Taking and Importing Marine Mammals: U.S. Navy Training in 12 Range Complexes and U.S. Air Force Space Vehicle and Test Flight Activities in California, 70695-70702 [2011-29494]

Download as PDF Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 216 and 218 [Docket No. 111019636–1638–01] RIN 0648–BB53 Taking and Importing Marine Mammals: U.S. Navy Training in 12 Range Complexes and U.S. Air Force Space Vehicle and Test Flight Activities in California National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: Between January 2009 and May 2011, pursuant to the Marine Mammal Protection Act (MMPA), NMFS issued twelve 5-year final regulations to govern the unintentional taking of marine mammals incidental to Navy training and associated activities. Additionally, in February 2009, pursuant to the MMPA, NMFS issued 5-year regulations to govern the unintentional taking of marine mammals incidental to U.S. Air Force (USAF) space vehicle and test flight activities from Vandenberg Air Force Base (VAFB). These regulations require the issuance of annual ‘‘Letters of Authorization’’ (LOAs). Since the issuance of the 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. NMFS now proposes to amend the regulations for the affected Navy training ranges to provide for additional flexibility and allow for LOAs with longer periods of validity. Similarly, NMFS now proposes to amend the regulations issued to VAFB in February 2009, to allow for greater flexibility regarding the types and amounts of missile and rocket launches that the USAF conducts. DATES: Comments and information must be received no later than December 15, 2011. ADDRESSES: You may submit comments, identified by 0648–BB53, 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, jlentini on DSK4TPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 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. Regarding the Navy action, a copy of the Navy’s LOA applications, NMFS’ Records of Decision (RODs), and NMFS’ proposed and final rules and subsequent LOAs; and regarding the USAF action, a copy of the USAF’s LOA application, NMFS’ Environmental Assessment and Finding of No Significant Impact, and 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 EastWest Highway, Silver Spring, MD 20910 or by telephone via the contact listed here (see FOR FURTHER INFORMATION CONTACT). Jolie Harrison or Candace Nachman, Office of Protected Resources, NMFS, (301) 427– 8401. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: 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 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 70695 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 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]. Between January 2009 and May 2011, pursuant to the Marine Mammal Protection Act (MMPA), NMFS issued 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 (SOCAL) Range Complex, the Atlantic Fleet Active Sonar Training (AFAST) Study Area, the Jacksonville (JAX) Range Complex, the Virginia Capes (VACAPES) Range Complex, the Cherry Point (CHPT) Range Complex, the Naval Surface Warfare Center Panama City Division (NSWC PCD), the Mariana Islands Range Complex (MIRC), the Northwest Training Range Complex (NWTRC), the Keyport Range Complex, the Gulf of Mexico (GOMEX) Range Complex, and the Gulf of Alaska Temporary Maritime Activities Area (GOA TMAA). Additionally, in February 2009, pursuant to the MMPA, NMFS issued 5-year regulations to govern the unintentional taking of marine mammals incidental to U.S. Air Force (USAF) space vehicle and test flight activities from Vandenberg Air Force Base (VAFB). These regulations, which allow for the issuance of annual ‘‘Letters of Authorization’’ (LOAs) for the incidental take of marine mammals during the specified activities and E:\FR\FM\15NOP1.SGM 15NOP1 jlentini on DSK4TPTVN1PROD with PROPOSALS 70696 Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules 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. Currently, with the exception of the GOA TMAA regulation (which allows for biennial LOAs), these rules state that LOAs must be renewed annually. To date, the Navy has complied with this requirement, and NMFS has issued annual LOAs to the Navy for activities on its training ranges; however, in order to alleviate some of the administrative burden associated with processing annual LOAs, the Navy has requested that NMFS revise the current regulations to allow for LOAs with longer periods of validity. NMFS’ regulations implementing section 101(a)(5)(A) through (D) of the MMPA do not limit the period of validity for LOAs to one year, and NMFS relied on this authority when regulations were promulgated for the GOA TMAA that allow for LOAs to be issued on an annual or biennial basis (76 FR 25480, May 4, 2011). The specific language found in the general regulations governing small takes of marine mammals incidental to specified activities states that, ‘‘Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request.’’ 50 CFR 216.106(c). With respect to the proposed revision to the timing of LOA renewals, the period of validity for the LOAs would be extended past one year, but will not exceed the time remaining on the 5-year rule. For example, under the proposed revision, if the Navy requested a multiyear LOA for AFAST in 2012, the LOA could only be valid for a maximum of two years because the 5-year rule expires in 2014. Other factors may be taken into consideration when determining the period of validity for a multi-year LOA, such as the degree of advanced planning regarding future training or exercise schedules and the details concerning the amount of activity and marine mammal occurrence documented in the previous year’s monitoring and exercise reports. The regulations would still require the Navy to submit annual monitoring and exercise reports, NMFS and the Navy would still hold annual monitoring and adaptive management meetings, and LOAs could still be changed based on the availability of new information regarding training activities or the marine mammals affected. In addition, these rules as first issued (a subset have been modified) quantified VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 the specific amounts of individual sound source use that would occur over the course of the 5-year rules, and indicated that marine mammal take could only be authorized in an LOA incidental to the source types and amounts described. 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 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 authorization for the most recent area (GOA TMAA), NMFS included language explicitly allowing for greater flexibility in both source amount and type. Recently, NMFS amended the HRC, SOCAL Range Complex, AFAST, VACAPES, and JAX regulations to explicitly allow for greater flexibility in the types and amount of sound sources that they use (76 FR 6699, February 8, 2011, and 76 FR 30552, May 26, 2011). NMFS now proposes to amend the regulations for the remaining Navy training ranges to allow this same flexibility and ensure consistency. The USAF regulations for activities at VAFB as first issued quantified the specific amounts of missiles and rockets that could be launched over the course of the 5-year rule and indicated that marine mammal take could only be authorized in an LOA incidental to the amounts described. No language was initially included expressly allowing for deviation from those precise launch levels if the total number of takes remains within the analyzed and authorized limits. Since the issuance of the rule, the USAF realized that their evolving training programs, which are linked to real world events, necessitate greater flexibility in the types and amounts of missile and rocket launches that they conduct. NMFS now proposes to amend the regulations issued to VAFB in February 2009, to allow for such flexibility. Summary of the Navy Modifications Multi-Year LOAs On May 4, 2011, NMFS issued 5-year regulations governing the taking of marine mammals incidental to training activities conducted in the Gulf of Alaska Temporary Maritime Training Activities Area (76 FR 25480). These regulations allow for the issuance of annual or biennial LOAs (only annual LOAs had been allowed for in the PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 previous Navy rules issued), but retain the annual reporting and meeting requirements. After the