[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Rules and Regulations]
[Pages 30552-30554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12984]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 110516281-1283-01]
RIN 0648-BB03


Taking and Importing Marine Mammals: U.S. Navy Training in the 
Virginia Capes Range Complex and Jacksonville Range Complex

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

ACTION: Interim final rule; request for comments.

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SUMMARY: In June 2009, pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS issued two 5-year final regulations to govern the 
unintentional taking of marine mammals incidental to Navy training 
activities conducted in the Virginia Capes (VACAPES) and Jacksonville 
(JAX) range complexes off the East Coast of the U.S. 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 training activities 
involving underwater detonations 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 types and amounts of training 
activities and explosives described. No language was included expressly 
allowing for deviation from those precise levels of training activities 
and amounts of explosives even if the total number of takes remain 
within the analyzed and authorized limits. Since the issuance of these 
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 training events and explosives that they conduct 
and use. In response to this need, NMFS has, through this interim final 
rule, amended the VACAPES and JAX regulations to explicitly allow for 
greater flexibility in the types and amount of training activities that 
they conduct and explosives that they use.

DATES: Effective on May 24, 2011. Comments and information must be 
received no later than June 27, 2011.

ADDRESSES: You may submit comments, identified by 0648-BB03, 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: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 137.

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, notice of a proposed authorization is 
provided to the public for 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 definition of ``harassment'' as it applies to a ``military 
readiness activity'' is as follows (section 3(18)(B) of the MMPA as 
amended by the National Defense Authorization Act (NDAA) (Pub. L. 108-
136)):

    (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

    In June, 2009, NMFS issued 5-year regulations governing the taking 
of marine mammals incidental to training activities conducted in the 
VACAPES Range Complex (74 FR 28328; June 15, 2009) and the JAX Range 
Complex (74 FR 28349; June 15, 2009) (collectively the ``2009 Final 
Rules''). The VACAPES and JAX Range Complex regulations allow for the 
issuance of LOAs that authorize the incidental take of marine mammals 
during the specified activities and described timeframes, and 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

[[Page 30553]]

reporting of such taking. These regulations were drafted in such a way 
that the Navy's specified activities were strictly quantified by the 
amount of each type of training event to be carried out and the amount 
of explosives and sound sources to be used (e.g., number of events or 
explosive detonations) over the course of the 5-year regulations.
    After the issuance of these rules, the Navy realized that their 
evolving training programs, which are linked to real world events, 
necessitate greater flexibility in both the types and amount of 
training activities that they conduct and the types and amount of 
underwater detonations and sound sources that they use.
    Regarding the types of training events and explosives for which 
incidental take is authorized, in some cases, the Navy's VACAPES and 
JAX Range Complex rules identified the most representative or highest 
power source to represent a group of known similar activities or 
explosive types. However, the Navy regularly modifies or improves 
training techniques, often in the way that results in the use of 
explosive munitions are similar to, but not exactly the same as, 
existing ones. In its LOA renewal requests submitted to NMFS on January 
19, 2011, the Navy requested modification in the amount and types of 
training activities and the explosives involved for the VACAPES and JAX 
range complexes. To address this issue, NMFS modifies the 2009 Final 
Rules to increase 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 explosives or 
``similar events or explosives'' (with similar characteristics that do 
not change any of the underlying analyses), and in the case of the JAX 
Range Complex, by allowing FIREX exercises to be conducted in areas 
similar to those initially specifically identified in the rule (areas 
BB and CC), provided that the implementation of these changes in annual 
LOAs does not result in exceeding the incidental take analyzed and 
identified in the 2009 Final Rules.
    Regarding amounts of explosive and number of training activities, 
the 2009 Final Rules only allow for the authorization of take 
incidental to a 5-yr maximum amount of use for each specific training 
activity type and explosive type, even though no change in the 
environmental impacts would be expected by modifying the amounts of 
explosives being used in a training event in certain ways. For example, 
a large number of smaller explosives being used would yield similar 
impacts to the marine environment as a few larger explosives. To 
address this issue, NMFS modifies the VACAPES and JAX 2009 Final Rules 
to increase flexibility by including language that allows for inter-
annual variability in the amount of training activities and the number 
and types of explosives that can be authorized in each annual LOA 
(e.g., one year the Navy could use a lot of one explosive, 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 2009 Final Rules, and the taking 
does not result in more than a negligible impact on affected species or 
stocks.
    As indicated above, these regulatory amendments do not change the 
analyses of marine mammal impacts conducted in the 2009 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 year's activities (i.e., explosive 
use); (2) their subsequent annual submission of exercise reports, which 
accurately report the specific amount of use for each explosive and the 
number of training events conducted over the course of the previous 
year; and (3) their annual submission of monitoring reports, which 
describe observed responses of marine mammals to Navy's training 
activities and the use of explosives collected via visual or passive 
acoustic 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 VACAPES and 
JAX 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 VACAPES and JAX 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 type of 
training activity and explosive, 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 
with decreases in others. The Navy requires the flexibility to modify 
its training activities and the use of certain explosive detonations in 
the VACAPES and JAX Range Complexes, and these regulations modify the 
VACAPES and JAX final rules to insert language codifying that 
flexibility.
    The Navy has a compelling need to continue its currently on-going 
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 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 above, there is good cause under 5 U.S.C. 553 
to waive the 30-day delay in effectiveness. Interruption or reduction 
of the Navy's ability to utilize specific sound sources would 
significantly disrupt vital sequential training, certification, and 
testing activities essential to our national security and the safety of 
our

[[Page 30554]]

armed forces. Therefore, there is good cause to waive the 30-day delay 
in effectiveness and to make this rule effective immediately.
    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 218

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

    Dated: May 20, 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 218 is amended 
as follows:

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

0
1. The authority citation for part 218 continues to read as follows:

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

0
2. In Sec.  218.1, paragraphs (c) introductory text, (c)(1) 
introductory text, (c)(1)(i)(D), (c)(1)(ii) introductory text, and (d) 
are revised, and paragraph (e) is added to read as follows:


Sec.  218.1  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:
* * * * *
    (i) * * *
    (D) Airborne Mine Neutralization system (AMNS).
* * * * *
    (ii) Training events (with approximated number of events)
* * * * *
    (d) Regulations are effective June 5, 2011, through June 4, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for 
the explosive types and activities, or similar explosives or 
activities, listed in Sec.  218.1(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.1(c), provided 
that the variation does not result in exceeding the amount of take 
indicated in Sec.  218.2(c).

0
3. In Sec.  218.10, paragraphs (c) introductory text, (c)(1) 
introductory text, and (d) are revised, and paragraph (e) is added to 
read as follows:


Sec.  218.10  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 June 5, 2011, through June 4, 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.  218.10(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.10(c), provided 
that the variation does not result in exceeding the amount of take 
indicated in Sec.  218.11(c).

0
4. In Sec.  218.13, paragraph (a)(4)(i)(A) is revised to read as 
follows:


Sec.  218.13  Mitigation.

* * * * *
    (a) * * *
    (4) * * *
    (i) * * *
    (A) This activity shall only occur in Areas BB and CC, or in 
similar areas that will not result in marine mammal takes exceeding the 
amount indicated in Sec.  216.11(c).
* * * * *
[FR Doc. 2011-12984 Filed 5-24-11; 4:15 pm]
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