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Federal Register / Vol. 86, No. 195 / Wednesday, October 13, 2021 / Proposed Rules must be approved by NMFS in advance of construction.
g The Navy must submit a draft monitoring report to NMFS within 90
work 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. The reports must contain the informational elements described at minimum below and be included in the Marine Mammal Monitoring Plan, including:
1 Dates and times begin and end of all marine mammal monitoring;
2 Construction activities occurring during each daily observation period, including how many and what type 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;
3 Environmental conditions during monitoring periods at beginning and end of observer 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 if less than the harassment zone distance;
4 Upon observation of a marine mammal, the following information should be collected:
i Observer who sighted the animal and observer location and activity at time of sighting;
ii Time of sighting;
iii Identification of the animal e.g., genus/species, lowest possible taxonomic level, or unidentified, observer confidence in identification, and the composition of the group if there is a mix of species;
iv Distances and bearings of each marine mammal observed in relation to the pile being driven for each sighting if pile driving was occurring at time of sighting;
v Estimated number of animals min/max/best;

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vi Estimated number of animals by cohort adults, juveniles, neonates, group composition etc.;
vii Animals 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 to the activity e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching;
5 Detailed information about any implementation of any mitigation e.g., shutdowns and delays, a description of specific actions that ensued, and resulting changes in the behavior of the animal, if any; and 6 All observer datasheets and/or raw sightings data.
h The Navy must report the hydroacoustic data collected as required by a LOA issued under 216.106 of this chapter and 217.76.
i 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, and to the Greater Atlantic Region New England/MidAtlantic 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 217.76.
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 animals involved;
3 Condition of the animals including carcass condition if the animal is dead;
4 Observed behaviors of the animals, if alive;
5 If available, photographs or video footage of the animals; and 6 General circumstances under which the animal was discovered.
217.76

Letters of Authorization.

a To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.

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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 217.77.
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.
217.77 Renewals and modifications of Letters of Authorization.

a An LOA issued under 216.106
of this chapter and 217.76 for the activity identified in 217.70a may be renewed or modified upon request by the applicant, provided that:
1 The proposed 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 217.76 for the activity identified in 217.70 a may be
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