Title 50—Wildlife and Fisheries--Volume 1
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES
§ 217.175   Requirements for monitoring and reporting.
(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:
(1) PSOs must be independent ( i.e., not construction personnel) and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.
(c) The Navy will establish the following monitoring locations. For all pile driving activities, a minimum of one PSO will be assigned to each active pile driving location to monitor the shutdown zones. Trained PSOs will be placed at the best vantage point(s) practicable such as on nearby breakwaters, Gould Island, Coddington Point, or Taylor Point. Visual monitoring will be conducted by, at a minimum, by two PSOs. It is assumed that two to three PSOs would be sufficient to monitor the respective ROIs given the abundance of suitable vantage points. Any activity that would result in threshold exceedance at or more than 1,000 m would require a minimum of three PSOs to effectively monitor the entire ROI. However, additional monitors may be added if warranted by site conditions and/or the level of marine mammal activity in the area.
(d) PSOs must record all observations of marine mammals, regardless of distance from the pile being driven, as well as the additional data indicated in the reporting requirements.
(e) Acoustic monitoring will be conducted in accordance with the Acoustic Monitoring Plan. The Navy will conduct hydroacoustic data collection (sound source verification and propagation loss) in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction.
(f) The shutdown/disturbances zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy will submit a draft monitoring report to NMFS within 90 calendar days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The report will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov.
(i) The marine mammal report must contain the informational elements described ed in the Marine Mammal Monitoring Plan and, at minimum, include:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including: the number and types of piles were driven or removed and by what method ( i.e., impact or vibratory) and the total duration of driving time for each pile (vibratory driving) and number of strikes for each pile (impact driving); and
(3) PSO locations during marine mammal monitoring;
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting.
(ii) Time of sighting; and
(iii) Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and location of each marine mammal observed relative to the pile being driven or removed;
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition etc.);
(vii) Animal's closest point of approach and estimated time spent within the harassment zone; and
(viii) Description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity ( e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(6) Number of marine mammals detected within the harassment zones, by species;
(7) Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting of the behavior of the animal, if any;
(8) The Navy will submit all PSO datasheets and/or raw sightings data with the draft reports.
(j) The Navy must report the hydroacoustic data collected as required by a LOA issued under §§  216.106 of this chapter and 217.176 and as described in the Acoustic Monitoring Plan, and at a minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of driving during recordings ( e.g., hammer model and energy), and total pile driving duration;
(i) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(ii) For impact pile driving (per pile): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
(iii) For vibratory driving/removal (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): Root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged); and
(iv) One-third octave band spectrum and power spectral density plot.
(k) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), NMFS ( PR.ITP.MonitoringReports@noaa.gov and ITP.Egger@noaa.gov ) Monitoring) and to the Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator, as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under §§ 216.106 of this chapter and 217.176. The Navy will not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
§ 217.176   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.177.
(e) The LOA will set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the Federal Register within 30 days of a determination.
§ 217.177   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be renewed or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of this chapter and 217.176 for the activity identified in § 217.170(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment;
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and 217.176, a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.
§§ 217.178-217.179   [Reserved]
§ 217.180   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to oil and gas industry operators (LOA-holders), and those persons authorized to conduct activities on their behalf, for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to geophysical survey activities.
(b) The taking of marine mammals by oil and gas industry operators may be authorized in a Letter of Authorization (LOA) only if it occurs within U.S. waters in the Gulf of Mexico, outside the area subject to a Congressional leasing moratorium under the Gulf of Mexico Energy Security Act (GOMESA) (Pub L. 109-432, § 104) as of the effective date of these regulations.
§ 217.181   Effective dates.
Regulations in this subpart are effective from April 19, 2021 through April 19, 2026.
§ 217.182   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.186, LOA-holders may incidentally, but not intentionally, take marine mammals within the area described in § 217.180(b) by Level A and Level B harassment associated with geophysical survey activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
§ 217.183   Prohibitions.
Notwithstanding takings contemplated in §§ 217.180 and 217.182, and authorized by a LOA issued under §§ 216.106 of this chapter and 217.186, no person in connection with the activities described in § 217.180 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.186;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified; or
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
§ 217.184   Mitigation requirements.
When conducting the activities identified in § 217.180, the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.186 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions. (1) A copy of any issued LOA must be in the possession of the LOA-holder, vessel operator, other relevant personnel, the lead protected species observer (PSO), and any other relevant designees operating under the authority of the LOA.
(2) The LOA-holder must instruct relevant vessel personnel with regard to the authority of the protected species monitoring team (PSO team), and must ensure that relevant vessel personnel and PSO team participate in a joint onboard briefing, led by the vessel operator and lead PSO, prior to beginning work to ensure that responsibilities, communication procedures, protected species monitoring protocols, operational procedures, and LOA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations before work involving those personnel commences.
(3) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source must be avoided. For surveys using airgun arrays as the acoustic source, notified operational capacity ( i.e., total array volume) (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be communicated to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(4) PSOs must be used as specified in this paragraph (a)(4).
(i) LOA-holders must use independent, dedicated, qualified PSOs, meaning that the PSOs must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime hazards), and must be qualified pursuant to § 217.185(a) (except as specified at § 217.184(d)(2)(iii-iv)). Acoustic PSOs are required to complete specialized training for operating passive acoustic monitoring (PAM) systems and are encouraged to have familiarity with the vessel on which they will be working. PSOs may act as both acoustic and visual observers (but not simultaneously), so long as they demonstrate that their training and experience are sufficient to perform each task.
(ii) The LOA-holder must submit PSO resumes for NMFS review and approval prior to commencement of the survey (except as specified at § 217.184(d)(2)(iii)). Resumes should include dates of training and any prior NMFS approval, as well as dates and description of last experience, and must be accompanied by information documenting successful completion of an acceptable training course. NMFS is allowed one week to approve PSOs from the time that the necessary information is received by NMFS, after which PSOs meeting the minimum requirements will automatically be considered approved.
(iii) At least one visual PSO and two acoustic PSOs (when required) aboard each acoustic source vessel must have a minimum of 90 days at-sea experience working in those roles, respectively, with no more than eighteen months elapsed since the conclusion of the at-sea experience (except as specified at § 217.184(d)(2)(iii)). One visual PSO with such experience must be designated as the lead for the entire PSO team. The lead must coordinate duty schedules and roles for the PSO team and serve as the primary point of contact for the vessel operator. (Note that the responsibility of coordinating duty schedules and roles may instead be assigned to a shore-based, third-party monitoring coordinator.) To the maximum extent practicable, the lead PSO must devise the duty schedule such that experienced PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience.
(b) Deep penetration surveys. (1) Deep penetration surveys are defined as surveys using airgun arrays with total volume greater than 1,500 in 3 .
(2) Visual monitoring must be conducted as specified in this paragraph (b)(2).
(i) During survey operations ( i.e., any day on which use of the acoustic source is planned to occur, and whenever the acoustic source is in the water, whether activated or not), a minimum of two PSOs must be on duty and conducting visual observations at all times during daylight hours ( i.e., from 30 minutes prior to sunrise through 30 minutes following sunset).
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs must coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and must conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs must immediately communicate all observations of marine mammals to the on-duty acoustic PSO, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Any observations of marine mammals by crew members aboard any vessel associated with the survey must be relayed to the PSO team.
(vi) During good conditions ( e.g., daylight hours; Beaufort sea state (BSS) 3 or less), visual PSOs must conduct observations when the acoustic source is not operating for comparison of sighting rates and behavior with and without use of the acoustic source and between acquisition periods, to the maximum extent practicable.
(vii) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours of observation per 24-hour period. NMFS may grant an exception for LOA applications that demonstrate such a “two hours on/one hour off” duty cycle is not practicable, in which case visual PSOs will be subject to a maximum of four consecutive hours on watch followed by a break of at least two hours between watches. Combined observational duties (visual and acoustic but not at the same time) must not exceed 12 hours per 24-hour period for any individual PSO.
(3) Acoustic monitoring must be conducted as specified in this paragraph (b)(3).
(i) All source vessels must use a towed PAM system at all times when operating in waters deeper than 100 m, which must be monitored by a minimum of one acoustic PSO beginning at least 30 minutes prior to ramp-up, at all times during use of the acoustic source, and until one hour after use of the acoustic source ceases. “PAM system” refers to calibrated hydrophone arrays with full system redundancy to detect, identify, and estimate distance and bearing to vocalizing cetaceans, coupled with appropriate software to aid monitoring and listening by a PAM operator skilled in bioacoustics analysis and computer system specifications capable of running appropriate software. The PAM system must have at least one calibrated hydrophone (per each deployed hydrophone type and/or set) sufficient for determining whether background noise levels on the towed PAM system are sufficiently low to meet performance expectations. Applicants must provide a PAM plan including description of the hardware and software proposed for use prior to proceeding with any survey where PAM is required.
