(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.

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

(1) PSOs must be independent (i.e., not construction personnel) and have no other assigned tasks during monitoring periods.

(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

(3) Other PSOs may substitute relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

(4) Where a team of three PSOs are required, a lead observer or monitoring coordinator shall 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; and

(5) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

(6) PSOs must work in shifts to reduce fatigue and ensure their ability to monitor for marine mammals.

(7) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.

(c) For all pile driving activities, a minimum of three PSOs must be stationed on boats, docks, or piers sufficient to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan.

(d) PSOs must record all observations of marine mammals, regardless of distance from the pile/hole being driven/drilled or the construction activity taking place (i.e., DTH, rotary drilling, rock hammering), as well as additional data indicated in the reporting requirements.

(e) The Navy must conduct hydroacoustic data collection (sound source verification and propagation loss) as described in a LOA and in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction. This plan shall include acoustic monitoring inside the bubble curtain to measure construction generated noise levels.

(f) The harassment and/or shutdown zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.

(g) The Navy must submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The reports will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.

(h) All draft and final monitoring reports must be submitted to [email protected] and [email protected].

(i) The reports must at minimum contain the informational elements described as follows (as well as any additional information described in the Marine Mammal Monitoring Plan), including:

(1) Dates and times (begin and end) of all marine mammal monitoring.

(2) Construction activities occurring during each daily observation period, including:

(i) The number and type of piles that were driven or removed and by what method (i.e., impact, vibratory, DTH, rotary drilling, rock hammering.

(ii) The total duration of driving time for each pile/hole (vibratory driving, rotary drilling) and number of strikes for each pile/hole (impact driving, hydraulic rock hammering).

(iii) For DTH, the duration of operation for both impulsive and non-pulse components as well as the strike rate.

(3) PSO locations during marine mammal monitoring.

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

(5) Upon observation of a marine mammal, the following information:

(i) Name of PSO who sighted the animal(s) and PSO location, as well as the activity at the time of the 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 or drilled for each sighting (if pile driving or drilling was occurring at time of sighting).

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

(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);

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

(7) 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

(j) The Holder will submit all PSO datasheets and/or raw sightings data with the draft reports.

(k) The Navy must report the hydroacoustic data collected as required by a LOA issued under § 216.106 of this chapter and § 217.136 and as described in the Acoustic Monitoring Plan, which at a minimum, must include:

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

(2) Type and size of pile being driven, substrate type, method of driving during recordings (e.g., hammer model and energy), and total pile driving duration;

(3) 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;

(4) For impact pile driving and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): 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 (SELss);

(5) For vibratory driving/removal, rotary drilling, and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): 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);

(6) One-third octave band spectrum and power spectral density plot; and

(7) General Daily Site Conditions, including the date and time of activities, and environmental data such as wind speed and direction, air temperature, humidity, surface water temperature, tidal state, water depth, wave height, weather conditions, and other factors that could contribute to influencing the airborne and underwater sound levels (e.g., aircraft, boats, etc.).

(l) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report incident to the Office of Protected Resources (OPR), NMFS ([email protected] and [email protected]) and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator (978-282-8478 or 978-281-9291) as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule and the LOA issued under § 216.106 of this chapter and § 217.136. The Navy will not resume their activities until notified by NMFS. The report must include the following information:

(1) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

(2) Species identification (if known) or description of the animal(s) involved;

(3) Condition of the animal(s) (including carcass condition if the animal is dead);

(4) Observed behaviors of the animal(s), if alive;

(5) If available, photographs or video footage of the animal(s); and

(6) General circumstances under which the animal was discovered.