issuance of the 2011 Gulf of Alaska rule, the Navy inquired about proposing amendments to the previously implemented Navy rules that would enable NMFS to renew LOAs for other training ranges on a multi-year basis. The ability to issue multi-year LOAs reduces administrative burdens on both NMFS and the Navy. In addition, multi-year LOAs would avoid situations where the last minute issuance of LOAs necessitated the commitment of extensive resources by the Navy for contingency planning. This proposed modification would amend the regulations to allow the issuance of multi-year LOAs for all 12 Navy range complexes: HRC, SOCAL, AFAST, JAX, VACAPES, CHPT, NSWC PCD, MIRC, NWTRC, Keyport, GOA TMAA and GOMEX. The regulations for these range complexes currently limit the period of validity for LOAs to one year (two for GOA TMAA) and the Navy must request renewal of LOAs annually (biennially for GOA TMAA). Although the proposed amendments would increase the period of validity for LOAs, the regulations would retain the annual reporting and adaptive management meeting requirements that ensure NMFS is able to evaluate the Navy’s compliance and marine mammal impacts with the same attention and frequency. In addition, a new LOA can be issued to incorporate any needed mitigation or monitoring measures developed through adaptive management, or if the Navy proposes changes to their activity within a given reporting period (i.e., one year). Interannual Flexibility (Source Type and Amount of Use) With respect to the second proposed modification regarding the types of sources for which incidental take is authorized, in some cases the Navy’s 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 results in sound sources that are similar to, but not exactly the same as, existing sources. In order to address these source modifications and the development of new technologies, NMFS proposes to include new regulatory language designed to allow for more flexibility by authorizing take incidental to the previously identified specific sound source or ‘‘similar sources’’ (i.e., those that have similar characteristics to the specific sources and do not change any of the underlying E:\FR\FM\15NOP1.SGM 15NOP1 jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules analysis). In the February 8, 2011, modification to the HRC, SOCAL, and AFAST rules, NMFS increased the flexibility of the regulations by inserting language that explicitly allows 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). NMFS now proposes inserting similar language in the following Navy rules: CHPT; NSWC PCD; MIRC; Keyport; GOMEX; and NWTRC. Finally, regarding amounts of sound source use, the 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. The proposed rule would amend the Navy rules to allow for inter-annual variability in the amount of source use identified in each LOA. For example, in one year the Navy could use a lot of one source and a little of another, and the next year those amounts could be reversed; however, the amount of inter-annual variability cannot result in exceeding the total level of incidental take analyzed and identified in the final rules, and the taking cannot 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. NMFS issued interim final rules amending the HRC, SOCAL Range Complex, AFAST, VACAPES, and JAX regulations by adding language of this nature to increase operational flexibility in those range complexes (76 FR 6699, February 8, 2011, and 76 FR 30552, May 26, 2011). However, this language has not been adopted in the remaining Navy rules and NMFS now proposes including language of this nature in the regulations governing the authorization of take incidental to the additional Navy range complex not previously addressed by either the final rules or interim final rules mentioned above. These regulatory amendments do not change the analyses of marine mammal impacts conducted in the original final rules. This is assured and illustrated VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 through: (1) The Navy’s submission of LOA applications for each area, which include take estimates specific to the upcoming period’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’ LOAs, and the impacts of the Navy’s activities on marine mammals, remain within what is analyzed and allowed under the 5-year regulations. Summary of the USAF Modification In the 5-year regulations issued to the USAF in February 2009, NMFS authorized up to 30 missile launches and up to 20 rocket launches annually from VAFB (74 FR 6236, February 6, 2009). Those regulations analyzed potential impacts from many different types of missiles and rockets, such as the Atlas, Delta, Falcon, and intercontinental ballistic missiles. At the time of issuance of the regulations to the USAF, the Falcon was not yet ready for launch, but it was anticipated that the first launch of such a rocket would occur around August 2009. Information related to this rocket type was analyzed in both the proposed and final rulemaking documents. The Falcon has not yet been launched from VAFB, and it is anticipated that the first launch would occur in late 2012 or early 2013. In order to accommodate the necessary launches of the Falcon rocket, the USAF has indicated that it needs to reassign the amount of the 50 total launches allowed annually. Instead of the 30 missile and 20 rocket launches currently authorized per year, the USAF has requested that they be permitted to conduct 15 missile launches and 35 rocket launches per year. The total number of annual launches would remain at 50. As indicated above, this regulatory amendment does not change the analyses of marine mammal impacts conducted in the original final rule. This fact is assured and illustrated through: (1) The USAF’s submission of annual LOA requests for the activities at VAFB related to space vehicle and test flight activities; and (2) their annual submission of monitoring reports, which describe observed responses of marine mammals to USAF missile and PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 70697 rocket launches and aircraft activity collected via visual monitoring and acoustic recording methods. These submissions allow NMFS to accurately predict and track the USAF’s activities to ensure that both NMFS’ LOAs and the impacts of the USAF’s activities on marine mammals remain within what is analyzed and allowed under the 5-year regulations. Classification The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to 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 RFA requires Federal agencies to prepare an analysis of a rule’s impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605 (b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy and USAF are the only entities that will be affected by this rulemaking, not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the Navy and USAF. NMFS does not expect the amendments of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect the Navy and USAF and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities. This action does not contain any collection of information requirements for purposes of the Paperwork Reduction Act. 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. E:\FR\FM\15NOP1.SGM 15NOP1 70698 Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules Dated: November 8, 2011. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 216 is proposed to be amended as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 2. In § 216.120, paragraphs (a)(1) and (a)(2) are revised to read as follows: § 216.120 Specified activity and specified geographical region. (a) * * * (1) Launching up to 15 missiles each year from Vandenberg Air Force Base, for a total of up to 75 missiles over the 5-year period of the regulations in this subpart, (2) Launching up to 35 rockets each year from Vandenberg Air Force Base, for a total of up to 175 rocket launches over the 5-year period of the regulations in this subpart, * * * * * 3. Section 216.121 is revised to read as follows: § 216.121 Effective dates. Amended regulations are effective from the date of publication of the final rule, through February 6, 2014. 