[Federal Register Volume 69, Number 124 (Tuesday, June 29, 2004)]
[Proposed Rules]
[Pages 38873-38876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14718]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 040323099-4099-01; I.D. 072699A]
RIN 0648-AR99


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Navy Operations of Surveillance Towed Array Sensor System 
Low Frequency Active Sonar

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to amend its regulations governing the taking of 
marine mammals incidental to operations of the U.S. Navy's Surveillance 
Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar to 
implement provisions of the National Defense Authorization Act of 2004.

DATES: Comments and information must be received no later than July 29, 
2004.

ADDRESSES: Comments should be addressed to P. Michael Payne, Chief, 
Marine Mammal Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225. Comments also may be submitted by e-mail. The e-
mail mailbox address is [email protected]. Include in the subject line 
of the e-mail the following document identifier: 0648-AR99.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, ext 128.

SUPPLEMENTARY INFORMATION:

Background

SURTASS LFA Sonar Rulemaking History

    On August 12, 1999, NMFS received an application from the U.S. Navy 
requesting authorization under section 101(a)(5)(A) of the MMPA for the 
taking, by harassment, of marine mammals incidental to deploying the 
SURTASS LFA sonar system for training, testing, and routine military 
operations within the world's oceans except Arctic and Antarctic waters 
(see 64 FR 57026, October 22, 1999). NMFS issued a proposed rule on 
March 19, 2001 (66 FR 15375), and a final rule on July 16, 2002, (67 FR 
46712), governing the taking of marine mammals incidental to Navy 
SURTASS LFA sonar operations. That final rule became effective on 
August 15, 2002, and remains in effect until August 15, 2007. Pursuant 
to the final rule, on August 16, 2002, NMFS issued a 1-year Letter of 
Authorization (LOA) to the Navy authorizing the taking of specified 
marine mammals within the specified areas of operation (67 FR 55818; 
August 30, 2002). Subsequently, the Navy applied for and received two 
additional LOAs covering two SURTASS LFA sonar systems from August 16, 
2003, to August 15, 2004 (68 FR 50123; August 20, 2003). Additional 
information regarding NMFS' decision to authorize the taking of marine 
mammals incidental to Navy SURTASS LFA sonar operations is contained in 
the proposed and final rules and the LOAs and is not repeated here.

National Defense Authorization Act

    On November 24, 2003, the President signed into law the National 
Defense Authorization Act of 2004 (NDAA) (Public Law 108-136). Included 
in this law were amendments to the Marine Mammal Protection Act (MMPA; 
16 U.S.C. 1361 et seq.) that apply where a ``military readiness 
activity'' is concerned. Of specific importance for the SURTASS LFA 
sonar take authorization, the NDAA amended section 101(a)(5) of the 
MMPA, which governs the taking of marine mammals incidental to 
otherwise lawful activities.
    Prior to the NDAA amendments, section 101(a)(5)(A) of the MMPA 
directed the Secretary of Commerce 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 the 
Secretary finds that the total of such taking will have a negligible 
impact on the species or stock and will not have an unmitigable adverse 
impact on the availability of the species or stock of marine mammal for 
subsistence uses and regulations are issued. The NDAA amended section 
101(a)(5) of the MMPA to exempt military readiness activities from the 
``specified geographical region'' and ``small numbers'' requirements. 
The term ``military readiness activity'' is defined in Public Law 107-
314 (16 U.S.C. 703 note) to include all training and operations of the 
Armed Forces that relate to combat; and the adequate and realistic 
testing of military equipment, vehicles, weapons and sensors for proper 
operation and suitability for combat use. The term

[[Page 38874]]

expressly does not include the routine operation of installation 
operating support functions, such as military offices, military 
exchanges, commissaries, water treatment facilities, storage 
facilities, schools, housing, motor pools, laundries, morale, welfare 
and recreation activities, shops, and mess halls; the operation of 
industrial activities; or the construction or demolition of facilities 
used for a military readiness activity.

