E9-3413. Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active Sonar Training (AFAST)

AGENCY:

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Notice; issuance of a letter of authorization.

SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notification is hereby given that a 1-year letter of authorization (LOA) has been issued to the U.S Navy (Navy) for the incidental take of marine mammals during the Navy's Atlantic Fleet Active Sonar Training (AFAST) activities conducted off the Atlantic Coast and in the Gulf of Mexico. These activities are considered military readiness activities pursuant to the Marine Mammal Protection Act (MMPA), as amended by the National Defense Authorization Act of 2004 (NDAA).

DATES:

Effective January 22, 2009, through January 21, 2010.

ADDRESSES:

The LOA and supporting documentation are available 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 20910-3225, by telephoning one of the contacts listed here (FOR FURTHER INFORMATION CONTACT), or online at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm.

FOR FURTHER INFORMATION CONTACT:

Jolie Harrison, Office of Protected Resources, NMFS.

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, the Secretary shall 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 NDAA (Public Law 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].

Summary of Request

On February 4, 2008, NMFS received an application from the Navy requesting authorization for the take of 40 species of marine mammals incidental to upcoming Navy AFAST activities, including training, maintenance, and research, development, testing, and evaluation (RDT&E), to be conducted within the AFAST Study Area, which extends east from the Atlantic Coast of the U.S. to 45° W. long. and south from the Atlantic and Gulf of Mexico Coasts to approximately 23° N. lat., but not encompassing the Bahamas (see Figure 1 1 in the Navy's Application), over the course of 5 years. These activities are classified as military readiness activities. These activities may incidentally take marine mammals present within the AFAST Study Area by exposing them to sound from mid-frequency or high frequency active sonar (MFAS/HFAS) or to underwater detonations at levels that NMFS associates with the take of marine mammals. The Navy requested authorization to take individuals of 40 species of marine mammals by Level B Harassment. Further, though they do not anticipate it to occur, the Navy requested authorization to take, by injury or mortality, up to 10 individual beaked whales over the course of the 5-year regulations.

Authorization

On January 22, 2009, NMFS' final rule governing the take of marine mammals incidental the Navy's AFAST activities became effective. In accordance with the final rule, NMFS issued an LOA to the Navy on January 22, 2009, authorizing Level B harassment of 40 species of marine mammals and mortality of 10 individual beaked whales incidental to U.S. Navy training, maintenance, and RDT&E activities in the AFAST Study Area. Issuance of this LOA is based on findings, described in the preamble to the final rule (74 FR 4844, January 27, 2009), that the taking resulting from the activities described in this LOA will have a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses. The LOA describes the permissible methods of taking and includes requirements pertaining to the mitigation, monitoring and reporting of such taking.

Dated: February 11, 2009.

P. Michael Payne,

Chief, Permits, Conservation, and Recreation, Office of Protected Resources, National Marine Fisheries Service.