relative to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);
(G) Animal's closest point of approach and estimated time spent within the harassment zone; and
(H) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(vi) Number of marine mammals detected within the harassment zones, by species; and
(vii) Detailed information about implementation of any mitigation (e.g., shutdown and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(11) The Holder must submit all PSO data electronically in a format that can be queried such as a spreadsheet or database (i.e., digital images of data sheets are not sufficient);
(12) The Navy must report hydroacoustic data collected as required by a LOA issued under §§ 216.106 of this chapter and 217.236 and as discussed in the Navy's Acoustic Monitoring Plan approved by NMFS;
(13) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR), NMFS, and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. The Navy must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.236.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 216.106 of this chapter and 217.236 for the activity identified in § 217.230(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of this chapter and 217.236 for the activity identified in § 217.230(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS must publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to § 216.106 of this chapter and § 217.236, a LOA may be modified without prior notice or opportunity for public comment. Notification will be published in the Federal Register within 30 days of the action.
88 FR 62977, Sept. 13, 2023, unless otherwise noted.
At 88 FR 62977, Sept. 13, 2023, subpart AA was added to part 217, effective Oct. 13, 2023, through Oct. 12, 2028.
(a) Regulations in this subpart apply to activities associated with the Ocean Wind 1 project (hereafter referred to as the “Project”) by Ocean Wind, LLC (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0498 Commercial Lease of Submerged Lands for Renewable Energy Development, two export cable routes, and two sea-to-shore transition points located in New Jersey at Oyster Creek, Island Beach State Park in Barnegat Bay, Farm Property, and BL England.
(c) The specified activities are impact pile driving of wind turbine generator (WTGs) and offshore substation (OSSs) foundations; vibratory pile driving (install and subsequently remove) of cofferdams and goal posts; high-resolution geophysical (HRG) site characterization surveys; unexploded ordnances or munitions and explosives of concern (UXOs/MECs) detonation; vessel transit within the specified geographical region to transport crew, supplies, and materials; WTG operation; fishery and ecological monitoring surveys; placement of scour protection; and trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines.
The regulations in this subpart are effective from October 13, 2023, through October 12, 2028.
Under the LOA, issued pursuant to §§ 216.106 and 217.266, LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the vicinity of BOEM Lease Area OCS-A 0498 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the two sea-to-shore transition points located in New Jersey at Oyster Creek, Island Beach State Park in Barnegat Bay, Farm Property, and BL England in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving (WTG and OSS foundation installation), vibratory pile driving (cofferdam and goal post installation and removal), UXO/MEC detonations, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving of WTG and OSS foundations and UXO/MEC detonations;
(c) Take by mortality or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic. |
| Blue whale | Balaenoptera musculus | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore. |
| Northern Migratory Coastal. | ||
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
Except for the takings described in § 217.262 and authorized by an LOA issued under §§ 217.266 or 217.267, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.266 and 217.267;
(b) Take any marine mammal not specified in § 217.262(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.262(d), after NMFS Office of Protected Resources determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.260(c) within the area described in § 217.260(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.266 and 217.267. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s); The marine mammal monitoring team must monitor these systems no less than every 4 hours. For any UXO/MEC detonation, these systems must be monitored for 24 hours and immediately prior to blasting;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual or acoustic detection must trigger a delay to the commencement of pile driving, UXO/MEC detonation, and HRG surveys.
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) If a delay to commencing an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO, PAM operator, and the activity operator regarding delays or shutdowns would only be discussed after the mitigative action has occurred;
(8) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to beginning a specified activity, the activity must be delayed. If the activity is ongoing, it must be shut down immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species with no further sightings;
(9) For in-water construction heavy machinery activities listed in § 217.260(c), if a marine mammal is on a path towards or comes within 10 meters (m) (32.8 feet) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(10) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(11) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(12) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures, unless an emergency situation presents a threat to the health, safety, or life of a person or when a vessel, actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, requires speeds in excess of 10 kn to fulfill those responsibilities, while in the specified geographical region:
(1) Prior to the start of the Project's activities involving vessels, LOA Holder must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS;
(2) LOA Holder's vessels, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) LOA Holder's underway vessels (e.g., transiting, surveying) operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. Visual observers may be third-party observers (i.e., NMFS-approved PSOs) or trained crew members, as defined in (b)(1) of this subsection.
(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the project's Situational Awareness System, WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) All LOA Holder's vessels must transit at 10 kn or less within any active North Atlantic right whale Slow Zone (i.e., Dynamic Management Areas (DMAs) or acoustically-triggered slow zone);
(6) All LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (refer back to paragraph (b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5 miles per hour (mph)) or less for 24 hours following the reported detection;
(7) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale (other than a North Atlantic right whale) is observed within 500 meters (m; 1,640 feet (ft)) of an underway vessel;
(8) If LOA Holder's vessel(s) are traveling at speeds greater than 10 kn (i.e., no speed restrictions are enacted) in a transit corridor from a port to the Lease Area, in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM within or approaching the transit corridor, all crew transfer vessels must travel at 10 kn or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(9) LOA Holder's vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph (b)(9) of this section;
(10) LOA Holder's vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, LOA Holder's vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(11) LOA Holder's vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinoid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, LOA Holder's vessel must shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(12) When a marine mammal(s) is sighted while LOA Holder's vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(13) LOA Holder's vessels underway must not divert or alter course to approach any marine mammal. If a separation distance is triggered, any vessel underway must avoid abrupt changes in course direction and transit at 10 kn or less until the animal is outside the relevant separation distance;
(14) LOA Holder is required to abide by other speed and approach regulations. Nothing in this subpart exempts vessels from any other applicable marine mammal speed and approach regulations;
(15) LOA Holder must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, SMAs, Slow Zones) and any information regarding North Atlantic right whale sighting locations;
(16) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 90 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels transiting, year round, must travel at speeds of 10-kn or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan; and
(17) Speed over ground will be used to measure all vessel speed restrictions.
(c) WTG and OSS foundation installation. The following requirements apply to impact pile driving activities associated with the installation of WTG and OSS foundations:
(1) Impact pile driving must not occur January 1 through April 30. Impact pile driving must be avoided to the maximum extent practicable in December; however, it may occur if necessary to complete the project with prior approval by NMFS;
(2) Monopiles must be no larger than 11 m in diameter, representing the larger end of the monopile design. During all monopile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules for monopile installation. No more than two monopiles may be installed per day. Pin piles must be no larger than 5 m in diameter. During all pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 2,500 kJ for pin pile installation. No more than three pin piles may be installed per day;
(3) LOA Holder may initiate impact pile driving during hours of darkness only from June 1 to October 31, annually, in accordance with a NMFS-approved Alternative Monitoring Plan for Nighttime Pile Driving;
(4) For the construction months of May and November (as well as December, if approval is granted by NMFS), impact pile driving must only be initiated during daylight hours, defined as no later than 1.5 hours prior to civil sunset and no earlier than 1 hour after civil sunrise, and would only be allowed to continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability;
(5) LOA Holder must utilize a soft-start protocol for each impact pile driving event of all foundations by performing four to six strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes;
(6) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(7) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance around the pile being driven. If a marine mammal is detected within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(8) For North Atlantic right whales, any visual observation or acoustic detection must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period;
(9) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all impact pile driving:
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed;
(vi) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(9) must occur prior to impact pile driving of monopiles. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in this paragraph (c)(9).
(10) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph(c)(17) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km to the pile being driven so that the activities do not mask the PAM system. LOA Holder must provide an adequate demonstration of and justification for the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km (6.2 mi).
(11) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.265(c). At least three on-duty PSOs must be on the pile driving platform. Additionally, two dedicated-PSO vessels must be used at least 60 minutes before, during, and 30 minutes after all pile driving, and each dedicated-PSO vessel must have at least three PSOs on duty during these time periods. LOA Holder may request NMFS approval to use alternative technology (e.g., drones) in lieu of one or two of the dedicated PSO vessels that provide similar marine mammal detection capabilities.
(12) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving is not shutdown in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly).
(13) A visual observation or acoustic detection of a North Atlantic right whale at any distance triggers shutdown requirements under paragraph (c)(12) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected for 30 minutes;
(14) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(15) LOA Holder must conduct sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations. SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 decibels (dB) of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional piles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.). SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis.
(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(vi) LOA Holder must submit 48-hour interim reports after each foundation is measured (see § 217.265(g) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted for the first three monopiles indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional sound attenuation measures on all subsequent foundations. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. LOA Holder must optimize the sound attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future piles must not exceed noise levels modeled assuming 10-dB attenuation;
(viii) If, after additional measurements conducted pursuant to requirements of paragraph (15)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation;
(ix) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in paragraph (c)(15) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(x) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity.
(16) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the Plan; and
(17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cofferdam and goal post installation and removal. The following requirements apply to the installation and removal of cofferdams and goal posts at the cable landfall construction sites:
(1) Installation and removal of cofferdams and goal posts must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) All installation and removal of sheet piles for cofferdams and casing pipes for goal posts must only occur for up to 12 hours for each cofferdam and up to 1 hour daily for each goal post (within a single 24-hour period);
(3) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam and goal post being installed and/or removed;
(4) LOA Holder must utilize PSO(s), as described in § 217.265(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory pile driving associated with cofferdam and casing pipe installation; and
(5) If a marine mammal is observed entering or within the respective shutdown zone after vibratory pile driving has begun, the PSO must call for a shutdown of vibratory pile driving. LOA Holder must stop vibratory pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the next available weekly report (as described in § 217.265(h)).
(e) UXO/MEC detonations. The following requirements apply to all Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) detonations:
(1) Upon encountering an UXO/MEC, LOA Holder may only resort to high-order removal (i.e., detonation) if all other means of removal are impracticable;
(2) LOA Holder may detonate a maximum of 10 UXO/MECs, of varying sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge weight (i.e., E12), over the effective period of this rulemaking and LOA;
(3) LOA Holder must not detonate UXO/MECs from November 1 through April 31, annually;
(4) UXO/MEC detonations must only occur during daylight hours;
(5) No more than one detonation may occur within a 24-hour period;
(6) LOA Holder must establish and implement clearance zones for UXO/MEC detonation using both visual and acoustic monitoring, as described in paragraphs (c)(7), (8), and (12) through (14) of this section. UXO/MEC clearance zones are specific to the known charge weight size of the UXO/MEC to be detonated; if charge weight is unknown or uncertain then the largest zone size must be used;
(7) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.265(c). At least three PSOs on each of two dedicated PSO vessels must be used for all detonations with clearance zones less than 5 km (3.1 mi). If the clearance zone is larger than 5 km, at least one dedicated PSO vessel (with at least three on-duty PSOs) and an aerial platform (with at least two on-duty PSOs) must be used. Clearance zone size is measured using the radial distance from the UXO/MEC to be detonated;
(8) LOA Holder must utilize NMFS-approved PAM systems, as described in (c)(17) of this section.
(9) LOA Holder must deploy at least a double big bubble curtain during all UXO/MEC detonations. The bubble curtain must be deployed at a distance that avoids damage to the hose nozzles:
(i) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iii) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(iv) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each UO/MEC is detonated. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each UXO/MEC detonation;
(v) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (e)(9) must occur prior to UXO/MEC detonation.
(10) LOA Holder must conduct SFV during all UXO/MEC detonations as described in paragraph (c)(15) of this section and deploy a pressure transducer;
(11) Clearance zones must be fully visible for at least 60 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes prior to detonation. PAM must also be conducted for at least 60 minutes and the zone must be acoustically cleared during this time. If a marine mammal is observed entering or within the clearance zone prior to denotation, the activity must be delayed. Detonation may only commence if all marine mammals have been confirmed to have voluntarily left the clearance zones and been visually confirmed to be beyond the clearance zone, or when 60 minutes have elapsed without any redetections for whales (including the North Atlantic right whale) or 15 minutes have elapsed without any redetections of delphinids, harbor porpoises, or seals;
(12) For UXO/MEC detonations, LOA Holder must follow all measures described in paragraphs (c)(15) and § 217.264(c)(15)(i) through (vi), as well as the measures below:
(i) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for UXO/MEC detonations. If any of the interim SFV measurement reports submitted for any UXO/MEC detonations indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation for future detonations will be exceeded, then LOA Holder must implement additional sound attenuation measures on all subsequent UXO/MEC detonations, including but not limited to the deployment of additional NAS to assist in achieving measurements in alignment with the modeled ranges. LOA Holder must also increase clearance zone sizes to those identified by NMFS until SFV measurements on UXO/MECs demonstrate distances to harassment thresholds will be met or will be less than those modeled assuming 10 dB of attenuation. LOA Holder must optimize the sound attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to meet noise levels modeled, assuming 10 dB of attenuation, for UXO/MECs of the same charge weight or else no detonation activities must occur until NMFS and LOA Holder can evaluate the situation and ensure future UXO/MEC detonations must not exceed noise levels modeled, assuming 10-dB attenuation;
(ii) LOA Holder must submit a SFV Plan for UXO/MEC detonation to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation activities and abide by the Plan if approved. The SFV Plan must include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. For recommended SFV protocols for UXO/MEC, please consult the National Physical Laboratory (NPL) Protocol for In-Situ Underwater Measurement of Explosive Ordnance Disposal for UXO (2020). SFV for UXO/MEC detonation cannot occur until NMFS approves the SFV Plan for this activity;
(iii) LOA Holder must submit a UXO/MEC Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation, respectively, and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any UXO/MEC detonations. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all UXO/MEC detonations. The Plan must include final UXO/MEC detonation project design (e.g., number and type of UXO/MECs, removal method(s), charge weight(s), anticipated start date, etc.) and all information related to PAM and PSO monitoring protocols for UXO/MEC activities. The Plan must detail all plans and procedures for sound attenuation as well as for monitoring marine mammals during all UXO/MEC detonations. No UXO/MEC detonations can occur without NMFS' approval of the Plan; and
(iv) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of UXO/MEC detonations and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No UXO/MEC detonations can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(f) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.265(f);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) LOA Holder is required to ramp-up acoustic sources prior to commencing full power, unless the equipment operates on a binary on/off switch, and ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA. Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(6) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(12) of this section;
(7) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(8) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(9) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(10) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(11) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations would be allowed to commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(12) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations would be allowed to continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (f)(12) of this section is detected in the shutdown zone;
(13) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;
(14) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (f)(12) of this section is detected in the shutdown zone; and
(15) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(g) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nmi of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;
(3) If a marine mammal is deemed to be at risk of interaction after the gear is deployed or set, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval);
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn;
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(9) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(10) Baited remote underwater video (BRUV) sampling must limit soak duration to 60 minutes or less, BRUVs must use a weighted line attached to surface and subsurface buoys that must hold a stereo-camera system in the water column and a system at the seafloor, and the vessel must remain on location with the gear while it is in use;
(11) Each chevron trap must have a vertical buoy line and must limit soak duration to 90 minutes or less;
(12) All fishery survey-related lines must include the breaking strength of all lines being less than 1,700 pounds (lbs; 771 kilograms (kg)). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs; or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs;
(13) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(14) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(15) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and
(16) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes, but is not limited to: previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(6) and (b)(7) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). Lead PSO or PAM operators must be unconditionally approved and have a minimum of 90 days in an northwestern Atlantic Ocean offshore environment performing the role (either visual or acoustic), with the conclusion of the most recent relevant experience not more than 18 months previous. A conditionally approved PSO or PAM operator must be paired with an unconditionally approved PSO or PAM operator;
(7) PSOs for cable landfall construction (i.e., vibratory pile installation and removal) and HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation and UXO/MEC activities must be unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable, for each activity (e.g., impact pile driving, vibratory pile driving, UXO/MEC detonation activities, and HRG surveys) must be designated as the Lead PSO or Lead PAM operator;
(9) LOA Holder must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems and detecting and identifying Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and how to deconflict them from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, not detected and similar terminology must be used across companies/projects; where localization of sounds or deriving bearings and distance are possible, the PAM operators need to have demonstrated experience in using this technique; PAM operators must be independent observers (i.e., not construction personnel); PAM operators must demonstrate experience with relevant acoustic software and equipment; PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; PAM operators must be able to test software and hardware functionality prior to operation; and PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available at National Centers for Environmental Information (NCEI) and provide evaluation/performance metric;
(12) PAM operators must be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods;
(13) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively; and
(14) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO provider and Project compliance representative(s) prior to the start of in-water project activities (e.g., HRG survey, foundation installation, cable landfall activities, UXO/MEC detonations, etc.).
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following impact pile driving, vibratory pile driving, UXO/MEC detonation activities, and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) For foundation installation and UXO/MEC detonation, PSOs must visually clear (i.e., confirm no observations of marine mammals) the entire minimum visibility zone for a full 30 minutes immediately prior to commencing activities. For cable landfall activities (e.g., cofferdams and goal posts) and HRG surveys, which do not have a minimum visibility zone, the entire clearance zone must be visually cleared and as much of the Level B harassment zone as possible;
(3) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore, the PAM operator(s) must assist PSOs in ensuring full coverage of the clearance and shutdown zones. The PAM operator must monitor to and past the clearance zone for large whales;
(4) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s), PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., possible, probable detection) in the determination. All on-duty PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving or UXO/MEC detonation) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel;
(5) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system (i.e., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(6) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation and UXO/MEC detonations, at least two PSOs on the pile driving and detonation-dedicated PSO vessel must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control); these must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) and use a NMFS-approved PAM system to conduct monitoring. PAM systems are approved through the PAM Plan as described in § 217.264(c)(17);
(7) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (i.e., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS; and
(8) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period. If the schedule includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between watches must be allowed.
(c) PSO and PAM operator requirements during WTG and OSS foundation installation and UXO/MEC detonations. The following measures apply to PSOs and PAM operators during WTG and OSS foundation installation and UXO/MEC detonations and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving and UXO/MEC detonation activities. If PSOs cannot visually monitor the minimum visibility zone prior to impact pile driving or the clearance zone prior to any UXO/MEC detonation at all times using the equipment described in paragraphs (b)(6) and (7) of this section, pile-driving operations or UXO/MEC detonation must not commence or must shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing from the activity platform during impact pile driving or UXO/MEC detonation and at least three on-duty PSOs must be stationed on each dedicated PSO vessel. If an aerial platform is required or used (per § 217.264(e)(7)), at least two on-duty PSOs must be actively searching for marine mammals. Concurrently, at least one PAM operator per acoustic data stream (equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before, during, and 30 minutes after impact pile driving or UXO/MEC detonation in accordance with a NMFS-approved PAM Plan;
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving or UXO/MEC detonation activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving and UXO/MEC detonation activities.
(d) PSO requirements during cofferdam and goal post installation and removal. The following measures apply to PSOs during cofferdam and goal post installation and removal and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams and goal posts; and
(2) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles (and casing pipe, if installed), and for 30 minutes after all vibratory pile driving activities have ceased. Sheet pile or casing pipe installation must only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to initiation of vibratory pile driving.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using acoustic sources that have the potential to result in harassment and must be implemented by LOA Holder:
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on activity duty monitoring during HRG surveys conducted at night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Monitoring requirements during fisheries monitoring surveys. The following measures apply during fisheries monitoring surveys and must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use, and for 15 minutes after haul back.
(g) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any on-water project activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed.
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.).
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., vibratory installation/removal, impact pile driving, construction survey), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOA issued under § 217.266.
(4) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; details on the deployment of PSOs; a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday to Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder.
(5) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates.
(6) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days and number of UXO/MEC detonations, days and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., impact pile driving, and UXO/MEC detonations); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process.
(7) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final.
(8) For those foundation piles and UXO/MEC detonations requiring SFV measurements, LOA Holder must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event and each UXO/MEC detonation event as soon as they are available and prior to a subsequent detonation or foundation installation, but no later than 48 hours after each completed foundation installation event and 48 hours after a detonation. The report must include, at minimum: hammer energies/schedule used during pile driving, including, the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements; the estimated UXO/MEC charge size (or physical size if charge size is unknown) and donor charge size in trinitrotoluene (TNT) equivalent weight for either high (donor charge used to detonate/destroy UXO/MEC) or low order (e.g., deflagration where donor charge disrupts/consumes UXO/MEC) detonations and description of UXO/MEC (e.g., munition type, state of submergence, approximate age); peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and UXO/MEC and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports.
(9) The final results of SFV measurements from each foundation installation and each UXO/MEC detonation must be submitted as soon as possible, but no later than 90 days following completion of each event's SFV measurements. The final reports must include all details prescribed above for the interim report as well as, at minimum, the following: the peak sound pressure level (SPLpk), the root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), the single strike sound exposure level (SELss), the integration time for SPLrms, the spectrum, and the 24-hour cumulative SEL extrapolated from measurements at all hydrophones. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; the sound levels reported must be in median, arithmetic mean, and L5 (95 percent exceedance) (i.e., average in linear space), and in dB; range of TL coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation and UXO/MEC detonation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the charge weights and other relevant characteristics of UXO/MEC detonations; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile and UXO/MEC where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile and UXO/MEC charge; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile and/or UXO/MEC, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices.
(10) If at any time during the project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven (or UXO/MEC is detonated), whichever comes first.
(11) If a North Atlantic right whale is acoustic detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template;
(12) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the ISO standard metadata forms available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI) for archiving within 90 days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(13) LOA Holder must submit situational reports if the following circumstances occur (including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours):
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If calling NMFS is not possible, reports can also be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (http://www.whalealert.org/). The sighting report must include the time, date, and location of the sighting, number of whales, animal description/certainty of sighting (provide photos/video if taken), Lease Area/project name, PSO/personnel name, PSO provider company (if applicable), and reporter's contact information.
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report to NMFS Greater Atlantic Regional Fisheries (GARFO; nmfs.gar.incidental-take@noaa.gov), NMFS Office of Protected Resources, and NMFS Northeast Fisheries Science Center (NEFSC; ne.rw.survey@noaa.gov) within 24 hours with the above information and the vessel/platform from which the sighting was made, activity the vessel/platform was engaged in at time of sighting, project construction and/or survey activity at the time of the sighting (e.g., pile driving, cable installation, HRG survey), distance from vessel/platform to sighting at time of detection, and any mitigation actions taken in response to the sighting.
(iii) If an observation of a large whale occurs during vessel transit, LOA Holder must report the time, date, and location of the sighting; the vessel's activity, heading, and speed (knots); Beaufort sea state, water depth (meters), and visibility conditions; marine mammal species identification to the best of the observer's ability and any distinguishing characteristics; initial distance and bearing to marine mammal from vessel and closest point of approach; and any avoidance measures taken in response to the marine mammal sighting.
(iv) LOA Holder must provide NMFS Office of Protected Resources with notification of planned UXO/MEC detonation as soon as possible but at least 48 hours prior to the planned detonation, unless this 48-hour notification would create delays to the detonation that would result in imminent risk of human life or safety. This notification must include the coordinates of the planned detonation, the estimated charge size, and any other information available on the characteristics of the UXO/MEC. If an UXO/MEC detonation occurs, within 72 hours after a detonation but before the next detonation, whichever is sooner, LOA Holder must report to NMFS Office of Protected Resources the time, date, location (latitude/longitude Decimal Degrees), charge weight size, justification on why detonation was necessary and other means of removal or avoidance could not occur, all detections of marine mammals within the UXO/MEC zones, and any mitigative action taken.
(v) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov) as soon as feasible. The report (via phone or email) must include contact (name, phone number, etc.), the time, date, and location of the first discovery (and updated location information if known and applicable); Species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; if available, photographs or video footage of the animal(s); and general circumstances under which the animal was discovered.
(vi) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS SERO (secmammalreports@noaa.gov). The report must include the time, date, and location of the incident; species identification (if known) or description of the animal(s) involved; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); status of all sound sources in use; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; estimated size and length of animal that was struck; description of the behavior of the marine mammal immediately preceding and following the strike; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and to the extent practicable, photographs or video footage of the animal(s). LOA Holder must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources.
(14) LOA Holder must report any lost gear associated with the fishery surveys to the NMFS GARFO Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed October 12, 2028, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.267.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 217.262 and 217.266 or this section for the activity identified in § 217.260(a) shall be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS Office of Protected Resources determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years), and
(2) NMFS Office of Protected Resources may, if appropriate, publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 217.262 and 217.266 or this section for the activities identified in § 217.260(a) may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS Office of Protected Resources shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.262 and 217.266 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
88 FR 72659, Oct. 20, 2023, unless otherwise noted.
At 88 FR 72659, Oct. 20, 2023, subpart BB was added to part 217, effective Nov. 20, 2023, through Nov. 19, 2028.
(a) Regulations in this subpart apply to activities associated with the Revolution Wind project (hereafter referred to as the “Project”) by Revolution Wind, LLC (hereafter referred to as “Letter of Authorization (LOA) Holder”) and those persons it authorizes or funds to conduct activities on its behalf in the specified geographical region outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0486 Commercial Lease of Submerged Lands for Renewable Energy Development, two export cable routes, and two sea-to-shore transition points located at Quonset Point in North Kingstown, Rhode Island.
(c) The specified activities are impact pile driving of wind turbine generator (WTGs) and offshore substation (OSSs) foundations; vibratory pile driving (install and subsequently remove) of cofferdams and goal posts; pneumatic hammering (install and subsequently remove) of casing pipes; high-resolution geophysical (HRG) site characterization surveys; detonation of unexploded ordnances or munitions and explosives of concern (UXOs/MECs); vessel transit within the specified geographical region to transport crew, supplies, and materials; WTG operation; fishery and ecological monitoring surveys; placement of scour protection; and trenching, laying, and burial activities associated with the installation of the export cable routes from OSSs to shore-based converter stations and inter-array cables between turbines.
The regulations in this subpart are effective from November 20, 2023, through November 19, 2028.
Under the LOA, issued pursuant to §§ 217.276, and 217.277, and § 216.106 of this chapter, the LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the vicinity of BOEM Lease Area OCS-A 0486 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the two sea-to-shore transition points located at Quonset Point in North Kingstown, Rhode Island in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and an LOA issue under §§ 217.276 and 217.277:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving (WTG and OSS foundation installation), vibratory pile driving (cofferdam and goal post installation and removal), pneumatic hammering (casing pipe installation and removal), UXO/MEC detonations, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving of WTG and OSS foundations, pneumatic hammering of casing pipes, and UXO/MEC detonations;
(c) Take by mortality or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following stocks:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic. |
| Blue whale | Balaenoptera musculus | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore. |
| Northern Migratory Coastal. | ||
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
Except for the takings described in § 217.272 and authorized by an LOA issued under §§ 217.276 or 217.277, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate or fail to comply with the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.276 and 217.277;
(b) Take any marine mammal stock not specified in § 217.272(d);
(c) Take any marine mammal stock specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal stock specified in § 217.272(d) after National Marine Fisheries Service (NMFS) Office of Protected Resources determines such taking results in more than a negligible impact on the stock of marine mammals.
When conducting the activities identified in § 217.270(c) within the specified geographical area described in § 217.270(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.276 and 217.277. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-triggered Slow Zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s); The marine mammal monitoring team must monitor these systems no less than every 4 hours. For any UXO/MEC detonation, these systems must be monitored for 24 hours and immediately prior to blasting;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual or acoustic detection must trigger a delay to the commencement of impact pile driving, UXO/MEC detonation, and HRG surveys;
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) If a delay to commencing an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO, PAM operator, and the activity operator regarding delays or shutdowns would only be discussed after the mitigative action has occurred;
(8) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to beginning a specified activity, the activity must be delayed. If the activity is ongoing, it must be shut down immediately unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for odontocetes (excluding sperm whales) and pinnipeds, and 30 minutes for sperm and baleen whales (including North Atlantic right whales) with no further sightings;
(9) For in-water construction heavy machinery activities listed in § 217.270(c), if a marine mammal is on a path towards or comes within 10 meters (m) (32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(10) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(11) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(12) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures, unless an emergency situation presents a threat to the health, safety, or life of a person or when a vessel, actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, requires speeds in excess of 10 kn (11.5 miles per hour (mph)) to fulfill those responsibilities, while in the specified geographical region:
(1) Prior to the start of the Project's activities involving vessels, LOA Holder must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. The dedicated visual observers must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS;
(2) LOA Holder's vessels, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals during all vessel operations and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) LOA Holder's underway vessels (e.g., transiting, surveying) operating at any speed must have a dedicated visual observer on duty on each vessel at all times to monitor for marine mammals primarily within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, use of visual monitoring and alternative monitoring equipment, and reporting requirements in this subpart. Visual observers may be third-party observers (i.e., NMFS-approved PSOs as defined in § 217.275 (a)(1)) or trained crew members;
(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which notifications of North Atlantic right whale Slow Zones (DMAs and acoustically-triggered Slow Zones) are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the LOA Holder's Project-Wide Situational Awareness System, WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) All LOA Holder's vessels must transit at 10 knots (11.5 mph) or less within any active North Atlantic right whale Seasonal Management Area (SMA) and Slow Zone (i.e., Dynamic Management Areas (DMA) or acoustically-triggered Slow Zones);
(6) Between November 1 and April 30, all vessels, regardless of size, must operate port to port (specifically from ports in Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Virginia, and Maryland), and within the Lease Area and Revolution Wind Export Cable (RWEC) corridor, at 10 knots (11.5 mph) or less, except for vessels transiting in Narragansett Bay or Long Island Sound;
(7) All LOA Holder's vessel(s) (including crew transfer vessels) are restricted from traveling over 10 knots (11.5 mph), unless traveling in a frequently traveled transit corridor (e.g., crew transfer corridor) between port to the Lease Area while LOA Holder monitors the transit corridor to detect large whales (including North Atlantic right whales) in real-time with PAM prior to and during transits. This measure only applies when no other vessel speed restrictions are in place;
(8) All LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 knots (11.5 mph) or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area must trigger an additional 24-hour period of operating at 10 knots (11.5 mph) or less. If a North Atlantic right whale is reported via any of the monitoring systems (see (b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 knots (11.5 mph)) or less for 24 hours following the reported detection;
(9) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 knots (11.5 mph) or less when any large whale (other than a North Atlantic right whale) is observed within 500 meters (m; 1,640 ft) of an underway vessel;
(10) If a large whale (other than a North Atlantic right whale) is detected via the transit corridor PAM system, all vessels must travel at 10 knots (11.5 mph) until the whale can be confirmed visually beyond 500 m of the vessel or 24 hours has passed;
(11) LOA Holder's vessels must maintain a minimum separation distance of 500 m (1,640 ft) from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (11.5 mph) or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph;
(12) LOA Holder's vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, LOA Holder's vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m (328 ft);
(13) LOA Holder's vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean that is not bow riding or a pinniped is sighted within 50 m of a transiting vessel, LOA Holder's vessel operator must shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m (164 ft);
(14) When a marine mammal(s) is sighted while LOA Holder's vessel(s) is transiting, the vessel must not divert or alter course to approach any marine mammal and must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid excessive speed or abrupt changes in direction until the animal has left the area). If a separation distance is triggered, any vessel underway must avoid abrupt changes in course direction and take appropriate action as specified in paragraphs (b)(11) through (13) of this section. This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(15) LOA Holder is required to abide by other speed and approach regulations. Nothing in this subpart exempts vessels from any other applicable marine mammal speed and approach regulations;
(16) LOA Holder must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, SMAs, Slow Zones) and any information regarding North Atlantic right whale sighting locations;
(17) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 90 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels transiting, year round, must travel at speeds of 10 knots (11.5 mph) or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan; and
(18) Speed over ground will be used to measure all vessel speed restrictions.
(c) WTG and OSS foundation installation. The following requirements apply to impact pile driving activities associated with the installation of WTG and OSS foundations:
(1) Impact pile driving must not occur January 1 through April 30. Impact pile driving must be avoided to the maximum extent practicable in December; however, it may occur if necessary to complete the project with prior approval by NMFS;
(2) Monopiles must be no larger than 15 m (49 ft) in diameter, representing the larger end of the monopile design. During all monopile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules for monopile installation. No more than three monopiles may be installed per day;
(3) LOA Holder(s) must not initiate pile driving earlier than 1 hour after civil sunrise or later than 1.5 hours prior to civil sunset, unless LOA Holder submits and NMFS approves an Alternative Monitoring Plan as part of the Pile Driving and Marine Mammal Monitoring Plan that reliably demonstrates the efficacy of their nighttime monitoring equipment and protocols;
(4) LOA Holder must utilize a soft-start protocol for each impact pile driving event of all foundations by performing 4 to 6 strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes;
(5) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(6) LOA Holder must establish clearance zones, which must be measured using the radial distance around the pile being driven. If a marine mammal is detected within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for odontocetes (excluding sperm whales) and pinnipeds, and 30 minutes for sperm and baleen whales (including the North Atlantic right whale);
(7) For North Atlantic right whales, any visual observation at any distance or acoustic detection within the PAM monitoring zone must trigger a delay to the commencement of pile driving. Pile driving may begin only if no North Atlantic right whale visual detections at any distance or acoustic detections within the PAM monitoring zone have occurred during the 60-minute clearance zone monitoring period;
(8) LOA Holder must deploy at least two fully functional, uncompromised noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all impact pile driving:
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed; and
(vi) Corrections to the bubble ring(s) to meet the performance standards, as described in (c)(8)(ii) through (v) of this paragraph, must occur prior to impact pile driving of monopiles. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in paragraph (c)(9) of this section.
(9) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph (c)(16) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km to the pile being driven so that the activities do not mask the PAM system. LOA Holder must provide an adequate demonstration of and justification for the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km.
(10) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.275(c). At least 3 on-duty PSOs must be deployed on the pile driving platform. Additionally, two dedicated-PSO vessels must be used at least 60 minutes before, during, and 30 minutes after all pile driving, and each dedicated-PSO vessel must have at least three PSOs on duty during these time periods.
(11) LOA Holder must establish shutdown zones, which must be measured using the radial distance around the pile being driven. If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving is not shutdown in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly);
(12) Any visual observation at any distance or acoustic detection within the PAM Monitoring Zone of a North Atlantic right whale triggers shutdown requirements under paragraph (c)(11) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected for 30 minutes;
(13) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for odontocetes (excluding sperm whales) and pinnipeds, and 30 minutes for sperm and baleen whales (including North Atlantic right whales) whales. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(14) LOA Holder must conduct sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations. SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10-decibels (dB) of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional piles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes). SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;
(v) LOA Holder must be prepared with additional equipment (e.g., hydrophones, recording devices, hydrophone calibrators, cables, batteries), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(vi) LOA Holder must submit 48-hour interim reports after each foundation is measured (see § 217.275(g) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted for the first three monopiles indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation are being exceeded, LOA Holder must implement additional sound attenuation measures such that measured distances to thresholds for future piles do not exceed modeled distances to thresholds assuming 10-dB attenuation. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations all demonstrate acoustic distances to harassment threshold isopleths meet or are less than those modeled assuming 10-dB of attenuation. LOA Holder must operate fully functional sound attenuation systems (e.g., ensure hose maintenance, pressure testing) to meet noise levels modeled, assuming 10-dB attenuation;
(viii) If, after additional measurements conducted pursuant to requirements of paragraph (c)(14)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce equal to or smaller harassment zones than those modeled assuming 10-dB of attenuation;
(ix) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in (c)(14)(i) through (v) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(x) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity.
