Section 217.344 - [Effective 1/1/2025] [Effective until 12/31/2029] Mitigation requirementsWhen conducting the activities identified in § 217.340(c) within the area described in § 217.340(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.346 and 217.347. These mitigation measures include, but are not limited to:
(a)General conditions. LOA Holder must comply with the following general measures:(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSO), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the Project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating Project activities;(3) Prior to and when conducting any in-water activities and vessel operations, LOA Holder personnel and contractors (e.g., vessel operators, PSOs) must use available sources of information on North Atlantic right whale presence in or near the project area including daily monitoring of the Right Whale Sightings Advisory System, and monitoring of U.S. Coast Guard VHF Channel 16 throughout the day to receive notification of any sightings and/or information associated with any slow zones (i.e., Dynamic Management Areas (DMA) and/or acoustically-triggered slow zones) to provide situational awareness for both vessel operators, PSO(s), and PAM operator(s); the marine mammal monitoring team must monitor these systems no less than every 4 hours;(4) Any large whale observation by any project personnel or acoustic detection by a PAM operator must be conveyed to all vessel captains and on-duty PSOs. Any marine mammal observed by project personnel during pile driving must be conveyed to on-duty PSOs;(5) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;(6) PSOs and PAM operators have the authority to call for a delay or shutdown to an activity, and LOA Holder must instruct all personnel regarding the authority of the PSOs and PAM operators. Any disagreements between a PSO, PAM operator, and the activity operator regarding delays or shutdowns may only be discussed after the mitigative action has occurred;(7) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant Level B harassment zone prior to or during a specified activity, the activity must be delayed or shut down, unless doing so would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. The activity must not commence or resume until the animal(s) has been confirmed to have left and is on a path away from the Level B harassment zone or after 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species with no further sightings;(8) For in-water construction heavy machinery activities other than pile driving, if a marine mammal is on a path towards or comes within 10 m (32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;(9) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identity (MMSI) numbers to NMFS Office of Protected Resources prior to commencing initial transits;(10) By accepting the issued LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart;(11) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement; and(12) The LOA Holder must also abide by the reasonable and prudent measures and terms and conditions of the Biological Opinion and Incidental Take Statement, as issued by NMFS, pursuant to section 7 of the Endangered Species Act.(b)Vessel strike avoidance measures. LOA Holder must comply with the following vessel strike avoidance measures while in the specified geographical region, unless a deviation is necessary to maintain safe maneuvering speed and justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel; an emergency situation presents a threat to the health, safety, or life of a person; or when a vessel is actively engaged in emergency rescue or response duties, including vessel-in-distress or environmental crisis response. An emergency is defined as a serious event that occurs without warning and requires immediate action to avert, control, or remedy harm. Speed over ground will be used to measure all vessel speed restrictions. (1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection observation methods in both good weather conditions (i.e., clear visibility, low winds, low sea states) and bad weather conditions (i.e., fog, high winds, high sea states, with glare); sighting communication protocols; all vessel speed and approach limit mitigation requirements (e.g., vessel strike avoidance measures); and information and resources available to the project personnel regarding the applicability of Federal laws and regulations for protected species. This training must be repeated for any new vessel personnel who join the Project. Confirmation of the observers' training and understanding of the Incidental Take Authorization (ITA) requirements must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to vessel activities;(2) LOA Holder, regardless of their vessel's size, must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course to avoid striking any marine mammal;(3) LOA Holder's underway vessels (e.g., transiting, surveying) operating at any speed must have a dedicated visual observer on duty at all times to monitor for marine mammals within a 180° direction of the forward path of the vessel (90° port to 90° starboard) located at an appropriate vantage point for ensuring vessels are maintaining appropriate separation distances. Visual observers must be equipped with alternative monitoring technology (e.g., night vision devices, infrared cameras) for periods of low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual observer must receive prior training on protected species detection and identification, vessel strike minimization procedures, how and when to communicate with the vessel captain, and reporting requirements in this subpart. Visual observers may be third-party observers (i.e., NMFS-approved PSOs) or trained crew members, as defined in paragraph (b)(1) of this section;(4) LOA Holder must continuously monitor the