[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Notices]
[Pages 66245-66246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27788]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XG694
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training and Testing Activities in the
Atlantic Fleet Training and Testing Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; receipt of application and request for Letters of
Authorization extension; request for comments and information.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Navy (Navy) to amend
NMFS' Marine Mammal Protection Act (MMPA) regulations authorizing the
take of marine mammals incidental to Navy training and testing
activities conducted in the Atlantic Fleet Training and Testing (AFTT)
Study Area from November 2018 to November 2023 to cover seven years of
the Navy's activities, instead of five. Section 316 of the John S.
McCain National Defense Authorization Act for Fiscal Year 2019 (2019
NDAA), signed into law on August 13, 2018, amended the MMPA to extend
the maximum period for MMPA incidental take regulations under section
101(a)(5)(A) from five to seven years for military readiness
activities. The Navy's activities qualify as military readiness
activities pursuant to the MMPA, as amended by the NDAA for Fiscal Year
2004. The Navy proposes no changes to their specified activities,
mitigation measures, monitoring, or reporting and requests that NMFS
amend the final rule issued on November 14, 2018, to authorize
incidental take of marine mammals for the two additional years now
allowed under the statute. NMFS invites the public to provide
information, suggestions, and comments on the Navy's application.
DATES: Comments and information must be received no later than January
25, 2019.
ADDRESSES: Comments on the application should be addressed to Jolie
Harrison, Chief, Permits and Conservation Division, Office of Protected
Resources, National Marine Fisheries Service. Physical comments should
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and
electronic comments should be sent to [email protected].
Instructions: NMFS is not responsible for information or comments
sent by any other method, to any other address or individual, or
received after the end of the comment period. Information and comments
received electronically, including all attachments, must not exceed a
25-megabyte file size. Attachments to electronic comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
information and comments received are a part of the public record and
will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information (e.g., name,
address) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427-8401. An electronic copy of the Navy's
application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made and either regulations are issued or, if
the taking is limited to harassment, a notice of a proposed
authorization is provided to the public for review.
An incidental take authorization shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring, and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal. The 2004 NDAA (Public Law 108-136) amended the MMPA to remove
the ``small numbers'' and ``specified geographical region'' limitations
for military readiness activities. It also amended the definition of
``harassment'' as it applies to military readiness activities to read
as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or
has the significant potential to injure a marine mammal or marine
mammal stock in the wild (Level A harassment); or (ii) Any act that
disturbs or is likely to disturb a marine mammal or marine mammal stock
in the wild by causing disruption of natural behavioral patterns,
including, but not limited to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such behavioral patterns
[[Page 66246]]
are abandoned or significantly altered (Level B harassment).
On August 13, 2018, the 2019 NDAA (Public Law 115-232) amended the
MMPA to allow incidental take regulations for military readiness
activities to be issued for up to seven years.
Summary of Request
On November 16, 2018, NMFS received an adequate and complete
application from the Navy requesting an amendment of the regulations
published on November 14, 2018, that authorize the take of marine
mammals incidental to the Navy's training and testing activities in the
AFTT Study Area (83 FR 57076). Specifically, the activities include
training and testing (all categorized as military readiness activities)
including the use of active acoustic sonar systems and other
transducers, in-water detonations, air guns, construction activities
involving pile removal and installation, and the operation of a fleet
of vessels throughout the AFTT Study Area. These activities may result
in the incidental take of marine mammals in the form of Level B
harassment (behavioral disruption or temporary hearing impairment),
Level A harassment (permanent hearing impairment or tissue damage), or
serious injury or mortality in a very small number of cases. The
requested amendment would change the expiration date of the regulations
from November 13, 2023 to November 13, 2025, allowing for seven total
years of validity, as allowed under the MMPA as recently amended by the
2019 NDAA.
Description of Amendment
The Navy proposes that NMFS amend the existing AFTT regulations and
associated Letters of Authorization (LOAs) such that they would cover
incidental take caused by seven years of training and testing
activities instead of five, extending the expiration date from November
13, 2023 to November 13, 2025. The amendment would be conducted through
a proposed and final rulemaking, consistent with the requirements of
section 101(a)(5)(A). The Navy has not proposed any changes to the
nature of the specified activities and, therefore, the boundaries of
the AFTT Study Area, the training and testing activities (e.g.,
equipment and sources used, exercises conducted), and the mitigation,
monitoring, and reporting measures are identical to those described and
analyzed in the existing AFTT regulations published on November 14,
2018 (83 FR 57076).