(ii) Acoustic PSOs must immediately communicate all detections of marine mammals to visual PSOs (when visual PSOs are on duty), including any determination by the PSO regarding species identification, distance, and bearing, and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches, and may conduct a maximum of 12 hours of observation per 24-hour period. Combined observational duties (visual and acoustic but not at the same time) must not exceed 12 hours per 24-hour period for any individual PSO.
(iv) Survey activity may continue for 30 minutes when the PAM system malfunctions or is damaged, while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring during daylight hours only under the following conditions:
(A) Sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding delphinids) detected solely by PAM in the applicable exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began occurring without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(4) PSOs must establish and monitor applicable exclusion and buffer zones. These zones must be based upon the radial distance from the edges of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source ( i.e., anytime the acoustic source is active, including ramp-up), occurrence of marine mammals within the relevant buffer zone (but outside the exclusion zone) should be communicated to the operator to prepare for the potential shutdown of the acoustic source.
(i) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encompassing the area at and below the sea surface out to a radius of 500 meters from the edges of the airgun array (0-500 m) is defined. For special circumstances (defined at § 217.184(b)(9)(v)), the exclusion zone encompasses an extended distance of 1,500 meters (0-1,500 m).
(ii) During pre-start clearance monitoring ( i.e., before ramp-up begins), the buffer zone acts as an extension of the exclusion zone in that observations of marine mammals within the buffer zone would also preclude airgun operations from beginning ( i.e., ramp-up). For all marine mammals (except where superseded by the extended 1,500-m exclusion zone), the buffer zone encompasses the area at and below the sea surface from the edge of the 0-500 meter exclusion zone out to a radius of 1,000 meters from the edges of the airgun array (500-1,000 m). The buffer zone is not applicable when the exclusion zone is greater than 500 meters, i.e., the observational focal zone is not increased beyond 1,500 meters.
(5) A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total active array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. A 30-minute pre-start clearance observation period must occur prior to the start of ramp-up. The LOA-holder must adhere to the following pre-start clearance and ramp-up requirements:
(i) The operator must notify a designated PSO of the planned start of ramp-up as agreed upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up.
(ii) Ramp-ups must be scheduled so as to minimize the time spent with source activated prior to reaching the designated run-in.
(iii) A designated PSO must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed.
(iv) Ramp-up must not be initiated if any marine mammal is within the applicable exclusion or buffer zone. If a marine mammal is observed within the exclusion zone or the buffer zone during the 30-minute pre-start clearance period, ramp-up must not begin until the animal(s) has been observed exiting the zones or until an additional time period has elapsed with no further sightings (15 minutes for small delphinids and 30 minutes for all other species).
(v) Ramp-up must begin by activating a single airgun of the smallest volume in the array and shall continue in stages by doubling the number of active elements at the commencement of each stage, with each stage of approximately the same duration. Total duration must not be less than 20 minutes. The operator must provide information to the PSO documenting that appropriate procedures were followed.
(vi) Ramp-up must cease and the source shut down upon observation of marine mammals within the applicable exclusion zone. Once ramp-up has begun, observations of marine mammals within the buffer zone do not require shutdown.
(vii) Ramp-up may occur at times of poor visibility, including nighttime, if appropriate acoustic monitoring has occurred with no detections of a marine mammal other than delphinids in the 30 minutes prior to beginning ramp-up. Acoustic source activation may only occur at night where operational planning cannot reasonably avoid such circumstances.
(viii) If the acoustic source is shut down for brief periods ( i.e., less than 30 minutes) for reasons other than implementation of prescribed mitigation ( e.g., mechanical difficulty), it may be activated again without ramp-up if PSOs have maintained constant visual and/or acoustic observation and no visual or acoustic detections of any marine mammal have occurred within the applicable exclusion zone. For any longer shutdown, pre-start clearance observation and ramp-up are required. For any shutdown at night or in periods of poor visibility ( e.g., BSS 4 or greater), ramp-up is required, but if the shutdown period was brief and constant observation maintained, pre-start clearance watch is not required.
(ix) Testing of the acoustic source involving all elements requires ramp-up. Testing limited to individual source elements or strings does not require ramp-up but does require the pre-start clearance observation period.
(6) Shutdowns must be implemented as specified in this paragraph (b)(6).
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source pursuant to the requirements of this subpart.
(ii) The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch.
(iii) When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs.
(iv) When the airgun array is active ( i.e., anytime one or more airguns is active, including during ramp-up) and (1) a marine mammal appears within or enters the applicable exclusion zone and/or (2) a marine mammal (excluding delphinids) is detected acoustically and localized within the applicable exclusion zone, the acoustic source must be shut down. When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation.
(v) The extended 1,500-m exclusion zone must be applied upon detection (visual or acoustic) of a baleen whale, sperm whale, beaked whale, or Kogia spp. within the zone.
(vi) Shutdown requirements are waived for dolphins of the following genera: Tursiops, Stenella, Steno, and Lagenodelphis. If a delphinid is visually detected within the exclusion zone, no shutdown is required unless the PSO confirms the individual to be of a genus other than those listed above, in which case a shutdown is required. Acoustic detection of delphinids does not require shutdown.
(vii) If there is uncertainty regarding identification or localization, PSOs may use best professional judgment in making the decision to call for a shutdown.
(viii) Upon implementation of shutdown, the source may be reactivated after the marine mammal(s) has been observed exiting the applicable exclusion zone or following a 30-minute clearance period with no further detection of the marine mammal(s).
(c) Shallow penetration surveys. (1) Shallow penetration surveys are defined as surveys using airgun arrays with total volume equal to or less than 1,500 in 3 , single airguns, boomers, or equivalent sources.
(2) LOA-holders conducting shallow penetration surveys must follow the requirements defined for deep penetration surveys at § 217.184(b), with the following exceptions:
(i) Acoustic monitoring is not required for shallow penetration surveys.
(ii) Ramp-up for small airgun arrays must follow the procedure described above for large airgun arrays, but may occur over an abbreviated period of time. Ramp-up is not required for surveys using only a single airgun. For non-airgun sources, power should be increased as feasible to effect a ramp-up.
(iii) Two exclusion zones are defined, depending on the species and context. A standard exclusion zone encompassing the area at and below the sea surface out to a radius of 100 meters from the edges of the airgun array (if used) or from the acoustic source (0-100 m) is defined. For special circumstances (§ 217.184(b)(6)(v)), the exclusion zone encompasses an extended distance of 500 meters (0-500 m).
(iv) The buffer zone encompasses the area at and below the sea surface from the edge of the 0-100 meter exclusion zone out to a radius of 200 meters from the edges of the airgun array (if used) or from the acoustic source (100-200 meters). The buffer zone is not applicable when the exclusion zone is greater than 100 meters.
(d) High-resolution geophysical (HRG) surveys. (1) HRG surveys are defined as surveys using an electromechanical source that operates at frequencies less than 180 kHz, other than those defined at § 217.184(c)(1) ( e.g., side-scan sonar, multibeam echosounder, or chirp sub-bottom profiler).
(2) LOA-holders conducting HRG surveys must follow the requirements defined for shallow penetration surveys at § 217.184(c), with the following exceptions:
(i) No shutdowns are required for HRG surveys. Pre-start clearance watch is required as defined at § 217.184(c), i.e., for a period of 30 minutes and over a 200-m radius from the acoustic source.
(ii) During survey operations ( e.g., any day on which use of the acoustic source is planned to occur, and whenever the acoustic source is in the water, whether activated or not), a minimum of one trained and experienced independent PSO must be on duty and conducting visual observations at all times during daylight hours ( i.e., from 30 minutes prior to sunrise through 30 minutes following sunset) when operating in waters deeper than 100 m.
(iii) When operating in waters shallower than 100 m, LOA-holders must employ one trained visual PSO, who may be a crew member, only for purposes of conducting pre-start clearance monitoring. If PSOs are crew members, i.e., are not independent PSOs, the PSOs are not subject to NMFS' approval. In these circumstances, LOA requests must describe the training that will be provided to crew members filling the role of PSO.
(iv) PSOs are not required during survey operations in which the active acoustic source(s) are deployed on an autonomous underwater vehicle.
(e) Time-area closure. From January 1 through May 31, no use of airguns may occur shoreward of the 20-m isobath and between 90-84° W.
