[Federal Register Volume 84, Number 89 (Wednesday, May 8, 2019)]
[Notices]
[Pages 20105-20107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09376]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG959


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Hawaii-Southern California Training and Testing Study Area

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; receipt of application for regulations and Letters of 
Authorization extension; request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) to 
extend the expiration date from December 2023 to December 2025 for 
Marine Mammal Protection Act (MMPA) regulations authorizing the take of 
marine mammals incidental to Navy training and testing activities 
conducted in the Hawaii-Southern California Training and Testing (HSTT) 
Study Area. In August 2018, the MMPA was amended by the John S. McCain 
National Defense Authorization Act (NDAA) for Fiscal Year 2019 to allow 
for seven-year authorizations for military readiness activities, as 
compared to the previously allowed five years. The Navy's activities 
qualify as military readiness activities pursuant to the MMPA as 
amended by the NDAA for Fiscal Year 2004. In making the request to 
extend the time period covered by the MMPA 2018 HSTT regulations from 
five to seven years, the Navy proposes no changes to their specified 
activities, the

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geographical region in which those activities would be conducted, 
mitigation measures, monitoring, or reporting over the longer seven-
year period. NMFS invites the public to provide information, 
suggestions, and comments on the Navy's application.

DATES: Comments and information must be received no later than June 7, 
2019.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and 
electronic comments should be sent to [email protected].
    Instructions: NMFS is not responsible for information or comments 
sent by any other method, to any other address or individual, or 
received after the end of the comment period. Information and comments 
received electronically, including all attachments, must not exceed a 
25-megabyte file size. Attachments to electronic comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
information and comments received are a part of the public record and 
will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information (e.g., name, 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected 
Resources, NMFS, (301) 427-8401. An electronic copy of the Navy's 
application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
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 issued 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 comments.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring, and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    The NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended 
section 101(a)(5) of the MMPA to remove the ``small numbers'' and 
``specified geographical region'' provisions indicated above and 
amended the definition of ``harassment'' as it applies 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). In addition, the 2004 NDAA amended the MMPA as it 
relates to military readiness activities such that least practicable 
adverse impact shall include consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity.
    More recently, section 316 of the NDAA for Fiscal Year 2019 (2019 
NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to 
allow incidental take rules for military readiness activities under 
section 101(a)(5)(A) to be issued for up to seven years. Prior to this 
amendment, all incidental take rules under section 101(a)(5)(A) were 
limited to five years.

Summary of Request

    On March 11, 2019, NMFS received an adequate and complete 
application from the Navy requesting that NMFS extend the 2018 HSTT 
regulations (83 FR 66846) and associated Letters of Authorization 
(LOAs) such that they would cover take incidental to seven years of 
training and testing activities instead of five, extending the 
expiration date from December 20, 2023 to December 20, 2025. The 
extension would be conducted through a proposed and final rulemaking 
analyzing seven years of activity, consistent with the requirements of 
section 101(a)(5)(A). Specifically, the activities include training and 
testing (all categorized as military readiness activities) including 
the use of active acoustic sonar systems and other transducers, in-
water detonations, air guns, construction activities involving pile 
removal and installation, and the operation of a fleet of vessels 
throughout the HSTT Study Area. These activities may result in the 
incidental take of marine mammals in the form of Level B harassment 
(behavioral disruption or temporary hearing impairment), Level A 
harassment (permanent hearing impairment or tissue damage), or serious 
injury or mortality in a very small number of cases.

Description of Activity

    In its 2019 application, the Navy proposes no changes to the nature 
of the specified activities covered by the 2018 HSTT final rule, the 
level of activity within and between years would be consistent with 
that previously analyzed in the 2018 HSTT final rule and all activities 
would be conducted within the same boundaries of the HSTT Study Area 
identified in the 2018 HSTT final rule. Therefore, the training and 
testing activities (e.g., equipment and sources used, exercises 
conducted) and the mitigation, monitoring, and reporting measures are 
identical to those described and analyzed in the 2018 HSTT final rule. 
The only changes included in the Navy's request are to conduct those 
same activities in the same region for an additional two years. In its 
request, the Navy included all information necessary to identify the 
type and amount of incidental take that may occur in the two additional 
years so NMFS could determine whether the analyses and conclusions 
regarding the impacts of the proposed activities on marine mammal 
species and stocks previously reached for five years of activities 
remain the same for seven years of identical activity.

