[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Proposed Rules]
[Pages 70695-70702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29494]
[[Page 70695]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 218
[Docket No. 111019636-1638-01]
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: Proposed rule; request for comments.
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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 proposes to amend 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
proposes to amend 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: Comments and information must be received no later than December
15, 2011.
ADDRESSES: You may submit comments, identified by 0648-BB53, 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.
Regarding the Navy action, a copy 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, a copy 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, Conservation and Education
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910 or by
telephone via the contact listed here (see FOR FURTHER INFORMATION
CONTACT).
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, to issue a notice
of proposed authorization for public 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 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 Marine Mammal
Protection Act (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 Keyport Range Complex,
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-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, which allow for
the issuance of annual ``Letters of Authorization'' (LOAs) for the
incidental take of marine mammals during the specified activities and
[[Page 70696]]
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 regulation (which
allows 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 training
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 the proposed revision to the timing
of LOA renewals, the period of validity for the LOAs would be extended
past one year, but will not exceed the time remaining on the 5-year
rule. For example, under the proposed revision, 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 would still require the Navy to submit annual monitoring
and exercise reports, NMFS and the Navy would still hold annual
monitoring and adaptive management meetings, and LOAs could still be
changed based on the availability of new information regarding training
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 if the total number of takes remain within the analyzed and
authorized limits. 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. 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). NMFS now proposes to amend the regulations for
the remaining Navy training ranges to allow this same flexibility and
ensure consistency.
The USAF regulations for activities at VAFB as first issued
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 if the total
number of takes remains 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 proposes to amend 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
Gulf of Alaska Temporary Maritime Training Activities Area (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 Gulf of Alaska rule, the Navy
inquired about proposing amendments to the previously implemented Navy
rules that would enable NMFS to renew LOAs for other training 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 proposed modification would amend 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, Keyport, GOA
TMAA and GOMEX. The regulations for these range complexes currently
limit the period of validity for LOAs to one year (two for GOA TMAA)
and the Navy must request renewal of LOAs annually (biennially for GOA
TMAA). Although the proposed amendments would increase the period of
validity for LOAs, the regulations would 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 reporting period (i.e., one year).
Interannual Flexibility (Source Type and Amount of Use)
With respect to the second proposed modification regarding the
types of sources for which incidental take is authorized, in some cases
the Navy's rules identified the most representative or highest power
source to represent a group of known similar sources. Additionally, the
Navy regularly modifies or develops new technologies, which often
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 proposes to include 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
[[Page 70697]]
analysis). In the February 8, 2011, modification to the HRC, SOCAL, and
AFAST 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). NMFS now proposes inserting similar
language in the following Navy rules: CHPT; NSWC PCD; MIRC; 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. The proposed rule would amend 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 proposes including language of this nature in
the regulations governing the authorization of take incidental to the
additional Navy range complex 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 would
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 allowed under the 5-
year regulations.
Classification
The Office of Management and Budget has determined that this
proposed 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
proposed rule, if adopted, 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 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. The Navy and USAF are the only
entities that will be affected by this rulemaking, not a small
governmental jurisdiction, small organization, or small business, 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, if adopted, 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.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine
mammals, Navy, Penalties, Reporting and recordkeeping requirements,
Seafood, Sonar, Transportation.
[[Page 70698]]
Dated: November 8, 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 216 is proposed
to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
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,
* * * * *
3. Section 216.121 is revised to read as follows:
Sec. 216.121 Effective dates.
Amended regulations are effective from the date of publication of
the final rule, through February 6, 2014.
4. 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 the date of publication
of the final rule, through January 5, 2014.
* * * * *
5. 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.
* * * * *
6. In Sec. 216.178 paragraphs (a), (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.
* * * * *
7. 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 the date of publication
of the final rule, through January 22, 2014.
* * * * *
8. 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.
* * * * *
9. In Sec. 216.248 paragraphs (a), (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.
* * * * *
10. 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.
* * * * *
11. 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.
* * * * *
12. In Sec. 216.278, paragraphs (a), (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.
* * * * *
For reasons set forth in the preamble, 50 CFR part 218 is proposed
to be amended as follows:
PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
13. The authority citation for part 218 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
14. In Sec. 218.1, paragraph (d) is revised to read as follows:
Sec. 218.1 Specified activity and specified geographical area and
effective dates.
* * * * *
[[Page 70699]]
(d) Amended regulations are effective from the date of publication
of the final rule, through June 4, 2016.
* * * * *
15. In Sec. 218.7 paragraph (a) is revised to read as follows:
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.
* * * * *
16. In Sec. 218.8 paragraphs (a), (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.
* * * * *
17. In Sec. 218.10, paragraph (d) is revised to read as follows:
Sec. 218.10 Specified activity and specified geographical area and
effective dates.
* * * * *
(d) Amended regulations are effective on the date of publication of
the final rule, through June 4, 2016.
* * * * *
18. 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.
* * * * *
19. In Sec. 218.17 paragraphs (a), (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.
* * * * *
20. 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 from the date of publication of the
final rule, 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).
21. 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).
* * * * *
22. 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.
* * * * *
23. In Sec. 218.27 paragraphs (a), (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 during the upcoming
period of validity of a renewed Letter of Authorization.
* * * * *
24. 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 from the date of publication of the
final rule, 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
[[Page 70700]]
the variation does not result in exceeding the amount of take indicated
in Sec. 218.31(c).
25. 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).
* * * * *
26. 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.
* * * * *
27. In Sec. 218.37 paragraphs (a), (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.
* * * * *
28. 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:
* * * * *
29. Section 218.101 is revised to read as follows:
Sec. 218.101 Effective dates.
Amended regulations are effective from the date of publication of
the final rule, through August 3, 2015.
30. 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.
* * * * *
31. In Sec. 218.108 paragraphs (a), (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.
* * * * *
32. 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:
* * * * *
33. Section 218.111 is revised to read as follows:
Sec. 218.111 Effective dates.
Amended regulations are effective from the date of publication of
the final rule, through November 9, 2015.
34. 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 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.
* * * * *
35. In Sec. 218.118 paragraphs (a), (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.
* * * * *
36. Section 218.121 is revised to read as follow:
[[Page 70701]]
Sec. 218.121 Effective dates.
Amended regulations in this subpart are effective from the date of
publication of the final rule, through May 4, 2016.
37. 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.
* * * * *
38. In Sec. 218.128 paragraphs (a), (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.
* * * * *
39. 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 from the date of publication
of the final rule, 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).
40. 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 periods 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.
* * * * *
41. In Sec. 218.177 paragraphs (a), (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.
* * * * *
42. 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 from the date of publication
of the final rule, 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 result in
exceeding the amount of take indicated in Sec. 218.181(b).
43. 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.
* * * * *
44. In Sec. 218.187 paragraphs (a), (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
[[Page 70702]]
during the upcoming period of validity of a renewed Letter of
Authorization.
* * * * *
[FR Doc. 2011-29494 Filed 11-14-11; 8:45 am]
BILLING CODE 3510-22-P