(f) Entanglement avoidance. To avoid the risk of entanglement, LOA-holders conducting surveys using ocean-bottom nodes or similar gear must:
(1) Use negatively buoyant coated wire-core tether cable;
(2) Retrieve all lines immediately following completion of the survey; and
(3) Attach acoustic pingers directly to the coated tether cable; acoustic releases should not be used.
(g) Vessel strike avoidance. LOA-holders must adhere to the following requirements:
(1) Vessel operators and crews must maintain a vigilant watch for all marine mammals and must slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel, which shall be defined according to the parameters stated in this subsection. Visual observers monitoring the vessel strike avoidance zone may be third-party observers ( i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a baleen whale, sperm whale, or other marine mammal;
(2) Vessel speeds must be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of marine mammals are observed near a vessel;
(3) All vessels must maintain a minimum separation distance of 500 m from baleen whales;
(4) All vessels must maintain a minimum separation distance of 100 m from sperm whales;
(5) All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel; and
(6) When marine mammals are sighted while a vessel is underway, the vessel must take action as necessary to avoid violating the relevant separation distance, e.g., attempt to remain parallel to the animal's course, avoid excessive speed or abrupt changes in direction until the animal has left the area. If marine mammals are sighted within the relevant separation distance, the vessel must reduce speed and shift the engine to neutral, not engaging the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained.
(7) These requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply.
§ 217.185   Requirements for monitoring and reporting.
(a) PSO qualifications. (1) PSOs must successfully complete relevant, acceptable training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(2) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must be submitted to NMFS and shall include written justification. Requests will be granted or denied (with justification) by NMFS within one week of receipt of submitted information. Alternate experience that may be considered includes, but is not limited to:
(i) Secondary education and/or experience comparable to PSO duties;
(ii) Previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or
(iii) Previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(b) Equipment. LOA-holders are required to:
(i) Provide PSOs with bigeye binoculars ( e.g., 25 x 150; 2.7 view angle; individual ocular focus; height control) of appropriate quality solely for PSO use. These must be pedestal-mounted on the deck at the most appropriate vantage point that provides for optimal sea surface observation, PSO safety, and safe operation of the vessel.
(ii) For each vessel required to use a PAM system, provide a PAM system that has been verified and tested by an experienced acoustic PSO who will be using it during the trip for which monitoring is required;
(iii) Work with the selected third-party observer provider to ensure PSOs have all equipment (including backup equipment) needed to adequately perform necessary tasks, including accurate determination of distance and bearing to observed marine mammals. (Equipment specified in A. through G. below may be provided by an individual PSO, the third-party observer provider, or the LOA-holder, but the LOA-holder is responsible for ensuring PSOs have the proper equipment required to perform the duties specified herein.) Such equipment, at a minimum, must include:
(A) Reticle binoculars ( e.g., 7 x 50) of appropriate quality (at least one per PSO, plus backups);
(B) Global Positioning Unit (GPS) (plus backup);
(C) Digital camera with a telephoto lens (the camera or lens should also have an image stabilization system) that is at least 300 mm or equivalent on a full-frame single lens reflex (SLR) (plus backup);
(D) Compass (plus backup);
(E) Radios for communication among vessel crew and PSOs (at least one per PSO, plus backups); and
(F) Any other tools necessary to adequately perform necessary PSO tasks.
(c) Data collection. PSOs must use standardized electronic data forms. PSOs must record detailed information about any implementation of mitigation requirements, including the distance of marine mammals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up or activation of the acoustic source. If required mitigation was not implemented, PSOs must record a description of the circumstances. At a minimum, the following information should be recorded:
(1) Vessel names (source vessel and other vessels associated with survey), vessel size and type, maximum speed capability of vessel, port of origin, and call signs;
(2) PSO names and affiliations;
(3) Dates of departures and returns to port with port name;
(4) Dates of and participants in PSO briefings;
(5) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
(6) Vessel location (latitude/longitude) when survey effort began and ended and vessel location at beginning and end of visual PSO duty shifts;
(7) Vessel location at 30-second intervals (if software capability allows) or 5-minute intervals (if location must be manually recorded);
(8) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
(9) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions changed significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon;
(10) Vessel location when environmental conditions change significantly;
(11) Factors that may have contributed to impaired observations during each PSO shift change or as needed as environmental conditions change ( e.g., vessel traffic, equipment malfunctions);
(12) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in an array, tow depth of an acoustic source, and any other notes of significance ( i.e., pre-start clearance, ramp-up, shutdown, testing, shooting, ramp-up completion, end of operations, streamers, etc.); and
(13) Upon visual observation of a marine mammal, the following information:
(i) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
(ii) PSO who sighted the animal and PSO location (including height above water) at time of sighting;
(iii) Time of sighting;
(iv) Vessel coordinates at time of sighting;
(v) Water depth;
(vi) Direction of vessel's travel (compass direction);
(vii) Speed of the vessel(s) from which the observation was made;
(viii) Direction of animal's travel relative to the vessel;
(ix) Pace of the animal;
(x) Estimated distance to the animal (and method of estimating distance) and its heading relative to vessel at initial sighting;
(xi) Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;
(xii) Estimated number of animals (high/low/best);
(xiii) Estimated number of animals by cohort (adults, juveniles, group composition, etc.);
(xiv) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
(xv) Detailed behavior observations ( e.g., number of blows/breaths, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior), including an assessment of behavioral responses to survey activity;
(xvi) Animal's closest point of approach (CPA) and/or closest distance from any element of the acoustic source;
(xvii) Platform activity at time of sighting ( e.g., deploying, recovering, testing, shooting, data acquisition, other); and
(xviii) Description of any actions implemented in response to the sighting ( e.g., delays, shutdown, ramp-up) and time and location of the action.
(14) Upon acoustic detection of a marine mammal using a PAM system, the following information:
(i) An acoustic encounter identification number, and whether the detection was linked with a visual sighting;
(ii) Date and time when first and last heard;
(iii) Types and nature of sounds heard ( e.g., clicks, whistles, creaks, burst pulses, continuous, sporadic, strength of signal); and
(iv) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), spectrogram screenshot, and any other notable information.
(d) Reporting. (1) Annual reporting must be submitted as specified in this paragraph.
(i) LOA-holders must submit a summary report to NMFS on all activities and monitoring results within 90 days of the completion of the survey or expiration of the LOA, whichever comes sooner, and must include all information described above under § 217.185(c). If an issued LOA is valid for greater than one year, the summary report must be submitted on an annual basis.
(ii) The report must describe activities conducted and sightings of marine mammals, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities, and information regarding locations where the acoustic source was used). In addition to the report, all raw observational data must be made available to NMFS.
(iii) For operations requiring the use of PAM, the report must include a validation document concerning the use of PAM, which should include necessary noise validation diagrams and demonstrate whether background noise levels on the PAM deployment limited achievement of the planned detection goals. Copies of any vessel self-noise assessment reports must be included with the report.
(iv) The LOA-holder must provide geo-referenced time-stamped vessel tracklines for all time periods in which airguns (full array or single) were operating. Tracklines must include points recording any change in airgun status ( e.g., when the airguns began operating, when they were turned off). GIS files must be provided in ESRI shapefile format and include the UTC date and time, latitude in decimal degrees, and longitude in decimal degrees. All coordinates must be referenced to the WGS84 geographic coordinate system.
(v) The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring.
(vi) A final report must be submitted within 30 days following resolution of any comments on the draft report.
(2) Comprehensive reporting must be submitted as specified in this paragraph. LOA-holders must contribute to the compilation and analysis of data for inclusion in an annual synthesis report addressing all data collected and reported through annual reporting in each calendar year. The synthesis period shall include all annual reports deemed to be final by NMFS in a given one-year reporting period. The report must be submitted to NMFS within 90 days following the end of a given one-year reporting period.
(e) Reporting of injured or dead marine mammals. (1) In the event that personnel involved in the survey activities discover an injured or dead marine mammal, the LOA-holder must report the incident to the Office of Protected Resources (OPR), NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) In the event of a ship strike of a marine mammal by any vessel involved in the survey activities, the LOA-holder must report the incident to OPR, NMFS and to the Southeast Regional Stranding Network as soon as feasible. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Vessel's speed during and leading up to the incident;
(iv) Vessel's course/heading and what operations were being conducted (if applicable);
(v) Status of all sound sources in use;
(vi) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(vii) Environmental conditions ( e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike;
(viii) Estimated size and length of animal that was struck;
(ix) Description of the behavior of the marine mammal immediately preceding and following the strike;
(x) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
(xi) Estimated fate of the animal ( e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and
(xii) To the extent practicable, photographs or video footage of the animal(s).
