[Federal Register Volume 77, Number 21 (Wednesday, February 1, 2012)]
[Rules and Regulations]
[Pages 4917-4926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1621]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 218

[Docket No. 111019636-2033-02]
RIN 0648-BB53


Taking and Importing Marine Mammals: U.S. Navy Training in 12 
Range Complexes and U.S. Air Force Space Vehicle and Test Flight 
Activities in California

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

ACTION: Final rule.

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SUMMARY: Between January 2009 and May 2011, pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS issued twelve 5-year final 
regulations to govern the unintentional taking of marine mammals 
incidental to Navy training and associated activities. Additionally, in 
February 2009, pursuant to the MMPA, NMFS issued 5-year regulations to 
govern the unintentional taking of marine mammals incidental to U.S. 
Air Force (USAF) space vehicle and test flight activities from 
Vandenberg Air Force Base (VAFB). These regulations require the 
issuance of annual ``Letters of Authorization'' (LOAs).
    Since the issuance of the 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. NMFS now amends the regulations for the affected 
Navy training ranges to provide for additional flexibility and allow 
for LOAs with longer periods of validity. Similarly, NMFS now amends 
the regulations issued to VAFB in February 2009, to allow for greater 
flexibility regarding the types and amounts of missile and rocket 
launches that the USAF conducts.

DATES: Effective on February 1, 2012.

ADDRESSES: Regarding the Navy action, electronic copies of the Navy's 
LOA applications, NMFS' Records of Decision (RODs), and NMFS' proposed 
and final rules and subsequent LOAs; and regarding the USAF action, 
electronic copies of the USAF's LOA application, NMFS' Environmental 
Assessment and Finding of No Significant Impact, and NMFS' proposed and 
final rules and subsequent LOAs, and other documents cited herein may 
be obtained by writing to Michael Payne, Chief, Permits and 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, 
telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison or Candace Nachman, 
Office of Protected Resources, NMFS, (301) 427-8401.

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, a notice of 
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.
    The National Defense Authorization Act (NDAA) (Pub. L. 108-136) 
removed the ``small numbers'' and ``specified geographical region'' 
limitations, and 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].

    Between January 2009 and May 2011, pursuant to the MMPA, NMFS 
issued 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 
(SOCAL) Range Complex, the Atlantic Fleet Active Sonar Training (AFAST) 
Study Area, the Jacksonville (JAX) Range Complex, the Virginia Capes 
(VACAPES) Range Complex, the Cherry Point (CHPT) Range Complex, the 
Naval Surface Warfare Center Panama City Division (NSWC PCD), the 
Mariana Islands Range Complex (MIRC), the Northwest Training Range 
Complex (NWTRC), the Naval Under Sea Warfare Center (NUWC) Keyport, the 
Gulf of Mexico (GOMEX) Range Complex, and the Gulf of Alaska Temporary 
Maritime Activities Area (GOA TMAA). Additionally, in February 2009, 
pursuant to the MMPA, NMFS issued 5-

[[Page 4918]]

