[Federal Register Volume 75, Number 16 (Tuesday, January 26, 2010)]
[Notices]
[Pages 4047-4049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1491]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-AW91


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Southern California Range Complex

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

ACTION: Notice of issuance of a letter of authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, and implementing regulations, notice is hereby given that NMFS 
has issued a letter of authorization (LOA) to the U.S. Navy (Navy) to 
take marine mammals incidental to Navy training, maintenance, and 
research, development, testing, and evaluation (RDT&E) activities to be 
conducted within the Southern California (SOCAL) Range Complex, which 
extends south and southwest off the southern California coast, for the 
period of January 22, 2010, through January 21, 2011.

DATES: This Authorization is effective from January 22, 2010, through 
January 21, 2011.

ADDRESSES: The LOA and supporting documentation may be obtained by 
writing to P. Michael Payne, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910, or by telephoning one of 
the contacts listed here.

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

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(A) of the MMPA (16 U.S.C. 
1361 et seq.) directs NMFS to allow, upon request, the incidental 
taking of marine mammals by U.S. citizens who engage in a specified 
activity (other than commercial fishing), if certain findings are made 
by NMFS and regulations are issued. Under the MMPA, the term ``take'' 
means to harass, hunt, capture, or kill or to attempt to harass, hunt, 
capture, or kill marine mammals.
    Regulations governing the taking of marine mammals by the Navy 
incidental to training, maintenance, and RDT&E in the SOCAL Range 
Complex became effective on January 14, 2009 (74 FR 3881, January 21, 
2009), and remain in effect through January 13, 2014. For detailed 
information on this action, please refer to that document. These 
regulations include mitigation, monitoring, and reporting requirements 
and establish a framework to authorize incidental take through the 
issuance of LOAs.

Summary of Request

    On November 3, 2009, NMFS received a request from the Navy for a 
renewal of an LOA issued on January 22, 2009, for the taking of marine 
mammals incidental to training and research activities conducted within 
the SOCAL Range Complex under regulations issued on January 14, 2009 
(74 FR 3881, January 21, 2009). NMFS received an addendum to the 
request on December

[[Page 4048]]

28, 2009. The Navy has complied with the measures required in 50 CFR 
216.274 & 216.275, as well as the associated 2009 LOA, and submitted 
the reports and other documentation required in the final rule and the 
2009 LOA.

Summary of Activity under the 2009 LOA

    As described in the Navy's exercise reports (both classified and 
unclassified), in 2009, the training activities conducted by the Navy 
were within the scope and amounts contemplated by the final rule and 
authorized by the 2009 LOA. In fact, the amount of sonar use in 2009 
was less than planned such that a recalculation of marine mammal takes 
suggests a reduction of 34% below the number estimated in the 2009 LOA.

Planned Activities for 2010

    In 2010, the Navy expects to conduct the same type and general 
amount of training identified in the final rule and 2009 LOA, with a 
few increases in three sound source types.
    Following are the modifications:
     The Navy anticipates an increase in the use of Extended 
Echo Ranging (EER)/Improved Extended Echo Ranging (IEER) SSQ-110A 
sonobuoys. Use will likely increase from 54 to 1675 sonobuoys annually.
     The Navy anticipates an increase in the use of Advanced 
Echo Ranging (AEER) SSQ-125 sonobuoys. Use will likely increase from 54 
to 1150 sonobuoys annually.
     The Navy anticipates an increase in the use of the AN/SLQ-
25 NIXIE towed countermeasure. Use will likely increase from 227 to 
1600 hours annually.
    While these modifications to Navy training are not expected to 
change the nature of the anticipated impacts to marine mammals, they 
are expected to result in minor increases in the number of individuals 
taken. However, when these increases are contemplated in light of the 
overall underuse of sonar proposed and actually used in 2009 (and the 
likelihood of the same in 2010), NMFS has determined the anticipated 
takes in 2010 will not effect marine mammals in a manner not previously 
considered or analyzed in NMFS' final rule and other associated 
documents.