(3) For deep penetration surveys, in the event of a live stranding (or near-shore atypical milling) event within 50 km of the survey operations, where the NMFS stranding network is engaged in herding or other interventions to return animals to the water, the Director of OPR, NMFS (or designee) will advise the LOA-holder of the need to implement shutdown procedures for all active acoustic sources operating within 50 km of the stranding. Shutdown procedures for live stranding or milling marine mammals include the following:
(i) If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, the Director of OPR, NMFS (or designee) will advise the LOA-holder that the shutdown around the animals' location is no longer needed.
(ii) Otherwise, shutdown procedures will remain in effect until the Director of OPR, NMFS (or designee) determines and advises the LOA-holder that all live animals involved have left the area (either of their own volition or following an intervention).
(iii) If further observations of the marine mammals indicate the potential for re-stranding, additional coordination with the LOA-holder will be required to determine what measures are necessary to minimize that likelihood ( e.g., extending the shutdown or moving operations farther away) and to implement those measures as appropriate.
(4) If NMFS determines that the circumstances of any marine mammal stranding found in the vicinity of the activity suggest investigation of the association with survey activities is warranted, and an investigation into the stranding is being pursued, NMFS will submit a written request to the LOA-holder indicating that the following initial available information must be provided as soon as possible, but no later than 7 business days after the request for information. In the event that the investigation is still inconclusive, the investigation of the association of the survey activities is still warranted, and the investigation is still being pursued, NMFS may provide additional information requests, in writing, regarding the nature and location of survey operations prior to the time period above.
(i) Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and
(ii) If available, description of the behavior of any marine mammal(s) observed preceding ( i.e., within 48 hours and 50 km) and immediately after the discovery of the stranding.
§ 217.186   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, prospective LOA-holders must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period not to exceed the expiration date of these regulations.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the LOA-holder must apply for and obtain a modification of the LOA as described in § 217.187.
(d) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species or stock and its habitat; and
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations and a determination that the amount of take authorized under the LOA is of no more than small numbers.
(f) For LOA issuance, where either (1) the conclusions put forth in an application ( e.g., take estimates) are based on analytical methods that differ substantively from those used in the development of the rule, or (2) the proposed activity or anticipated impacts vary substantively in scope or nature from those analyzed for the rule, NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the differences, and solicit public comment before making a decision regarding issuance of the LOA.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.
§ 217.187   Renewals and modifications of Letters of Authorization (LOA).
(a) An LOA issued under § 216.106 of this chapter and § 217.186 for the activity identified in § 217.180 shall be modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that result in more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under § 216.106 of this chapter and § 217.186 for the activity identified in § 217.180 may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures (after consulting with the LOA-holder regarding the practicability of the modifications) if doing so is practicable and creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in an LOA issued pursuant to § 216.106 of this chapter and § 217.186, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.
§§ 217.188-217.189   [Reserved]
§ 217.190   Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to incidental taking of marine mammals by the U.S. Coast Guard (Coast Guard) and those persons it authorizes or funds to conduct activities on its behalf in the areas outlined in paragraph (b) of this section and that occurs incidental to maintenance construction activities.
(b) The taking of marine mammals by the Coast Guard may be authorized in a Letter of Authorization (LOA) only if it occurs within Gulf of Alaska waters in the vicinity of one of the following eight Coast Guard facilities: Kodiak, Sitka, Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward.
§ 217.191   Effective dates.
Regulations in this subpart are effective from March 1, 2024, through February 28, 2029.
§ 217.192   Permissible methods of taking.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.196, the Holder of the LOA (hereinafter “Coast Guard”) may incidentally, but not intentionally, take marine mammals within the areas described in § 217.190(b) by Level A or Level B harassment associated with maintenance construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
§ 217.193   Prohibitions.
Except for takings described in § 217.192 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.196, it shall be unlawful for any person to do any of the following in connection with the activities described in § 217.190:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.196;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as authorized;
(d) Take a marine mammal specified in such LOAs after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
§ 217.194   Mitigation requirements.
When conducting the activities identified in § 217.190(a), the mitigation measures contained in this subpart and any LOA issued under §§ 216.106 of this chapter and 217.196 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) A copy of any issued LOA must be in the possession of the Coast Guard, supervisory construction personnel, lead protected species observers, and any other relevant designees of the Coast Guard operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.
(2) The Coast Guard shall conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant Coast Guard staff prior to the start of all down-the-hole (DTH), pile driving, cutting or power washing activity and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood.
(3) The Coast Guard shall avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 20 m of an activity regulated under this subpart, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions.
(b) Shutdown zones:
(1) For all DTH, pile driving, cutting or power washing activity, the Coast Guard shall implement a minimum shutdown zone of a 20-m radius around the pile or DTH hole. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(2) For all DTH and pile driving activity, the Coast Guard shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.196. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(3) For all DTH and pile driving activity, the Coast Guard shall designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.196. Anticipated observable zones within the designated monitoring zones shall be identified in the Marine Mammal Monitoring Plan, subject to approval by NMFS.
(c) Shutdown protocols:
(1) The Coast Guard shall deploy Protected Species Observers (PSOs) as indicated in the Marine Mammal Monitoring Plan, which shall be subject to approval by NMFS, and as described in § 217.195.
(2) For all DTH and pile driving activities, a minimum of one PSO shall be stationed at the active pile driving rig or activity site or in reasonable proximity in order to monitor the entire shutdown zone.
(3) Monitoring must take place from 30 minutes prior to initiation of DTH and pile driving activity through 30 minutes post-completion of DTH and pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones are clear of marine mammals. DTH and pile driving activity may commence following 30 minutes of observation when the determination is made.
(4) If DTH and pile driving activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(5) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible ( e.g., fog, heavy rain, night), the Coast Guard must delay in-water construction activities until observers are confident marine mammals within the shutdown zone could be detected.
(6) Monitoring shall be conducted by trained PSOs, who shall have no other assigned tasks during monitoring periods. Trained PSOs shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Coast Guard shall adhere to the PSO qualifications in § 217.195.
(d) The Coast Guard must use soft start techniques for impact pile driving. Soft start for impact drivers requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced energy three-strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
§ 217.195   Requirements for monitoring and reporting.
(a) The Coast Guard must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. Marine mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following:
(1) PSOs must be independent of the activity contractor ( i.e. not employed by the construction contractor), and have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute education (degree in biological science or related field) or training for prior experience.
(4) Where a team of three or more PSOs are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(5) The Coast Guard must submit PSO curriculum vitae (CVs) for approval by NMFS. PSOs must be approved by NMFS prior to beginning any activity subject to this regulation.
(c) PSOs must record all observations of marine mammals as described in the Marine Mammal Monitoring Plan, regardless of distance from the pile being driven. PSOs shall document any behavioral reactions in concert with distance from piles being driven or removed.
(d) The Coast Guard shall deploy additional PSOs to monitor harassment zones according to the minimum requirements defined in Marine Mammal Monitoring Plan, subject to approval by NMFS. These observers shall collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity, and shall communicate with the shutdown zone observer(s) as appropriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behaviors.
(e) Reporting:
(1) Annual reporting:
(i) Coast Guard shall submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. Coast Guard shall provide a final report within 30 days following resolution of comments on the draft report. If no work requiring monitoring is conducted within a calendar year, Coast Guard shall provide a statement to that effect in lieu of a draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal monitoring;
(B) Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method ( i.e., impact or vibratory) and the total equipment duration for vibratory or DTH for each pile. When possible, the number of strikes for each pile/hole (impact driving, DTH); and, for DTH, the duration of operation for both impulsive and non-impulsive components as well as the strike rate must be included;
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(E) Upon observation of a marine mammal, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; Time of sighting; Identification of the animal(s) ( e.g., genus and species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; Distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting); Estimated number of animals (min, max, and best estimate); Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc. ); Animal's closest point of approach and estimated time spent within the harassment zone; and Description of any marine mammal behavioral observations ( e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity ( e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);
(F) Number of marine mammals detected within the harassment zones, by species;
(G) Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.
(2) Coast Guard shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart. All PSO datasheets and/or raw sighting data must be submitted with the draft reports.
(3) All draft and final monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Hotchkin@noaa.gov.
(f) Reporting of injured or dead marine mammals:
(1) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Coast Guard must immediately cease the specified activities and report the incident to the Office of Protected Resources ( PR.ITP.MonitoringReports@noaa.gov and ITP.Hotchkin@noaa.gov ), NMFS and to Alaska Regional Stranding Coordinator as soon as feasible. If the death or injury was likely caused by the specified activity, the Coast Guard must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the regulations under this subpart and LOAs. The Coast Guard must not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
§ 217.196   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations under this subpart, the Coast Guard must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of the regulations under this subpart.
