Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Military Readiness Activities in the Atlantic Fleet Training and Testing Study Area

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 218</CFR> <DEPDOC>[Docket No. 250430-0074]</DEPDOC> <RIN>RIN 0648-BN17</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Military Readiness Activities in the Atlantic Fleet Training and Testing Study Area</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; proposed letters of authorization; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS has received a request from the U.S. Department of the Navy (including the U.S. Navy and the U.S. Marine Corps (Navy)) and on behalf of the U.S. Coast Guard (Coast Guard; hereafter, Navy and Coast Guard are collectively referred to as Action Proponents) for Incidental Take Regulations (ITR) and three associated Letters of Authorization (LOAs) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take of marine mammals incidental to training and testing activities conducted in the Atlantic Fleet Training and Testing (AFTT) Study Area over the course of seven years from November 2025 through November 2032. NMFS requests comments on this proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOAs; agency responses to public comments will be summarized in the final rule, if issued. The Action Proponents' activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA). </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than June 9, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2024-0115.</E> You may submit comments on this document, identified by NOAA-NMFS-2024-0115, by any of the following methods: • <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Visit <E T="03">https://www.regulations.gov</E> and type NOAA-NMFS-2024-0115 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments. • <E T="03">Mail:</E> Submit written comments to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. • <E T="03">Fax:</E> (301) 713-0376; Attn: Jolie Harrison. <E T="03">Instructions:</E> Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. 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, or Adobe PDF file formats only. A copy of the Action Proponents' Incidental Take Authorization (ITA) application and supporting documents, as well as a list of the references cited in this document, may be obtained online at <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.</E> In case of problems accessing these documents, please call the contact listed below (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Alyssa Clevenstine, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This proposed rule, if promulgated, would provide a framework under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) to allow for the authorization of take of marine mammals incidental to the Action Proponents' training and testing activities (which qualify as military readiness activities) involving the use of active sonar and other transducers, air guns, and explosives (also referred to as “in-water detonations”); pile driving and vibratory extraction; and vessel movement in the AFTT Study Area. The AFTT Study Area includes air and water space of the western Atlantic Ocean along the east coast of North America, the Gulf of America (formerly Gulf of Mexico), and portions of the Caribbean Sea, covering approximately 2.6 million square nautical miles (nmi <SU>2</SU> ; 8.9 million square kilometers (km <SU>2</SU> )) of ocean area (see figure 1.1-1 of the rulemaking and LOA application (hereafter referred to as the application)). Please see the Legal Authority for the Proposed Action section for relevant definitions. <HD SOURCE="HD1">Legal Authority for the Proposed Action</HD> 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 <E T="03">et seq.</E> ) 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 and the opportunity to submit comment. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an 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; 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. The MMPA defines “take” to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. The Preliminary Analysis and Negligible Impact Determination section discusses the definition of “negligible impact.” The 2004 NDAA (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). The 2004 NDAA also amended the MMPA establishing that “[f]or military readiness activity . . . , a determination of `least practicable adverse impact' . . . shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.” On August 13, 2018, the NDAA for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232) amended the MMPA to allow incidental take regulations for military readiness activities to be issued for up to 7 years. <HD SOURCE="HD1">Summary of Major Provisions Within the Proposed Rule</HD> The major provisions of this proposed rule are: (i) The proposed take of marine mammals by Level A harassment and/or Level B harassment; (ii) The proposed take of marine mammals by mortality or serious injury (M/SI); (iii) The proposed use of defined powerdown and shutdown zones (based on activity); (iv) Proposed measures to reduce the likelihood of vessel strikes; (v) Proposed activity limitations in certain areas and times that are biologically important ( <E T="03">i.e.,</E> for foraging, migration, reproduction) for marine mammals; (vi) The proposed implementation of a Notification and Reporting Plan (for dead, live stranded, or marine mammals struck by any vessel engaged in military readiness activities); and (vii) The proposed implementation of a robust monitoring plan to improve our understanding of the environmental effects resulting from the Action Proponents' training and testing activities. This proposed rule includes an adaptive management component that allows for timely modification of mitigation, monitoring, and/or reporting measures based on new information, when appropriate. <HD SOURCE="HD1">Summary of Request</HD> 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 read ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 1301k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━