(15) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the Plan; and
(16) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The PAM Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cofferdam and casing pipe/goal post installation and removal. The following requirements apply to the installation and removal of cofferdams, casing pipes, and goal posts at the cable landfall construction sites:
(1) Installation and removal of cofferdams, casing pipes, and goal posts must not occur during nighttime hours;
(2) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams, casing pipes, and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam, casing pipe, and goal post being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in § 217.275(d). At least 2 on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory pile driving associated with installation of cofferdam and goal posts and pneumatic hammering associated with casing pipe installation; and
(4) If a marine mammal is observed entering or within the respective shutdown zone after vibratory pile driving or pneumatic hammering has begun, the PSO must call for a shutdown of vibratory pile driving and pneumatic hammering. LOA Holder must stop vibratory pile driving and pneumatic hammering immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the next available weekly report (as described in § 217.275(g)).
(e) UXO/MEC detonations. The following requirements apply to all UXO/MEC detonations:
(1) Upon encountering an UXO/MEC, LOA Holder may only resort to high-order removal (i.e., detonation) if all other means of removal are impracticable;
(2) LOA Holder may detonate a maximum of 13 UXO/MECs of varying sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge weight (i.e., E12), over the effective period of this rulemaking;
(3) LOA Holder must not detonate UXO/MECs from December 1 through April 30, annually;
(4) UXO/MEC detonations must only occur during daylight hours;
(5) No more than one detonation may occur within a 24-hour period;
(6) LOA Holder must establish and implement clearance zones for UXO/MEC detonation using both visual and acoustic monitoring, as described in paragraphs (c)(6), (7), and (11) through (13) of this section. UXO/MEC clearance zones are specific to the known charge weight size of the UXO/MEC to be detonated; if charge weight is unknown or uncertain, then the largest zone size must be used;
(7) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.275(c). At least 3 PSOs on the activity platform and on each of 2 dedicated PSO vessels must be used for all detonations with clearance zones less than 5 km. If the clearance zone is larger than 5 km, at least one dedicated PSO vessel (with at least three on-duty PSOs) and an aerial platform (with at least two on-duty PSOs) must be used. Clearance zone size is measured using the radial distance from the UXO/MEC to be detonated;
(8) LOA Holder must utilize NMFS-approved PAM systems, as described in the PAM Plan see § 217.274(c)(16));
(9) LOA Holder must deploy at least a double big bubble curtain during all UXO/MEC detonations. The double bubble curtain must be deployed at a distance that avoids damage to the hose nozzles:
(i) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the UXO/MEC detonation location throughout the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iii) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(iv) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each UXO/MEC is detonated. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each UXO/MEC detonation; and
(v) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (e)(9) of this section must occur prior to UXO/MEC detonation.
(10) LOA Holder must conduct SFV during all UXO/MEC detonations as described in (c)(14) of this section and deploy a pressure transducer;
(11) Clearance zones must be fully visible for at least 60 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes prior to detonation. PAM must also be conducted for at least 60 minutes and the zone must be acoustically cleared during this time. If a marine mammal is observed entering or within the clearance zone prior to denotation, the activity must be delayed. Detonation may only commence if all marine mammals have been confirmed to have voluntarily left the clearance zones and been visually confirmed to be beyond the clearance zone, or when 15 minutes have elapsed without any redetections of odontocetes (excluding sperm whales) and pinnipeds, or 30 minutes have elapsed without any redetections of sperm and baleen whales (including the North Atlantic right whale); or
(12) For UXO/MEC detonations, LOA Holder must follow all measures described in (c)(8)(ii) through (vi) and (c)(14)(i) through (x), of this section as applicable, as well as the measures below:
(i) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for UXO/MEC detonations. If any of the interim SFV measurement reports submitted for any UXO/MEC detonations indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation for future detonations will be exceeded, then LOA Holder must implement additional sound attenuation measures on all subsequent UXO/MEC detonations, including but not limited to the deployment of additional noise abatement systems (NAS) to assist in achieving measurements in alignment with the modeled ranges. LOA Holder must also increase clearance zone sizes to those identified by NMFS until SFV measurements on UXO/MECs demonstrate distances to harassment thresholds will be met or will be less than those modeled assuming 10-dB of attenuation. LOA Holder must operate fully functional sound attenuation systems (e.g., ensure hose maintenance, pressure testing) to meet noise levels modeled, assuming 10 dB attenuation, for UXO/MECs of the same charge weight or else no detonation activities may occur until NMFS and LOA Holder can evaluate the situation and ensure future UXO/MEC detonations do not exceed noise levels modeled, assuming 10-dB attenuation;
(ii) LOA Holder must submit a SFV Plan for UXO/MEC detonation to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation activities and abide by the Plan if approved. The SFV Plan must include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for UXO/MEC detonation cannot occur until NMFS approves the SFV Plan for this activity;
(iii) LOA Holder must submit a UXO/MEC Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation, respectively, and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any UXO/MEC detonations. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all UXO/MEC detonations. The Plan must include final UXO/MEC detonation project design (e.g., number and type of UXO/MECs, removal method(s), charge weight(s), anticipated start date, etc.) and all information related to PAM and PSO monitoring protocols for UXO/MEC activities. The Plan must detail all plans and procedures for sound attenuation as well as for monitoring marine mammals during all UXO/MEC detonations. No UXO/MEC detonations can occur without NMFS' approval of the Plan; and
(iv) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of UXO/MEC detonations and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No UXO/MEC detonations can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(f) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in § 217.275(e) conducted by PSOs, as described in § 217.275(b);
(2) LOA Holder must utilize PSO(s), as described in § 217.275(e);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) LOA Holder is required to ramp-up acoustic sources prior to commencing full power, unless the equipment operates on a binary on/off switch, and ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA;
(6) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time must not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes immediately prior to the initiation of ramp-up or activation (pre-start clearance). LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone. During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(10) of this section;
(7) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(8) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(9) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up of acoustic sources may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for odontocetes (excluding sperm whales) and pinnipeds, and 30 minutes for sperm and baleen whales, including North Atlantic right whales;
(10) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations are allowed to commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(11) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone. In cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations are allowed to continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (f)(11) is detected in the shutdown zone;
(12) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes for odontocetes (excluding sperm whales) and pinnipeds, or 30 minutes for sperm and baleen whales, including North Atlantic right whales, have elapsed with no further sighting;
(13) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (f)(11) of this section is detected in the shutdown zone; and
(14) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(g) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder must implement the following “move-on” rule: if marine mammals are sighted within 1 nmi of the planned location and 15 minutes before gear deployment, then LOA Holder must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder must move again or skip the station;
(3) If a marine mammal is at risk of interacting with gear after it is deployed or set, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort by trained lookouts during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval);
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn (3.5 mph);
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(9) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(10) Baited remote underwater video (BRUV) sampling must limit soak duration to 60 minutes or less, BRUVs must use a weighted line attached to surface and subsurface buoys that must hold a stereo-camera system in the water column and a system at the seafloor, and the vessel must remain on location with the gear while it is in use;
(11) Each chevron trap must have a vertical buoy line and must limit soak duration to 90 minutes or less;
(12) All fishery survey-related buoy lines must include the breaking strength of all lines being less than 1,700 pounds (771 kg). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs; or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs;
(13) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(14) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(15) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and
(16) All reasonable efforts that do not compromise human safety must be undertaken to recover gear.
[88 FR 72659, Oct. 20, 2023; 88 FR 78674, Nov. 16, 2023]
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, and must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes, but is not limited to, previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys or previous work experience as a PSO/PAM operator;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in 217.275(b)(6) and 217.275(b)(7) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). Lead PSO or PAM operators must be unconditionally approved and have a minimum of 90 days in an northwestern Atlantic Ocean offshore environment performing the role (either visual or acoustic), with the conclusion of the most recent relevant experience not more than 18 months previous. A conditionally approved PSO or PAM operator must be paired with an unconditionally approved PSO or PAM operator;
(7) PSOs for cable landfall construction (i.e., vibratory pile installation and removal, pneumatic hammering) and HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation and UXO/MEC activities must be unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable, for each activity (e.g., impact pile driving, vibratory pile driving, UXO/MEC detonation activities, and HRG surveys) must be designated as the Lead PSO or Lead PAM operator;
(9) LOA Holder must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems and detecting and identifying Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and how to deconflict them from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, not detected and similar terminology must be used across companies/projects; where localization of sounds or deriving bearings and distance are possible, the PAM operators need to have demonstrated experience using this technique; PAM operators must be independent observers (i.e., not construction personnel); PAM operators must demonstrate experience with relevant acoustic software and equipment; PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; PAM operators must be able to test software and hardware functionality prior to operation; and PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available from the National Centers for Environmental Information (NCEI) and provide evaluation/performance metric;
(12) PAM operators must be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods;
(13) PSOs may work as PAM operators and vice versa, with NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively; and
(14) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO provider and Project compliance representative(s) prior to the start of in-water project activities (e.g., HRG surveys, foundation installations, cable landfall activities, UXO/MEC detonations).
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following impact pile driving, vibratory pile driving, pneumatic hammering, UXO/MEC detonation activities, and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) For foundation installation and UXO/MEC detonation, PSOs must visually clear (i.e., confirm no observations of marine mammals) the entire minimum visibility zone for a full 30 minutes immediately prior to commencing activities. For cable landfall activities (i.e., cofferdams, casing pipes, and goal posts) and HRG surveys, which do not have a minimum visibility zone, the entire clearance zone must be visually cleared and as much of the Level B harassment zone as possible;
(3) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore, the PAM operator(s) must assist PSOs in ensuring full coverage of the clearance and shutdown zones. The PAM operator must monitor the PAM monitoring zone for large whales;
(4) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s), PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., possible, probable detection) in the determination. All on-duty PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving or UXO/MEC detonation) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel;
(5) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system (e.g., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(6) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation and UXO/MEC detonations, at least two PSOs on the pile driving and detonation-dedicated PSO vessel must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control); these must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) and use a NMFS-approved PAM system to conduct monitoring. PAM systems are approved through the PAM Plan, as described in § 217.274(c)(16);
(7) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (i.e., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS; and
(8) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period. If the schedule includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between watches must be allowed.
(c) PSO and PAM operator requirements during WTG and OSS foundation installation and UXO/MEC detonations. The following measures apply to PSOs and PAM operators during WTG and OSS foundation installation and UXO/MEC detonations and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving and UXO/MEC detonation activities. If PSOs cannot visually monitor the minimum visibility zone prior to impact pile driving or the clearance zone prior to any UXO/MEC detonation at all times using the equipment described in paragraphs (b)(6) and (b)(7) of this section, pile-driving operations or UXO/MEC detonation must not commence or must shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing from the activity platform during impact pile driving or UXO/MEC detonation and at least three on-duty PSOs must be stationed on each dedicated PSO vessel. If an aerial platform is required or used (see § 217.274(e)(7)), at least two on-duty PSOs must be actively searching for marine mammals. Concurrently, at least one PAM operator per acoustic data stream (equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before, during, and 30 minutes after impact pile driving or UXO/MEC detonation in accordance with a NMFS-approved PAM Plan; and
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving or UXO/MEC detonation activities. The PAM operator must review all detections from the previous 24-hr period immediately prior to impact pile driving and UXO/MEC detonation activities.
(d) PSO requirements during cofferdam, casing pipe, and goal post installation and removal. The following measures apply to PSOs during cofferdam, casing pipe, and goal post installation and removal and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams, casing pipes, and goal posts; and
(2) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles (and casing pipe, if installed), and for 30 minutes after all vibratory pile driving and pneumatic hammering activities have ceased. Sheet pile or casing pipe installation must only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to initiation of vibratory pile driving and pneumatic hammering.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using acoustic sources that have the potential to result in harassment and must be implemented by LOA Holder:
(1) Between 4 and 6 PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on activity duty monitoring during HRG surveys conducted at night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Monitoring requirements during fisheries monitoring surveys. The following measures apply during fisheries monitoring surveys and must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use, and for 15 minutes after haul back.
(g) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any on-water project activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., vibratory installation/removal, impact pile driving, construction survey), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOA issued under §§ 217.276 and 217.277;
(4) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; details on the deployment of PSOs; a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday-Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(5) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMSI number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates;
(6) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (e.g., days and duration of impact and vibratory pile driving, days and number of UXO/MEC detonations, days and amount of HRG survey effort); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., impact pile driving, and UXO/MEC detonations); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process;
(7) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final;
(8) For those foundation piles and UXO/MEC detonations requiring SFV measurements, LOA Holder must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event and each UXO/MEC detonation event as soon as they are available and prior to a subsequent detonation or foundation installation, but no later than 48 hours after each completed foundation installation event and 48 hours after a detonation. The report must include, at minimum: hammer energies/schedule used during pile driving, including, the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95% SEL and R95% SPLrms) to compare with the real-world sound field measurements; the estimated UXO/MEC charge size (or physical size if charge size is unknown) and donor charge size in trinitrotoluene (TNT) equivalent weight for either high (donor charge used to detonate/destroy UXO/MEC) or low order (e.g., deflagration where donor charge disrupts/consumes UXO/MEC) detonations and description of UXO/MEC (e.g., munition type, state of submergence, approximate age); peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and UXO/MEC and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(9) The final results of SFV measurements from each foundation installation and all UXO/MEC detonation must be submitted as soon as possible, but no later than 90 days following completion of SFV measurements for each activity. The final reports must include all details prescribed above for the interim report as well as, at minimum, the following: the peak sound pressure level (SPLpk), the root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), the single strike sound exposure level (SELss), the integration time for SPLrms, the spectrum, and the 24-hour cumulative SEL extrapolated from measurements at all hydrophones. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations must be reported; the sound levels reported must be in median, arithmetic mean, and L5 (95 percent exceedance) (i.e., average in linear space), and in dB; range of TL coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation and UXO/MEC detonation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the charge weights and other relevant characteristics of UXO/MEC detonations; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile and UXO/MEC where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile and UXO/MEC charge; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile and/or UXO/MEC, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. The final results of SFV measurements during wind turbine operations must include source levels at 10 m from the foundation; received levels at 50 m, 100 m, and 250 m from the foundation; operational parameters (i.e., direct drive/gearbox information, turbine rotation rate); sea state conditions, and any nearby anthropogenic activities;
(10) If at any time during the project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven (or UXO/MEC is detonated), whichever comes first;
(11) If a North Atlantic right whale is acoustic detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template;
(12) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days after conclusion of activities requiring PAM for mitigation. Reporting must use the webform templates on the NMFS Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. The full acoustic recordings from all real-time hydrophones must also be sent to the NCEI for archiving within 90 calendar days after pile driving has ended and instruments have been pulled from the water;
(13) LOA Holder must submit situational reports if the following circumstances occur (including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours):
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If calling NMFS is not possible, reports can also be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (http://www.whalealert.org/). The sighting report must include the time, date, and location of the sighting, number of whales, animal description/certainty of sighting (provide photos/video if taken), Lease Area/project name, PSO/personnel name, PSO provider company (if applicable), and reporter's contact information;
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report must be sent to NMFS Greater Atlantic Regional Fisheries (nmfs.gar.incidental-take@noaa.gov), NMFS Office of Protected Resources, and NMFS Northeast Fisheries Science Center (ne.rw.survey@noaa.gov) within 24 hours with the above information and the vessel/platform from which the sighting was made, activity the vessel/platform was engaged in at time of sighting, project construction and/or survey activity at the time of the sighting (e.g., pile driving, cable installation, HRG survey), distance from vessel/platform to sighting at time of detection, and any mitigation actions taken in response to the sighting;
(iii) If an observation of a large whale occurs during vessel transit, LOA Holder must report the time, date, and location of the sighting; the vessel's activity, heading, and speed (knots); Beaufort sea state; water depth (meters); visibility conditions; marine mammal species identification to the best of the observer's ability and any distinguishing characteristics; initial distance and bearing to marine mammal from vessel and closest point of approach; and any avoidance measures taken in response to the marine mammal sighting;
(iv) LOA Holder must provide NMFS Office of Protected Resources with notification of planned UXO/MEC detonation as soon as possible but at least 48 hours prior to the planned detonation, unless this 48-hour notification would create delays to the detonation that would result in imminent risk of human life or safety. This notification must include the coordinates of the planned detonation, the estimated charge size, and any other information available on the characteristics of the UXO/MEC. If any UXO/MEC detonation occurs, within 72 hours after a detonation but before the next detonation, whichever is sooner, LOA Holder must report to NMFS Office of Protected Resources the time, date, location (latitude/longitude Decimal Degrees), charge weight size, justification on why detonation was necessary and other means of removal or avoidance could not occur, all detections of marine mammals within the UXO/MEC zones, and any mitigative action taken;
(v) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic Regional Fisheries Office (GARFO) (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS Southeast Regional Office (SERO)(secmammalreports@noaa.gov) as soon as feasible. The report (via phone or email) must include contact (name, phone number, etc.), the time, date, and location of the first discovery (and updated location information if known and applicable); Species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; if available, photographs or video footage of the animal(s); and general circumstances under which the animal was discovered; and
(vi) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if other project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS SERO (secmammalreports@noaa.gov). The report must include the time, date, and location of the incident; species identification (if known) or description of the animal(s) involved; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); status of all sound sources in use; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; estimated size and length of animal that was struck; description of the behavior of the marine mammal immediately preceding and following the strike; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and, to the extent practicable, photographs or video footage of the animal(s). LOA Holder must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources; and
(14) LOA Holder must report any lost gear associated with the fishery surveys to the NMFS GARFO Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed November 19, 2028, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.277.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking is consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) A LOA issued under § 217.276, and this section for the activities identified in § 217.270(c) shall be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS Office of Protected Resources determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and
(2) NMFS Office of Protected Resources may, if appropriate, publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under § 217.276 or this section for the activities identified in § 217.270(c) may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS Office of Protected Resources shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.272 and 217.276 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 11418, Feb. 14, 2024, unless otherwise noted.
At 89 FR 11418, Feb. 14, 2024, subpart CC was added to part 217, effective Feb. 22, 2024, through Feb. 21, 2029.
(a) Regulations in this subpart apply to activities associated with the Empire Wind Project (hereafter referred to as the “Project”) by Empire Offshore Wind, LLC (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0512 Commercial Lease of Submerged Lands for Renewable Energy Development, two export cable routes, and two sea-to-shore transition points located at South Brooklyn Marine Terminal, in Brooklyn, NY (Empire Wind 1), and Long Island, NY (Empire Wind 2).
(c) The specified activities are impact pile driving of up to 147 wind turbine generator (WTGs) and up to two offshore substation (OSSs) foundations; impact and vibratory pile driving associated with cable landfall construction and marina activities; high-resolution geophysical (HRG) site characterization surveys; vessel transit within the specified geographical region to transport crew, supplies, and materials; WTG operation; fishery and ecological monitoring surveys; placement of scour protection; and trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines.
The regulations in this subpart are effective from February 22, 2024, through February 21, 2029.
Under the LOA, issued pursuant to §§ 216.106 and 217.286, LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the vicinity of BOEM Lease Area OCS-A 0512 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the two sea-to-shore transition points located at the South Brooklyn Marine Terminal, in Brooklyn, NY (Empire Wind 1), and Long Island, NY (Empire Wind 2), in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving (WTG and OSS foundation installation), impact and vibratory pile driving during cable landfall and marina activities, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving of WTG and OSS foundations;
(c) Take by mortality (death) or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| North Atlantic right whale | Eubalaena glacialis | Western North Atlantic. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic, offshore. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic, coastal. |
| Short-beaked common dolphin | Delphinus delphis | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
| Harp seal | Pagophilus groenlandicus | Western North Atlantic. |
Except for the takings described in § 217.282 and authorized by an LOA issued under § 217.286 or § 217.287, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 217.286 or § 217.287;
(b) Take any marine mammal not specified in § 217.282(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.282(d), after NMFS Office of Protected Resources determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.280(c) within the area described in § 217.280(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under § 217.286 or § 217.287. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the Project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to, and when conducting, any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s). The marine mammal monitoring team must monitor these systems no less than every 4 hours;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual detection by a PSO or acoustic detection by PAM operators at any distance (where applicable for the specified activities) must trigger a delay to the commencement of pile driving and HRG surveys;
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation, unless a PSO or PAM operator confirms it is another type of whale;
(7) The LOA Holder must instruct all vessel personnel regarding the authority of the PSO(s). If a delay to commencing an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO, PAM operator, and the activity operator regarding delays or shutdowns would only be discussed after the mitigative action has occurred;
(8) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to beginning a specified activity, the activity must be delayed. If the activity is ongoing, it must be shut down immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species with no further sightings;
(9) Any marine mammals observed within a clearance or shutdown zone must be allowed to remain in the area (i.e., must leave of their own volition) prior to commencing pile driving activities or HRG surveys;
(10) For in-water construction heavy machinery activities listed in § 217.280(c), if a marine mammal is on a path towards or comes within 10 meters (m) (32.8 feet) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS Office of Protected Resources;
(12) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures, unless an emergency situation presents a threat to the health, safety, or life of a person or when a vessel, actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, requires speeds in excess of 10 knots (kn) (18.5 kilometers per hour (km/hr)) to fulfill those responsibilities, while in the specified geographical region. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm. All vessel speeds are referenced to speed over ground:
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the Project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS;
(2) All vessel operators must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) All underway vessels operating at any speed, transiting within the specified geographic area (i.e., the Mid-Atlantic Bight), must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Dedicated visual observers may be third-party observers (i.e., NMFS-approved PSOs) or trained crew members, as defined in paragraph (b)(1) of this section. Dedicated visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must not have any other duties while observing and must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart;
(4) All vessel operators and/or the dedicated visual observer on each transiting vessel must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or dedicated visual observer(s) must also monitor the Project's Situational Awareness System (if applicable), WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) Any large whale sighting by any project-personnel must be immediately communicated to all project-associated vessels;
(6) All vessel operators must abide by existing applicable vessel speed rule regulations at 50 CFR part 224 (nothing in this subpart exempts vessels from any other applicable marine mammal speed and approach regulations);
(7) Vessels must not travel over 10 kn (18.5 km/hr) from November 1 through April 30, annually, in the specified geographic region, within any active North Atlantic right whale Slow Zone (i.e., DMAs or acoustically-triggered slow zone);
(8) If vessel(s) are traveling at speeds greater than 10 kn (18.5 km/hr) (i.e., no speed restrictions are enacted) in a transit corridor (defined as from a port to the Lease Area or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM detection within or approaching the transit corridor, all vessels in the transit corridor must travel at 10 kn (18.5 km/hr) or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(9) All vessel operators, regardless of their vessel's size, must immediately reduce speed to 10 kn (18.5 km/hr) or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project Area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (refer back to paragraph (b)(4) of this section) within 10 km (6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 kn (18.5 km/hr) or less for 24 hours following the reported detection;
(10) All vessel operators, regardless of their vessel's size, must immediately reduce speed to 10 kn (18.5 km/hr) or less when any large whale (other than a North Atlantic right whale- refer back to paragraph (b)(7) of this section), mother/calf pairs, or large assemblages of cetaceans are sighted within 500 m of a transiting vessel;
(11) All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn (18.5 km/hr) or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph (b)(11);
(12) All vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, the vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(13) All vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, the vessel must shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(14) When a marine mammal(s) is sighted while the vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area);
(15) All vessels underway must not divert or alter course to approach any marine mammal;
(16) Vessel operators must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, Seasonal Management Areas (SMAs), Slow Zones) and any information regarding North Atlantic right whale sighting locations; and
(17) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels must travel at speeds of 10 kn (18.5 km/hr) or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan.
(c) WTG and OSS foundation installation. The following requirements apply to impact pile driving activities associated with the installation of WTG and OSS foundations:
(1) Foundation pile driving must not occur January 1 through April 30, annually. Foundation pile driving must not be planned and must be avoided to the maximum extent practicable in December; however, it may occur if necessary to complete the Project with prior approval by NMFS. Empire Wind must notify NMFS in writing by September 1 of that year that circumstances are expected to necessitate pile driving in December;
(2) Monopiles must be no larger than 11 m in diameter. Hammer energies must not exceed 5,500 kilojoules (kJ) for monopile installation. No more than two monopiles may be installed per day. Pin piles must be no larger than 2.5 m in diameter. Hammer energies must not exceed 3,200 kJ for pin pile installation. No more than three pin piles may be installed per day;
(3) LOA Holder must only perform foundation pile driving during daylight hours, defined as no later than 1.5 hours prior to civil sunset and no earlier than 1 hour after civil sunrise, and may only continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability and an Alternative Monitoring Plan, as part of the Pile Driving and Marine Mammal Monitoring Plan for Nighttime Pile Driving that reliably demonstrates the efficacy of their night vision methods, has been approved by NMFS. No new pile driving may begin when pile driving continues into darkness;
(4) LOA Holder must utilize a soft-start protocol as described in the LOA. Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(5) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance from the pile being driven. PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving. At least one PAM operator must review data from at least 24 hours prior to pile driving and actively monitor hydrophones for 60 minutes prior to pile driving, at all times during pile driving, and for 30 minutes after pile driving. The entire minimum visibility zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for a full 60 minutes immediately prior to commencing impact pile driving. All clearance zones must be confirmed to be free of marine mammals for 30 minutes immediately prior to the beginning of soft-start procedures. PAM operators must immediately communicate all detections of marine mammals at any distance to the Lead PSO, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination. If a marine mammal is detected within, or is about to enter, the applicable clearance zones, during this 30-minute period, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(6) For North Atlantic right whales, any visual observation by a protected species observer at any distance or acoustic detection within the PAM Monitoring Zone must trigger a delay to the commencement of pile driving. The North Atlantic right whale clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred during the 60-minute monitoring period. Any large whale sighting by a PSO or detected by a PAM operator that cannot be identified as a non-North Atlantic right whale must be treated as if it were a North Atlantic right whale;
(7) LOA Holder must deploy at least two functional noise attenuation devices that reduce noise levels to the modeled harassment isopleths, assuming 10-decibels (dB) attenuation, during all foundation pile driving, and comply with the following measures:
(i) A single bubble curtain must not be used;
(ii) The bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtains must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtains must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed; and
(vi) Corrections to the bubble rings to meet the performance standards in this paragraph (c)(7) must occur prior to impact pile driving of monopiles. For any noise mitigation device in addition to the bubble curtains, LOA Holder must inspect and carry out appropriate maintenance on the system and ensure the system is functioning properly prior to every pile driving event;
(8) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph (c)(15) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km (6.2 mi);
(9) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.285(c). At least three on-duty PSOs must be on every impact pile driving platform(s);
(10) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is a risk of pile refusal or pile instability. If pile driving is not shutdown in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see 217.285(f));
(11) A visual observation or acoustic detection of a North Atlantic right whale at any distance by foundation installation PSOs or an acoustic detection within 10 km triggers shutdown requirements under paragraph (c)(10) of this section. If pile driving has been shut down due to the presence of North Atlantic right whales, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected by pile driving PSOs and PAM operators for 30 minutes;
(12) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability or to avoid pile refusal, at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(13) LOA Holder must conduct thorough sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations. SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 dB of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional piles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.). In addition to thorough SFV monitoring, LOA Holder also must conduct abbreviated SFV for all foundations, using at least one acoustic recorder for every foundation for which thorough SFV monitoring is not conducted:
(i) Thorough SFV measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;
(v) LOA Holder must be prepared with additional equipment (e.g., hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(vi) LOA Holder must submit interim reports within 48 hours after each foundation is measured (see § 217.285(f) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted for the first three monopiles indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional sound attenuation measures on all subsequent foundations. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. LOA Holder must optimize the sound attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future piles must not exceed noise levels modeled assuming 10-dB attenuation;
(viii) If, after additional measurements conducted pursuant to requirements of paragraph (c)(13)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation;
(ix) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in this paragraph (c)(13), with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(x) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity;
(14) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the Plan; and
(15) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cable landfall construction and marina activities. The following requirements apply to cable landfall and marina construction activities:
(1) Installation and removal of cofferdams and goal posts must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam and goal post being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in § 217.285(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after impact and vibratory pile driving associated with cofferdam and casing pipe installation and removal and marine activities; and
(4) If a marine mammal is observed entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving. LOA Holder must stop pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the next available weekly report (as described in § 217.285(f)).
(5) Pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability.
(e) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.285(e);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements in this subpart, those BMPs supersede the requirements in this subpart;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) Prior to starting the survey and after receiving confirmation from the PSO, that the clearance zone is clear of any marine mammals, LOA Holder is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the equipment operates on a binary on/off switch (in which case ramp-up is not required). LOA Holder must also ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA;
(6) Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(7) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zone must be visible, except as indicated in paragraph (e)(13) of this section;
(8) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(9) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(10) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(11) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other species;
(12) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations would be allowed to commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(13) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (e)(13) is detected in the shutdown zone;
(14) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes for small odontocetes and seals or 30 minutes for all other marine mammals have elapsed with no further sighting;
(15) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (e)(13) of this section is detected in the shutdown zone; and
(16) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be repeated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(17) If multiple HRG vessels are operating concurrently, any observations of marine mammals must be communicated to PSOs on all nearby survey vessels.
(f) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following “move-on” rule: if marine mammals are sighted within 1 nmi (1.85 km) of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;
(3) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, LOA Holder will take the most appropriate action to avoid marine mammal interaction;
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) Trawl tows must be limited to a maximum of a 20-minute trawl time;
(7) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(8) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(9) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the Atlantic Large Whale Take Reduction Plan regulations at § 229.32, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(10) All captains and crew conducting fishery surveys will be trained in marine mammal detection and identification. Marine mammal monitoring will be conducted by the captain and/or a member of the scientific crew before (within 1 nmi (1.85 km) and 15 minutes prior to deploying gear), during, and after haul back;
(11) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage);
(12) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear; and
(13) Any lost gear associated with the fishery surveys must be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division within 24 hours.
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternative experience that may be considered includes, but is not limited to: previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator. All PSOs and PAM operators should demonstrate good standing and consistently good performance of all assigned duties;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(4) and (5) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). Lead PSO or PAM operators must be unconditionally approved and have a minimum of 90 days in a northwestern Atlantic Ocean offshore environment performing the role (either visual or acoustic), with the conclusion of the most recent relevant experience not more than 18 months previous. A conditionally approved PSO or PAM operator must be paired with an unconditionally approved PSO or PAM operator;
(7) PSOs for cable landfall construction, marina activities, and HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation activities must be unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable, for each activity (e.g., impact pile driving, vibratory pile driving, and HRG surveys) must be designated as the Lead PSO or Lead PAM operator. The Lead PSO should be unconditionally approved for Tiers 1-3;
(9) LOA Holder must submit NMFS previously approved PSO and PAM operator resumes to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training and include which specific roles and activities the PSOs/PAM operators are being requested for. PAM operator experience must also include the information described in paragraph (a)(11) of this section;
(11) PAM operators are responsible for obtaining NMFS' approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior large whale PAM experience with real-time acoustic detection systems and/or have completed specialized training for the PAM system(s) that will be used for the Project; PAM operators must demonstrate they are able to detect and identify Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and that they are able to deconflict humpback whale sounds from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, or not detected; where localization of sounds or deriving bearings and distance are possible, the PAM operators need to have demonstrated experience in the localization of sounds or deriving bearings and distance; PAM operators must be independent observers (i.e., not construction personnel); PAM operators must demonstrate experience with relevant acoustic software and equipment; PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; PAM operators must be able to test software and hardware functionality prior to operation; and PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available at National Centers for Environmental Information (NCEI) and provide evaluation/performance metrics;
(12) PAM operators must be able to review and classify acoustic detections in near real-time prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods; and
(13) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively.
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore. The PAM operator(s) must assist PSOs in ensuring full coverage of the clearance and shutdown zones. The PAM operator must monitor to and past the clearance zone for large whales;
(2) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s), PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., detected, possibly detected, not detected) in the determination. All on-duty PSOs and PAM operator(s) must remain in real-time contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel;
(3) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system (i.e., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(4) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least three PSOs on the pile driving and any dedicated PSO vessel that may be used must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control). These must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. A minimum of 3 PSOs must be active on a dedicated PSO vessel or an alternate monitoring technology (e.g., UAS) must be used that has been demonstrated as having greater visual monitoring capability compared to 3 PSOs on a dedicated PSO vessel and is approved by NMFS. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) and use a NMFS-approved PAM system to conduct monitoring. PAM systems are approved through the PAM Plan as described in § 217.284(c)(15);
(5) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (i.e., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS;
(6) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(7) Any PSO has the authority to call for a delay or shutdown of project activities;
(8) Any visual observations of ESA-listed marine mammals must be communicated immediately to PSOs and vessel captains associated with other vessels to increase situational awareness; and
(9) LOA Holder personnel and PSOs are required to use available sources of information on North Atlantic right whale presence to aid in monitoring efforts. These include daily monitoring of the Right Whale Sightings Advisory System, consulting of the WhaleAlert app, and monitoring of the Coast Guard's VHF Channel 16 throughout the day to receive notifications of any sightings and information associated with any Dynamic Management Areas, to plan construction activities and vessel routes, if practicable, to minimize the potential for co-occurrence with North Atlantic right whales.
(c) PSO and PAM operator requirements during WTG and OSS foundation installation. The following measures apply to PSOs and PAM operators during WTG and OSS foundation installation and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving activities. If PSOs cannot visually monitor the minimum visibility zone prior to foundation pile driving at all times using the equipment described in paragraphs (b)(4) and (5) of this section, pile-driving operations must not commence or must shutdown if they are currently active. Foundation pile driving may only commence when the minimum visibility zone is fully visible (e.g., not obscured by darkness, rain, fog, etc.) and the clearance zones are clear of marine mammals for at least 30 minutes, as determined by the Lead PSO, immediately prior to the initiation of impact pile driving;
(2) At least three on-duty PSOs must be stationed on each vessel-based observer platform. If an aerial platform is used (per § 217.284(e)(7)), at least two on-duty PSOs must be actively searching for marine mammals. Concurrently, at least one PAM operator per acoustic data stream (i.e., equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before and during, and 30 minutes after impact pile driving in accordance with a NMFS-approved PAM Plan; and
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving activities.