(c) If an LOA expires prior to the expiration date of the regulations under this subpart, the Coast Guard may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Coast Guard must apply for and obtain a modification of the LOA as described in § 217.197.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
§ 217.197   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 217.196 for the activity identified in § 217.190(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations under this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations of this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 217.196 for the activity identified in § 217.190(a) may be modified by NMFS under the following circumstances:
(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the Coast Guard regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Coast Guard's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations under this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.196, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
§§ 217.198-217.199   [Reserved]
§ 217.200   Specified activities and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking of those marine mammals specified in § 217.202(b) by the Port of Anchorage and the U.S. Department of Transportation Maritime Administration (MARAD), and those persons it authorizes to engage in construction activities associated with the Port of Anchorage Marine Terminal Redevelopment Project, specifically in-water pile driving, at the Port of Anchorage, Alaska.
(b) [Reserved]
§ 217.201   Effective dates.
Regulations in this subpart are effective from July 15, 2009, through July 14, 2014.
§ 217.202   Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to § 216.106 of this chapter and § 217.207, the Port of Anchorage and MARAD, and persons under their authority, may incidentally, but not intentionally, take marine mammals by harassment, within the area described in § 217.200, provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b) The taking of marine mammals under a Letter of Authorization is limited to the incidental take, by Level B harassment only, of the following species under the activities identified in § 217.200(a): Cook Inlet beluga whales (Delphinapterus leucas), harbor seals (Phoca vitulina), harbor porpoises (Phocoena phocoena), and killer whales (Orcinus orca).
(c) The taking by injury or death of the species listed in paragraph (b) of this section or the taking by Level B harassment, injury or death of any other marine mammal species is prohibited and may result in the modification, suspension, or revocation of a Letter of Authorization.
§ 217.203   Prohibitions.
Notwithstanding takings contemplated in § 217.202(b) and authorized by a Letter of Authorization issued under § 216.106 of this chapter and § 217.207, no person in connection with the activities described in § 217.200 may:
(a) Take any marine mammal not specified in § 217.202(b);
(b) Take any marine mammal specified in § 217.202(b) other than by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in § 217.202(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under § 216.106 of this chapter and § 217.207.
§ 217.204   Mitigation.
(a) When conducting operations identified in § 217.200(a), the mitigation measures contained in the Letter of Authorization, issued under § 216.106 of this chapter and § 217.207, must be implemented. These mitigation measures are:
(1) Through monitoring described under § 217.205, the Holder of a Letter of Authorization will ensure that no marine mammal is subjected to a sound pressure levels of 190 or 180 dB re: 1 microPa or greater for pinnipeds and cetaceans, respectively. If a marine mammal is detected within or approaching a distance 200 m from in-water pile driving or in-water chipping, operations shall be immediately delayed or suspended until the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting.
(2) If a marine mammal is detected within or approaching the Level B harassment zone designated for impact pile driving (350 m) prior to in-water impact pile driving, operations shall not commence until the animal moves outside this zone or it is not detected within 15 minutes of the last sighting.
(3) If a marine mammal is detected within or approaching the Level B harassment zone designated for vibratory pile driving (1,300 m) prior to in-water vibratory pile driving, operations shall not commence until the marine mammal moves outside this zone or it is not detected within 15 minutes of the last sighting.
(4) A start” technique shall be used at the beginning of each day's in-water pile driving activities or if pile driving has ceased for more than one hour to allow any marine mammal that may be in the immediate area to leave before piling driving reaches full energy. For vibratory hammers, the soft start requires the holder of the Letter of Authorization to initiate noise from the hammers for 15 seconds at reduced energy followed by 1-minute waiting period and repeat the procedure two additional times. If an impact hammer is used, the soft start requires an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one minute waiting period, then two subsequent 3 strike sets.
(5) In-water pile driving or chipping shall not occur when conditions restrict clear, visible detection of all waters within the appropriate harassment zones or the 200 m safety zone. Such conditions that can impair sightibility include, but are not limited to, fog and rough sea state.
(6) In-water piles will be driven with a vibratory hammer to the maximum extent possible (i.e., until a desired depth is achieved or to refusal) prior to using an impact hammer.
(7) In-water impact pile driving shall not occur during the period from two hours before low tide until two hours after low tide.
(8) The following measures apply to all in-water pile driving, except during the “stabbing” phase, and all in-water chipping associated with demolition of the existing dock:
(i) No in-water pile driving (impact or vibratory) or chipping shall occur if any marine mammal is located within 200m of the hammer in any direction. If any marine mammal is sighted within or approaching this 200m safety zone, pile-driving or chipping must be suspended until the animal has moved outside the 200m safety zone or the animal is not resighted within 15 minutes.
(ii) If a group of more than 5 beluga whales is sighted within the Level B harassment isopleths, in-water pile driving shall be suspended. If the group is not re-sighted within 15 minutes, pile driving may resume.
(iii) If a beluga whale calf or group with a calf is sighted within or approaching a harassment zone, in-water pile driving shall cease and shall not be resumed until the calf or group is confirmed to be outside of the harassment zone and moving along a trajectory away from such zone. If the calf or group with a calf is not re-sighted within 15 minutes, pile driving may resume.
(9) If maximum authorized take is reached or exceeded for a particular species, any marine mammal of that species entering into the harassment or safety isopleths will trigger mandatory in-water pile driving shut down.
(10) For Port of Anchorage operated in-water heavy machinery work other than pile driving or chipping (i.e., dredging, dump scowles, tug boats used to move barges, barge mounted hydraulic excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 50 m, those operations will cease and vessels will reduce to the slowest speed practicable while still maintaining control of the vessel and safe working conditions.
(11) In the event the Port of Anchorage conducts out-of-water blasting, detonation of charges will be delayed if a marine mammal is detected anywhere within a visible distance from the detonation site.
(12) Additional mitigation measures as contained in a Letter of Authorization.
(b) [Reserved]
§ 217.205   Requirements for monitoring and reporting.
(a) The Holder of a Letter of Authorization issued pursuant to § 216.106 of this chapter and § 217.207, for activities described in § 217.200(a) is required to cooperate with NMFS, and any other Federal, state or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Administrator, Alaska Region, NMFS, by letter, e-mail, or telephone, at least 2 weeks prior to commencement of seasonal activities and dock demolition possibly involving the taking of marine mammals. If the activity identified in § 217.200(a) is thought to have resulted in the mortality or injury of any marine mammals or in any take of marine mammals not identified in § 217.202(b), the Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, NMFS, or designee, by e-mail or telephone (301-713-2289), within 24 hours of the discovery of the injured or dead animal.
(b) The Holder of a Letters of Authorization must designate qualified, on-site marine mammal observers (MMOs), approved in advance by NMFS, as specified in the Letter of Authorization, to:
(1) Conduct visual marine mammal monitoring at the Port of Anchorage beginning 30 minutes prior to and during all in-water pile driving or chipping and out-of-water blasting.
(2) Record the following information on NMFS-approved marine mammal sighting sheets whenever a marine mammal is detected:
(i) Date and time of initial sighting to end of sighting, tidal stage, and weather conditions (including Beaufort Sea State);
(ii) Species, number, group composition, initial and closest distance to pile driving hammer, and behavior (e.g., activity, group cohesiveness, direction and speed of travel, etc.) of animals throughout duration of sighting;
(iii) Any discrete behavioral reactions to in-water work;
(iv) The number (by species) of marine mammals that have been taken;
(v) Pile driving, chipping, or out of water blasting activities occurring at the time of sighting and if and why shut down was or was not implemented.
(3) Employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale abundance, movements, behavior, and habitat use around the Port of Anchorage and observe, analyze, and document potential changes in behavior in response to in-water construction work. This monitoring team is not required to be present during all in-water pile driving operations but will continue monitoring one-year post in-water construction. The on-site MMOs and this marine mammal monitoring team shall remain in contact to alert each other to marine mammal presence when both teams are working.
(c) The Holder of a Letter of Authorization must conduct additional monitoring as required under an annual Letter of Authorization.
(d) The Holder of a Letter of Authorization shall submit a monthly report to NMFS' Headquarters Permits, Education and Conservation Division and the Alaska Region, Anchorage for all months in-water pile driving or chipping takes place. This report must contain the information listed in paragraph (b)(2) of this section.
(e) An annual report must be submitted at the time of application for renewal of a Letter of Authorization. This report will summarize all in-water construction activities and marine mammal monitoring from January 1- December 31, annually, and any discernable short or long term impacts from the Marine Terminal Expansion Project.
