(a) Regulations in this subpart apply only to taking of marine mammals by the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities that occur incidental to construction activities related to the multifunctional expansion and modification of Dry Dock 1 in the areas outlined in paragraph (b) of this section.

(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Portsmouth Naval Shipyard, Kittery, Maine.

Regulations in this subpart are effective for a period of 5 years from the date of issuance.

Under an LOA issued pursuant to § 216.106 of this chapter and § 217.136, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.130(b) by harassment associated with construction activities related to the multifunctional expansion and modification of Dry Dock 1, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.

(a) Except for the takings contemplated in § 217.132 and authorized by a LOA issued under § 216.106 of this chapter and § 217.136, it is unlawful for any person to do any of the following in connection with the activities described in § 217.130:

(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.136;

(2) Take any marine mammal not specified in such LOA;

(3) Take any marine mammal specified in such LOA in any manner other than as specified;

(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(5) Take a marine mammal specified in such 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.

(b) [Reserved]

(a) When conducting the activities identified in § 217.130(a), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this chapter and § 217.136 must be implemented. These mitigation measures include:

(1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA at all times that activities subject to this LOA are being conducted.

(2) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Navy shall delay pile driving and drilling until observers are confident marine mammals within the shutdown zone could be detected.

(3) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.

(4) The Navy, construction supervisors and crews, protected species observers (PSOs), and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.

(5) The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions as described in this rule and the NMFS-approved Marine Mammal Monitoring Plan.

(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving or drilling activity.

(7) For all pile driving and drilling activities, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136. If a marine mammal comes within or approaches the shutdown zone, such operations must cease.

(8) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and documented. If a marine mammal is observed within the shutdown zone, pile driving or drilling activities may not commence or resume until at least one of the following conditions has been met:

(i) The animal has been observed exiting the shutdown zone;

(ii) The animal is thought to have exited the shutdown zone based on a determination of its course, speed, and movement relative to the pile driving location; or

(iii) The shutdown zone has been clear from any additional sightings for fifteen minutes.

(9) If pile driving or drilling construction activities cease for more than 30 minutes, the pre-activity monitoring of the shutdown zone must commence.

(10) The Navy must conduct monitoring to include the entire region of influence, which includes the area within the Level A and Level B harassment zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136.

(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start will 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.

(12) The Navy must install a bubble curtain across the entrance openings during DTH cluster drill and hydraulic rock hammering activities. The bubble curtain must adhere to the following restrictions:

(i) The bubble curtain must distribute air bubbles across 100 percent of the entrance openings for the full depth of the water column;

(ii) The lowest bubble ring must be in contact with the substrate for the full extent of the curtain, and the weights attached to the bottom of the curtain must ensure 100 percent substrate contact. No parts of the curtain or other objects shall prevent full substrate contact; and

(iii) Air flow to the bubblers must be balanced across the entrance openings to the super flood basin.

(iv) The Navy shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards. This shall occur prior to the initiation of in-water construction activities.

(13) The bubble curtain may be discontinued for certain activities should the results of hydroacoustic recordings inside the bubble curtain show that the source levels from those activities do not result in the Level A harassment thresholds being achieved across the entire region of influence, upon review of the data by NMFS.

(14) Pile driving and drilling activity must be halted upon observation of either a species entering or within the harassment zone for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.

(b) [Reserved]

(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.

(a) To incidentally take marine mammals pursuant to this subpart, the Navy 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 the expiration date of these regulations.

(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.

(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.137.

(e) The LOA will set forth the following information:

(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.

(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

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

(a) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be renewed or modified upon request by the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and

(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.

(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may 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) A LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be modified by NMFS under the following circumstances:

(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:

(A) Results from Navy's monitoring from previous years;

(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 these regulations or subsequent LOAs; and

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

(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to § 216.106 of this chapter and § 217.136, a LOA may be modified without prior public notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.