4. In § 216.171, paragraph (a) is revised to read as follows: § 216.171 Effective dates and definitions. (a) Amended regulations are effective from the date of publication of the final rule, through January 5, 2014. * * * * * 5. In § 216.177, paragraph (a) is revised to read as follows: jlentini on DSK4TPTVN1PROD with PROPOSALS § 216.177 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 216.178 and the modification conditions in § 216.179. * * * * * 6. In § 216.178 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 216.178 Renewal of Letters of Authorization. (a) A Letter of Authorization issued under §§ 216.106 and 216.177 for the VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 activity identified in § 216.170(c) may be renewed for an amount of time not to exceed the periods of validity of this subpart upon: (1) Notification to NMFS that the activity described in the application submitted under § 216.176 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 216.174 and the Letter of Authorization issued under §§ 216.106 and 216.177, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 7. In § 216.241, paragraph (a) is revised to read as follows: § 216.241 Effective dates and definitions. (a) Amended regulations are effective from the date of publication of the final rule, through January 22, 2014. * * * * * 8. In § 216.247 paragraph (a) is revised to read as follows: § 216.247 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 216.248 and the modification conditions in § 216.249. * * * * * 9. In § 216.248 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 216.248 Renewal of Letters of Authorization and Adaptive Management. (a) A Letter of Authorization issued under §§ 216.106 and 216.247 for the activity identified in § 216.240(c) may be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 216.246 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 216.244 and the Letter of Authorization issued under §§ 216.106 and 216.247, were undertaken and will be undertaken PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 10. In § 216.271, paragraph (a) is revised to read as follows: § 216.271 Effective dates and definitions. (a) Amended regulations are effective from the date of publication of the final rule, through January 14, 2014. * * * * * 11. In § 216.277, paragraph (a) is revised to read as follows: § 216.277 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 216.278 and the modification conditions in § 216.279. * * * * * 12. In § 216.278, paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 216.278 Renewal of Letters of Authorization and Adaptive Management. (a) A Letter of Authorization issued under §§ 216.106 and 216.277 for the activity identified in § 216.270(c) may be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 216.276 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 216.274 and the Letter of Authorization issued under §§ 216.106 and 216.277, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * For reasons set forth in the preamble, 50 CFR part 218 is proposed to be amended as follows: PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 13. The authority citation for part 218 continues to read as follows: Authority: 16 U.S.C. 1361 et seq. 14. In § 218.1, paragraph (d) is revised to read as follows: § 218.1 Specified activity and specified geographical area and effective dates. * E:\FR\FM\15NOP1.SGM * * 15NOP1 * * Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules (d) Amended regulations are effective from the date of publication of the final rule, through June 4, 2016. * * * * * 15. In § 218.7 paragraph (a) is revised to read as follows: § 218.7 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.8 and the modification conditions in § 218.9. * * * * * 16. In § 218.8 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.8 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.7 for the activity identified in § 218.1(c) may be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.6 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.4 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.7, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 17. In § 218.10, paragraph (d) is revised to read as follows: § 218.10 Specified activity and specified geographical area and effective dates. * * * * * (d) Amended regulations are effective on the date of publication of the final rule, through June 4, 2016. * * * * * 18. In § 218.16 paragraph (a) is revised to read as follows: jlentini on DSK4TPTVN1PROD with PROPOSALS § 218.16 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.17 and modification conditions in § 218.18. * * * * * 19. In § 218.17 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 § 218.17 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.16 for the activity identified in § 218.10(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.15 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.13 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.16, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 20. In § 218.20, paragraphs (c) introductory text, (c)(1) introductory text, and (d) are revised, and paragraph (e) is added to read as follows: § 218.20 Specified activity and specified geographical area and effective dates. * * * * * (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 explosive munitions, or similar explosive types, indicated in paragraph (c)(1)(i) of this section conducted as part of the Navy training events, or similar training events, indicated in paragraph (c)(1)(ii) of this section: * * * * * (d) Regulations are effective from the date of publication of the final rule, through June 4, 2014. (e) The taking of marine mammals may be authorized in an LOA for the explosive types and activities, or similar explosives and activities, listed in § 218.20(c) should the amounts (e.g., number of exercises) vary from those estimated in § 218.20(c), provided that the variation does not result in exceeding the amount of take indicated in § 218.21(c). 21. In § 218.23, paragraph (a)(4)(i)(A) is revised to read as follows: § 218.23 Mitigation. (a) * * * (4) * * * (i) * * * (A) This activity shall only occur in Areas 4/5 and 13/14, or in similar areas that will not result in marine mammal takes exceeding the amount indicated in § 218.21(c). * * * * * PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 70699 22. In § 218.26 paragraph (a) is revised to read as follows: § 218.26 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.27 and the modification conditions in § 218.28. * * * * * 23. In § 218.27 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.27 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.26 for the activity identified in § 218.20(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.25 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.23 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.26, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 24. In § 218.30, paragraphs (c) introductory text, (c)(1) introductory text, and (d) are revised, and paragraph (e) is added to read as follows: § 218.30 Specified activity and specified geographical area and effective dates. * * * * * (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 explosive munitions, or similar explosive types, indicated in paragraph (c)(1)(i) of this section conducted as part of the Navy training events, or similar training events, indicated in paragraph (c)(1)(ii) of this section: * * * * * (d) Regulations are effective from the date of publication of the final rule, through February 17, 2016. (e) The taking of marine mammals may be authorized in an LOA for the explosive types and activities, or similar explosives and activities, listed in § 218.30(c) should the amounts (e.g., number of exercises) vary from those estimated in § 218.30(c), provided that E:\FR\FM\15NOP1.SGM 15NOP1 70700 Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules the variation does not result in exceeding the amount of take indicated in § 218.31(c). 