(d) PSO requirements during cable landfall construction activities. The following measures apply to PSOs during cable landfall construction activities and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities related to cable landfall construction. These PSOs must be located at the best vantage points for observing marine mammals;
(2) PSOs must ensure that there is appropriate visual coverage for the entire clearance and shutdown zones and as much of the Level B harassment zone as possible; and
(3) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before and throughout pile driving, and for 30 minutes after all pile driving activities have ceased. Pile driving must only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to initiation of pile driving.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using acoustic sources that have the potential to result in harassment (i.e., Compressed High Intensity Radiated Pulse (CHIRPs), boomers, and sparkers) and must be implemented by LOA Holder:
(1) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on active duty monitoring during HRG surveys conducted at night;
(2) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(3) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(4) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any on-water project activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., vibratory installation/removal, impact pile driving, construction survey), use of any noise attenuation device(s), and the specific phase of the activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOA issued under § 217.286;
(4) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS: location of hydrophone (i.e., latitude longitude; in Decimal Degrees) and site name; bottom depth and depth of recording unit (in meters); recorder (model manufacturer) and platform type (i.e., bottom-mounted, electric glider, etc.), and instrument ID of the hydrophone and recording platform (if applicable); time zone for sound files and recorded date/times in data and metadata (in relation to UTC. i.e., EST time zone is UTC-5); duration of recordings (i.e., start/end dates and times; in ISO 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 format); recording schedule (must be continuous); hydrophone and recorder sensitivity (in dB re. 1µ Pa); calibration curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-rate of recordings; and detection range of equipment for relevant frequency bands (in meters). The following information must be reported for each detection: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (e.g., date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (i.e., detected, or possibly detected); comparison with any concurrent visual sightings, location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and the name(s) of PAM operator(s) on duty;
(i) For each detection, the following information the following information must be noted: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (e.g., date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (i.e., detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and the name(s) of PAM operator(s) on duty;
(ii) [Reserved]
(5) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; details on the deployment of PSOs; a record of all acoustic and visual detections of marine mammals; any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday to Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(6) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates;
(7) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (e.g., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why none were taken; operational details (e.g., days and duration of impact and vibratory pile driving, days and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., impact pile driving); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process. The final annual report must be prepared and submitted within 30 calendar days following the receipt of any comments from NMFS on the draft report. If no comments are received from NMFS within 60 calendar days of NMFS' receipt of the draft report, the report must be considered final;
(8) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 30 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 30 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final;
(9) For those foundation piles requiring thorough SFV measurements, LOA Holder must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to a subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include, at minimum: hammer energies/schedule used during pile driving, including the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95percent) to compare with the real-world sound field measurements; peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50), and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile, and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues; obstructions along the measurement transect; and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(10) LOA Holder must conduct abbreviated SFV for all foundation installations for which the complete SFV monitoring is not carried out (refer back to § 217.284(c)(13)), whereas a single acoustic recorder must be placed at an appropriate distance from the pile, in alignment with the completed Biological Opinion. All results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by LOA Holder, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(11) The final results of SFV measurements from each foundation installation must be submitted as soon as possible, but no later than 90 days following completion of each event's SFV measurements. The final reports must include all details prescribed above for the interim report as well as, at minimum, the following: the peak sound pressure level (SPLpk); the root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms); the single strike sound exposure level (SELss); the integration time for SPLrms; the spectrum; and the 24-hour cumulative SEL extrapolated from measurements at all hydrophones. The final report must also include at least the following: the maximum, mean, minimum, median (L50), and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations; the sound levels reported must be in median, arithmetic mean, and L5 (95 percent exceedance) (i.e., average in linear space), and in dB; range of TL coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile, etc.), and any action taken to adjust the noise abatement system. A discussion, which includes any observations which are suspected to have a significant impact on the results including but not limited to, observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices, must also be included in the final SFV report;
(12) If at any time during the Project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(13) If a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template;
(14) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the ISO standard metadata forms available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI) for archiving within 90 days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(15) LOA Holder must submit situational reports if the following circumstances occur (including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours):
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If calling NMFS is not possible, reports can also be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (https://www.whalealert.org/). The sighting report must include the time, date, and location of the sighting, number of whales, animal description/certainty of sighting (provide photos/video if taken), Lease Area/project name, PSO/personnel name, PSO provider company (if applicable), and reporter's contact information;
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report to NMFS Greater Atlantic Regional Fisheries (GARFO; nmfs.gar.incidental-take@noaa.gov), NMFS Office of Protected Resources, and NMFS Northeast Fisheries Science Center (NEFSC; ne.rw.survey@noaa.gov) within 24 hours with the above information and the vessel/platform from which the sighting was made, activity the vessel/platform was engaged in at time of sighting, project construction and/or survey activity at the time of the sighting (e.g., pile driving, cable installation, HRG survey), distance from vessel/platform to sighting at time of detection, and any mitigation actions taken in response to the sighting;
(iii) If a large whale (not including a North Atlantic right whale) is observed at any time by PSOs or project personnel during vessel transit, LOA Holder must report the sighting to the WhaleAlert app (https://www.whalealert.org/);
(iv) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov), as soon as feasible. The report (via phone or email) must include contact information (e.g., name, phone number, etc.), the time, date, and location of the first discovery (and updated location information if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; photographs or video footage of the animal(s) if available; and general circumstances under which the animal was discovered; and
(v) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if the Project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS SERO (secmammalreports@noaa.gov). The report must include: the time, date, and location of the incident; species identification (if known) or description of the animal(s) involved; vessel size and motor configuration (e.g., inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); status of all sound sources in use; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; estimated size and length of animal that was struck; description of the behavior of the marine mammal immediately preceding and following the strike; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and, to the extent practicable, photographs or video footage of the animal(s). LOA Holder must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources; and
(16) LOA Holder must report any lost gear associated with the fishery surveys to the NMFS GARFO Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA;
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed February 21, 2029, the expiration date of this subpart;
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.287;
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting;
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart; and
(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 217.282 and 217.286 or this section for the activity identified in § 217.280(a) shall be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS Office of Protected Resources determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and
(2) NMFS Office of Protected Resources may, if appropriate, publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 217.282 and 217.286 or this section for the activities identified in § 217.280(a) may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources may modify (e.g., delete, modify, or add to) the existing mitigation, monitoring, or reporting measures after consulting with LOA Holder regarding the practicability of the modifications, if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS Office of Protected Resources shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.282 and 217.286 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 4457, Jan. 23, 2024, unless otherwise noted.
At 89 FR 4457, Jan. 23, 2024, subpart DD was added to part 217, effective Feb. 5, 2024, through Feb. 4, 2029.
(a) Regulations in this subpart apply to activities associated with the Coastal Virginia Offshore Wind Commercial Project (hereafter referred to as the “Project”) by the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on the LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0483 Commercial Lease of Submerged Lands for Renewable Energy Development, one export cable route, and one sea-to-shore transition point located at the State Military Reservation in Virginia Beach, Virginia.
(c) The specified activities are vibratory and impact pile driving of wind turbine generator (WTGs) and offshore substation (OSSs) foundations; vibratory pile driving (install and subsequently removal) of cofferdams; impact pile driving (install and subsequently removal) of goal posts; fishery and ecological monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from OSSs to shore-based converter stations and inter-array cables between turbines; high-resolution geophysical (HRG) site characterization surveys; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operation.
The regulations in this subpart are effective from February 5, 2024, through February 4, 2029.
Under a LOA, issued pursuant to §§ 216.106 and 217.296, LOA Holder and those persons it authorizes or funds to conduct activities on its behalf may incidentally, but not intentionally, take marine mammals within BOEM Lease Area OCS-A 0483 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the sea-to-shore transition point located at the State Military Reservation in Virginia Beach, Virginia in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact and vibratory pile driving (WTG and OSS foundation installation), impact pile driving of goal posts, vibratory pile driving of temporary cofferdams, and HRG site characterization surveys; and
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving WTG and OSS foundations.
(c) Take by mortality or serious injury of any marine mammal species is not authorized.
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following stocks:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Pygmy sperm whale | Kogia breviceps | Western North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore. Southern Migratory Coastal. |
| Clymene dolphin | Stenella clymene | Western North Atlantic. |
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| False killer whale | Pseudorca crassidens | Western North Atlantic. |
| Melon-headed whale | Peponocephala electra | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Pantropical spotted dolphin | Stenella attenuata | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
Except for the takings described in § 217.292 and authorized by an LOA issued under §§ 217.296 or 217.297, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.296 or 217.297;
(b) Take any marine mammal not specified in § 217.292(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.292(d), after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.290(c) within the area described in § 217.290(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.296 or 217.297. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to and when conducting any in-water construction activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones (i.e., DMAs and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s). The marine mammal monitoring team must monitor these systems no less than every 4 hours;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual detection by a PSO or acoustic detection by PAM operators at any distance (where applicable for the specified activities) must trigger a delay to the commencement of pile driving and HRG surveys;
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) Any PSO has the authority to call for a delay or shutdown of project activities. If a delay to commencing an activity is called for by a PSO, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by a PSO, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO and the activity operator or between the Lead PSO and another PSO regarding delays or shutdowns must only be discussed after the mitigative action has occurred;
(8) Any marine mammals observed within a clearance or shutdown zone must be allowed to remain in the area (i.e., must leave of their own volition) prior to commencing pile driving activities or HRG surveys;
(9) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant clearance zone prior to beginning a specified activity, the activity must be delayed. If an activity is ongoing and individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant shutdown zone, the activity must be shut down (i.e., cease) immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left the clearance or shutdown zones and is on a path away from the applicable zone or after 15 minutes with no further sightings for small odontocetes and pinnipeds or 30 minutes with no further sightings for all other species;
(10) For in-water construction heavy machinery activities listed in § 217.290(c), if a marine mammal is on a path towards or comes within 10 meters (m; 32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(12) By accepting the LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures while in the specified geographic region, unless an emergency situation presents a threat to the health, safety, or life of a person, or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, and requires speeds in excess of 10 kn (11.5 miles per hour (mph)) to fulfill those responsibilities. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm. Speed over ground will be used to measure all vessel speeds:
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection and observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the vessel personnel's training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS within 30 days of completion of training;
(2) All vessel operators, operating at any speed and regardless of their vessel's size, must slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) All vessels, regardless of their size, operating at any speed must have a dedicated visual observer aboard and on duty at all times whose sole responsibility (i.e., must not have duties other than observing) is to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. These visual observers may be third-party observers (i.e., NMFS-approved PSOs; see § 217.295(a)) or trained crew members (see (b)(1) of this section);
(4) At the onset of transiting and continuously thereafter, vessel operators must monitor the U.S. Coast Guard VHF Channel 16, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the project's Situational Awareness System (if applicable), WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) Any large whale sighting by any project-personnel, including any LOA Holder staff, contractors, or vessel crew, must be immediately communicated to all project-associated vessel operators, PSOs, and PAM operators for situational awareness. Conversely, any large whale observation or detection via a sighting network (e.g., Mysticetus or similar software) by PSOs or PAM operators must be conveyed to vessel operators and crew. An ongoing large whale sighting log sheet must be maintained on each vessel and retained for vessel operator(s) review each day prior to first day's transit for awareness of recent sightings;
(6) All vessel operators must abide by existing applicable vessel speed regulations (see 50 CFR 224.105). Nothing in this subpart exempts vessels from any other applicable marine mammal speed or approach regulations. Vessels must not travel over 10 kn from November 1st through April 30th, annually, in the specified geographic region, and must transit at 10 kn or less within any active North Atlantic right whale Slow Zone (i.e., Dynamic Management Areas (DMAs) or acoustically-triggered slow zone);
(7) All vessel operators, regardless of their vessel's size, must immediately reduce vessel speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported by project personnel or via any of the monitoring systems (refer back to paragraph (b)(4) of this section) that vessel must operate at 10 kn (11.5 mph) or less for 24 hours following the reported detection;
(8) All vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale, mother/calf pairs, or large assemblages of cetaceans are observed within 500 m (0.31 mi) of an underway vessel;
(9) If vessel(s) are traveling at speeds greater than 10 kn (i.e., no speed restrictions are enacted) in the transit corridor (defined as from a port to the Lease Area or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM detection within or approaching the transit corridor, all vessels in the transit corridor must travel at 10 kn or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(10) All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel operator must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph (b)(7) of this section;
(11) All vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, the vessel must shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(12) All vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinoid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, the vessel must shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(13) When a marine mammal(s) is sighted while the vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(14) All vessels underway must not divert or alter course to approach any marine mammal;
(15) Vessel operators must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, Seasonal Management Areas, Slow Zones) and any information regarding North Atlantic right whale sighting locations; and
(16) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels in the vessel transit corridor. If a plan is not submitted and approved by NMFS prior to vessel operations, all project vessels must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan.
(c) WTG and OSS foundation installation. The following requirements apply to pile driving activities associated with the installation of WTG and OSS foundations:
(1) Vibratory and impact pile driving of foundation piles must not occur November 1st through April 30th, annually;
(2) Monopiles must be no larger than 9.5-m in diameter, representing the larger end of the tapered 9.5/7.5-m monopile design. Pin piles must be no larger than 2.8-m in diameter. During all monopile and pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules (kJ) for monopile installations and 3,000 kJ for pin pile installation. No more than two monopile foundation or two pin piles for jacket foundations may be installed per day;
(3) LOA Holder may initiate foundation pile driving (i.e., vibratory and impact) only from May 1st through October 31st, annually, in accordance with the NMFS-approved Pile Driving Plan;
(4) LOA Holder must only perform foundation pile driving during daylight hours, defined as no later than 1.5 hours prior to civil sunset and no earlier than 1 hour after civil sunrise, and may only continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability and an Alternative Monitoring Plan has been approved by NMFS. No new pile driving may begin when pile driving continues into darkness;
(5) LOA Holder must utilize a soft-start protocol at the beginning of foundation installation for each impact pile driving event. No soft-start for vibratory pile driving is necessary;
(6) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(7) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance around the pile being driven. Clearance monitoring must begin 60 minutes immediately prior to initiation of pile driving. If a marine mammal is detected within or about to enter the applicable clearance zones 30 minutes prior to the beginning of pile driving (including soft start if impact pile driving) or during pile driving, pile driving must be delayed or shutdown until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(8) For North Atlantic right whales, any visual observation or acoustic detection must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period;
(9) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all foundation pile driving:
(i) At least a double bubble curtain must be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed;
(vi) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(9) must occur prior to pile driving of foundation piles.
(vii) For any noise mitigation device in addition to the bubble curtain, LOA Holder must inspect and carry out appropriate maintenance on the system and ensure the system is functioning properly prior to every pile driving event.
(10) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph (c)(17) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (0.6 mi) to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km (6.2 mi);
(11) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.295(c). At least three on-duty PSOs must be on the pile driving platform. Additionally, two dedicated-PSO vessels must be used at least 60 minutes before, during, and 30 minutes after all pile driving, and each dedicated-PSO vessel must have at least three PSOs on duty during these time periods. LOA Holder may request NMFS approval to use alternative technology in lieu of one or two of the dedicated PSO vessels that provide similar marine mammal detection capabilities.
(12) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability. If pile driving is not shut down due to one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see 217.295(g));
(13) A visual observation at any distance from a PSO or acoustic detection of a North Atlantic right whale triggers shutdown requirements under paragraph (c)(12) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected for 30 minutes;
(14) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(15) LOA Holder must conduct sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations and for all three OSS foundations (for all 12 pin piles installed). SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 decibels (dB) of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.). SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges, including, at least, the modeled Level B harassment isopleth assuming 10 dB attenuation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone;
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis.
(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(vi) LOA Holder must submit interim reports within 48 hours after each foundation is measured (see § 217.295(g) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances on all subsequent foundations. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. In this situation, LOA Holder would be required to provide a proposed monitoring plan for expanded zones (per the Biological Opinion) that would detail the proposed expanded zones and any additional monitoring and mitigation that would be implemented. If the harassment zones are expanded beyond an additional 1,500 m (0.93 mi), additional PSOs must be deployed on additional platforms, with each observer responsible for maintaining watch in no more than 180 degrees and of an area with a radius no greater than 1,500 m.
(viii) LOA Holder must optimize the sound attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to, at least, meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future piles must not exceed noise levels modeled assuming 10-dB attenuation;
(ix) If, after additional measurements conducted pursuant to requirements of paragraph (15)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three WTG monopile foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation;
(x) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels and transmission loss rates, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in paragraph (c)(15) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(xi) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. This SFV Plan must also describe approaches that LOA Holder could take to adjust noise attenuation systems or add systems in the case that any SFV measurements obtained demonstrate that noise levels are above those modeled (assuming 10 dB of attenuation). Furthermore, the SFV Plan must also include how operational noise would be monitored. Operational parameters (e.g., direct drive information, turbine rotation rate) as well as sea state conditions and information on nearby anthropogenic activities (e.g., vessels transiting or operating in the area) must be reported. Additionally, the SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity.
(16) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include, at a minimum: the final pile driving project design (e.g., number and type of piles, hammer type, noise abatement systems, anticipated start date, etc.) and a description of all monitoring equipment and PAM operator and PSO protocols (including number and location of PSOs and PAM operators) for all foundation pile driving. No foundation pile installation can occur without NMFS' approval of the Plan; and
(17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cofferdam and goal post installation and removal. The following requirements apply to the installation and removal of cofferdams and goal posts at the cable landfall construction sites:
(1) Installation and removal of cofferdams and goal posts must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam and goal post being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in § 217.295(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory and impact pile driving associated with cofferdam and casing pipe installation, respectively;
(4) If a marine mammal(s) is observed entering or is observed within the clearance zones, before vibratory or impact pile driving has begun, the activity must not commence until the animal(s) has exited the zone or a specific amount of time has elapsed since the last sighting. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species;
(5) If a marine mammal is observed entering or within the respective shutdown zone after vibratory or impact pile driving has begun, the PSO must call for a shutdown of pile driving. LOA Holder must stop pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the annual report (as described in § 217.295(g)). In cases where shutdown is not feasible, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(6) Pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species; and
(7) LOA Holder must employ a soft-start for all impact pile driving of goal posts. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets.
(e) HRG surveys. The following requirements apply to HRG surveys operating sub- bottom profilers (SBPs) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPs)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.295(e);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, LOA Holder is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the equipment operates on a binary on/off switch (in which case ramp-up is not required). LOA Holder must also ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources.
(6) Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(7) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(12) of this section;
(8) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(9) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(10) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(11) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(12) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(13) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (f)(13) of this section is detected in the shutdown zone;
(14) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;
(15) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (f)(13) of this section is detected in the shutdown zone; and
(16) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(f) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys: using trap/pot gear:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nautical mile (nmi (1.2 mi)) of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;
(3) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) Unless using ropeless gear, LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval);
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn (3.5 mph);
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(9) All fishery survey-related lines must include the breaking strength of all lines being less than 1,700 pounds (lbs; 771 kilograms (kg)). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs; or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs;
(10) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(11) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(12) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and
(13) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes but is not limited to: previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator. All PSOs and PAM operators should demonstrate good standing and consistently good performance of all assigned duties;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(5) and (b)(6) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). A conditionally approved PSO or PAM operator must be paired with an unconditionally approved PSO or PAM operator;
(7) At least one on-duty PSO for each activity (e.g., foundation installation, cable landfall construction, and HRG surveys) must be designated as the Lead PSO. The Lead PSO must meet the minimum requirements described in 217.295(a)(2) through (5) and have a minimum of ninety days of at-sea experience working in the Northwest Atlantic Ocean and would be required to have no more than eighteen months elapsed since the conclusion of their last at-sea experience;
(8) PSOs for cable landfall construction (i.e., vibratory pile installation and removal) and HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation must be unconditionally approved;
(9) LOA Holder must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems and detecting and identifying Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and how to deconflict them from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, not detected and similar terminology must be used across companies/projects; where localization of sounds or deriving bearings and distance are possible, the PAM operators need to have demonstrated experience in using this technique; PAM operators must be independent observers (i.e., not construction personnel); PAM operators must demonstrate experience with relevant acoustic software and equipment; PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; PAM operators must be able to test software and hardware functionality prior to operation; and PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available at National Centers for Environmental Information (NCEI) and provide evaluation/performance metric;
(12) PAM operators must be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods;
(13) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively; and
(14) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO provider and Project compliance representative(s) prior to the start of in-water project activities (e.g., HRG survey, foundation installation, cable landfall activities etc.).
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following all impact pile driving, vibratory pile driving, and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore, but must have the appropriate equipment (i.e., computer station equipped with a data collection software system and acoustic data analysis software) available wherever they are stationed, and data or data products must be streamed in real-time or in near real-time to allow PAM operators to provide assistance to on-duty visual PSOs. During foundation installation activities, the PAM operator(s) must monitor to and past the clearance zone for large whales and would assist PSOs in ensuring full coverage of the clearance and shutdown zones;
(3) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s). PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., possible, probable detection) in the determination. All on-duty PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel;
(4) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system, (e.g., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(5) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least two PSOs on the pile driving-dedicated PSO vessel must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control); these must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) and use a NMFS-approved PAM system to conduct monitoring. PAM systems are approved through the PAM Plan as described in § 217.294(c)(17);
(6) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (i.e., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS;
(7) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period. If the schedule includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between watches must be allowed; and
(8) During daylight hours when equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(c) PSO and PAM operator requirements during WTG and OSS foundation installation. The following measures apply to PSOs and PAM operators during WTG and OSS foundation installation and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving. If PSOs cannot visually monitor the minimum visibility zone prior to pile driving at all times using the equipment described in paragraphs (b)(5) and (6) of this section, pile-driving operations must not commence or must shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing from the activity platform during pile driving and at least three on-duty PSOs must be stationed on each dedicated PSO vessel. Concurrently, at least one PAM operator per acoustic data stream (equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before, during, and 30 minutes after foundation pile driving in accordance with a NMFS-approved PAM Plan;
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving.
(d) PSO requirements during cable landfall construction. The following measures apply to PSOs during cofferdam and goal post installation and removal and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams and goal posts; and
(2) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles and casing pipe and for 30 minutes after all pile driving activities have ceased. Sheet pile or casing pipe installation must only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to initiation of pile driving.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using Compressed High Intensity Radiated Pulse (CHIRPs), boomers, and sparkers and must be implemented by LOA Holder:
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on active duty monitoring during HRG surveys conducted at night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Monitoring requirements during fisheries monitoring surveys. The following measures apply during fisheries monitoring surveys and must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use (unless using ropeless gear), and for 15 minutes after haul back.
(g) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any specified activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., pile driving, construction surveys), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOA issued under § 217.296;
(4) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS: location of hydrophone (latitude and longitude; in Decimal Degrees) and site name; bottom depth and depth of recording unit (in meters); recorder (model & manufacturer) and platform type (i.e., bottom-mounted, electric glider, etc.), and instrument ID of the hydrophone and recording platform (if applicable); time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST) time zone is UTC-5); duration of recordings (start/end dates and times; in International Organization for Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 format); recording schedule (must be continuous); hydrophone and recorder sensitivity (in dB re. 1 microPascal (µPa)); calibration curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-rate of recordings; and detection range of equipment for relevant frequency bands (in meters);
(i) For each detection, the following information the following information must be noted: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and name of PAM operator(s) on duty;
(5) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; details on the deployment of PSOs; a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday to Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(6) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates;
(7) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days, days and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., foundation pile driving); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process. The final annual report must be prepared and submitted within 30 calendar days following the receipt of any comments from NMFS on the draft report. If no comments are received from NMFS within 60 calendar days of NMFS' receipt of the draft report, the report must be considered final;
(8) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final;
(9) LOA Holder must provide the initial results of the complete SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to any subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include, at minimum: hammer energies/schedule used during pile driving, including, the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements; peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(10) LOA Holder must conduct abbreviated SFV for all foundation installations for which the complete SFV monitoring is not carried out, whereas a single acoustic recorder must be placed at an appropriate distance from the pile, in alignment with the completed Biological Opinion. All results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by LOA Holder, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(11) The final results of all SFV measurements from each foundation installation must be submitted as soon as possible, but no later than 90 days following completion of all annual SFV measurements. The final reports must include all details included in the interim report and descriptions of any notable occurrences, explanations for results that were not anticipated, or actions taken during foundation installation. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; range of transmission loss coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices;
(12) If at any time during the project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(13) If a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template;
(14) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the International Organization for Standardization (ISO) standard metadata forms available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI) for archiving within 90 days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(15) LOA Holder must submit situational reports if the following circumstances occur, including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours, in specific circumstances, including but not limited to the following:
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS, the U.S. Coast Guard, and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If circumstances arise where calling NMFS is not possible, reports must be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (http://www. whalealert.org/). The sighting report must include the time, date, and location of the sighting, number of whales, animal description/certainty of sighting (provide photos/video if taken), Lease Area/project name, PSO/personnel name, PSO provider company (if applicable), and reporter's contact information.
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report to NMFS Greater Atlantic Regional Fisheries (GARFO; nmfs.gar.incidental-take@noaa.gov), NMFS Office of Protected Resources, and NMFS Northeast Fisheries Science Center (NEFSC; ne.rw.survey@noaa.gov) within 24 hours with the above information and the vessel/platform from which the sighting was made, activity the vessel/platform was engaged in at time of sighting, project construction and/or survey activity at the time of the sighting (e.g., pile driving, cable installation, HRG survey), distance from vessel/platform to sighting at time of detection, and any mitigation actions taken in response to the sighting;
(iii) If a large whale other than a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must report the sighting to the WhaleAlert app (http://www.whalealert. org/);
(iv) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov); if in the Greater Atlantic region (Maine to Virginia), to NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov); if in the Southeast region (North Carolina to Florida), to NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov); and to the U.S. Coast Guard, as soon as feasible but within 24-hours. The report (via phone or email) must include contact (name, phone number, etc.), the time, date, and location of the first discovery (and updated location information if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; if available, photographs or video footage of the animal(s); and general circumstances under which the animal was discovered; and
(v) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS SERO (secmammalreports@noaa.gov). The report must include the time, date, and location of the incident; species identification (if known) or description of the animal(s) involved; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); status of all sound sources in use; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; estimated size and length of animal that was struck; description of the behavior of the marine mammal immediately preceding and following the strike; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and to the extent practicable, photographs or video footage of the animal(s). LOA Holder must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources; and
(16) Any lost gear associated with the fishery surveys will be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear. All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed February 4, 2029, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.297.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) An LOA issued under §§ 217.292 and 217.296 or this section for the activities identified in § 217.290(a) shall be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years), and
(2) NMFS may publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 217.292 and 217.296 or this section for the activities identified in § 217.290(a) may be modified by NMFS under the following circumstances:
(1) Through adaptive management, NMFS may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.292 and 217.296 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 78050, Sept. 24, 2024, unless otherwise noted.
At 89 FR 78050, Sept. 24, 2024, subpart EE was added to part 217, effective Jan. 1, 2025 through Dec. 31, 2029.
(a) This subpart applies to activities associated with the Atlantic Shores South Project (hereafter referred to as the “Project”) by Atlantic Shores Offshore Wind Project 1, LLC (i.e., Project Company 1), a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC (and a subsidiary of Atlantic Shores Offshore Wind LLC), collectively and hereafter referred to as the Letter of Authorization Holder, or “LOA Holder”, and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (hereafter, “BOEM”) lease areas on the Outer Continental Shelf (hereafter, “OCS”)-A-0499 and OCS-A-0570 Commercial Lease of Submerged Lands for Renewable Energy Development (hereafter, “Lease Areas”), two export cable routes, and two sea-to-shore transition points located at the Atlantic City and the Monmouth landfall locations.
(c) The specified activities are impact pile driving of wind turbine generators (hereafter, “WTG”), offshore substations (hereafter, “OSS”), and a meteorological tower (hereafter, “Met Tower”); vibratory pile driving (installation and subsequent removal) of cofferdams; fishery and ecological monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from OSSs to shore-based converter stations and inter-array cables between turbines; high-resolution geophysical (hereafter, “HRG”) site characterization surveys; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operation.
This subpart is effective from January 1, 2025, through December 31, 2029.
Under the LOA, issued pursuant to §§ 216.106 and 217.306, LOA Holder and those persons it authorizes or funds to conduct activities on its behalf may incidentally, but not intentionally, take marine mammals within BOEM Lease Areas, along export cable routes, and the two sea-to-shore transition points located in New Jersey at Atlantic City and Monmouth in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance resulting from impact pile driving of WTG, OSS, and Met Tower foundations, vibratory pile driving of temporary cofferdams, and HRG site characterization surveys; and
(b) By Level A harassment associated with the acoustic injury of marine mammals by impact pile driving WTG, OSS, and Met Tower foundations.
(c) Take by mortality (death) or serious injury of any marine mammal species is not authorized.
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following stocks:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore. |
| Northern Migratory Coastal. | ||
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
Except for the takings described in § 217.302 and authorized by LOA issued under § 217.306 or § 217.307, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or LOA issued under § 217.306 or § 217.307;
(b) Take any marine mammal not specified in § 217.302(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.302(d), after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.300(c) within the area described in § 217.300(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.306 or 217.307. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, vessel personnel, and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the Project. A description of the training program must be provided to NMFS at least 60 calendar days prior to the initial training before in-water activities begin. NMFS Office of Protected Resources will review, provide comments (if warranted) and approve the training program prior to on-water construction beginning. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating Project activities;
(3) Prior to and when conducting any in-water specified activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, and monitoring the U.S. Coast Guard's VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-triggered Slow Zones) to provide situational awareness for both vessel operators, PSO(s) and PAM operator(s) teams. The marine mammal monitoring team must monitor these systems no less than every 4 hours every day;
(4) Any marine mammal observed by Project personnel must be immediately communicated to any on-duty PSO(s), PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by a PSO(s) or a PAM operator(s) must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual detection by a PSO or acoustic detection by a PAM operator at any distance (where applicable for the specified activities) within the PAM Clearance/Shutdown Zone must trigger a delay to the commencement of pile driving and HRG surveys;
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) Any PSO has the authority to call for a delay or shutdown of Project activities. If a delay to commencing an activity is called for by a PSO, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by a PSO, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual(s), pile refusal, or pile instability. Any disagreements between the Lead PSO and the activity operator or between the Lead PSO and another PSO/PAM operator regarding delays or shutdowns must only be discussed after the mitigative action has occurred;
(8) Any marine mammals observed within a clearance or shutdown zone must leave (of their own volition) prior to commencing pile driving activities or HRG surveys;
(9) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant clearance zone prior to beginning a specified activity, the activity must be delayed. If an activity is ongoing and an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant shutdown zone, the activity must be shut down (i.e., cease) immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual(s), pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left the clearance or shutdown zones and is on a path away from the applicable zone or after 15 minutes with no further sightings for small odontocetes and pinnipeds or 30 minutes with no further sightings for all other species;
(10) For in-water construction heavy machinery activities listed in § 217.300(c), if a marine mammal is on a path towards or comes within 10 meters (m) (32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS Office of Protected Resources (pr.itp.monitoringreports@noaa.gov) prior to initial vessel transit;
(12) By accepting the LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures while in the specific geographic region, unless a deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, or life of a person(s); or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in distress or environmental crisis response. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm. Speed over ground will be used to measure all vessel speeds:
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection and observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the Project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the vessel personnel's training and understanding of the Incidental Take Authorization (hereafter, “ITA”) requirements must be documented on a training course log sheet and reported to NMFS within 30 calendar days of completion of training;
(2) All vessel operators, operating at any speed and regardless of their vessel's size, must slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) While in transit, all vessels, regardless of their size, must have a dedicated visual observer aboard and on duty at all times whose sole responsibility (i.e., must not have duties other than observing) is to monitor for marine mammals within a 180 degrees (hereafter, “°”) direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. These visual observers may be third-party observers (i.e., NMFS-approved PSOs; see § 217.305(a)) or trained crew members (see paragraph (b)(1) of this section);
(4) At the onset of transiting and continuously thereafter, vessel operators must monitor the U.S. Coast Guard's VHF Channel 16, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the Project's Situational Awareness System (if applicable), WhaleAlert, NMFS' website at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (hereafter, “RWSAS”) for the presence of North Atlantic right whales;
(5) Any large whale sighting by any Project-personnel, including any LOA Holder staff, contractors, or vessel crew, must be immediately communicated to all Project-associated vessel operators, PSOs, and PAM operators for situational awareness. Conversely, any large whale observation or detection via a sighting network (e.g., Mysticetus or similar software) by PSOs or PAM operators must be conveyed to vessel operator(s) and crew. An ongoing large whale sighting log sheet must be maintained on each vessel and retained for vessel operator(s) review each day prior to first day's transit for awareness of recent sightings;
(6) All vessel operators must abide by existing applicable vessel speed regulations (see 50 CFR 224.105). Nothing in this subpart exempts vessels from any other applicable marine mammal speed or approach regulations;
(7) Vessels must transit at 10 kn (11.5 mph) or less within any active North Atlantic right whale Slow Zone (i.e., Dynamic Management Areas (hereafter, “DMA”) or acoustically triggered slow zone);
(8) All vessel operators, regardless of their vessel's size, must immediately reduce vessel speed to 10 kn (11.5 mph) or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any Project-related personnel or acoustically detected by any Project-related PAM system. Each subsequent observation or acoustic detection in the Project Area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported by Project personnel or via any of the monitoring systems (refer back to paragraph (b)(4) of this section) that vessel must operate at 10 kn (11.5 mph) or less for 24 hours following the reported detection;
(9) All vessels, regardless of size, must immediately reduce speed to 10 kn (11.5 mph) or less when any large whale, mother/calf pairs, or large assemblages of cetaceans are observed within 500 m (1,640 ft) of an underway vessel;
(10) If vessel(s) are traveling at speeds greater than 10 kn (11.5 mph) (i.e., during periods where no other speed restrictions are enacted) in the transit corridor (defined as from a port to the Lease Areas or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM detection within or approaching the transit corridor, all vessels in the transit corridor must travel at 10 kn (11.5 mph) or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(11) All vessels must maintain a minimum separation distance of 500 m (1,640 ft) from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn (11.5 mph) or less such that the 500-m (1,640-ft) minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m (1,640 ft) of an underway vessel, that vessel operator must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m (1,640 ft). If a large whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph;
(12) All vessels must maintain a minimum separation distance of 500 m (1,640 ft) from all ESA-listed large whales (i.e., sperm whales, fin whales, sei whales). If one of these species is sighted within 500 m (1,640 ft) of a transiting vessel, the vessel must shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m (1,640 ft);
(13) All vessels must maintain a minimum separation distance of 100 m (328 ft) from all non-ESA-listed large whales (i.e., humpback whales and minke whales). If one of these species is sighted within 100 m (328 ft) of a transiting vessel, the vessel must shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m (328 ft);
(14) All vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m (164 ft) of a transiting vessel, the vessel must shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m (164 ft);
(15) When a marine mammal(s) is sighted while the vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(16) All vessels underway must not divert or alter course to approach any marine mammal;
(17) Vessel operators must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., Dynamic Management Areas (DMAs), Seasonal Management Areas (SMAs), Slow Zones) and any information regarding North Atlantic right whale sighting locations; and
(18) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan (hereafter, “VSAP”) to NMFS Office of Protected Resources for review and approval at least 180 calendar days prior to the planned start of vessel activity. The VSAP must provide details on the vessel-based observer and PAM protocols for transiting vessels in the vessel transit corridor. If the VSAP is not submitted and approved by NMFS prior to vessel operations, all Project vessels must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with any approved VSAP.
