[Federal Register Volume 81, Number 160 (Thursday, August 18, 2016)]
[Notices]
[Pages 55177-55180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19673]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XE781
Taking and Importing Marine Mammals: Taking Marine Mammals
Incidental to Navy Operations of Surveillance Towed Array Sensor System
Low Frequency Active Sonar
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of four Letters of Authorization.
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SUMMARY: In accordance with regulations issued under the Marine Mammal
Protection Act, as amended, we hereby give notification that we, the
National Marine Fisheries Service (NMFS), have issued four one-year
Letters of Authorization (Authorizations) to the U.S. Navy (Navy) to
take marine mammals by harassment incidental to their military
readiness activities associated with the routine training, testing, and
military operations of Surveillance Towed Array Sensor System Low
Frequency Active (SURTASS LFA) sonar within the western and central
North Pacific Ocean and Indian Ocean.
DATES: These Authorizations are effective from August 15, 2016, through
August 14, 2017.
ADDRESSES: Electronic copies of the Navy's April 5, 2016 application
letter and the Authorizations are available by writing 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, by telephoning the contact listed here
(See FOR FURTHER INFORMATION CONTACT), or online at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm#surtass. The
public may view the documents cited in this notice, by appointment,
during regular business hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Dale Youngkin, Office of Protected
Resources, NMFS (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16
U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon
request, the incidental, but not intentional taking of marine mammals
by U.S. citizens if
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certain findings are made and regulations are issued. Under the MMPA,
the term ``take'' means to harass, hunt, capture, or kill or to attempt
to harass, hunt, capture, or kill marine mammals. We, NMFS, have been
delegated the authority to issue such regulations and Authorizations.
With respect to military readiness activities, the MMPA defines
harassment as ``(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].''
Authorization may be granted for periods of five years or less if
we find that the total taking will have a negligible impact on the
affected species or stock(s) and will not have an unmitigable adverse
impact on the availability of the species or stock(s) for taking for
certain subsistence uses. In addition, we must prescribe regulations
that include permissible methods of taking and other means effecting
the least practicable adverse impact on the species or stock and its
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 subsistence uses. The regulations also must
include requirements pertaining to the monitoring and reporting of such
taking.
Regulations governing the taking of marine mammals incidental to
the Navy's routine training, testing, and military operations of
SURTASS LFA sonar are in effect through August 15, 2017 (77 FR 50290,
August 20, 2012) and are codified at 50 CFR part 218, subpart X. These
regulations include mitigation, monitoring, and reporting requirements
for the incidental taking of marine mammals by the SURTASS LFA sonar
system. For detailed information on this action, please refer to the
August 20, 2012, Federal Register Notice and 50 CFR part 218, subpart
X. Under those regulations, we must publish a notice of issuance of an
Authorization or Authorization renewal in the Federal Register within
30 days of a determination.
Summary of Request
On April 5, 2016 we received an application from the Navy
requesting a renewal of four Authorizations, originally issued on
August 15, 2012 (77 FR 51969, August 28, 2012) for the taking of marine
mammals incidental to routine training, testing, and military
operations of SURTASS LFA sonar in the western and central North
Pacific Ocean and Indian Ocean under the regulations issued on August
15, 2012 (77 FR 50290, August 20, 2012): One for the United States
Naval Ship (USNS) VICTORIOUS (T-AGOS 19), one for the USNS ABLE (T-AGOS
20), one for the USNS EFFECTIVE (T-AGOS 21), and one for the USNS
IMPECCABLE (T-AGOS 23). NMFS considered the Navy's application as
adequate and complete on May 2, 2016.
NMFS has renewed the first cohort of 2012 Authorizations on an
annual basis in 2013 (78 FR 57368, September 18, 2013); 2014 (79 FR
49501, August 21, 2014); and again in 2015 (80 FR 48296). The Navy's
2016 application for renewal requests that these four Authorizations
become effective on August 15, 2016, for a period not to exceed one
year.
Summary of Activity Under the 2015 Authorizations
The Navy submitted quarterly mission reports for the periods of
August 2015 through May 2016 within the required timeframes. These
quarterly reports include the dates and times of the military readiness
activities; location of each SURTASS LFA sonar vessel; mission
operational area; marine mammal observations; and records of any delays
or suspensions of sonar operations. The Navy must also report on the
number of marine mammals detected by visual, passive, and active
acoustic monitoring and the estimated percentage of each marine mammal
stock taken by Level A and Level B harassment. The reports indicate the
following:
The Navy conducted a total of eight missions from August
15, 2015, through May 14, 2016, in the northwestern Pacific Ocean,
which totaled 20.56 mission days and resulted in 37.1 hours of LFA
sonar transmissions (2.9% of the permitted sonar transmission time).
