[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Notices]
[Pages 66245-66246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27788]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG694


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Atlantic Fleet Training and Testing Study Area

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

ACTION: Notice; receipt of application and request for Letters of 
Authorization extension; request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) to amend 
NMFS' Marine Mammal Protection Act (MMPA) regulations authorizing the 
take of marine mammals incidental to Navy training and testing 
activities conducted in the Atlantic Fleet Training and Testing (AFTT) 
Study Area from November 2018 to November 2023 to cover seven years of 
the Navy's activities, instead of five. Section 316 of the John S. 
McCain National Defense Authorization Act for Fiscal Year 2019 (2019 
NDAA), signed into law on August 13, 2018, amended the MMPA to extend 
the maximum period for MMPA incidental take regulations under section 
101(a)(5)(A) from five to seven years for military readiness 
activities. The Navy's activities qualify as military readiness 
activities pursuant to the MMPA, as amended by the NDAA for Fiscal Year 
2004. The Navy proposes no changes to their specified activities, 
mitigation measures, monitoring, or reporting and requests that NMFS 
amend the final rule issued on November 14, 2018, to authorize 
incidental take of marine mammals for the two additional years now 
allowed under the statute. NMFS invites the public to provide 
information, suggestions, and comments on the Navy's application.

DATES: Comments and information must be received no later than January 
25, 2019.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and 
electronic comments should be sent to <a href="/cdn-cgi/l/email-protection#347d60641a645d5a5d555f745a5b55551a535b42"><span class="__cf_email__" data-cfemail="672e333749370e090e060c270908060649000811">[email protected]</span></a>.
    Instructions: NMFS is not responsible for information or comments 
sent by any other method, to any other address or individual, or 
received after the end of the comment period. Information and comments 
received electronically, including all attachments, must not exceed a 
25-megabyte file size. Attachments to electronic comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
information and comments received are a part of the public record and 
will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information (e.g., name, 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected 
Resources, NMFS, (301) 427-8401. An electronic copy of the Navy's 
application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these 
documents, please call the contact listed above.

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 (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An incidental take 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 (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring, and reporting of such takings 
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 MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal. The 2004 NDAA (Public Law 108-136) amended the MMPA to remove 
the ``small numbers'' and ``specified geographical region'' limitations 
for military readiness activities. It also amended the definition of 
``harassment'' as it applies to military readiness activities 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

[[Page 66246]]

are abandoned or significantly altered (Level B harassment).
    On August 13, 2018, the 2019 NDAA (Public Law 115-232) amended the 
MMPA to allow incidental take regulations for military readiness 
activities to be issued for up to seven years.

Summary of Request

    On November 16, 2018, NMFS received an adequate and complete 
application from the Navy requesting an amendment of the regulations 
published on November 14, 2018, that authorize the take of marine 
mammals incidental to the Navy's training and testing activities in the 
AFTT Study Area (83 FR 57076). Specifically, the activities include 
training and testing (all categorized as military readiness activities) 
including the use of active acoustic sonar systems and other 
transducers, in-water detonations, air guns, construction activities 
involving pile removal and installation, and the operation of a fleet 
of vessels throughout the AFTT Study Area. These activities may result 
in the incidental take of marine mammals in the form of Level B 
harassment (behavioral disruption or temporary hearing impairment), 
Level A harassment (permanent hearing impairment or tissue damage), or 
serious injury or mortality in a very small number of cases. The 
requested amendment would change the expiration date of the regulations 
from November 13, 2023 to November 13, 2025, allowing for seven total 
years of validity, as allowed under the MMPA as recently amended by the 
2019 NDAA.