(c) WTG, OSS, and Met Tower foundation installation. LOA Holder must comply with the following WTG, OSS, and Met Tower foundation installation measures unless doing so could result in imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability:
(1) Foundation installation via impact pile driving must not occur December 1st through April 30th, annually, wherein foundation installation via impact pile driving must be avoided in December unless necessary to complete Project 1 or Project 2 in a given year and after receipt of prior approval by NMFS. Before any December pile driving may occur, and for NMFS Office of Protected Resources to fully evaluate this request, LOA Holder is required to provide a written request by October 15th, which must include, but is not limited to the following information: the installation schedule and types of piles to be installed, the maximum number of piles anticipated to be installed in December, and any planned or additional practicable mitigative measures that could be implemented to further reduce activities to North Atlantic right whales and other marine mammal species;
(2) Monopiles must be no larger than 15-m in diameter, representing the larger end of the planned monopile design. During all monopile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,400 kilojoules (kJ) for monopile installation. No more than two monopiles may be installed per day;
(3) Pin piles must be no larger than 5-m in diameter. During all pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 2,500 kJ for pin pile installation. No more than four pin piles may be installed per day;
(4) LOA Holder must only perform foundation pile driving during daylight hours, defined as no earlier than 1 hour prior to civil sunset or later than 1.5 hours prior to civil sunrise, and may only continue pile driving into darkness if stopping operations represents a risk to human health, safety, and/or pile stability, unless the LOA Holder submits, and NMFS approves, an Alternative Monitoring Plan, which would allow pile driving to begin after daylight hours have ended. Until this is submitted, reviewed, and approved by NMFS, LOA Holder may not begin any new pile driving outside of the daylight hours previously defined in this subsection;
(5) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(6) Monitoring of the clearance zones must begin 60 minutes immediately prior to initiation of pile driving. The shutdown zones must be monitored during all pile driving. If a marine mammal is detected within or about to enter the applicable clearance zones 30 minutes prior to the beginning of pile driving (including soft-start if impact pile driving) or during pile driving, pile driving must be delayed or shutdown until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(7) For North Atlantic right whales, any visual observation by a PSO or acoustic detection within 10 km (6.21 mi) must trigger a delay to the commencement of pile driving. Pile driving may only commence if no North Atlantic right whale visual or acoustic detections have occurred within the clearance zones during the 60-minute monitoring period;
(8) LOA Holder must deploy at least two fully functional noise abatement systems during all foundation pile driving;
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) A full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed;
(vi) LOA Holder must inspect and carry out appropriate maintenance on the noise attenuation system prior to every pile driving event and prepare and submit a Noise Attenuation System (NAS) inspection/performance report. For piles for which thorough SFV is carried out, this report must be submitted as soon as it is available, but no later than when the interim SFV report is submitted for the respective pile. Performance reports for piles monitoring with abbreviated SFV must be submitted with the weekly pile driving reports;
(vii) Corrections to the bubble ring(s) to meet the performance standards in paragraph (c)(9) of this section must occur prior to impact pile driving of foundation piles; and
(viii) For any noise mitigation device used in addition to the double bubble curtain, LOA Holder must inspect and carry out maintenance on the system and ensure the system is functioning properly prior to every pile driving event.
(9) LOA Holder must utilize PAM systems, as described in a NMFS-approved PAM Plan. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (0.6 mi) to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from pile-driving and vessel noise. The PAM system must be able to:
(i) Detect all marine mammals;
(ii) Maximize baleen whale detections; and
(iii) Must be capable of detecting North Atlantic right whales at 10 km (6.21 mi).
(10) Concurrently, LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.305(c). PAM operators must be deployed and monitoring for marine mammals in accordance with a NMFS-approved PAM Plan. If a marine mammal is detected (visually or acoustically entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately. If pile driving is not shut down due to a safety or pile instability/refusal situation, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly);
(11) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately. If pile driving is not shut down due to a safety or pile instability/refusal situation, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see § 217.305(g));
(12) A visual observation at any distance from a PSO or an acoustic detection of a North Atlantic right whale within the 10 km (6.21 mi) PAM Clearance/Shutdown Zone triggers shutdown requirements under paragraph (c)(11) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually nor acoustically detected for 30 minutes;
(13) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability or avoid refusal, during which time LOA Holder must use the lowest hammer energy practicable;
(14) LOA Holder must conduct thorough sound field verification (hereafter, “SFV”) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations installed each calendar year and the first three jacket foundations (inclusive of all pin piles installed for a given jacket foundation). For all thorough SFV, measurements must continue until at least three monopiles and three jacket foundations demonstrate distances to harassment thresholds are at or below those modeled, assuming 10 decibels (hereafter, “dB”) of attenuation. Subsequent thorough SFV measurements are also required should larger piles be installed or if additional foundations are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.). All thorough SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from the foundation(s) being driven, along a single transect, in the direction of lowest transmission loss, including, but not limited to, 750 m (2,460 ft) and three additional ranges, including, at least, the applicable modeled Level B harassment isopleth, assuming 10 dB attenuation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m (2,460 ft) must be made. At each location, there must be a near bottom and mid-water column hydrophone;
(ii) The recordings must be continuous throughout the duration of all pile driving of each pile for a given foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile(s). The frequency range of SFV measurement systems must cover the range of at least 20 hertz (hereafter, “Hz”) to 20 kilohertz (hereafter, “kHz”). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that, at each piling location, the signals must avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (hereafter, “IEC”) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which are not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;
(v) LOA Holder must be prepared with additional equipment (e.g., hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement; and
(vi) LOA Holder must submit interim thorough SFV reports within 48 hours after each foundation is measured (see § 217.305(g) for interim reporting requirements).
(15) For thorough SFV on monopile and jacket foundations:
(i) If any of the thorough SFV measurements from any foundation (monopile or jacket) indicate the distances to NMFS' marine mammal Level A harassment or Level B harassment thresholds, assuming 10-dB attenuation, are greater than those modeled, before the next foundation is installed, LOA Holder must identify and propose for review and concurrence: additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances on subsequent foundations; provide a written explanation to NMFS Office of Protected Resources supporting that determination and requesting concurrence to proceed; and, following NMFS Office of Protected Resource's concurrence, deploy those additional measure or modifications on any subsequent foundation that are installed;
(A) LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS Office of Protected Resources. For every 1,500 m (4,921.3 ft) that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone;
(B) Following installation of the foundation with additional, alternative, or modified noise attenuation measures/operational changes, SFV must be conducted on two additional foundations. If the SFV results from all three of those foundations are within the distances to isopleths of concern modeled assuming 10 dB attenuation, LOA Holder must continue to implement the approved additional, alternative, or modified sound attenuation measures/operational changes;
(C) If, after all practicable measures that could be taken to reduce noise levels have been successfully implemented and exhausted, thorough SFV measurements continue to indicate that the distances to the marine mammal harassment thresholds are greater than those modeled assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of Protected Resources to evaluate the circumstances before additional piles are installed; and
(ii) If, through SFV indicate that ranges to isopleths corresponding to the Level A harassment and/or Level B harassment thresholds are less than those predicted by modeling (assuming 10-dB attenuation), LOA Holder may request a modification of the minimum visibility, clearance, and shutdown zones from NMFS Office of Protected Resources. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted thorough SFV measurements on three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation, provided LOA Holder continue to implement the approved additional, alternative, or modified sound attenuation measures/operational changes.
(16) LOA Holder must conduct abbreviated SFV monitoring, consisting of a single acoustic recorder with a bottom and midwater hydrophone, placed at an appropriate distance from each pile driven foundation installations, on all foundations for which thorough SFV monitoring, as described in paragraph (c)(15) of this section, is not performed. Results of abbreviated SFV monitoring must be included in the weekly pile driving reports;
(i) Abbreviated SFV monitoring duration and equipment must comply with the conditions specified in paragraphs (c)(14)(ii) through (v) of this section; and
(ii) If the results of abbreviated SFV monitoring indicate that distances to the identified Level A and Level B harassment thresholds for marine mammals may have been exceeded during the pile driving event, LOA Holder must notify NMFS Office of Protected Resources as soon as possible after receiving such results, and include an explanation of suspected or identified factors that contributed to the potential exceedance and corrective actions that were taken, or planned to be taken, to avoid potential exceedance on subsequent piles. Additional actions may include: adjustments or additions to the noise attenuation system or pile driving operations and/or additional thorough SFV monitoring.
(17) LOA Holder must conduct SFV measurements during turbine operations to estimate turbine operational source levels and transmission loss rates in accordance with an NMFS-approved SFV Plan;
(18) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 calendar days prior to planned start of foundation installation activities and abide by the SFV Plan, if approved. At minimum, the SFV Plan must describe how thorough and abbreviated SFV would be conducted, and if the first three monopile foundation/first three entire jacket foundations (inclusive of all pin piles for a given jacket foundation) installation sites selected for thorough SFV measurements are representative of the remainder of the monopile and jacket foundation installation sites or include information in the SFV Plan on which additional sites/scenarios would be selected for thorough SFV measurements. This SFV Plan must also describe approaches that LOA Holder could take to adjust noise attenuation systems or add systems in the case that any SFV measurements obtained demonstrate that noise levels are above those modeled (assuming 10 dB of attenuation). Prior to operations for each Project, the SFV Plan must also include how operational noise would be monitored. Operational parameters (e.g., direct drive information, turbine rotation rate) as well as sea state conditions and information on nearby anthropogenic activities (e.g., vessels transiting or operating in the area) must be reported. Additionally, the SFV Plan must also include methodology for collecting, analyzing, and preparing thorough and abbreviated SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. Pile driving may not occur until NMFS approves the SFV Plan;
(19) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 calendar days prior to planned start of foundation pile driving and abide by the Foundation Installation Pile Driving Marine Mammal Monitoring Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include, but is not limited to, the following: the final pile driving Project design (e.g., number and type of piles, hammer type, noise abatement systems, anticipated start date, etc.) and a description of all monitoring equipment and PAM operator and PSO protocols (including number and location of PSOs and PAM operators) for all foundation pile driving. No foundation pile installation can occur without NMFS' approval of the Foundation Installation Pile Driving Marine Mammal Monitoring Plan. More information on what this Plan must include can be found in the LOA; and
(20) LOA Holder must submit a Passive Acoustic Monitoring Plan (hereafter, “PAM Plan”) to NMFS Office of Protected Resources for review and approval at least 180 calendar days prior to the planned start of foundation installation activities and abide by the PAM Plan, if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The PAM Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cofferdam installation and removal. The following requirements apply to the installation and removal of cofferdams at the cable landfall construction sites:
(1) Installation of cofferdams must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams using visual monitoring. These zones must be measured using the radial distance from the cofferdam being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in § 217.305(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory pile driving associated with cofferdam installation;
(4) If a marine mammal(s) is observed entering or is observed within the clearance zones, before vibratory pile driving has begun, the activity must not commence until the animal(s) has exited the zone or a specific amount of time has elapsed since the last sighting. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species;
(5) If a marine mammal is observed entering or within the respective shutdown zone after vibratory pile driving has begun, the PSO must call for a shutdown of vibratory pile driving. LOA Holder must stop pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the annual report (as described in § 217.305(h)). In cases where shutdown is not feasible, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest energy practicable to maintain stability; and
(6) Vibratory pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually confirmed beyond that clearance zone or when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species.
(e) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (hereinafter, “acoustic sources”) (i.e., sparkers and Compressed High Intensity Radiated Pulse (CHIRPs)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.305(e);
(3) LOA Holder must abide by the relevant Project Design Criteria (hereafter, “PDCs”; specifically, PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (hereafter, “ESA”). To the extent that any relevant Best Management Practices (hereafter, “BMPs”) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements and must be implemented;
(4) Acoustic sources must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, LOA Holder is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the equipment operates on a binary on/off switch (in which case ramp-up is not required). LOA Holder must also ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources;
(6) Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(7) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(12) of this section;
(8) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(9) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(10) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(11) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up and acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(12) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (i.e., infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(13) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (e)(13) of this section is detected in the shutdown zone;
(14) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting; and
(15) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(f) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification. Marine mammal monitoring will be conducted by the captain and/or a member of the scientific crew within 1 nautical mile (nmi) (1.85 km; 1.2 mi) and 15 minutes prior to deploying gear), during, and for 15 minutes after haul back;
(2) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nmi (1,852 m) of the sampling station;
(3) LOA Holder and/or its cooperating partners, contracted vessels, or commercially hired captains must implement the following “move-on” rule: if marine mammals are sighted within 1 nmi (1.2 mi) of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating partners, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating partners, contracted vessels, or commercially hired captains must move again or skip the station;
(4) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, LOA Holder must take the most appropriate action to avoid marine mammal interaction and the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(5) Unless using ropeless gear, LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval);
(6) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(7) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(8) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn (3.45 mph);
(9) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(10) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(11) All fishery survey-related lines must include the breaking strength of all lines being less than 1,700 pounds (lbs) (771 kilograms (kg)). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs (771 kg); or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs (771 kg);
(12) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(13) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(14) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage);
(15) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear; and
(16) All lost gear associated with the fishery surveys must be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators (i.e., the PSOs and PAM operators must be employed by a third-party observer provider) must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree in one of the natural sciences. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experiences that may be considered include but are not limited to: previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator. All PSOs and PAM operators should demonstrate good standing and consistently good performance of all assigned duties;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with Project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(5) and (6) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs are responsible for obtaining NMFS' approval. NMFS may approve PSOs as conditional or unconditional. A conditionally approved PSO may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity);
(7) At least one PSO for each activity (e.g., foundation installation, cable landfall construction, and HRG surveys) on each vessel must be designated as the Lead PSO. The Lead PSO must meet the minimum requirements described in paragraphs (a)(2) through (5) of this section and have a minimum of 90 days of at-sea experience visually monitoring marine mammals, including baleen whales, and no more than 18 months may have elapsed since the conclusion of their last at-sea experience;
(8) PSOs for cable landfall construction (i.e., vibratory pile installation and removal) and HRG surveys may be unconditionally or conditionally approved. A conditionally approved PSO must be paired with an unconditionally approved PSO. PSOs for foundation installation must be unconditionally approved;
(9) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications. The PAM operator must: demonstrate that they have prior experience with relevant acoustic software and equipment and real-time acoustic detection systems and/or have completed specialized training for operating PAM systems and detecting and identifying Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and how to deconflict them from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, or not detected; be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods where localization of sounds or deriving bearings and distance are possible and demonstrate experience in using this technique; have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; and must be able to test software and hardware functionality prior to operation;
(10) LOA Holder must submit previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 business days prior to commencement of the activities requiring PSOs/PAM operators or 15 business days prior to when new PSOs/PAM operators are required after activities have commenced;
(11) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 business days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(12) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any single time and must not exceed work time restrictions, which must be tallied cumulatively; and
(13) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO/PAM operator provider and Project compliance representative(s) prior to the start of in-water Project activities requiring PSOs and PAM operators.
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following all impact pile driving, vibratory pile driving, and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO. PAM operators may be located on a vessel or remotely on-shore, but must have the appropriate equipment (i.e., computer station equipped with a data collection software system and acoustic data analysis software) available wherever they are stationed, and data or data products must be streamed in real-time or in near real-time;
(3) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s). PAM operator(s) must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., possible, probable detection) in the determination. All on-duty PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel;
(4) The PAM operator must inform the Lead PSO(s) on duty of animal detections, including any determination regarding species identification, distance, bearing, and degree of confidence in the determinations, approaching or within applicable ranges of interest to the activity occurring via the data collection software system, (e.g., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(5) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least two PSOs on the pile driving-dedicated PSO vessel(s) must be equipped with functional Big Eye binoculars (e.g., 25 × 150; 2.7 view angle; individual ocular focus; height control); these must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety;
(6) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (i.e., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS;
(7) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period. If the schedule includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between watches must be allowed; and
(8) During daylight hours when equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(c) PSO and PAM operator requirements during WTG, OSS, and Met Tower foundation installation. The following measures apply to PSOs and PAM operators during WTG, OSS, and Met Tower foundation installation and must be implemented by LOA Holder:
(1) At least three on-duty PSOs must be stationed and observing from the pile driving activity platform. Additionally, LOA Holder must use two dedicated-PSO vessels and each vessel must have at least three PSOs on duty. LOA Holder may request NMFS approval to use alternative technology in lieu of one or two of the dedicated PSO vessels that provide similar marine mammal detection capabilities. If NMFS approves the use of alternative technology in lieu of the additional PSO vessels, LOA Holder must abide by any conditions of approved, as specified by NMFS;
(2) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving. If PSOs cannot visually monitor the minimum visibility zone for the 60 minutes prior to and during pile driving, pile-driving operations must not commence or must shutdown if they are currently active; and
(3) LOA Holder must conduct PAM for at least 24 hours prior to pile driving activities. The PAM operator(s) must review all detections from the previous 24-hour period prior to starting foundation pile driving.
(d) PSO requirements during cable landfall construction. The following measures apply to PSOs during cofferdam installation and removal and must be implemented by LOA Holder:
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams; and
(2) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles, and for 30 minutes after all vibratory pile driving activities have ceased. Sheet pile installation and removal must only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of vibratory pile driving.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using CHIRPs and sparkers and must be implemented by LOA Holder:
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring 30 minutes before, during, and 30 minutes after HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on active duty monitoring 30 minutes before, during, and 30 minutes after HRG surveys conducted at night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Monitoring requirements during fisheries monitoring surveys. The following measures apply during fisheries monitoring surveys and must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use (unless using ropeless gear), and for 15 minutes after haul back.
(g) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any specified activities, LOA Holder must demonstrate, in a report submitted to NMFS Office of Protected Resources, that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees with the coordinate system information (e.g., North American Datum of 1983 (NAD83), World Geodetic System 1984 (WGS84), etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., impact pile driving, vibratory pile driving, construction surveys); use of any noise attenuation device(s); and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area; and other applicable information, as required in any LOA issued under § 217.306;
(4) If a marine mammal is acoustically detected during PAM, the following information must be recorded and reported to NMFS: location of hydrophone (latitude and longitude; in decimal degrees) and site name; bottom depth and depth of recording unit (in meters); recorder (model & manufacturer) and platform type (i.e., bottom-mounted, electric glider, etc.), and instrument ID of the hydrophone and recording platform (if applicable); time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST) time zone is UTC-5); duration of recordings (start/end dates and times; in International Organization for Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 format); recording schedule (must be continuous); hydrophone and recorder sensitivity (in dB re. 1 microPascal (µPa)); calibration curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-rate of recordings; and detection range of equipment for relevant frequency bands (in meters):
(i) For each detection, the following information must be noted: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and name of PAM operator(s) on duty.
(ii) [Reserved]
(5) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs and PAM operators; details on the deployment of PSOs and PAM operators; a record of all observations/detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); details on the noise attenuation system(s) used and its performance; and all abbreviated SFV results, including any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded and an explanation of factors that contributed to each exceedance (if found) and corrective actions that were taken to avoid exceedance on subsequent piles. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(6) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including Project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. The monthly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, monthly reports are no longer required by LOA Holder;
(7) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources following completion of activities each year. LOA Holder must provide a final report within 30 calendar days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions were taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., foundation impact pile driving); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process;
(8) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. The draft and final 5-year report must include, but is not limited to, the following: the total number (annually and across all 5 years) of marine mammals of each species/stock detected and how many were detected within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity; summary table(s) indicating the amount of each activity type (e.g., pile installation, HRG) completed in each of the 5 years and total; Environmental Systems Research Institute, Inc. (ESRI) vector Geographic Information System (GIS) shapefile(s) of the final location of all piles, cable routes, and other permanent structures including an indication of what year it was installed and began operating; ESRI vector GIS shapefile of all North Atlantic right whale sightings, including dates and group sizes; a 5- year summary and evaluation of all SFV data collected; a 5-year summary and evaluation of all PAM data collected; a 5-year summary and evaluation of marine mammal behavioral observations; a 5-year summary and evaluation of mitigation and monitoring implementation and effectiveness; and a list of recommendations to inform environmental compliance assessments for future offshore wind actions;
(9) LOA Holder must provide the initial results of the thorough SFV measurements (see § 217.304(c)(15)) to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to any subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include, at minimum: hammer energies and schedule used during pile driving, including the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements; peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; full filter characteristics (if filtering is applied); and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(10) LOA Holder must conduct abbreviated SFV for all foundation installations for which the thorough SFV monitoring is not carried out, whereas a single acoustic recorder must be placed at an appropriate distance from the pile. All results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by LOA Holder, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(11) The final results of all SFV measurements from all foundation installations must be submitted no later than 90 calendar days following completion of all annual SFV measurements. The final reports must include all details included in the interim report and descriptions of any notable occurrences, explanations for results that were not anticipated, or actions taken during foundation installation. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; range of transmission loss coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre-activity and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices;
(12) If at any time during the Project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(13) Full PAM detection data, metadata, and location of recorders (or GPS tracks, if applicable) must be submitted within 90 calendar days following completion of foundation installation pile driving each season and every 90 calendar days for transit lane PAM using the International Organization for Standardization (ISO) standard metadata forms and instructions available on the NMFS Passive Acoustic Reporting System website at: https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Concurrently, the full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI) at: https://www.ncei.noaa.gov/products/passive-acoustic-data for archiving;
(14) Inclusive of all instances wherein an exemption to a measure is taken (which must be reported to NMFS Office of Protected Resources within 24 hours), LOA Holder must submit situational reports if the following circumstances occur, including but not limited to the following:
(i) If a North Atlantic right whale is sighted with no visible injuries or entanglement at any time by project PSOs or project personnel, the LOA Holder must, as soon as possible but within 24 hours, download and complete the Real-Time North Atlantic Right Whale Reporting Template spreadsheet found at: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual and save the completed spreadsheet as a .csv file and email it to NMFS NEFSC-PSD (ne.rw.survey@noaa.gov), NMFS GARFO-PRD (nmfs.gar.incidental-take@noaa.gov), and NMFS OPR (pr.itp.monitoringreports@noaa.gov). If unable to report a sighting through the spreadsheet within 24 hours, call the relevant regional hotline (Greater Atlantic Region's (Maine to Virginia/North Carolina border) Hotline at 866-755-6622 or the Southeast Region's (North Carolina through the Gulf of America) Hotline at 877-WHALE-HELP (877-942-5343)). Report the following information: the time (note time format), date (MM/DD/YYYY), location (latitude/longitude in decimal degrees; coordinate system used) of the observation, number of whales, animal description/certainty of observation (follow up with photos/video if taken), reporter's contact information, and Lease Areas number/project name, PSO/personnel name who made the observation, and PSO provider company (if applicable) (PAM detections are not reported to the Hotlines). If unable to report via the template or the regional hotline, enter the sighting via the WhaleAlert app (http://www.whalealert.org/). If this is not possible, report the sighting to the U.S. Coast Guard via channel 16. The report to the Coast Guard must include the same information as would be reported to the Hotline;
(ii) If a North Atlantic right whale is detected via real-time PAM, data must be submitted using the NMFS Passive Acoustic Reporting System Metadata and Detection data spreadsheets and instructions available at: https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates, as soon as feasible but no longer than 24 hours after the detection;
(iii) If a large whale other than a North Atlantic right whale is observed at any time by PSOs or Project personnel, LOA Holder must report the sighting to the WhaleAlert app at: http://www.whalealert.org/;
(iv) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, the LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida), call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the LOA Holder must report, within 24 hours, the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region, to the NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov) or, if in the Southeast Region, to the NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov). The report must include contact (e.g., name, phone number, etc.), time, date, and location (i.e., specify coordinate system) of the first discovery (and updated location information, if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s) (if alive); photographs or video footage of the animal(s) (if available); and general circumstances under which the animal was discovered; and
(v) In the event of a suspected or confirmed vessel strike of a marine mammal by any vessel associated with the Project or other means by which Project activities caused a non-auditory injury or death of a marine mammal, the LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida) call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region, to the NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov) or, if in the Southeast Region, to the NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov). The report must include time, date, and location (i.e., specify coordinate system) of the incident; species identification (if known) or description of the animal(s) involved (i.e., identifiable features including animal color, presence of dorsal fin, body shape and size, etc.); vessel strike reported information (e.g., name, affiliation, email for person completing the report); vessel strike witness (if different than the reporter) information (e.g., name, affiliation, phone number, platform for person witnessing the event, etc.); vessel name and/or MMSI number; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); part of vessel that struck marine mammal (if known); vessel damage notes; status of all sound sources in use at the time of the strike; if the marine mammal was seen before the strike event; description of behavior of the marine mammal before the strike event (if seen) and behavior immediately following the strike; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, etc.) immediately preceding the strike; estimated (or actual, if known) size and length of marine mammal that was struck; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; other animal-specific details, if known (e.g., length, sex, age class); behavior or estimated fate of the marine mammal post-strike (e.g., dead, injured but alive, injured and moving, external visible wounds (linear wounds, propeller wounds, non-cutting blunt-force trauma wounds), blood or tissue observed in the water, status unknown, disappeared); to the extent practicable, any photographs or video footage of the marine mammal(s); and, any additional notes the witness may have from the interaction. For any numerical values provided (i.e., location, animal length, vessel length, etc.), please provide if values are actual or estimated. The LOA Holder must immediately cease activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. The LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources.
(15) Any lost gear associated with the fishery surveys will be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or but no later than 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear. All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
[89 FR 78050, Sept. 24, 2024, as amended at 90 FR 38002, Aug. 7, 2025]
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain a LOA;
(b) LOA, unless suspended or revoked, may be effective for a period of time not to exceed December 31, 2029, the expiration date of this subpart;
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by the LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.307;
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart; and
(f) Notice of issuance or denial of the LOA must be published in the Federal Register within 30 calendar days of a determination.
(a) Any LOA issued under §§ 217.302 and 217.306 or this section for the activities identified in § 217.300(a) may be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For any modification request to the LOA by the applicant that includes changes to the activities or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA may be modified, provided that:
(1) NMFS Office of Protected Resources determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the maximum annual or total estimated number of takes of any species or stock; and
(2) NMFS Office of Protected Resources may, if appropriate, publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) LOA issued under §§ 217.302 and 217.306 or this section for the activities identified in § 217.300(a) may be modified by NMFS under the following circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources may modify (e.g., delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with the LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in the LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring;
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not allowed by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS Office of Protected Resources shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.302 and 217.306 or this section, any LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 calendar days of the issuance of a LOA under this subpart.
89 FR 45388, May 22, 2024, unless otherwise noted.
At 89 FR 45388, May 22, 2024, subpart FF was added to part 217, effective June 21, 2024, through June 20, 2029.
(a) Regulations in this subpart apply only to activities associated with the Sunrise Wind Offshore Wind Farm Project by Sunrise Wind, LLC (Sunrise Wind) and those persons Sunrise Wind authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on Sunrise Wind must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which extends between Cape Hatteras, North Carolina, and Martha's Vineyard, Massachusetts, extending westward into the Atlantic to the 100-m isobath, and includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A-0487 Commercial Lease of Submerged Lands for Renewable Energy Development, one export cable route, and one sea-to-shore transition point at Smith Point County Park in Shirley, New York.
(c) The specified activities are impact pile driving wind turbine generator (WTG) and offshore converter substation (OCS-DC) foundations; pneumatic hammering for installation and removal of temporary casing pipes; vibratory pile driving for installation and removal of temporary goal post and sheet piles; impact and vibratory pile driving associated with the Smith Point County Park temporary pier, high-resolution geophysical (HRG) site characterization surveys; detonation of unexploded ordnances (UXOs) or munitions and explosives of concern (MECs); fisheries and benthic monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from the OCS-DC to shore based converter stations and inter-array cables between WTG foundations; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operations.
Regulations in this subpart are effective from June 21, 2024, through June 20, 2029.
Under a LOA issued pursuant to §§ 216.106 and 217.316, Sunrise Wind and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the specified geographic area in the following ways, provided Sunrise Wind is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving WTG and OCS-DC foundations; pneumatic hammering of casing pipes; vibratory pile driving of goal posts and sheet piles; UXOs/MEC detonations, and HRG site characterization surveys.
(b) By Level A harassment associated with impact pile driving WTG and OCS-DC foundations and UXO/MEC detonations.
(c) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species and stocks:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| Blue whale | Balaenoptera musculus | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Minke whale | Balaenoptera acutorostrata | Canadian East Stock. |
| North Atlantic right whale | Eubalaena glacialis | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Sperm whale | Physeter macrocephalus | North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic Offshore. |
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
Except for the takings described in § 217.312 and authorized by a LOA issued under § 217.316 or § 217.317, it is unlawful for any person to do any of the following in connection with the activities described in this subpart.
(a) Violate or fail to comply with the terms, conditions, and requirements of this subpart or a LOA issued under §§ 217.316 and 217.317.
(b) Take any marine mammal not specified in § 217.312(c).
(c) Take any marine mammal specified in § 217.312(c) in any manner other than specified in § 217.312(a) and (b).
(d) Take any marine mammal, as specified in § 217.312(c), after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the specified activities identified in §§ 217.310(c) and 217.312, Sunrise Wind must implement the following mitigation measures contained in this section and any LOA issued under § 217.316 or § 217.317. These mitigation measures include, but are not limited to:
(a) General conditions. Sunrise Wind must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of Sunrise Wind and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) Sunrise Wind must conduct training for construction supervisors, construction crews, and the PSO and PAM team prior to the start of all construction activities and when new personnel join the work in order to explain responsibilities, communication procedures, marine mammal monitoring and reporting protocols, and operational procedures. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) PSOs and PAM operators have the authority to call for a delay or shutdown to an activity and Sunrise Wind must instruct all personnel regarding the authority of the PSOs and PAM operators. If a shutdown of an activity is called for by a PSO or PAM operator, Sunrise Wind must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the PSO, PAM operator, and the activity operator regarding delays or shutdowns must only be discussed after the mitigative action has occurred;
(4) Sunrise Wind and PSOs are required to use available sources of information on North Atlantic right whale presence to aid in monitoring efforts. These include daily monitoring of the Right Whale Sighting Advisory System, consulting of the WhaleAlert app, and monitoring of the Coast Guard's VHF Channel 16 to receive notifications of marine mammal sightings and information associated with any Dynamic Management Areas (DMA) and Slow Zones;
(5) Any marine mammal observation by project personnel must be immediately communicated to any on-duty PSOs and PAM operator(s). Any large whale observation or acoustic detection must be conveyed to all vessel captains;
(6) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant clearance zone prior to beginning a specified activity, the activity must be delayed. If an activity is ongoing and an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant shutdown zone, the activity must be shut down (i.e., cease) immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left the clearance or shutdown zones and is on a path away from the applicable zone or after 30 minutes for all baleen whale species and sperm whales, and 15 minutes for all other species;
(7) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(8) For in-water construction heavy machinery activities listed in section 1(a)(1), if a marine mammal is detected within, or about to enter, 10 meters (m) (32.8 feet (ft)) of equipment, Sunrise Wind must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(9) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and Sunrise Wind must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(10) By accepting a LOA, Sunrise Wind consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within this subpart and the LOA; and
(11) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. Sunrise Wind must comply with the following vessel strike avoidance measures while in the specific geographic region, unless a deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, life of a person; or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm.
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur in the specified geographical region; detection and observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel strike avoidance mitigation requirements; and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the project;
(2) Confirmation of the vessel personnel's training and understanding of the LOA requirements must be documented on a training course log sheet and reported to NMFS within 30 days of completion of training;
(3) All vessel operators and dedicated visual observers must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(4) All transiting vessels, operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Dedicated visual observers may be PSOs or crew members, but crew members responsible for these duties must be provided sufficient training by Sunrise Wind to distinguish marine mammals from other phenomena and must be able to identify a marine mammal as a North Atlantic right whale, other large whale (defined in this context as sperm whales or baleen whales other than North Atlantic right whales), or other marine mammals. Dedicated visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must not have any other duties while observing and must receive prior training on protected species detection and identification, vessel strike avoidance procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart;
(5) All vessel operators and dedicated visual observers must continuously monitor US Coast Guard VHF Channel 16 at the onset of transiting through the duration of transit. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must monitor the project's Situational Awareness System, (if applicable), WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(6) All vessel operators must abide by vessel speed regulations (50 CFR 224.105). Nothing in this subpart exempts vessels from any other applicable marine mammal speed or approach regulations;
(7) In the event that a DMA or Slow Zone is established that overlaps with an area where a project-associated vessel is operating, that vessel, regardless of size, must transit that area at 10 kn or less;
(8) Between November 1st and April 30th, all vessels, regardless of size, must operate port to port (specifically from ports in New Jersey, New York, Maryland, Delaware, and Virginia) at 10 kn or less, except for vessels while transiting in Narragansett Bay or Long Island Sound;
(9) All vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale, (other than a North Atlantic right whale), mother/calf pairs, or large assemblages of non-delphinid cetaceans are observed within 500 m (0.31 mi) of a transiting vessel;
(10) All vessel operators must immediately reduce speed to 10 kn (11.5 mph) or less for at least 24 hours when a North Atlantic right whale is sighted, at any distance, by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection shall trigger an additional 24-hour period. If a vessel is traveling at speed greater than 10 kn (11.5 mph) (i.e., no speed restrictions are enacted) in the transit corridor (defined as from a port to the Lease Area or return), in addition to the required dedicated visual observer, Sunrise Wind must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM within or approaching the transit corridor, all vessels in the transit corridor must travel at 10 kn (11.5 mph) or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further North Atlantic right whale visual or acoustic detection in the transit corridor in the past 24 hours; All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn (11.5 mph) or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must turn away from the whale(s), reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m;
(11) All vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of an underway vessel, the vessel must turn away from the whale(s), reduce speed, and shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(12) All vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (e.g., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, that vessel must turn away from the animal(s), reduce speed, and shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(13) All vessels underway must not divert or alter course to approach any marine mammal;
(14) Prior to transit, vessel operators must check for information regarding the establishment of Seasonal and Dynamic Management Areas, Slow Zones, and any information regarding North Atlantic right whale sighting locations; and
(15) Sunrise Wind must submit a Marine Mammal Vessel Strike Avoidance Plan 180 days prior to the planned start of vessel activity that provides details on all relevant mitigation and monitoring measures for marine mammals, vessel speeds and transit protocols from all planned ports, vessel-based observer protocols for transiting vessels, communication and reporting plans, and proposed alternative monitoring equipment in varying weather conditions, darkness, sea states, and in consideration of the use of artificial lighting. If Sunrise Wind plans to implement PAM in any transit corridor to allow vessel transit above 10 kn the plan must describe how PAM, in combination with visual observations, will be conducted. If a plan is not submitted and approved by NMFS prior to vessel operations, all project vessels must travel at speeds of 10 kn (11.5 mph) or less. Sunrise Wind must comply with any approved Marine Mammal Vessel Strike Avoidance Plan.
