(a) The POA must submit a Marine Mammal Monitoring and Mitigation Plan to NMFS for approval at least 90 days before the start of construction and abide by the Plan, if approved.

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

(1) PSOs must be independent of the activity contractor (e.g., employed by a subcontractor) and have no other assigned tasks during monitoring duties;

(2) PSOs must be approved by NMFS prior to beginning work on the specified activities;

(3) PSOs must be trained in marine mammal identification and behavior;

(i) A designated project lead PSO must always be on site. The project lead PSO must have prior experience performing the duties of a PSO during in-water construction activities pursuant to a NMFS-issued ITA or Letter of Concurrence;

(ii) Each PSO station must also have a designated station lead PSO specific to that station and shift. These station lead PSOs must have prior experience working as a PSO during in-water construction activities;

(iii) Other PSOs may substitute other relevant experience (including relevant Alaska Native traditional knowledge), 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;

(iv) PSOs must also have sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to record required information including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and the ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

(4) PSO stations must be elevated platforms constructed on top of shipping containers or a similar base that is at least 8 ft 6 in high (i.e., the standard height of a shipping container) that can support at least 3 PSOs and their equipment. The platforms must be stable enough to support use of a theodolite and must be located to optimize the PSO's ability to observe marine mammals and the shutdown zones. Each PSO station must have at least 2 PSOs on watch at any given time, including the station lead PSO;

(5) If the POA is conducting in-water work for other projects that includes PSOs, the PSOs for the Cargo Terminals Replacement Project must be in real-time contact with those PSOs, and both sets of PSOs must share all information regarding marine mammal sightings with each other.

(c) The POA must submit weekly monitoring reports within 14 days after the conclusion of each calendar week during each Cargo Terminals Replacement Project construction season. These reports must include a summary of marine mammal species and behavioral observations, construction shutdowns or delays, and construction work completed during the reporting period. The weekly reports also must include an assessment of the amount of construction remaining to be completed (i.e., the number of estimated hours of work remaining), in addition to the number of CIBW observed within estimated harassment zones to date.

(d) The POA must submit a draft annual summary monitoring report on all monitoring conducted during each construction season which includes final electronic data sheets within 90 calendar days after the completion of each construction season or 60 days prior to a requested date of issuance of any future incidental take authorization for projects at the same location, whichever comes first. A draft comprehensive 5-year summary report must also be submitted to NMFS within 90 days of the end of year 5 of the project. The reports must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days of receipt of the draft report, the report may be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt. At a minimum, the reports must contain:

(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, by what method (i.e., impact or vibratory), the total duration of driving time for each pile (vibratory driving), and number of strikes for each pile (impact driving);

(3) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), 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 (if less than the harassment zone distance);

(4) Upon observation of a marine mammal, the following information should be collected:

(i) Name of the PSO who sighted the animal, observer location, and activity at time of sighting;

(ii) Time of sighting;

(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 bearings of each marine mammal observed in relation to the pile being driven for each sighting (if pile driving was occurring at time of sighting);

(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;

(viii) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses to the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);

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

(x) All PSO data in an electronic format that can be queried such as a spreadsheet or database (i.e., digital images of data sheets are not sufficient).

(e) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the POA 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, the POA must immediately cease the specified activities described in § 217.11(b) until NMFS OPR is able to review the circumstances of the incident. The POA 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.