Taking and Importing Marine Mammals: U.S. Navy Training in the Hawaii Range Complex; U.S. Navy Training in the Southern California Range Complex; and U.S. Navy's Atlantic Fleet Active Sonar Training, 6699-6701 [2011-2640]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 26 (Tuesday, February 8, 2011)]
[Rules and Regulations]
[Pages 6699-6701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2640]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 110121052-1045-02]
RIN 0648-BA67


Taking and Importing Marine Mammals: U.S. Navy Training in the 
Hawaii Range Complex; U.S. Navy Training in the Southern California 
Range Complex; and U.S. Navy's Atlantic Fleet Active Sonar Training

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments and issuance of 
letters of authorization.

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SUMMARY: In January 2009, pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS issued three 5-year final regulations to govern the 
unintentional taking of marine mammals incidental to Navy training and 
associated activities conducted in the Hawaii Range Complex (HRC), the 
Southern California Range Complex (SOCAL Range Complex), and the 
Atlantic Fleet Active Sonar Training (AFAST) Study Area. These 
regulations, which allow for the issuance of ``Letters of 
Authorization'' (LOAs) for the incidental take of marine mammals during 
the specified activities and described timeframes, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, as well as requirements pertaining to the monitoring and 
reporting of such taking.
    These rules quantify the specific amounts of individual sound 
source use that will occur over the course of the 5-year rules, and 
indicate that marine mammal take may only be authorized in an LOA 
incidental to the source types and amounts described. Specifically, no 
language was initially included expressly allowing for deviation from 
those precise levels of source use if the total number of takes remain 
within the analyzed and authorized limits. Since the issuance of the 
2009 rules, the Navy realized that their evolving training programs, 
which are linked to real world events, necessitate greater flexibility 
in the types and amounts of sound sources that they use. In response to 
this need, when the Navy requested incidental take authorizations for 
other areas (e.g., the Mariana Islands and the Northwest Training Range 
Complexes), NMFS included language explicitly allowing for greater 
flexibility. NMFS has, through this interim final rule, amended the 
HRC, SOCAL Range Complex, and AFAST regulations to explicitly allow for 
greater flexibility in the types and amount of sound sources that they 
use.
    NMFS has issued new LOAs for each of these actions, which supersede 
those issued in January 2011, and which authorize the Navy to take 
marine mammals incidental to their planned training in 2011, and 
reflect the greater flexibility addressed in this amendment. The take 
authorized in these LOAs does not exceed that analyzed and allowed by 
the original 2009 final rules.

DATES: Effective on February 7, 2011. Comments and information must be 
received no later than March 10, 2011.

ADDRESSES: You may submit comments, identified by 0648-BA67, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov.
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    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, WordPerfect, or 
Adobe PDF file formats only.
    A copy of the Navy's applications, NMFS' Records of Decision 
(RODs), NMFS' proposed and final rules and subsequent LOAs, and other 
documents cited herein may be obtained by writing to Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment and of no more than 1 year, to issue a notice 
of proposed authorization for public review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.

    The National Defense Authorization Act (NDAA) (Pub. L. 108-136) 
removed the ``small numbers'' and ``specified geographical region'' 
limitations, and

[[Page 6700]]

amended the definition of ``harassment'' as it applies to a ``military 
readiness activity'' to read as follows (section 3(18)(B) of the MMPA):

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B Harassment].