Proposed Action

    NMFS and the Navy have determined that the Navy's SURTASS LFA sonar 
testing and training operations that are the subject of NMFS' July 16, 
2002, final rule constitute a military readiness activity because those 
activities constitute ``training and operations of the Armed Forces 
that relate to combat'' and constitute ``adequate and realistic testing 
of military equipment, vehicles, weapons and sensors for proper 
operation and suitability for combat use.'' Refer also to 67 FR 46712 
(``Summary of Request'') and 67 FR 46716-46717 (Comment and Response 
AC1). Accordingly, NMFS proposes to amend its rule and regulations 
governing the taking of marine mammals incidental to SURTASS LFA sonar 
testing and training operations to remove reference, in 50 CFR part 
216, subpart Q, to ``small numbers'' and ``specified geographical 
region,'' as those MMPA 101(a)(5)(A) terms no longer apply to the 
SURTASS LFA sonar testing and training operations covered by the final 
rule. It is necessary to amend the final rule for SURTASS LFA sonar 
because that rule no longer reflects the current requirements of the 
MMPA. Specifically, NMFS proposes to amend 50 CFR 216.180(a); 
216.184(e)(2) (technical correction only); 216.187(c)(2) and (c)(4); 
216.188(b)(2) and (c); and 216.189(a).
    Although the MMPA no longer requires the identification of a 
``specified geographical region'' in which military readiness 
activities will occur, information regarding where the Navy will 
operate SURTASS LFA sonar remains necessary for NMFS to make its 
required negligible impact determination and to prescribe appropriate 
mitigation and monitoring. In that regard, this proposed amendment 
would only make it clear that identification of a ``specified 
geographical region'' is no longer a statutory requirement for SURTASS 
LFA sonar operations covered under the final rule.
    Similarly, although the ``small numbers'' requirement no longer 
applies to military readiness activities, information regarding 
estimates of anticipated take will remain necessary for NMFS' 
negligible impact determinations.

Information Solicited

    NMFS requests that interested persons submit comments, information, 
and suggestions concerning this proposed action. Commenters are 
requested to restrict comments and recommendations to the scope of this 
action. Comments on issues beyond the scope of this proposed rule will 
not be considered in developing a final determination on this action.

Determinations

    This proposed rule amendment would not alter the determination that 
SURTASS LFA sonar operations would have a negligible impact on the 
affected species or stocks of marine mammals made by NMFS in its 
SURTASS LFA sonar final rule (67 FR 46712, July 16, 2002). Nor would it 
change NMFS' determination that the activity covered under the final 
rule will not have an unmitigable adverse impact on subsistence uses. 
These determinations would remain the same because the Navy's activity 
covered under the final rule has not changed. Under the proposed rule 
amendment the Navy must still apply for LOAs, and NMFS must still find 
that the total taking by the Navy's proposed activity as a whole will 
have no more than a negligible impact and will not have an unmitigable 
adverse impact on the availability of marine mammal species or stocks 
for subsistence uses.

National Environmental Policy Act (NEPA)

    This proposed amendment does not change the activity that was 
analyzed in the Navy's Final Environmental Impact Statement on SURTASS 
LFA sonar, approved by the Deputy Assistant Secretary of the Navy 
(Environment) in the SURTASS LFA sonar Record of Decision (67 FR 48145; 
July 23, 2002) and adopted by NMFS (67 FR 46712, July 16, 2002).

Endangered Species Act (ESA)

    This proposed amendment does not change the activity whose effects 
were analyzed in NMFS' biological opinions on SURTASS LFA sonar.

Classification

    This action has been determined to be significant for purposes of 
Executive Order 12866.
    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 action, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act. This proposed rule removes some 
of the regulatory requirements applicable to the Navy. This proposed 
rule would affect only the U.S. Navy which is not a small entity. There 
may be a few small entities that provide services related to the Navy's 
SURTASS LFA sonar activities and the requirements under NMFS' original 
rule, but this proposed rule would not affect those activities as they 
would all continue to operate in the same manner. As a result no 
regulatory flexibility analysis was prepared.

List of Subjects in 50 CFR Part 216

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

    Dated: June 24, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons discussed 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.  216.180, the section heading and paragraph (a) are 
revised to read as follows:


Sec.  216.180  Specified activity.

* * * * *
    (a) Subject to the limitations in Sec.  216.184(e), the incidental 
taking by harassment may be authorized in the following areas as 
specified in a Letter of Authorization (see also Figure 1):
    (1) North Atlantic Ocean:
    (i) Western North Atlantic, from 35 deg. N. lat. north to a line 
between Cape Chidley, Labrador northeast to Nuuk, Greenland, and from 
the North American continent east to 41 deg. W. long. (Area A); and
    (ii) Eastern North Atlantic, from 35 deg. N. lat. north to 72 deg. 
N. lat. and 41 deg. W. long. east to the European continent (Area B);
    (2) Mediterranean Sea (Area C);
    (3) North Pacific Ocean:
    (i) Western North Pacific, from 20 deg. N. lat. north to the 
Aleutian Island chain

