[Federal Register Volume 76, Number 26 (Tuesday, February 8, 2011)]
[Rules and Regulations]
[Pages 6699-6701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2640]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 110121052-1045-02]
RIN 0648-BA67
Taking and Importing Marine Mammals: U.S. Navy Training in the
Hawaii Range Complex; U.S. Navy Training in the Southern California
Range Complex; and U.S. Navy's Atlantic Fleet Active Sonar Training
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments and issuance of
letters of authorization.
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SUMMARY: In January 2009, pursuant to the Marine Mammal Protection Act
(MMPA), NMFS issued three 5-year final regulations to govern the
unintentional taking of marine mammals incidental to Navy training and
associated activities conducted in the Hawaii Range Complex (HRC), the
Southern California Range Complex (SOCAL Range Complex), and the
Atlantic Fleet Active Sonar Training (AFAST) Study Area. These
regulations, which allow for the issuance of ``Letters of
Authorization'' (LOAs) for the incidental take of marine mammals during
the specified activities and described timeframes, prescribe the
permissible methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat, as well as requirements pertaining to the monitoring and
reporting of such taking.
These rules quantify the specific amounts of individual sound
source use that will occur over the course of the 5-year rules, and
indicate that marine mammal take may only be authorized in an LOA
incidental to the source types and amounts described. Specifically, no
language was initially included expressly allowing for deviation from
those precise levels of source use if the total number of takes remain
within the analyzed and authorized limits. Since the issuance of the
2009 rules, the Navy realized that their evolving training programs,
which are linked to real world events, necessitate greater flexibility
in the types and amounts of sound sources that they use. In response to
this need, when the Navy requested incidental take authorizations for
other areas (e.g., the Mariana Islands and the Northwest Training Range
Complexes), NMFS included language explicitly allowing for greater
flexibility. NMFS has, through this interim final rule, amended the
HRC, SOCAL Range Complex, and AFAST regulations to explicitly allow for
greater flexibility in the types and amount of sound sources that they
use.
NMFS has issued new LOAs for each of these actions, which supersede
those issued in January 2011, and which authorize the Navy to take
marine mammals incidental to their planned training in 2011, and
reflect the greater flexibility addressed in this amendment. The take
authorized in these LOAs does not exceed that analyzed and allowed by
the original 2009 final rules.
DATES: Effective on February 7, 2011. Comments and information must be
received no later than March 10, 2011.
ADDRESSES: You may submit comments, identified by 0648-BA67, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://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 http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
A copy of the Navy's applications, NMFS' Records of Decision
(RODs), NMFS' proposed and final rules and subsequent LOAs, and other
documents cited herein may be obtained by writing to Michael Payne,
Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact
listed here (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected
Resources, NMFS, (301) 713-2289, ext. 166.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) during periods of not more than five consecutive years each if
certain findings are made and regulations are issued or, if the taking
is limited to harassment and of no more than 1 year, to issue a notice
of proposed authorization for public review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and if the permissible methods of taking
and requirements pertaining to the mitigation, monitoring and reporting
of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:
An impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
The National Defense Authorization Act (NDAA) (Pub. L. 108-136)
removed the ``small numbers'' and ``specified geographical region''
limitations, and
[[Page 6700]]
amended the definition of ``harassment'' as it applies to a ``military
readiness activity'' to read as follows (section 3(18)(B) of the MMPA):
(i) Any act that injures or has the significant potential to
injure a marine mammal or marine mammal stock in the wild [Level A
Harassment]; or (ii) any act that disturbs or is likely to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of natural behavioral patterns, including, but not
limited to, migration, surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral patterns are abandoned
or significantly altered [Level B Harassment].
Summary of the Modification
On January 12, 2009, NMFS issued 5-year regulations governing the
taking of marine mammals incidental to training activities conducted in
HRC (74 FR 1455). On January 21, 2009, NMFS issued 5-year regulations
governing the taking of marine mammals incidental to training,
maintenance, and research, development, testing and evaluation (RDT&E)
activities conducted in the SOCAL Range Complex (74 FR 3881). On
January 27, 2009, NMFS issued 5-year regulations governing the taking
of marine mammals incidental to training, maintenance, and RDT&E
activities conducted in the AFAST Study Area (74 FR 4843).
The HRC, SOCAL Range Complex, and AFAST regulations allow for the
issuance of LOAs that authorize the incidental take of marine mammals
during the specified activities and described timeframes, prescribe the
permissible methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat, as well as requirements pertaining to the monitoring and
reporting of such taking. These regulations were drafted in such a way
that the Navy's specified activities were strictly quantified by the
amounts of each type of sound source utilized (e.g., hours, numbers of
sonobuoys or explosive exercises) over the course of the 5-year
regulations.