Description of Amendment

    The Navy proposes that NMFS amend the existing AFTT regulations and 
associated Letters of Authorization (LOAs) such that they would cover 
incidental take caused by seven years of training and testing 
activities instead of five, extending the expiration date from November 
13, 2023 to November 13, 2025. The amendment would be conducted through 
a proposed and final rulemaking, consistent with the requirements of 
section 101(a)(5)(A). The Navy has not proposed any changes to the 
nature of the specified activities and, therefore, the boundaries of 
the AFTT Study Area, the training and testing activities (e.g., 
equipment and sources used, exercises conducted), and the mitigation, 
monitoring, and reporting measures are identical to those described and 
analyzed in the existing AFTT regulations published on November 14, 
2018 (83 FR 57076).
    The only changes contemplated in the extension of the regulations 
are those necessary to identify the appropriate type and amount of 
incidental take to authorize in the two additional years that the 
amended regulations would cover, and determine whether the incidental 
take would have a negligible impact on the affected species and stocks.
    The current AFTT rule authorizes three serious injuries or 
mortalities from vessel strike. The Navy's request for an amendment 
includes a revised vessel strike analysis encompassing seven years of 
activities versus the five years addressed in the analysis supporting 
the mortality estimate in the current LOAs. Based on the revised 
analysis, the Navy requests one additional large whale mortality 
bringing the total from three vessel strikes over five years to four 
vessel strikes over seven years. The large whale stocks that are 
proposed to be lethally taken by vessel strike are the same as those 
included in the current AFTT rule. Please see Chapter 6, Section 6.2 of 
the Navy's application for a full description of the incidental take by 
vessel strike.
    Regarding the quantification of expected takes from acoustic and 
explosive sources (by Level A and Level B harassment, as well as 
mortality resulting from exposure to explosives), the number of takes 
are based directly on the level of activities (days, hours, counts, 
etc., of different activities and events) in a given year. In the 
existing AFTT rule, the Navy bases their take estimates across the 
five-year rule on conducting three years of a nominal (average) level 
of activity and two years of a maximum level of activity. For the 
amended seven year rule, the Navy proposes to add one additional 
nominal year and one additional maximum year to determine the predicted 
take numbers. Specifically, as in the current rule, the Navy proposes 
to use the maximum annual level to calculate annual takes (which will 
remain identical to the current rule), and the sum of all years (four 
nominal and three maximum, in the case of the new amended rule) to 
calculate the seven-year totals. Please see Chapter 6, Section 6.1 of 
the Navy's application for a description of the proposed take from 
acoustic and explosive sources.
    As noted above, the proposed amendment of the rule would include 
mitigation, monitoring, and reporting measures that are identical to 
those included in the current final rule (83 FR 57076, November 14, 
2018). In summary, mitigation would include: (1) the use of Lookouts to 
observe for biological resources and communicate the need for 
mitigation implementation; (2) powerdowns, shutdowns, and delay of 
starts to avoid exposure of marine mammals to high levels of sound or 
explosive blasts more likely to result in injury or more serious 
behavioral disruption; (3) limiting the use of active sonar or 
explosives in certain biologically important areas to reduce the 
probability or severity of impacts when they are more likely to 
contribute to fitness impacts, and (4) broadcasting awareness 
notification messages to all of the vessels in an area to reduce the 
likelihood of vessel strike. Please see Chapter 11 of the Navy's 
application for a full description of the proposed mitigation, which is 
identical to that required under the existing rule.
    The Navy proposes to continue forward the implementation of the 
robust Integrated Comprehensive Monitoring Program and Strategic 
Planning Process outlined in the current regulations. The Navy's 
monitoring strategy, currently required by the AFTT regulations, is 
well-designed to work across Navy ranges to help better understand the 
impacts of the Navy's activities on marine mammals and their habitat by 
focusing on learning more about marine mammal occurrence in different 
areas and exposure to Navy stressors, marine mammal responses to 
different sound sources, and the consequences of those exposures and 
responses on marine mammal populations. Similarly, the proposed amended 
regulations would include identical adaptive management provisions and 
reporting requirements as the existing regulations. Please refer to 
Chapter 13 of the Navy's application for full details on the monitoring 
and reporting proposed by the Navy.

Information Solicited

    Interested persons may submit information, suggestions, and 
comments concerning the Navy's request (see ADDRESSES). NMFS will 
consider all information, suggestions, and comments related to the 
request during the development of proposed regulations governing the 
incidental taking of marine mammals by the Navy, if appropriate.

    Dated: December 18, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-27788 Filed 12-21-18; 8:45 am]
 BILLING CODE 3510-22-P


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