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Federal Register / Vol. 86, No. 195 / Wednesday, October 13, 2021 / Proposed Rules Animals closest point of approach and estimated time spent within the harassment zone; and 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;
D Detailed information about implementation of any mitigation e.g., shutdowns and delays, a description of specific actions that ensued, and resulting changes in behavior of the animal, if any; and D All PSO datasheets and/or raw sightings data.

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Reporting of Injured or Dead Marine Mammals 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
PR.ITP.MonitoringReports@noaa.gov, NMFS 3014278401 and to the Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator 8667556622 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.
The Navy will not resume their activities until notified by NMFS. The report must include the following information:
D Time, date, and location latitude/
longitude of the first discovery and updated location information if known and applicable;
D Species identification if known or description of the animals involved;
D Condition of the animals including carcass condition if the animal is dead;
D Observed behaviors of the animals, if alive;
D If available, photographs or video footage of the animals; and D General circumstances under which the animal was discovered.
Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival
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50 CFR 216.103. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival i.e., populationlevel effects. An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be taken through harassment, NMFS considers other factors, such as the likely nature of any responses e.g., intensity, duration, the context of any responses e.g., critical reproductive time or location, migration, as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989
preamble for NMFS implementing regulations 54 FR 40338; September 29, 1989, the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels.
To avoid repetition, this introductory discussion of our analyses applies to all of the species listed in Table 3, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks in anticipated individual responses to activities, impacts of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below.
Pile driving activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A and Level B
harassment from underwater sounds generated by pile driving. Potential takes could occur if marine mammals are present in zones ensonified above the thresholds for Level A and Level B
harassment, identified above, while activities are underway.
No serious injury or mortality would be expected even in the absence of the proposed mitigation measures. During all impact driving, implementation of soft start procedures and monitoring of established shutdown zones will be required, significantly reducing the possibility of injury. Given sufficient notice through use of soft start for
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impact driving, marine mammals are expected to move away from an irritating sound source prior to it becoming potentially injurious. In addition, PSOs will be stationed within the action area whenever pile driving activities are underway. Depending on the activity, the Navy will employ the use of at least two and up to three PSOs to ensure all monitoring and shutdown zones are properly observed. For Atlantic white-sided dolphins, common dolphins and hooded seals, no Level A
harassment is anticipated. Atlantic white-sided dolphin and common dolphin are both species in which regular occurrence is in much deeper waters than the project area, and, given the small Level A harassment zone sizes for mid-frequency cetaceans, we do not anticipate take by Level A harassment.
For hooded seals, with the absence of any major rookeries and only one pinniped haulout The Sisters within the project area, and being a rare species in Narragansett Bay, we do not anticipate any take by Level A
harassment.
The Navys proposed pile driving activities and associated impacts will occur within a limited portion of the confluence of the Narraganset Bay area.
Exposures to elevated sound levels produced during pile driving activities may cause behavioral disturbance of some individuals, but they are expected to be mild and temporary. However, as described previously, the mitigation and monitoring measures are expected to further reduce the likelihood of injury as well as reduce behavioral disturbances.
Effects on individuals that are taken by Level B harassment, as enumerated in the Estimated Take section, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging if such activity were occurring e.g., Thorson and Reyff 2006. Most likely, individual animals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted along both Atlantic and Pacific coasts, which have taken place with no known longterm adverse consequences from behavioral harassment. These reactions and behavioral changes are expected to subside quickly when the exposures cease. Level B harassment will be
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