Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force 86 Fighter Weapons Squadron Conducting Long Range Strike Weapons System Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii, 21156-21185 [2017-09137]

Download as PDF 21156 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules April 5, 2017. We are extending the comment period to allow the public more time to comment on the proposed rulemaking. The comment period is now open through June 5, 2017. DATES: The comment period for the proposed rule published April 5, 2017 (82 FR 16542) is extended. Comments and related material must be received by the Coast Guard on or before June 5, 2017. You may submit comments identified by docket number USCG– 2016–0268 using the Federal eRulemaking Portal at http:// www.regulations.gov. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. ADDRESSES: If you have questions about this proposed rulemaking, call or email Mr. Todd Haviland, Director, Great Lakes Pilotage, Commandant (CG–WWM–2), Coast Guard; telephone 202–372–2037, email Todd.A.Haviland@uscg.mil, or fax 202– 372–1914. SUPPLEMENTARY INFORMATION: The Coast Guard is adding an additional 30 days to the comment period on the supplemental notice of proposed rulemaking (SNPRM) for ‘‘Great Lakes Pilotage Rates—2017 Annual Review’’ published in the Federal Register on April 5, 2017 (82 FR 16542). We received a request to extend the comment period 60 days and to hold a public meeting. The requester cited the significance of the issues and the questions raised by the SNPRM. We do not see a need for a public meeting and believe that an additional 30 days should provide sufficient time to comment on the proposed rule. The comment period is now open through June 5, 2017. As we stated in the summary of the SNPRM, the Coast Guard proposes to modify its calculations for hourly pilotage rates on the Great Lakes by accounting for the ‘‘weighting factor,’’ which is a multiplier that can increase the pilotage costs for larger vessels traversing areas in the Great Lakes by a factor of up to 1.45. While the weighting factor has existed for decades, it has never been included in any of the previous ratemaking calculations. We propose to add steps to our rate-setting methodology to adjust hourly rates downwards by an amount equal to the average weighting factor, so that when the weighting factor is applied, the cost to the shippers and the corresponding revenue generated for the pilot jstallworth on DSK7TPTVN1PROD with PROPOSALS FOR FURTHER INFORMATION CONTACT: VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 associations will adjust to what was originally intended. We note that until a final rule is produced, the 2016 rates will stay in effect, even if a final rule is not published by the start of the 2017 season. DEPARTMENT OF COMMERCE Public Participation and Request for Comments [Docket No. 201135–7135–01] We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We encourage you to submit comments through the Federal eRulemaking Portal at http:// www.regulations.gov. If your material cannot be submitted using http:// www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. We accept anonymous comments. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http:// www.regulations.gov/privacyNotice. The SNPRM we are seeking comments on, and documents mentioned in the SNPRM as being available in the docket—including all public comments, will be in our online docket at http:// www.regulations.gov and can be viewed by following that Web site’s instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published. Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the U.S. Air Force 86 Fighter Weapons Squadron Conducting Long Range Strike Weapons System Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii Dated: May 2, 2017. Michael D. Emerson, Director, Marine Transportation Systems, U.S. Coast Guard. [FR Doc. 2017–09177 Filed 5–4–17; 8:45 am] BILLING CODE 9110–04–P PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 National Oceanic and Atmospheric Administration 50 CFR Part 218 RIN 0648–BG65 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS has received an application, pursuant to the Marine Mammal Protection Act (MMPA), from the U.S. Air Force 86 Fighter Weapons Squadron (86 FWS) for authorization to take marine mammals incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) activities in the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii, for the period of August 23, 2017, through August 22, 2022. NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. DATES: Comments and information must be received no later than June 5, 2017. ADDRESSES: You may submit comments on this document by either of the following methods: • Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov, enter 0648–BG65 in the ‘‘Search’’ box, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910. Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the end of the comment period. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF SUMMARY: E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules file formats only. To help NMFS process and review comments more efficiently, please use only one method to submit comments. All comments received are a part of the public record and will generally be posted on www.regulations.gov 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. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Availability A copy of 86 FWS’s application and any supporting documents, as well as a list of the references cited in this document, 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 above (see FOR FURTHER INFORMATION CONTACT). The following associated documents are also available at the same internet address: list of the references used in this document, the seasonal parameters memo, and 86 FWS’s Environmental Assessment (EA) titled, ‘‘Environmental Assessment/Overseas Environmental Assessment for the Long Range Strike Weapon Systems Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii.’’ Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. jstallworth on DSK7TPTVN1PROD with PROPOSALS Purpose and Need for Regulatory Action This proposed rule, to be issued under the authority of the MMPA, would establish a framework for authorizing the take of marine mammals incidental to LRS WSEP activities in the BSURE area of the PMRF off Kauai, Hawaii. We received an application from 86 FWS requesting 5-year regulations and authorization for the take, by Level B harassment, of 16 species of marine mammals, and, by Level A harassment of 4 of those species. The regulations would be valid from August 23, 2017, to August 22, 2022. Please see Background below for definitions of Level A and Level B harassment. VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 Legal Authority for the Proposed Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A) 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 for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent Letters of Authorization (LOA) issued pursuant to those regulations. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements. The National Defense Authorization Act for Fiscal Year 2004 (Section 319, Pub. L. 108–136, November 24, 2003) (NDAA of 2004) removed the ‘‘small numbers’’ and ‘‘specified geographical region’’ limitations indicated earlier 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, 16 U.S.C. 1362(18)(B)): ‘‘(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 Major Provisions Within the Proposed Rule Following is a summary of some of the major provisions in this proposed rule for 86 FWS’s LRS WSEP activities. We have preliminarily determined that 86 FWS’s adherence to the proposed mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse impact on the affected marine mammals. They include: • Restricting time of activities to missions that will occur only during day-light hours, only on weekdays, and only during the summer or fall months. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 21157 • Conducting visual aerial surveys before and after mission activities each day. • Delaying mission activities if a protected species is observed in the impact zones, and resuming only after one of the following conditions is met: (1) The animal is observed exiting the impact area; or (2) the impact area has been clear of any additional sightings for a period of 30 minutes. • If daytime weather and/or sea conditions preclude adequate monitoring for detecting marine mammals and other marine life, delaying LRS WSEP strike operations until adequate sea conditions exist for monitoring to be undertaken. • Using mission reporting forms to track the use of the PMRF for missions and protected species observations. • Submitting a summary report of marine mammal observations and LRS WSEP activities to the NMFS Pacific Islands Regional Office (PIRO) and the Office of Protected Resources 90 days after expiration of the current authorization. • Using Passive Acoustic Monitoring (PAM) by using the Navy’s hydrophones within the PMRF to collect data before, during, and after LRS WSEP missions. This data will be stored at Space and Naval Warfare Systems Command (SPAWAR) to be analyzed as funding allows. • If unauthorized takes of marine mammals (i.e., serious injury or mortality) occur, ceasing operations and reporting to NMFS and to the respective Pacific Islands Region stranding network representative immediately and submitting a report to NMFS within 24 hours. Background Sections 101(a)(5)(A) and (D) of the MMPA(16 U.S.C. 1371(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, 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 E:\FR\FM\05MYP1.SGM 05MYP1 21158 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules 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. Summary of Request On June 23, 2016, NMFS received a request for regulations from 86 FWS for the taking of small numbers of marine mammals incidental to LRS WSEP activities in the BSURE area of the PMRF off Kauai, Hawaii. We received revised drafts on November 29, 2016, and December 21, 2016, which we considered adequate and complete. On January 6, 2017, we published a notice of receipt of 86 FWS’s application in the Federal Register (82 FR 1702), requesting comments and information for thirty days related to 86 FWS’s request. We received comments from private citizens, one marine mammal research organization, and six nongovernmental organization (NGOs), which we considered in the development of this proposed rule. The 86 FWS proposes taking marine mammals incidental to LRS WSEP activities by Level B harassment of 16 species of marine mammals and by Level A harassment of 4 of those species. NMFS has previously issued an incidental harassment authorization (IHA) to 86 FWS authorizing the taking of marine mammals incidental to LRS WSEP activities in the BSURE area of the PMRF in 2016 (81 FR 67971; October 3, 2016). The regulations proposed in this action, if issued, would be effective from August 23, 2017, through August 22, 2022. Description of the Specified Activity jstallworth on DSK7TPTVN1PROD with PROPOSALS Overview The 86 FWS proposes to conduct airto-surface missions in the BSURE area of the PMRF. The LRS WSEP test objective is to conduct operational evaluations of long range strike weapons and other munitions as part of LRS WSEP operations to properly train units to execute requirements within Designed Operational Capability Statements, which describe units’ realworld operational expectations in a time of war. Due to threats to national security, an increasing number of missions involving air-to-surface activities have been directed by the Department of Defense (DoD). Accordingly, the U.S. Air Force seeks the ability to conduct operational evaluations of all phases of long range VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 strike weapons within the U.S. Navy’s Hawaii Range Complex (HRC). LRS WSEP objectives are to evaluate air-tosurface and maritime weapon employment data, evaluate tactics, techniques, and procedures in an operationally realistic environment and to determine the impact of tactics, techniques, and procedures on combat Air Force training. The munitions associated with the proposed activities are not part of a typical unit’s training allocations and, prior to attending a WSEP evaluation, most pilots and weapon systems officers have only dropped weapons in simulators or used the aircraft’s simulation mode. Without WSEP operations, pilots would be using these weapons for the first time in combat. On average, half of the participants in each unit drop an actual weapon for the first time during a WSEP evaluation. Consequently, WSEP is a military readiness activity and is the last opportunity for squadrons to receive operational training and evaluations before they deploy. LRSWSEP missions involve the use of multiple types of live and inert munitions (bombs and missiles) scored above, at, or just below the water’s surface in the BSURE (Table 1). The ordnance may be delivered by multiple types of aircraft, including bombers and fighter aircraft. Weapon performance will be evaluated by an underwater acoustic hydrophone array system as the weapons strike the water surface. Net explosive weight of the live munitions ranges from 23 to 300 pounds (lbs). Missions will occur annually over five years from 2017 and 2021 (see Table 1), primarily during the summer but may occur in the fall as well. All missions will be conducted during daylight hours. LRS WSEP missions could potentially take 16 species of marine mammals by Level B harassment, and additionally, 4 of those species by Level A harassment. Dates and Duration The specified activity may occur during the summer months, or less likely in fall months, during the fiveyear period of validity of the proposed regulations. Missions will occur only on weekdays during daytime hours. Missions will occur, on average, approximately five days per year on consecutive days. The LOA would be valid from August 20, 2017, through August 19, 2022. Specified Geographical Region The specific planned impact area is approximately 44 nautical miles (nmi) (81 kilometers (km)) offshore of Kauai, Hawaii, in a water depth of about 15,240 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 feet (ft) (4,645 meters (m)). (see Figure 2–2 of 86 FWS’s application). All activities will take place within the PMRF, which is located in Hawaii off the western shores of the island of Kauai and includes broad ocean areas to the north, south, and west (see Figure 2–1 of 86 FWS’s application). Within the PMRF, activities would occur in the