50 C.F.R. § 217.304

Current through October 31, 2024

Section 217.304 - [Effective 1/1/2025] [Effective until 12/31/2029] Mitigation requirements

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.

50 C.F.R. §217.304

89 FR 78050 , 1/1/2025through 12/31/2029