83 FR 32615 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar in the Western and Central North Pacific Ocean and Eastern Indian Ocean

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 135 (July 13, 2018)

NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the use of Surveillance Towed Array Sensor Systems Low Frequency Active (SURTASS LFA) sonar systems onboard U.S. Navy surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy in the western and central North Pacific and eastern Indian oceans beginning August 2019. Pursuant to the implementing regulations of the Marine Mammal Protection Act (MMPA), NMFS is announcing our receipt of the Navy's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the Navy's application and request.

[Federal Register Volume 83, Number 135 (Friday, July 13, 2018)]
[Proposed Rules]
[Pages 32615-32617]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14967]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-XG273


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor 
System Low Frequency Active Sonar in the Western and Central North 
Pacific Ocean and Eastern Indian Ocean

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

ACTION: Receipt of application for rulemaking and letter of 
authorization; request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take marine mammals incidental to the use of 
Surveillance Towed Array Sensor Systems Low Frequency Active (SURTASS 
LFA) sonar systems onboard U.S. Navy surveillance ships for training 
and testing activities conducted under the authority of the Secretary 
of the Navy in the western and central North Pacific and eastern Indian 
oceans beginning August 2019. Pursuant to the implementing regulations 
of the Marine Mammal Protection Act (MMPA), NMFS is announcing our 
receipt of the Navy's request for the development and implementation of 
regulations governing the incidental taking of marine mammals and 
inviting information, suggestions, and comments on the Navy's 
application and request.

DATES: Comments and information must be received no later than August 
13, 2018.

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 20910-3225 and 
electronic comments should be sent to [email protected].

[[Page 32616]]

    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. 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 comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/node/23111 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: Dale Youngkin, Office of Protected 
Resources, NMFS; phone: (301) 427-8401. Electronic copies of the 
application and supporting documents, as well as a list of the 
references cited in this document, 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.) 
generally direct the Secretary of Commerce (further 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.
    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 National Defense Authorization Act (NDAA) (Pub. L. 108-136) 
removed the ``small numbers'' and ``specified geographical region'' 
limitations indicated above and defined ``harassment'' as it applies to 
a ``military readiness activity'' 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).
Summary of Request
    On June 4, 2018, NMFS received an application from the Navy 
requesting authorization to take individuals of 46 species of marine 
mammals (10 mysticete, 31 odontocete, and 5 pinniped species) 
representing 139 stocks, by harassment, incidental to training and 
testing activities conducted under the authority of the Secretary of 
the Navy (categorized as military readiness activities) using SURTASS 
LFA sonar beginning August 13, 2019.
    The Navy states that these training and testing activities may 
expose some of the marine mammals present in the Study Area to sound 
from low-frequency active sonar sources, which may result in the 
disruption of behavioral patterns. The Navy requests authorization to 
take individuals of 46 species or stocks of marine mammals by Level B 
Harassment.
    NMFS published the first incidental take rule for SURTASS LFA 
sonar, effective from August 2002 through August 2007, on July 16, 2002 
(67 FR 46712); the second rule, effective from August 2007 through 
August 2012, on August 21, 2007 (72 FR 46846); and the third rule, 
effective from August 2012 through August 2012, on August 20, 2012 (77 
FR 50290).
    In 2016, the Navy submitted an application for a fourth incidental 
take regulation under the MMPA (DoN, 2016) for the taking of marine 
mammals by harassment incidental to the deployment of up to four 
SURTASS LFA sonar systems from August 15, 2017 through August 14, 2022. 
NMFS published a proposed rule on April 27, 2017 (82 FR 19460). On 
August 10, 2017, the Secretary of Defense, after conferring with the 
Secretary of Commerce, determined that it was necessary for the 
national defense to exempt all military readiness activities that use 
SURTASS LFA sonar from compliance with the requirements of the MMPA for 
two years from August 13, 2017 through August 12, 2019, or until such 
time when NMFS issues regulations and a LOA under Title 16, Section 
1371 for military readiness activities associated with the use of 
SURTASS LFA sonar, whichever is earlier. During the exemption period, 
all military readiness activities that involve the use of SURTASS LFA 
sonar are required to comply with all mitigation, monitoring, and 
reporting measures set forth in the 2017 National Defense Exemption 
(NDE) for SURTASS LFA sonar. As a result of the NDE (available at 
http://www.surtass-lfa-eis.com/wp-content/uploads/2018/01/SURTASS_LFA_NDE_10Aug17.pdf), NMFS did not finalize its April 2017 
proposed rule.
    For this current requested rule making, the Navy is proposing to 
continue using SURTASS LFA sonar systems onboard USNS surveillance 
ships for training and testing activities conducted under the authority 
of the Secretary of the Navy within the western and central North 
Pacific, and eastern Indian oceans. The operating characteristics of 
the LFA sonar (inclusive of compact LFA sonar systems) have remained 
the same since 2001 and are consistent with the parameters described in 
previous rulemakings. For this rulemaking, the Navy scoped the 
geographic extent of the Study Area to better reflect the areas where 
the Navy anticipates conducting SURTASS LFA sonar training and testing 
activities for the requested rule/LOA. Under the proposed action, the 
Navy would transmit 496 LFA sonar transmission hours per year pooled 
across all SURTASS LFA sonar equipped vessels in the first four years 
of the authorization, with an increase in usage to 592 LFA transmission 
hours in year five and continuing into the foreseeable future, 
regardless of the number of vessels. This is a reduction from the 
current condition of 1,020 LFA transmission hours per year (255 hours 
of LFA sonar per vessel per year) under the NDE, and the previously 
authorized 1,728 LFA transmission hours per year (432 hours of LFA 
sonar per vessel per year) under the 2012--2017 Rule.