The only changes contemplated in the extension of the regulations
are those necessary to identify the appropriate type and amount of
incidental take to authorize in the two additional years that the
amended regulations would cover, and determine whether the incidental
take would have a negligible impact on the affected species and stocks.
The current AFTT rule authorizes three serious injuries or
mortalities from vessel strike. The Navy's request for an amendment
includes a revised vessel strike analysis encompassing seven years of
activities versus the five years addressed in the analysis supporting
the mortality estimate in the current LOAs. Based on the revised
analysis, the Navy requests one additional large whale mortality
bringing the total from three vessel strikes over five years to four
vessel strikes over seven years. The large whale stocks that are
proposed to be lethally taken by vessel strike are the same as those
included in the current AFTT rule. Please see Chapter 6, Section 6.2 of
the Navy's application for a full description of the incidental take by
vessel strike.
Regarding the quantification of expected takes from acoustic and
explosive sources (by Level A and Level B harassment, as well as
mortality resulting from exposure to explosives), the number of takes
are based directly on the level of activities (days, hours, counts,
etc., of different activities and events) in a given year. In the
existing AFTT rule, the Navy bases their take estimates across the
five-year rule on conducting three years of a nominal (average) level
of activity and two years of a maximum level of activity. For the
amended seven year rule, the Navy proposes to add one additional
nominal year and one additional maximum year to determine the predicted
take numbers. Specifically, as in the current rule, the Navy proposes
to use the maximum annual level to calculate annual takes (which will
remain identical to the current rule), and the sum of all years (four
nominal and three maximum, in the case of the new amended rule) to
calculate the seven-year totals. Please see Chapter 6, Section 6.1 of
the Navy's application for a description of the proposed take from
acoustic and explosive sources.
As noted above, the proposed amendment of the rule would include
mitigation, monitoring, and reporting measures that are identical to
those included in the current final rule (83 FR 57076, November 14,
2018). In summary, mitigation would include: (1) the use of Lookouts to
observe for biological resources and communicate the need for
mitigation implementation; (2) powerdowns, shutdowns, and delay of
starts to avoid exposure of marine mammals to high levels of sound or
explosive blasts more likely to result in injury or more serious
behavioral disruption; (3) limiting the use of active sonar or
explosives in certain biologically important areas to reduce the
probability or severity of impacts when they are more likely to
contribute to fitness impacts, and (4) broadcasting awareness
notification messages to all of the vessels in an area to reduce the
likelihood of vessel strike. Please see Chapter 11 of the Navy's
application for a full description of the proposed mitigation, which is
identical to that required under the existing rule.
The Navy proposes to continue forward the implementation of the
robust Integrated Comprehensive Monitoring Program and Strategic
Planning Process outlined in the current regulations. The Navy's
monitoring strategy, currently required by the AFTT regulations, is
well-designed to work across Navy ranges to help better understand the
impacts of the Navy's activities on marine mammals and their habitat by
focusing on learning more about marine mammal occurrence in different
areas and exposure to Navy stressors, marine mammal responses to
different sound sources, and the consequences of those exposures and
responses on marine mammal populations. Similarly, the proposed amended
regulations would include identical adaptive management provisions and
reporting requirements as the existing regulations. Please refer to
Chapter 13 of the Navy's application for full details on the monitoring
and reporting proposed by the Navy.
Information Solicited
Interested persons may submit information, suggestions, and
comments concerning the Navy's request (see ADDRESSES). NMFS will
consider all information, suggestions, and comments related to the
request during the development of proposed regulations governing the
incidental taking of marine mammals by the Navy, if appropriate.
Dated: December 18, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2018-27788 Filed 12-21-18; 8:45 am]
BILLING CODE 3510-22-P