After the issuance of the 2009 rules, the Navy realized that their
evolving training programs, which are linked to real world events,
necessitate greater flexibility in both the types and amounts of sound
sources that they use.
Regarding the types of sources for which incidental take is
authorized, in some cases the Navy's HRC, SOCAL Range Complex, and
AFAST rules identified the most representative or highest power source
to represent a group of known similar sources. Additionally, the Navy
regularly modifies or develops new technologies, which often affect the
way that sound sources are similar to, but not exactly the same as,
existing sources. In this modification to these three final rules, we
have increased the flexibility of the Navy's takings prescriptions by
inserting language that will explicitly allow for authorization of take
incidental to the previously identified specified sound sources or
``similar sources'' (with similar characteristics that do not change
any of the underlying analyses) and, in the case of HRC, by adding one
specific source type to the authorization, provided that the
implementation of these changes in annual LOAs does not result in
exceeding the incidental take analyzed and identified in the final
rules.
Regarding amounts of sound source use, the three regulations only
allow for the authorization of take incidental to a 5-yr maximum amount
of use for each specific sound source, even though in most cases our
effects analyses do not differentiate the impacts from the majority of
the different types of sources. Specifically, although some sonar
sources are louder or generate more acoustic energy in a given amount
of time, which results in more marine mammal takes, we authorize total
takes but do not differentiate between the individual takes that result
from one source versus another. In this modification to these three
final rules, we increase flexibility by including language that allows
for inter-annual variability in the amount of source use identified in
each annual LOA (i.e., one year the Navy could use a lot of one source,
and little of another, and the next year those amounts could be
reversed), provided it does not result in exceeding the total level of
incidental take analyzed and identified in the final rules, and the
taking does not result in more than a negligible impact on affected
species or stocks. Language of this nature was included in final
regulations governing the authorization of take incidental to the
Navy's training activities in the Mariana Islands and Northwest
Training Range Complexes, which were issued in 2010.
As indicated above, these regulatory amendments do not change the
analyses of marine mammal impacts conducted in the original final
rules. This fact is assured and illustrated through: (1) The Navy's
annual submission of LOA applications for each area, which include take
estimates specific to the upcoming the year's activities (i.e., sound
source use); (2) their subsequent annual submission of classified
exercise reports, which accurately report the specific amount of use
for each sound source over the course of the previous year; and (3)
their annual submission of monitoring reports, which describe observed
responses of marine mammals to Navy sound sources collected via visual,
passive acoustic, or tagging methods. Together, these submissions allow
NMFS to accurately predict and track the Navy's activities to ensure
that both NMFS' annual LOAs, and the impacts of the Navy's activities
on marine mammals, remain within what is analyzed and allowed by the
HRC, SOCAL, and AFAST 5-year regulations.
Classification
Pursuant to the procedures established to implement section 6 of
Executive Order 12866, the Office of Management and Budget has
determined that this final rule is not significant.
Pursuant to 5 U.S.C. 553, there is good cause to waive prior notice
and an opportunity for public comment on this action, as notice and
comment would be impracticable and contrary to the public interest. The
2009 AFAST, SOCAL, and HRC Final Rules established a framework whereby
a total number of marine mammals, by species, could be taken incidental
to certain military readiness activities during the 5-year period.
These rules also enumerated levels of activity for each individual
sound source, but did not include language expressly authorizing
deviation from those precise levels if the total number of takes
remained within authorized limits. Although the Navy used the best
available information and professional judgment to estimate the level
of individual activities planned for the ranges, evolving unforeseen
real world requirements, and the evolving training and readiness
tactics and procedures needed to meet those requirements, necessitate
annual flexibility to offset increases in some activities from
decreases in others. The Navy requires the flexibility to increase the
number of hours of use for specific sound sources, and these
regulations modify the AFAST, SOCAL, and HRC Final Rules to insert
language codifying that flexibility.
The Navy has a compelling need to continue military readiness and
testing activities with the specific sound sources at issue without
interruption. In 10 U.S.C. 5062, Congress mandated that the Chief of
Naval Operations (CNO) man, organize, train, and equip all Naval forces
for combat. To accomplish this, naval commands adhere to the Fleet
Response Training Plan (FRTP). The FRTP is an arduous sequential
training cycle in which unit level training (ULT) and certification is
followed by a series of major exercises
[[Page 6701]]
that bring together various components so they have the opportunity to
train and practice as an integrated whole resulting in Major Combat
Operation certification. This certification includes critically
important anti-submarine warfare that requires training on the use and
deployment of the described systems. Interruption or reduction of the
Navy's ability to utilize specific sound sources during this period
would significantly disrupt vital sequential training, certification,
and testing activities essential to our national security and the
safety of our armed forces. Therefore, allowing a public comment period
for these rules is impracticable and contrary to the public's interest.
