(a) Regulations in this subpart apply only to 8 Star Alaska or successor entities and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section. Requirements imposed on 8 Star Alaska must be implemented by those persons it authorizes or funds to conduct activities on its behalf.

(b) The taking of marine mammals by 8 Star Alaska may be authorized in a Letter of Authorization (LOA) only if it occurs within 8 Star Alaska's Alaska liquefied natural gas (LNG) facilities' construction areas, which are located between the Beluga Landing shoreline crossing on the north and the Kenai River south of Nikiski on the south in Cook Inlet, Alaska.

(c) The taking of marine mammals during this project is only authorized if it occurs incidental to activities associated with 8 Star Alaska's construction of LNG facilities.

Regulations in this subpart are effective January 1, 2026, through December 31, 2030.

(a) Under LOAs issued pursuant to § 216.106 of this chapter and this subpart, the holder of the LOAs and those persons it authorizes or funds to conduct activities on its behalf (hereinafter “8 Star Alaska”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.40(b) by Level A harassment and Level B harassment associated with construction of LNG facilities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

(b) [Reserved]

Except for the taking permitted in § 217.42 and authorized by the LOA issued under § 216.106 of this chapter and this subpart, it is unlawful for any person to do any of the following in connection with the activities specified activities in § 217.40:

(a) Violate or fail to comply with the terms, conditions, and requirements of this subpart or the LOA issued under this subpart;

(b) Take any marine mammal not specified in the LOA;

(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA;

(d) Take any marine mammal specified in the LOA after NMFS determines such taking results in more than a negligible impact on the species or stock of such marine mammal; or

(e) Take any marine mammal specified in the LOA 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.

When conducting the activities identified in § 217.40(c), the mitigation measures contained in this section and any LOAs issued under § 216.106 of this chapter and this subpart must be implemented. These mitigation measures include:

(a) A copy of any issued LOA must be in the possession of 8 Star Alaska, its designees, and work crew personnel operating under the authority of the issued LOA.

(b) 8 Star Alaska must employ protected species observers (PSOs) and establish monitoring locations pursuant to § 217.45.

(c) 8 Star Alaska must implement shutdown zones for pile driving and clearance zones for anchor handling with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.46.

(1) Monitoring of shutdown or clearance zones must take place from 30 minutes prior to commencing impact and vibratory pile driving or use of tugs for anchor-handling (AHTs), or if there is a 30-minute lapse in such activities, and must continue for 30 minutes following conclusion of the activity.

(i) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the PSO(s) to observe the entirety of the shutdown zone for impact pile driving and at least 2 km for vibratory pile driving and anchor handling, except in cases where anchor handling operations occur during nighttime hours. In these circumstances, 8 Star Alaska must ensure the clearance zones are clear of marine mammals to the maximum extent possible.

(ii) The specified activities identified in § 217.40(c) may only commence following 30 minutes of observation when PSOs determine that the shutdown or clearance zones are clear of marine mammals.

(iii) If the activity is delayed or halted due to the presence of a marine mammal, the activity must not commence until either the animal(s) has voluntarily exited and been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection of the animal in the shutdown zone.

(2) Pile driving must be halted upon observation of a marine mammal entering or within the shutdown zone. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and has been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection in the shutdown zone.

(i) If work ceases for more than 30 minutes, the shutdown zones must be cleared again for 30 minutes prior to reinitiating pile driving. A determination that the pile driving shutdown zone is clear must be made during a period of good visibility.

(ii) If a shutdown procedure should be initiated but human safety is at risk as determined by the best professional judgment of the vessel operator or project engineer, the in-water activity, including pile driving, is allowed to continue until the risk to human safety has dissipated. In this scenario, pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until the Lead PSO has determined that the shutdown zones are clear of marine mammals and for Cook Inlet beluga whales (CIBWs), any observed whale(s) is at least 100 meters (m) past the shutdown zone and on a path away from the zone.

(3) If a PSO(s) can no longer effectively monitor the entirety of the corresponding shutdown zone during impact pile driving, or at least 2 km during vibratory pile driving, due to environmental conditions (e.g., fog, rain, wind), pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until conditions improve such that the zone can be effectively monitored. If the shutdown zone cannot be monitored for more than 15 minutes, the entire zone must be cleared again for 30 minutes prior to reinitiating pile driving.

(4) If a species for which authorization has not been granted or a species for which authorization has been granted but the authorized takes have been reached is observed approaching, entering, or within the corresponding zone, in-water work must be delayed (if during pre-clearance) or shut down (except for AHTs engaged in anchor handling). Activities must not resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown or clearance zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without re-detection of the animal within the shutdown or clearance zone.

(d) 8 Star Alaska must use soft start techniques when impact pile driving. Soft start requires 8 Star Alaska to conduct three sets of strikes (three strikes per set) at reduced hammer energy with a one-minute waiting period between each set. A soft start must 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.

(e) 8 Star Alaska must coordinate with local subsistence communities as described in their stakeholder engagement plan, notify the communities of any changes in operation, and work with communities to avoid or mitigate impacts to subsistence harvest through pre-construction planning, communication, or other actions.