25. In § 218.33, paragraph (a)(3)(i)(A) is revised to read as follows: § 218.33 Mitigation. (a) * * * (3) * * * (i) * * * (A) This activity shall only occur in the W–155A/B (hot box) area, or in similar areas that will not result in marine mammal takes exceeding the amount indicated in § 218.31(c). * * * * * 26. In § 218.36, paragraph (a) is revised to read as follows: § 218.36 § 218.101 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.37 and the modification conditions in § 218.38. * * * * * 27. In § 218.37 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.37 Renewal of Letters of Authorization and adaptive management. jlentini on DSK4TPTVN1PROD with PROPOSALS (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.36 for the activity identified in § 218.30(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.35 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.33 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.36, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 28. In § 218.100, paragraphs (c) introductory text, (c)(1) introductory text, and (c)(2) introductory text are revised to read as follows: § 218.100 Specified activity and specified geographical area. * * * * * (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 midfrequency active sonar (MFAS) and high VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 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: * * * * * 29. Section 218.101 is revised to read as follows: Effective dates. Amended regulations are effective from the date of publication of the final rule, through August 3, 2015. 30. In § 218.107 paragraph (a) is revised to read as follows: § 218.107 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.108 and the modification conditions in § 218.109. * * * * * 31. In § 218.108 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.108 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.107 for the activity identified in § 218.100(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.106 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.104 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.107, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 32. In § 218.110, paragraphs (c) introductory text, (c)(1) introductory text, and (c)(2) introductory text are revised to read as follows: § 218.110 Specified activity and specified geographical area. * PO 00000 * * Frm 00034 * Fmt 4702 * Sfmt 4702 (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 midfrequency 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: * * * * * 33. Section 218.111 is revised to read as follows: § 218.111 Effective dates. Amended regulations are effective from the date of publication of the final rule, through November 9, 2015. 34. In § 218.117 paragraph (a) is revised to read as follows: § 218.117 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.118 and the modification conditions in § 218.119. * * * * * 35. In § 218.118 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.118 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.117 for the activity identified in § 218.110(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.116 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.114 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.117, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 36. Section 218.121 is revised to read as follow: E:\FR\FM\15NOP1.SGM 15NOP1 Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules § 218.121 Effective dates. Amended regulations in this subpart are effective from the date of publication of the final rule, through May 4, 2016. 37. In § 218.127 paragraph (a) is revised to read as follows: § 218.127 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.128 and the modification conditions in § 218.129. * * * * * 38. In § 218.128 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.128 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.127 for the activity identified in § 218.120(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.126 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.124 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.127, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 39. In § 218.170 paragraphs (c) introductory text and (d) are revised, and paragraph (e) is added to read as follows: § 218.170 Specified activity and specified geographical area and effective dates. jlentini on DSK4TPTVN1PROD with PROPOSALS * * * * * (c) These regulations apply only to the taking of marine mammals by the Navy if it occurs incidental to the following activities, or similar activities, and sources, or similar sources (estimate amounts of use below): * * * * * (d) Amended regulations are effective from the date of publication of the final rule, through April 11, 2016. (e) The taking of marine mammals may be authorized in an LOA for the activities and sources listed in § 218.170(c) should the amounts (e.g., hours, number of exercises) vary from those estimated in § 218.170(c), provided that the variation does not VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 result in exceeding the amount of take indicated in § 218.171(c). 40. In § 218.176 paragraph (a) is revised to read as follows: § 218.176 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.177 and the modification conditions in § 218.178. * * * * * 41. In § 218.177 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.177 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.176 for the activity identified in § 218.170(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.175 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.173 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.176, were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization. * * * * * 42. In § 218.180, paragraphs (c) introductory text, (c)(1) introductory text, (c)(2) introductory text, (c)(3) introductory text, (c)(4) introductory text, (c)(5) introductory text, and (d) are revised, and paragraph (e) is added to read as follows: § 218.180 Specified activity and specified geographical area and effective dates. * * * * * (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 midfrequency active sonar (MFAS) and high frequency active sonar (HFAS) sources, or similar sources, for Navy mission activities in territorial waters (estimated amounts below): * * * * * (2) The use of the following midfrequency active sonar (MFAS) and high frequency active sonar (HFAS) sources, or similar sources, for Navy mission PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 70701 activities in non-territorial waters (estimated amounts below): * * * * * (3) Ordnance operations, or similar operations, for Navy mission activities in territorial waters (estimated amounts below): * * * * * (4) Ordnance operations, or similar operations, for Navy mission activities in non-territorial waters (estimated amounts below): * * * * * (5) Projectile firing operations, or similar operations, for Navy mission activities in non-territorial waters (estimated amounts below): * * * * * (d) Amended regulations are effective from the date of publication of the final rule, through January 21, 2015. (e) The taking of marine mammals may be authorized in an LOA for the activities and sources listed in § 218.180(c) should the amounts (e.g., hours, number of exercises) vary from those estimated in § 218.180(c), provided that the variation does not result in exceeding the amount of take indicated in § 218.181(b). 43. In § 218.186 paragraph (a) is revised to read as follows: § 218.186 Letters of Authorization. (a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the periods of validity of this subpart, but may be renewed or modified sooner subject to the renewal conditions in § 218.187 and the modification conditions in § 218.188. * * * * * 44. In § 218.187 paragraphs (a), (a)(1), and (a)(3) are revised to read as follows: § 218.187 Renewal of Letters of Authorization and adaptive management. (a) A Letter of Authorization issued under § 216.106 of this chapter and § 218.186 for the activity identified in § 218.180(c) will be renewed upon: (1) Notification to NMFS that the activity described in the application submitted under § 218.185 will be undertaken and that there will not be a substantial modification to the desired work, mitigation, or monitoring undertaken during the upcoming period of validity; * * * * * (3) A determination by NMFS that the mitigation, monitoring and reporting measures required under § 218.183 and the Letter of Authorization issued under § 216.106 of this chapter and § 218.186, were undertaken and will be undertaken E:\FR\FM\15NOP1.SGM 15NOP1 70702 Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / Proposed Rules during the upcoming period of validity of a renewed Letter of Authorization. * * * * * [FR Doc. 2011–29494 Filed 11–14–11; 8:45 am] jlentini on DSK4TPTVN1PROD with PROPOSALS BILLING CODE 3510–22–P VerDate Mar<15>2010 16:13 Nov 14, 2011 Jkt 226001 PO 00000 Frm 00036 Fmt 4702 Sfmt 9990 E:\FR\FM\15NOP1.SGM 15NOP1