Summary of the Modification

    On January 12, 2009, NMFS issued 5-year regulations governing the 
taking of marine mammals incidental to training activities conducted in 
HRC (74 FR 1455). On January 21, 2009, NMFS issued 5-year regulations 
governing the taking of marine mammals incidental to training, 
maintenance, and research, development, testing and evaluation (RDT&E) 
activities conducted in the SOCAL Range Complex (74 FR 3881). On 
January 27, 2009, NMFS issued 5-year regulations governing the taking 
of marine mammals incidental to training, maintenance, and RDT&E 
activities conducted in the AFAST Study Area (74 FR 4843).
    The HRC, SOCAL Range Complex, and AFAST regulations allow for the 
issuance of LOAs that authorize the incidental take of marine mammals 
during the specified activities and described timeframes, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, as well as requirements pertaining to the monitoring and 
reporting of such taking. These regulations were drafted in such a way 
that the Navy's specified activities were strictly quantified by the 
amounts of each type of sound source utilized (e.g., hours, numbers of 
sonobuoys or explosive exercises) over the course of the 5-year 
regulations.
    After the issuance of the 2009 rules, the Navy realized that their 
evolving training programs, which are linked to real world events, 
necessitate greater flexibility in both the types and amounts of sound 
sources that they use.
    Regarding the types of sources for which incidental take is 
authorized, in some cases the Navy's HRC, SOCAL Range Complex, and 
AFAST rules identified the most representative or highest power source 
to represent a group of known similar sources. Additionally, the Navy 
regularly modifies or develops new technologies, which often affect the 
way that sound sources are similar to, but not exactly the same as, 
existing sources. In this modification to these three final rules, we 
have increased the flexibility of the Navy's takings prescriptions by 
inserting language that will explicitly allow for authorization of take 
incidental to the previously identified specified sound sources or 
``similar sources'' (with similar characteristics that do not change 
any of the underlying analyses) and, in the case of HRC, by adding one 
specific source type to the authorization, provided that the 
implementation of these changes in annual LOAs does not result in 
exceeding the incidental take analyzed and identified in the final 
rules.
    Regarding amounts of sound source use, the three regulations only 
allow for the authorization of take incidental to a 5-yr maximum amount 
of use for each specific sound source, even though in most cases our 
effects analyses do not differentiate the impacts from the majority of 
the different types of sources. Specifically, although some sonar 
sources are louder or generate more acoustic energy in a given amount 
of time, which results in more marine mammal takes, we authorize total 
takes but do not differentiate between the individual takes that result 
from one source versus another. In this modification to these three 
final rules, we increase flexibility by including language that allows 
for inter-annual variability in the amount of source use identified in 
each annual LOA (i.e., one year the Navy could use a lot of one source, 
and little of another, and the next year those amounts could be 
reversed), provided it does not result in exceeding the total level of 
incidental take analyzed and identified in the final rules, and the 
taking does not result in more than a negligible impact on affected 
species or stocks. Language of this nature was included in final 
regulations governing the authorization of take incidental to the 
Navy's training activities in the Mariana Islands and Northwest 
Training Range Complexes, which were issued in 2010.
    As indicated above, these regulatory amendments do not change the 
analyses of marine mammal impacts conducted in the original final 
rules. This fact is assured and illustrated through: (1) The Navy's 
annual submission of LOA applications for each area, which include take 
estimates specific to the upcoming the year's activities (i.e., sound 
source use); (2) their subsequent annual submission of classified 
exercise reports, which accurately report the specific amount of use 
for each sound source over the course of the previous year; and (3) 
their annual submission of monitoring reports, which describe observed 
responses of marine mammals to Navy sound sources collected via visual, 
passive acoustic, or tagging methods. Together, these submissions allow 
NMFS to accurately predict and track the Navy's activities to ensure 
that both NMFS' annual LOAs, and the impacts of the Navy's activities 
on marine mammals, remain within what is analyzed and allowed by the 
HRC, SOCAL, and AFAST 5-year regulations.

Classification

    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this final rule is not significant.
    Pursuant to 5 U.S.C. 553, there is good cause to waive prior notice 
and an opportunity for public comment on this action, as notice and 
comment would be impracticable and contrary to the public interest. The 
2009 AFAST, SOCAL, and HRC Final Rules established a framework whereby 
a total number of marine mammals, by species, could be taken incidental 
to certain military readiness activities during the 5-year period. 
These rules also enumerated levels of activity for each individual 
sound source, but did not include language expressly authorizing 
deviation from those precise levels if the total number of takes 
remained within authorized limits. Although the Navy used the best 
available information and professional judgment to estimate the level 
of individual activities planned for the ranges, evolving unforeseen 
real world requirements, and the evolving training and readiness 
tactics and procedures needed to meet those requirements, necessitate 
annual flexibility to offset increases in some activities from 
decreases in others. The Navy requires the flexibility to increase the 
number of hours of use for specific sound sources, and these 
regulations modify the AFAST, SOCAL, and HRC Final Rules to insert 
language codifying that flexibility.
    The Navy has a compelling need to continue military readiness and 
testing activities with the specific sound sources at issue without 
interruption. In 10 U.S.C. 5062, Congress mandated that the Chief of 
Naval Operations (CNO) man, organize, train, and equip all Naval forces 
for combat. To accomplish this, naval commands adhere to the Fleet 
Response Training Plan (FRTP). The FRTP is an arduous sequential 
training cycle in which unit level training (ULT) and certification is 
followed by a series of major exercises