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and the Sea of Okhotsk, and from the Asian continent east to 175 deg. 
W. long. (Area D); and
    (ii) Eastern North Pacific, from 42 deg. N. lat. north to Alaska 
and the south side of the Aleutian Islands and from the North American 
continent west to 175 deg. W. long. (Area E);
    (4) Central Atlantic Ocean:
    (i) Eastern Central Atlantic, from 7 deg. S. lat. north to 35 deg. 
N. lat. and from the African continent west to 40 deg. W. long. between 
5 deg. N. lat. and 35 deg. N. lat., to 30 deg. W. long. between 0 deg. 
lat. and 5 deg. N. lat., and to 20 deg. W. long. between 7 deg. S. lat. 
and 0 deg. lat. (Area F); and
    (ii) Western Central Atlantic, from 5 deg. N. lat. north to 35 deg. 
N. lat., and from the American continent, east to 40 deg. W. long. 
(Area G);
    (5) Indian Ocean:
    (i) Eastern Indian Ocean, from 60 deg. S. lat. north to the Bay of 
Bengal, and Asian continent, and from 80 deg. E. long. east to the 
Asian continent, the Sunda Islands and Australia and to 150 deg. E. 
long. (Area H1); and
    (ii) Western Indian Ocean, from 60 deg. S. lat. north to the 
Arabian Sea, and from 30 deg. E. long. east to 80 deg. E. long. (Area 
H2);
    (6) Central Pacific Ocean:
    (i) Western Central Pacific, from 175 deg. W. long., east to the 
Asian continent and Indonesia, and from 10 deg. S. lat., north to 20 
deg. N. lat. (Area I);
    (ii) Central Pacific, from 10 deg. S. lat., north to 42 deg. N. 
lat. between 175 deg. W. long. and 130 deg. W. long. (Area J1); and
    (iii) Eastern Central Pacific, from 5 deg. S. lat. north along the 
American coastline to 42 deg. N. lat., from 130 deg. W. long. along 10 
deg. S. lat. to 105 deg. W. long., from 10 deg. S. lat. along 105 deg. 
W. long. to 5 deg. S. lat., from 105 deg. W. long. along 5 deg. S. lat. 
to the South American coastline, from 130 deg. W. long. along 42 deg. 
N. lat. to the North American coastline and from 42 deg. N. lat. to 10 
deg. S. lat. along the 130 deg. W. long. line (Area J2);
    (7) South Pacific Ocean:
    (i) Western South Pacific from 60 deg. S. lat. north to 10 deg. S. 
lat. and from the east coast of Australia in the north and 150 deg. E. 
long. south of Australia east to 105 deg. W. long. (Area K); and
    (ii) Eastern South Pacific from 60 deg. S. lat. north to 5 deg. S. 
lat. and from the 105 deg. W. long. east to the South American 
coastline in the north and 70 deg. W. long. in the south (Area L);
    (8) South Atlantic Ocean:
    (i) Western South Atlantic, from 60 deg. S. lat. north to 5 deg. N. 
lat. in the area west of 30 deg. W. long., and from 60 deg. S. lat. 
north to 0 deg. lat. in the area east of 30 deg. W. long. and from the 
South American continent east to 30 deg. W. long. between 0 deg. And 5 
deg. N. lat. and east to 20 deg. W. long. between 0 deg. and 60 deg. S. 
lat. (Area M); and
    (ii) East South Atlantic from 60 deg. S. lat. north to 7 deg. S. 
lat. and from 20 deg. W. long. east to the African coastline in the 
north and 30 deg. E. long. south of the continent (Area N).
* * * * *
    3. In 216.184, paragraph (e)(2) is revised to read as follows:


Sec.  216.184  Mitigation.

* * * * *
    (e) * * *
    (2) Within any offshore area that has been designated 
asbiologically important for marine mammals under Sec.  216.184(f), 
during the biologically important season for that particular area;
* * * * *
    4. In Sec.  216.187, paragraphs (c)(1), (c)(2) and (c)(4) are 
revised to read as follows:


Sec.  216.187  Applications for Letters of Authorization.

* * * * *
    (c) * * *
    (1) The date(s), duration, and the area(s) where the vessel's 
activity will occur;
    (2) The species and/or stock(s) of marine mammals likely to be 
found within each area;
* * * * *
    (4) The estimated percentage of marine mammal species/stocks 
potentially affected in each area for the 12-month period of 
effectiveness of the Letter of Authorization; and
* * * * *
    5. In Sec.  216.188, paragraphs (b)(2) and (c) are revised to read 
as follows:


Sec.  216.188  Letters of Authorization.

* * * * *
    (b) * * *
    (2) The area(s) where the vessel's activities will occur;
* * * * *
    (c) Issuance of each Letter of Authorization will be based on a 
determination that the total number of marine mammals taken by the 
activity specified in Sec.  216.180 as a whole will have no more than a 
negligible impact on the species or stock of affected marine mammal(s), 
and that the total taking will not have an unmitigable adverse impact 
on the availability of species or stocks of marine mammals for taking 
for subsistence uses.
* * * * *
    6. In Sec.  216.189, paragraph (a)(5) is revised and a new graphic 
is added to the end of the section to read as follows:


Sec.  216.189  Renewal of Letters of Authorization.

* * * * *
    (a) * * *
    (5) A determination by NMFS that the total number of marine mammals 
taken by the activity specified in Sec.  216.180 as a whole will have 
no more than a negligible impact on the species or stock of affected 
marine mammal(s), and that the total taking will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.
* * * * *
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[FR Doc. 04-14718 Filed 6-28-04; 8:45 am]
BILLING CODE 3510-22-C