year regulations to govern the unintentional taking of marine mammals 
incidental to USAF space vehicle and test flight activities from VAFB 
in California. These regulations, which allow for the issuance of 
annual 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.
    Currently, with the exception of the GOA TMAA regulations (which 
allow for biennial LOAs), these rules state that LOAs must be renewed 
annually. To date, the Navy has complied with this requirement, and 
NMFS has issued annual LOAs to the Navy for activities on its ranges; 
however, in order to alleviate some of the administrative burden 
associated with processing annual LOAs, the Navy has requested that 
NMFS revise the current regulations to allow for LOAs with longer 
periods of validity. NMFS' regulations implementing section 
101(a)(5)(A) through (D) of the MMPA do not limit the period of 
validity for LOAs to one year, and NMFS relied on this authority when 
regulations were promulgated for the GOA TMAA that allow for LOAs to be 
issued on an annual or biennial basis (76 FR 25480, May 4, 2011). The 
specific language found in the general regulations governing small 
takes of marine mammals incidental to specified activities states that, 
``Letters of Authorization will specify the period of validity and any 
additional terms and conditions appropriate for the specific request'' 
(50 CFR 216.106(c)). With respect to revising the timing of LOA 
renewals, the period of validity for the LOAs can be extended past one 
year, but will not exceed the time remaining on the 5-year rule. For 
example, under the revised regulations, if the Navy requested a multi-
year LOA for AFAST in 2012, the LOA could only be valid for a maximum 
of two years because the 5-year rule expires in 2014. Other factors may 
be taken into consideration when determining the period of validity for 
a multi-year LOA, such as the degree of advanced planning regarding 
future training or exercise schedules and the details concerning the 
amount of activity and marine mammal occurrence documented in the 
previous year's monitoring and exercise reports. The regulations still: 
(1) Require the Navy to submit annual monitoring and exercise reports; 
(2) require that NMFS and the Navy hold annual monitoring and adaptive 
management meetings; and (3) allow for LOAs to be changed at any time, 
as appropriate, based on the availability of new information regarding 
military readiness activities or the marine mammals affected.
    In addition, these rules as first issued (a subset have been 
modified) quantified the specific amounts of individual sound source 
use that would occur over the course of the 5-year rules, and indicated 
that marine mammal take could only be authorized in an LOA incidental 
to the source types and amounts described. No language was initially 
included expressly allowing for deviation from those precise levels of 
source use, even if the total number of takes remained within the 
analyzed and authorized limits. Since the issuance of the rules, the 
Navy realized that their evolving activities, 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 authorization for the most recent area (GOA 
TMAA), NMFS included language explicitly allowing for greater 
flexibility in both source amount and type. Recently, NMFS amended the 
HRC, SOCAL Range Complex, AFAST, VACAPES, and JAX regulations to 
explicitly allow for greater flexibility in the types and amount of 
sound sources that they use (76 FR 6699, February 8, 2011, and 76 FR 
30552, May 26, 2011). The language contained in the regulatory text for 
the interim final rules issued on February 8, 2011, and May 26, 2011 
(76 FR 6699 and 76 FR 30552) remains unchanged from what was initially 
published. Through this final rule, NMFS now finalizes the 
aforementioned interim final rules without changes and amends the 
regulations for the remaining Navy training and RDT&E ranges to allow 
this same flexibility and ensure consistency.
    The USAF regulations for activities at VAFB initially quantified 
the specific amounts of missiles and rockets that could be launched 
over the course of the 5-year rule and indicated that marine mammal 
take could only be authorized in an LOA incidental to the amounts 
described. No language was initially included expressly allowing for 
deviation from those precise launch levels, even if the total number of 
takes remained within the analyzed and authorized limits. Since the 
issuance of the rule, the USAF realized that their evolving training 
programs, which are linked to real world events, necessitate greater 
flexibility in the types and amounts of missile and rocket launches 
that they conduct. NMFS now amends the regulations issued to VAFB in 
February 2009, to allow for such flexibility.

Summary of the Navy Modifications

Multi-Year LOAs

    On May 4, 2011, NMFS issued 5-year regulations governing the taking 
of marine mammals incidental to training activities conducted in the 
GOA TMAA (76 FR 25480). These regulations allow for the issuance of 
annual or biennial LOAs (only annual LOAs had been allowed for in the 
previous Navy rules issued), but retain the annual reporting and 
meeting requirements.
    After the issuance of the 2011 GOA TMAA rule, the Navy inquired 
about proposing amendments to the previously implemented Navy rules 
that would enable NMFS to renew LOAs for other training and RDT&E 
ranges on a multi-year basis. The ability to issue multi-year LOAs 
reduces administrative burdens on both NMFS and the Navy. In addition, 
multi-year LOAs would avoid situations where the last minute issuance 
of LOAs necessitated the commitment of extensive resources by the Navy 
for contingency planning.
    This modification amends the regulations to allow the issuance of 
multi-year LOAs for all 12 Navy range complexes: HRC, SOCAL, AFAST, 
JAX, VACAPES, CHPT, NSWC PCD, MIRC, NWTRC, NUWC Keyport, GOA TMAA and 
GOMEX. The regulations for these range complexes currently limit the 
period of validity for LOAs to 1 year (2 for GOA TMAA) and the Navy 
must request renewal of LOAs annually (biennially for GOA TMAA). 
Although the amendments can increase the period of validity for LOAs, 
the regulations retain the annual reporting and adaptive management 
meeting requirements that ensure NMFS is able to evaluate the Navy's 
compliance and marine mammal impacts with the same attention and 
frequency. In addition, a new LOA can be issued to incorporate any 
needed mitigation or monitoring measures developed through adaptive 
management, or if the Navy proposes changes to their activity within a 
given annual reporting period.

