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Federal Register / Vol. 86, No. 195 / Wednesday, October 13, 2021 / Proposed Rules research; and 3 any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
Endangered Species Act Section 7a2 of the ESA 16 U.S.C.
1531 et seq. requires that each Federal agency ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of incidental take authorizations, NMFS
consults internally whenever we propose to authorize take for endangered or threatened species.
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity.
Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

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Request for Information NMFS requests interested persons to submit comments, information, and suggestions concerning the Navy request and the proposed regulations see ADDRESSES. All comments will be reviewed and evaluated as we prepare a final rule and make final determinations on whether to issue the requested authorization. This proposed rule and referenced documents provide all environmental information relating to our proposed action for public review.
Classification Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
Pursuant to section 605b of the Regulatory Flexibility Act RFA, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The Navy is the sole entity that would be subject to the requirements in these proposed regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
This proposed rule does not contain a collection-of-information requirement subject to the provisions of the
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Paperwork Reduction Act PRA
because the applicant is a federal agency.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Alaska, Endangered and threatened species, Exports, Fish, Imports, Indians, Labeling, Marine mammals, Oil and gas exploration, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation, Wildlife.
Dated: September 28, 2021.
Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:
PART 217REGULATIONS
GOVERNING THE TAKE OF MARINE
MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITIES
1. The authority citation for part 217
continues to read as follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. Add subpart R to part 217 to read as follows:

Subpart RTaking and Importing Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport in Newport, Rhode Island Sec.
217.70 Specified activity and geographical region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation requirements.
217.75 Requirements for monitoring and reporting.
217.76 Letters of Authorization.
217.77 Renewals and modifications of Letters of Authorization.
217.78217.79 Reserved
Subpart RTaking and Importing Marine Mammals Incidental to U.S.
Navy Construction at Naval Station Newport in Newport, Rhode Island
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.

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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.
217.71

Effective dates.

Regulations in this subpart are effective from EFFECTIVE DATE OF
THE FINAL RULE to DATE 5 YEARS
AFTER EFFECTIVE DATE OF THE
FINAL RULE.
217.72

Permissible methods of taking.

Under an LOA issued pursuant to 216.106 of this chapter and 217.76, the Holder of the LOA hereinafter Navy may incidentally, but not intentionally, take marine mammals within the area described in 217.70 b by harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
217.73

Prohibitions.

a Except for the takings contemplated in 217.72 and authorized by a LOA issued under 216.106 of this chapter and 217.76, it is unlawful for any person to do any of the following in connection with the activities described in 217.70:
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 217.76;
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 if 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 217.74

217.70 Specified activity and geographical region.

56881

Mitigation requirements.

a When conducting the activities identified in 217.71a, the mitigation measures contained in any LOA issued under 216.106 of this chapter and 217.76 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, its designees, and work crew personnel operating under the authority of the issued LOA.

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