Because the requested modifications would not increase the total
level of takes authorized in the 2009 Final Rules, the modifications
would result in no increased impact to protected species.
For the same reasons, there is good cause under 5 U.S.C. 553 to
waive the 30-day delay in effectiveness.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq. are inapplicable.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
Dated: January 31, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 216 is amended
as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. In Sec. 216.170, paragraphs (c) introductory text, (c)(1)
introductory text, and (c)(2) introductory text are revised, and
paragraphs (c)(1)(vii), (c)(2)(ii)(H), and (d) are added to read as
follows:
Sec. 216.170 Specified activity and specified geographical region.
* * * * *
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities:
(1) The use of the following mid-frequency active sonar (MFAS) and
high frequency active sonar (HFAS) sources, or similar sources, for
Navy training activities (estimated amounts below):
* * * * *
(vii) AN/SSQ-125 (AEER sonar sonobuoy)--4800 sonobuoys (total, of
IEER/EER and AEER combined) over the course of 5 years (an average of
960 per year)
(2) The detonation of the underwater explosives indicated in
paragraph (c)(2)(i) of this section, or similar explosives, conducted
as part of the training exercises indicated in paragraph (c)(2)(ii) of
this section:
(ii) * * *
(H) EER/IEER--4800 sonobuoys (total, of EER/IEER and AEER combined)
over the course of 5 years (an average of 960 sonobuoy deployments per
year)
(d) The taking of marine mammals may be authorized in an LOA for
the activities and sources listed in Sec. 216.170(c) should the
amounts (e.g., hours, dips, or number of exercises) vary from those
estimated in Sec. 216.170(c), provided that the variation does not
result in exceeding the amount of take indicated in Sec. 216.172(c).
0
3. In Sec. 216.171, paragraph (a) is revised to read as follows:
Sec. 216.171 Effective dates and definitions.
(a) Amended regulations are effective February 4, 2011, through
January 5, 2014.
* * * * *
0
4. In Sec. 216.240, paragraph (c) introductory text is revised, and
paragraph (d) is added to read as follows:
Sec. 216.240 Specified activity and specified geographical region
* * * * *
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the use of the following mid-frequency active
sonar (MFAS) sources, high frequency active sonar (HFAS) sources,
explosive sonobuoys, or similar sources, for Navy training,
maintenance, or research, development, testing, and evaluation (RDT&E)
(estimated amounts below):
* * * * *
(d) The taking of marine mammals may be authorized in an LOA for
the activities and sources listed in Sec. 216.240(c) should the
amounts (e.g., hours, dips, or number of exercises) vary from those
estimated in Sec. 216.240(c), provided that the variation does not
result in exceeding the amount of take indicated in Sec. 216.242(c).
0
5. In Sec. 216.241, paragraph (a) is revised to read as follows:
Sec. 216.241 Effective dates and definitions.
(a) Amended regulations are effective February 4, 2011, through
January 22, 2014.
* * * * *
0
5. In Sec. 216.270, paragraphs (c) introductory text, (c)(1)
introductory text, and (c)(2) introductory text are revised, and
paragraph (d) is added to read as follows:
Sec. 216.270 Specified activity and specified geographical region.
* * * * *
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities:
(1) The use of the following mid-frequency active sonar (MFAS) and
high frequency active sonar (HFAS) sources, or similar sources, for
Navy training, maintenance, or research, development, testing, and
evaluation (RDT&E) (estimated amounts below):
* * * * *
(2) The detonation of the underwater explosives indicated in
paragraph (c)(2)(i) of this section, or similar explosives, conducted
as part of the training exercises indicated in paragraph (c)(2)(ii) of
this section:
* * * * *
(d) The taking of marine mammals may be authorized in an LOA for
the activities and sources listed in Sec. 216.270(c) should the
amounts (e.g., hours, dips, or number of exercises) vary from those
estimated in Sec. 216.270(c), provided that the variation does not
result in exceeding the amount of take indicated in Sec. 216.272(c).
0
6. In Sec. 216.271, paragraph (a) is revised to read as follows:
Sec. 216.271 Effective dates and definitions.
(a) Amended regulations are effective February 4, 2011, through
January 14, 2014.
* * * * *
[FR Doc. 2011-2640 Filed 2-7-11; 8:45 am]
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