(f) 8 Star Alaska must not conduct pile driving associated with the Mainline Material Offloading Facility (MOF) from June 1 to September 7.

(g) Between April 15 and October 15, 8 Star Alaska must not conduct pile driving or AHT activities with Level B harassment isopleths that would extend shoreward of the mean lower low water (MLLW) line in the Susitna Delta (Beluga River to the Little Susitna River) and project vessel(s) operating in or transiting through Cook Inlet must maintain a distance of at least 1.5 nautical miles (2.8 km) seaward of the MLLW line in the Susitna Delta (Beluga River to the Little Susitna River).

(h) Operators of vessels must avoid approaching within 100 yards (92 m) of marine mammals.

(i) If a whale's course and speed are such that it would likely cross in front of a vessel that is underway or approach within 100 yards (92 m) of the vessel, if maritime conditions safely allow, and if practicable, the engine must be put in neutral and the whale must be allowed to pass beyond the vessel.

(j) Vessel operators must avoid placing the vessel in the path of a whale and must not cut in front of the whale in a way or at a distance that causes the whale to change direction of travel or behavior (including breathing/surface pattern).

(k) When within 300 yards (274 m) of a whale, vessels must travel at less than 5 knots (9 km/hour), and vessel operators must avoid changes in direction and speed unless doing so is necessary for maritime safety.

(l) Vessel operators must reduce speed to 10 knots (18.5 km/hour) or less when weather conditions reduce visibility to 1.6 km (1 mile) or less.

(m) For vessels operating in the Susitna Delta Exclusion Zone, the following must be implemented:

(1) All project vessels operating within the designated Susitna Delta Exclusion Area must maintain a speed over ground below 4 knots (7.4 km/hour). PSOs must note the numbers, date, time, coordinates, and proximity to vessels of all belugas observed during operations and report these observations to NMFS in monthly PSO reports.

(2) Vessel crew must be trained to monitor for Endangered Species Act (ESA)-listed species prior to and during all vessel movements within the Susitna Delta Exclusion Zone. The vessel crew must report sightings of ESA-listed species to the PSO team for inclusion in the overall sighting database and reports.

(3) Vessel operators must not move their vessels when they are unable to adequately observe the 100-m zone around vessels under power (in gear) due to darkness, fog, or other conditions, unless necessary for ensuring human safety.

(4) The Susitna Delta Exclusion Zones is defined as the union of the areas defined by:

(i) A 16-km (10-mile) buffer of the Beluga River thalweg seaward of the MLLW line;

(ii) A 16-km (10-mile) buffer of the Little Susitna River thalweg seaward of the MLLW line; and

(iii) A 16-km (10-mile) seaward buffer of the MLLW line between the Beluga River and Little Susitna River.

(iv) The buffer extends landward along the thalweg to include intertidal waters within rivers and streams up to their mean higher high water line (MHHW).

(n) 8 Star Alaska must conduct sound source verification (SSV) measurements at the beginning of all pile driving activities at each location. During SSV, a sound attenuation device must be tested for effectiveness. If the results show that a sound source reduction of at least 2 dB is achieved, 8 Star Alaska must employ the use of the sound attenuation device.

(1) Any sound attenuation device used by 8 Star Alaska must meet minimum requirements as determined by NMFS in the SSV plan.

(2) [Reserved]

(o) 8 Star Alaska must abide by the reasonable and prudent measures and terms and conditions of the Biological Opinion and Incidental Take Statement issued by NMFS pursuant to section 7 of the Endangered Species Act.

(a) Visual Monitoring. Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following conditions:

(1) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) 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 or Letter of Concurrence;

(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. PSOs may also substitute Alaska native traditional knowledge for experience;

(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 a NMFS-issued incidental take authorization; and

(6) 8 Star Alaska must adhere to the following marine mammal monitoring protocols:

(i) For all single hammer pile driving activities for the Mainline MOF, between Beluga and Tyonek, and the Marine Terminal near Nikiski, a minimum of two PSOs must be on duty at all times.

(ii) For all concurrent pile driving activities at the Marine Terminal near Nikiski, a minimum of three PSOs must be on duty at all times.

(iii) For anchor handling, two PSOs must be on the barge, and one PSO must be on duty at all times.

(iv) PSOs must monitor for marine mammals from the best available vantage point to allow for an unobstructed view of the water.

(v) When conducting observations from the barge during anchor handling, PSOs must have an unobstructed 360-degree view of the water.

(vi) PSO(s) must use a combination of equipment to scan the appropriate monitoring area and to verify the required monitoring distance from the project site, including the naked eye, standard (7x) binoculars, and high-magnification (25x) binoculars.

(vii) Monitoring distances must be measured with range finders, and distances to animals must be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.

(viii) PSOs must not exceed 4 consecutive watch hours; must have a minimum 2-hour break between watches; and may not exceed a combined watch schedule of more than 12 hours in a 24-hour period.

(ix) PSOs must have no other construction-related tasks while conducting monitoring.

(x) Monitoring must take place from 30 minutes prior to initiation of pile driving or anchor handling activity, through 30 minutes post completion of pile driving activity or anchor handling activity.