BSURE area, which lies in Warning Area 188A (W–188A). The BSURE consists of about 900 nmi 2 of instrumented underwater ranges, encompassing the deep-water portion of the PMRF and providing over 80 percent of the PMRF’s underwater scoring capability. The BSURE facilitates training, tactics, development, and test and evaluation for air, surface, and subsurface weapons systems in deep water. It provides a full spectrum of range support, including radar, underwater instrumentation, telemetry, electronic warfare, remote target command and control, communications, data display and processing, and target/ weapon launching and recovery facilities. The underwater tracking system begins 9 nmi (17 km) from the north shore of Kauai and extends out to 40 nmi (74 km) from shore. The LRS WSEP missions would employ live weapons with long flight paths requiring large amounts of airspace, and would conclude with weapon impact and surface detonations within the BSURE instrumented range. Detailed Description of Activities The LRS WSEP training missions, classified as military readiness activities, refer to the deployment of live (containing explosive charges) missiles and bombs from aircraft toward the water surface. Depending on the requirements of a given mission, munitions may be inert (containing no explosives or only a ‘‘spotting’’ charge) or live (containing explosive charges). Live munitions may detonate above, at, or slightly below the water surface. The actions include air-to-surface test missions of the Joint Air-to-Surface Stand-off Missile/Joint Air-to-Surface Stand-off Missile-Extended Range (JASSM/JASSM–ER), Small Diameter Bomb-I/II (SDB–I/II), High-speed AntiRadiation Missile (HARM), Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/LJDAM), and Miniature Air-Launched Decoy (MALD), including detonations above the water, at the water surface, and slightly below the water surface (Table 1). Aircraft used for munition releases would include bombers and fighter aircraft. Additional airborne assets, such as the P–3 Orion or the P–8 Poseidon, would be used to relay telemetry and E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules flight termination system streams between the weapon and ground stations. Other support aircraft would be associated with range clearance activities before and during the mission and with air-to-air refueling operations. All weapon delivery aircraft would originate from an out base and fly into military-controlled airspace prior to employment. Due to long transit times between the out base and mission location, air-to-air refueling may be conducted in either W–188 or W–189. Bombers, such as the B–1, would deliver the weapons, conduct air-to-air refueling, and return to their originating base as part of one sortie. However, when fighter aircraft are used, the distance and corresponding transit time to the various potential originating bases would make return flights after each mission day impractical. In these cases, the aircraft would temporarily (less than one week) park overnight at Hickam Air Force Base (HAFB) and would return to their home base at the conclusion of each mission set. Multiple weapon release aircraft would be used during some missions, each potentially releasing multiple munitions. Each LRS WSEP mission set will occur over a maximum of five consecutive days per year. Approximately 10 Air Force personnel would be on temporary duty to support each mission set. Aircraft flight maneuver operations and weapon release would be conducted in W–188A. Chase aircraft may be used to evaluate weapon release and to track weapons. Flight operations and weapons delivery would be in accordance with published Air Force directives and weapon operational release parameters, as well as all applicable Navy safety regulations and criteria established specifically for the PMRF. Aircraft supporting LSR WSEP missions would primarily operate at high altitudes—only flying below 3,000 ft for a limited time as needed for escorting non-military vessels outside the hazard area or for monitoring the area for protected marine species (e.g., marine mammals and sea turtles). Protected marine species aerial surveys would be temporary (approximately 30 minutes) and would focus on an area surrounding the weapon impact point on the water. Post-mission surveys would focus on the area down current of the weapon impact location. Range clearance procedures for each mission would cover a much larger area for human safety. Weapon release parameters would be conducted as approved by the PMRF Range Safety. Daily mission briefs would specify planned release conditions for each VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 mission. Aircraft and weapons would be tracked for time, space, and position information. The 86 FWS test director would coordinate with the PMRF Range Safety Officer, Operations Conductor, Range