[Federal Register Volume 87, Number 105 (Wednesday, June 1, 2022)]
[Proposed Rules]
[Pages 33113-33115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11577]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[RTID 0648-XC018]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Hawaii-Southern California Training and Testing Study Area

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

ACTION: Receipt of application for revision of regulations and Letters 
of Authorization; request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
revision of the existing regulations and Letters of Authorization 
(LOAs) authorizing the take of marine mammals incidental to Navy 
training and testing activities conducted in the Hawaii-Southern 
California Training and Testing (HSTT) Study Area. In 2021, two 
separate U.S. Navy vessels struck unidentified large whales on two 
separate occasions, one

[[Page 33114]]

whale in June 2021 and one whale in July 2021. NMFS and the Navy 
discussed the vessel strikes, and the Navy has reanalyzed the potential 
for vessel strike in the HSTT Study Area. As a result, the Navy has 
requested two additional takes of large whales by serious injury or 
mortality by vessel strike for the remainder of the current regulatory 
period. Pursuant to regulations implementing the Marine Mammal 
Protection Act (MMPA), NMFS is announcing receipt of the Navy's 
application for the development and implementation of revised 
regulations governing this additional incidental taking of marine 
mammals. NMFS invites the public to provide information, suggestions, 
and comments on the Navy's application and request.

DATES: Comments and information must be received no later than July 1, 
2022.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service and should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities 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: Leah Davis, 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

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. 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 proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental harassment authorization is provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), finds that the taking 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 defines ``take'' to mean to harass, hunt, capture, kill or 
attempt to harass, hunt, capture, or kill any marine mammal.
    The National Defense Authorization Act (NDAA) for Fiscal Year 2004 
(Pub. L. 108-136) amended section 101(a)(5) of the MMPA to remove the 
``small numbers'' and ``specified geographical region'' provisions and 
amended the definition of ``harassment'' as applied 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). On August 13, 2018, the NDAA for Fiscal Year 2019 (Pub. 
L. 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 March 31, 2022, NMFS received an adequate and complete 
application (Navy's 2022 rulemaking/LOA application) from the Navy 
requesting that NMFS modify the existing regulations and LOAs to 
authorize two additional takes of large whales by serious injury or 
mortality by vessel strike over the remainder of the HSTT authorization 
period. The current HSTT regulations (50 CFR part 218, subpart H) and 
LOAs authorize the take of marine mammals from the Navy's training and 
testing activities in the HSTT Study Area through December 20, 2025. 
These regulations and LOAs authorize the take of three large whales by 
serious injury or mortality by vessel strike.
    The Navy's 2022 request is based upon new information regarding 
U.S. Navy vessel strikes off the coast of southern California. As 
described in the Navy's 2022 rulemaking/LOA application, in 2021, two 
separate U.S. Navy vessels struck unidentified large whales off the 
coast of southern California on two separate occasions, one whale in 
June 2021 and one whale in July 2021. (Separately, a foreign naval 
vessel struck two fin whales off the coast of southern California in 
May 2021.)
    The regulatory revision would be conducted through a proposed and 
final rulemaking analyzing the total proposed authorized take, 
including the requested additional takes of large whales by serious 
injury or mortality, consistent with the requirements of section 
101(a)(5)(A) of the MMPA. The Navy's specified activities have not 
changed. Specifically, the activities include the same level and type 
of training and testing (all categorized as military readiness 
activities) including the same 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 HSTT 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.

Description of Activity

    In the Navy's 2022 rulemaking/LOA application, the Navy proposes no 
changes to the specified activities covered by the 2020 HSTT final rule 
(85 FR 41780; July 10, 2020). The level of activity within and between 
years would be consistent with that previously analyzed in the 2020 
HSTT final rule (85 FR 41780; July 10, 2020), and all activities would 
be conducted within the same boundaries of the HSTT

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Study Area identified in the 2020 HSTT final rule (85 FR 41780; July 
10, 2020). Therefore, the training and testing activities (e.g., 
equipment and sources used, exercises conducted) are identical to those 
described and analyzed in the 2020 HSTT final rule (85 FR 41780; July 
10, 2020), including the level of vessel use.
    Given the new information regarding U.S. Navy vessel strikes of 
large whales off the coast of southern California, the Navy's 2022 
rulemaking/LOA application includes a revised analysis of vessel strike 
in the HSTT Study Area and a request for two additional takes by 
serious injury or mortality for large whales from vessel strikes, 
beyond that authorized in the 2020 HSTT final rule (85 FR 41780; July 
10, 2020).
    Regarding the quantification of expected takes from acoustic and 
explosive sources (by Level A harassment 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, and 
the Navy has not changed these take numbers in its 2022 rulemaking/LOA 
application.
    The Navy has changed its policy regarding Lookouts to require the 
use of three Lookouts on Navy cruisers and destroyers (the only types 
of Navy vessels that have struck whales in the Pacific) while underway, 
as compared to the previous requirement of one Lookout when a vessel 
was underway and not engaged in sonar training or testing. The Navy has 
included this update in its 2022 application. Otherwise, the 
mitigation, monitoring, and reporting measures included in the Navy's 
rulemaking/LOA application are identical to those described and 
analyzed in the 2020 HSTT final rule (85 FR 41780; July 10, 2020). 
Please see Section 11.1 (Standard Operating Procedures) and Section 
11.2 (Mitigation Measures) of the Navy's 2022 rulemaking/LOA 
application, respectively, for additional detail. Mitigation would 
continue to include procedural mitigation measures and mitigation 
areas. Procedural mitigation would continue to include, but not be 
limited to, the use of trained Lookouts to monitor for marine mammals 
in mitigation zones, requirements for Lookouts to immediately provide 
notification of sightings to the appropriate watch station, 
requirements for implementation of powerdown and shutdown mitigation 
measures (based on activity defined zones), pre- and post-monitoring 
requirements for explosive events, and measures to reduce the 
likelihood of vessel strikes. Chapter 5 of the 2018 HSTT Final 
Environmental Impact Statement/Overseas Environmental Impact Statement 
(FEIS/OEIS) and the Mitigation Measures section of the 2018 HSTT final 
rule include detailed descriptions of mitigation measures for each 
specified activity in the HSTT Study Area. The Navy would also continue 
to implement mitigation measures within certain areas (Mitigation 
Areas) and/or at certain times to avoid or minimize potential impacts 
on marine mammals in areas and/or times where they are known to engage 
in biologically important behaviors (i.e., for foraging, migration, 
reproduction), where the disruption of those behaviors would be more 
likely to result in population-level impacts. The Mitigation Measures 
section in the 2018 HSTT final rule includes detailed descriptions of 
geographic mitigation measures in the HSTT Study Area. Maps and tables 
of the mitigation areas can be found in Chapter 5 of the 2018 HSTT 
FEIS/OEIS.
    The Navy would continue implementation of the robust Integrated 
Comprehensive Monitoring Program and Strategic Planning Process 
outlined in the current regulations at 50 CFR part 218, subpart H. The 
Navy's monitoring strategy, currently required by the existing 
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 revised regulations would include identical adaptive management 
provisions and reporting requirements as the existing regulations.

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: May 24, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-11577 Filed 5-31-22; 8:45 am]
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