U.S. Coast Guard VHF Channel 16 at the onset of transiting through the duration of transiting, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the Project's Situational Awareness System, WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;(5) All LOA Holder's vessels, regardless of size, must transit at 10 kn (11.5 mph) or less from November 1-April 30 in the specified geographic region;(6) All LOA Holder's vessels, regardless of size, must travel 10 kn (11.5 mph) or less in any Seasonal Management Area (SMA) or active Slow Zones (i.e., DMAs or acoustically triggered slow zone);(7) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported via any of the monitoring systems (refer back to (b)(4) of this section) within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), that vessel must operate at 10 knots (kn; 11.5 miles per hour (mph)) or less for 24 hours following the reported detection;(8) LOA Holder's vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale (other than a North Atlantic right whale) or large assemblages of cetaceans is observed within 500 m (1,640 ft) of an underway vessel;(9) If LOA Holder's vessel(s) are traveling at speeds greater than 10 kn (i.e., no speed restrictions are enacted) in a transit corridor from a port to the Lease Area (or return), in addition to the required dedicated visual observer, LOA Holder must monitor the transit corridor in real-time with PAM prior to and during transits. If a North Atlantic right whale is detected via visual observation or PAM within or approaching the transit corridor, all crew transfer vessels must travel at 10 kn (11.5 mph) or less for 24 hours following the detection. Each subsequent detection shall trigger a 24-hour reset. A slowdown in the transit corridor expires when there has been no further visual or acoustic detection in the transit corridor in the past 24 hours;(10) LOA Holder's vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, LOA Holder's vessel must turn away from the whale(s), reduce speed, and shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m; (328 ft);(11) LOA Holder's vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds with an exception made for those that approach the vessel (i.e., bow-riding dolphins). If a delphinid cetacean or pinniped is sighted within 50 m (164 ft) of a transiting vessel, LOA Holder's vessel must turn away from the animal(s), shift the engine to neutral, with an exception made for those that approach the vessel (e.g., bow-riding dolphins). Engines must not be engaged until the animal(s) has moved outside of the vessel's path and beyond 50 m;(12) When a marine mammal(s) is sighted while LOA Holder's vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (e.g., attempt to remain parallel to the animal's course, slow down, and avoid abrupt changes in direction until the animal has left the area). This measure does not apply to any vessel towing gear or any situation where respecting the relevant separation distance would be unsafe (i.e., any situation where the vessel is navigationally constrained);(13) LOA Holder's vessels underway must not divert or alter course to approach any marine mammal;(14) LOA Holder must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (i.e., DMAs, SMAs, Slow Zones) and any information regarding North Atlantic right whale sighting locations; and(15) LOA Holder must submit a Marine Mammal Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity if vessels will operate over 10 kn (11.5 mph). The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels. If a plan is not submitted or approved by NMFS prior to vessel operations, all project vessels transiting, year-round, must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with the approved Marine Mammal Vessel Strike Avoidance Plan.(c)WTG, OSS, Met tower foundation installation. LOA Holder must comply with the following mitigation measures during impact pile driving activities associated with the installation of WTG, OSS, and Met tower foundations unless compliance is not practicable due to imminent risk of injury or loss of life to an individual, risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is risk of pile refusal or pile instability. (1) Impact pile driving (i.e., foundation and Met Tower installation) must not occur December 1 through April 30;(2) Monopiles must be no larger than 11 m (36.1 ft) in diameter. No more than one monopile may be installed per day, unless otherwise approved in writing by NMFS. Pin piles for the OSSs must be no larger than 3 m in diameter. No more than four 3-m pin piles may be installed per day. Met tower pin piles must be no larger than 1.8 m in diameter. No more than two 1.8-m pin piles may be installed per day. The minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. The impact hammer rating must not exceed 4,400 kJ;(3) LOA Holder must not initiate pile driving earlier than 1 hour prior to civil sunrise or later than 1.5 hours prior to civil sunset, and may only continue pile driving into darkness if stopping operations represents a risk to human health, safety, and/or pile stability, unless the LOA Holder submits, and NMFS approves, an Alternative Monitoring Plan, which would allow pile driving to begin after daylight hours have ended. Until this is submitted, reviewed, and approved by NMFS, LOA Holder may not begin any new pile driving outside of the daylight hours previously defined in this subsection;(4) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer. Soft-start involves initiating hammer operation at a reduced energy level (relative to full operating capacity) followed by a waiting period. The LOA Holder must comply with a soft-start protocol as described in the approved Pile Driving Plan;(5) LOA Holder must implement clearance and shutdown zones, which must be measured using the radial distance around the pile being