(c) Wind turbine generator (WTG) and offshore converter substation (OCS-DC) foundation installation. The requirements in paragraphs (c)(1) through (27) of this section apply to impact pile driving activities associated with the installation of WTG and OCS-DC foundations:
(1) Foundation impact pile driving activities must not occur January 1 through April 30, annually. Foundation impact pile driving must not be planned in December; however, it may only occur if necessary to complete the Project within a given year with prior approval by NMFS. Sunrise Wind must notify NMFS in writing by September 1 of that year that pile driving cannot be avoided, and circumstances are expected to necessitate pile driving in December;
(2) No more than four monopiles may be installed per day;
(3) Monopiles must be no larger than a tapered 7/12 m monopile design. The minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules (kJ);
(4) Sunrise Wind must not initiate pile driving earlier than 1 hour after civil sunrise or later than 1.5 hours prior to civil sunset, unless Sunrise Wind submits, and NMFS approves, a Nighttime Pile Driving Plan, that demonstrates the efficacy of their night vision devices to effectively monitor the mitigation zones. Sunrise Wind must submit this Plan or Plans (if separate Daytime Reduced Visibility and Nighttime Monitoring Plans are prepared) to NMFS Office of Protected Resources at least 180 calendar days before impact pile driving is planned to begin. This Plan(s) must include, but is not limited to, a complete description of how Sunrise Wind will monitor pile driving activities during reduced visibility conditions (e.g. rain, fog) and at night, including proof of the efficacy of monitoring devices (e.g., mounted thermal/infrared camera systems, hand-held or wearable night vision devices NVDs, spotlights) in detecting marine mammals over the full extent of the required clearance and shutdown zones, including demonstration that the full extent of the minimum visibility zones can be effectively and reliably monitored. The Plan must identify the efficacy of the technology at detecting marine mammals in the clearance and shutdown zones under all the various conditions anticipated during construction, including varying weather conditions, sea states, and in consideration of the use of artificial lighting. If the plan does not include a full description of the proposed technology, monitoring methodology, and data demonstrating to NMFS Office of Protected Resources's satisfaction that marine mammals can reliably and effectively be detected within the clearance and shutdown zones for monopiles before and during impact pile driving, nighttime pile driving (unless a pile was initiated 1.5 hours prior to civil sunset) may not occur. Additionally, this Plan must contain a thorough description of how Sunrise Wind will monitor pile driving activities during daytime when unexpected changes to lighting or weather occur during pile driving that prevent visual monitoring of the full extent of the clearance and shutdown zones;
(5) Sunrise Wind must utilize a soft-start protocol at the beginning of foundation installation for each impact pile driving event and at any time following a cessation of impact pile driving of 30 minutes or longer;
(6) Sunrise Wind must deploy, at minimum, a double bubble curtain and AdBm during all monopile foundation pile driving and, at minimum, a double bubble curtain during all jacket foundation pile driving;
(i) The double bubble curtain must distribute air bubbles using an air flow rate of at least 0.5 m3/(min*m). The double bubble curtain must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must make appropriate adjustments to the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved.
(ii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact.
(iii) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring.
(iv) Sunrise Wind must inspect and carry out appropriate maintenance on the noise attenuation system prior to every pile driving event and prepare and submit a Noise Attenuation System (NAS) inspection/performance report. For piles for which complete SFV is carried out, this report must be submitted as soon as it is available, but no later than when the interim SFV report is submitted for the respective pile. Performance reports for all subsequent piles must be submitted with the weekly pile driving reports. All reports must be submitted by email to pr.itp.monitoringreports@noaa.gov. For any noise mitigation device in addition to the bubble curtain, Sunrise Wind must inspect and carry out appropriate maintenance on the system and ensure the system is functioning properly prior to every pile driving event.
(7) Sunrise Wind must utilize PSO(s). Each pile driving platform, including a minimum of a secondary, PSO-dedicated vessel, must have at least three on-duty PSOs;
(8) Concurrent with visual monitoring, Sunrise Wind must utilize at least one PAM operator who must be actively monitoring for marine mammals one hour before, during and 30 minutes after impact pile driving with PAM. PAM operators must immediately communicate all detections of marine mammals to the Lead PSO, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination;
(9) Sunrise Wind must utilize NMFS-approved PAM systems. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (0.6 mi) to the pile being driven so that the activities do not mask the PAM system. Sunrise Wind must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km (6.2 mi);
(10) Sunrise Wind must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities and abide by the Plan if approved. The PAM Plan must include, but is not limited to, a description of all proposed PAM equipment; the calibration data; bandwidth capability; and sensitivity of hydrophones address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones, including, deployment locations, procedures, detection review methodology, and protocols; hydrophone detection ranges with and without foundation installation activities and data supporting those ranges; communication time between call and detection, and data transmission rates between PAM Operator and PSOs on the pile driving vessel; where PAM Operators will be stationed relative to hydrophones and PSOs on pile driving vessel calling for delay/shutdowns; and a full description of all proposed software, call detectors, and filters. The Plan must also include a description of Sunrise Wind's evaluation of the planned acoustic detection software using the PAM Atlantic baleen whale annotated data set available at National Centers for Environmental Information (NCEI) and provide evaluation/performance metrics (e.g., false negatives/positives);
(11) Sunrise Wind must establish clearance and shutdown zones, which must be measured using the radial distance around the pile being driven. PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving. At least one PAM operator must review data from at least 24 hours prior to pile driving and actively monitor hydrophones for 60 minutes prior to pile driving, at all times during pile driving, and for 30 minutes after pile driving. All clearance zones must be confirmed to be free of marine mammals for 30 minutes immediately prior to the beginning of soft-start procedures. If a marine mammal is detected within or about to enter the applicable clearance zones, during this 30-minute time period, impact pile driving, including soft-start, must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 30 minutes for all baleen whale species and sperm whales and 15 minutes for all other species;
(12) For North Atlantic right whales, any visual observation by a PSO at any distance or acoustic detection within the 10 km PAM Monitoring Zone must trigger a delay to the commencement of pile driving;
(13) PSOs must be able to visually clear (i.e., confirm no marine mammals are present), at minimum, the minimum visibility zone. The entire minimum visibility zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for a full 30 minutes immediately prior to commencing impact pile driving;
(14) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and Sunrise Wind must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability. If pile driving is not shut down due to one of these situations, Sunrise Wind must reduce hammer energy to the lowest level practicable;
(15) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 30 minutes for all baleen whale species and sperm whales and 15 minutes for all other species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time Sunrise Wind must use the lowest hammer energy practicable to maintain stability.
(16) Sunrise Wind must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation pile driving and abide by the Plan if approved. Sunrise Wind must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must detail all plans and procedures for sound attenuation, including procedures for adjusting the noise attenuation system(s) and available contingency noise attenuation measures/systems if distances to modeled isopleths of concern are exceeded during SFV. The Plan must include a description of all monitoring equipment and PAM operator and PSO protocols (including number and location of PSOs and PAM operators) for all foundation pile driving and an informal guide to aid personnel in identifying species if they are observed in the vicinity of the project area;
(17) Sunrise Wind must perform complete sound field verification (SFV) measurements during installation of, at minimum, the first three monopile WTG foundations and all OCS-DC foundation pin piles;
(18) Complete SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 decibels (dB) of attenuation. Subsequent complete SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (e.g., from higher hammer energy, greater number of strikes, harder substrate composition, deeper water etc.);
(i) Complete SFV measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges, including, at least, the modeled Level B harassment isopleth assuming 10-dB attenuation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made;
(ii) At each measurement distance, there must be a near bottom and mid-water column hydrophone (measurement system); and
(iii) Sunrise Wind must submit complete SFV interim reports within 48 hours after each foundation is measured and before an additional foundation is installed. If any of the interim SFV reports submitted indicate that distances to the Level A harassment and Level B harassment thresholds exceed those modeled assuming 10-dB attenuation, then Sunrise Wind must implement additional measures on all subsequent foundations to ensure the measured Level A and Level B harassment isopleths do not exceed those modeled for foundation installation, assuming 10-dB attenuation. Sunrise Wind must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. For every 1,500 m that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone with each observer responsible for maintaining watch in no more than 120° and of an area with a radius no greater than 1,500 m. Sunrise Wind must optimize the sound attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to, at least, meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and Sunrise Wind can evaluate the situation and ensure future piles will not exceed noise levels modeled assuming 10-dB attenuation;
(19) Sunrise Wind also must conduct abbreviated SFV, using at least one acoustic recorder (consisting of a bottom and mid-water column hydrophone) for every foundation for which complete SFV monitoring is not conducted. Abbreviated SFV reports must be included in weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals may be exceeded based on this abbreviated monitoring must be addressed by Sunrise Wind in the weekly report, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles. Sunrise Wind must meet with NMFS within two business days of Sunrise Wind's submission of a report that includes an exceedance to discuss if any additional action is necessary;
(20) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10-dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(21) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;
(22) Sunrise Wind must be prepared with additional equipment (e.g., hydrophones, recording devices, hydrophone calibrators, cables, batteries), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(23) If any of the SFV measurements from any pile indicate that the distance to any isopleth of concern is greater than those modeled assuming 10-dB attenuation before the next pile is installed Sunrise Wind must implement the following measures as applicable: identify and propose for review and concurrence: additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances; provide a written explanation to NMFS Office of Protected Resources supporting that determination and requesting concurrence to proceed; and, following NMFS Office of Protected Resources's concurrence, deploy those additional measures on any subsequent piles that are installed (e.g., if threshold distances are exceeded on pile 1 then additional measures must be deployed before installing pile 2);
(24) If acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), Sunrise Wind may request to NMFS Office of Protected Resources a modification of the mitigation zones for non-North Atlantic right whale species;
(25) Sunrise Wind must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels and transmission loss rates, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan;
(26) Sunrise Wind must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how Sunrise Wind would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, Sunrise Wind must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. This SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. Pile driving may not occur until NMFS approves the SFV Plan for this activity; and
(27) If a subsequent monopile installation location is selected that was not represented by previous three locations (i.e., substrate composition, water depth), complete SFV must be conducted.
(d) Cable landfall construction. Sunrise Wind must comply with the following measures during cable landfall construction activities:
(1) Sunrise Wind must conduct vibratory pile driving and pneumatic hammering during daylight hours only;
(2) Sunrise Wind must have a minimum of two PSOs on active duty 30 minutes before, during, and 30 minutes after any installation and removal of the temporary sheet piles, casing pipes and goal posts. These PSOs must always be located at the best vantage point(s) on the vibratory pile driving, pneumatic hammering, or secondary platform in the immediate vicinity of the vibratory pile driving or pneumatic hammering platform in order to ensure that appropriate visual coverage is available for the entire visual clearance zone and as much of the Level B harassment zone, as possible;
(3) Sunrise Wind must establish clearance and shutdown zones. If a marine mammal(s) is observed entering or is observed within the clearance zones, before vibratory pile driving or pneumatic hammering has begun, the activity must not commence until the animal(s) has exited the zone at its own volition or a specific amount of time has elapsed since the last sighting. The specific time periods are 30 minutes for all baleen whale species and sperm whales, and 15 minutes for all other species;
(4) If a marine mammal is observed entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving and Sunrise Wind must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability. If pile driving is not shut down due to one of these situations, Sunrise Wind must reduce hammer energy to the lowest level practicable;
(5) Pile driving must not restart until either the marine mammal(s) has voluntarily left and have been visually confirmed beyond the clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 30 minutes for all baleen whale species and sperm whales, and 15 minutes for all other species; and
(6) Sunrise Wind must employ a soft-start for all impact pile driving of goal posts. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets.
(e) UXO/MEC detonation. Sunrise wind must comply with the measures related to UXO/MEC detonation in paragraphs (e)(1) through (12) of this section:
(1) Sunrise Wind may only detonate a maximum of three UXO/MECs, of varying sizes;
(2) Sunrise Wind must not detonate UXOs/MECs from December 1 through April 30, annually;
(3) Sunrise Wind must only detonate UXO/MECs during daylight hours (1 hour after civil sunrise through 1.5 hours prior to civil sunset);
(4) Upon encountering a UXO/MEC of concern, Sunrise Wind may only resort to high-order removal (i.e., detonation) if all other means of removal are impracticable;
(5) Sunrise Wind must utilize a dual noise abatement system (e.g., double bubble curtain) around all UXO/MEC detonations and operate that system in a manner that achieves the maximum noise attenuation levels practicable. If a double bubble curtain is used, it must be placed at a distance such that the nozzle hose remains undamaged;
(6) A pressure transducer must be used to monitor pressure levels during all UXO/MEC detonations;
(7) Sunrise Wind must use at least 3 visual PSOs on each PSO platform and one PAM operator to monitor for marine mammals in the clearance zones prior to detonation. If the clearance zone is larger than 2 km (based on charge weight), Sunrise Wind must deploy a secondary PSO vessel. If the clearance is larger than 5 km (based on charge weight), an aerial platform must be used unless Sunrise Wind determines an aerial platform is not practical and, in such case, an additional vessel must be used;
(8) Sunrise Wind must establish and implement clearance zones for UXO/MEC detonation using both visual and acoustic monitoring. Clearance zones must be fully visible for at least 60 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes prior to detonation. PAM must also be conducted for at least 60 minutes prior to detonation and the zone must be acoustically cleared during this time;
(9) If a marine mammal is observed entering or within the clearance zone prior to denotation, the activity must be delayed. Detonation may only commence if all marine mammals have been confirmed to have voluntarily left the clearance zones and been visually confirmed to be beyond the clearance zone, or when 60 minutes have elapsed without any redetections for whales (including the North Atlantic right whale) or 15 minutes have elapsed without any redetections of delphinids, harbor porpoises, or seals;
(10) During each UXO/MEC detonation, Sunrise Wind must conduct SFV, in accordance with a NMFS-approved UXO/MEC SFV Plan, at a minimum of three locations, with two water depths at each location, from each detonation in a direction toward deeper water to empirically determine source levels (peak and cumulative sound exposure level), the ranges to the isopleths corresponding to the Level A harassment and Level B harassment thresholds, and estimated transmission loss coefficient(s);
(11) If SFV measurements on any of the detonations indicate that the ranges to Level A harassment and Level B harassment thresholds are larger than those modeled, assuming 10-dB attenuation, Sunrise Wind must modify the clearance zones, with approval from NMFS, and apply additional noise attenuation measures (e.g., improve efficiency of bubble curtain(s)) before the next detonation event of similar size; and
(12) Sunrise Wind must prepare and submit a UXO/MEC Marine Mammal Monitoring Plan to NMFS for review and approval at least 180 days before the start of any UXO/MEC detonations. The plan must include final project design and all information related to visual and PAM PSO monitoring protocols for UXO/MEC detonations.
(f) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)) (hereinafter referred to as “acoustic sources”):
(1) Sunrise Wind must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA) or otherwise updated. To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(2) Acoustic sources must be deactivated when not acquiring data or preparing to acquire data except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective;
(3) Sunrise Wind must use at least one PSO during daylight operations and two PSOs during nighttime operations, per vessel;
(4) PSOs must begin visually monitoring 30 minutes prior to the initiation of the specified acoustic source (including ramp-up, if applicable), through 30 minutes after the use of the specified acoustic source has ceased;
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, Sunrise Wind is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the equipment operates on a binary on/off switch (in which case ramp-up is not required). Any ramp-up of acoustic sources may only commence when visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using a specified acoustic source. Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(6) Prior to a ramp-up procedure starting, the acoustic source operator must notify the Lead PSO of the planned start of ramp-up. The notification time must not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSO(s) time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible;
(7) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(8) If a marine mammal is observed within a clearance zone during the 30 minute clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time periods are 30 minutes for all baleen whale species and sperm whales, and 15 minutes for all other species;
(9) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision/reduced visibility condition equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(10) Once the survey has commenced, Sunrise Wind must shut down acoustic sources if a marine mammal enters a respective shutdown zone. In cases when the shutdown zones become obscured for brief periods (less than 30 minutes) due to inclement weather, survey operations would be allowed to continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph of this section is detected in the shutdown zone. If there is uncertainty regarding the identification of a marine mammal species (e.g., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown;
(11) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 30 minutes for all baleen whale species and sperm whales, and 15 minutes for all other species have elapsed with no further sighting. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, it may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones. If an acoustic source is shut down for a period longer than 30 minutes, then all clearance and ramp-up procedures must be initiated;
(12) If multiple HRG vessels are operating concurrently, any observations of marine mammals must be communicated to PSOs on all nearby survey vessels; and
(13) Should an autonomous survey vehicle (ASV) be used during HRG surveys, the ASV must remain with 800 m (2,635 ft) of the primary vessel while conducting survey operations; two PSOs must be stationed on the mother vessel at the best vantage points to monitor the clearance and shutdown zones around the ASV; at least one PSO must monitor the output of a thermal high-definition camera installed on the mother vessel to monitor the field-of-view around the ASV using a hand-held tablet, and during periods of reduced visibility (e.g., darkness, rain, or fog), PSOs must use night-vision goggles with thermal clip-ons and a hand-held spotlight to monitor the clearance and shutdown zones around the ASV.
(g) Fisheries monitoring surveys. The requirements in paragraphs (g)(1) through (12) of this section apply to fishery monitoring surveys:
(1) Marine mammal monitoring must be conducted by the captain and/or a member of the scientific crew before (within 1 nautical mile (nmi) (1.85 km) and 15 minutes prior to deploying gear), during, and after haul back;
(2) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(3) Sunrise Wind must implement the following “move-on” rule. If marine mammals are sighted within 1 nm (nmi (1.2 mi)) of the planned location in the 15 minutes before gear deployment, then Sunrise Wind must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, Sunrise Wind and its cooperating institutions, contracted vessels, or commercially hired captains must move again or to skip the station;
(4) All captains and crew conducting fishery surveys will be trained in marine mammal detection and identification;
(5) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(6) Sunrise Wind must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval);
(7) Trawl tows must be limited to a maximum of 20 minute trawl-time;
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval in order to avoid injury to animals that may be caught in the gear;
(9) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(10) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as Sunrise Wind's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division. Any lost gear associated with the fishery surveys must be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division within 24 hours;
(11) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and
(12) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(h) Temporary pier construction. The following requirements apply to impact and vibratory pile driving during temporary pier construction at Smith Point County Park:
(1) Sunrise Wind must delay or shutdown pile driving if a marine mammal is observed entering or within the Level B harassment zones; and
(2) At least one PSO must be on duty monitoring for marine mammals 30 minutes prior to, during and 30 minutes after pile driving.
Sunrise Wind must implement the following monitoring and reporting requirements when conducting the specified activities (see § 217.310(c)):
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications: Sunrise Wind must implement the following measures applicable to PSOs and PAM operators:
(1) Sunrise Wind must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant personnel with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes, but is not limited to, previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations described in paragraphs (b)(2) and (3) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years and obtain a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs as conditional or unconditional. A conditionally approved PSO may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). A conditionally approved PSO must be paired with an unconditionally approved PSO;
(7) PSOs for cable landfall and temporary pier construction (i.e., vibratory and impact pile installation and removal; pneumatic hammering) and HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation and UXO detonation must be unconditionally approved;
(8) At least one on-duty PSO for each activity (e.g., foundation installation, cable landfall and temporary pier construction, and HRG surveys) must be designated as the Lead PSO. The Lead PSO must meet the minimum requirements described in paragraphs (a)(2) through (5) of this section, have a minimum of ninety days of at-sea experience working in the Northwest Atlantic Ocean and have no more than eighteen months elapsed since the conclusion of their last at-sea experience;
(9) Sunrise Wind must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, Sunrise Wind must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) To be approved as a PAM operator, the person must meet the following qualifications: the PAM operator must demonstrate that they have prior experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems, including experience with relevant Project acoustic software and equipment. They must also demonstrate experience detecting and identifying Atlantic Ocean marine mammals sounds, including North Atlantic right whale sounds, humpback whale sounds and deconflicting them from similar North Atlantic right whale sounds and other co-occurring species' sounds in the area. The PAM operator must be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods and must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, not detected. Where localization of sounds or deriving bearings and distance are possible, the PAM operators must demonstrate experience in using this technique. PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary and test software and hardware functionality prior to operation; and
(12) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively.
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by Sunrise Wind:
(1) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to collectively obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore, but must have the appropriate equipment (i.e., computer station equipped with a data collection software system and acoustic data analysis software) available wherever they are stationed, and data or data products must be streamed in real-time or in near real-time to allow PAM operators to provide assistance to on-duty visual PSOs;
(2) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least two PSOs on the pile driving-dedicated PSO vessel must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control). These must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. PAM operators must use a NMFS-approved PAM system to conduct monitoring;
(3) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (e.g., infrared or thermal cameras) to monitor the mitigation zones;
(4) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(5) For UXO/MEC detonation areas larger than 2 km, Sunrise Wind must use a secondary PSO vessel to monitor for marine mammals. For any additional vessels determined to be necessary, three PSOs must be used and located at the appropriate vantage point on the vessel. These additional PSOs would maintain watch during the same time period as the PSOs on the primary monitoring vessel. For detonation areas larger than 5 km, Sunrise Wind must use an aircraft or additional PSO vessels in addition to the primary monitoring vessel to monitor for marine mammals. If an aircraft is used, two PSOs must be used and located at the appropriate vantage point on the aircraft. These additional PSOs would maintain watch during the same time period as the PSOs on the primary monitoring vessel;
(6) During foundation installation and UXO/MEC detonation, Sunrise Wind must conduct PAM for at least 24 hours immediately prior to pile driving activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving;
(7) During cable landfall construction, at least two PSOs must be on active duty 30 minutes prior to, during, and 30 minutes after all pile driving activities; and
(8) Sunrise Wind must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the PSO monitoring reports.
(c) Reporting. Sunrise Wind must comply with the reporting measures in paragraphs (c)(1) through (20) of this section:
(1) Prior to initiation of project activities, Sunrise Wind must demonstrate in a report submitted to NMFS Office of Protected Resources (pr.itp.monitoringreports@noaa.gov) that all required training for Sunrise Wind personnel, including the vessel crews, vessel captains, PSOs, and PAM operators has been completed;
(2) Sunrise Wind must use a standardized reporting system. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., pile driving, construction surveys), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOA issued under section 5 herein;
(4) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call and site name; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); name of PAM operator(s) on duty; bottom depth and depth of recording unit (in meters); recorder (model & manufacturer) and platform type (i.e., bottom-mounted, electric glider, etc.), and instrument ID of the hydrophone and recording platform (if applicable); time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST) time zone is UTC-5); duration of recordings (start/end dates and times; in International Organization for Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 format); recording schedule (must be continuous); hydrophone and recorder sensitivity (in dB re. 1microPascal (µPa)); calibration curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-rate of recordings; and detection range of equipment for relevant frequency bands (in meters);
(5) Full marine mammal acoustic detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the International Organization for Standardization (ISO) standard metadata forms available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI) for archiving within 90 days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(6) Sunrise Wind must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document SFV results, the daily start and stop of all pile driving HRG survey, or UXO/MEC detonation activities associated with the Project; the start and stop of associated observation periods by PSOs, details on the deployment of PSOs, a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why), and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday-Saturday) and must include the information required under this section. The weekly report must identify which turbines become operational and when (a map must be provided);
(7) Sunrise Wind must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation (PR.ITP.monitoringreports@noaa.gov) that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, number of UXO/MEC detonations, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates.
(8) Sunrise Wind must submit draft annual marine mammal monitoring report to NMFS (PR.ITP.monitoringreports@noaa.gov) no later than March 31, annually. Sunrise Wind must submit a draft annual SFV report to NMFS (PR.ITP.monitoringreports@noaa.gov) no later than 90 days after SFV is completed for the year. The annual marine mammal monitoring report must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days, days and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., foundation pile driving); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process. The annual SFV report must summarize all reporting during complete and abbreviated monitoring for the construction year. The final annual reports must be prepared and submitted within 30 calendar days following the receipt of any comments from NMFS on the draft report;
(9) Sunrise Wind must submit its draft final 5-year report to NMFS (PR.ITP.monitoringreports@noaa.gov) on all visual and acoustic monitoring, including SFV, conducted within 90 calendar days of the completion of the specified activities. A 5-year report must be prepared and submitted within 30 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. The draft and final 5-year report must include, but is not limited to: the total number (annually and across all five years) of marine mammals of each species/stock detected and how many were detected within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity; a summary table(s) indicating the amount of each activity type (e.g., pile installation, HRG) completed in each of the five years and total; GIS shapefile(s) of the final location of all piles, cable routes, and other permanent structures including an indication of what year installed and began operating; GIS shapefile of all North Atlantic right whale sightings, including dates and group sizes; a five-year summary and evaluation of all SFV data collected; a five-year summary and evaluation of all PAM and SFV data collected; a five-year summary and evaluation of marine mammal behavioral observations; a five-year summary and evaluation of mitigation and monitoring implementation and effectiveness; and a list of recommendations to inform environmental compliance assessments for future offshore wind actions.
(10) For those foundations requiring complete SFV measurements, Sunrise Wind must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to any subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include hammer energies/schedule used during pile driving or UXO/MEC weight (including donor charge weight), the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements, estimated source levels at 1 m and/or 10 m, peak sound pressure level (SPLpk) and median, mean, maximum, and minimum root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms) and sound exposure level (SEL, in single strike for pile driving (SELs-s) and SELcum) for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. Sunrise Wind must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, Sunrise Wind must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(11) All abbreviated SFV results must be included in the weekly reports. The report must include estimated source levels at 1 m or 10 m and the measured SELcum noise levels at distance. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by Sunrise Wind, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(12) The final results of all SFV measurements from each foundation installation must be submitted as soon as possible, but no later than 90 days following completion of all annual SFV measurements. The final reports must include all details included in the interim report and descriptions of any notable occurrences, explanations for results that were not anticipated, or actions taken during foundation installation. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; range of transmission loss coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. Sunrise Wind must submit a revised report within 30 days following receipt of NMFS' comments on the draft final report;
(13) Sunrise Wind must submit SFV results from UXO/MEC detonation monitoring in a report prior to detonating a subsequent UXO/MEC or within the relevant weekly report, whichever comes first. The report must include, at minimum, the size of UXO/MEC detonated and doner charge weight, why detonation was necessary, current speeds, SELcum, a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the detonation, etc.) and any action taken to adjust the noise abatement system, modeled and SFV-based estimated ranges to all relevant NMFS explosive thresholds (including those from pressure transducer measurements);
(14) If at any time during the project Sunrise Wind becomes aware of any issue or issues which may to any reasonable subject-matter expert, including the persons performing the measurements and analysis call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, Sunrise Wind must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(15) Performance reports for each bubble curtain deployed must include water depth (m), current speed (m/s) and direction (degrees), wind speed (m/s) and direction (degrees), Beaufort sea state, bubble curtain deployment/retrieval date and time (UTC), bubble curtain hose length (m), bubble curtain radius (distance from pile) (m), diameter of holes and hole spacing (metric units), air supply hose length (m), compressor type (including rated Cubic Feet per Minute (CFM) and model number), number of operational compressors, performance data from each compressor (including Revolutions Per Minute (RPM), pressure, start and stop times [UTC]), free air delivery (m3/min), total hose air volume (m3/(min m)), schematic of GPS waypoints during hose laying, maintenance procedures performed and results (pressure tests, inspections, flushing, re-drilling, and any other hose or system maintenance) before and after installation and start and stop times of those tests (UTC), and the length of time the bubble curtain was on the seafloor prior to the associated foundation installation, and confirmation that the bubble curtain was in full contact with the seafloor throughout the use. Additionally, the report must include any important observations regarding performance (before, during, and after pile installation), such as any observed weak areas of low pressure, corrective measures conducted to ensure the system is working sufficiently. The report may also include any relevant video and/or photographs of the bubble curtain(s) operating during all pile driving;
(16) Sunrise Wind must provide NMFS Office of Protected Resources with notification of planned UXO/MEC detonation as soon as possible but at least 48 hours prior to the planned detonation unless this 48-hour notification would create delays to the detonation that would result in imminent risk of human life or safety. This notification must include the coordinates of the planned detonation, the estimated charge size, and any other information available on the characteristics of the UXO/MEC.
(17) Sunrise Wind must submit situational reports if specific circumstances occur, including but not limited to the following:
(i) All instances wherein an exemption is taken must be reported to the NMFS Office of Protected Resources within 24 hours.
(ii) If a North Atlantic right whale is sighted with no visible injuries or entanglement by PSOs or project personnel, Sunrise Wind must immediately report the sighting to NMFS; if immediate reporting is not possible, the report must be submitted as soon as possible but no later than 24 hours after the initial sighting. All North Atlantic right whale acoustic detections within a 24-hour period should be collated into one spreadsheet and reported to NMFS as soon as possible but no later than 24 hours. To report sightings and acoustic detections, download and complete the Real-Time North Atlantic Right Whale Reporting Template spreadsheet found at: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual. Save the spreadsheet as a .csv file and email it to NMFS NEFSC-PSD (ne.rw.survey@noaa.gov), NMFS GARFO-PRD (nmfs.gar.incidental-take@noaa.gov), and NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov). If the sighting is in the Southeast (North Carolina through Florida), report via the template and to the Southeast Hotline 877-WHALE-HELP (877-942-5343) with the observation information provided below (PAM detections are not reported to the Hotline). If unable to report a sighting through the spreadsheet within 24 hours, call the relevant regional hotline (Greater Atlantic Region [Maine through Virginia] Hotline 866-755-6622; Southeast Hotline 877-WHALE-HELP) with the observation information provided below (PAM detections are not reported to the Hotline). The visual sighting report must, at minimum, include the following information: the time (note time format), date (MM/DD/YYYY), location (latitude/longitude in decimal degrees; coordinate system used) of the observation, number of whales, animal description/certainty of observation (follow up with photos/video if taken), reporter's contact information, and lease area number/project name, PSO/personnel name who made the observation, and PSO provider company (if applicable) (PAM detections are not reported to the Hotline). If unable to report via the template or the regional hotline, enter the sighting via the WhaleAlert app (http://www.whalealert.org/). If this is not possible, report the sighting to the U.S. Coast Guard via channel 16. The report to the Coast Guard must include the same information as would be reported to the Hotline. PAM detections are not reported to WhaleAlert or the U.S. Coast Guard;
(iii) If a non-NARW large whale is observed, report the sighting via WhaleAlert app (https://www.whalealert.org/) as soon as possible but within 24 hours;
(18) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, the Sunrise Wind must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida) call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the LOA Holder must report, within 24 hours, the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region to the NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov) or if in the Southeast Region, to the NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov). Note, the stranding hotline may request the report be sent to the local stranding network response team. The report must include contact information (e.g., name, phone number, etc.); time, date, and location (i.e., specify coordinate system) of the first discovery (and updated location information, if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s) (if alive); photographs or video footage of the animal(s) (if available); and general circumstances under which the animal was discovered;
(19) In the event of a suspected or confirmed vessel strike of a marine mammal by any vessel associated with the Project or other means by which Project activities caused a non-auditory injury or death of a marine mammal, Sunrise Wind must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida) call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, the Sunrise Wind must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region to the NMFS Greater Atlantic Regional Fisheries Office (GARFO; nmfs.gar.incidental-take@noaa.gov) or if in the Southeast Region, to the NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov). The report must include time, date, and location (i.e., specify coordinate system)) of the incident; species identification (if known) or description of the animal(s) involved (i.e., identifiable features including animal color, presence of dorsal fin, body shape and size, etc.); vessel strike reporter information (name, affiliation, email for person completing the report); vessel strike witness (if different than reporter) information (e.g., name, affiliation, phone number, platform for person witnessing the event, etc.); vessel name and/or MMSI number; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); part of vessel that struck marine mammal (if known); vessel damage notes; status of all sound sources in use at the time of the strike; if the marine mammal was seen before the strike event; description of behavior of the marine mammal before the strike event (if seen) and behavior immediately following the strike; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, etc.) immediately preceding the strike; estimated (or actual, if known) size and length of marine mammal that was struck; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; other animal-specific details if known (e.g., length, sex, age class); behavior or estimated fate of the marine mammal post-strike (e.g., dead, injured but alive, injured and moving, external visible wounds (linear wounds, propellor wounds, non-cutting blunt-force trauma wounds), blood or tissue observed in the water, status unknown, disappeared); to the extent practicable, any photographs or video footage of the marine mammal(s); and, any additional notes the witness may have from the interaction. For any numerical values provided (i.e., location, animal length, vessel length, etc.), please provide if values are actual or estimated. The Sunrise Wind must immediately cease activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA(s). NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Sunrise Wind may not resume their activities until notified by NMFS Office of Protected Resources; and
(20) Sunrise Wind must report any lost gear associated with the fishery surveys to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) To incidentally take marine mammals pursuant to these regulations, Sunrise Wind must apply for and obtain an LOA;
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the effective period of this subpart;
(c) If an LOA expires prior to the expiration date of these regulations, Sunrise Wind may apply for and obtain a renewal of the LOA; and
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Sunrise Wind must apply for and obtain a modification of the LOA as described in § 217.317.
(e) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) A LOA issued under §§ 216.106 and 217.316 of this section for the activities identified in § 217.310(c) shall be modified upon request by Sunrise Wind, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, or reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and
(2) NMFS may publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under § 216.106 of this chapter and § 217.316 for the activities identified in § 217.310(c) may be modified by NMFS under the circumstances in paragraphs (c)(1) and (2) of this section:
(1) Through adaptive management, NMFS may modify (including remove, revise, or add to) the existing mitigation, monitoring, or reporting measures after consulting with Sunrise Wind regarding the practicability of the modifications, if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures set forth in this subpart.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from Sunrise Wind's monitoring;
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment; and
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to § 216.106 of this chapter and § 217.316, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 52301, June 21, 2024; 89 FR 79778, Oct. 1, 2024, unless otherwise noted.
At 89 FR 52301, June 21, 2024, subpart GG was added to part 217, effective Mar. 27, 2025, through Mar. 26, 2030.
(a) Regulations in this subpart apply only to activities associated with Phase 1 and Phase 2 of the New England Wind project (hereafter referred to as the “Project”) developed by Avangrid Renewables, LLC, and its successors or assigns (hereafter referred to as the “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, defined as waters from Cape Hatteras, North Carolina to Cape Cod, Massachusetts and extending into the west Atlantic to the 100-m isobath, and includes, but it not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0534, OCS-A 0561, and portions of OCS-A 0501 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the sea-to-shore transition points in Barnstable County, Massachusetts.
(c) The specified activities are impact pile driving, vibratory pile driving, and drilling of wind turbine generator (WTG) and electrical service platform (ESP) foundations; high-resolution geophysical (HRG) site characterization surveys; detonation of unexploded ordnances (UXOs) or munitions and explosives of concern (MECs); fisheries and benthic monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from the ESP(s) to shore based converter stations and inter-array cables between WTG foundations; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operations.
Regulations in this subpart are effective from March 27, 2025, through March 26, 2030.