Agencies

[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Proposed Rules]
[Pages 70695-70702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29494]



[[Page 70695]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 218

[Docket No. 111019636-1638-01]
RIN 0648-BB53


Taking and Importing Marine Mammals: U.S. Navy Training in 12 
Range Complexes and U.S. Air Force Space Vehicle and Test Flight 
Activities in California

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

ACTION: Proposed rule; request for comments.

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SUMMARY: Between January 2009 and May 2011, pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS issued twelve 5-year final 
regulations to govern the unintentional taking of marine mammals 
incidental to Navy training and associated activities. Additionally, in 
February 2009, pursuant to the MMPA, NMFS issued 5-year regulations to 
govern the unintentional taking of marine mammals incidental to U.S. 
Air Force (USAF) space vehicle and test flight activities from 
Vandenberg Air Force Base (VAFB). These regulations require the 
issuance of annual ``Letters of Authorization'' (LOAs).
    Since the issuance of the 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. NMFS now proposes to amend the regulations for 
the affected Navy training ranges to provide for additional flexibility 
and allow for LOAs with longer periods of validity. Similarly, NMFS now 
proposes to amend the regulations issued to VAFB in February 2009, to 
allow for greater flexibility regarding the types and amounts of 
missile and rocket launches that the USAF conducts.

DATES: Comments and information must be received no later than December 
15, 2011.

ADDRESSES: You may submit comments, identified by 0648-BB53, 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.
    Regarding the Navy action, a copy of the Navy's LOA applications, 
NMFS' Records of Decision (RODs), and NMFS' proposed and final rules 
and subsequent LOAs; and regarding the USAF action, a copy of the 
USAF's LOA application, NMFS' Environmental Assessment and Finding of 
No Significant Impact, and 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 or by 
telephone via the contact listed here (see FOR FURTHER INFORMATION 
CONTACT).

FOR FURTHER INFORMATION CONTACT: Jolie Harrison or Candace Nachman, 
Office of Protected Resources, NMFS, (301) 427-8401.

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 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].

    Between January 2009 and May 2011, pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS issued 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 (SOCAL) Range Complex, the Atlantic Fleet 
Active Sonar Training (AFAST) Study Area, the Jacksonville (JAX) Range 
Complex, the Virginia Capes (VACAPES) Range Complex, the Cherry Point 
(CHPT) Range Complex, the Naval Surface Warfare Center Panama City 
Division (NSWC PCD), the Mariana Islands Range Complex (MIRC), the 
Northwest Training Range Complex (NWTRC), the Keyport Range Complex, 
the Gulf of Mexico (GOMEX) Range Complex, and the Gulf of Alaska 
Temporary Maritime Activities Area (GOA TMAA). Additionally, in 
February 2009, pursuant to the MMPA, NMFS issued 5-year regulations to 
govern the unintentional taking of marine mammals incidental to U.S. 
Air Force (USAF) space vehicle and test flight activities from 
Vandenberg Air Force Base (VAFB). These regulations, which allow for 
the issuance of annual ``Letters of Authorization'' (LOAs) for the 
incidental take of marine mammals during the specified activities and

[[Page 70696]]

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.
    Currently, with the exception of the GOA TMAA regulation (which 
allows for biennial LOAs), these rules state that LOAs must be renewed 
annually. To date, the Navy has complied with this requirement, and 
NMFS has issued annual LOAs to the Navy for activities on its training 
ranges; however, in order to alleviate some of the administrative 
burden associated with processing annual LOAs, the Navy has requested 
that NMFS revise the current regulations to allow for LOAs with longer 
periods of validity. NMFS' regulations implementing section 
101(a)(5)(A) through (D) of the MMPA do not limit the period of 
validity for LOAs to one year, and NMFS relied on this authority when 
regulations were promulgated for the GOA TMAA that allow for LOAs to be 
issued on an annual or biennial basis (76 FR 25480, May 4, 2011). The 
specific language found in the general regulations governing small 
takes of marine mammals incidental to specified activities states that, 
``Letters of Authorization will specify the period of validity and any 
additional terms and conditions appropriate for the specific request.'' 
50 CFR 216.106(c). With respect to the proposed revision to the timing 
of LOA renewals, the period of validity for the LOAs would be extended 
past one year, but will not exceed the time remaining on the 5-year 
rule. For example, under the proposed revision, if the Navy requested a 
multi-year LOA for AFAST in 2012, the LOA could only be valid for a 
maximum of two years because the 5-year rule expires in 2014. Other 
factors may be taken into consideration when determining the period of 
validity for a multi-year LOA, such as the degree of advanced planning 
regarding future training or exercise schedules and the details 
concerning the amount of activity and marine mammal occurrence 
documented in the previous year's monitoring and exercise reports. The 
regulations would still require the Navy to submit annual monitoring 
and exercise reports, NMFS and the Navy would still hold annual 
monitoring and adaptive management meetings, and LOAs could still be 
changed based on the availability of new information regarding training 
activities or the marine mammals affected.
    In addition, these rules as first issued (a subset have been 
modified) quantified the specific amounts of individual sound source 
use that would occur over the course of the 5-year rules, and indicated 
that marine mammal take could only be authorized in an LOA incidental 
to the source types and amounts described. 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 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 authorization for the most recent area (GOA 
TMAA), NMFS included language explicitly allowing for greater 
flexibility in both source amount and type. Recently, NMFS amended the 
HRC, SOCAL Range Complex, AFAST, VACAPES, and JAX regulations to 
explicitly allow for greater flexibility in the types and amount of 
sound sources that they use (76 FR 6699, February 8, 2011, and 76 FR 
30552, May 26, 2011). NMFS now proposes to amend the regulations for 
the remaining Navy training ranges to allow this same flexibility and 
ensure consistency.
    The USAF regulations for activities at VAFB as first issued 
quantified the specific amounts of missiles and rockets that could be 
launched over the course of the 5-year rule and indicated that marine 
mammal take could only be authorized in an LOA incidental to the 
amounts described. No language was initially included expressly 
allowing for deviation from those precise launch levels if the total 
number of takes remains within the analyzed and authorized limits. 
Since the issuance of the rule, the USAF realized that their evolving 
training programs, which are linked to real world events, necessitate 
greater flexibility in the types and amounts of missile and rocket 
launches that they conduct. NMFS now proposes to amend the regulations 
issued to VAFB in February 2009, to allow for such flexibility.