driven;(6) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.345. At least three on-duty PSOs must be stationed and observing on the foundation installation vessel/platform. A minimum of three PSOs must be active on each of the two dedicated PSO vessels. On-duty PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. Concurrently, PAM operator(s) must be actively monitoring for marine mammals with PAM 60 minutes before, during, and 30 minutes after pile driving in accordance with a NMFS-approved PAM Plan;(7) PSOs must visually monitor clearance zones for marine mammals for a minimum of 60 minutes prior to commencing pile driving. The entire minimum visibility zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for a full 60 minutes immediately prior to commencing pile driving. If PSOs cannot visually monitor the minimum visibility zone prior to foundation pile driving at all times), pile driving operations must not commence;(8) All clearance zones must be confirmed to be free of marine mammals for 30 minutes immediately prior to the beginning of soft-start procedures. If a marine mammal is detected within or about to enter the applicable clearance zones, prior to the beginning of soft-start procedures, impact pile driving must be delayed until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species. PAM operators must immediately communicate all detections of marine mammals at any distance to the Lead PSO, including any determination regarding species identification, distance, and bearing and the degree of confidence in the determination;(9) For North Atlantic right whales, any visual observation or acoustic detection within the PAM monitoring zone must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually nor acoustically detected for 30 minutes;(10) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO or PAM operator must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or risk of damage to a vessel that creates risk of injury or loss of life for individuals, or the lead engineer determines there is pile refusal or pile instability. If pile driving is not shut down in one of these situations, LOA Holder must reduce hammer energy to the lowest level practicable and the reason(s) for not shutting down must be documented and reported to NMFS Office of Protected Resources within the applicable monitoring reports (e.g., weekly, monthly) (see § 217.345);(11) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;(12) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all impact pile driving and comply with the following measures: (i) A single bubble curtain must not be used;(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m3 /(minute*m). The bubble curtain(s) must surround 100 percent of the piling perimeter throughout the full depth of the water column. In the unforeseen event of a single compressor malfunction, the offshore personnel operating the bubble curtain(s) must adjust the air supply and operating pressure such that the maximum possible sound attenuation performance of the bubble curtain(s) is achieved;(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report for review. For piles for which thorough sound field verification (SFV) is carried out, this report must be submitted as soon as it is available but no later than when the thorough interim SFV report is submitted for the respective pile. Performance reports for piles with abbreviated SFV must be submitted with the weekly pile driving reports. Additionally, a full maintenance check (e.g., manually clearing holes) must occur prior to each pile being installed. LOA Holder must develop and implement a maintenance plan that identifies the frequency of hose inspection, flushing, pressure tests, and re-drilling and that is designed to minimize the potential for sediment clogging to affect bubble curtain performance. Adjustments to the frequency of these maintenance steps must be made as necessary to ensure optimal performance of the bubble curtain system; and(vi) Corrections to the bubble ring(s) to meet the performance standards in paragraph (c)(12) of this section must occur prior to impact pile driving of monopiles, 3-m (9.8 ft) pin piles, and 1.8-m (5.9 ft) pin piles. If LOA Holder uses a noise mitigation device in addition to the bubble curtain, LOA Holder must maintain similar quality control measures as described in this paragraph (c)(11) of this section.(13) LOA Holder must implement PAM in accordance with the NMFS- approved PAM Plan, as described in paragraph (c)(18) of this section. The PAM system components (i.e., acoustic buoys) must not be placed closer than 1 km (3,280 ft) to the pile being driven so that the activities do not mask the PAM system. LOA Holder must demonstrate and prove the detection range of the system they plan to deploy while considering potential masking from concurrent pile driving and vessel noise. The PAM system must be designed to detect all marine mammals to the maximum extent practicable, maximize baleen whale detections, and must be capable of detecting North Atlantic right whales within the PAM monitoring zone;(14) LOA Holder must conduct thorough SFV measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations, the first three full jacket foundations (inclusive of all pin piles for a specific jacket foundation), and the first foundation for any foundation scenarios that were modeled for the exposure analysis (e.g., rated hammer energy, number of strikes, representative location) that does not fall into one of the previously listed categories for each of the three construction campaigns. Thorough SFV measurements must be conducted as follows: (i) SFV measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (i.e., projected lowest transmission loss coefficient), including, but not limited to, 750 m (2,460 ft) and three additional ranges selected such that measurement of Level