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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations
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218.6 Requirements for monitoring and reporting.

a The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction.
b The Navy shall deploy at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lamberts Point. For all other pile driving activities, the Navy shall deploy a minimum of two PSOs.
c Observers shall be trained in marine mammal identification and behaviors. Observers shall have no other construction-related tasks while conducting monitoring.
d For all pile driving activities, a minimum of two observers shall be stationed at the active pile driving site or in reasonable proximity in order to monitor the shutdown zone.
e The Navy shall monitor the Level B harassment zones areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120
dB rms threshold during vibratory pile driving to the extent practicable and the shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days.
f The Navy shall submit a draft monitoring report to NMFS within 45
work days of the completion of required monitoring for each marine structure maintenance, pile replacement, and upgrades project. The report must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS
within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. Specifically, the report must include:
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;
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 The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;

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5 Age and sex class, if possible, of all marine mammals observed;
6 Observer locations during marine mammal monitoring;
7 Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting if pile driving or removal was occurring at time of sighting;
8 Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active;
9 Number of marine mammals detected within the harassment zones, by species;
10 Detailed information about any implementation of any mitigation triggered e.g., shutdowns and delays, a description of specific actions that ensued, and resulting behavior of the animal, if any;
11 Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals;
and 12 Estimated percentage of the Level B harassment zone that was not visible.
g In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources OPR 3014278401, NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional 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 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 the authorization. The Navy must not resume their activities until notified by NMFS.
1 The report must include the following information:
i Time, date, and location latitude/
longitude of the first discovery and updated location information if known and applicable;
ii Species identification if known or description of the animals involved;
iii Condition of the animals including carcass condition if the animal is dead;
iv Observed behaviors of the animals, if alive;
v If available, photographs or video footage of the animals; and vi General circumstances under which the animal was discovered.

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2 Reserved 218.7

Letters of Authorization.

a To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
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 218.8.
e The LOA shall 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 shall 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 shall be published in the Federal Register within 30 days of a determination.
218.8 Renewals and modifications of Letters of Authorization.

a An LOA issued under 216.106
of this chapter and 218.7 for the activity identified in 218.1a shall 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
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