82 FR 40998 - Taking Marine Mammals Incidental to the U.S. Air Force 86 Fighter Weapons Squadron Conducting Long Range Strike Weapons System Evaluation Program

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 166 (August 29, 2017)

In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notice is hereby given that a Letter of Authorization (LOA) has been issued to the U.S. Air Force (USAF) 86 Fighter Weapon Squadron (86 FWS) to take marine mammals incidental to Long Range Strike (LRS) Weapons System Evaluation Program (WSEP) exercises on the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii. These activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act of 2004 (NDAA).

[Federal Register Volume 82, Number 166 (Tuesday, August 29, 2017)]
[Notices]
[Pages 40998-40999]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-18260]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF608


Taking Marine Mammals Incidental to the U.S. Air Force 86 Fighter 
Weapons Squadron Conducting Long Range Strike Weapons System Evaluation 
Program

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

ACTION: Notice of issuance of Letter of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) and 
implementing regulations, notice is hereby given that a Letter of 
Authorization (LOA) has been issued to the U.S. Air Force (USAF) 86 
Fighter Weapon Squadron (86 FWS) to take marine mammals incidental to 
Long Range Strike (LRS) Weapons System Evaluation Program (WSEP) 
exercises on the Barking Sands Underwater Range Expansion (BSURE) area 
of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii. These 
activities are considered military readiness activities pursuant to the 
MMPA, as amended by the National Defense Authorization Act of 2004 
(NDAA).

DATES: This LOA is valid from August 21, 2017, through August 20, 2022.

ADDRESSES: The LOA and supporting documents may be obtained online at: 
www.nmfs.noaa.gov/pr/permits/incidental/military.htm. In case of 
problems accessing these documents, please call the contact listed 
below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA directs the Secretary of Commerce 
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 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. NMFS has been delegated the authority to issue regulations and 
Letters of Authorizations allowing the take of marine mammals 
incidental to specified activities.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations 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).''
    An authorization for incidental taking 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

[[Page 40999]]

species or stock through effects on annual rates of recruitment or 
survival.''
    Regulations governing the taking of individuals of 16 species of 
marine mammals, representing 16 stocks, by Level B harassment, and 4 of 
those same species by Level A harassment, incidental to 86 FWS LRS WSEP 
training activities are valid from August 21, 2017, through August 20, 
2022 and are codified at 50 CFR part 218, subpart F. The regulations 
include mitigation, monitoring, and reporting requirements. Pursuant to 
those regulations, NMFS issued a five-year LOA for the incidental take 
of marine mammals during training activities on BSURE area of the PMRF 
on April 21, 2017. For detailed information on this action, please 
refer to the August 22, 2017 Federal Register notice (82 FR 39684) and 
50 CFR part 218, subpart F.

Summary of Request

    On December 21, 2016, NMFS received an adequate and complete 
application from the 86 FWS for regulations governing the taking of 16 
species of marine mammals representing 16 stocks incidental to LRS WSEP 
activities in the BSURE of the PMRF off Kauai, Hawaii. On January 6, 
2017, we published a notice of receipt of the 86 FWS's application in 
the Federal Register (82 FR 1702) requesting public comment on the 
application and subsequently published a notice of proposed rulemaking 
in the Federal Register on May 5, 2017 (82 FR 21156) requesting public 
comment on the proposed rule. Since publishing the proposed rule, the 
86 FWS clarified training would only occur four days per year, not five 
as presented in the application and proposed rule. Moreover, the 86 FWS 
decreased the number of munitions it would deploy annually, by 40 to 92 
percent depending on year. This decreases the number of anticipated and 
authorized takes for this activity compared to what was presented in 
the proposed rule. In addition, NMFS worked with the 86 FWS to develop 
a comprehensive marine mammal mitigation and monitoring plan designed 
to decrease potential impacts to marine mammals. To support issuance of 
the LOA, NMFS adopted the 86 FWS' Final Environmental Assessment/
Overseas Environmental Assessment (EA/OEA) for the Long Range Strike 
Weapon Systems Evaluation Program at Kauai, Hawaii, and issued a 
Finding of No Significant Impact (FONSI) on August 11, 2017.
    The final rule (82 FR 39684, August 22, 2017) and 86 FWS EA/OEA 
include a complete description of the 86 FWS's specified training 
activities incidental to which NMFS is authorizing take of marine 
mammals. Air-to-surface exercises involving surface and slightly 
subsurface live munition detonations are the stressors most likely to 
result in impacts on marine mammals that could rise to the level of 
harassment.

Authorization

    We have issued a LOA to the 86 FWS authorizing the take of marine 
mammals, by harassment, incidental to LRS WSEP training activities on 
the BSURE area of the PMRF as described above. The level and type of 
take authorized by the LOA is the same as the level and type of take 
analyzed in the final rule (82 FR 39864, August 22, 2017). Take by 
mortality or serious injury is not anticipated or authorized. Take of 
marine mammals will be minimized through implementation of mitigation 
and monitoring measures, including: Aerial surveys using sensor pods 
and range camera monitoring before, during, and after training; 
delaying exercises if a marine mammal is observed within an exclusion 
zone to avoid exposing marine mammals to levels of explosives likely to 
result in injury or death; delaying exercises if marine mammals are 
observed within a designated harassment zone if take is exceeded or not 
authorized, and shifting target coordinates as far from an observed 
marine mammal as possible. The 86 FWS is required to also comply with 
monitoring and reporting measures under 50 CFR 218.55 which includes 
collecting data from the PMRF hydrophones to better understand impacts, 
if any, of LRS WSEP training activities on marine mammals. 
Additionally, the rule and LOA include an adaptive management component 
that allows for timely modification of mitigation or monitoring 
measures based on new information, when appropriate. For full details 
on the mitigation, monitoring, and reporting requirements, please refer 
to the final rule (82 FR 39684; August 22 2017).
    Issuance of the LOA is based on findings, described in the preamble 
to the final rule, that the total taking of marine mammals incidental 
to the 86 FWS's training activities on the PMRF will have a negligible 
impact on the affected marine mammal species or stocks and will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.
    The LOA will remain valid through August 20, 2022, provided the 86 
FWS remains in conformance with the conditions of the regulations and 
the LOA, including the mitigation, monitoring, and reporting 
requirements described in 50 CFR part 218, subpart F and the LOA.

    Dated: August 24, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-18260 Filed 8-28-17; 8:45 am]
 BILLING CODE 3510-22-P