Interannual Flexibility (Source Type and Amount of Use)

    With respect to the second modification regarding the types of 
sources for which incidental take is authorized, in some cases the 
Navy's rules only identified the most representative or highest power 
source to represent a group of known similar sources. The Navy 
regularly modifies or develops new technologies, which often

[[Page 4919]]

results in sound sources that are similar to, but not exactly the same 
as, existing sources. In order to address these source modifications 
and the development of new technologies, NMFS includes new regulatory 
language designed to allow for more flexibility by authorizing take 
incidental to the previously identified specific sound source or 
``similar sources'' (i.e., those that have similar characteristics to 
the specific sources and do not change any of the underlying analysis, 
which NMFS would evaluate and verify upon receipt of an LOA application 
containing a description of the new similar sound source). In the 
February 8, 2011, modification to the HRC, SOCAL, and AFAST rules and 
the May 26, 2011, modification to the VACAPES and JAX rules, NMFS 
increased the flexibility of the regulations by inserting language that 
explicitly allows 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). The language contained in the regulatory text for the 
interim final rules issued on February 8, 2011, and May 26, 2011 (76 FR 
6699 and 76 FR 30552) remains unchanged from what was initially 
published. NMFS now finalizes these two interim final rules without 
changes and inserts similar language in the following Navy rules: CHPT; 
NSWC PCD; MIRC; NUWC Keyport; GOMEX; and NWTRC.
    Finally, regarding amounts of sound source use, the 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. This final rule amends the Navy rules 
to allow for inter-annual variability in the amount of source use 
identified in each LOA. For example, in one year, the Navy could use a 
lot of one source and a little of another, and the next year those 
amounts could be reversed; however, the amount of inter-annual 
variability cannot result in exceeding the total level of incidental 
take analyzed and identified in the final rules, and the taking cannot 
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. NMFS issued interim final rules amending the HRC, SOCAL 
Range Complex, AFAST, VACAPES, and JAX regulations by adding language 
of this nature to increase operational flexibility in those range 
complexes (76 FR 6699, February 8, 2011, and 76 FR 30552, May 26, 
2011). However, this language has not been adopted in the remaining 
Navy rules and NMFS now finalizes the aforementioned interim final 
rules and includes language of this nature in the regulations governing 
the authorization of take incidental to the additional Navy range 
complexes not previously addressed by either the final rules or interim 
final rules mentioned above.
    These regulatory amendments do not change the analyses of marine 
mammal impacts conducted in the original final rules. This is assured 
and illustrated through: (1) The Navy's submission of LOA applications 
for each area, which include take estimates specific to the upcoming 
period'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' LOAs, and the 
impacts of the Navy's activities on marine mammals, remain within what 
is analyzed and allowed under the 5-year regulations.

Summary of the USAF Modification

    In the 5-year regulations issued to the USAF in February 2009, NMFS 
authorized up to 30 missile launches and up to 20 rocket launches 
annually from VAFB (74 FR 6236, February 6, 2009). Those regulations 
analyzed potential impacts from many different types of missiles and 
rockets, such as the Atlas, Delta, Falcon, and intercontinental 
ballistic missiles. At the time of issuance of the regulations to the 
USAF, the Falcon was not yet ready for launch, but it was anticipated 
that the first launch of such a rocket would occur around August 2009. 
Information related to this rocket type was analyzed in both the 
proposed and final rulemaking documents. The Falcon has not yet been 
launched from VAFB, and it is anticipated that the first launch will 
occur in late 2012 or early 2013.
    In order to accommodate the necessary launches of the Falcon 
rocket, the USAF has indicated that it needs to reassign the amount of 
the 50 total launches allowed annually. Instead of the 30 missile and 
20 rocket launches currently authorized per year, the USAF has 
requested that they be permitted to conduct 15 missile launches and 35 
rocket launches per year. The total number of annual launches would 
remain at 50.
    As indicated above, this regulatory amendment does not change the 
analyses of marine mammal impacts conducted in the original final rule. 
This fact is assured and illustrated through: (1) The USAF's submission 
of annual LOA requests for the activities at VAFB related to space 
vehicle and test flight activities; and (2) their annual submission of 
monitoring reports, which describe observed responses of marine mammals 
to USAF missile and rocket launches and aircraft activity collected via 
visual monitoring and acoustic recording methods. These submissions 
allow NMFS to accurately predict and track the USAF's activities to 
ensure that both NMFS' LOAs and the impacts of the USAF's activities on 
marine mammals remain within what is analyzed and authorized under the 
5-year regulations.

