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e-CFR data is current as of July 14, 2020

Title 50Chapter IISubchapter CPart 217Subpart J → §217.95


Title 50: Wildlife and Fisheries
PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES
Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction


§217.95   Requirements for monitoring and reporting.

(a) Marine mammal monitoring—(1) General requirements. The Navy shall employ trained protected species observers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The PSOs shall observe and collect data on marine mammals in and around the project area for 15 minutes before, during, and for 30 minutes after all pile removal and pile installation work. PSOs shall have no other assigned tasks during monitoring periods, and shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.

(2) Protected species observer qualifications. NMFS-approved PSOs shall meet the following requirements:

(i) Independent observers (i.e., not construction personnel) are required;

(ii) At least one observer must have prior experience working as an observer;

(iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

(iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

(v) NMFS will require submission and approval of observer CVs.

(3) Marine mammal monitoring protocols. (i) The Navy shall conduct briefings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy's Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area.

(ii) The Navy shall monitor the Level A and Level B harassment zones before, during, and after pile driving activities for all in-water constructions. The Marine Mammal Monitoring Plan shall include the following procedures:

(A) PSO location. PSOs will be primarily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shutdown zone(s).

(B) PSO vantage point. PSOs will be located at the best vantage point(s) to observe the zone associated with behavioral impact thresholds.

(C) Observation equipment. During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals.

(D) Ranging equipment. Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.

(E) Bearing. Bearings to animals will be determined using a compass.

(F) Pre-activity monitoring. The shutdown zone will be monitored for 15 minutes prior to in-water construction/demolition activities. If a marine mammal is present within the 10-m shutdown zone, the activity will be delayed until the animal(s) leaves the shutdown zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved outside the shutdown zone. If a marine mammal is observed approaching the shutdown zone, the PSO who sighted that animal will notify all other PSOs of its presence.

(G) During activity monitoring. If a marine mammal is observed entering the Level A or Level B harassment zones outside the 10-m shutdown zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the shutdown zone, at which point all pile driving activities will be halted. If an animal is observed within the shutdown zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only resume once the animal has left the shutdown zone of its own volition or has not been re-sighted for a period of 15 minutes.

(H) Post-activity monitoring. Monitoring of all zones will continue for 30 minutes following the completion of the activity.

(b) Acoustic monitoring—(1) Sound source verification. (i) The Navy shall conduct pile driving sound source verification for the following types and sizes of piles:

(A) Vibratory and impact installation of at least 5 16-in fiberglass reinforced plastic piles; and

(B) Rock socket drilling of at least 3 30-in and 3 16-in piles.

(ii) Sound source measurements of these piles sound shall be conducted at distances approximately 10 m from the source.

(iii) For vibratory pile driving/removal source level measurements, reports shall include 1-s sound exposure level (SEL), source spectrum, duration of recordings used to derived the SEL, and 24-hour cumulative SEL extrapolated from measurements.

(iv) For impact pile driving source level measurements, report should include peak sound pressure level (SPLpk), root-mean-square SPL (SPLrms), single strike SEL (SELss), integration time for SPLrms, SELss spectrum, and 24-hour cumulative SEL extrapolated from measurements.

(2) Level B harassment distance verification. (i) The Navy shall empirically determine the Level B harassment distance either by extrapolating from in situ measurements conducted at several points between 10 and 500 m from the source, or by direct measurements to locate the distance where the received levels reach 120 dB or below, or at the ambient noise level.

(ii) Level B harassment zones to be empirically verified include:

(A) Rock socket drilling of at least 3 30-in and 3 16-in piles;

(B) Vibratory installation of at least 3 36-in steel piles; and

(C) Vibratory removal of at least 3 24-in concrete and 3 33-in concrete piles.

(iii) For extent of Level B harassment zone verification, the Navy shall report the measured or extrapolated distances where the received levels SPLrms decay to 120-dB or to the ambient noise level, whichever is higher, as well as integration time for such SPLrms.

(3) Source level calculation. The sound levels reported should be in median and linear average (i.e., taking averages of sound intensity before converting to dB).

(4) Sediment type. The passive acoustic monitoring reports shall also include sediment type where measurements are made.

(c) Reporting measures—(1) Annual reports. (i) The Navy shall submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended.

(ii) Annual reports shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report.

(iii) Annual reports shall also include results from acoustic monitoring detailed in paragraph (b) of this section.

(iv) NMFS shall provide comments within 30 days after receiving annual reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the annual report is considered completed.

(2) Final report. (i) The Navy shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.

(ii) The final report shall synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project.

(iii) NMFS would provide comments within 30 days after receiving this report, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the final report is considered as final.

(3) Reporting of injured or dead marine mammals. (i) In the unanticipated event that the construction or demolition activities clearly cause the take of a marine mammal in a prohibited manner, such as an injury, serious injury, or mortality, the Navy shall immediately cease all operations and immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Region Stranding Coordinators. The report must include the following information:

(A) Time, date, and location (latitude/longitude) of the incident;

(B) Description of the incident;

(C) Status of all sound source use in the 24 hours preceding the incident;

(D) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

(E) Description of marine mammal observations in the 24 hours preceding the incident;

(F) Species identification or description of the animal(s) involved;

(G) The fate of the animal(s); and

(H) Photographs or video footage of the animal (if equipment is available).

(ii) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.

(iii) In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the Navy will immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators. The report must include the same information identified in paragraph (c)(3)(i)(A) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Navy to determine whether modifications in the activities are appropriate.

(iv) In the event that the Navy discovers an injured or dead marine mammal, and the lead protected species observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy shall report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators, within 24 hours of the discovery. The Navy shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The Navy can continue its operations under such a case.

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