(f) A final report must be submitted to NMFS upon application for a subsequent incidental take authorization or, if no future authorization is requested, no later than 90 days post expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported in all previous reports;
(2) Assess the impacts to marine mammals from the port expansion project; and
(3) Assess the cumulative impacts on marine mammals.
§ 217.206   Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined by § 216.103 of this chapter) conducting the activity identified in § 217.200(a) (the Port of Anchorage and MARAD) must apply for and obtain either an initial Letter of Authorization in accordance with § 217.207 or a renewal under § 217.208.
(b) The application must be submitted to NMFS at least 60 days before the expiration of the initial or current Letter of Authorization.
(c) Applications for a Letter of Authorization and for renewals of Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) The date(s), duration, and the specified geographic region where the activities specified in § 217.200 will occur; and
(3) The most current population estimate of Cook Inlet beluga whales and the estimated percentage of marine mammal populations potentially affected for the 12-month period of effectiveness of the Letter of Authorization;
(4) A summary of take levels, monitoring efforts and findings at the Port of Anchorage to date.
(d) The National Marine Fisheries Service will review an application for a Letter of Authorization in accordance with this section and, if adequate and complete, issue a Letter of Authorization.
§ 217.207   Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, but must be renewed annually subject to annual renewal conditions in § 217.208.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking; and
(2) Requirements for mitigation, monitoring and reporting, including, but not limited to, means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses.
(c) Issuance of a Letter of Authorization will be based on the determination that the number of marine mammals taken during the period the Letter of Authorization is valid will be small, that the total taking of marine mammals by the activities specified in § 217.200(a) will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for subsistence uses.
(d) Notice of issuance or denial of an application for a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 217.208   Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under § 216.106 of this chapter and § 217.207 for the activity identified in § 217.200(a) will be renewed annually upon:
(1) Notification to NMFS that the activity described in the application submitted under § 217.206 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under § 217.205(d) and (e), and the Letter of Authorization issued under § 217.207, which has been reviewed and accepted by NMFS; and
(3) A determination by NMFS that the mitigation, monitoring and reporting measures required under §§ 217.204 and 217.205 and the Letter of Authorization issued under § 216.106 of this chapter and § 217.207, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization; and
(4) A determination by NMFS that the number of marine mammals taken during the period of the Letter of Authorization will be small, that the total taking of marine mammals by the activities specified in § 217.200(a) will have no more than a negligible impact on the species or stock of affected marine mammal(s), and that the total taking will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization issued under § 216.106 of this chapter and this section indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request.
(c) Notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register within 30 days of a determination.
§ 217.209   Modifications of Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization by NMFS, issued pursuant to § 216.106 of this chapter and § 217.207 and subject to the provisions of this subpart, shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 217.208, without modification (except for the period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.202(b), a Letter of Authorization issued pursuant to § 216.106 of this chapter and § 217.207 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the Federal Register within 30 days subsequent to the action.
§ 217.210   Specified activity and geographical region.
(a) Regulations in this subpart apply only to the Hampton Roads Connector Partners (HRCP) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities including marine structure maintenance, pile replacement, and select waterfront improvements at the Hampton Roads Bridge Tunnel Expansion Project (HRBT).
(b) The taking of marine mammals by HRCP may be authorized in a Letter of Authorization (LOA) only if it occurs at the Hampton Roads Bridge Tunnel Expansion project location in the James River between Norfolk, VA and Hampton, VA.
§ 217.211   Effective dates.
Regulations in this subpart are effective from April 2, 2021 through April 2, 2026.
§ 217.212   Permissible methods of taking.
(a) Under an LOA issued pursuant to §§  216.106 of this chapter and 217.216, the Holder of the LOA (hereinafter “HRCP”) may incidentally, but not intentionally, take marine mammals within the area described in §  217.210(b) by Level A and Level B harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(b) [Reserved]
§ 217.213   Prohibitions.
(a) Except for the takings contemplated in §  217.22 and authorized by an LOA issued under §§  216.106 of this chapter and 217.216, it is unlawful for any person to do any of the following in connection with the activities described in §  217.210:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§  216.106 of this chapter and 217.216;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner that is not authorized by the LOA; or
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
(b) [Reserved]
§ 217.214   Mitigation requirements.
(a) When conducting the activities identified in §  217.210(a), the mitigation measures contained in any LOA issued under §§  216.106 of this chapter and 217.216 must be implemented. These mitigation measures shall include but are not limited to:
(1) A copy of any issued LOA must be in the possession of HRCP, its designees, and work crew personnel operating under the authority of the issued LOA.
(2) HRCP shall conduct briefings for construction supervisors and crews, the monitoring team, and HRCP staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.
(3) For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 meters (m), HRCP shall cease operations and reduce vessel speed to the minimum level required to maintain steerage and safe working conditions.
(4) For all pile driving activity, HRCP shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(5) For all pile driving activity, HRCP shall implement shutdown zones with radial distances as identified in a LOA issued under §§  216.106 of this chapter and 217.216. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
(6) HRCP shall deploy protected species observers (observers) as indicated in its Marine Mammal Monitoring Plan approved by NMFS.
(7) For all pile driving activities, between one and four observers shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures.
(8) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone ( i.e., must leave of their own volition) and their behavior shall be monitored and documented. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time required to drive a pile. If in-water pile installation and removal work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility ( i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye).
(9) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. In the event of a delay, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal.
(10) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
(11) Should environmental conditions deteriorate ( e.g., fog, heavy rain) such that observers are unable to visibly detect marine mammals within the entire shutdown zone then HRCP shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected.
(12) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. HRCP shall adhere to the following additional observer qualifications:
(i) Independent observers are required;
(ii) At least one observer must have prior experience working as an observer;
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience;
(iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
(v) HRCP must submit PSO CVs for approval by NMFS prior to the beginning of pile driving and drilling.
(13) HRCP shall use soft start techniques for impact pile driving. Soft start for impact driving requires HRCP and those persons it authorizes to provide an initial set of three strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy three-strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
(14) HRCP shall employ bubble curtain systems during impact driving of steel piles except under conditions where the water depth is less than 20 feet in depth. Bubble curtains must meet the following requirements:
(i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column.
(ii) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact.
(iii) The bubble curtain must be operated such that there is proper (equal) balancing of air flow to all bubblers.
(iv) HRCP shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards specified in an LOA issued under §§  216.106 of this chapter and §  217.216. This shall occur prior to the initiation of pile driving activities.
(b) [Reserved]
§ 217.215   Requirements for monitoring and reporting.
(a) HRCP shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
(b) HRCP shall deploy observers as indicated in its approved Marine Mammal Monitoring Plan.
(c) Observers shall be trained in marine mammal identification and behaviors. Observers shall have no other construction-related tasks while conducting monitoring.
(d) HRCP shall monitor the Level B harassment zones and Level A harassment zones extending beyond the designated shutdown zones to the extent practicable.
(e) HRCP shall monitor the shutdown zones during all pile driving and removal activities.
(f) HRCP shall submit a draft annual monitoring report to NMFS within 90 work days of the completion of annual marine mammal monitoring. The report must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. Specifically, the report must include:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method ( i.e., impact or vibratory);
(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, estimated observable distance (if less than the harassment zone distance), and percentages of Level A and Level B harassment zones that are not visible;
(4) The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;
(5) Age and sex class, if possible, of all marine mammals observed;
(6) PSO locations during marine mammal monitoring;
(7) Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);
(8) Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active;
(9) Number of marine mammals detected within the harassment zones, by species;
(10) Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any; and
(11) Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals;
(g) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, HRCP shall report the incident to the Office of Protected Resources (OPR) (301-427-8401), NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, HRCP must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. HRCP must not resume their activities until notified by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s); and
(6) General circumstances under which the animal was discovered.
§ 217.216   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, HRCP must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, HRCP may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, HRCP must apply for and obtain a modification of the LOA as described in §  217.217.
(e) The LOA shall set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.
§ 217.217   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§  216.106 of this chapter and 217.216 for the activity identified in §  217.210(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§  216.106 of this chapter and 217.216 for the activity identified in §  217.210(a) may be modified by NMFS under the following circumstances:
(1) HRCP may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with NMFS regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from HRCP's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs;
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§  216.106 of this chapter and 217.216, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.
§§ 217.218-217.219   [Reserved]
§ 217.260   Specified activity and specified geographical region.
(a) Regulations in this subpart apply to activities associated with the Ocean Wind 1 project (hereafter referred to as the “Project”) by Ocean Wind, LLC (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0498 Commercial Lease of Submerged Lands for Renewable Energy Development, two export cable routes, and two sea-to-shore transition points located in New Jersey at Oyster Creek, Island Beach State Park in Barnegat Bay, Farm Property, and BL England.
