§ 217.274 - Mitigation requirements.

§ 217.274 Mitigation requirements.

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]