[Federal Register Volume 88, Number 220 (Thursday, November 16, 2023)]
[Rules and Regulations]
[Pages 78674-78676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25366]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 221214-0271]
RIN 0648-BL52


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Revolution Wind Offshore Wind 
Farm Project Offshore Rhode Island; Correction

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; correction.

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SUMMARY: This document contains corrections to a final rule. The 
document being corrected is the regulations governing the Takes of 
Marine Mammals Incidental to Specified Activities; Taking Marine 
Mammals Incidental to the Revolution Wind Offshore Wind Farm Project 
Offshore Rhode Island, published on October 20, 2023.

DATES: Effective on November 20, 2023.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    NMFS published a final rule in the Federal Register on October 20, 
2023 (88 FR 72562) announcing the promulgation of regulations governing 
the incidental take of marine mammals incidental to Revolution Wind, 
LLC's (Revolution Wind), construction of the Revolution Wind Offshore 
Wind Energy Project in Federal and State waters offshore Rhode Island, 
specifically within the Bureau of Ocean Energy Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS) Lease Area OCS-A-0486 and along two 
export cable routes to sea-to-shore transition points, valid for 5 
years from the date of effectiveness.
    The regulations, which allow for the issuance of a Letter of 
Authorization to Revolution Wind for the incidental take of marine 
mammals during the specified activities within the specified 
geographical region during the effective dates of the regulations, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, as well as requirements pertaining to the 
monitoring and reporting of such taking. NMFS refers the reader to the 
final rule (88 FR 72562, October 20, 2023) for background information 
concerning the regulations. The regulations contained a codification 
error requiring correction. Specifically, 50 CFR 217.274(b)(8) was 
promulgated twice (i.e., two different measures were both designated as 
217.274(b)(8), necessitating renumbering), and, therefore, a correction 
is necessary to properly number 50 CFR 217.274(b).

Correction

0
Effective November 20, 2023, in rule document 2023-22056 at 88 FR 72659 
in the issue of October 20, 2023, on page 72662, in the first column, 
in amendatory instruction 2, paragraph (b) is corrected to read as 
follows:


Sec.  217.274   [Corrected]

    (b) Vessel strike avoidance measures. LOA Holder must comply with 
the following vessel strike avoidance measures, unless an emergency 
situation presents a threat to the health, safety, or life of a person 
or when a vessel, actively engaged in emergency rescue or response 
duties, including vessel-in-distress or environmental crisis response, 
requires speeds in excess of 10 kn (11.5 miles per hour (mph)) to 
fulfill those responsibilities, while in the specified geographical 
region:
    (1) Prior to the start of the Project's activities involving 
vessels, LOA Holder must receive a protected species training that 
covers, at a minimum, identification of marine mammals that have the 
potential to occur where vessels would be operating; detection 
observation methods in both good weather conditions (i.e., clear 
visibility, low winds, low sea states) and bad weather conditions 
(i.e., fog, high winds, high sea states, with glare); sighting 
communication protocols; all vessel speed and approach limit mitigation 
requirements (e.g., vessel strike avoidance measures); and information 
and resources available to the project personnel regarding the 
applicability of Federal laws and regulations for protected species. 
This training must be repeated for any new vessel personnel who join 
the Project. The dedicated visual observers must receive prior training 
on protected species detection and identification, vessel strike 
minimization procedures, how and when to communicate with the vessel 
captain, and reporting requirements in this subpart. Confirmation of 
the observers' training and understanding of the Incidental

[[Page 78675]]