Estimated Impacts for 2010

    The Navy recalculated the estimated number of marine mammal takes 
based on the projected modifications in IEER, AEER, and NIXIE use (see 
the Navy's addendum to the LOA renewal application) and the result was 
a projected increase of between 0 and 111 takes annually for most 
species, with higher increases (590 and 293, respectively) for the very 
abundant California sea lion and short beaked common dolphin. These 
Navy estimates were based on projected increases in IEER, AEER, and 
NIXIE use and the original planned amount of use of the other sound 
sources. However, when these projected increases are balanced against 
the fact that the Navy used substantively fewer hours of other sonar 
sources in 2009, the authorization of the same amount of take for 2010 
as was authorized in 2009 is appropriate. The anticipated training 
modifications will not affect marine mammals in a manner not previously 
considered or analyzed in NMFS' final rule and other associated 
documents.

Summary of Monitoring, Reporting, and other requirements under the 2009 
LOA

Annual Exercise Reports

    The Navy submitted their classified and unclassified 2009 exercise 
reports within the required timeframes and the unclassified report is 
posted on NMFS website: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. NMFS has reviewed both reports and they contain the 
information required by the 2009 LOA. The reports indicate the amounts 
of different types of training that occurred from January 8, 2009, 
through August 1, 2009, and estimate the amounts of training occurring 
from August 2, 2009, through January 7, 2010. As mentioned above, the 
amount of sonar use in SOCAL in 2009 was less than planned (e.g., 2 of 
4 planned COMPTUEXs and 2 of 4 planned JTFEXs (both major exercises) 
were conducted) such that a recalculation of marine mammal takes 
suggests a reduction of 34% below the number estimated in the 2009 LOA.
    The reports also list specific information gathered when marine 
mammals were detected by Navy watchstanders, such as how far an animal 
was from the vessel, whether sonar was in use, and whether it was 
powered or shut down. This information indicates that the Navy 
implemented the safety zone mitigation measures as required. No 
instances of obvious behavioral disturbance were reported by the Navy 
watchstanders in their 358 marine mammal sightings totaling 2683 
animals.

Monitoring and Annual Monitoring Reports

    The Navy conducted the monitoring required by the 2009 LOA and 
described in the Monitoring Plan, which included aerial and vessel 
surveys of sonar and exercises, passive acoustic monitoring utilizing 
high frequency acoustic recording packages (HARPs), and marine mammal 
tagging and tracking. The Navy submitted their 2009 Monitoring Report, 
which is posted on NMFS' website (http://www.nmfs.noaa.gov/pr/permits/incidental.htm), within the required timeframe. The Navy included a 
summary of their 2009 monitoring effort and results (beginning on page 
66 of the monitoring report) and the specific reports for each 
individual effort are presented in the appendices. Because data is 
gathered through August 1 and the report is due in October, some of the 
data analysis will occur in the subsequent year's report.

Integrated Comprehensive Management Program (ICMP) Plan

    The ICMP will be used both as: (1) a planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information. The 
Navy finalized a 2009 ICMP Plan outlining the program on December 22, 
2009, as required by the 2009 LOA. The ICMP may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The ICMP is a program that will be in place for years and NMFS and 
Navy anticipate the ICMP may need to be updated yearly in order to keep 
pace with new advances in science and technology and the collection of 
new data.. In the 2009 ICMP Plan, the Navy outlines three areas of 
targeted development for 2010, including:
     Identifying more specific monitoring sub-goals under the 
major goals that have been identified
     Characterizing Navy Range Complexes and Study Areas within 
the context of the prioritization guidelines described here
     Continuing to Develop Data Management, Organization and 
Access Procedures

Stranding Response Plan

    NMFS and the Navy developed a Stranding Response Plan for SOCAL and 
certain components of the Plan were included as mitigation measures in 
the 2009 LOA. The Navy was required to work with NMFS to develop a 
communication plan to facilitate response and information exchange in

[[Page 4049]]

the event of a marine mammal stranding event. The communication plan 
was completed and disseminated to the necessary NMFS and Navy staff, 
although it is not available to the public because it contains personal 
information.
    The Navy was also required to work with NMFS to develop a 
Memorandum of Agreement (MOA), or other mechanism consistent with 
federal fiscal law requirements to establish a framework whereby the 
Navy can assist NMFS with stranding investigations in certain 
circumstances. NMFS and the Navy have developed a draft memorandum of 
understanding (MOU) that is currently under review at both agencies. 
The MOU includes agreement between the NMFS and the Navy to further 
develop regional stranding investigation assistance plans to identify 
regional assets, equipment, locations, or services that Navy may be 
able to provide and the process by which this will operate within a 
given geographic area.