A harassment and Level B harassment isopleths are accurate, feasible, and avoids extrapolation. At least one additional measurement at an azimuth 90 degrees from the array at 750 m (2,460 ft) must be made. At each measurement location, there must be a near bottom and mid-water column hydrophone (measurement systems);(ii) The recordings must be continuous throughout the duration of pile driving for each foundation;(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, the signals prevent poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional in-situ calibration checks using a pistonphone are required to be performed before and after each hydrophone deployment. If the measurement system employs filters via hardware or software (e.g., high-pass, low-pass, etc.), which is not already accounted for by the calibration, the filter performance (i.e., the filter's frequency response) must be known, reported, and the data corrected before analysis;(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries, etc.), which exceeds the amount of equipment necessary to perform the measurements, such that technical issues can be mitigated before measurement; and(vi) LOA Holder must submit interim SFV reports within 48 hours after each foundation is measured (see § 217.345(g) for interim and final reporting requirements).(15) For thorough SFV on monopile and jacket foundations:(i) During thorough SFV, installation of the next foundation (of the same type/foundation method) may not proceed until LOA Holder has reviewed the initial results from the thorough SFV and determined that there were no exceedances of any distances to the identified thresholds based on modeling assuming 10 dB attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (e.g., higher hammer energy, greater number of strikes, etc.);(ii) If any of the thorough SFV measurements from any foundation (monopile or jacket) indicate that the distances to the NMFS' marine mammal Level A harassment or Level B harassment thresholds for marine mammals (peak or cumulative) are greater than the modeled distances (assuming 10 dB attenuation), before the next foundation is installed, LOA Holder must notify NMFS by email within 24 hours of reviewing the thorough SFV measurements as well as identify and propose for review and concurrence: additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances on subsequent foundations; provide a written explanation to NMFS Office of Protected Resources supporting that determination and requesting concurrence to proceed; and, following NMFS Office of Protected Resource's concurrence, deploy those additional measures or modifications on any subsequent foundation of the same pile type/installation methodology that are installed;(iii) LOA Holder must also increase the clearance and shutdown zones for subsequent piles of the same type (e.g., if triggered by SFV results for a monopile, for the next monopile) so that they are at least the size of the distances to those thresholds as indicated by SFV. For every 1,500 m that a marine mammal clearance or shutdown zone is expanded, additional PSOs must be deployed from additional platforms/vessels to ensure adequate and complete monitoring of the expanded shutdown and/or clearance zone. LOA Holder must deploy any additional PSOs consistent with the approved Marine Mammal Monitoring Plan in consideration of the size of the new zones and the species that must be monitored;(iv) Following installation of a pile with additional, alternative, or modified noise attenuation measures or operational changes if thorough SFV results indicate that sound fields are within Level A harassment and B harassment thresholds, assuming 10 dB attenuation, thorough SFV must be conducted on two additional piles of the same type/installation method (for a total of at least three piles with consistent noise attenuation measures). If the thorough SFV results from all three of those piles are within the distances to isopleths of concern modeled assuming 10 dB attenuation, then LOA Holder must continue to implement the approved additional, alternative, or modified noise attenuation measures/operational changes. Use of the expanded clearance and shutdown zones must continue for additional piles until LOA Holder requests and receives concurrence from NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office (GARFO) to revert to the original clearance and shutdown zones;(v) If, after all practicable measures that could be taken to reduce noise levels have been successfully implemented and exhausted, thorough SFV measurements continue to indicate that the distances to the marine mammal harassment thresholds are greater than those modeled assuming 10 dB attenuation, LOA Holder must consult with NMFS Office of Protected Resources to evaluate the circumstances before additional piles are installed; and(vi) If, after additional measurements conducted pursuant to requirements of paragraph (14)(i) of this section, acoustic measurements indicate that ranges to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request a modification of the clearance and shutdown zones from the NMFS Office of Protected Resources. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on an additional three foundations (for either/or monopile and jackets) and ensure that subsequent foundations would be installed under conditions that are predicted to produce smaller harassment zones than those modeled assuming 10 dB of attenuation.