Under a Letter of Authorization (LOA) issued pursuant to § 216.106 of this chapter and § 217.326 or § 217.327, LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the area described in § 217.320(b) in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact and vibratory pile driving and drilling (foundation installation), UXO/MEC detonations, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving of WTG and ESP foundations and UXO/MEC detonations;
(c) Take by mortality or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species:
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Atlantic white-sided dolphin | Lagenorhynchus acutus | Western North Atlantic. |
| Blainsville's beaked whale | Mesoplodon densirostris | Western North Atlantic. |
| Blue whale | Balaenoptera musculus | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic, offshore. |
| Clymene dolphin | Stenella clymene | Western North Atlantic. |
| Cuvier's beaked whale | Ziphius cavirostris | Western North Atlantic. |
| Dwarf sperm whale | Kogia sima | Western North Atlantic. |
| False killer whale | Pseudorca crassidens | Western North Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Fraser's dolphin | Lagenodelphis hosei | Western North Atlantic. |
| Gervais' beaked whale | Mesoplodon europaeus | Western North Atlantic. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
| Harp seal | Pagophilus groenlandicus | Western North Atlantic. |
| Hooded seal | Cystophora cristata | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine |
| Killer whale | Orcinus orca | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Melon-headed whale | Peponocephala electra | Western North Atlantic. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| North Atlantic right whale | Eubalaena glacialis | Western North Atlantic. |
| Northern bottlenose whale | Hyperoodon ampullatus | Western North Atlantic. |
| Pantropical spotted dolphin | Stenella attenuata | Western North Atlantic. |
| Pygmy killer whale | Feresa attenuata | Western North Atlantic. |
| Pygmy sperm whale | Kogia breviceps | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Rough-toothed dolphin | Steno bredanensis | Western North Atlantic. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Short-beaked common dolphin | Delphinus delphis | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Sowerby's beaked whale | Mesoplodon bidens | Western North Atlantic. |
| Sperm whale | Physeter macrocephalus | Western North Atlantic. |
| Spinner dolphin | Stenella longirostris | Western North Atlantic. |
| Striped dolphin | Stenella coeruleoalba | Western North Atlantic. |
| True's beaked whale | Mesoplodon mirus | Western North Atlantic. |
| White-beaked dolphin | Lagenorhynchus albirostris | Western North Atlantic. |
Except for the takings described in § 217.322 and authorized by a LOA issued under § 217.326 or § 217.327, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under this subpart;
(b) Take any marine mammal not specified in § 217.322(d);
(c) Take any marine mammal specified in § 217.322(d) in any manner other than as specified in § 217.322(a) and (b); or
(d) Take any marine mammal specified in § 217.322(d), after NMFS Office of Protected Resources determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the specified activities in the specified geographical region, LOA Holder must implement the following mitigation measures contained in this section and any LOA issued under §§ 217.326 and 217.327. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(i) A copy of the Marine Mammal Monitoring Plan must be made available on all vessels and staffed platforms. A simple guide must be included with the Marine Mammal Monitoring Plan to aid personnel in identifying species if they are observed in the vicinity of the project area.
(ii) [Reserved]
(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information regarding the establishment of mandatory or voluntary speed restrictions (e.g., Dynamic Management Areas (DMAs), Seasonal Management Areas (SMAs), and/or acoustically-triggered slow zones),and any information regarding North Atlantic right whale sighting locations to provide situational awareness for both vessel operators, PSO(s), and PAM operators; The marine mammal monitoring team must monitor these systems no less than every 4 hours;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) LOA Holder must establish and implement minimum visibility, clearance, and shutdown zones as described in the LOA. For North Atlantic right whales, any visual detection by a PSO at any distance or acoustic detection by PAM operators within the PAM monitoring zone (where applicable for the specified activities) must trigger a delay to the commencement of pile driving (i.e., impact pile driving and vibratory pile driving) and drilling;
(6) PSOs and PAM operators have the authority to call for a delay or shutdown to an activity, and LOA Holder must instruct all vessel personnel regarding the authority of the PSOs and PAM operators. If a delay to commencing an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by a PSO or PAM operator, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreement between the PSO, PAM operator, and the activity operator regarding delays or shutdowns must only be discussed after the mitigative action has occurred;
(7) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant clearance zone prior to beginning a specified activity (e.g., pile driving (impact and vibratory), drilling, UXO/MEC detonations, and HRG acoustic sources), the activity must be delayed. If an activity is ongoing and individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant shutdown zone, the activity must be shut down (i.e., cease) immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left the clearance area and is on a path away from the applicable zone or after 15 minutes with no further sightings for small odontocetes and pinnipeds or 30 minutes with no further sightings for all other species;
(8) Foundation installation (i.e., impact and vibratory pile driving, drilling), UXO/MEC detonation, and HRG survey activities must only commence when minimum visibility zones (for UXO/MEC detonations the visual clearance zones) are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and the clearance zones are clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to initiation of equipment (i.e., vibratory and impact pile driving, drilling, UXO/MEC detonations, and HRG surveys that use boomers, sparkers). Any marine mammals observed within a clearance or shutdown zone must be allowed to remain in the area (i.e., must leave of their own volition) prior to commencing foundation installation activities, UXO/MEC detonation, or HRG surveys;
(9) In the event that a large whale species is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(10) For in-water construction heavy machinery activities listed in § 217.320(c), if a marine mammal is on a path towards or comes within 10 meters (m; 32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(12) By accepting the LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures while in the specified geographical region, unless a deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, life of a person; or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in distress or environmental crisis response. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm.
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum: Identification of marine mammals that have the potential to occur in the specified geographical region; detection and observation methods in good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel strike avoidance mitigation requirements; and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project.
(i) Confirmation of the vessel personnel's training and understanding of the LOA requirements must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to vessel activities.
(ii) [Reserved]
(2) All vessel operators and dedicated visual observers must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) All underway vessels operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180 degree direction of the forward path of the vessel (90 degree port to 90 degree starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Dedicated visual observers may be third-party observers (i.e., NMFS-approved PSOs; see § 217.325(a)) or trained crew members (see paragraph (b)(1) of this section). Dedicated visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must not have any other duties while observing for marine mammals and must receive prior training on protected species detection and identification, vessel strike avoidance procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart;
(4) All vessel operators and dedicated visual observers on each transiting vessel must continuously monitor U.S. Coast Guard VHF Channel 16, at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the project's Situational Awareness System (if applicable), WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales. Any large whale sighting by any Project personnel must be communicated immediately to all project-associated vessels;
(5) Any observations of any large whale by any LOA Holder staff or contractor, including vessel crew, must be communicated immediately to on-duty PSOs, PAM operators, and all vessel captains to increase situational awareness;
(6) All vessel operators must abide by existing applicable vessel speed regulations (50 CFR 224.105). Nothing in this subpart exempts vessels from any other applicable marine mammal speed or approach regulations;
(7) Vessels, regardless of size, must not travel over 10 kn (11.5 mph) from November 1st through April 30th, annually, in the specified geographical region. During all other time periods, all vessels must transit active Slow Zones (i.e., DMAs or acoustically-triggered slow zone), and SMAs at 10 kn or less (11.5 mph);
(i) If vessel(s) are traveling at speeds greater than 10 kn (11.5 mph) (i.e., no speed restrictions are enacted) in the transit corridor (defined as from a port to the Lease Area or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits.
(ii) [Reserved]
(8) All vessels operators, regardless of their vessel's size, must immediately reduce speed to 10 kn or less when any large whale (other than a North Atlantic right whale), mother/calf pairs, or large assemblages of cetaceans are observed within 500 m (0.31 mi) of a transiting vessel;
(9) All vessels, regardless of size, must immediately reduce speed to 10 kn (11.5 mph) or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area must trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (described in paragraph (b)(4) of this section) within 10 km of a transiting vessel(s), that vessel must operate at 10 kn (11.5 mph) or less for 24 hours following the reported detection. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(10) All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn (11.5 mph) or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must turn away from the whale(s), reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. All vessels must comply with North Atlantic right whale approach restrictions at 50 CFR 224.103(c);
(11) All vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, that vessel must turn away from the whale(s), reduce speed, and shift the engine(s) to neutral. Engines must then not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(12) All vessels must maintain a minimum separation distance of 50 m from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (e.g., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, that vessel must turn away from the animal(s), reduce speed, and shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(13) When a marine mammal(s) is sighted while a vessel is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(14) All vessels underway must not divert or alter course to approach any marine mammal; and
(15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. The plan must also provide details on the transit corridor. If a plan is not submitted and approved by NMFS prior to vessel operations, all project vessels must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with any approved Marine Mammal Vessel Strike Avoidance Plan.
(c) WTG and ESP foundation installation. The following requirements apply to impact and vibratory pile driving and drilling activities associated with the installation of WTG and ESP foundations:
(1) Impact pile driving and drilling must not occur January 1 through April 30, annually. Impact pile driving and drilling must not be planned in December; however, it may only occur if necessary to complete the Project within a given year with prior approval by NMFS. LOA Holder must notify NMFS in writing by September 1 of that year that pile driving or drilling cannot be avoided and circumstances are expected to necessitate pile driving or drilling in December;
(2) Vibratory pile driving (e.g., vibratory setting of piles) must not occur December 1-May 31, annually;
(3) Monopiles must be no larger than 13-m in diameter. Pin piles must be no larger than 4 m in diameter. During all monopile and pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 6,000 kilojoules (kJ) for monopile installations and 3,500 kJ for pin pile installation. No more than two monopiles or four pin piles may be installed per day. No concurrent pile driving (i.e., impact pile driving or vibratory pile driving) or drilling may occur. All mitigation measures required for or applicable to jacket foundations are required for bottom-frame foundations that utilize pile foundations;
(i) LOA Holder must not initiate foundation installation (impact pile driving, vibratory pile driving, and drilling) except during daylight hours; daylight hours are defined as no earlier than 1 hour after civil sunrise and no later than 1.5 hours prior to civil sunset. Foundation installation may only continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability; and
(ii) LOA Holder must not initiate pile driving or drilling earlier than 1 hour after civil sunrise or later than 1.5 hours prior to civil sunset, unless LOA Holder submits, and NMFS approves, an Alternative Monitoring Plan for Nighttime Foundation Installation (i.e., Nighttime Foundation Installation Plan), that demonstrates the efficacy of their night vision devices to effectively monitor the mitigation zones. LOA Holder must submit this plan or plans (if separate Daytime Reduced Visibility and Nighttime Monitoring Plans are prepared) at least 180 calendar days before foundation installation is planned to begin. This plan(s) must include, but is not limited to, a complete description of how LOA Holder will monitor foundation installation activities during reduced visibility conditions (e.g., rain, fog) and at night, including proof of the efficacy of monitoring devices (e.g., mounted thermal/infrared camera systems, hand-held or wearable night vision devices NVDs, spotlights) in detecting marine mammals over the full extent of the required clearance and shutdown zones, including demonstration that the full extent of the minimum visibility zones can be effectively and reliably monitored. The plan must identify the efficacy of the technology at detecting marine mammals in the clearance and shutdown zones under all the various conditions anticipated during construction, including varying weather conditions, sea states, and in consideration of the use of artificial lighting. If the plan does not include a full description of the proposed technology, monitoring methodology, and data demonstrating to NMFS Office of Protected Resources' satisfaction that marine mammals can reliably and effectively be detected within the clearance and shutdown zones for monopiles and pin pile before and during pile driving and drilling, nighttime foundation installation (unless a pile was initiated 1.5 hours prior to civil sunset) may not occur. Additionally, this plan must contain a thorough description of how LOA Holder will monitor foundation installation activities during daytime when unexpected changes to lighting or weather occur during pile driving (i.e., impact or vibratory) or drilling that prevent visual monitoring of the full extent of the clearance and shutdown zones.
(4) LOA Holder must utilize soft-start at the beginning of monopile and pin pile impact pile driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(5) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance around the pile driving or drilling location;
(6) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.325. At least nine on-duty PSOs must be actively observing marine mammals before, during, and after installation of foundation piles (i.e., monopiles and pin piles). At least three on-duty PSOs must be stationed and observing on the foundation installation vessel/platform. A minimum of three PSOs must be active on each of the two dedicated PSO vessels. On-duty PSOs must be located at the best vantage point to observe and document marine mammal sightings in proximity to the clearance and, if applicable, shutdown zones. Concurrently, at least one PAM operator must be actively monitoring for marine mammals with PAM 60 minutes before, during, and 30 minutes after pile driving and drilling in accordance with a NMFS-approved PAM Plan;
(7) PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving or drilling. At least one PAM operator must review data from at least 24 hours prior to pile driving or drilling and actively monitor hydrophones for 60 minutes prior to, at all times during, and for 30 minutes after pile driving and drilling. The entire minimum visibility zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for a full 60 minutes immediately prior to commencing pile driving or drilling. All clearance zones must be confirmed to be free of marine mammals for 30 minutes immediately prior to the beginning of pile driving, drilling, and soft-start procedures. PAM operators must immediately communicate all detections of marine mammals at any distance to the Lead PSO, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination;
(8) If a marine mammal is detected within or about to enter the applicable clearance zones during the clearance periods defined in paragraph (c)(7) of this section, activities must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other species;
(i) For foundation installation activities between May 1-May 14 and November 1-December 31, if a North Atlantic right whale is observed at any distance or acoustically detected within the PAM monitoring zone of the pile being driven (impact or vibratory) or area being drilled, pile driving and drilling must be delayed or stopped (unless activities must proceed for human safety or installation feasibility concerns) and may not resume until the following day or until the animal is confirmed to have exited the zone via aerial or additional vessel surveys;
(ii) [Reserved]
(9) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all pile driving and drilling and comply with the following measures:
(i) A single bubble curtain must not be used;
(ii) A big double bubble curtain may be used without being paired with another noise attenuation device;
(iii) The bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(min*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible noise attenuation performance of the bubble curtain(s) is achieved;
(iv) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(v) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(vi) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed;
(vii) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(9) must occur prior to pile driving and drilling of foundation piles. For any noise mitigation device in addition to the bubble curtain, LOA Holder must inspect and carry out appropriate maintenance on the system and ensure the system is functioning properly prior to every pile driving event; and
(viii) LOA Holder must inspect and carry out appropriate maintenance on the noise attenuation system prior to every foundation installation event (i.e., for each pile driven foundation) and UXO/MEC detonation and prepare and submit a Noise Attenuation System (NAS) inspection/performance report to NMFS Office of Protected Resources. For piles for which Thorough sound field verification (SFV) is carried out, this report must be submitted as soon as it is available, but no later than when the interim SFV report is submitted for the respective pile.
(10) PAM operator(s) must review data from at least 24 hours prior to pile driving and drilling and actively monitor hydrophones for 60 minutes prior to pile driving and drilling. All clearance zones must be acoustically confirmed to be free of marine mammals for 60 minutes before activities can begin immediately prior to starting vibratory pile driving, drilling, and a soft-start of impact pile driving. PAM operators will continue to monitor for marine mammals for at least 30 minutes after pile driving or drilling concludes. The exact details for PAM requirements must be submitted to NMFS within the PAM plan;
(i) LOA Holder must implement PAM in accordance with the NMFS-approved PAM Plan, as described in § 217.325(c)(9). The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (0.6 mi) to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be designed to detect all marine mammals to the maximum extent practicable, maximize baleen whale detections, and must be capable of detecting North Atlantic right whales within the PAM monitoring zone;
(ii) [Reserved]
(11) For North Atlantic right whales, any visual observation by a PSO at any distance or acoustic detection within the PAM Monitoring Zone must trigger a delay to the commencement of pile driving. The North Atlantic right whale clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period. Any large whale sighting by a PSO or detected by a PAM operator that cannot be identified as a non-North Atlantic right whale must be treated as if it were a North Atlantic right whale;
(12) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving or drilling. If a marine mammal is detected entering or within the respective shutdown zone after pile driving or drilling has begun, LOA Holder must stop pile driving or drilling immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving or drilling is not shut down, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see § 217.325(f));
(13) A visual observation or acoustic detection of a North Atlantic right whale at any distance by PSOs or an acoustic detection within the PAM monitoring zone triggers shutdown requirements under paragraph (c)(12) of this section. If pile driving or drilling has been shut down due to the presence of a North Atlantic right whale, pile driving or drilling may not restart until the North Atlantic right whale has neither been visually or acoustically detected by on-duty PSOs and PAM operators for 30 minutes;
(14) If pile driving or drilling has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving or drilling must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability; and
(15) LOA Holder must conduct SFV during the following foundation installation activities in accordance with the following requirements:
(i) For the first construction year, Thorough SFV must be conducted for the first three monopiles installed with only an impact hammer (i.e., impact pile driving); the first three monopiles installed with a vibratory hammer (i.e., vibratory pile driving or setting) followed by an impact hammer; the first two jacket foundations (all piles) installed; the first foundation (regardless of type) where drilling is used; the first monopile and first jacket foundation (all piles) installed in December (winter sound speed profile); and, the first foundation for any foundation scenarios that were modeled for the exposure analysis (e.g., rated hammer energy, number of strikes, representative location) that does not fall into one of the previously listed categories (e.g., if the first two jacket foundation are installed with only an impact hammer, Thorough SFV would be required for the first jacket foundation installed with vibratory and impact pile driving);
(ii) For any subsequent construction year, Thorough SFV must be conducted on the first monopile and first jacket foundation (all piles) if there are no changes to the pile driving equipment (e.g., same hammer, same Noise Attenuation System); Thorough SFV requirements for the first construction year apply if a revised Facilities Design Report and Fabrication and Installation Report (FDR/FIR) or other information is submitted to BOEM and Bureau of Safety and Environmental Enforcement (BSEE) that details changes to the equipment (e.g., different hammer, different noise attenuation system); if any foundation type or technique included in the requirements for the first construction year that was not installed until a subsequent construction year (e.g., if drilling is not used until year 2 or 3, the first foundation where relief drilling is used must have Thorough SFV);
(iii) During Thorough SFV, installation of the next foundation (of the same type/foundation method) may not proceed until LOA Holder has reviewed the initial results from the Thorough SFV and determined that there were no exceedances of any distances to the identified thresholds based on modeling assuming 10 dB attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.). If any of the Thorough SFV measurements from any pile indicate that the distance to any isopleth of concern for any species is greater than those modeled assuming 10 dB attenuation, LOA Holder must notify NMFS within 24 hours of reviewing the Thorough SFV measurements and must implement the following measures for the next pile of the same type/installation methodology, as applicable;
(iv) If any of the Thorough SFV measurements indicate that the distances to level A thresholds for marine mammals (peak or cumulative) are greater than the modeled distances (assuming 10 dB attenuation), the clearance and shutdown zones for subsequent piles of the same type (e.g., if triggered by SFV results for a monopile, for the next monopile) must be increased so that they are at least the size of the distances to those thresholds as indicated by SFV. For every 1,500 m that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone; LOA Holder must deploy any additional PSOs consistent with the approved Marine Mammal Monitoring Plan in consideration of the size of the new zones and the species that must be monitored use of the expanded clearance and shutdown zones must continue for additional piles until LOA Holder requests and receives concurrence from NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office (GARFO) to revert to the original clearance and shutdown zones. LOA Holder must identify one or more additional, modified, and/or alternative noise attenuation measure(s) and/or operational change(s) included in the approved SFV plan that is expected to reduce sound levels to the modeled distances and must implement that measure for the next pile of the same type and pile driving method that is installed (e.g., if triggered by SFV results for a monopile installed with vibratory pile driving followed by impact pile driving, for the next monopile with vibratory pile driving followed by impact pile driving). Attenuation measures that could reduce sound levels to the modeled distances include but are not limited to adding a noise attenuation device, adjusting hammer operations, and adjusting or otherwise modifying the noise mitigation system. LOA Holder must provide written notification to NMFS Office of Protected Resources of the changes implemented within 24 hours of their implementation. Following installation of a pile with additional, alternative, or modified noise attenuation measures/operational changes if Thorough SFV results indicate that all isopleths of concern are within distances to isopleths of concern modeled assuming 10 dB attenuation, Thorough SFV must be conducted on two additional piles of the same type/installation method (for a total of at least three piles with consistent noise attenuation measures). If the Thorough SFV results from all three of those piles are within the distances to isopleths of concern modeled assuming 10 dB attenuation, then LOA Holder must continue to implement the approved additional, alternative, or modified noise attenuation measures/operational changes. LOA Holder can request concurrence from NMFS Office of Protected Resources to return to the original clearance and shutdown zones;
(v) In addition to this SFV monitoring, which will follow a specific comprehensive methodology described in the SFV Plan required in § 217.325(c)(8), LOA Holder also must conduct Abbreviated SFV for all other foundations, using at least one acoustic recorder for every foundation for which thorough SFV monitoring is not conducted. Abbreviated SFV consists of: SFV measurements made at a single acoustic recorder, consisting of a near-bottom and mid-water hydrophone, at approximately 750 m from the pile, in the direction of lowest modeled transmission loss, to record sounds throughout the duration of all pile driving (inclusive of relief drilling) of each foundation. If measured levels from Abbreviated SFV for any pile are greater than expected levels, LOA Holder must evaluate the available information from the pile installation to determine if there is an identifiable cause of the exceedance (i.e., a failure of the noise attenuation system), identify and implement corrective action, and report this information to NMFS Office of Protected Resources within 48 hours of completion of the installation of the pile (inclusive of all pile driving and drilling), during which the exceedance occurred. If LOA Holder can demonstrate that the exceedance was the result of a failure of the noise attenuation system (e.g., loss of a generator supporting a bubble curtain such that one bubble curtain failed during pile driving) that can be remedied in a way that returns the noise attenuation system to pre-failure conditions, LOA Holder can request concurrence from NMFS Office of Protected Resources to proceed without Thorough SFV monitoring that would otherwise be required within 72 hours. LOA Holder is required to remedy any such failure of the noise attenuation system prior to carrying out any additional pile driving or drilling.
(vi) Thorough SFV measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges, including at least, the modeled Level B harassment isopleth zones assuming 10 dB attenuation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement system).
(vii) The recordings must be continuous throughout the duration of all pile driving and drilling of each foundation.
(viii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving and drilling received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz); The SFV measurement systems must be designed to have omnidirectional sensitivity and so that the broadband received level of all pile driving and drilling activities exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals.
(ix) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis.
(x) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement.
(xi) LOA Holder must submit interim reports within 48 hours after each foundation is measured with Thorough SFV (§ 217.325(10) for interim and final reporting requirements).
(xii) If any of the interim Thorough SFV reports submitted indicate that SFV measurements exceed the modeled distances to Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional measures on all subsequent foundations to ensure the measured Level A and Level B harassment isopleths do not exceed those modeled for foundation installation, assuming 10dB attenuation. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. For every 1,500 m that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone; LOA Holder must optimize the noise attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to, at least, meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future piles will not exceed noise levels modeled assuming 10-dB attenuation.
(xiii) If SFV measurements collected during installation of foundation piles indicate ranges to the isopleths, corresponding to Level A harassment and Level B harassment thresholds, are greater than the ranges predicted by modeling (assuming 10 dB attenuation), LOA Holder must implement additional noise mitigation measures prior to installing the next foundation. Additional acoustic measurements must be taken after each modification.
(xiv) If, after additional measurements conducted pursuant to requirements of paragraph (c)(15)(i) and (ii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation.
(xv) LOA Holder must conduct SFV measurements during turbine operations to estimate turbine operational source levels and transmission loss rates, in accordance with a NMFS-approved SFV Plan.
(d) UXO/MEC detonations. The following requirements apply to Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) detonations:
(1) Upon encountering a UXO/MEC, LOA Holder must only resort to high-order removal (i.e., detonation) if all other means of removal are impracticable (i.e., As Low As Reasonably Practicable (ALARP) risk mitigation procedure)) and this determination must be documented and submitted to NMFS;
(i) LOA Holder may detonate a maximum of 10 UXO/MECs, of varying sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge weight (i.e., E12), over the effective period of this rulemaking and LOA(s);
(ii) LOA Holder must provide NMFS Office of Protected Resources with notification of planned UXO/MEC detonation as soon as possible but at least 48 hours prior to the planned detonation, unless this 48-hour notification would create delays to the detonation that would result in imminent risk to human life or safety.
(2) UXO/MEC detonations must not occur from December 1 through May 31, annually; however, LOA Holder may detonate a UXO/MEC in December or May with NMFS' approval on a case-by-case basis;
(3) UXO/MEC detonations must only occur during daylight hours (1 hour after civil sunrise through 1.5 hours prior to civil sunset);
(4) No more than one detonation can occur within a 24-hour period;
(5) LOA Holder must deploy dual noise abatement systems during all UXO/MEC detonations and comply with the following requirements related to noise abatement:
(i) A single bubble curtain must not be used;
(ii) A big double bubble curtain may be used without being paired with another noise attenuation device;
(iii) The bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(min*m). The bubble curtain(s) must surround 100 percent of the UXO/MEC detonation perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must make appropriate adjustments to the air supply and operating pressure such that the maximum possible noise attenuation performance of the bubble curtain(s) is achieved;
(iv) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(v) No parts of the ring or other objects may prevent full seafloor contact;
(vi) Construction contractors must train personnel in the proper balancing of airflow to the ring. Construction contractors must submit an inspection/performance report for approval by LOA Holder within 72 hours following the performance test. LOA Holder must then submit that report to NMFS Office of Protected Resources;
(vii) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (d)(5) must occur prior to UXO/MEC detonations. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in this paragraph (d)(5); and
(viii) LOA Holder must inspect and carry out appropriate maintenance on the noise attenuation system prior to every foundation installation event (i.e., for each pile driven foundation) and UXO/MEC detonation and prepare and submit a NAS inspection/performance report to NMFS Office of Protected Resources. For activities which Thorough SFV is carried out, this report must be submitted as soon as it is available, but no later than when the interim SFV report is submitted for the respective pile.
(6) LOA Holder must conduct SFV during all UXO/MEC detonations at a minimum of three locations (at two water depths at each location) from each detonation in a direction toward deeper water in accordance with the following requirements:
(i) LOA Holder must empirically determine source levels (peak and cumulative sound exposure level), the ranges to the isopleths corresponding to the Level A harassment and Level B harassment thresholds in meters, and the transmission loss coefficient(s). LOA Holder may estimate ranges to the Level A harassment and Level B harassment isopleths by extrapolating from in-situ measurements conducted at several distances from the detonation location monitored.
(ii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from detonations received at the nominal ranges throughout the detonation; the frequency range of the SFV measurement systems must cover the range of at least 20 Hz to 20 kHz; and the SFV measurement systems will be designed to have omnidirectional sensitivity and will be designed so that the predicted broadband received level of all UXO/MEC detonations exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement systems must be sufficient such that at each location, the signals avoid poor signal-to-noise ratios for low amplitude signals and the signals avoid clipping, nonlinearity, and saturation for high amplitude signals.
(iii) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to IEC 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis.
(iv) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement.
(v) LOA Holder must submit interim reports within 48 hours after each UXO/MEC detonation is measured (see § 217.325(f)(10) for interim and final reporting requirements).
(vi) If SFV measurements collected during UXO/MEC detonation indicate ranges to the isopleths, corresponding to Level A harassment and Level B harassment thresholds, are greater than the ranges predicted by modeling (assuming 10 dB attenuation), LOA Holder must implement additional noise mitigation measures prior to the next UXO/MEC detonation. Additional acoustic measurements must be taken after each modification. LOA Holder must also increase the clearance zone size to reflect the results of SFV in collaboration with NMFS Office of Protected Resources. Use of the expanded clearance zone must continue for all additional detonations until LOA Holder requests and receives concurrence from NMFS Office of Protected Resources to revert to the original clearance zone. LOA Holder must provide written notification to NMFS Office of Protected Resources of the changes planned for the next detonation within 24 hours of implementation.
(vii) LOA Holder must optimize the noise attenuation systems (e.g., ensure hose maintenance, pressure testing, etc.) to, at least, meet noise levels modeled, assuming 10-dB attenuation, UXO/MEC detonation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future detonations will not exceed noise levels modeled assuming 10-dB attenuation.
(viii) LOA Holder must identify one or more additional, modified, and/or alternative noise attenuation measures or other change to the detonation plans (included in the SFV Plan) that is expected to reduce sound levels to the modeled distances. These measures must be implemented for the next detonation.
(7) LOA Holder must establish and implement clearance zones for UXO/MEC detonation using both visual and acoustic monitoring, as described in the LOA;
(8) At least six on-duty PSOs must be actively observing marine mammals before, during, and after any UXO/MEC detonation. At least three on-duty PSOs must be stationed and observing on a vessel as close as safely possible to the detonation site and, in addition, at least three on-duty PSOs must be stationed on an additional PSO-dedicated vessel or aerial platform. Concurrently, at least one acoustic monitoring PSO (i.e., passive acoustic monitoring (PAM) operator) must be actively monitoring for marine mammals with PAM before, during, and after detonation;
(i) Clearance zones must be increased to reflect the results of SFV. For every 1,500 m that a clearance zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded zone.
(ii) [Reserved]
(9) If the clearance zone is larger than 2 km (based on charge weight), LOA Holder must deploy an additional PSO-dedicated vessel or aircraft with at least three on-duty PSOs stationed on it and actively observing for marine mammals. If the clearance zone is larger than 5 km (based on charge weight), an aerial platform must be used unless LOA Holder is unable to secure an aerial platform(s) with the appropriately trained pilots and PSOs. In such a case, the LOA Holder must submit an alternative monitoring plan at least 90 days before any UXO/MEC detonation that would describe how they would effectively monitor clearance zones beyond 5 km, including an explanation of additional vessels/platforms and PSO deployments. This plan must be approved by NMFS before any UXO/MEC detonation may occur;
(i) If an aircraft is used, two on-duty PSOs must be used and located at the appropriate vantage point on the aircraft. These additional PSOs would maintain watch during the same time period as the PSOs on the primary monitoring vessel.
(ii) [Reserved]
(10) At least one PAM operator must review data from at least 24 hours prior to a detonation and actively monitor hydrophones for 60 minutes prior to detonation. All clearance zones must be acoustically confirmed to be free of marine mammals for 60 minutes prior to commencing a detonation. PAM operators will continue to monitor for marine mammals at least 30 minutes after a detonation;
(11) All clearance zones must be visually confirmed to be free of marine mammals for 30 minutes before a detonation can occur. All on-duty PSOs must also maintain watch for 30 minutes after the detonation event;
(12) If a marine mammal is observed entering or within the relevant clearance zone prior to the initiation of a detonation, detonation must be delayed and must not begin until either the marine mammal(s) has voluntarily left the specific clearance zones and have been visually and acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species;
(13) For North Atlantic right whales, any visual observation or acoustic detection must trigger a delay to the detonation of a UXO/MEC. Any large whale sighting by a PSO or detected by a PAM operator that cannot be identified by species must be treated as if it were a North Atlantic right whale; and
(14) A pressure transducer must be used to monitor pressure levels during all UXO/MEC detonations.
(e) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) (i.e., boomers, sparkers):
(1) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(2) LOA Holder is required to have at least one PSO on active duty per HRG vessel during HRG surveys that are conducted during daylight hours (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs on active duty per vessel during HRG surveys that are conducted during nighttime hours;
(3) LOA Holder is required to ramp-up SBPs prior to commencing full power, unless the equipment operates on a binary on/off switch, and ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA;
(4) Ramp-ups must be scheduled so as to minimize the time spent with the source activated. Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible. Ramp-up may occur at times of poor visibility, including nighttime, only if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(i) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed.
(ii) [Reserved]
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, LOA Holder is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the source operates on a binary on/off switch (in which case ramp-up is not required). LOA Holder must also ensure visual clearance zones are fully visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources; Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(6) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring; LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30 minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(7) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(8) Any large whale sighted by a PSO within 1 km of the acoustic source(s) that cannot be identified by species must be treated as if it were a North Atlantic right whale and LOA Holder must apply the mitigation measure applicable to this species;
(9) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight.
(10) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (e)(10) is detected in the shutdown zone;
(11) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammals have elapsed with no further sighting;
(12) LOA Holder must immediately shutdown any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (e)(10) of this section is detected in the shutdown zone;
(13) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones; and
(14) If multiple HRG vessels are operating concurrently, any observations of marine mammals must be communicated to PSOs on all nearby survey vessels.
(f) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification. Marine mammal monitoring will be conducted by the captain and/or a member of the scientific crew before within 1 nautical mile (nmi) (1.85 km; 1.2 mi) and 15 minutes prior to deploying gear), during, and for 15 minutes after haul back;
(2) Survey gear will be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nmi (1.85 km; 1.2 mi) of the sampling station;
(3) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially-hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nmi (1.2 mi) of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially-hired captains must move again or skip the station;
(4) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(5) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, LOA Holder must take the most appropriate action to avoid marine mammal interaction;
(6) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(7) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(8) Trawl tows will be limited to a maximum of a 20-minute trawl time and must not exceed 3.0 kn (3.45 mph);
(9) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(10) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(11) During any survey that uses vertical lines, buoy lines will be weighted and will not float at the surface of the water and all groundlines will consist of sinking line. All groundlines must be composed entirely of sinking line. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(12) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder-related research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA GARFO Protected Resources Division;
(13) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage);
(14) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear; and
(15) All lost gear associated with the fishery surveys must be reported to NOAA GARFO Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
LOA Holder must implement the following monitoring and reporting requirements when conducting the specified activities:
(a) Protected species observer (PSO) and passive acoustic monitoring (PAM) operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes but is not limited to: previous work experience conducting academic, commercial, or government sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator. All PSO's and PAM operators should demonstrate good standing and consistently good performance of all assigned duties;
(3) All PSOs and PAM operators must successfully complete a required training course within the last 5 years, including obtaining a certificate of course completion;
(4) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(5) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). Lead PSO(s) and Lead PAM operator(s) must be unconditionally approved and have a minimum of 90 days in a northwestern Atlantic Ocean offshore environment performing the role (either visual or acoustic), with the conclusion of the most recent relevant experience not more than 18 months previous. A conditionally approved PSO or PAM operator must be paired with an unconditionally approved PSO or PAM operator;
(i) PSOs for HRG surveys may be unconditionally or conditionally approved. PSOs and PAM operators for foundation installation and UXO/MEC detonation must be unconditionally approved;
(ii) LOA Holder must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(iii) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training and include which specific roles and activities the PSOs/PAM operators are being requested for. PAM operator experience must also include the information described in paragraph (a)(5)(iv) of this section;
(iv) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior large whale PAM experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems that will be used for the Project; PAM operators must demonstrate that they are able to detect and identify Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and that they are able to deconflict humpback whale sounds from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, or not detected and similar terminology must be used across companies/projects; where localization of sounds or deriving bearings and distance are possible, the PAM operators must have demonstrated experience in the localization of sounds or deriving bearings and distance; PAM operators must be independent observers (i.e., not construction personnel); PAM operators must demonstrate experience with relevant acoustic software and equipment; PAM operators must have the qualifications and relevant experience/training to safely deploy and retrieve equipment and program the software, as necessary; PAM operators must be able to test software and hardware functionality prior to operation; and PAM operators must have evaluated their acoustic detection software using the PAM Atlantic baleen whale annotated data set available at National Centers for Environmental Information (NCEI) and provide evaluation/performance metric;
(6) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(5) and (6) of this section);
(7) At least one on-duty PSO and PAM operator, where applicable, for each activity (i.e., foundation installation, UXO/MEC detonation activities, and HRG surveys) must be designated as the Lead PSO. The Lead PSO must be unconditionally approved; and
(8) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which will be tallied cumulatively.
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following pile driving, drilling, UXO/MEC detonation activities, and HRG surveys that use sub- bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) PAM operator(s) must acoustically monitor for marine mammals prior to, during, and following all pile driving, drilling, and UXO/MEC detonation activities. PAM operators may be located on a vessel or remotely on-shore but must have the appropriate equipment (i.e., computer station equipped with a data collection software system available wherever they are stationed) and be in real-time communication with PSOs and transiting vessel captains;
(3) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible, PAM operators may be located on a vessel or remotely on-shore. The PAM operator(s) must assist PSOs in ensuring full coverage of the clearance and shutdown zones;
(4) All on-duty visual PSOs must remain in real-time contact with the on-duty PAM operator(s). PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., detected, possibly detected, not detected) in the determination. All on-duty Lead PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving or UXO/MEC detonation) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel.