Comments and Responses

    On November 15, 2011 (76 FR 70695), NMFS published a proposed rule 
in response to requests by the Navy and USAF to allow for greater 
flexibility with respect to the regulations and LOAs permitting the 
types and amounts of sound sources that they use. In addition, the 
proposed rule responded to the Navy's request for LOAs with longer 
periods of validity (i.e., greater than one year). NMFS received 
comment letters from the Marine Mammal Commission, Department of the 
Interior, the U.S. Air Force, environmental non-governmental 
organizations, an interested member of the public, and one member of 
Congress. The comments are summarized and addressed below. Full copies 
of the comment letters may be accessed at http://www.regulations.gov. 
The letter from the Marine Mammal Commission can be accessed at http://mmc.gov/letters/letters_11.shtml, and recommended that NMFS amend the 
regulations as proposed.
    Comment 1: NMFS should delay publishing the final rule until after 
NOAA's working group on marine mammal hotspots has completed its work.

[[Page 4920]]

    Response: NMFS does not agree that delaying the publication of the 
final rule until after the working groups have completed their work is 
warranted. The results of these working groups will be analyzed by NMFS 
in an adaptive management context, as related to the Navy final rules 
and LOAs, and mitigation or monitoring measures may be modified, as 
appropriate. The timing of potential adaptive management actions 
identified above would not be changed by delaying the publication of 
this final rule because LOAs can be modified at any time to include new 
mitigation or monitoring measures if new information suggests such a 
change is warranted.
    Comment 2: NMFS has not properly assessed the impacts to marine 
mammals that could result from variability in the amount of source use 
within a five year period.
    Response: As we stated in the preamble to the proposed rule (76 FR 
70695, November 15, 2011), these regulatory amendments do not change 
the analyses of marine mammal impacts conducted in the original final 
rules. Under the revisions, any variations in sound types or use could 
not exceed the level of take authorized by the original rules, and 
individual LOA renewal applications will provide new take estimates for 
NMFS to review. New information, including results and recommendations 
from the working groups, would also be taken into consideration. In 
addition, the submission of annual monitoring and exercise reports by 
the Navy and USAF allow NMFS to accurately track the military readiness 
activities and ensure that LOAs issued by NMFS and the impacts of the 
military readiness activities on marine mammals remain within what is 
analyzed and authorized under the 5-year regulations.
    Comment 3: NMFS must ensure that ``similar sources'' are truly 
similar and that the takings of marine mammals resulting from the use 
of ``similar sources'' do not exceed the takings that are authorized in 
the final rules.
    Response: NMFS agrees and will evaluate the ``similar sources'' and 
their likely impacts on marine mammals when the Navy submits their LOA 
applications, which include a detailed description of any new sources 
and a take estimate. NMFS will also review annual monitoring and 
exercise reports to ensure that takings from similar sources do not 
exceed those authorized in the final rules.
    Comment 4: To maintain a commitment to oversight and adaptive 
management, NMFS must limit the taking of marine mammals to the annual 
take amount analyzed in the applicable EISs and final rules.
    Response: NMFS' commitment to oversight and adaptive management is 
assured and illustrated through the review of annually submitted 
exercise and monitoring reports, which describe military readiness 
activities conducted during the reporting periods and observed 
responses of marine mammals to Navy training exercises and USAF missile 
and rocket launches and aircraft activity collected via visual 
monitoring and acoustic recording methods. Together, these submissions 
allow NMFS to accurately predict and track military readiness 
activities conducted by the Navy and USAF to ensure that incidental 
takings remain within what is analyzed and allowed under the 5-year 
regulations. In addition, NMFS continues to require annual adaptive 
management meetings with the Navy, which ensures that NMFS is able to 
evaluate the Navy's compliance and marine mammal impacts as carefully 
and as often as NMFS would in the absence of the modification. Finally, 
under the modified regulations, NMFS still has the ability to issue a 
new LOA at any time, pursuant to the adaptive management mechanism, if 
mitigation or monitoring modifications are needed.
    Comment 5: The USAF requested that NMFS include language in the 
final rule that allows for the issuance of multi-year LOAs to the USAF 
for space vehicle and test flight activities from VAFB.
    Response: The USAF did not make this request to NMFS prior to 
