(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities including for bulkhead replacement and repairs at Naval Station (NAVSTA) Newport, Rhode Island.

(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at NAVSTA Newport, Rhode Island.

Regulations in this subpart are effective from May 15, 2022, through May 14, 2027.

Under an LOA issued pursuant to §§ 216.106 of this chapter and 217.176, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.170(b) by harassment associated with bulkhead replacement and repairs construction activities, 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 § 217.172 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.176, it is unlawful for any person to do any of the following in connection with the activities described in § 217.170:

(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 217.176;

(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

(b) [Reserved]

(a) When conducting the activities identified in § 217.171(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.176 must be implemented. These mitigation measures must include but are not limited to:

(1) A copy of any issued LOA must be in the possession of the Navy, supervisory construction personnel, lead protected species observers (PSOs), and any other relevant designees of the Holder operating under the authority of this LOA at all times that activities subject to this LOA are being conducted.

(2) The Navy will follow mitigation procedures as described in this section. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Holder shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected.

(3) The Navy will ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of all activities 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, PSOs, and relevant Navy staff will 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 will employ PSOs and establish monitoring locations as described in this rule and the Marine Mammal Monitoring Plan. The Navy will monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.

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

(7) If a marine mammal is observed entering or within the shutdown zones indicated in this rule, pile driving activity must be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.

(8) The Navy will establish shutdown zones for all pile driving activities. Shutdown zones are limited to 150 m from the point of noise generation. Any remaining area within estimated Level A harassment zones shall be considered part of the “disturbance zone,” i.e., the Level B harassment zone and, where present, the Level A harassment zone (PTS onset) beyond 150 m from the point of noise generation. For activities where the estimated Level A (PTS onset) harassment zones are smaller than 150 m, the disturbance zone shall include the entire region of influence (ROI), i.e., estimated Level A and Level B harassment zones). Work may proceed without cessation while marine mammals are in the disturbance zone and marine mammal behavior within the disturbance zone will be monitored and documented.

(9) The Navy will conduct monitoring to include the area within the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving (disturbance zone).

(10) Pre-start clearance monitoring will be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.

(11) If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated or 15 minutes have passed without re-detection of the animal.

(12) The Navy will use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. Then two subsequent reduced-energy strike sets would occur. 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. Soft start is not required during vibratory pile driving activities.

(13) Pile driving 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, NMFS-approved 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 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.

(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 this LOA.

(c) The Navy will establish the following monitoring locations. For all pile driving activities, a minimum of one PSO will be assigned to each active pile driving location to monitor the shutdown zones. Trained PSOs will be placed at the best vantage point(s) practicable such as on nearby breakwaters, Gould Island, Coddington Point, or Taylor Point. Visual monitoring will be conducted by, at a minimum, by two PSOs. It is assumed that two to three PSOs would be sufficient to monitor the respective ROIs given the abundance of suitable vantage points. Any activity that would result in threshold exceedance at or more than 1,000 m would require a minimum of three PSOs to effectively monitor the entire ROI. However, additional monitors may be added if warranted by site conditions and/or the level of marine mammal activity in the area.

(d) PSOs must record all observations of marine mammals, regardless of distance from the pile being driven, as well as the additional data indicated in the reporting requirements.

(e) Acoustic monitoring will be conducted in accordance with the Acoustic Monitoring Plan. The Navy will conduct hydroacoustic data collection (sound source verification and propagation loss) in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction.

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

(g) The Navy will submit a draft monitoring report to NMFS within 90 calendar 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 report 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 marine mammal report must contain the informational elements described ed in the Marine Mammal Monitoring Plan and, at minimum, include:

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

(2) Construction activities occurring during each daily observation period, including: the number and types of piles were driven or removed and by what method (i.e., impact or vibratory) and the total duration of driving time for each pile (vibratory driving) and number of strikes for each pile (impact driving); and

(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;

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

(i) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting.

(ii) Time of sighting; and

(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 location of each marine mammal observed relative to the pile being driven or removed;

(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; and

(viii) 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);

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

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

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

(j) The Navy must report the hydroacoustic data collected as required by a LOA issued under §§ 216.106 of this chapter and 217.176 and as described in the Acoustic Monitoring Plan, and 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;

(i) 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;

(ii) 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);

(iii) 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); and

(iv) One-third octave band spectrum and power spectral density plot.

(k) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report the incident to NMFS Office of Protected Resources (OPR), NMFS ([email protected] and [email protected]) Monitoring) and to the Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator, 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 217.176. 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 these regulations, 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 § 217.177.

(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 217.176 for the activity identified in § 217.170(a) may be renewed or modified upon request by the applicant, 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 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 217.176 for the activity identified in § 217.170(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 217.176, a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.