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Federal Register/Vol. 85, No. 219/Thursday, November 12, 2020/Rules and Regulations

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Federal Register/Vol. 85, No. 219/Thursday, November 12, 2020/Rules and Regulations 72312 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations DEPARTMENT OF COMMERCE Purpose of Regulatory Action • Activity limitations in certain areas These regulations, issued under the and times that are biologically National Oceanic and Atmospheric authority of the MMPA (16 U.S.C. 1361 important (e.g., for foraging or Administration et seq.), provide the framework for migration) for marine mammals; • Implementation of a Notification authorizing the take of marine mammals 50 CFR Part 218 and Reporting Plan (for dead or live incidental to the Navy’s training and stranded marine mammals); and testing activities (which qualify as [Docket No. 201020–0272] • Implementation of a robust military readiness activities) from the monitoring plan to improve our use of sonar and other transducers, in- RIN 0648–BJ30 understanding of the environmental water detonations, and potential vessel effects resulting from the Navy training strikes based on Navy movement in the Taking and Importing Marine and testing activities. NWTT Study Area. The NWTT Study Mammals; Taking Marine Mammals Additionally, the rule includes an Area includes air and water space off Incidental to the U.S. Navy Training adaptive management component that the coast of Washington, Oregon, and and Testing Activities in the Northwest allows for timely modification of Northern California; in the Western Training and Testing (NWTT) Study mitigation or monitoring measures Behm Canal, Alaska; and portions of Area based on new information, when waters of the Strait of Juan de Fuca and appropriate. AGENCY: National Marine Fisheries Puget Sound, including Navy pierside Service (NMFS), National Oceanic and and harbor locations in Puget Sound Background Atmospheric Administration (NOAA), (see Figure 1–1 of the Navy’s The MMPA prohibits the ‘‘take’’ of Commerce. rulemaking/LOA application). marine mammals, with certain ACTION: Final rule; notification of NMFS received an application from exceptions. Sections 101(a)(5)(A) and issuance of Letters of Authorization. the Navy requesting seven-year (D) of the MMPA direct the Secretary of regulations and authorizations to Commerce (as delegated to NMFS) to SUMMARY: NMFS, upon request from the incidentally take individuals of multiple allow, upon request, the incidental, but U.S. Navy (Navy), issues these species of marine mammals (‘‘Navy’s not intentional, taking of small numbers regulations pursuant to the Marine rulemaking/LOA application’’ or of marine mammals by U.S. citizens Mammal Protection Act (MMPA) to ‘‘Navy’s application’’). Take is who engage in a specified activity (other govern the taking of marine mammals anticipated to occur by Level A than commercial fishing) within a incidental to the training and testing harassment and Level B harassment as specified geographical region if certain activities conducted in the Northwest well as a very small number of serious findings are made and either regulations Training and Testing (NWTT) Study injuries or mortalities incidental to the are issued or, if the taking is limited to Area. The Navy’s activities qualify as Navy’s training and testing activities. harassment, a notice of proposed military readiness activities pursuant to Section 101(a)(5)(A) of the MMPA (16 authorization is provided to the public the MMPA, as amended by the National U.S.C. 1371(a)(5)(A)) directs the for review and the opportunity to Defense Authorization Act for Fiscal Secretary of Commerce (as delegated to submit comments. Year 2004 (2004 NDAA). These NMFS) to allow, upon request, the An authorization for incidental regulations, which allow for the incidental, but not intentional taking of takings shall be granted if NMFS finds issuance of Letters of Authorization small numbers of marine mammals by that the taking will have a negligible (LOA) for the incidental take of marine U.S. citizens who engage in a specified impact on the species or stocks and will mammals during the described activities activity (other than commercial fishing) not have an unmitigable adverse impact and timeframes, prescribe the within a specified geographical region on the availability of the species or permissible methods of taking and other if, after notice and public comment, the stocks for taking for subsistence uses means of effecting the least practicable agency makes certain findings and (where relevant). Further, NMFS must adverse impact on marine mammal issues regulations that set forth prescribe the permissible methods of species and their habitat, and establish permissible methods of taking