Facility Control Officer, and other applicable mission control personnel for aircraft control, range clearance, and mission safety. Joint Air-to-Surface Stand-Off Missile/ Joint Air-to-Surface Stand-Off Missile— Extended Range (JASSM/JASSM–ER) The JASSM is a stealthy precision cruise missile designed for launch outside area defenses against hardened, medium-hardened, soft, and area type targets. The JASSM has a range of more than 200 nmi (370 km) and carries a 1,000-lb warhead with approximately 300 lbs of 2,4,6-trinitrotoluene (TNT) equivalent net explosive weight (NEW). The specific explosive used is AFX–757, a type of plastic bonded explosive (PBX). The weapon has the capability to fly a preprogrammed route from launch to a target, using Global Positioning System (GPS) technology and an internal navigation system (INS) combined with a Terminal Area Model when available. Additionally, the weapon has a Common Low Observable Auto-Routing function that gives the weapon the ability to find the route that best utilizes the low observable qualities of the JASSM. In either case, these routes can be modeled prior to weapon release. The JASSM–ER has additional fuel and a different engine for a greater range than the JASSM (500 nmi (926 km)) but maintains the same functionality of the JASSM. Small Diameter Bomb-I/Small Diameter Bomb–II (SDB–I/SDB–II) The SDB–I is a 250-lb air-launched GPS–INS guided weapon for fixed soft to hardened targets. SDB–II expands the SDB–I capability with network enabling and uses a tri-mode sensor infrared, millimeter, and semi-active laser to attack both fixed and movable targets. Both munitions have a range of up to 60 nmi (111 km). The SDB–I contains 37 lbs of TNT-equivalent NEW, and the SDB–II contains 23 lbs NEW. The explosive used in both SDB–I and SDB– II is AFX–757. High-Speed Anti-Radiation Missile (HARM) The HARM is a supersonic air-tosurface missile designed to seek and destroy enemy radar-equipped air defense systems. The HARM has a proportional guidance system that homes in on enemy radar emissions through fixed antenna and seeker head in the missile nose. It has a range of up PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 21159 to 80 nmi (148 km) and contains 45 lbs of TNT-equivalent NEW. The explosive used is PBXN–107. Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/LJDAM) The JDAM is a smart GPS–INS weapon that uses an unguided gravity bomb and adds a guidance and control kit, converting it to a precision-guided munition. The LJDAM variant adds a laser sensor to the JDAM, permitting guidance to a laser designated target. Both JDAM and LJDAM contain 192 lbs of TNT-equivalent NEW with multiple fusing options, with detonations occurring upon impact or with up to a 10-millisecond delay. Miniature Air Launched Decoy/ Miniature Air Launched Decoy— Jamming (MALD/MALD–J) The MALD is an air-launched, expendable decoy that will provide the Air Force the capability to simulate, deceive, decoy, and saturate an enemy’s threat integrated air defense system (IADS). The MALD production has recently transitioned to include the MALD–J variant, which has the same decoy capability of the MALD plus the addition of jamming IADS. The MALD and MALD–J have ranges up to 500 nmi (926 km) to include a 200 nmi (370 km) dash with a 30-minute loiter mode. It has no warhead, and no detonation would occur upon impact with the water surface. Releases of live ordnance associated with 2017–2021 missions would result in either airbursts, surface detonations, or subsurface detonations (10-ft (3 m) water depth). Up to four SDB I/II munitions could be released simultaneously, such that each ordnance would hit the water surface within a few seconds of each other. Aside from the SDB–I/II releases, all other weapons would be released separately, impacting the water surface at different times. There will be a total of five mission days per year during the time frame of 2017 to 2021. A typical mission day would consist of pre-mission checks, safety review, crew briefings, weather checks, clearing airspace, range clearance, mitigations/ monitoring efforts, and other military protocols prior to launch of weapons. Potential delays could be the result of multiple factors, including adverse weather conditions leading to unsafe take-off, landing, and aircraft operations, inability to clear the range of non-mission vessels or aircraft, mechanical issues with mission aircraft or munitions, or presence of protected species in the impact area. These standard operating procedures are E:\FR\FM\05MYP1.SGM 05MYP1 21160 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules usually done in the morning, and live range time may begin in late morning once all checks are complete and approval is granted from range control. The range would be closed to the public for a maximum of four hours per mission day. Each long range strike