Summary of the Navy Modifications

Multi-Year LOAs

    On May 4, 2011, NMFS issued 5-year regulations governing the taking 
of marine mammals incidental to training activities conducted in the 
Gulf of Alaska Temporary Maritime Training Activities Area (76 FR 
25480). These regulations allow for the issuance of annual or biennial 
LOAs (only annual LOAs had been allowed for in the previous Navy rules 
issued), but retain the annual reporting and meeting requirements.
    After the issuance of the 2011 Gulf of Alaska rule, the Navy 
inquired about proposing amendments to the previously implemented Navy 
rules that would enable NMFS to renew LOAs for other training ranges on 
a multi-year basis. The ability to issue multi-year LOAs reduces 
administrative burdens on both NMFS and the Navy. In addition, multi-
year LOAs would avoid situations where the last minute issuance of LOAs 
necessitated the commitment of extensive resources by the Navy for 
contingency planning.
    This proposed modification would amend the regulations to allow the 
issuance of multi-year LOAs for all 12 Navy range complexes: HRC, 
SOCAL, AFAST, JAX, VACAPES, CHPT, NSWC PCD, MIRC, NWTRC, Keyport, GOA 
TMAA and GOMEX. The regulations for these range complexes currently 
limit the period of validity for LOAs to one year (two for GOA TMAA) 
and the Navy must request renewal of LOAs annually (biennially for GOA 
TMAA). Although the proposed amendments would increase the period of 
validity for LOAs, the regulations would retain the annual reporting 
and adaptive management meeting requirements that ensure NMFS is able 
to evaluate the Navy's compliance and marine mammal impacts with the 
same attention and frequency. In addition, a new LOA can be issued to 
incorporate any needed mitigation or monitoring measures developed 
through adaptive management, or if the Navy proposes changes to their 
activity within a given reporting period (i.e., one year).

Interannual Flexibility (Source Type and Amount of Use)

    With respect to the second proposed modification regarding the 
types of sources for which incidental take is authorized, in some cases 
the Navy's 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 
results in sound sources that are similar to, but not exactly the same 
as, existing sources. In order to address these source modifications 
and the development of new technologies, NMFS proposes to include new 
regulatory language designed to allow for more flexibility by 
authorizing take incidental to the previously identified specific sound 
source or ``similar sources'' (i.e., those that have similar 
characteristics to the specific sources and do not change any of the 
underlying

[[Page 70697]]

analysis). In the February 8, 2011, modification to the HRC, SOCAL, and 
AFAST rules, NMFS increased the flexibility of the regulations by 
inserting language that explicitly allows 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). NMFS now proposes inserting similar 
language in the following Navy rules: CHPT; NSWC PCD; MIRC; Keyport; 
GOMEX; and NWTRC.
    Finally, regarding amounts of sound source use, the 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. The proposed rule would amend the Navy 
rules to allow for inter-annual variability in the amount of source use 
identified in each LOA. For example, in one year the Navy could use a 
lot of one source and a little of another, and the next year those 
amounts could be reversed; however, the amount of inter-annual 
variability cannot result in exceeding the total level of incidental 
take analyzed and identified in the final rules, and the taking cannot 
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. NMFS issued interim final rules amending the HRC, SOCAL 
Range Complex, AFAST, VACAPES, and JAX regulations by adding language 
of this nature to increase operational flexibility in those range 
complexes (76 FR 6699, February 8, 2011, and 76 FR 30552, May 26, 
2011). However, this language has not been adopted in the remaining 
Navy rules and NMFS now proposes including language of this nature in 
the regulations governing the authorization of take incidental to the 
additional Navy range complex not previously addressed by either the 
final rules or interim final rules mentioned above.
    These regulatory amendments do not change the analyses of marine 
mammal impacts conducted in the original final rules. This is assured 
and illustrated through: (1) The Navy's submission of LOA applications 
for each area, which include take estimates specific to the upcoming 
period'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' LOAs, and the 
impacts of the Navy's activities on marine mammals, remain within what 
is analyzed and allowed under the 5-year regulations.

Summary of the USAF Modification

    In the 5-year regulations issued to the USAF in February 2009, NMFS 
authorized up to 30 missile launches and up to 20 rocket launches 
annually from VAFB (74 FR 6236, February 6, 2009). Those regulations 
analyzed potential impacts from many different types of missiles and 
rockets, such as the Atlas, Delta, Falcon, and intercontinental 
ballistic missiles. At the time of issuance of the regulations to the 
USAF, the Falcon was not yet ready for launch, but it was anticipated 
that the first launch of such a rocket would occur around August 2009. 
Information related to this rocket type was analyzed in both the 
proposed and final rulemaking documents. The Falcon has not yet been 
launched from VAFB, and it is anticipated that the first launch would 
occur in late 2012 or early 2013.
    In order to accommodate the necessary launches of the Falcon 
rocket, the USAF has indicated that it needs to reassign the amount of 
the 50 total launches allowed annually. Instead of the 30 missile and 
20 rocket launches currently authorized per year, the USAF has 
requested that they be permitted to conduct 15 missile launches and 35 
rocket launches per year. The total number of annual launches would 
remain at 50.
    As indicated above, this regulatory amendment does not change the 
analyses of marine mammal impacts conducted in the original final rule. 
This fact is assured and illustrated through: (1) The USAF's submission 
of annual LOA requests for the activities at VAFB related to space 
vehicle and test flight activities; and (2) their annual submission of 
monitoring reports, which describe observed responses of marine mammals 
to USAF missile and rocket launches and aircraft activity collected via 
visual monitoring and acoustic recording methods. These submissions 
allow NMFS to accurately predict and track the USAF's activities to 
ensure that both NMFS' LOAs and the impacts of the USAF's activities on 
marine mammals remain within what is analyzed and allowed under the 5-
year regulations.