(16) Abbreviated SFV measurements must be conducted on the remaining piles for which thorough SFV is not conducted. Abbreviated SFV must be conducted as follows: (i) SFV measurements must be made at a single acoustic recorder, consisting of a near-bottom and mid-water hydrophone, at approximately 750 m from the pile being driven, in the direction of lowest transmission loss to record sounds throughout the duration of all pile driving of each foundation. Reports of abbreviated SFV monitoring must be included in the weekly pile driving reports;(ii) The abbreviated SFV data collected will be used to compare the noise levels defined as a result of thorough SFV;(iii) Abbreviated SFV monitoring duration and equipment must comply with the conditions specified in paragraphs (c)(14)(ii) through (14)(v) of this section;(iv) LOA Holder must review abbreviated SFV results for each pile within 24 hours of completion of the foundation installation. If measured levels at 750 m did not exceed the expected levels defined during thorough SFV, LOA Holder does not need to take any additional action. If measured levels from abbreviated SFV for any pile are greater than expected levels (as defined by thorough SFV), LOA Holder must evaluate the available information from the pile installation to determine if there is an identifiable cause of the greater than expected sound levels (i.e., a failure of the noise attenuation system), identify and implement corrective action, and report this information (inclusive of an explanation of the suspected or identified cause) to NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office within 48 hours of completion of the installation of the pile, during which the greater than expected sound levels occurred. If LOA Holder can demonstrate that this greater than expected sound level was the result of a failure of the noise attenuation system (e.g., loss of a generator supporting a bubble curtain such that one bubble curtain failed during pile driving) that can be remedied in a way that returns the noise attenuation system to pre-failure conditions, or if there is another satisfactory explanation for the increase in sound that is not expected to be repeated for subsequent piles, LOA Holder can request concurrence from NMFS to proceed without thorough SFV monitoring that would otherwise be required within 72 hours. LOA Holder is required to remedy any such failure of the noise attenuation system prior to carrying out any additional pile driving;(v) If results of abbreviated SFV monitoring for any pile exceed the expected noise levels at 750 m established through the initial thorough SFV, LOA Holder must resume thorough SFV monitoring (as described in paragraph (c)(15)(i) of this section) for installation of the same foundation type and installation method within 72 hours after the completion of pile driving with an exceedance. LOA Holder can request concurrence from NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office to resume abbreviated SFV following submission of an interim report from thorough SFV that demonstrates ranges to the Level A harassment and Level B harassment thresholds within expected values (assuming 10 dB attenuation). LOA Holder may automatically resume abbreviated SFV monitoring if three consecutive thorough SFV reports indicate ranges to the Level A harassment and Level B harassment thresholds are within modeled distances (assuming 10 dB attenuation); and(vi) If results from any thorough SFV monitoring triggered by results from abbreviated SFV indicate that ranges to the Level A harassment and Level B harassment thresholds (assuming 10 dB attenuation) are larger than expected values, NMFS Office of Protected Resources and Greater Atlantic Regional Fisheries Office will meet within 3 business days to discuss the results of SFV monitoring, the severity of exceedance of distances to identified isopleths of concern, the species affected, and modeling assumptions, and whether the SFV results demonstrate the magnitude and degree of impacts from the Project are greater than those considered in this final rulemaking. Implementation of additional measures to reduce pile driving noise and/or additional thorough SFV may also be required.(17) LOA Holder must conduct SFV measurements during turbine operations to estimate turbine operational source levels, in accordance with a NMFS-approved SFV Plan. SFV must be conducted in the same manner as previously described in paragraphs (c)(14)(ii) and (iii) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary.(18) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation/entire jacket foundation (inclusive of all pin piles for a jacket foundation) installation sites selected for SFV measurements are representative of the rest of the monopile and/or jacket foundation installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. The SFV Plan must also include methodology for collecting, analyzing, and preparing SFV measurement data for submission to NMFS Office of Protected Resources and describe how the effectiveness of the sound attenuation methodology would be evaluated based on the results. SFV for pile driving may not occur until NMFS approves the SFV Plan for this activity;(19) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division's concurrence with this plan prior to the start of any pile driving. The plan must include a description of all monitoring equipment and PAM and PSO protocols (including number and location of PSOs) for all pile driving. No foundation pile installation can occur without NMFS' approval of the plan; and(20) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities (impact pile driving) and abide by the PAM Plan if approved. The PAM Plan must include a description of all proposed PAM equipment and hardware, the calibration data, bandwidth capacity, address how the proposed PAM must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind as described in NOAA and BOEM Minimum Recommendations for Use of Passive Acoustic Listening Systems in Offshore Wind Energy Development Monitoring and Mitigation Programs (2021). The PAM Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS GARFO Protected Resources Division.