weapon would be released in W–188A and would follow a given flight path with programmed GPS waypoints to mark its course in the air. Long range strike weapons would complete their maximum flight range (up to 500 nmi distance for JASSM–ER) at an altitude of approximately 18,000 ft (equivalent in kms) mean sea level (MSL) and terminate at a specified location for scoring of the impact. The cruise time would vary among the munitions but would be about 45 minutes for JASSM/ JASSM–ER and 10 minutes for SDB–I/ II. The time frame between employments of successive munitions would vary, but releases could be spaced by approximately one hour to account for the JASSM cruise time. The routes and associated safety profiles would be contained within W–188A boundaries. The objective of the route designs is to complete full-scale evasive maneuvers that avoid simulated threats, and would not consist of a standard ‘‘paper clip’’ or regularly shaped route. The final impact point on the water surface would be programmed into the munitions for weapons scoring and evaluations. The JDAM/LJDAM munitions would also be set to impact at the same point on the water surface. All missions would be conducted in accordance with applicable flight safety, hazard area, and launch parameter requirements established for the PMRF. A weapon hazard region would be established, with the size and shape determined by the maximum distance a weapon could travel in any direction during its descent. The hazard area is typically adjusted for potential wind speed and direction, resulting in a maximum composite safety footprint for each mission (each footprint boundary is at least 10 nmi from the Kauai coastline). This information is used to establish a Launch Exclusion Area and Aircraft Hazard Area. These exclusion areas must be verified to be clear of all non-mission and non-essential vessels and aircraft before live weapons are released. In addition, a buffer area must also be clear on the water surface so that vessels do not enter the exclusion area during the launch window. Prior to weapon release, a range sweep of the hazard area would be conducted by participating mission aircraft or other appropriate aircraft, potentially including S–61N helicopter, C–26 aircraft, fighter aircraft (F–15E, F–16, F– 22), or the Coast Guard’s C–130 aircraft. The PMRF has used small water craft docked at the Port Allen public pier to keep nearshore areas clear of tour boats for some mission launch areas. However, for missions with large hazard areas that occur far offshore from Kauai, it would be impractical for these smaller vessels to conduct range clearance activities. The composite safety footprint weapons associated with LRS WSEP missions is anticipated to be rather large; therefore, it is likely that range clearing activities would be conducted solely by aircraft. The Range Facility Control Officer is responsible for establishing hazard clearance areas, directing clearance and surveillance assets, and reporting range status to the Operations Conductor. The Control Officer is also responsible for submitting all Notice to Airmen (NOTAMs) and Notice to Mariners (NOTMARs), and for requesting all Federal Aviation Administration airspace clearances. The 86 FWS would also like to use a maximum of eight target boats and a maximum of 5,000 20-mm gunnery rounds each year. The gunnery rounds would be inert (do not contain explosives), which would minimize the potential for fragmentation and creation of marine debris, and would be fired against a target boat. Because the use of target boats with inert munitions does not have an acoustic component, it would not take any marine mammals, and is therefore not discussed further. TABLE 1—SUMMARY OF PROPOSED TESTING AT THE PMRF FROM 2017 TO 2021 Type of munition JASSM/JASSM–ER ............... SDB–I .................................... SDB–II ................................... HARM .................................... JDAM/LJDAM ........................ MALD/MALD–J ...................... Live or inert NEW (lb) Live ........ Live ........ Live ........ Live ........ Live ........ Inert ....... 300 37 23 45 192 N/A Type of aircraft Bomber, Fighter .... Bomber, Fighter .... Bomber, Fighter .... Fighter ................... Bomber, Fighter .... Fighter ................... Detonation scenario Surface .................. Surface .................. Surface .................. Surface .................. Subsurface 1 .......... N/A ........................ Number of Proposed Releases 2017 6 30 30 10 30 4 2018 6 30 30 10 30 4 2019 6 30 30 10 30 4 2020 6 30 30 10 30 4 2021 6 30 30 10 30 4 HARM = High Anti-Radiation Missile; JASSM = Joint Air-to-Surface Standoff Missile; JASSM–ER = Joint Air-to-Surface Standoff Missile—Extended Range; JDAM = Joint Direct Attack Munition; lb = pounds; LJDAM = Laser Joint Direct Attack Munition; MALD = Miniature Air Launched Decoy; MALD–J = Miniature Air Launched Decoy—Jamming; N/A = not applicable (inert); SDB = Small Diameter Bomb 1 Assumes a 10-millisecond time-delayed fuse resulting in detonation occurring at an approximate 10-foot water depth. jstallworth on DSK7TPTVN1PROD with PROPOSALS Description of Marine Mammals in the Area of the Specified Activity There are 25 marine mammal species with potential or confirmed occurrence in the proposed activity area; however, VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 not all of these species occur in this region during the project timeframe. Table 2 lists and summarizes key information regarding stock status and abundance of these species. Please see PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 NMFS’ draft 2016 Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars for more detailed accounts of these stocks’ status and abundance. E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules 21161 TABLE 2—MARINE MAMMALS THAT COULD OCCUR IN THE BSURE AREA Species Stock abundance (CV, Nmin, most recent abundance survey) 2 ESA/MMPA status; strategic (Y/N) 1 Stock PBR 3 Occurrence in BSURE area Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family: Balaenopteridae Humpback whale (Megaptera novaeangliae) 4. Central North Pacific N; Y ........... 10,103 (0.300; 7,890; 2006). 83 ....... Blue Whale (Balaenoptera musculus) ........ Central North Pacific Y; Y ........... 81 (1.14; 38; 2010). 0.1 ...... Fin whale (Balaenoptera physalus ............. Hawaii ..................... Y; Y ........... 0.1 ...... Sei whale (Balaenoptera borealis) ............. Hawaii ..................... Y; Y ........... 58 (1.12; 27; 2010). 178 (0.90; 93; 2010). Bryde’s whale (Balaenoptera brydei/edeni) Hawaii ..................... –; N ............ 798 (0.28; 633; 2010). 6.3 ...... Minke whale (Balaenoptera acutorostrata) Hawaii ..................... –; N ............ n/a (n/a; n/a; 2010). Undet. 0.2 ...... Seasonal; throughout known breeding grounds during winter and spring (most common November through April). Seasonal; infrequent winter migrant; few sightings, mainly fall and winter; considered rare. Seasonal, mainly fall and winter; considered rare. Rare; limited sightings of seasonal migrants that feed at higher latitudes. Uncommon; distributed throughout the Hawaiian Exclusive Economic Zone. Regular but seasonal (October–April). Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family: Physeteridae Sperm whale (Physeter macrocephalus) ... Hawaii ..................... Y; Y ........... 3,354 (0.34; 2,539; 2010). 10.2 .... Widely distributed year round; more likely in waters > 1,000 m depth, most often > 2,000 m. Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family: Kogiidae Pygmy sperm whale (Kogia breviceps) ...... Hawaii ..................... –; N ............ n/a (n/a; n/a; 2010). Undet. Dwarf sperm whale (Kogia sima) ............... Hawaii ..................... –; N ............ n/a (n/a; n/a; 2010). Undet. Widely distributed year more likely in waters 1,000 m depth. Widely distributed year more likely in waters m depth. round; > round; > 500 Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family: Delphinidae Hawaii ..................... –; N ............ False killer whale (Pseudorca crassidens) Hawaii Pelagic ........ –; N ............ NWHI Stock ............ –; N ............ Pygmy killer whale (Feresa attenuata) ....... jstallworth on DSK7TPTVN1PROD with PROPOSALS Killer whale (Orcinus orca) ......................... Hawaii ..................... –; N ............ Short-finned pilot macrorhynchus). (Globicephala Hawaii ..................... –; N ............ (Peponocephala Hawaii Islands stock –; N ............ Melon headed electra). VerDate Sep<11>2014 whale whale 17:11 May 04, 2017 Jkt 241001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 101 (1.00; 50; 2010). 1,540 (0.66; 928; 2010). 617 (1.11; 290; 2010). 3,433 (0.52; 2,274; 2010). 12,422 (0.43; 8,872; 2010). 1 ......... 9.3 ...... Uncommon; infrequent sightings. Regular. 2.3 ...... Regular. 23 ....... Year-round resident. 70 ....... Commonly observed around Main Hawaiian Islands and Northwestern Hawaiian Islands. Regular. 5,794 (0.20; 4,904; 2010). 4 ......... E:\FR\FM\05MYP1.SGM 05MYP1 21162 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules TABLE 2—MARINE MAMMALS THAT COULD OCCUR IN THE BSURE AREA—Continued Species Stock ESA/MMPA status; strategic (Y/N) 1 Bottlenose dolphin (Tursiops truncatus) ..... Hawaii pelagic ........ –; N ............ Pantropical spotted attenuata). (Stenella Hawaii pelagic ........ –; N ............ Striped dolphin (Stenella coeruleoala) ....... Hawaii ..................... Spinner dolphin (Stenella longirostris) ....... Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR 3 Occurrence in BSURE area 5,950 (0.59; 3,755; 2010). 15,917 (0.40; 11,508; 2010). 38 ....... –; N ............ 