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    Regarding the quantification of expected takes from acoustic and 
explosive sources (by Level A harassment and Level B harassment, as 
well as mortality resulting from exposure to explosives), the number of 
takes are based directly on the level of activities (days, hours, 
counts, etc., of different activities and events) in a given year. In 
the 2018 HSTT final rule, take estimates across the five-years were 
based on the Navy conducting three years of a representative level of 
activity and two years of maximum level of activity. Consistent with 
the pattern set forth in the 2017 application, the 2018 HSTT Final 
Environmental Impact Statement/Overseas Environmental Impact Statement 
(FEIS/OEIS, www.hstteis.com/), and the 2018 HSTT final rule, the Navy 
proposes to add one additional representative year and one additional 
maximum year to determine the predicted take numbers in this rule. 
Specifically, as in the 2018 HSTT final rule, the Navy proposes to use 
the maximum annual level to calculate annual takes (which would remain 
identical to what was determined in the 2018 HSTT final rule), and the 
sum of all years (four representative and three maximum) to calculate 
the seven-year totals for this rule.
    The existing 2018 HSTT regulations authorize three serious injuries 
or mortalities from vessel strike in the HSTT Study Area over five 
years. Based on a revised vessel strike analysis encompassing seven 
years of activities, the Navy requests no change in the number of 
requested large whale mortalities due to vessel strike. The large whale 
stocks that are proposed to be taken by vessel strike are the same as 
those included in the 2018 HSTT final rule.
    As noted above, the proposed extension of the rule would include 
mitigation, monitoring, and reporting measures that are identical to 
those included in the 2018 HSTT final rule. Mitigation would include 
procedural mitigation measures and mitigation areas. Procedural 
mitigation includes, but is not limited to, the use of trained Lookouts 
(protected species observers) to monitor for marine mammals in 
mitigation zones, requirements for Lookouts to immediately provide 
notification of sightings to the appropriate watch station, 
requirements for implementation of powerdown and shutdown mitigation 
measures (based on activity defined zones), pre- and post-monitoring 
requirements for explosive events, and measures to reduce the 
likelihood of ship strikes. Chapter 5 of the 2018 HSTT FEIS/OEIS and 
the Mitigation Measures section of the 2018 HSTT final rule include 
detailed descriptions of mitigation measures for each specified 
activity in the HSTT Study Area. The Navy will also implement 
mitigation measures within certain areas (Mitigation Areas) and/or at 
times to avoid or minimize potential impacts on marine mammals in areas 
and/or times where they are known to engage in biologically important 
behaviors (i.e., for foraging, migration, reproduction), where the 
disruption of those behaviors would be more likely to result in 
population-level impact. The Mitigation Measures section in the 2018 
HSTT final rule includes detailed descriptions of geographic mitigation 
measures in the HSTT Study Area. Maps and tables of the mitigation 
areas can be found in Chapter 5 of the 2018 HSTT FEIS/OEIS.
    The Navy proposes to continue forward the implementation of the 
robust Integrated Comprehensive Monitoring Program and Strategic 
Planning Process outlined in the current regulations. The Navy's 
monitoring strategy, currently required by the 2018 HSTT regulations, 
is well-designed to work across Navy ranges to help better understand 
the impacts of the Navy's activities on marine mammals and their 
habitat by focusing on learning more about marine mammal occurrence in 
different areas and exposure to Navy stressors, marine mammal responses 
to different sound sources, and the consequences of those exposures and 
responses on marine mammal populations. Similarly, the proposed 
extension of regulations would include identical adaptive management 
provisions and reporting requirements as the existing regulations. 
Please refer to Chapter 13 of the Navy's application for full details 
on the monitoring and reporting proposed by the Navy.

Information Solicited

    Interested persons may submit information, suggestions, and 
comments concerning the Navy's request (see ADDRESSES). NMFS will 
consider all information, suggestions, and comments related to the 
request during the development of proposed regulations governing the 
incidental taking of marine mammals by the Navy, if appropriate.

    Dated: April 30, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-09376 Filed 5-7-19; 8:45 am]
 BILLING CODE 3510-22-P