(b) Acoustic Monitoring. Acoustic monitoring must be conducted in accordance with the following conditions:

(1) 8 Star Alaska must conduct SSV at the beginning of pile driving at each location to characterize the sound source levels associated with different pile and hammer types and assess attenuation devices. The SSV must be conducted in accordance with the following conditions:

(i) 8 Star Alaska's SSV plan must be approved by NMFS.

(ii) 8 Star Alaska must measure a minimum of two piles of each type, size, and installation method for single pile driving scenarios.

(iii) The following data, at minimum, shall be collected during acoustic monitoring and reported:

(A) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);

(B) 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;

(C) 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;

(D) 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);

(E) 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);

(F) Transmission loss values for attenuated and unattenuated impact and vibratory installation of each pile size and type;

(iv) An SSV report must be submitted to NMFS for approval within 5 days after the finalization of field measurements and report data.

(v) If appropriate, the results of the SSV report may be used to adjust the extent of the Level A and Level B harassment zones and shutdown zones for in-water pile driving. NMFS must approve any such adjustments.

(c) Reporting. 8 Star Alaska must adhere to the following reporting requirements:

(1) 8 Star Alaska must submit interim monthly reports for all months in which pile driving or anchor handling occurs. Monthly reports are due 14 days after the conclusion of each calendar month. The monthly reports must include the following:

(i) Summary of marine mammal species and behavioral observation, delays, and activities completed.

(ii) Assessment of the amount of work (pile driving and anchor handling) remaining to be completed.

(iii) Number of Cook Inlet beluga whales observed within estimated harassment zones to date.

(2) 8 Star Alaska must submit a draft annual report to NMFS within 90 calendar days of the completion of construction (pile driving and anchor handling) each year. Each report must include an overall description of all work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets (data must be submitted electronically in a format that can be queried such as a spreadsheet or database). Specifically, the report must include the following information:

(i) Date and time that monitored activity begins and ends;

(ii) Activities occurring during each observation period, including:

(A) The type of activity,

(B) The total duration of each type of activity,

(C) When nighttime operations were required,

(D) The number and type of piles that were driven and the method (e.g., impact, vibratory), and

(E) Total duration of driving time for each pile (vibratory driving) and total number of strikes for each pile (impact driving);

(iii) PSO locations during marine mammal monitoring;

(iv) Environmental conditions during monitoring periods (at the beginning and end of the PSO shift and whenever conditions change significantly), including Beaufort sea state, tidal state, and any other relevant weather conditions, including cloud cover, fog, sun glare, overall visibility to the horizon, and estimated observable distance;

(v) Upon observation of a marine mammal:

(A) Name of PSO who sighted the animal(s);

(B) PSO location and activity at time of sighting;

(C) Time of sighting;

(D) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified);

(E) PSO confidence in identification and the composition of the group if there is a mix of species;

(F) Distance and location of each observed marine mammal relative to the tugs or pile being driven for each sighting;

(G) Estimated number of animals (min/max/best estimate);

(H) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);

(I) Animal's closest point of approach and estimated time spent within the harassment zone;

(J) 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);

(vi) Number of marine mammals detected within the harassment zones, by species; and

(vii) Detailed information about implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.

(3) If no comments are received from NMFS within 30 days of receipt of the draft annual report, the report shall be considered final. If comments are received, 8 Star Alaska must submit a final report addressing NMFS' comments within 30 days following receipt of any NMFS comments on the draft reports.

(4) In the event that personnel involved in 8 Star Alaska's activities discover an injured or dead marine mammal, 8 Star Alaska must report the incident to NMFS Office of Protected Resources (OPR) and to the Alaska Regional Stranding Coordinator no later than 24 hours after the initial observation. If the death or injury was caused by the specified activity, 8 Star Alaska must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident. 8 Star Alaska 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.

(a) To incidentally take marine mammals pursuant to this subpart, 8 Star Alaska 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 December 31, 2030, the expiration date of this subpart;

(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by the LOA, 8 Star Alaska must apply for and obtain a modification of the LOA as described in § 217.47;

(d) The LOA must 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.

(e) Issuance of the LOA must 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; and

(f) Notice of issuance or denial of the LOA must be published in the Federal Register within 30 days of a determination.

(a) An LOA issued under §§ 216.106 of this chapter and 217.46 for the specified activities may be modified upon request by 8 Star Alaska, 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 this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and

(2) NMFS' OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under this subpart were implemented.

(b) For an LOA modification request by 8 Star Alaska that includes changes to the specified activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:

(1) NMFS' OPR determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years); and

(2) NMFS' OPR may, if appropriate, 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 and 217.46 of this chapter for the specified activity may be modified by NMFS OPR under the following circumstances:

(1) Through adaptive management, NMFS' OPR may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with 8 Star Alaska 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 include, but are not limited to:

(A) Results from the 8 Star Alaska's monitoring;

(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 this subpart or subsequent LOA.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS' OPR shall publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) If NMFS' OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 216.106 of this chapter and 217.46, the 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.