The total percentage of each marine mammal stock taken by
Level B harassment has not exceeded the 12 percent cap. For each stock,
the percentage of take was well below the levels authorized in the 2015
Authorizations.
The total percentage of each marine mammal stock taken by
Level A harassment has not exceeded the levels authorized in the 2015
Authorizations. In fact, the Navy reported no incidences of Level A
harassment takes.
The operational tempo, number of active transmission hours, marine
mammal detections, behavioral observations, and level of anticipated
take of marine mammals fall within the scope and nature of those
contemplated by the final rule and authorized in the 2015
Authorizations.
Monitoring Reports
The Navy has submitted the monitoring reports on time as required
under 50 CFR 218.236 and the 2015 Authorizations. We have reviewed
these reports and determined them to be acceptable. Based on these
reports, the Navy has not exceeded the average annual estimated usage
of the four SURTASS LFA sonar systems and remains well within the take
authorized. In accordance with the current SURTASS LFA sonar
regulations (50 CFR 218.230), the Navy must submit an annual report to
us no later than 45 days after the 2015 Authorizations have expired.
Upon receipt, we will post the annual report at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm#surtass.
Level of Taking for 2016 Authorizations Period
For the 2016 to 2017 Authorization period, the Navy expects to
conduct the same type and amount of routine training, testing, and
military operations of SURTASS LFA sonar in the western and central
North Pacific and Indian Oceans as they have in the northwest Pacific
Ocean and the north-central Pacific Ocean requested under the 2012,
2013, 2014, and 2015 Authorizations. Similarly, the Navy expects to
remain within the annual take estimates analyzed in the final rule. We
determined that the level of taking by incidental harassment from the
activities described in the Authorizations and supporting application
is consistent with the findings made for the total taking allowable
under the 2012 final rule.
Compliance With Mitigation, Monitoring, and Reporting Measures
Based on our review of the Navy's quarterly mission reports, the
Navy complied with the required visual, passive, and acoustic
monitoring measures in the final rule and previous Authorizations. The
Navy also followed the required shutdown and other protocols for
mitigating impacts to marine mammals while conducting operations.
The Navy is also complying with required measures under 50 CFR
218.236(d) to gain and share information on the species. The Navy
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reports that they are continuing to work on information transfer,
declassification and archiving of ambient noise data from the Navy's
Integrated Undersea Surveillance System to the public.
Based on the foregoing information and the Navy's application, we
determined that the mitigation, monitoring, and reporting measures
required under 50 CFR 218.234, .235, and .236 and NMFS' 2013-2014;
2014-2015; and 2015-2016 Authorizations were undertaken and will be
undertaken during the period of validity of the renewed 2016-2017
Authorizations.
Adaptive Management
The final rule and the previous Authorizations include an adaptive
management framework that allows us to consider new information and to
determine (with input from the Navy regarding practicability) if
modifications to mitigation and/or monitoring measures are appropriate
and practicable. This framework includes a requirement for an annual
meeting between NMFS and the Navy, if either agency deems it necessary.
Section 218.241 of the final rule describes examples of the types
of information that could contribute to the decision to modify the
mitigation or monitoring measures, including: (a) Results from the
Navy's monitoring from the previous year's operation of SURTASS LFA
sonar; (b) compiled results of Navy-funded research and development
studies; (c) results from specific stranding investigations; (d)
results from general marine mammal and sound research funded by the
Navy or other sponsors; and (e) any information that reveals marine
mammals may have been taken in a manner, extent or number not
anticipated by these regulations or subsequent Authorizations. None of
the information reviewed by NMFS or the Navy resulted in any
modifications to the existing mitigation or monitoring measures at this
time with the exception of consideration of new information regarding
potential OBIAs.
Consideration of Areas as Potential OBIAs
On April 7, 2016, we and the Navy convened a meeting to review and
discuss consideration of possible additional Offshore Biologically
Important Areas (OBIAs) and modification of existing OBIA boundaries.