release of the proposed rule for public comment. The current 5-year 
rule governing authorizations for take of marine mammals at VAFB 
expires on February 6, 2014. Therefore, if NMFS were to make this 
change now, it would make it unnecessary to issue only one remaining 
LOA, as three LOAs have already been issued to the USAF under the 
current regulations. NMFS did not include language authorizing LOAs 
that would cover multiple years for activities at VAFB, and including 
such language in the final rule would not result in significant time 
savings or administrative streamlining at this stage in implementation 
of the current 5-year regulations. Therefore, NMFS has not included 
language in the final rule for the USAF activities that would allow for 
the issuance of multi-year LOAs. However, if and when the USAF applies 
for new 5-year regulations, NMFS will consider issuance of multi-year 
LOAs in the proposed rule that is released for public comment at that 
time.
    Comment 6: With respect to the interim final rule that amended the 
regulations governing take authorizations for JAX, VACAPES, and CHPT, 
the Marine Mammal Commission questioned whether it was necessary to 
waive the opportunity for public notice and comment, and recommended 
that NMFS take all steps possible to avoid invoking the good cause 
exception under similar circumstances.
    Response: NMFS agrees with the Commission that a waiver of the 
opportunity for public notice and comment is only permissible in 
limited circumstances; that is, when the agency finds that notice and 
comment are ``impracticable, unnecessary, or contrary to the public 
interest.'' 5 U.S.C. 553(b)(B). In this case, NMFS determined that 
providing for notice and comment and delaying the effective date of the 
interim final rule were both impracticable and contrary to the public 
interest, because the Navy had ``a compelling need to continue its 
currently on-going military readiness and testing activities with the 
specific sound sources at issue without interruption.'' Specifically, 
the Navy urgently needed to make multiple adjustments to the amount and 
type of explosives being used, and had an immediate need for more 
flexibility regarding the areas in which certain exercises could take 
place. As noted by the Commission, the Navy requested the amendment to 
the regulation several months before the interim final rule was issued. 
Given limited agency resources, the interim final rule was issued as 
soon as NMFS was able to perform the required analyses, and the Navy 
was simply unable to accommodate any further delay in issuance of the 
interim final rule in order to allow for notice and comment. As 
recommended by the Commission, NMFS provided an opportunity for public 
review and comment on all of the modifications that were subsequently 
proposed by NMFS for other Navy rules that did not require immediate 
implementation, and that are also codified in this final rule.

Classification

    The Office of Management and Budget has determined that this final 
rule is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA), 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 
final rule would not have a significant economic impact on a 
substantial number of small entities. The RFA requires Federal agencies 
to prepare an analysis of a rule's impact on small

[[Page 4921]]

entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. 605 (b), that the action will not have a significant economic 
impact on a substantial number of small entities. Neither the Navy nor 
the USAF are small governmental jurisdictions, small organizations, or 
small businesses, as defined by the RFA. Any requirements imposed by an 
LOA issued pursuant to these regulations, and any monitoring or 
reporting requirements imposed by these regulations, will be applicable 
only to the Navy and USAF. NMFS does not expect the amendments of these 
regulations or the associated LOAs to result in any impacts to small 
entities pursuant to the RFA. Because this action would directly affect 
the Navy and USAF and not a small entity, NMFS concludes the action 
would not result in a significant economic impact on a substantial 
number of small entities.
    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C. 
553(d)(3)) to waive the 30-day delay in effectiveness of the measures 
contained in the final rule. The Navy and USAF, as the authorized 
entities, have informed NMFS that any delay of enacting the final rule 
would result in: (1) A suspension of ongoing or planned military 
readiness activities, which would disrupt vital training essential to 
national security; or (2) the Navy and USAF's procedural non-compliance 
with the MMPA (should the Navy and USAF conduct activities without an 
LOA), thereby resulting in the potential for unauthorized takes of 
marine mammals. Moreover, the Navy and USAF, the only parties directly 
affected by this rule, are ready to implement the rule immediately; 
therefore, these measures will become effective upon publication.