(c) The specified activities are impact pile driving of wind turbine generator (WTGs) and offshore substation (OSSs) foundations; vibratory pile driving (install and subsequently remove) of cofferdams and goal posts; high-resolution geophysical (HRG) site characterization surveys; unexploded ordnances or munitions and explosives of concern (UXOs/MECs) detonation; vessel transit within the specified geographical region to transport crew, supplies, and materials; WTG operation; fishery and ecological monitoring surveys; placement of scour protection; and trenching, laying, and burial activities associated with the installation of the export cable route from OSSs to shore-based converter stations and inter-array cables between turbines.
§ 217.261   Effective dates.
The regulations in this subpart are effective from October 13, 2023, through October 12, 2028.
§ 217.262   Permissible methods of taking.
Under the LOA, issued pursuant to §§ 216.106 and 217.266, LOA Holder, and those persons it authorizes or funds to conduct activities on its behalf, may incidentally, but not intentionally, take marine mammals within the vicinity of BOEM Lease Area OCS-A 0498 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the two sea-to-shore transition points located in New Jersey at Oyster Creek, Island Beach State Park in Barnegat Bay, Farm Property, and BL England in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact pile driving (WTG and OSS foundation installation), vibratory pile driving (cofferdam and goal post installation and removal), UXO/MEC detonations, and HRG site characterization surveys;
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving of WTG and OSS foundations and UXO/MEC detonations;
(c) Take by mortality or serious injury of any marine mammal species is not authorized; and
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following species:
Table 1 to Paragraph ( d )
§ 217.263   Prohibitions.
Except for the takings described in § 217.262 and authorized by an LOA issued under §§ 217.266 or 217.267, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.266 and 217.267;
(b) Take any marine mammal not specified in § 217.262(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.262(d), after NMFS Office of Protected Resources determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
§ 217.264   Mitigation requirements.
When conducting the activities identified in § 217.260(c) within the area described in § 217.260(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.266 and 217.267. These mitigation measures include, but are not limited to:
(a) General conditions. LOA Holder must comply with the following general measures:
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors ( e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the Project Area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any Slow Zones ( i.e., Dynamic Management Areas (DMAs) and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s); The marine mammal monitoring team must monitor these systems no less than every 4 hours. For any UXO/MEC detonation, these systems must be monitored for 24 hours and immediately prior to blasting;
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual or acoustic detection must trigger a delay to the commencement of pile driving, UXO/MEC detonation, and HRG surveys.
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) If a delay to commencing an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by the Lead PSO or PAM operator, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO, PAM operator, and the activity operator regarding delays or shutdowns would only be discussed after the mitigative action has occurred;
(8) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to beginning a specified activity, the activity must be delayed. If the activity is ongoing, it must be shut down immediately, unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species with no further sightings;
(9) For in-water construction heavy machinery activities listed in § 217.260(c), if a marine mammal is on a path towards or comes within 10 meters (m) (32.8 feet) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(10) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(11) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(12) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b) Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures, unless an emergency situation presents a threat to the health, safety, or life of a person or when a vessel, actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response, requires speeds in excess of 10 kn to fulfill those responsibilities, while in the specified geographical region:
(1) Prior to the start of the Project's activities involving vessels, LOA Holder must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions ( i.e., clear visibility, low winds, low sea states) and bad weather conditions ( i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements ( e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS;
(2) LOA Holder's vessels, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) LOA Holder's underway vessels ( e.g., transiting, surveying) operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology ( e.g., night vision devices, infrared cameras) for periods of low visibility ( e.g., darkness, rain, fog, etc. ). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. Visual observers may be third-party observers ( i.e., NMFS-approved PSOs) or trained crew members, as defined in (b)(1) of this subsection.
(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the project's Situational Awareness System, WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) All LOA Holder's vessels must transit at 10 kn or less within any active North Atlantic right whale Slow Zone ( i.e., Dynamic Management Areas (DMAs) or acoustically-triggered slow zone);
(6) All LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (refer back to paragraph (b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5 miles per hour (mph)) or less for 24 hours following the reported detection;
(7) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale (other than a North Atlantic right whale) is observed within 500 meters (m; 1,640 feet (ft)) of an underway vessel;
(8) If LOA Holder's vessel(s) are traveling at speeds greater than 10 kn ( i.e., no speed restrictions are enacted) in a transit corridor from a port to the Lease Area, in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM within or approaching the transit corridor, all crew transfer vessels must travel at 10 kn or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;
(9) LOA Holder's vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph (b)(9) of this section;
(10) LOA Holder's vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, LOA Holder's vessel must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(11) LOA Holder's vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinoid cetaceans and pinnipeds with an exception made for those that approach the vessel ( i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m of a transiting vessel, LOA Holder's vessel must shift the engine to neutral, with an exception made for those that approach the vessel ( e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;
(12) When a marine mammal(s) is sighted while LOA Holder's vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances ( e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe ( i.e., any situation where the vessel is navigationally constrained);
(13) LOA Holder's vessels underway must not divert or alter course to approach any marine mammal. If a separation distance is triggered, any vessel underway must avoid abrupt changes in course direction and transit at 10 kn or less until the animal is outside the relevant separation distance;
(14) LOA Holder is required to abide by other speed and approach regulations. Nothing in this subpart exempts vessels from any other applicable marine mammal speed and approach regulations;
(15) LOA Holder must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas ( i.e., DMAs, SMAs, Slow Zones) and any information regarding North Atlantic right whale sighting locations;
(16) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 90 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels transiting, year round, must travel at speeds of 10-kn or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan; and
(17) Speed over ground will be used to measure all vessel speed restrictions.
(c) WTG and OSS foundation installation. The following requirements apply to impact pile driving activities associated with the installation of WTG and OSS foundations:
(1) Impact pile driving must not occur January 1 through April 30. Impact pile driving must be avoided to the maximum extent practicable in December; however, it may occur if necessary to complete the project with prior approval by NMFS;
(2) Monopiles must be no larger than 11 m in diameter, representing the larger end of the monopile design. During all monopile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules for monopile installation. No more than two monopiles may be installed per day. Pin piles must be no larger than 5 m in diameter. During all pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 2,500 kJ for pin pile installation. No more than three pin piles may be installed per day;
(3) LOA Holder may initiate impact pile driving during hours of darkness only from June 1 to October 31, annually, in accordance with a NMFS-approved Alternative Monitoring Plan for Nighttime Pile Driving;
(4) For the construction months of May and November (as well as December, if approval is granted by NMFS), impact pile driving must only be initiated during daylight hours, defined as no later than 1.5 hours prior to civil sunset and no earlier than 1 hour after civil sunrise, and would only be allowed to continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability;
(5) LOA Holder must utilize a soft-start protocol for each impact pile driving event of all foundations by performing four to six strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes;
(6) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(7) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance around the pile being driven. If a marine mammal is detected within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(8) For North Atlantic right whales, any visual observation or acoustic detection must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period;
(9) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all impact pile driving:
(i) A single bubble curtain must not be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m 3 /(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check ( e.g., manually clearing holes) must occur prior to each pile being installed;
(vi) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(9) must occur prior to impact pile driving of monopiles. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in this paragraph (c)(9).
(10) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph(c)(17) of this section. The PAM system components ( i.e., acoustic buoys) must not be placed closer than 1 km to the pile being driven so that the activities do not mask the PAM system. LOA Holder must provide an adequate demonstration of and justification for the detection range of the system they plan to deploy while considering potential masking from concurrent pile-driving and vessel noise. The PAM system must be able to detect a vocalization of North Atlantic right whales up to 10 km (6.2 mi).
(11) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.265(c). At least three on-duty PSOs must be on the pile driving platform. Additionally, two dedicated-PSO vessels must be used at least 60 minutes before, during, and 30 minutes after all pile driving, and each dedicated-PSO vessel must have at least three PSOs on duty during these time periods. LOA Holder may request NMFS approval to use alternative technology ( e.g., drones) in lieu of one or two of the dedicated PSO vessels that provide similar marine mammal detection capabilities.
(12) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving is not shutdown in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports ( e.g., weekly, monthly).