[[Page 32617]]

Description of the Specified Activity

    The Navy proposes to continue to use the system onboard USNS 
surveillance ships for training and testing activities conducted under 
the authority of the Secretary of the Navy in the western and central 
Pacific Ocean and eastern Indian Ocean. The U.S. Navy currently has 
four surveillance ships that utilize SURTASS LFA sonar systems: the 
USNS ABLE, the USNS EFFECTIVE, the USNS IMPECCABLE and the USNS 
VICTORIOUS. The Navy may develop and field additional SURTASS LFA 
equipped vessels, either to replace or complement the Navy's current 
SURTASS LFA capable fleet, and these vessels may be in use beginning in 
the fifth year of the time period covered by their latest application. 
Thus, the Navy's activity analysis included consideration of the sonar 
hours associated with future testing of new or updated LFA sonar system 
components and new ocean surveillance vessels. This resulted in two 
annual transmit hour scenarios: Years 1 to 4 would entail a maximum of 
496 LFA transmission hours total per year across all SURTASS LFA 
vessels, while year 5 and beyond would include an increase in LFA sonar 
transmit hours to a maximum of 592 hours across all vessels to 
accommodate future testing of new ocean surveillance vessels and new or 
updated sonar system components. The number of transmission hours per 
year is pooled across all SURTASS LFA sonar equipped vessels, 
regardless of the number of ships. The SURTASS LFA sonar transmission 
hours represent a distribution across six activities that include:
     Contractor crew proficiency training (80 hours/year);
     Military crew (MILCREW) proficiency training (96 hours/
year);
     Participation in, or support of, Navy exercises (96 hours/
year);
     Vessel and equipment maintenance (64 hours/year);
     Acoustic research testing (160 hours/year); and
     New SURTASS LFA sonar system testing (96 hours/year, 
occurring in year 5 and beyond only).
    The application describes the activity types, the equipment and 
platforms involved, and the duration and potential locations of the 
specified activities.
    A suite of proposed mitigation measures have been included in the 
proposed action to minimize the potential effects to marine mammals 
that could potentially be affected during SURTASS LFA sonar activities. 
For training and testing activities of the proposed action, these 
mitigation measures include:
     Restricting the use of SURTASS LFA sonar such that it will 
not operate in Arctic and Antarctic waters;
     Restricting the use of SURTASS LFA sonar from within the 
foreign territorial seas of other nations;
     Ensuring sound pressure levels (SPL) will not exceed 180 
decibels (dB) re 1 micro pascals ([mu]Pa) root mean square (rms) within 
12 nautical miles of any emerged features of any coastline, or within 
designated offshore biologically important areas (OBIAs) for marine 
mammals; and
     Minimizing exposure of marine mammals to SURTASS LFA sonar 
signal received levels of 180 dB re 1 [mu]Pa (rms) or more by 
monitoring for their presence and suspending sonar transmission when 
animals enter the mitigation zone.

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 
Navy's request and NMFS' development and implementation of regulations 
governing the incidental taking of marine mammals by the Navy's SURTASS 
LFA sonar activities.

    Dated: July 9, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-14967 Filed 7-12-18; 8:45 am]
BILLING CODE 3510-22-P