List of Subjects in 50 CFR Parts 216 and 218

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

    Dated: January 20, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR parts 216 and 218 are 
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.  216.120, paragraphs (a)(1) and (a)(2) are revised to read 
as follows:


Sec.  216.120  Specified activity and specified geographical region.

    (a) * * *
    (1) Launching up to 15 missiles each year from Vandenberg Air Force 
Base, for a total of up to 75 missiles over the 5-year period of the 
regulations in this subpart,
    (2) Launching up to 35 rockets each year from Vandenberg Air Force 
Base, for a total of up to 175 rocket launches over the 5-year period 
of the regulations in this subpart,
* * * * *

0
3. Section 216.121 is revised to read as follows:


Sec.  216.121  Effective dates.

    Amended regulations are effective from February 1, 2012, through 
February 6, 2014.

0
4. In Sec.  216.170, revise paragraphs (c) introductory text, (c)(1) 
introductory text, (c)(1)(vii), (c)(2) introductory text, 
(c)(2)(ii)(H), and (d) are 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
5. In Sec.  216.171, paragraph (a) is revised to read as follows:


Sec.  216.171  Effective dates and definitions.

    (a) Amended regulations are effective from February 1, 2012, 
through January 5, 2014.
* * * * *

0
6. In Sec.  216.177, paragraph (a) is revised to read as follows:


Sec.  216.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions in Sec.  216.178 and the modification conditions in Sec.  
216.179.
* * * * *

0
7. In Sec.  216.178, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  216.178  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.177 for the activity identified in Sec.  216.170(c) may be renewed 
for an amount of time not to exceed the periods of validity of this 
subpart upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.176 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.174 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.177, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *

0
8. In Sec.  216.240, revise paragraphs (c) introductory text and 
paragraph (d) to read as follows:

[[Page 4922]]

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
9. In Sec.  216.241, paragraph (a) is revised to read as follows:


Sec.  216.241  Effective dates and definitions.

    (a) Amended regulations are effective from February 1, 2012, 
through January 22, 2014.
* * * * *

0
10. In Sec.  216.247 paragraph (a) is revised to read as follows:


Sec.  216.247  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions in Sec.  216.248 and the modification conditions in Sec.  
216.249.
* * * * *

0
11. In Sec.  216.248, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  216.248  Renewal of Letters of Authorization and Adaptive 
Management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.247 for the activity identified in Sec.  216.240(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.246 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.244 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.247, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *

0
12. In Sec.  216.270, revise paragraphs (c) introductory text, (c)(1), 
(c)(2) and (d) 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
13. In Sec.  216.271, paragraph (a) is revised to read as follows:


Sec.  216.271  Effective dates and definitions.

    (a) Amended regulations are effective from the date of publication 
of the final rule, through January 14, 2014.
* * * * *

0
14. In Sec.  216.277, paragraph (a) is revised to read as follows:


Sec.  216.277  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  216.278 and the modification conditions in 
Sec.  216.279.
* * * * *

0
15. In Sec.  216.278, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  216.278  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec. Sec.  216.106 and 
216.277 for the activity identified in Sec.  216.270(c) may be renewed 
upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.276 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.274 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.277, were 
undertaken and will be undertaken during the upcoming period of 
validity of a renewed Letter of Authorization.
* * * * *

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

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

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


0
17. In Sec.  218.1, revise paragraphs (c) introductory text, (c)(1), 
(c)(1)(i)(D), (c)(1)(ii) introductory text, (d) and (e) 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) Amended regulations are effective from February 1, 2012, 
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
18. In Sec.  218.7, paragraph (a) is revised to read as follows:

[[Page 4923]]

Sec.  218.7  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.8 and the modification conditions in 
Sec.  218.9.
* * * * *

0
19. In Sec.  218.8, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.8  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.7 for the activity identified in Sec.  218.1(c) 
may be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.6 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.4 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.7, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
20. In Sec.  218.10, revise paragraphs (c) introductory text, (c)(1), 
(d) and (e) 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) Amended regulations are effective February 1, 2012, 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
21. In Sec.  218.13, paragraph (a)(4)(i)(A) is revised to read as 
follows:


Sec.  218.13  Mitigation.

