2024-20715. Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Military Readiness Activities in the Atlantic Fleet Training and Testing Study Area

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Department of Commerce

National Oceanic and Atmospheric Administration

1. [RTID 0648-XE062]

AGENCY:

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

ACTION:

Notice; receipt of application for regulations and Letters of Authorization; request for comments and information.

SUMMARY:

NMFS has received a request from the U.S. Department of the Navy (including the U.S. Navy (Navy) and the U.S. Marine Corps) and on behalf of the U.S. Coast Guard (Coast Guard; hereafter, Navy, U.S. Marine Corps, and Coast Guard are collectively referred to as Action Proponents) for authorization to take marine mammals incidental to training and testing activities conducted in the Atlantic Fleet Training and Testing (AFTT) Study Area over the course of 7 years from November 2025 through November 2032. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the Action Proponents' request for the development and implementation of regulations governing the incidental taking of marine mammals and issuance of three, 7-year Letters of Authorization (LOAs). NMFS invites the public to provide information, suggestions, and comments on the Action Proponents' application and request.

DATES:

Comments and information must be received no later than October 21, 2024.

ADDRESSES:

Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, and should be sent to [e-mail]. An electronic copy of the Action Proponents' 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 the document, please call the contact listed below.

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:

Alyssa Clevenstine, Office of Protected Resources, NMFS, [phone].

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 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), will not have an ( print page 77107) unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the monitoring and reporting of the takings.

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 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 7 years.

Summary of Request

On May 28, 2024, NMFS received an application from the Action Proponents requesting authorization to take marine mammals, by Level A and Level B harassment, incidental to training and testing (characterized as military readiness activities) including the use of sonar and other transducers, in-water detonations, air guns, and impact and vibratory pile driving and extraction in the AFTT Study Area. In addition, the Action Proponents are requesting authorization of 5 takes by mortality of 2 marine mammal species from explosives during Navy training exercises, 44 takes by mortality of 9 marine mammal species from ship shock trials during Navy testing activities, and of 6 takes of large whales by serious injury or mortality from vessel strikes over the 7-year period of the LOAs: 3 takes incidental to the Navy's training and testing activities, and 3 takes incidental to the Coast Guard's training activities. In response to our comments and following information exchange, Action Proponents submitted a final revised application on August 16, 2024, that we determined was adequate and complete on August 19, 2024. The Action Proponents requested the regulations and subsequent LOAs be valid for 7 years beginning in November 2025.

This will be the fourth time NMFS has promulgated incidental take regulations pursuant to the MMPA relating to similar military readiness activities in AFTT, following those effective from January 22, 2009, through January 22, 2014 (74 FR 4844), from November 14, 2013, through November 13, 2018 (78 FR 73009, December 4, 2013), and from November 14, 2018, through November 13, 2023 (83 FR 57076, November 14, 2018), which was subsequently extended until November 13, 2025 (84 FR 70712, December 23, 2019) due to amendments to the NDAA (Pub. L. 115-232).

Description of the Specified Activity

The AFTT Study Area includes areas of the western Atlantic Ocean along the east coast of North America, the Gulf of Mexico, and portions of the Caribbean Sea, covering approximately 2.6 million square nautical miles (nmi² ) of ocean area, oriented from the mean high tide line along the U.S. coast and extending east to 45-degree W longitude line, north to 65-degree N latitude line, and south to approximately the 20-degree N latitude line. Please refer to figure 1.1-1 of the application for a map of the AFTT Study Area and figure 2.1-1 through figure 2.1-5 for additional maps of the range complexes and testing ranges.

The following types of training and testing, which are classified as military readiness activities pursuant to the section 315(f) of Public Law 101-314 (16 U.S.C. 703), are included in the specified activity described in the Action Proponents' application:

• Amphibious warfare (in-water detonations),
• Anti-submarine warfare (sonar and other transducers, in-water detonations),
• Expeditionary warfare (in-water detonations, pile driving/extraction),
• Mine warfare (sonar and other transducers, in-water detonations),
• Surface warfare (in-water detonations), and
• Other (sonar and other transducers, air guns, vessel movement).

The application includes proposed mitigation measures for marine mammals that would be implemented during training and testing activities in the AFTT Study Area (see section 11 of the application). Proposed procedural mitigation generally involves: (1) the use of one or more trained Lookouts to diligently observe for specific biological resources within a mitigation zone, (2) requirements for Lookouts to immediately communicate sightings of specific biological resources to the appropriate watch station for information dissemination, and (3) requirements for the watch station to implement mitigation ( e.g., halt an activity) until certain recommencement conditions have been met. Mitigation measures are also proposed for specific mitigation areas and consist of a variety of measures in those areas including, but not limited to: conducting a certain number of major training exercises per year, not planning or avoiding planning major training exercises, minimizing or not conducting active sonar, conducting a limited amount of hull-mounted mid-frequency active sonar per year, not expending explosive or non-explosive ordnance, and implementing vessel speed reductions in certain circumstances.

The Action Proponents also propose to undertake monitoring and reporting efforts to better understand the impacts of their activities on marine mammals and their habitat, track compliance with take authorizations, and to help investigate the effectiveness of implemented mitigation measures in the AFTT Study Area.

Information Solicited

Interested persons may submit information, suggestions, and comments concerning the Action Proponents' 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 Action Proponents, if appropriate.

Dated: September 9, 2024.

Kimberly Damon-Randall,

Director, Office of Protected Resources, National Marine Fisheries Service.