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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 218</CFR> <DEPDOC>[Docket No. 251030-0166]</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> Final rule; notification of issuance of letters of authorization. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS, upon 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), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of 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. These regulations, which allow for the issuance of letters of authorization (LOAs) for the incidental take of marine mammals during specified activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking. 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) and the NDAA for Fiscal Year 2019 (2019 NDAA). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective from November 14, 2025, through November 13, 2032. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A copy of the Action Proponents' incidental take authorization (ITA) application and supporting documents, NMFS' proposed and final rules and subsequent LOAs for these regulations, 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> These regulations, issued under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ), 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 (including in-water explosives and underwater 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 application). Please see the Legal Authority for the Final Action section for relevant definitions. <HD SOURCE="HD1">Legal Authority for the Final Action</HD> The MMPA prohibits the “take” of marine mammals, with certain exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) directs 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 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 section 101(a)(5)(A)(iii) of 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 2019 NDAA (Pub. L. 115-232) amended section 101(a)(5)(A)(ii) of 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 Final Rule</HD> The major provisions of this rule are: • Take of marine mammals by Level A harassment and/or Level B harassment; • Take of marine mammals by mortality or serious injury (M/SI); • Use of defined powerdown and shutdown zones (based on activity); • Measures to reduce the likelihood of vessel strikes; • Activity limitations in certain areas and times that are biologically important ( <E T="03">i.e.,</E> for foraging, migration, reproduction) for marine mammals; • Implementation of a Notification and Reporting Plan (for dead, live stranded, or marine mammals struck by any vessel engaged in military readiness activities); and • Implementation of a robust monitoring plan to improve our understanding of the environmental effects resulting from the Action Proponents' training and testing activities. This 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 readiness activities) including the use of sonar and other transducers, explosives, air guns, and impact and vibratory pile driving and extraction conducted within the AFTT Study Area. In addition, the Action Proponents requested authorization to take, by serious injury or mortality, a limited number of several marine mammal species incidental to use of explosives, ship shock trials, and vessel movement during military readiness activities conducted within the AFTT Study Area over the 7-year period of the LOAs. In response to our comments and following information exchange, the Action Proponents submitted a final revised application on August 16, 2024, that we determined was adequate and complete on August 19, 2024. On September 20, 2024, we published a notice of receipt (NOR) of application in the <E T="04">Federal Register</E> (89 FR 77106), requesting comments and information related to the Action Proponents' specified activities. During the 30-day public comment period, we did not receive any public comments. On October 8, 2024, the Action Proponents submitted an updated application to revise take estimates for a subset of Navy activities. On January 21, 2025, the Action Proponents submitted an updated application which removed ship shock trials and estimated take associated with that activity within the Virginia Capes (VACAPES) Range Complex. On February 13, 2025, the Action Proponents submitted an updated application containing minor revisions. On May 9, 2025, we published a proposed rule (90 FR 19858) and requested comments and information related to the Action Proponents' request for 30 days. All relevant comments received during the proposed rulemaking comment period were considered in this fi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 632k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━