[[Page 6701]]

that bring together various components so they have the opportunity to 
train and practice as an integrated whole resulting in Major Combat 
Operation certification. This certification includes critically 
important anti-submarine warfare that requires training on the use and 
deployment of the described systems. Interruption or reduction of the 
Navy's ability to utilize specific sound sources during this period 
would significantly disrupt vital sequential training, certification, 
and testing activities essential to our national security and the 
safety of our armed forces. Therefore, allowing a public comment period 
for these rules is impracticable and contrary to the public's interest.
    Because the requested modifications would not increase the total 
level of takes authorized in the 2009 Final Rules, the modifications 
would result in no increased impact to protected species.
    For the same reasons, there is good cause under 5 U.S.C. 553 to 
waive the 30-day delay in effectiveness.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq. are inapplicable.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine 
mammals, Navy, Penalties, Reporting and recordkeeping requirements, 
Seafood, Sonar, Transportation.

    Dated: January 31, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.


0
2. In Sec.  216.170, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised, and 
paragraphs (c)(1)(vii), (c)(2)(ii)(H), and (d) are added to read as 
follows:


Sec.  216.170  Specified activity and specified geographical region.

* * * * *
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for 
Navy training activities (estimated amounts below):
* * * * *
    (vii) AN/SSQ-125 (AEER sonar sonobuoy)--4800 sonobuoys (total, of 
IEER/EER and AEER combined) over the course of 5 years (an average of 
960 per year)
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted 
as part of the training exercises indicated in paragraph (c)(2)(ii) of 
this section:
    (ii) * * *
    (H) EER/IEER--4800 sonobuoys (total, of EER/IEER and AEER combined) 
over the course of 5 years (an average of 960 sonobuoy deployments per 
year)
    (d) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  216.170(c) should the 
amounts (e.g., hours, dips, or number of exercises) vary from those 
estimated in Sec.  216.170(c), provided that the variation does not 
result in exceeding the amount of take indicated in Sec.  216.172(c).


0
3. In Sec.  216.171, paragraph (a) is revised to read as follows:


Sec.  216.171  Effective dates and definitions.

    (a) Amended regulations are effective February 4, 2011, through 
January 5, 2014.
* * * * *
0
4. In Sec.  216.240, paragraph (c) introductory text is revised, and 
paragraph (d) is added to read as follows:


Sec.  216.240  Specified activity and specified geographical region

* * * * *
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the use of the following mid-frequency active 
sonar (MFAS) sources, high frequency active sonar (HFAS) sources, 
explosive sonobuoys, or similar sources, for Navy training, 
maintenance, or research, development, testing, and evaluation (RDT&E) 
(estimated amounts below):
* * * * *
    (d) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  216.240(c) should the 
amounts (e.g., hours, dips, or number of exercises) vary from those 
estimated in Sec.  216.240(c), provided that the variation does not 
result in exceeding the amount of take indicated in Sec.  216.242(c).


0
5. In Sec.  216.241, paragraph (a) is revised to read as follows:


Sec.  216.241  Effective dates and definitions.

    (a) Amended regulations are effective February 4, 2011, through 
January 22, 2014.
* * * * *

0
5. In Sec.  216.270, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised, and 
paragraph (d) is added to read as follows:


Sec.  216.270  Specified activity and specified geographical region.

* * * * *
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for 
Navy training, maintenance, or research, development, testing, and 
evaluation (RDT&E) (estimated amounts below):
* * * * *
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section, or similar explosives, conducted 
as part of the training exercises indicated in paragraph (c)(2)(ii) of 
this section:
* * * * *
    (d) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  216.270(c) should the 
amounts (e.g., hours, dips, or number of exercises) vary from those 
estimated in Sec.  216.270(c), provided that the variation does not 
result in exceeding the amount of take indicated in Sec.  216.272(c).



0
6. In Sec.  216.271, paragraph (a) is revised to read as follows:


Sec.  216.271  Effective dates and definitions.

    (a) Amended regulations are effective February 4, 2011, through 
January 14, 2014.
* * * * *
[FR Doc. 2011-2640 Filed 2-7-11; 8:45 am]
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