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Federal Register / Vol. 86, No. 195 / Wednesday, October 13, 2021 / Proposed Rules demonstrated that a tribe has jurisdiction. In those areas of Indian country, this proposed action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 65
FR 67249, November 9, 2000.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 5, 2021.
Deborah Jordan, Acting Regional Administrator, Region IX.
FR Doc. 202122168 Filed 101221; 8:45 am BILLING CODE 656050P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 217
Docket No. 2109240196
RIN 0648BK69

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport in Newport, Rhode Island National Marine Fisheries Service NMFS, National Oceanic and Atmospheric Administration NOAA, Commerce.
ACTION: Proposed rule; request for comments.
AGENCY:

NMFS has received a request from the U.S. Navy Navy for authorization to take marine mammals incidental to construction activities for bulkhead replacement and repairs at Naval Station Newport NAVSTA
Newport over the course of five years 20222027. As required by the Marine Mammal Protection Act MMPA, NMFS
is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA
authorization and agency responses will be summarized in the final notice of our decision.
DATES: Comments and information must be received no later than November 12, 2021.

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You may submit comments on this document, identified by NOAA
NMFS20210096, by the following method:
Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https www.regulations.gov and enter NOAANMFS20210096 in the Search box, click the Comment icon, complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information e.g., name, address, confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments enter N/
A in the required fields if you wish to remain anonymous. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF
file formats only.
FOR FURTHER INFORMATION CONTACT:
Stephanie Egger, Office of Protected Resources, NMFS, 301 4278401.
SUPPLEMENTARY INFORMATION:
ADDRESSES:

Availability A copy of the Navys application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at:
https www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyconstruction-naval-station-newportrhode-island. In case of problems accessing these documents, please call the contact listed above see FOR
FURTHER INFORMATION CONTACT.
Purpose and Need for Regulatory Action This proposed rule would establish a framework under the authority of the MMPA 16 U.S.C. 1361 et seq. to allow for the authorization of take of marine mammals incidental to the Navys construction activities for bulkhead replacement and repairs at NAVSTA
Newport.
We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level A and Level B
harassment incidental to impact and vibratory pile driving. Please see Background below for definitions of harassment.

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Legal Authority for the Proposed Action Section 101a5A of the MMPA 16
U.S.C. 1371a5A directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity other than commercial fishing within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat see the discussion below in the Proposed Mitigation section, as well as monitoring and reporting requirements.
Section 101a5A of the MMPA and the implementing regulations at 50 CFR
part 216, subpart R provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent letters of authorization LOAs. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.
Summary of Major Provisions Within the Proposed Rule Following is a summary of the major provisions of this proposed rule regarding Navy construction activities.
These measures include:
Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities;
Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; and Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.
Background Section 101a5A of the MMPA 16
U.S.C. 1361 et seq. directs the Secretary of Commerce as delegated to NMFS to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity other than commercial fishing within a specified geographical region if certain findings are made, regulations are issued, and notice is provided to the public.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stocks and will not have an unmitigable adverse impact on the
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