(13) A visual observation or acoustic detection of a North Atlantic right whale at any distance triggers shutdown requirements under paragraph (c)(12) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected for 30 minutes;
(14) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(15) LOA Holder must conduct sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations. SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 decibels (dB) of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional piles are driven that may produce louder sound fields than those previously measured ( e.g., higher hammer energy, greater number of strikes, etc. ). SFV measurements must be conducted as follows:
(i) Measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss ( i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m must be made. At each location, there must be a near bottom and mid-water column hydrophone (measurement systems);
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software ( e.g., high-pass, low-pass, etc. ), which is not already accounted for by the calibration, the filter performance ( i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis.
(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc. ), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement;
(vi) LOA Holder must submit 48-hour interim reports after each foundation is measured (see § 217.265(g) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted for the first three monopiles indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional sound attenuation measures on all subsequent foundations. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. LOA Holder must optimize the sound attenuation systems ( e.g., ensure hose maintenance, pressure testing, etc. ) to meet noise levels modeled, assuming 10-dB attenuation, within three piles or else foundation installation activities must cease until NMFS and LOA Holder can evaluate the situation and ensure future piles must not exceed noise levels modeled assuming 10-dB attenuation;
(viii) If, after additional measurements conducted pursuant to requirements of paragraph (15)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10-dB of attenuation;
(ix) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in paragraph (c)(15) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(x) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity.
(16) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the Plan; and
(17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d) Cofferdam and goal post installation and removal. The following requirements apply to the installation and removal of cofferdams and goal posts at the cable landfall construction sites:
(1) Installation and removal of cofferdams and goal posts must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) All installation and removal of sheet piles for cofferdams and casing pipes for goal posts must only occur for up to 12 hours for each cofferdam and up to 1 hour daily for each goal post (within a single 24-hour period);
(3) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam and goal post being installed and/or removed;
(4) LOA Holder must utilize PSO(s), as described in § 217.265(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory pile driving associated with cofferdam and casing pipe installation; and
(5) If a marine mammal is observed entering or within the respective shutdown zone after vibratory pile driving has begun, the PSO must call for a shutdown of vibratory pile driving. LOA Holder must stop vibratory pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the next available weekly report (as described in § 217.265(h)).
(e) UXO/MEC detonations. The following requirements apply to all Unexploded Ordnances and Munitions and Explosives of Concern (UXO/MEC) detonations:
(1) Upon encountering an UXO/MEC, LOA Holder may only resort to high-order removal ( i.e., detonation) if all other means of removal are impracticable;
(2) LOA Holder may detonate a maximum of 10 UXO/MECs, of varying sizes but no larger than 1,000 pounds (lbs; 454 kilograms (kg)) charge weight ( i.e., E12), over the effective period of this rulemaking and LOA;
(3) LOA Holder must not detonate UXO/MECs from November 1 through April 31, annually;
(4) UXO/MEC detonations must only occur during daylight hours;
(5) No more than one detonation may occur within a 24-hour period;
(6) LOA Holder must establish and implement clearance zones for UXO/MEC detonation using both visual and acoustic monitoring, as described in paragraphs (c)(7), (8), and (12) through (14) of this section. UXO/MEC clearance zones are specific to the known charge weight size of the UXO/MEC to be detonated; if charge weight is unknown or uncertain then the largest zone size must be used;
(7) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.265(c). At least three PSOs on each of two dedicated PSO vessels must be used for all detonations with clearance zones less than 5 km (3.1 mi). If the clearance zone is larger than 5 km, at least one dedicated PSO vessel (with at least three on-duty PSOs) and an aerial platform (with at least two on-duty PSOs) must be used. Clearance zone size is measured using the radial distance from the UXO/MEC to be detonated;
(8) LOA Holder must utilize NMFS-approved PAM systems, as described in (c)(17) of this section.
(9) LOA Holder must deploy at least a double big bubble curtain during all UXO/MEC detonations. The bubble curtain must be deployed at a distance that avoids damage to the hose nozzles:
(i) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m 3 /(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iii) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(iv) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each UO/MEC is detonated. Additionally, a full maintenance check ( e.g., manually clearing holes) must occur prior to each UXO/MEC detonation;
(v) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (e)(9) must occur prior to UXO/MEC detonation.
(10) LOA Holder must conduct SFV during all UXO/MEC detonations as described in paragraph (c)(15) of this section and deploy a pressure transducer;
(11) Clearance zones must be fully visible for at least 60 minutes and all marine mammal(s) must be confirmed to be outside of the clearance zone for at least 30 minutes prior to detonation. PAM must also be conducted for at least 60 minutes and the zone must be acoustically cleared during this time. If a marine mammal is observed entering or within the clearance zone prior to denotation, the activity must be delayed. Detonation may only commence if all marine mammals have been confirmed to have voluntarily left the clearance zones and been visually confirmed to be beyond the clearance zone, or when 60 minutes have elapsed without any redetections for whales (including the North Atlantic right whale) or 15 minutes have elapsed without any redetections of delphinids, harbor porpoises, or seals;
(12) For UXO/MEC detonations, LOA Holder must follow all measures described in paragraphs (c)(15) and § 217.264(c)(15)(i) through (vi), as well as the measures below:
(i) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for UXO/MEC detonations. If any of the interim SFV measurement reports submitted for any UXO/MEC detonations indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation for future detonations will be exceeded, then LOA Holder must implement additional sound attenuation measures on all subsequent UXO/MEC detonations, including but not limited to the deployment of additional NAS to assist in achieving measurements in alignment with the modeled ranges. LOA Holder must also increase clearance zone sizes to those identified by NMFS until SFV measurements on UXO/MECs demonstrate distances to harassment thresholds will be met or will be less than those modeled assuming 10 dB of attenuation. LOA Holder must optimize the sound attenuation systems ( e.g., ensure hose maintenance, pressure testing, etc. ) to meet noise levels modeled, assuming 10 dB of attenuation, for UXO/MECs of the same charge weight or else no detonation activities must occur until NMFS and LOA Holder can evaluate the situation and ensure future UXO/MEC detonations must not exceed noise levels modeled, assuming 10-dB attenuation;
(ii) LOA Holder must submit a SFV Plan for UXO/MEC detonation to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation activities and abide by the Plan if approved. The SFV Plan must include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. For recommended SFV protocols for UXO/MEC, please consult the National Physical Laboratory (NPL) Protocol for In-Situ Underwater Measurement of Explosive Ordnance Disposal for UXO (2020). SFV for UXO/MEC detonation cannot occur until NMFS approves the SFV Plan for this activity;
(iii) LOA Holder must submit a UXO/MEC Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of UXO/MEC detonation, respectively, and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any UXO/MEC detonations. The Plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all UXO/MEC detonations. The Plan must include final UXO/MEC detonation project design ( e.g., number and type of UXO/MECs, removal method(s), charge weight(s), anticipated start date, etc. ) and all information related to PAM and PSO monitoring protocols for UXO/MEC activities. The Plan must detail all plans and procedures for sound attenuation as well as for monitoring marine mammals during all UXO/MEC detonations. No UXO/MEC detonations can occur without NMFS' approval of the Plan; and
(iv) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of UXO/MEC detonations and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No UXO/MEC detonations can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(f) HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBPs) ( i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)):
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.265(f);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) LOA Holder is required to ramp-up acoustic sources prior to commencing full power, unless the equipment operates on a binary on/off switch, and ensure visual clearance zones are fully visible ( e.g., not obscured by darkness, rain, fog, etc. ) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA. Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(6) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(12) of this section;
(7) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(8) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(9) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(10) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(11) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations would be allowed to commence ( i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if appropriate visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;
(12) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations would be allowed to continue ( i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species ( i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (f)(12) of this section is detected in the shutdown zone;
(13) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;
(14) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species ( i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (f)(12) of this section is detected in the shutdown zone; and
(15) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation ( e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.
(g) Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys:
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nmi of the planned location and 15 minutes before gear deployment, then LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;
(3) If a marine mammal is deemed to be at risk of interaction after the gear is deployed or set, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water ( i.e., throughout gear deployment, fishing, and retrieval);
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn;
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(9) During trawl surveys, vessel crew must open the codend of the trawl net close to the deck in order to avoid injury to animals that may be caught in the gear;
(10) Baited remote underwater video (BRUV) sampling must limit soak duration to 60 minutes or less, BRUVs must use a weighted line attached to surface and subsurface buoys that must hold a stereo-camera system in the water column and a system at the seafloor, and the vessel must remain on location with the gear while it is in use;
(11) Each chevron trap must have a vertical buoy line and must limit soak duration to 90 minutes or less;
(12) All fishery survey-related lines must include the breaking strength of all lines being less than 1,700 pounds (lbs; 771 kilograms (kg)). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs; or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs;
(13) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(14) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(15) All survey gear must be removed from the water whenever not in active survey use ( i.e., no wet storage); and
(16) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.