(21) In the event of a cetacean live stranding (or near-shore atypical milling) event within 50 km of the pile driving activities, where the NMFS Stranding Network is engaged in herding or other interventions to return animals to the water, NMFS will advise of the need to implement shutdown procedures for all active pile driving activities operating within 50 km of the stranding. Shutdown procedures for live stranding or milling cetaceans include the following: (i) If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts are stopped, NMFS will advise that the shutdown around the animals' location is no longer needed;(ii) Otherwise, shutdown procedures will remain in effect until NMFS determines and advises that all live animals involved have left the area (either of their own volition or following an intervention); and(iii) If further observations of the marine mammals indicate the potential for re-stranding, additional coordination will be required to determine what measures are necessary to minimize that likelihood (e.g., extending the shutdown or moving operations farther away) and to implement those measures as appropriate.(d)HRG surveys. The following requirements apply to HRG surveys operating sub-bottom profilers (SBP) (i.e., boomers, sparkers, and Compressed High Intensity Radiated Pulse (CHIRPS)): (1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in this paragraph (d);(2) LOA Holder is required to have at least one PSO on active duty per HRG vessel during HRG surveys that are conducted during daylight hours (i.e., from 30 minutes prior to civil sunrise through 30 minutes following civil sunset) and at least two PSOs on active duty per vessel during HRG surveys that are conducted during nighttime hours;(3) SBPs (hereinafter referred to as "acoustic sources") must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;(4) LOA Holder is required to ramp-up acoustic sources prior to commencing full power, which involves initiating source operation at a reduced energy level (relative to full operating capacity) followed by a waiting period, unless the equipment operates on a binary on/off switch. LOA Holder is also required to ensure visual clearance zones are observable (e.g., not obscured from observation by darkness, rain, fog, etc.) and clear of marine mammals, as determined by the Lead PSO, for at least 30 minutes immediately prior to the initiation of survey activities using acoustic sources specified in the LOA. Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;(5) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (d)(11) of this section;(6) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;(7) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;(8) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;(9) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;(10) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (i.e., no delay is required) despite periods of inclement weather and/or loss of daylight. Ramp-up may occur at times of poor visibility, including nighttime, if effective visual monitoring has occurred with no detections of marine mammals in the 30 minutes prior to beginning ramp-up;(11) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone. In cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (i.e., no shutdown is required) so long as no marine mammals have been detected. The shutdown requirement does not apply to small delphinids of the following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in this paragraph (d)(11) is detected in the shutdown zone;(12) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;(13) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (i.e., whether the observed marine mammal belongs to one of the delphinid genera for which shutdown is waived), the PSOs must use their best professional judgment in making the decision to call for a shutdown. Shutdown is required if a delphinid that belongs to a genus other than those specified in paragraph (d)(11) of this section is detected in the shutdown zone; and(14) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, acoustic sources may be activated again without ramp-up only if PSOs have maintained constant observation and no additional detections of any marine mammal occurred within the respective shutdown zones.(e)Fisheries monitoring surveys. The following measures apply to fishery monitoring surveys: (1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;(2) LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must implement the following "move-on" rule: If marine mammals are sighted within 1 nmi(1,852 m) of the planned location and 15 minutes before gear deployment, then LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains, as appropriate, must move the vessel away from the marine mammal to a different section of the sampling area. If, after moving on, marine mammals are still visible from the vessel, LOA Holder and its cooperating institutions, contracted vessels, or commercially hired captains must move again or skip the station;(3) If a marine mammal is at risk of interacting with or becoming entangled in the gear after the gear is deployed or set, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;(4) LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (i.e., throughout gear deployment, fishing, and retrieval) as well as for 15 minutes prior to deploying gear and for 15 minutes after haul back;(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;(7) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;(8) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;(9) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 , and all buoy markings must comply with instructions received by the GARFO Protected Resources Division;(10) All survey gear must be removed from the water whenever not in active survey use (i.e., no wet storage); and(11) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear. 89 FR 84715 , 1/1/2025 through 12/31/2029