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Pursuant to 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 RFA requires Federal 
agencies to prepare an analysis of a rule's impact on small entities 
whenever the agency is required to publish a notice of proposed 
rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 
605 (b), that the action will not have a significant economic impact on 
a substantial number of small entities. The Navy and USAF are the only 
entities that will be affected by this rulemaking, not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Any requirements imposed by an LOA issued pursuant 
to these regulations, and any monitoring or reporting requirements 
imposed by these regulations, will be applicable only to the Navy and 
USAF. NMFS does not expect the amendments of these regulations or the 
associated LOAs to result in any impacts to small entities pursuant to 
the RFA. Because this action, if adopted, would directly affect the 
Navy and USAF and not a small entity, NMFS concludes the action would 
not result in a significant economic impact on a substantial number of 
small entities.
    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act.

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.


[[Page 70698]]


    Dated: November 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

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

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

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

    2. In Sec.  216.120, paragraphs (a)(1) and (a)(2) are revised to 
read as follows:


Sec.  216.120  Specified activity and specified geographical region.

    (a) * * *
    (1) Launching up to 15 missiles each year from Vandenberg Air Force 
Base, for a total of up to 75 missiles over the 5-year period of the 
regulations in this subpart,
    (2) Launching up to 35 rockets each year from Vandenberg Air Force 
Base, for a total of up to 175 rocket launches over the 5-year period 
of the regulations in this subpart,
* * * * *
    3. Section 216.121 is revised to read as follows:


Sec.  216.121  Effective dates.

    Amended regulations are effective from the date of publication of 
the final rule, through February 6, 2014.
    4. In Sec.  216.171, paragraph (a) is revised to read as follows:


Sec.  216.171  Effective dates and definitions.

    (a) Amended regulations are effective from the date of publication 
of the final rule, through January 5, 2014.
* * * * *
    5. In Sec.  216.177, paragraph (a) is revised to read as follows:


Sec.  216.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions in Sec.  216.178 and the modification conditions in Sec.  
216.179.
* * * * *
    6. In Sec.  216.178 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  216.178  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.177 for the activity identified in Sec.  216.170(c) may be renewed 
for an amount of time not to exceed the periods of validity of this 
subpart upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.176 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.174 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.177, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *
    7. In Sec.  216.241, paragraph (a) is revised to read as follows:


Sec.  216.241  Effective dates and definitions.

    (a) Amended regulations are effective from the date of publication 
of the final rule, through January 22, 2014.
* * * * *
    8. In Sec.  216.247 paragraph (a) is revised to read as follows:


Sec.  216.247  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions in Sec.  216.248 and the modification conditions in Sec.  
216.249.
* * * * *
    9. In Sec.  216.248 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  216.248  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.247 for the activity identified in Sec.  216.240(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.246 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.244 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.247, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *
    10. In Sec.  216.271, paragraph (a) is revised to read as follows:


Sec.  216.271  Effective dates and definitions.

    (a) Amended regulations are effective from the date of publication 
of the final rule, through January 14, 2014.
* * * * *
    11. In Sec.  216.277, paragraph (a) is revised to read as follows:


Sec.  216.277  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  216.278 and the modification conditions in 
Sec.  216.279.
* * * * *
    12. In Sec.  216.278, paragraphs (a), (a)(1), and (a)(3) are 
revised to read as follows:


Sec.  216.278  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.277 for the activity identified in Sec.  216.270(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.276 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.274 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.277, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *
    For reasons set forth in the preamble, 50 CFR part 218 is proposed 
to be amended as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    13. The authority citation for part 218 continues to read as 
follows:

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

    14. In Sec.  218.1, paragraph (d) is revised to read as follows:


Sec.  218.1  Specified activity and specified geographical area and 
effective dates.

* * * * *

[[Page 70699]]

    (d) Amended regulations are effective from the date of publication 
of the final rule, through June 4, 2016.
* * * * *
    15. In Sec.  218.7 paragraph (a) is revised to read as follows:


Sec.  218.7  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.8 and the modification conditions in 
Sec.  218.9.
* * * * *
    16. In Sec.  218.8 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.8  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.7 for the activity identified in Sec.  218.1(c) 
may be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.6 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.4 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    17. In Sec.  218.10, paragraph (d) is revised to read as follows:


Sec.  218.10  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (d) Amended regulations are effective on the date of publication of 
the final rule, through June 4, 2016.
* * * * *
    18. In Sec.  218.16 paragraph (a) is revised to read as follows:


Sec.  218.16  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.17 and modification conditions in Sec.  
218.18.
* * * * *
    19. In Sec.  218.17 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.17  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.16 for the activity identified in Sec.  218.10(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.15 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.13 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.16, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    20. In Sec.  218.20, paragraphs (c) introductory text, (c)(1) 
introductory text, and (d) are revised, and paragraph (e) is added to 
read as follows:


Sec.  218.20  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (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 explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
* * * * *
    (d) Regulations are effective from the date of publication of the 
final rule, through June 4, 2014.
    (e) The taking of marine mammals may be authorized in an LOA for 
the explosive types and activities, or similar explosives and 
activities, listed in Sec.  218.20(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.20(c), provided 
that the variation does not result in exceeding the amount of take 
indicated in Sec.  218.21(c).
    21. In Sec.  218.23, paragraph (a)(4)(i)(A) is revised to read as 
follows:


Sec.  218.23  Mitigation.

