Proposed Rule2022-11577
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
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Published
June 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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 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.
Full Text
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<title>Federal Register, Volume 87 Issue 105 (Wednesday, June 1, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#b6ffe2e698f2d7c0dfc5f6d8d9d7d798d1d9c0"><span class="__cf_email__" data-cfemail="4e071a1e600a2f38273d0e20212f2f60292138">[email protected]</span></a>.
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 <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a> 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>. 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
[[Page 33115]]
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]
BILLING CODE 3510-22-P
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