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37846

Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Proposed Rules
Determination Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, NMFS preliminarily finds that the total marine mammal take from the Specified Activities will have a negligible impact on all affected marine mammal species. In addition as described previously, the Navys proposed implementation of monitoring and mitigation measures would further reduce impacts to marine mammals.
Subsistence Harvest of Marine Mammals In order to issue an incidental take authorization, NMFS must find that the specified activity will not have an unmitigable adverse impact on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined unmitigable adverse impact in 50 CFR
216.103 as an impact resulting from the specified activity: 1 That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: i Causing the marine mammals to abandon or avoid hunting areas; ii Directly displacing subsistence users; or iii Placing physical barriers between the marine mammals and the subsistence hunters;
and 2 That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
To our knowledge there are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence purposes.

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Classification Endangered Species Act There are six marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA with confirmed or possible occurrence in the PMSR Study Area:
Blue whale, fin whale, gray whale, humpback whale, sei whale, and sperm whale. NMFS published a proposed rule on ESA-designated critical habitat for humpback whales 84 FR 54354;
October 9, 2019.
The Navy will consult with NMFS
pursuant to section 7 of the ESA for PMSR Study Area activities. NMFS will also consult internally on the issuance of the regulations and LOA under section 101a5A of the MMPA.

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National Marine Sanctuaries Act NMFS will work with NOAAs Office of National Marine Sanctuaries to fulfill our responsibilities under the National Marine Sanctuaries Act as warranted and will complete any NMSA
requirements prior to a determination on the issuance of the final rule and LOA.
National Environmental Policy Act To comply with the National Environmental Policy Act of 1969
NEPA; 42 U.S.C. 4321 et seq. and NOAA Administrative Order NAO
2166A, NMFS must evaluate our proposed actions and alternatives with respect to potential impacts on the human environment. Accordingly, NMFS plans to adopt the PMSR FEIS/
OEIS for the PMSR Study Area, provided our independent evaluation of the document finds that it includes adequate information analyzing the effects on the human environment of issuing regulations and LOAs under the MMPA. NMFS is a cooperating agency on the 2020 PMSR DEIS/OEIS and has worked extensively with the Navy in developing the document. The 2020
PMSR DEIS/OEIS was made available for public comment 85 FR 55257, April 24, 2020 Also see https pmsreis.com. We will review all comments submitted in response to the request for comments on the 2020 PMSR DEIS/
OEIS and in response to the request for comments on this proposed rule prior to concluding our NEPA process or making a final decision on this proposed rule for the issuance of regulations under the MMPA and any subsequent issuance of a Letter of Authorization LOA to the Navy to incidentally take marine mammals during the specified activities.
Executive Order 12866
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act RFA, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The RFA requires Federal agencies to prepare an analysis of a rules impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605b, that the action will not have a
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significant economic impact on a substantial number of small entities.
The Navy is the sole entity that would be affected by this rulemaking, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA
issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, would be applicable only to the Navy. NMFS does not expect the issuance of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect the Navy and not a small entity, NMFS concludes that the action would not result in a significant economic impact on a substantial number of small entities.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.
Dated: July 1, 2021.
Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
PART 218REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 218
continues to read as follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. Revise subpart B to read as follows:

Subpart BTaking and Importing Marine Mammals; U.S. Navys Point Mugu Sea Range PMSR Training and Testing PMSR
Study Area Sec.
218.10 Specified activity and geographical region.
218.11 Effective dates.
218.12 Permissible methods of taking.
218.13 Prohibitions.
218.14 Mitigation requirements.
218.15 Requirements for monitoring and reporting.
218.16 Letters of Authorization.
218.17 Renewals and modifications of Letters of Authorization.
218.18 Reserved 218.19 Reserved
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