Take Authorization (ITA) requirements must be documented on a training 
course log sheet and reported to NMFS;
    (2) LOA Holder's vessels, regardless of their vessel's size, must 
maintain a vigilant watch for all marine mammals during all vessel 
operations and slow down, stop their vessel, or alter course to avoid 
striking any marine mammal;
    (3) LOA Holder's underway vessels (e.g., transiting, surveying) 
operating at any speed must have a dedicated visual observer on duty on 
each vessel at all times to monitor for marine mammals primarily within 
a 180[deg] direction of the forward path of the vessel (90[deg] port to 
90[deg] starboard) located at an appropriate vantage point for ensuring 
vessels are maintaining appropriate separation distances. Visual 
observers must be equipped with alternative monitoring technology 
(e.g., night vision devices, infrared cameras) for periods of low 
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, use of visual monitoring and 
alternative monitoring equipment, and reporting requirements in this 
subpart. Visual observers may be third-party observers (i.e., NMFS-
approved PSOs as defined in Sec.  217.275 (a)(1)) or trained crew 
members;
    (4) LOA Holder must continuously monitor the U.S. Coast Guard VHF 
Channel 16 at the onset of transiting through the duration of 
transiting, over which notifications of North Atlantic right whale Slow 
Zones (DMAs and acoustically-triggered Slow Zones) are broadcasted. At 
the onset of transiting and at least once every 4 hours, vessel 
operators and/or trained crew member(s) must also monitor the LOA 
Holder's Project-Wide Situational Awareness System, WhaleAlert, and 
relevant NOAA information systems such as the Right Whale Sighting 
Advisory System (RWSAS) for the presence of North Atlantic right 
whales;
    (5) All LOA Holder's vessels must transit at 10 knots (11.5 mph) or 
less within any active North Atlantic right whale Seasonal Management 
Area (SMA) and Slow Zone (i.e., Dynamic Management Areas (DMA) or 
acoustically-triggered Slow Zones);
    (6) Between November 1 and April 30, all vessels, regardless of 
size, must operate port to port (specifically from ports in 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Virginia, and Maryland), and within the Lease Area and Revolution Wind 
Export Cable (RWEC) corridor, at 10 knots (11.5 mph) or less, except 
for vessels transiting in Narragansett Bay or Long Island Sound;
    (7) All LOA Holder's vessel(s) (including crew transfer vessels) 
are restricted from traveling over 10 knots (11.5 mph), unless 
traveling in a frequently traveled transit corridor (e.g., crew 
transfer corridor) between port to the Lease Area while LOA Holder 
monitors the transit corridor to detect large whales (including North 
Atlantic right whales) in real-time with PAM prior to and during 
transits. This measure only applies when no other vessel speed 
restrictions are in place;
    (8) All LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 knots (11.5 mph) or less for at least 24 hours when 
a North Atlantic right whale is sighted at any distance by any project-
related personnel or acoustically detected by any project-related PAM 
system. Each subsequent observation or acoustic detection in the 
Project area must trigger an additional 24-hour period of operating at 
10 knots (11.5 mph) or less. If a North Atlantic right whale is 
reported via any of the monitoring systems (see (b)(4) of this section) 
within 10 kilometers (km; 6.2 miles (mi)) of a transiting vessel(s), 
that vessel must operate at 10 knots (11.5 mph)) or less for 24 hours 
following the reported detection;
    (9) LOA Holder's vessels, regardless of size, must immediately 
reduce speed to 10 knots (11.5 mph) or less when any large whale (other 
than a North Atlantic right whale) is observed within 500 meters (m; 
1,640 ft) of an underway vessel;
    (10) If a large whale (other than a North Atlantic right whale) is 
detected via the transit corridor PAM system, all vessels must travel 
at 10 knots (11.5 mph) until the whale can be confirmed visually beyond 
500 m of the vessel or 24 hours has passed;
    (11) LOA Holder's vessels must maintain a minimum separation 
distance of 500 m (1,640 ft) from North Atlantic right whales. If 
underway, all vessels must steer a course away from any sighted North 
Atlantic right whale at 10 knots (11.5 mph) or less such that the 500-m 
minimum separation distance requirement is not violated. If a North 
Atlantic right whale is sighted within 500 m of an underway vessel, 
that vessel must reduce speed and shift the engine to neutral. Engines 
must not be engaged until the whale has moved outside of the vessel's 
path and beyond 500 m. If a whale is observed but cannot be confirmed 
as a species other than a North Atlantic right whale, the vessel 
operator must assume that it is a North Atlantic right whale and take 
the vessel strike avoidance measures described in this paragraph;
    (12) LOA Holder's vessels must maintain a minimum separation 
distance of 100 m (328 ft) from sperm whales and non-North Atlantic 
right whale baleen whales. If one of these species is sighted within 
100 m of a transiting vessel, LOA Holder's vessel must reduce speed and 
shift the engine to neutral. Engines must not be engaged until the 
whale has moved outside of the vessel's path and beyond 100 m (328 ft);
    (13) LOA Holder's vessels must maintain a minimum separation 
distance of 50 m (164 ft) from all delphinid cetaceans and pinnipeds 
with an exception made for those that approach the vessel (i.e., bow-
riding dolphins). If a delphinid cetacean that is not bow riding or a 
pinniped is sighted within 50 m of a transiting vessel, LOA Holder's 
vessel operator must shift the engine to neutral, with an exception 
made for those that approach the vessel (e.g., bow-riding dolphins). 
Engines must not be engaged until the animal(s) has moved outside of 
the vessel's path and beyond 50 m (164 ft);
    (14) When a marine mammal(s) is sighted while LOA Holder's 
vessel(s) is transiting, the vessel must not divert or alter course to 
approach any marine mammal and must take action as necessary to avoid 
violating the relevant separation distances (e.g., attempt to remain 
parallel to the animal's course, slow down, and avoid excessive speed 
or abrupt changes in direction until the animal has left the area). If 
a separation distance is triggered, any vessel underway must avoid 
abrupt changes in course direction and take appropriate action as 
specified in paragraphs (b)(11) through (13) of this section. This 
measure does not apply to any vessel towing gear or any situation where 
respecting the relevant separation distance would be unsafe (i.e., any 
situation where the vessel is navigationally constrained);
    (15) LOA Holder is required to abide by other speed and approach 
regulations. Nothing in this subpart exempts vessels from any other 
applicable marine mammal speed and approach regulations;
    (16) LOA Holder must check, daily, for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(i.e., DMAs, SMAs, Slow Zones) and any information regarding North 
Atlantic right whale sighting locations;
    (17) LOA Holder must submit a North Atlantic Right Whale Vessel 
Strike Avoidance Plan to NMFS Office of Protected Resources for review 
and

[[Page 78676]]

approval at least 90 days prior to the planned start of vessel 
activity. The plan must provide details on the vessel-based observer 
and PAM protocols for transiting vessels. If a plan is not submitted or 
approved by NMFS prior to vessel operations, all project vessels 
transiting, year round, must travel at speeds of 10 knots (11.5 mph) or 
less. LOA Holder must comply with any approved North Atlantic Right 
Whale Vessel Strike Avoidance Plan; and
    (18) Speed over ground will be used to measure all vessel speed 
restrictions.

    Dated: November 13, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-25366 Filed 11-15-23; 8:45 am]
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