pursuant taking and other means of effecting the requirements pertaining to the to that activity, as well as monitoring least practicable adverse impact on the monitoring and reporting of such taking. and reporting requirements. Section affected species or stocks and their DATES: Effective from November 9, 2020 101(a)(5)(A) of the MMPA and the habitat, paying particular attention to to November 8, 2027. implementing regulations at 50 CFR part rookeries, mating grounds, and areas of 216, subpart I, provide the legal basis for similar significance, and on the ADDRESSES: A copy of the Navy’s issuing this final rule and the availability of the species or stocks for application, NMFS’ proposed and final subsequent LOAs. As directed by this taking for certain subsistence uses rules and subsequent LOAs for the legal authority, this final rule contains (referred to in this rule as ‘‘mitigation existing regulations, and other mitigation, monitoring, and reporting measures’’); and requirements supporting documents and documents requirements. pertaining to the monitoring and cited herein may be obtained online at: reporting of such takings. The MMPA www.fisheries.noaa.gov/national/ Summary of Major Provisions Within defines ‘‘take’’ to mean to harass, hunt, marine-mammal-protection/incidental- the Final Rule capture, or kill, or attempt to harass, take-authorizations-military-readiness- The following is a summary of the hunt, capture, or kill any marine activities. In case of problems accessing major provisions of this final rule mammal. The Analysis and Negligible these documents, please use the contact regarding the Navy’s activities. Major Impact Determination section below listed here (see FOR FURTHER provisions include, but are not limited discusses the definition of ‘‘negligible INFORMATION CONTACT). to: impact.’’ FOR FURTHER INFORMATION CONTACT: • The use of defined powerdown and The NDAA for Fiscal Year 2004 (2004 Leah Davis, Office of Protected shutdown zones (based on activity); NDAA) (Pub. L. 108–136) amended Resources, NMFS, (301) 427–8401. • Measures to reduce the likelihood section 101(a)(5) of the MMPA to SUPPLEMENTARY INFORMATION: of ship strikes; remove the ‘‘small numbers’’ and VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72313 ‘‘specified geographical region’’ amendment to its application which the naval forces of the United States. provisions indicated above and incorporated new Southern Resident The Navy executes this responsibility in amended the definition of ‘‘harassment’’ killer whale offshore density part by training and testing at sea, often as applied to a ‘‘military readiness information, and on December 19, 2019, in designated operating areas (OPAREA) activity.’’ The definition of harassment the Navy submitted an amendment to its and testing and training ranges. The for military readiness activities (Section application which incorporated revised Navy must be able to access and utilize 3(18)(B) of the MMPA) is (i) Any act that testing activity numbers. On June 2, these areas and associated sea space and injures or has the significant potential to 2020, we published a notice of proposed air space in order to develop and injure a marine mammal or marine rulemaking (85 FR 33914) and requested maintain skills for conducting naval mammal stock in the wild (Level A comments and information related to operations. The Navy’s testing activities Harassment); or (ii) Any act that the Navy’s request for 45 days. All ensure naval forces are equipped with disturbs or is likely to disturb a marine comments received during the NOR and well-maintained systems that take mammal or marine mammal stock in the the proposed rulemaking comment advantage of the latest technological wild by causing disruption of natural periods were considered in this final advances. The Navy’s research and behavioral patterns, including, but not rule. Comments received on the acquisition community conducts limited to, migration, surfacing, nursing, proposed rule are addressed in this final military readiness activities that involve breeding, feeding, or sheltering, to a rule in the Comments and Responses testing. The Navy tests ships, aircraft, point where such behavioral patterns section. weapons, combat systems, sensors, and are abandoned or significantly altered The following types of training and related equipment, and conducts (Level B harassment). In addition, the testing, which are classified as military scientific research activities to achieve 2004 NDAA amended the MMPA as it readiness activities pursuant to the and maintain military readiness. relates to military readiness activities MMPA, as amended by the 2004 NDAA, The Navy has been conducting such that the least practicable adverse will be covered under the regulations
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