    (a) * * *
    (4) * * *
    (i) * * *
    (A) This activity shall only occur in Areas 4/5 and 13/14, or in 
similar areas that will not result in marine mammal takes exceeding the 
amount indicated in Sec.  218.21(c).
* * * * *
    22. In Sec.  218.26 paragraph (a) is revised to read as follows:


Sec.  218.26  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.27 and the modification conditions in 
Sec.  218.28.
* * * * *
    23. In Sec.  218.27 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.27  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.26 for the activity identified in Sec.  218.20(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.25 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.23 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.26, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    24. In Sec.  218.30, paragraphs (c) introductory text, (c)(1) 
introductory text, and (d) are revised, and paragraph (e) is added to 
read as follows:


Sec.  218.30  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (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 explosive munitions, or similar explosive types, 
indicated in paragraph (c)(1)(i) of this section conducted as part of 
the Navy training events, or similar training events, indicated in 
paragraph (c)(1)(ii) of this section:
* * * * *
    (d) Regulations are effective from the date of publication of the 
final rule, through February 17, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for 
the explosive types and activities, or similar explosives and 
activities, listed in Sec.  218.30(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.30(c), provided 
that

[[Page 70700]]

the variation does not result in exceeding the amount of take indicated 
in Sec.  218.31(c).
    25. In Sec.  218.33, paragraph (a)(3)(i)(A) is revised to read as 
follows:


Sec.  218.33  Mitigation.

    (a) * * *
    (3) * * *
    (i) * * *
    (A) This activity shall only occur in the W-155A/B (hot box) area, 
or in similar areas that will not result in marine mammal takes 
exceeding the amount indicated in Sec.  218.31(c).
* * * * *
    26. In Sec.  218.36, paragraph (a) is revised to read as follows:


Sec.  218.36  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.37 and the modification conditions in 
Sec.  218.38.
* * * * *
    27. In Sec.  218.37 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.37  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.36 for the activity identified in Sec.  218.30(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.35 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.33 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.36, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    28. In Sec.  218.100, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised to read as 
follows:


Sec.  218.100  Specified activity and specified geographical area.

* * * * *
    (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:
* * * * *
    29. Section 218.101 is revised to read as follows:


Sec.  218.101  Effective dates.

    Amended regulations are effective from the date of publication of 
the final rule, through August 3, 2015.
    30. In Sec.  218.107 paragraph (a) is revised to read as follows:


Sec.  218.107  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.108 and the modification conditions in 
Sec.  218.109.
* * * * *
    31. In Sec.  218.108 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.108  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.107 for the activity identified in Sec.  
218.100(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.106 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.104 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.107, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    32. In Sec.  218.110, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised to read as 
follows:


Sec.  218.110  Specified activity and specified geographical area.

* * * * *
    (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:
* * * * *
    33. Section 218.111 is revised to read as follows:


Sec.  218.111  Effective dates.

    Amended regulations are effective from the date of publication of 
the final rule, through November 9, 2015.
    34. In Sec.  218.117 paragraph (a) is revised to read as follows:


Sec.  218.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.118 and the modification conditions in 
Sec.  218.119.
* * * * *
    35. In Sec.  218.118 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.118  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.117 for the activity identified in Sec.  
218.110(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.116 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.114 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.117, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    36. Section 218.121 is revised to read as follow:

[[Page 70701]]

Sec.  218.121  Effective dates.

    Amended regulations in this subpart are effective from the date of 
publication of the final rule, through May 4, 2016.
    37. In Sec.  218.127 paragraph (a) is revised to read as follows:


Sec.  218.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.128 and the modification conditions in 
Sec.  218.129.
* * * * *
    38. In Sec.  218.128 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.128  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.127 for the activity identified in Sec.  
218.120(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.126 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.124 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.127, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    39. In Sec.  218.170 paragraphs (c) introductory text and (d) are 
revised, and paragraph (e) is added to read as follows:


Sec.  218.170  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (c) These regulations apply only to the taking of marine mammals by 
the Navy if it occurs incidental to the following activities, or 
similar activities, and sources, or similar sources (estimate amounts 
of use below):
* * * * *
    (d) Amended regulations are effective from the date of publication 
of the final rule, through April 11, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  218.170(c) should the 
amounts (e.g., hours, number of exercises) vary from those estimated in 
Sec.  218.170(c), provided that the variation does not result in 
exceeding the amount of take indicated in Sec.  218.171(c).
    40. In Sec.  218.176 paragraph (a) is revised to read as follows:


Sec.  218.176  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.177 and the modification conditions in 
Sec.  218.178.
* * * * *
    41. In Sec.  218.177 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.177  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.176 for the activity identified in Sec.  
218.170(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.175 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.173 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.176, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *
    42. In Sec.  218.180, paragraphs (c) introductory text, (c)(1) 
introductory text, (c)(2) introductory text, (c)(3) introductory text, 
(c)(4) introductory text, (c)(5) introductory text, and (d) are 
revised, and paragraph (e) is added to read as follows:


Sec.  218.180  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (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 mission activities in territorial waters (estimated amounts 
below):
* * * * *
    (2) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for 
Navy mission activities in non-territorial waters (estimated amounts 
below):
* * * * *
    (3) Ordnance operations, or similar operations, for Navy mission 
activities in territorial waters (estimated amounts below):
* * * * *
    (4) Ordnance operations, or similar operations, for Navy mission 
activities in non-territorial waters (estimated amounts below):
* * * * *
    (5) Projectile firing operations, or similar operations, for Navy 
mission activities in non-territorial waters (estimated amounts below):
* * * * *
    (d) Amended regulations are effective from the date of publication 
of the final rule, through January 21, 2015.
    (e) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  218.180(c) should the 
amounts (e.g., hours, number of exercises) vary from those estimated in 
Sec.  218.180(c), provided that the variation does not result in 
exceeding the amount of take indicated in Sec.  218.181(b).
    43. In Sec.  218.186 paragraph (a) is revised to read as follows:


Sec.  218.186  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.187 and the modification conditions in 
Sec.  218.188.
* * * * *
    44. In Sec.  218.187 paragraphs (a), (a)(1), and (a)(3) are revised 
to read as follows:


Sec.  218.187  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.186 for the activity identified in Sec.  
218.180(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.185 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.183 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.186, were undertaken and will be undertaken

[[Page 70702]]

during the upcoming period of validity of a renewed Letter of 
Authorization.
* * * * *
[FR Doc. 2011-29494 Filed 11-14-11; 8:45 am]
BILLING CODE 3510-22-P