81 FR 55175 - Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 160 (August 18, 2016)

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.

[Federal Register Volume 81, Number 160 (Thursday, August 18, 2016)]
[Notices]
[Pages 55175-55177]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-19711]


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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 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,

[[Page 55176]]

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 
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.

[[Page 55177]]

    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.
    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. 2016-19711 Filed 8-17-16; 8:45 am]
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