(i) The on-duty PAM operator(s) must inform the on-duty Lead PSO(s) of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system, (e.g., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay, shutdown); and
(ii) Any visual observations of marine mammals by any Project personnel must be communicated immediately to on-duty PSOs and vessel captains associated with other Project vessels to increase situational awareness.
(5) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During pile driving and drilling, at least the PSOs on the pile driving and drilling platform(s) and any dedicated PSO vessel that may be used must be equipped with functional Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control). These must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. A minimum of three on-duty PSOs must be active on a dedicated PSO vessel. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) in accordance with a NMFS-approved PAM Plan;
(6) During all acoustic monitoring periods during the Project, PAM operators must use PAM systems approved by NMFS;
(7) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (e.g., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS;
(8) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period;
(9) Any PSO or PAM operator has the authority to call for a delay or shutdown of project activities;
(10) PSOs must remain in real-time contact with the PAM operators and construction personnel responsible for implementing mitigation (e.g., delay to pile driving or UXO/MEC detonation) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water Project personnel; and
(11) LOA Holder is required to use available sources of information on North Atlantic right whale presence to aid in monitoring efforts. These include daily monitoring of the Right Whale Sightings Advisory System, consulting of the WhaleAlert app, and monitoring of the Coast Guard's VHF Channel 16 throughout the day to receive notifications of any sightings and information associated with any DMA, to plan construction activities and vessel routes, if practicable, to minimize the potential for co-occurrence with North Atlantic right whales.
(c) PSO and PAM operator requirements during WTG and ESP foundation installation. The following measures apply to PSOs and PAM operators during WTG and ESP foundation installation and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s) must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving and drilling. If PSOs cannot visually monitor the minimum visibility zone prior to pile driving and drilling at all times using the equipment described in paragraphs (b)(5) and (7) of this section, pile driving and drilling operations must not commence or must shutdown if they are currently active;
(2) All PSOs and PAM operators must begin monitoring 60 minutes prior to pile driving and drilling, during, and for 30 minutes after the activity. Pile driving and drilling must only commence when the minimum visibility zone is fully visible (e.g., not obscured by darkness, rain, fog, etc.) and the clearance zones are clear of marine mammals for at least 30 minutes, as determined by the Lead PSO, immediately prior to the initiation of pile driving or drilling. PAM operators must assist the visual PSOs in monitoring by conducting PAM activities 60 minutes prior to any pile driving or drilling, during, and after for 30 minutes for the appropriate size PAM clearance zone (dependent on season). The entire minimum visibility zone must be clear for at least 30 minutes, with no marine mammal detections within the visual or PAM clearance zones prior to the start of pile driving or drilling;
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving and drilling activities, The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving or drilling.
(4) During use of any real-time PAM system, at least one PAM operator must be designated to monitor each system by viewing data or data products that would be streamed in real-time or in near real-time to a computer workstation and monitor;
(5) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the pile driving activity via the data collection software system (i.e., Mysticetus or similar system) who will be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay or shutdown);
(6) All monitoring and reporting measures required for or applicable to jacket foundations are required for bottom-frame foundations that utilize pile foundations;
(7) LOA Holder must prepare and submit a Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days before the planned start of any pile driving or drilling and abide by the plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this plan prior to the start of any pile driving or drilling. The plan must include final foundation project design (e.g., number and type of piles, hammer type, noise abatement systems, anticipated start date, etc.) and all information related to PAM and PSO monitoring protocols for foundation installation activities. No foundation pile installation can occur without NMFS' approval of the plan;
(8) LOA Holder must submit an SFV plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the required foundation installation sites selected for SFV measurements are representative of the rest of the installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. This SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the noise attenuation methodology would be evaluated based on the results. SFV for pile driving and drilling must not occur until NMFS approves the SFV Plan for this activity;
(9) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities and abide by the plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the PAM Monitoring Zone. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division; and
(10) LOA Holder must submit a Nighttime Monitoring Plan for foundation installation if LOA Holder intends to pile drive or drill outside the daily restriction in § 217.324(c). This plan must be submitted to NMFS Office of Protected Resources at least 180 calendar days before foundation installation is planned to begin. This plan(s) must contain a thorough description of how LOA Holder will monitor foundation installation activities (drilling, vibratory and impact pile driving) and at night, including proof of the efficacy of monitoring devices (e.g., mounted thermal/infrared camera systems, hand-held or wearable NVDs, spotlights) in detecting marine mammals over the full extent of the required clearance and shutdown zones, including demonstration that the full extent of the minimum visibility zones can be effectively and reliably monitored. The plan must identify the efficacy of the technology at detecting marine mammals and sea turtles in the clearance and shutdown zones under all the various conditions anticipated during construction, including varying weather conditions, sea states, and in consideration of the use of artificial lighting. If the plan does not include a full description of the proposed technology, monitoring methodology, and data demonstrating to NMFS' satisfaction that marine mammals can reliably and effectively be detected within the clearance and shutdown zones for monopiles and jacket foundations before and during foundation installation (drilling, vibratory and impact pile driving), nighttime foundation installation must not occur; the only exception would be if safety necessitates continuing pile installation after dark for a foundation that was initiated 1.5 hours prior to civil sunset, in which case the Low Visibility components of the Monitoring Plan would be implemented.
(d) PSO requirements during UXO/MEC detonations. The following measures apply to PSOs UXO/MEC detonations and must be implemented by LOA Holder:
(1) All on-duty visual PSOs must remain in contact with the on-duty PAM operator, who would monitor the PAM systems for acoustic detections of marine mammals in the area, regarding any animal detection that might be approaching or found within the applicable zones no matter where the PAM operator is stationed (e.g., onshore or on a vessel);
(2) If PSOs cannot visually monitor the clearance zone at all times using the equipment described in paragraphs (b)(5) and (7) of this section; UXO/MEC operations must not commence or must shutdown if they are currently active;
(3) All PSOs must begin monitoring 60 minutes prior to UXO/MEC detonation, during, and for 30 minutes after the activity. UXO/MEC detonation must only commence when the minimum visibility zone is fully visible (e.g., not obscured by darkness, rain, fog, etc.) and the clearance zones are clear of marine mammals for at least 30 minutes, as determined by the Lead PSO, immediately prior to the initiation of detonation. PAM operators must assist the visual PSOs in monitoring by conducting PAM activities 60 minutes prior to any UXO/MEC detonation, during, and after for 30 minutes for the appropriate size PAM clearance zone. The entire clearance zone must be clear for at least 30 minutes, with no marine mammal detections within the visual or PAM clearance zones prior to the initiation of detonation;
(4) For North Atlantic right whales, any visual or acoustic detection must trigger a delay to the commencement of UXO/MEC detonation. In the event that a large whale is sighted or acoustically detected that cannot be confirmed by species, it must be treated as if it were a North Atlantic right whale;
(5) LOA Holder must conduct PAM for at least 24 hours immediately prior to foundation installation and UXO/MEC detonation activities;
(6) During use of any real-time PAM system, at least one PAM operator must be designated to monitor each system by viewing data or data products that would be streamed in real-time or in near real-time to a computer workstation and monitor;
(7) LOA Holder must use a minimum of one PAM operator to actively monitor for marine mammals before, during, and after UXO/MEC detonation. The PAM operator must assist visual PSOs in ensuring full coverage of the clearance and shutdown zones. The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system (i.e., Mysticetus or similar system) who will be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay or shutdown);
(8) PSOs and PAM operators must be on watch for a maximum of 4 consecutive hours, followed by a break of at least 2 hours between watches, and may not exceed a combined watch schedule of more than 12 hours in a single 24-hour period;
(9) LOA Holder must prepare and submit a Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days before the start of any detonation and abide by the plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any UXO/MEC detonation. The plan must include a description of how all relevant mitigation and monitoring requirements contained in the LOA and those included as part of the action will be implemented; a pile driving installation summary and sequence of events; a description of all monitoring equipment and evidence (i.e., manufacturer's specifications, reports, testing) that it can be used to effectively monitor and detect marine mammals in the identified clearance and shutdown zones (i.e., field data demonstrating reliable and consistent ability to detect large whales at the relevant distances in the conditions planned for use); communications and reporting details; final UXO/MEC detonation project design (e.g., number and type of UXO/MECs, removal method(s), charge weight(s), anticipated start date, etc.) and all information related to PAM and PSO monitoring protocols (including number and location of PSOs) for UXO/MEC activities. The Plan(s) must demonstrate sufficient PSO and PAM Operator staffing (in accordance with watch shifts), PSO and PAM Operator schedules, and contingency plans for instances if additional PSOs and PAM Operators are required including any expansion of clearance and/or shutdown zones that may be required as a result of SFV. The plan(s) must contain a thorough description of how LOA Holder will monitor foundation installation activities (drilling, vibratory and impact pile driving) during reduced visibility conditions (e.g. rain, fog) and in other low visibility conditions, including proof of the efficacy of monitoring devices (e.g., mounted thermal/infrared camera systems, hand-held or wearable NVDs, spotlights) in detecting marine mammals over the full extent of the required clearance and shutdown zones, including demonstration that the full extent of the minimum visibility zones can be effectively and reliably monitored. The plan must identify the efficacy of the technology at detecting marine mammals in the clearance and shutdown zones under all the various conditions anticipated during construction, including varying weather conditions, sea states, and in consideration of the use of artificial lighting. The plan must contain a thorough description of how LOA Holder will monitor foundation installation activities during daytime when unexpected changes to lighting or weather occur during pile driving that prevent visual monitoring of the full extent of the clearance and shutdown zones. No UXO/MEC detonation can occur without NMFS' approval of the Plan;
(10) A Passive Acoustic Monitoring Plan (“PAM Plan”) must be submitted to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation and prior to the start of any UXO/MEC detonation(s). The authorization to take marine mammals would be contingent upon NMFS Office of Protected Resources approval of the PAM Plan. The Plan must include a description of all proposed PAM equipment and hardware, the calibration data, bandwidth capability and sensitivity of hydrophones, and address how the proposed passive acoustic monitoring will follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind (Van Parijs et al., 2021). The Plan must describe and include all procedures, documentation, and protocols including information (i.e., testing, reports, equipment specifications) to support that it will be able to detect vocalizing whales within the clearance and shutdown zones, including deployment locations, procedures, detection review methodology, and protocols; hydrophone detection ranges with and without foundation installation activities and data supporting those ranges; communication time between call and detection, and data transmission rates between PAM Operator and PSOs on the pile driving vessel; where PAM Operators will be stationed relative to hydrophones and PSOs on pile driving vessel calling for delay/shutdowns; and a full description of all proposed software, call detectors, and filters. The Plan must also incorporate the requirements relative to North Atlantic right whale reporting. No UXO/MEC detonation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division; and
(11) LOA Holder must submit an SFV plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned UXO/MEC detonation activities and abide by the plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division's concurrence with this Plan prior to the start of any UXO/MEC detonations. At minimum, the SFV Plan must include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the noise attenuation methodology would be evaluated based on the results. SFV for UXO/MEC detonation must not occur until NMFS approves the SFV Plan for this activity.
(e) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using boomers, and sparkers and must be implemented by LOA Holder:
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs must be on activity duty monitoring during HRG surveys conducted at night;
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased. Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(4) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of the specified activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: Date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., vibratory installation/removal, impact pile driving, construction survey), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; and other human activity in the area, and; other applicable information, as required in any LOA issued under the final rule;
(4) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS Office of Protected Resources: Location of hydrophone (latitude & longitude; in Decimal Degrees) and site name; bottom depth and depth of recording unit (in meters); recorder (model & manufacturer) and platform type (i.e., bottom-mounted, electric glider, etc.), and instrument ID of the hydrophone and recording platform (if applicable); time zone for sound files and recorded date/times in data and metadata (in relation to Universal Coordinated Time (UTC); i.e., Eastern Standard Time (EST) time zone is UTC-5); duration of recordings (start/end dates and times; in International Organization for Standardization (ISO) 8601 format, yyyy-mm-ddTHH:MM:SS.sssZ); deployment/retrieval dates and times (in ISO 8601 format); recording schedule (must be continuous); hydrophone and recorder sensitivity (in dB re 1 microPascal (µPa)); calibration curve for each recorder; bandwidth/sampling rate (in Hz); sample bit-rate of recordings; and, detection range of equipment for relevant frequency bands (in meters);
(5) For each detection, the following information must be noted:
(i) Species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and name of PAM operator(s) on duty.
(ii) [Reserved]
(6) LOA Holder must compile and submit weekly reports to NMFS Office of Protected Resources that document the daily start and stop of all pile driving, drilling, UXO/MEC detonations, and HRG survey associated with the Project; the foundation/pile ID, type of pile, pile diameter, start and finish time of each drilling and pile driving event, hammer log (number of strikes, max hammer energy, duration of piling) per pile, any changes to noise attenuation systems and/or hammer schedule, the start and stop of associated observation periods by PSOs and PAM operators; details on the deployment of PSOs and PAM operators; a record of all detections of marine mammals (acoustic and visual) including time (UTC) of sighting/detection, species ID, behavior, distance (meters) from vessel to animal at time of sighting/detection (meters), animal distance (meters) from pile installation vessel and UXO/MEC detonation site, vessel/project activity at time of sighting/detection, platform/vessel name, and mitigation measures taken (if any) and reason. Sightings/detections during pile driving, drilling, and UXO/MEC activities (clearance, active pile driving and drilling, post-pile driving and drilling and detonation) and all other (transit, opportunistic, etc.) sightings/detection must be reported and identified as such; any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday—Saturday), can consist of Quality Assurance/Quality Compliance (QA/QC) reviewed data, and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). This weekly report must also identify when, what charge weight size, and where UXO/MECs are detonated (a map must also be provided). The weekly reports must also confirm that the required SFV was carried out for each pile and UXO/MEC detonation and that results were reviewed on the required timelines. Abbreviated SFV reports must be appended to the weekly report. Once all foundation pile installation and UXO/MEC detonations are completed, weekly reports are no longer required by LOA Holder;
(7) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources that include a summary of all information in the weekly reports, including project activities carried out in the previous month, including dates and location of any fisheries surveys carried out, vessel transits (number, type of vessel, MMIS number, number of transits, vessel activity, and route (origin and destination, including transits from all ports, foreign and domestic)), cable installation activities (including sea to shore transition),number of piles installed and pile IDs, UXO/MEC detonation, all detections of marine mammals (sightings/detections must include species ID, time, date, initial detection distance, vessel/platform name, vessel activity, vessel speed, bearing to animal, project activity), and any mitigative action taken (or if mitigation actions could not be taken, provide reasons why). Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). This weekly report must also identify when, what charge weight size, and where UXO/MECs are detonated (a map must also be provided);
(8) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS's comments on the draft report. The draft and final reports must detail the following:
(i) A summary of all activities conducted, the dates and locations of all fisheries surveys, including location and duration for all trawl surveys summarized by month, number of vessel transits inclusive of port of origin and destination, and a summary table of any observations and captures of Endangered Species Act (ESA) listed species during these surveys. The report must also summarize all acoustic telemetry and benthic monitoring activities that occurred, inclusive of vessel transits. Each annual report is due by February 15 (e.g., the report for 2024 activities is due by February 15, 2025). The total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days and duration of drilling, days and number of UXO/MEC detonations, days and amount of HRG survey effort, etc.); any PAM systems used; The results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., impact and vibratory pile driving, drilling, and UXO/MEC detonations); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process. The final annual report must be prepared and submitted within 30 calendar days following the receipt of any comments from NMFS Office of Protected Resources on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources' receipt of the draft report, the report must be considered final.
(ii) [Reserved]
(9) LOA Holder must submit its draft final report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of the specified activities. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final. The draft and final 5-year report must include, but is not limited to: the total number (annually and across all 5 years) of marine mammals of each species/stock detected and how many were detected within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity; a summary table(s) indicating the amount of each activity type (e.g., pile installation, UXO/MEC detonations, HRG) completed in each of the 5 years and total; Geographic Information System (GIS) shapefile(s) of the final location of all piles, cable routes, and other permanent structures including an indication of what year installed and began operating; GIS shapefile of all North Atlantic right whale sightings, including dates and group sizes; a 5-year summary and evaluation of all SFV data collected; a 5-year summary and evaluation of all PAM data collected; a 5-year summary and evaluation of marine mammal behavioral observations; a 5-year summary and evaluation of mitigation and monitoring implementation and effectiveness; and a list of recommendations to inform environmental compliance assessments for future offshore wind actions;
(10) LOA Holder must submit a SFV plan at least 180 days prior to the planned start of vibratory and impact pile driving, drilling, and UXO/MEC detonations. The plan must detail all plans and procedures for noise attenuation, including procedures for adjusting and optimizing the noise attenuation system(s), maintenance procedures and timelines, and detail the available contingency noise attenuation measures/systems if distances to modeled isopleths of concern are exceeded (as documented during SFV). At minimum, the plan must describe how LOA Holder would ensure that the first three monopile and two jacket (using pin piles) foundation installation sites selected for SFV are representative of the rest of the monopile and pin pile installation sites. LOA Holder must provide justification for why these locations are representative of the scenario modeled. The plan must describe how LOA Holder will conduct the required Abbreviated SFV, inclusive of requirements to review results within 24 hours and triggers for Thorough SFV. The plan must provide a table of the identification number and coordinates of each foundation location, and specify the underwater acoustics analysis model scenario against which each foundation location's SFV results will be compared. The plan(s) must also include the piling schedule and sequence of events, communication and reporting protocols, and methodology for collecting, analyzing, and preparing SFV data for submission to NMFS, including instrument deployment, locations of all hydrophones (including direction and distance from the pile), hydrophone sensitivity, recorder/measurement layout, and analysis methods. The plan must also identify the number and distance of relative location of hydrophones for Thorough and Abbreviated SFV. The plan must include a template of the interim report to be submitted and describe all the information that will be reported in the SFV Interim Reports including the number, location, depth, distance, and predicted and actual isopleth distances that will be included in the final report(s). The plan must describe how the interim SFV report results will be evaluated against the modeled results, including which modeled scenario the results will be reported against, and include a decision tree of what happens if measured values exceed predicted values. The plan must address how LOA Holder will implement the measures associated with the required SFV which includes, but is not limited to, identifying additional or modified noise attenuation measures (e.g., additional noise attenuation device, adjust hammer operations, adjust or modify the noise mitigation system) that will be applied to reduce sound levels if measured distances are greater than those modeled as well as implementation of any expanded clearance or shutdown zones, including deployment of additional PSOs. In the case that these sites/scenarios are not determined to be representative of all other monopile/pin pile installation sites, LOA Holder must include information on how additional sites/scenarios would be selected for SFV. The plan must also include methodology for collecting, analyzing, and preparing SFV data for submission to NMFS Office of Protected Resources. The plan must describe how the effectiveness of the noise attenuation methodology would be evaluated based on the results.
(i) LOA Holder must also provide, as soon as they are available but no later than 48 hours after each installation, the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each monopile for the first three piles, after two jacket foundation using pin piles are installed, and after each UXO/MEC detonation; The plan must describe how LOA Holder will conduct the required Thorough SFV for all planned UXO/MEC detonations. Thorough SFV consists of: SFV measurements made at a minimum of four distances from the detonation, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m and three additional ranges selected such that measurement of identified isopleths are accurate, feasible, and avoid extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at approximately 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement systems). The plan must describe how the interim SFV report results will be evaluated against the modeled results and decision tree of what happens if measured values exceed predicted values. The plan must address how LOA Holder will implement the measures associated with the required SFV which includes, but is not limited to, identifying additional or modified noise attenuation measures (e.g., additional noise attenuation device, adjust hammer operations, adjust or modify the noise mitigation system) that will be applied to reduce sound levels if measured distances are greater than those modeled as well as implementation of any expanded clearance or shutdown zones, including deployment of additional PSOs;
(ii) The interim report must include data from hydrophones identified for interim reporting in the SFV Plan and include a summary of pile installation activities (pile diameter, pile weight, pile length, water depth, sediment type, hammer type, total strikes, total installation time (start time, end time), duration of pile driving, max single strike energy, NAS deployments), pile location, recorder locations, modeled and measured distances to thresholds, received levels (rms, peak, and sound exposure level (SEL)) results from Conductivity, Temperature, and Depth (CTD) casts/sound velocity profiles, signal and kurtosis rise times, pile driving plots, activity logs, weather conditions. Additionally, any important noise attenuation device malfunctions (suspected or definite), must be summarized and substantiated with data (e.g. photos, positions, environmental data, directions, etc.). Such malfunctions include gaps in the bubble curtain, significant drifting of the bubble curtain, and any other issues which may indicate sub-optimal mitigation performance or are used by LOA Holder to explain performance issues;
(iii) The SFV plan must also include how operational noise would be monitored. LOA Holder must estimate source levels (at 10 m from the operating foundation) based on received levels measured at distances described in a NMFS-approved SFV plan for operations. These data must be used to identify estimated transmission loss rates. Operational parameters (e.g., direct drive/gearbox information, turbine rotation rate) as well as sea state conditions and information on nearby anthropogenic activities (e.g., vessels transiting or operating in the area) must be reported;
(iv) For those foundations and UXO/MEC detonations requiring Thorough SFV measurements, LOA Holder must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to any subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include hammer energies/schedule used during pile driving or UXO/MEC weight (including donor charge weight), the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements, estimated source levels at 1 m and/or 10 m, peak sound pressure level (SPLpk) and median, mean, maximum, and minimum root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms) and sound exposure level (SEL, in single strike for pile driving (SELs-s) and SELcum) for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment acoustic isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and each hydrophone array in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;
(v) All results from Abbreviated SFV must be included in the weekly reports. The report must include estimated source levels at 1 m or 10 m and the measured SELcum noise levels at distance. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by LOA Holder, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(vi) The final results of all SFV measurements from each foundation installation and UXO/MEC detonations must be submitted as soon as possible, but no later than within 90 days following completion of each event's SFV measurements. The final results of Thorough SFV for UXO/MEC detonations must be submitted as soon as possible, but no later than within 90 days following completion of each UXO/MEC detonation. Within 60 days of the end of each construction season, LOA Holder must compile and submit all final Abbreviated SFV reports. The final reports must include all details included in the interim report and descriptions of any notable occurrences, explanations for results that were not anticipated, or actions taken during foundation installation. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; range of transmission loss coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan (COP), at the recording and foundation installation and UXO/MEC detonation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; and charge weights and other relevant characteristics of UXO/MEC detonations; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate, distance from the monopile/pin pile and/or UXO/MEC where recordings were made; depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile and/or UXO/MEC charge; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile and/or UXO/MEC, etc.) and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. LOA Holder must submit a revised report within 30 days following receipt of NMFS' comments on the draft final report;
(vii) LOA Holder must submit SFV results from UXO/MEC detonation monitoring in a report prior to detonating a subsequent UXO/MEC or within the relevant weekly report, whichever comes first. The report must include, at minimum, the size of UXO/MEC detonated and donor charge weight, why detonation was necessary, current speeds, SELcum, a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the detonation, etc.) and any action taken to adjust the noise abatement system, modeled and SFV-based estimated ranges to all relevant NMFS explosive thresholds (including those from pressure transducer measurements); and
(viii) If at any time during the project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first.
(11) If a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the 24-hour North Atlantic right whale Detection Template (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template. Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the ISO standard metadata forms available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from real-time systems must also be sent to the NCEI for archiving within 90 days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(12) LOA Holder must submit situational reports if the following circumstances occur, including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours, in specific circumstances, including but not limited to the following:
(i) All sightings of North Atlantic right whale must be reported immediately (no later than 24 hours). If a North Atlantic right whale is sighted with no visible injuries or entanglement at any time by project PSOs or project personnel, LOA Holder must immediately report the sighting to NMFS. If immediate reporting is not possible, the report must be submitted as soon as possible but no later than 24 hours after the initial sighting. All North Atlantic right whale acoustic detections within a 24-hour period should be collated into one spreadsheet and reported to NMFS as soon as possible but no later than 24 hours.
(A) To report sightings and acoustic detections, download and complete the Real-Time North Atlantic Right Whale Reporting Template spreadsheet found here: https://www.fisheries.noaa.gov/resource/document/template-datasheet-real-time-north-atlantic-right-whale-acoustic-and-visual. Save the completed spreadsheet as a .csv file and email it to NMFS Northeast Fisheries Science Center Protected Species Division (NEFSC-PSD) (ne.rw.survey@noaa.gov), NMFS GARFO Protected Species Division (PRD) (nmfs.gar.incidental-take@noaa.gov), and NMFS Office of Protected Resources (pr.itp.monitoringreports@noaa.gov). If the sighting is in the Southeast (North Carolina through Florida), report via the template and to the Southeast Hotline 877-WHALE-HELP (877-942-5343) with the observation information provided below (PAM detections are not reported to the Hotline). If unable to report a sighting through the spreadsheet within 24 hours, call the relevant regional hotline (Greater Atlantic Region [Maine through Virginia] Hotline 866-755-6622; Southeast Hotline 877-WHALE-HELP) with the observation information provided below (PAM detections are not reported to the Hotline).
(B) The following information must be reported: the time (note time format), date (MM/DD/YYYY), location (latitude/longitude in decimal degrees; coordinate system used) of the observation, number of whales, animal description/certainty of observation (follow up with photos/video if taken), reporter's contact information, and lease area number/project name, PSO/personnel name who made the observation, and PSO provider company (if applicable) (PAM detections are not reported to the Hotline). If unable to report via the template or the regional hotline, enter the sighting via the WhaleAlert app (http://www.whalealert.org/). If this is not possible, report the sighting to the U.S. Coast Guard via channel 16. The report to the Coast Guard must include the same information as would be reported to the Hotline (see above). PAM detections are not reported to WhaleAlert or the U.S. Coast Guard.
(C) If a large whale species is observed that is not a North Atlantic right whale, LOA Holder must report the sighting via the WhaleAlert app (http://www.whalealert.org/) as soon as possible but within 24 hours.
(ii) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida) call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, LOA Holder must report, within 24 hours, the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region to the NMFS GARFO (nmfs.gar.incidental-take@noaa.gov) or if in the Southeast Region, to the NMFS Southeast Regional Office (SERO; secmammalreports@noaa.gov). Note, the stranding hotline may request the report be sent to the local stranding network response team. The report must include contact information (e.g., name, phone number, etc.); time, date, and location (i.e., specify coordinate system) of the first discovery (and updated location information, if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s) (if alive); photographs or video footage of the animal(s) (if available); and general circumstances under which the animal was discovered.
(iii) In the event of a suspected or confirmed vessel strike of a marine mammal by any vessel associated with the Project or other means by which Project activities caused a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine through Virginia), call the NMFS Greater Atlantic Stranding Hotline (866-755-6622), and if in the Southeast Region (North Carolina through Florida) call the NMFS Southeast Stranding Hotline (877-WHALE-HELP (877-942-5343)). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic Region to the NMFS GARFO (nmfs.gar.incidental-take@noaa.gov) or if in the Southeast Region, to the NMFS SERO (secmammalreports@noaa.gov). The report must include time, date, and location (i.e., specify coordinate system)) of the incident; species identification (if known) or description of the animal(s) involved (i.e., identifiable features including animal color, presence of dorsal fin, body shape and size, etc.); vessel strike reporter information (name, affiliation, email for person completing the report); vessel strike witness (if different than reporter) information (e.g., name, affiliation, phone number, platform for person witnessing the event, etc.); vessel name and/or MMSI number; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); part of vessel that struck marine mammal (if known); vessel damage notes; status of all sound sources in use at the time of the strike; if the marine mammal was seen before the strike event; description of behavior of the marine mammal before the strike event (if seen) and behavior immediately following the strike; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, etc.) immediately preceding the strike; estimated (or actual, if known) size and length of marine mammal that was struck; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; other animal-specific details if known (e.g., length, sex, age class); behavior or estimated fate of the marine mammal post-strike (e.g., dead, injured but alive, injured and moving, external visible wounds (linear wounds, propeller wounds, non-cutting blunt-force trauma wounds), blood or tissue observed in the water, status unknown, disappeared); to the extent practicable, any photographs or video footage of the marine mammal(s); and, any additional notes the witness may have from the interaction. For any numerical values provided (i.e., location, animal length, vessel length, etc.), please provide if values are actual or estimated. LOA Holder must immediately cease activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA(s). NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder must not resume their activities until notified by NMFS Office of Protected Resources.
(13) LOA Holder must report any lost gear associated with the fishery surveys to the NOAA GARFO-PRD (nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear;
(14) LOA Holder must provide NMFS Office of Protected Resources with notification of planned UXO/MEC detonation as soon as possible but at least 48 hours prior to the planned detonation, unless this 48-hour notification would create delays to the detonation that would result in imminent risk of human life or safety. This notification must include the coordinates of the planned detonation, the estimated charge size, and any other information available on the characteristics of the UXO/MEC. If an UXO/MEC detonation occurs, within 72 hours after a detonation but before the next detonation, whichever is sooner, LOA Holder must report to NMFS Office of Protected Resources the time, date, location (latitude/longitude Decimal Degrees), charge weight size, justification on why detonation was necessary and other means of removal or avoidance could not occur, all detections of marine mammals within the UXO/MEC zones, and any mitigative action taken; and
(15) Performance reports for piles with SFV must be submitted by LOA Holder with the weekly pile driving reports. For UXO/MEC detonations, the report must be submitted as soon as it is available, but no later than when the interim SFV report is submitted for the UXO/MEC detonation.
(16) Performance reports for each bubble curtain deployed must include water depth, current speed and direction, wind speed and direction, bubble curtain deployment/retrieval date and time, bubble curtain hose length, bubble curtain radius (distance from pile), diameter of holes and hole spacing, air supply hose length, compressor type (including rated Cubic Feet per Minute (CFM) and model number), number of operational compressors, performance data from each compressor (including Revolutions Per Minute (RPM), pressure, start times, and stop times), free air delivery (m3/min), total hose air volume (m3/(min m)), schematic of GPS waypoints during hose laying, maintenance procedures performed (pressure tests, inspections, flushing, re-drilling, and any other hose or system maintenance) before and after installation and timing of those tests, and the length of time the bubble curtain was on the seafloor prior to foundation installation.
(i) The report must include any important observations regarding performance (before, during, and after pile installation or UXO/MEC detonation), such as any observed weak areas of low pressure. The report may also include any relevant video and/or photographs of the bubble curtain(s) operating during pile driving (inclusive of relief drilling) and UXO/MEC detonation.
(ii) [Reserved]
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA.
(b) A LOA, unless suspended or revoked, may be effective for a period of time not to exceed March 26, 2030, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.327.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.
(a) A LOA issued under §§ 217.322 and 217.326 or this section for the activity identified in § 217.320(c) shall be modified, upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, or reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years), and
(2) NMFS may publish a notice of proposed modified LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under §§ 217.322 and 217.326 or this section for the activities identified in § 217.320(a) may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) Through adaptive management, NMFS may modify (including remove, revise, or add to) the existing mitigation, monitoring, or reporting measures after consulting with LOA Holder regarding the practicability of the modifications, if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures set forth in this subpart;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring;
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If the NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.322 and 217.326 or this section, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
89 FR 84715, Oct. 23, 2024, unless otherwise noted.
89 FR 84715, Oct. 23, 2024, subpart II was added to part 217, effective Jan. 1, 2025, through Dec. 31, 2029.
(a) Regulations in this subpart apply to activities associated with the Maryland Offshore Wind Project (hereafter referred to as the “Project”) by US Wind, Inc. (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, defined as waters from Cape Hatteras, North Carolina to Cape Cod, Massachusetts and extending into the west Atlantic to the 100-meter (m) isobath, and includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0490 Commercial Lease of Submerged Lands for Renewable Energy Development, along the relevant Export Cable Corridors (ECC), and at the sea-to-shore transition points located within Delaware Seashore State Park.
(c) The specified activities are impact pile driving of wind turbine generator (WTG), offshore substation (OSS), and a meteorological tower (Met tower) foundations; high-resolution geophysical (HRG) site characterization surveys; vessel transit within the specified geographical region to transport crew, supplies, and materials; WTG and OSS operation; fishery and ecological monitoring surveys; placement of scour protection; and trenching, laying, and cable burial activities.
Regulations in this subpart are effective from January 1, 2025, through December 31, 2029.
Under the LOA, issued pursuant to §§ 216.106 of this chapter and 217.346, the LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the vicinity of BOEM Lease Area OCS-A 0490 Commercial Lease of Submerged Lands for Renewable Energy Development and associated cable corridor, provided the LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving (WTG, OSS, and Met tower foundation installation) and HRG site characterization surveys.
(b) By Level A harassment associated with auditory injury of marine mammals by impact pile driving of WTG foundations.
(c) Take by mortality or serious injury of any marine mammal species is not authorized.
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species.
| Marine mammal species | Scientific name | Stock |
|---|---|---|
| North Atlantic right whale | Eubalaena glacialis | Western Atlantic. |
| Fin whale | Balaenoptera physalus | Western North Atlantic. |
| Humpback whale | Megaptera novaeangliae | Gulf of Maine. |
| Minke whale | Balaenoptera acutorostrata | Canadian Eastern Coastal. |
| Sei whale | Balaenoptera borealis | Nova Scotia. |
| Killer whale | Orcinus orca | Western North Atlantic. |
| Atlantic spotted dolphin | Stenella frontalis | Western North Atlantic. |
| Pantropical spotted dolphin | Stenella attenuata | Western North Atlantic. |
| Bottlenose dolphin | Tursiops truncatus | Western North Atlantic—Offshore.
Northern Migratory Coastal. |
| Common dolphin | Delphinus delphis | Western North Atlantic. |
| Long-finned pilot whale | Globicephala melas | Western North Atlantic. |
| Short-finned pilot whale | Globicephala macrorhynchus | Western North Atlantic. |
| Risso's dolphin | Grampus griseus | Western North Atlantic. |
| Rough-toothed dolphin | Steno bredanensis | Western North Atlantic. |
| Striped dolphin | Stenella coeruleoalba | Western North Atlantic. |
| Harbor porpoise | Phocoena phocoena | Gulf of Maine/Bay of Fundy. |
| Gray seal | Halichoerus grypus | Western North Atlantic. |
| Harbor seal | Phoca vitulina | Western North Atlantic. |
| Harp seal | Pagophilus groenlandicus | Western North Atlantic. |
Except for the takings described in § 217.342 and authorized by the LOA issued under this subpart, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or the LOA issued under this subpart.
(b) Take any marine mammal not specified in § 217.342(d).
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA.