* * * * *
    (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).
* * * * *

0
22. In Sec.  218.16, paragraph (a) is revised to read as follows:


Sec.  218.16  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.17 and modification conditions in Sec.  
218.18.
* * * * *

0
23. In Sec.  218.17, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.17  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.16 for the activity identified in Sec.  218.10(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.15 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.13 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.16, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
24. In Sec.  218.20, paragraphs (c) introductory text, (c)(1) 
introductory text, and (d) are revised, and paragraph (e) is added to 
read as follows:


Sec.  218.20  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 February 1, 2012, through June 4, 
2014.
    (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.  218.20(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.20(c), provided 
that the variation does not result in exceeding the amount of take 
indicated in Sec.  218.21(c).

0
25. In Sec.  218.23, paragraph (a)(4)(i)(A) is revised to read as 
follows:


Sec.  218.23  Mitigation.

    (a) * * *
    (4) * * *
    (i) * * *
    (A) This activity shall only occur in Areas 4/5 and 13/14, or in 
similar areas that will not result in marine mammal takes exceeding the 
amount indicated in Sec.  218.21(c).
* * * * *

0
26. In Sec.  218.26, paragraph (a) is revised to read as follows:


Sec.  218.26  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.27 and the modification conditions in 
Sec.  218.28.
* * * * *

0
27. In Sec.  218.27, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.27  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.26 for the activity identified in Sec.  218.20(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.25 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.23 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.26, were undertaken and will be undertaken

[[Page 4924]]

during the upcoming period of validity of a renewed Letter of 
Authorization.
* * * * *

0
28. In Sec.  218.30, paragraphs (c) introductory text, (c)(1) 
introductory text, and (d) are revised, and paragraph (e) is added to 
read as follows:


Sec.  218.30  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 February 1, 2012, through February 
17, 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.  218.30(c) should the amounts (e.g., number 
of exercises) vary from those estimated in Sec.  218.30(c), provided 
that the variation does not result in exceeding the amount of take 
indicated in Sec.  218.31(c).

0
29. In Sec.  218.33, paragraph (a)(3)(i)(A) is revised to read as 
follows:


Sec.  218.33  Mitigation.

    (a) * * *
    (3) * * *
    (i) * * *
    (A) This activity shall only occur in the W-155A/B (hot box) area, 
or in similar areas that will not result in marine mammal takes 
exceeding the amount indicated in Sec.  218.31(c).
* * * * *

0
30. In Sec.  218.36, paragraph (a) is revised to read as follows:


Sec.  218.36  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.37 and the modification conditions in 
Sec.  218.38.
* * * * *

0
31. In Sec.  218.37, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.37  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.36 for the activity identified in Sec.  218.30(c) 
will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.35 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.33 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.36, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
32. In Sec.  218.100, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised to read as 
follows:


Sec.  218.100  Specified activity and specified geographical area.

* * * * *
    (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:
* * * * *

0
33. Section 218.101 is revised to read as follows:


Sec.  218.101  Effective dates.

    Amended regulations are effective February 1, 2012, through August 
3, 2015.

0
34. In Sec.  218.107, paragraph (a) is revised to read as follows:


Sec.  218.107  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.108 and the modification conditions in 
Sec.  218.109.
* * * * *

0
35. In Sec.  218.108, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.108  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.107 for the activity identified in Sec.  
218.100(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.106 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.104 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.107, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
36. In Sec.  218.110, paragraphs (c) introductory text, (c)(1) 
introductory text, and (c)(2) introductory text are revised to read as 
follows:


Sec.  218.110  Specified activity and specified geographical area.

* * * * *
    (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:
* * * * *

0
37. Section 218.111 is revised to read as follows:


Sec.  218.111  Effective dates.

    Amended regulations are effective February 1, 2012, through 
November 9, 2015.