Adaptive Management and 2010 Monitoring Plan

    NMFS and the Navy conducted an adaptive management meeting in 
October, 2009 wherein we reviewed the Navy monitoring results through 
August 1, 2009, discussed other Navy research and development efforts, 
and discussed other new information that could potentially inform 
decisions regarding Navy mitigation and monitoring. Because this is the 
first year of the regulation's period of effectiveness, the review only 
covered about 7 months of monitoring, which limited NMFS and the Navy's 
ability to undertake a robust review of the Navy's exercises and their 
effects on marine mammals. Based on the implementation of the 2009 
monitoring, the Navy proposed some minor modifications to their 
monitoring plan for 2010, which NMFS agreed were appropriate. Beyond 
those changes, none of the information discussed led NMFS to recommend 
any modifications to the existing mitigation or monitoring measures. 
The final modifications to the monitoring plan and justifications are 
described in Section 13 of the Navy's 2010 LOA Application, which may 
be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. As 
additional data is obtained in subsequent years, NMFS and Navy will be 
better positioned to conduct more extensive reviews and modify existing 
mitigation and monitoring measures, if appropriate.

Whale Strikes in 2009

    In their SOCAL Range Complex Environmental Impact Statement (EIS), 
the Navy, in consultation with NMFS as a cooperating agency, determined 
that take of marine mammals incidental to ship strike was unlikely. 
Therefore, the Navy did not request (nor did NMFS grant) MMPA 
authorization for take of marine mammals from ship strikes in the 2009 
SOCAL Range Complex LOA, nor was that take contemplated in the final 
SOCAL Range Complex regulations.
    Following the issuance of these regulations and the LOA, two 
incidents occurred in which a Navy vessel associated with the 
activities covered by the regulations collided with and injured or 
killed (one strike resulted in a confirmed death, the ultimate status 
of the other whale is unknown) a large whale, one of which was later 
identified as a fin whale. Of note, in both cases the Navy was in 
compliance with the mitigation and monitoring measures required by the 
rule and LOA and contacted NMFS in a timely manner and provided the 
specific information outlined in the SOCAL Stranding Response Plan for 
whale strikes, as well as additional information.
    In light of this new information NMFS is developing a proposed rule 
to amend the 2009 SOCAL Range Complex regulations. NMFS' proposed 
regulations would establish a framework to authorize the incidental 
take of large whales by injury or mortality fro the remainder of the 
five-year regulatory period.

Authorization

    The Navy complied with the requirements of the 2009 LOA. Based on 
our review of the record, NMFS has determined that the marine mammal 
take resulting from the 2009 military readiness training and research 
activities falls within the levels previously anticipated, analyzed, 
and authorized, and was likely lower given the fact that Navy conducted 
fewer operations in 2009 than originally planned . Further, the level 
of taking authorized in 2010 for the Navy's SOCAL Range Complex 
activities is consistent with our previous findings made for the total 
taking allowed under the SOCAL Range Complex regulations. Finally, the 
record supports NMFS' conclusion that the total number of marine 
mammals taken by the 2010 activities in the SOCAL Range Complex will 
have no more than a negligible impact on the affected species or stock 
of marine mammals and will not have an unmitigable adverse impact on 
the availability of these species or stocks for taking for subsistence 
uses. Accordingly, NMFS has issued a one-year LOA for Navy training 
exercises conducted in the SOCAL Range Complex from January 22, 2010, 
through January 21, 2011.

    Dated: January 20, 2010
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-1491 Filed 1-25-10; 8:45 am]
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