International and U.S. waters were evaluated to consider newly
available peer-reviewed scientific data, information, or survey data on
marine areas that may be eligible for consideration as OBIAs. This
evaluation also included review of information from the following
sources:
Cetacean and Sound Mapping Working Group Biologically
Important Areas (CetMap BIAs);
Marine Mammal Protected Area Task Force (MMPATF)--
identified Important Marine Mammal Areas (IMMAs);
World Database on Protected Areas (joint program of the
International Union for Conservation of Nature [IUCN] and the United
Nations Environment Programme [UNEP]);
2014 United Nations List of Protected Areas;
Convention on Biological Diversity;
Marine Protected Areas Global (Wood, 2007);
Marine Conservation Institute MPAtlas; and
Cetaceanhabitat.org
Several areas were identified for consideration. Three of the
proposed new OBIAs are in areas authorized under the 2016-2017
Authorizations. However, the Navy agrees to treat these areas as OBIAs
and will not transmit SURTASS LFA sonar at received levels above 180 dB
SPL (rms) within 0.54 nmi (1 km) of the boundary of these potential
OBIAs during the periods of biologically important activities for the
purpose of the 2016-2017 Authorizations pending a final decision on
their designation. NMFS and Navy will be including a description of the
evaluation of these new areas in the Draft Supplemental Environmental
Impact Statement and rulemaking process for the new (2017) SURTASS LFA
sonar operations.
Litigation on Final Rule
On July 15, 2016, the U.S. Court of Appeals for the Ninth Circuit
issued a decision in NRDC, et al. v. Pritzker, et al., which challenged
NMFS' 2012 final rule for SURTASS LFA sonar. The Ninth Circuit had not,
however, issued a mandate in that case at the time the LOAs were
issued.
Technical Guidance for Assessing the Effects of Anthropogenic Sound on
Marine Mammal Hearing
On August 4, 2016, NMFS released its Technical Guidance for
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing
(Guidance). This new guidance established new thresholds for predicting
auditory injury, which equates to Level A harassment under the MMPA. In
the Federal Register Notice (81 FR 51694), NMFS explained the approach
it would take during a transition period, wherein we balance the need
to consider this new best available science with the fact that some
applicants have already committed time and resources to the development
of analyses based on our previous guidance and have constraints that
preclude the recalculation of take estimates, as well as where the
action is in the agency's decision-making pipeline. In that Notice, we
included a non-exhaustive list of factors that would inform the most
appropriate approach for considering the new Guidance, including: the
scope of effects; how far in the process the applicant has progressed;
when the authorization is needed; the cost and complexity of the
analysis; and the degree to which the guidance is expected to affect
our analysis. In this case, the Navy's SURTASS LFA sonar rule was
issued in 2012, this is the last remaining year of activity that will
be authorized under this rule, and they need the authorization by
August 12th in order to ensure continuity of operations. The SURTASS
LFA sonar rule considers the potential for small numbers of cetaceans
incurring auditory injury in the effects analysis and, as noted in the
Final Rule, the Navy is authorized to take small numbers of cetaceans
by Level A harassment as a precautionary measure even though
quantitative analyses showed no Level A takes. The Navy has a robust
and practicable monitoring and mitigation program that we believe is
very effective in reducing the likelihood of injury. Additionally, we
believe that a fair number of marine mammals will intentionally avoid
approaching within distances of this slow-moving source that would
result in injury. In summary, we have considered the new Guidance and
believe that the likelihood of injury is adequately addressed in the
analysis in the rule and appropriate protective measures are in place
in the LOA.
Authorization
We have issued four Authorizations to the Navy, authorizing the
incidental harassment of marine mammals, incidental to operating the
four SURTASS LFA sonar systems for routine training, testing and use
during military operations. Issuance of these four Authorizations is
based on findings, described in the preamble to the final rule (77 FR
50290, August 20, 2012) and supported by information contained in the
Navy's required reports on SURTASS LFA sonar and their application,
that the activities described under these four Authorizations will have
a negligible impact on marine mammal species or stocks and will not
have an unmitigable adverse impact on their availability for taking for
subsistence uses.
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These Authorizations remain valid through August 14, 2017, provided
the Navy remains in conformance with the conditions of the regulations
and the LOAs, and the mitigation, monitoring, and reporting
requirements described in 50 CFR 218.230 through 218.241 (77 FR 50290,
August 20, 2012) and in the Authorizations are undertaken.
Dated: August 12, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2016-19673 Filed 8-17-16; 8:45 am]
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