(d) Take any marine mammal specified in § 217.342(d), after National Marine Fisheries Service (NMFS) Office of Protected Resources determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.340(c) within the area described in § 217.340(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.346 and 217.347. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSO), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the Project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating Project activities;
(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the project area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any slow zones (i.e., Dynamic Management Areas (DMA) and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s); the marine mammal monitoring team must monitor these systems no less than every 4 hours;
(4) Any large whale observation by any project personnel or acoustic detection by a PAM operator must be conveyed to all vessel captains and on-duty PSOs. Any marine mammal observed by project personnel during pile driving must be conveyed to on-duty PSOs;
(5) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(6) PSOs and PAM operators have the authority to call for a delay or shutdown to an activity, and LOA Holder must instruct all personnel regarding the authority of the PSOs and PAM operators. Any disagreements between a PSO, PAM operator, and the activity operator regarding delays or shutdowns may only be discussed after the mitigative action has occurred;
(7) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to or during a specified activity, the activity must be delayed or shut down, unless doing so would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species with no further sightings;
(8) For in-water construction heavy machinery activities other than pile driving, if a marine mammal is on a path towards or comes within 10 m (32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(9) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS Office of Protected Resources prior to commencing initial transits;
(10) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart;
(11) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement; and
(12) The LOA Holder must also abide by the reasonable and prudent measures and terms and conditions of the Biological Opinion and Incidental Take Statement, as issued by NMFS, pursuant to section 7 of the Endangered Species Act.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures while in the specified geographical region, unless a deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, or life of a person; or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm. Speed over ground will be used to measure all vessel speed restrictions.
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to vessel activities;
(2) LOA Holder, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) LOA Holder's underway vessels (e.g., transiting, surveying) operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. Visual observers may be third-party observers (i.e., NMFS-approved PSOs) or trained crew members, as defined in paragraph (b)(1) of this section;
(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the Project's Situational Awareness System, WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) All LOA Holder's vessels, regardless of size, must transit at 10 kn (11.5 mph) or less from November 1-April 30 in the specified geographic region;
(6) All LOA Holder's vessels, regardless of size, must travel 10 kn (11.5 mph) or less in any Seasonal Management Area (SMA) or active Slow Zones (i.e., DMAs or acoustically triggered slow zone);
(7) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (refer back to (b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5 miles per hour (mph)) or less for 24 hours following the reported detection;
(8) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale (other than a North Atlantic right whale) or large assemblages of cetaceans is observed within 500 m (1,640 ft) of an underway vessel;
(9) If LOA Holder's vessel(s) are traveling at speeds greater than 10 kn (i.e., no speed restrictions are enacted) in a transit corridor from a port to the Lease Area (or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM within or approaching the transit corridor, all crew transfer vessels must travel at 10 kn (11.5 mph) or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(10) LOA Holder's vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, LOA Holder's vessel must turn away from the whale(s), reduce speed, and shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m; (328 ft);
(11) LOA Holder's vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m (164 ft) of a transiting vessel, LOA Holder's vessel must turn away from the animal(s), shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(12) When a marine mammal(s) is sighted while LOA Holder's vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);
(13) LOA Holder's vessels underway must not divert or alter course to approach any marine mammal;
(14) LOA Holder must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, SMAs, Slow Zones) and any information regarding North Atlantic right whale sighting locations; and
(15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity if vessels will operate over 10 kn (11.5 mph). The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels transiting, year-round, must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with the approved Marine Mammal Vessel Strike Avoidance Plan.
(c) WTG, OSS, Met tower foundation installation. LOA Holder must comply with the following mitigation measures during impact pile driving activities associated with the installation of WTG, OSS, and Met tower foundations unless compliance is not practicable due to imminent risk of injury or loss of life to an individual, risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability.
(1) Impact pile driving (i.e., foundation and Met Tower installation) must not occur December 1 through April 30;
(2) Monopiles must be no larger than 11 m (36.1 ft) in diameter. No more than one monopile may be installed per day, unless otherwise approved in writing by NMFS. Pin piles for the OSSs must be no larger than 3 m in diameter. No more than four 3-m pin piles may be installed per day. Met tower pin piles must be no larger than 1.8 m in diameter. No more than two 1.8-m pin piles may be installed per day. The minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. The impact hammer rating must not exceed 4,400 kJ;
(3) LOA Holder must not initiate pile driving earlier than 1 hour prior to civil sunrise or later than 1.5 hours prior to civil sunset, and may only continue pile driving into darkness if stopping operations represents a risk to human health, safety, and/or pile stability, unless the LOA Holder submits, and NMFS approves, an Alternative Monitoring Plan, which would allow pile driving to begin after daylight hours have ended. Until this is submitted, reviewed, and approved by NMFS, LOA Holder may not begin any new pile driving outside of the daylight hours previously defined in this subsection;
(4) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer. Soft-start involves initiating hammer operation at a reduced energy level (relative to full operating capacity) followed by a waiting period. The LOA Holder must comply with a soft-start protocol as described in the approved Pile Driving Plan;
(5) LOA Holder must implement clearance and shutdown zones, which must be measured using the radial distance around the pile being driven;
(6) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.345. At least three on-duty PSOs must be stationed and observing on the foundation installation vessel/platform. A minimum of three PSOs must be active on each of the two dedicated PSO vessels. On-duty PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. Concurrently, PAM operator(s) must be actively monitoring for marine mammals with PAM 60 minutes before, during, and 30 minutes after pile driving in accordance with a NMFS-approved PAM Plan;
(7) PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving. The entire minimum visibility zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for a full 60 minutes immediately prior to commencing pile driving. If PSOs cannot visually monitor the minimum visibility zone prior to foundation pile driving at all times), pile driving operations must not commence;
(8) All clearance zones must be confirmed to be free of marine mammals for 30 minutes immediately prior to the beginning of soft-start procedures. If a marine mammal is detected within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species. PAM operators must immediately communicate all detections of marine mammals at any distance to the Lead PSO, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination;
(9) For North Atlantic right whales, any visual observation or acoustic detection within the PAM monitoring zone must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually nor acoustically detected for 30 minutes;
(10) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving is not shut down in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see § 217.345);
(11) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(12) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all impact pile driving and comply with the following measures:
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3/(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report for review. For piles for which thorough sound field verification (SFV) is carried out, this report must be submitted as soon as it is available but no later than when the thorough interim SFV report is submitted for the respective pile. Performance reports for piles with abbreviated SFV must be submitted with the weekly pile driving reports. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed. LOA Holder must develop and implement a maintenance plan that identifies the frequency of hose inspection, flushing, pressure tests, and re-drilling and that is designed to minimize the potential for sediment clogging to affect bubble curtain performance. Adjustments to the frequency of these maintenance steps must be made as necessary to ensure optimal performance of the bubble curtain system; and
(vi) Corrections to the bubble ring(s) to meet the performance standards in paragraph (c)(12) of this section must occur prior to impact pile driving of monopiles, 3-m (9.8 ft) pin piles, and 1.8-m (5.9 ft) pin piles. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in this paragraph (c)(11) of this section.
(13) LOA Holder must implement PAM in accordance with the NMFS-approved PAM Plan, as described in paragraph (c)(18) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (3,280 ft) to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile driving and vessel noise. The PAM system must be designed to detect all marine mammals to the maximum extent practicable, maximize baleen whale detections, and must be capable of detecting North Atlantic right whales within the PAM monitoring zone;
(14) LOA Holder must conduct thorough SFV measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations, the first three full jacket foundations (inclusive of all pin piles for a specific jacket foundation), and the first foundation for any foundation scenarios that were modeled for the exposure analysis (e.g., rated hammer energy, number of strikes, representative location) that does not fall into one of the previously listed categories for each of the three construction campaigns. Thorough SFV measurements must be conducted as follows:
(i) SFV measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m (2,460 ft) must be made. At each measurement location, there must be a near bottom and mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of pile driving for each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, the signals prevent poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;
(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement; and
(vi) LOA Holder must submit interim SFV reports within 48 hours after each foundation is measured (see § 217.345(g) for interim and final reporting requirements).
(15) For thorough SFV on monopile and jacket foundations:
(i) During thorough SFV, installation of the next foundation (of the same type/foundation method) may not proceed until LOA Holder has reviewed the initial results from the thorough SFV and determined that there were no exceedances of any distances to the identified thresholds based on modeling assuming 10 dB attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.);
(ii) If any of the thorough SFV measurements from any foundation (monopile or jacket) indicate that the distances to the NMFS' marine mammal Level A harassment or Level B harassment thresholds for marine mammals (peak or cumulative) are greater than the modeled distances (assuming 10 dB attenuation), before the next foundation is installed, LOA Holder must notify NMFS by email within 24 hours of reviewing the thorough SFV measurements as well as identify and propose for review and concurrence: additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances on subsequent foundations; provide a written explanation to NMFS Office of Protected Resources supporting that determination and requesting concurrence to proceed; and, following NMFS Office of Protected Resource's concurrence, deploy those additional measures or modifications on any subsequent foundation of the same pile type/installation methodology that are installed;
(iii) LOA Holder must also increase the clearance and shutdown zones for subsequent piles of the same type (e.g., if triggered by SFV results for a monopile, for the next monopile) so that they are at least the size of the distances to those thresholds as indicated by SFV. For every 1,500 m that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone. LOA Holder must deploy any additional PSOs consistent with the approved Marine Mammal Monitoring Plan in consideration of the size of the new zones and the species that must be monitored;
(iv) Following installation of a pile with additional, alternative, or modified noise attenuation measures or operational changes if thorough SFV results indicate that sound fields are within Level A harassment and B harassment thresholds, assuming 10 dB attenuation, thorough SFV must be conducted on two additional piles of the same type/installation method (for a total of at least three piles with consistent noise attenuation measures). If the thorough SFV results from all three of those piles are within the distances to isopleths of concern modeled assuming 10 dB attenuation, then LOA Holder must continue to implement the approved additional, alternative, or modified noise attenuation measures/operational changes. Use of the expanded clearance and shutdown zones must continue for additional piles until LOA Holder requests and receives concurrence from NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office (GARFO) to revert to the original clearance and shutdown zones;
(v) If, after all practicable measures that could be taken to reduce noise levels have been successfully implemented and exhausted, thorough SFV measurements continue to indicate that the distances to the marine mammal harassment thresholds are greater than those modeled assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of Protected Resources to evaluate the circumstances before additional piles are installed; and
(vi) If, after additional measurements conducted pursuant to requirements of paragraph (14)(i) of this section, acoustic measurements indicate that ranges to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request a modification of the clearance and shutdown zones from the NMFS Office of Protected Resources. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations (for either/or monopile and jackets) and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10 dB of attenuation.
(16) Abbreviated SFV measurements must be conducted on the remaining piles for which thorough SFV is not conducted. Abbreviated SFV must be conducted as follows:
(i) SFV measurements must be made at a single acoustic recorder, consisting of a near-bottom and mid-water hydrophone, at approximately 750 m from the pile being driven, in the direction of lowest transmission loss to record sounds throughout the duration of all pile driving of each foundation. Reports of abbreviated SFV monitoring must be included in the weekly pile driving reports;
(ii) The abbreviated SFV data collected will be used to compare the noise levels defined as a result of thorough SFV;
(iii) Abbreviated SFV monitoring duration and equipment must comply with the conditions specified in paragraphs (c)(14)(ii) through (14)(v) of this section;
(iv) LOA Holder must review abbreviated SFV results for each pile within 24 hours of completion of the foundation installation. If measured levels at 750 m did not exceed the expected levels defined during thorough SFV, LOA Holder does not need to take any additional action. If measured levels from abbreviated SFV for any pile are greater than expected levels (as defined by thorough SFV), LOA Holder must evaluate the available information from the pile installation to determine if there is an identifiable cause of the greater than expected sound levels (i.e., a failure of the noise attenuation system), identify and implement corrective action, and report this information (inclusive of an explanation of the suspected or identified cause) to NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office within 48 hours of completion of the installation of the pile, during which the greater than expected sound levels occurred. If LOA Holder can demonstrate that this greater than expected sound level was the result of a failure of the noise attenuation system (e.g., loss of a generator supporting a bubble curtain such that one bubble curtain failed during pile driving) that can be remedied in a way that returns the noise attenuation system to pre-failure conditions, or if there is another satisfactory explanation for the increase in sound that is not expected to be repeated for subsequent piles, LOA Holder can request concurrence from NMFS to proceed without thorough SFV monitoring that would otherwise be required within 72 hours. LOA Holder is required to remedy any such failure of the noise attenuation system prior to carrying out any additional pile driving;
(v) If results of abbreviated SFV monitoring for any pile exceed the expected noise levels at 750 m established through the initial thorough SFV, LOA Holder must resume thorough SFV monitoring (as described in paragraph (c)(15)(i) of this section) for installation of the same foundation type and installation method within 72 hours after the completion of pile driving with an exceedance. LOA Holder can request concurrence from NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office to resume abbreviated SFV following submission of an interim report from thorough SFV that demonstrates ranges to the Level A harassment and Level B harassment thresholds within expected values (assuming 10 dB attenuation). LOA Holder may automatically resume abbreviated SFV monitoring if three consecutive thorough SFV reports indicate ranges to the Level A harassment and Level B harassment thresholds are within modeled distances (assuming 10 dB attenuation); and
(vi) If results from any thorough SFV monitoring triggered by results from abbreviated SFV indicate that ranges to the Level A harassment and Level B harassment thresholds (assuming 10 dB attenuation) are larger than expected values, NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office will meet within 3 business days to discuss the results of SFV monitoring, the severity of exceedance of distances to identified isopleths of concern, the species affected, and modeling assumptions, and whether the SFV results demonstrate the magnitude and degree of impacts from the Project are greater than those considered in this final rulemaking. Implementation of additional measures to reduce pile driving noise and/or additional thorough SFV may also be required.
(17) LOA Holder must conduct SFV measurements during turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved SFV Plan. SFV must be conducted in the same manner as previously described in paragraphs (c)(14)(ii) and (iii) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary.
(18) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation/entire jacket foundation (inclusive of all pin piles for a jacket foundation) installation sites selected for SFV measurements are representative of the rest of the monopile and/or jacket foundation installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity;
(19) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division's concurrence with this plan prior to the start of any pile driving. The plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the plan; and
(20) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the PAM Plan if approved. The PAM Plan must include a description of all proposed PAM equipment and hardware, the calibration data, bandwidth capacity, address how the proposed PAM must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind as described in NOAA and BOEM Minimum Recommendations for Use of Passive Acoustic Listening Systems in Offshore Wind Energy Development Monitoring and Mitigation Programs (2021). The PAM Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division.
(21) In the event of a cetacean live stranding (or near-shore atypical milling) event within 50 km of the pile driving activities, where the NMFS Stranding Network is engaged in herding or other interventions to return animals to the water, NMFS will advise of the need to implement shutdown procedures for all active pile driving activities operating within 50 km of the stranding. Shutdown procedures for live stranding or milling cetaceans include the following:
(i) If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, NMFS will advise that the shutdown around the animals' location is no longer needed;
(ii) Otherwise, shutdown procedures will remain in effect until NMFS determines and advises that all live animals involved have left the area (either of their own volition or following an intervention); and
(iii) If further observations of the marine mammals indicate the potential for re-stranding, additional coordination will be required to determine what measures are necessary to minimize that likelihood (e.g., extending the shutdown or moving operations farther away) and to implement those measures as appropriate.
(d) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBP) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in this paragraph (d);
(2) LOA Holder is required to have at least one PSO on active duty per HRG vessel during HRG surveys that are conducted during daylight hours (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs on active duty per vessel during HRG surveys that are conducted during nighttime hours;
(3) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(4) LOA Holder is required to ramp-up acoustic sources prior to commencing full power, which involves initiating source operation at a reduced energy level (relative to full operating capacity) followed by a waiting period, unless the equipment operates on a binary on/off switch. LOA Holder is also required to ensure visual clearance zones are observable (e.g., not obscured from observation by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA. Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(5) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (d)(11) of this section;
(6) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(7) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(8) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(9) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(10) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if effective visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(11) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone. In cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (d)(11) is detected in the shutdown zone;
(12) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;
(13) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (d)(11) of this section is detected in the shutdown zone; and
(14) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(e) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nmi(1,852 m) of the planned location and 15 minutes before gear deployment, then LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;
(3) If a marine mammal is at risk of interacting with or becoming entangled in the gear after the gear is deployed or set, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval) as well as for 15 minutes prior to deploying gear and for 15 minutes after haul back;
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(8) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(9) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32, and all buoy markings must comply with instructions received by the GARFO Protected Resources Division;
(10) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and
(11) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(a) PSO and PAM operator qualifications. LOA Holder must implement the following measures applicable to PSOs and PAM operators:
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree with a major in one of the natural sciences. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes, but is not limited to previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys, or previous work experience as a PSO/PAM operator;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(6) and (8) of this section;
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion that must be submitted to NMFS. This requirement is waived for any PSOs and PAM operators that completed a relevant training course more than five years prior to seeking approval but have been working consistently as a PSO or PAM operator within the past five years;
(6) PSOs are responsible for obtaining NMFS' approval. NMFS may approve PSOs as conditional or unconditional. A conditionally-approved PSO may be one who has completed training in the last 5 years but has not yet attained field experience. An unconditionally approved PSO is one who has completed training within the last 5 years and attained the necessary experience (i.e., demonstrate experience with monitoring for marine mammals at clearance and shutdown zone sizes similar to those produced during the respective activity). Lead PSOs must be unconditionally approved and have a minimum of 90 days in a northwestern Atlantic Ocean offshore environment performing the role (either visual or acoustic), with the conclusion of the most recent relevant experience not more than 18 months previous. A conditionally approved PSO must be paired with an unconditionally approved PSO;
(7) PSOs for HRG surveys may be unconditionally or conditionally approved. PSOs for foundation installation activities must be unconditionally approved;
(8) At least one on-duty PSO and PAM operator, where applicable, for each activity (e.g., impact pile driving, vibratory pile driving, and HRG surveys) must be designated as the Lead PSO or Lead PAM operator;
(9) LOA Holder must submit previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must have completed a PAM operator training course and demonstrate prior experience using PAM software, equipment, and real-time acoustic detection systems. They must demonstrate that they have prior experience independently analyzing archived and/or real-time PAM data to identify and classify baleen whale and other marine mammal vocalizations by species, including North Atlantic right whale and humpback whale vocalizations, and experience with deconflicting multiple species' vocalizations that are similar and/or received concurrently. PAM operators must be independent observers (i.e., not construction personnel), trained to use relevant project-specific PAM software and equipment, and must also be able test software and hardware functionality prior to beginning real-time monitoring. The PAM operator must be able to identify and classify marine mammal acoustic detections by species in real-time (prioritizing North Atlantic right whales and noting other marine mammal vocalizations, when detected). At a minimum, for each acoustic detection, the PAM operator must be able to categorically determine whether a North Atlantic right whale is detected, possibly detected, or not detected, and notify the Lead PSO of any confirmed or possible detections, including baleen whale detections that cannot be identified to species. If the PAM software is capable of localization of sounds or deriving bearings and distance, the PAM operator must demonstrate experience using this technique. A Lead PAM operator must meet all of these requirements and have a minimum of 90 days in the specified role or sufficient alternative experience;
(12) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any time and must not exceed work time restrictions, which must be tallied cumulatively; and
(13) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO provider and Project compliance representative(s) prior to the start of in-water project activities (e.g., HRG survey, foundation installation, etc.).
(b) General PSO and PAM operator requirements. The following measures apply to PSOs and PAM operators and must be implemented by LOA Holder:
(1) PSOs must monitor for marine mammals prior to, during, and following impact pile driving and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) PAM operator(s) must acoustically monitor for marine mammals prior to, during, and following all pile driving activities. PAM operators may be located on a vessel or remotely on-shore but must have the appropriate equipment (i.e., computer station equipped with a data collection software system available wherever they are stationed) and be in real-time communication with PSOs and transiting vessel captains. The PAM operator must monitor to and past the clearance zone for large whales;
(3) For foundation installation, PSOs must visually clear (i.e., confirm no observations of marine mammals) the entire minimum visibility zone for a full 30 minutes immediately prior to commencing activities. For HRG surveys, which do not have a minimum visibility zone, the entire clearance zone must be visually cleared and as much of the Level B harassment zone as possible;
(4) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. The PAM operator(s) must assist PSOs in ensuring full coverage of the clearance and shutdown zones;
(5) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s), PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (e.g., possible, probable detection) in the determination. All on-duty PSOs and PAM operator(s) must remain in contact with the on-duty construction personnel responsible for implementing mitigations (e.g., delay to pile driving) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water project personnel;
(6) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system (i.e., Mysticetus or similar system) who must be responsible for requesting that the designated crewmember implement the necessary mitigation procedures (i.e., delay);
(7) Any visual observations of marine mammals by any project personnel must be communicated immediately to on-duty PSOs and vessel captains associated with other project vessels to increase situational awareness;
(8) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least two PSOs on the pile driving vessel must be equipped with functional Big Eye binoculars (e.g., 25 × 150; 2.7 view angle; individual ocular focus; height control); these must be pedestal mounted on the deck at the best vantage point that provides for optimal sea surface observation and PSO safety. A minimum of three on-duty PSOs must be active on a dedicated PSO vessel. PAM operators must have the appropriate equipment (i.e., a computer station equipped with a data collection software system available wherever they are stationed) in accordance with the NMFS-approved PAM Plan as described in § 217.344(c)(20);
(9) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch schedule of more than 12 hours in a 24-hour period. If the schedule includes PSOs and PAM operators on-duty for 2-hour shifts, a minimum 1-hour break between watches must be allowed;
(10) During periods of low visibility (e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs must use alternative technology (e.g., infrared or thermal cameras) to monitor the clearance and shutdown zones as approved by NMFS; and
(11) PSOs must remain in real-time contact with the PAM operators and construction personnel responsible for implementing mitigation (e.g., delay to pile driving) to ensure communication on marine mammal observations can easily, quickly, and consistently occur between all on-duty PSOs, PAM operator(s), and on-water project personnel
(c) PSO and PAM operator requirements during WTG, OSS, and Met Tower foundation installation. The following measures apply to PSOs and PAM operators during WTG, OSS, and Met tower foundation installation and must be implemented by LOA Holder:
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile driving activities. If PSOs cannot visually monitor the minimum visibility zone prior to impact pile driving at all times using the equipment described in paragraphs (b)(6) and (7) of this section, pile driving operations must not commence or must shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing from the activity platform during impact pile driving and at least three on-duty PSOs must be stationed on each dedicated PSO vessel. There must be a minimum of three PSO observation platforms during impact pile driving. Concurrently, at least one PAM operator per acoustic data stream (equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before, during, and 30 minutes after impact pile driving in accordance with a NMFS-approved PAM Plan; and
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving activities.
(d) PSO requirements during HRG surveys. The following measures apply to PSOs during HRG surveys using acoustic sources that have the potential to result in harassment and must be implemented by LOA Holder:
(1) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and two PSOs during nighttime surveying (if it occurs);
(2) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(3) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(4) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources.
(e) Monitoring requirements during fisheries monitoring surveys. The following measures apply during fisheries monitoring surveys and must be implemented by LOA Holder:
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use, and for 15 minutes after haul back.
(f) Reporting. LOA Holder must comply with the following reporting measures:
(1) Prior to initiation of any on-water project activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov), dates must be in MM/DD/YYYY format, and location information must be provided in Decimal Degrees and with the coordinate system information (e.g., NAD83, WGS84, etc.);
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (i.e., sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); the PSO who sighted the animal; the time of sighting; the weather parameters (e.g., wind speed, percent cloud cover, visibility); the water conditions (e.g., Beaufort sea state, tide state, water depth); all marine mammal sightings, regardless of distance from the construction activity; species (or lowest possible taxonomic level possible); the pace of the animal(s); the estimated number of animals (minimum/maximum/high/low/best); the estimated number of animals by cohort (e.g., adults, yearlings, juveniles, calves, group composition, etc.); the description (i.e., as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); the description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling) and observed changes in behavior, including an assessment of behavioral responses thought to have resulted from the specific activity; the animal's closest distance and bearing from the pile being driven or specified HRG equipment and estimated time entered or spent within the Level A harassment and/or Level B harassment zone(s); the activity at time of sighting (e.g., impact pile driving, construction survey), use of any noise attenuation device(s), and specific phase of activity (e.g., ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for pile driving, active pile driving, etc.); the marine mammal occurrence in Level A harassment or Level B harassment zones; the description of any mitigation-related action implemented, or mitigation-related actions called for but not implemented, in response to the sighting (e.g., delay, shutdown, etc.) and time and location of the action; other human activity in the area, and; other applicable information, as required in any LOAs issued under § 217.346;
(4) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the type of pile, pile diameter, daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; hammer log (number of strikes, max hammer energy, duration of piling), any changes to noise attenuation systems and/or hammer schedule, details on the deployment of PSOs; a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports must also include abbreviated SFV results. The weekly reports must also confirm that the required SFV was carried out for each pile and that results were reviewed on the required timelines. Weekly reports are due on Wednesday for the previous week (Sunday to Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(5) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided);
(6) Full PAM detection data, metadata, and location of recorders (or GPS tracks, if applicable) must be submitted within 90 calendar days following completion of impact pile driving foundations and every 90 calendar days for transit lane PAM using the International Organization for Standardization (ISO) standard metadata forms and instructions available on the NMFS Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Concurrently, the full acoustic recordings from real-time systems must also be sent to the National Centers for Environmental Information (NCEI, https://www.ncei.noaa.gov/products/passive-acoustic-data) for archiving.
(7) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than one year following date of LOA issuance within each given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (i.e., number of shutdowns or clearance zone delays, etc.) or, if no mitigative actions was taken, why not; operational details (i.e., days and duration of impact and vibratory pile driving, days, and amount of HRG survey effort, etc.); any PAM systems used; the results, effectiveness, and which noise attenuation systems were used during relevant activities (i.e., impact pile driving); summarized information related to situational reporting; and any other important information relevant to the Project, including additional information that may be identified through the adaptive management process;
(8) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. At a minimum, the draft and final 5-year report must include: the total number (annually and across all 5 years) of marine mammals of each species/stock detected and how many were detected within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; a summary table(s) indicating the amount of each activity type (e.g., pile installation, HRG) completed in each of the 5 years and total; GIS shapefile(s) of the final location of all piles, cable routes, and other permanent structures including an indication of what year installed and began operating; GIS shapefile of all North Atlantic right whale sightings, including dates and group sizes; a 5-year summary and evaluation of all SFV data collected; a 5-year summary and evaluation of all PAM data collected; a 5-year summary and evaluation of marine mammal behavioral observations; a 5-year summary and evaluation of mitigation and monitoring implementation and effectiveness; a list of recommendations to inform environmental compliance assessments for future offshore wind actions. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final;
(9) For those foundation piles requiring SFV measurements, LOA Holder must provide the initial results of the SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to a subsequent foundation installation, but no later than 48 hours after the installation of each pile for which thorough SFV is carried out. The report must include, at minimum: a summary of pile installation activities (pile diameter, pile weight, pile length, water depth, sediment type, total installation time [start time, end time], duration of pile driving), hammer energies/schedule used during pile driving, including, the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R95%) to compare with the real-world sound field measurements; peak sound pressure level (SPLpk), root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), and sound exposure level (SEL, in single strike for pile driving, SELss,), for each hydrophone, including at least the maximum, arithmetic mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; estimated marine mammal Level A harassment and Level B harassment isopleths, calculated using the maximum-over-depth L5 (95 percent exceedance level, maximum of both hydrophones) of the associated sound metric; comparison of modeled results assuming 10-dB attenuation against the measured marine mammal Level A harassment and Level B harassment acoustic isopleths; estimated transmission loss coefficients; pile identifier name, location of the pile and each hydrophone array location in latitude/longitude; depths of each hydrophone; one-third-octave band single strike SEL spectra; if filtering is applied, full filter characteristics must be reported; and hydrophone specifications including the type, model, and sensitivity. LOA Holder must also report any immediate observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices. If any in-situ calibration checks for hydrophones reveal a calibration drift greater than 0.75 dB, pistonphone calibration checks are inconclusive, or calibration checks are otherwise not effectively performed, LOA Holder must indicate full details of the calibration procedure, results, and any associated issues in the 48-hour interim reports;. All abbreviated SFV reports must include the results from the hydrophones at 750m and a comparison to the expected levels at 750 m based on the previously completed thorough SFV for comparable pile type and installation method.;
(10) The final results of SFV measurements from each foundation installation must be submitted as soon as possible, but no later than 90 days following completion of each event's SFV measurements. The final reports must include all details prescribed above for the interim report as well as, at minimum, the following: the peak sound pressure level (SPLpk), the root-mean-square sound pressure level that contains 90 percent of the acoustic energy (SPLrms), the single strike sound exposure level (SELss), the integration time for SPLrms, the spectrum, and the 24-hour cumulative SEL extrapolated from measurements at all hydrophones. The final report must also include at least the maximum, mean, minimum, median (L50) and L5 (95 percent exceedance) statistics for each metric; the SEL and SPL power spectral density and/or one-third octave band levels (usually calculated as decidecade band levels) at the receiver locations should be reported; the sound levels reported must be in median, arithmetic mean, and L5 (95 percent exceedance) (i.e., average in linear space), and in dB; range of transmission loss coefficients; the local environmental conditions, such as wind speed, transmission loss data collected on-site (or the sound velocity profile); baseline pre- and post-activity ambient sound levels (broadband and/or within frequencies of concern); a description of depth and sediment type, as documented in the Construction and Operation Plan, at the recording and foundation installation locations; the extents of the measured Level A harassment and Level B harassment zone(s); hammer energies required for pile installation and the number of strikes per pile; the hydrophone equipment and methods (i.e., recording device, bandwidth/sampling rate; distance from the pile where recordings were made; the depth of recording device(s)); a description of the SFV measurement hardware and software, including software version used, calibration data, bandwidth capability and sensitivity of hydrophone(s), any filters used in hardware or software, any limitations with the equipment, and other relevant information; the spatial configuration of the noise attenuation device(s) relative to the pile; a description of the noise abatement system and operational parameters (e.g., bubble flow rate, distance deployed from the pile, etc.), and any action taken to adjust the noise abatement system. A discussion which includes any observations which are suspected to have a significant impact on the results including but not limited to: observed noise mitigation system issues, obstructions along the measurement transect, and technical issues with hydrophones or recording devices;
(11) If at any time during the Project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(12) Performance reports for each bubble curtain deployed must include water depth, current speed and direction, wind speed and direction, bubble curtain deployment/retrieval date and time, bubble curtain hose length, bubble curtain radius (distance from pile), diameter of holes and hole spacing, air supply hose length, compressor type (including rated cubic feet per minute (CFM) and model number), number of operational compressors, performance data from each compressor (including revolutions per minute (RPM), pressure, start times, and stop times), free air delivery (m3/min), total hose air volume (m3/(min m)), schematic of GPS waypoints during hose laying, maintenance procedures performed (pressure tests, inspections, flushing, re-drilling, and any other hose or system maintenance) before and after installation and the time and date of each of these procedures, and the length of time the bubble curtain was on the seafloor prior to foundation installation. Additionally, the report must include any important observations regarding performance (before, during, and after pile installation), such as any observed weak areas of low pressure. The report may also include any relevant video and/or photographs of the bubble curtain(s) operating during pile driving;
(13) If a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the “24-hour North Atlantic right whale Detection Template” (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates). Calling the hotline is not necessary when reporting PAM detections via the template;
(14) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days after pile driving has ended and instruments have been pulled from the water. Reporting must use the webform templates on the NMFS Passive Acoustic Reporting System website at https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates. Submit the completed data templates to nmfs.nec.pacmdata@noaa.gov. The full acoustic recordings from all real-time hydrophones must also be sent to the National Centers for Environmental Information for archiving within 90 calendar days following completion of activities requiring PAM for mitigation. Submission details can be found at: https://www.ncei.noaa.gov/products/passive-acoustic-data;
(15) LOA Holder must submit situational reports if the following circumstances occur (including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours):
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible, and no longer than 24 hours after the sighting) reported to NMFS and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If calling NMFS is not possible, reports can also be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (https://www.whalealert.org). The sighting report must include the time, date, and location of the sighting, number of whales, animal description/certainty of sighting (provide photos/video if taken), Lease Area/project name, PSO/personnel name, PSO provider company (if applicable), and reporter's contact information;
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report to GARFO (nmfs.gar.incidental-take@noaa.gov) and NMFS Office of Protected Resources, and NMFS Northeast Fisheries Science Center (NEFSC; ne.rw.survey@noaa.gov) within 24 hours with the above information and the vessel/platform from which the sighting was made, activity the vessel/platform was engaged in at time of sighting, project construction and/or survey activity at the time of the sighting (e.g., pile driving, cable installation, HRG survey), distance from vessel/platform to sighting at time of detection, and any mitigation actions taken in response to the sighting;
(iii) If an observation of a large whale occurs during vessel transit, LOA Holder must report the time, date, and location of the sighting; the vessel's activity, heading, and speed (knots); Beaufort sea state, water depth (meters), and visibility conditions; marine mammal species identification to the best of the observer's ability and any distinguishing characteristics; initial distance and bearing to marine mammal from vessel and closest point of approach; and any avoidance measures taken in response to the marine mammal sighting;
(iv) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS Southeast Regional Fisheries Office (SERO; secmammalreports@noaa.gov) as soon as feasible. The report (via phone or email) must include contact (name, phone number, etc.), the time, date, and location of the first discovery (and updated location information if known and applicable); species identification (if known) or description of the animal(s) involved; condition of the animal(s) (including carcass condition if the animal is dead); observed behaviors of the animal(s), if alive; if available, photographs or video footage of the animal(s); and general circumstances under which the animal was discovered;
(v) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if other project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov) and, if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO (nmfs.gar.incidental-take@noaa.gov, nmfs.gar.stranding@noaa.gov) or, if in the Southeast region (North Carolina to Florida), NMFS SERO (secmammalreports@noaa.gov). The report must include the time, date, and location of the incident; species identification (if known) or description of the animal(s) involved; vessel size and motor configuration (inboard, outboard, jet propulsion); vessel's speed leading up to and during the incident; vessel's course/heading and what operations were being conducted (if applicable); status of all sound sources in use; description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; estimated size and length of animal that was struck; description of the behavior of the marine mammal immediately preceding and following the strike; if available, description of the presence and behavior of any other marine mammals immediately preceding the strike; estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and to the extent practicable, photographs or video footage of the animal(s). LOA Holder must immediately cease all on-water activities until the NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. LOA Holder may not resume their activities until notified by NMFS Office of Protected Resources; and
(16) LOA Holder must report any lost gear associated with the fishery surveys to the NOAA GARFO Protected Resources Division (nmfs.gar.incidental-take@noaa.gov) as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA;
(b) The LOA, unless suspended or revoked, may be effective for a period of time not to exceed December 31, 2029, the expiration date of this subpart;
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by the LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.347;
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart; and
(f) Notice of issuance or denial of the LOA must be published in the Federal Register within 30 days of a determination.
(a) The LOA issued under §§ 217.342 and 217.346 or this section for the activity identified in § 217.340 shall be modified upon request by LOA Holder, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS Office of Protected Resources determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and
(2) NMFS Office of Protected Resources may, if appropriate, publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) The LOA issued under §§ 217.342 and 217.346 or this section for the activities identified in § 217.340 may be modified by NMFS Office of Protected Resources under the following circumstances:
(1) Through adaptive management, NMFS Office of Protected Resources may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with the LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in the LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring;
(B) Results from other marine mammals and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS Office of Protected Resources shall publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.342 and 217.346 or this section, the LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.