(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.