0
38. In Sec.  218.117, paragraph (a) is revised to read as follows:


Sec.  218.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the

[[Page 4925]]

periods of validity of this subpart, but may be renewed or modified 
sooner subject to the renewal conditions in Sec.  218.118 and the 
modification conditions in Sec.  218.119.
* * * * *

0
39. In Sec.  218.118 paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.118  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.117 for the activity identified in Sec.  
218.110(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.116 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.114 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.117, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
40. Section 218.121 is revised to read as follows:


Sec.  218.121  Effective dates.

    Amended regulations in this subpart are effective February 1, 2012, 
through May 4, 2016.

0
41. In Sec.  218.127, paragraph (a) is revised to read as follows:


Sec.  218.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.128 and the modification conditions in 
Sec.  218.129.
* * * * *

0
42. In Sec.  218.128, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.128  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.127 for the activity identified in Sec.  
218.120(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.126 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.124 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.127, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
43. In Sec.  218.170, paragraphs (c) introductory text and (d) are 
revised, and paragraph (e) is added to read as follows:


Sec.  218.170  Specified activity and specified geographical area and 
effective dates.

* * * * *
    (c) These regulations apply only to the taking of marine mammals by 
the Navy if it occurs incidental to the following activities, or 
similar activities, and sources, or similar sources (estimate amounts 
of use below):
* * * * *
    (d) Amended regulations are effective February 1, 2012, through 
April 11, 2016.
    (e) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  218.170(c) should the 
amounts (e.g., hours, number of exercises) vary from those estimated in 
Sec.  218.170(c), provided that the variation does not result in 
exceeding the amount of take indicated in Sec.  218.171(c).

0
44. In Sec.  218.176, paragraph (a) is revised to read as follows:


Sec.  218.176  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but may be renewed or modified sooner subject to the renewal 
conditions in Sec.  218.177 and the modification conditions in Sec.  
218.178.
* * * * *

0
45. In Sec.  218.177, paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.177  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.176 for the activity identified in Sec.  
218.170(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.175 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.173 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.176, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

0
46. In Sec.  218.180, paragraphs (c) introductory text, (c)(1) 
introductory text, (c)(2) introductory text, (c)(3) introductory text, 
(c)(4) introductory text, (c)(5) introductory text, and (d) are 
revised, and paragraph (e) is added to read as follows:


Sec.  218.180  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 following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for 
Navy mission activities in territorial waters (estimated amounts 
below):
* * * * *
    (2) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources, or similar sources, for 
Navy mission activities in non-territorial waters (estimated amounts 
below):
* * * * *
    (3) Ordnance operations, or similar operations, for Navy mission 
activities in territorial waters (estimated amounts below):
* * * * *
    (4) Ordnance operations, or similar operations, for Navy mission 
activities in non-territorial waters (estimated amounts below):
* * * * *
    (5) Projectile firing operations, or similar operations, for Navy 
mission activities in non-territorial waters (estimated amounts below):
* * * * *
    (d) Amended regulations are effective February 1, 2012, through 
January 21, 2015.
    (e) The taking of marine mammals may be authorized in an LOA for 
the activities and sources listed in Sec.  218.180(c) should the 
amounts (e.g., hours, number of exercises) vary from those estimated in 
Sec.  218.180(c), provided that the variation does not

[[Page 4926]]

result in exceeding the amount of take indicated in Sec.  218.181(b).

0
47. In Sec.  218.186, paragraph (a) is revised to read as follows:


Sec.  218.186  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the periods of validity of 
this subpart, but may be renewed or modified sooner subject to the 
renewal conditions in Sec.  218.187 and the modification conditions in 
Sec.  218.188.
* * * * *

0
48. In Sec.  218.187 paragraphs (a) introductory text, (a)(1), and 
(a)(3) are revised to read as follows:


Sec.  218.187  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.186 for the activity identified in Sec.  
218.180(c) will be renewed upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  218.185 will be undertaken and that 
there will not be a substantial modification to the desired work, 
mitigation, or monitoring undertaken during the upcoming period of 
validity;
* * * * *
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  218.183 and the Letter of 
Authorization issued under Sec.  216.106 of this chapter and Sec.  
218.186, were undertaken and will be undertaken during the upcoming 
period of validity of a renewed Letter of Authorization.
* * * * *

[FR Doc. 2012-1621 Filed 1-31-12; 8:45 am]
BILLING CODE 3510-22-P