20,650 (0.36; 15,391; 2010). 154 ..... Hawaii pelagic ........ –; N ............ Undet. Rough-toothed dolphins (Steno bredanensis). Hawaii stock ........... –; N ............ n/a (n/a; n/a; 2010). 6,288 (0.39; 4,581; 2010). Fraser’s dolphin (Lagenodelphis hosei) ..... Hawaii ..................... –; N ............ 16,992 (0.66; 10,241; 2010). 102 ..... Risso’s dolphin (Grampus griseus) ............ Hawaii ..................... –; N ............ 7,256 (0.41; 5,207; 2010). 42 ....... Common in deep offshore waters. Common; primary occurrence between 100 and 4,000 m depth. Occurs regularly year round but infrequent sighting during survey. Common year-round in offshore waters. Common throughout the Main Hawaiian Islands and Hawaiian Islands EEZ. Tropical species only recently documented within Hawaiian Islands EEZ (2002 survey). Previously considered rare but multiple sightings in Hawaiian Islands EEZ during various surveys conducted from 2002–2012. dolphin 115 ..... 46 ....... Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family: Ziphiidae Cuvier’s beaked whale (Ziphius cavirostris). Hawaii ..................... –; N ............ 1,941 (n/a; 1,142; 2010). 11.4 .... Blainville’s beaked whale (Mesoplodon densirostris). Hawaii ..................... –; N ............ 2,338 (1.13; 1,088; 2010). 11 ....... Longman’s beaked whale (Indopacetus pacificus). Hawaii ..................... –; N ............ 4,571 (0.65; 2,773; 2010). 28 ....... Year-round occurrence but difficult to detect due to diving behavior. Year-round occurrence but difficult to detect due to diving behavior. Considered rare; however, multiple sightings during 2010 survey. Order—Carnivora—Superfamily Pinnipedia (seals, sea lions) Family: Phocidae Hawaiian monk schauinslandi). seal (Neomonachus Hawaii ..................... Y; Y ........... 1,112 (n/a; 1,088; 2013). Undet. Predominantly occur at Northwestern Hawaiian Islands; approximately 138 individuals in Main Hawaiian Islands. jstallworth on DSK7TPTVN1PROD with PROPOSALS 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 CV is coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2015 Pacific SARs, except humpback whales—see comment 4. 3 Potential biological removal (PBR), defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 Values for humpback whales are from the 2015 Alaska SAR. Of these 25 species, 5 are listed as endangered under the Endangered Species Act (ESA) and as depleted throughout their range under the MMPA. These are: Blue whale, fin VerDate Sep<11>2014 17:11 May 04, 2017 Jkt 241001 whale, sei whale, sperm whale, and the Hawaiian monk seal. Only one of these species, the sei whale, may be impacted by 86 FWS’s activities. PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 Of the 25 species that may occur in Hawaiian waters, only certain stocks occur in the impact area during the season in which LRS WSEP activities may occur. Sixteen species are E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS considered likely to be in the impact area during the five days of project activities. Although sperm whales are frequently detected in this area and have even been satellite-tagged with presence in this area of the PMRF (Baird 2016), because of the low density of this species and the short duration of mission activities, take was not requested for this species. Similarly, large baleen whales like the fin and blue whales occur in this area in all or most months of the year; however, their densities during the time of the 86 FWS’s activities are very low (or 0) that the probability they will be impacted by the mission activities during the 4 hours per day on the 5 days over the course of the year is minimal, and no take was modeled or requested for these species. We have reviewed 86 FWS’s species descriptions, including life history information, distribution, regional distribution, diving behavior, and acoustics and hearing, for accuracy and completeness. We refer the reader to Sections 3 and 4 of 86 FWS’s application and to Chapter 3 in 86 FWS’s EA, rather than reprinting the information here. Below, for those 16 species that are likely to be taken by the activities described, we offer a brief introduction to the species and relevant stock as well as available information regarding population trends and threats, and describe any information regarding local occurrence. Humpback Whale Humpback whales are found worldwide in all ocean basins. In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres (Muto et al., 2015). These wintering grounds are used for mating, giving birth, and nursing new calves. Humpback whales migrate nearly 3,000 mi (4,830 km) from their winter breeding grounds to their summer foraging grounds in Alaska. There are five stocks of humpback whales, one of which occurs in Hawaii: The Central North Pacific Stock, which consists of winter/spring populations in the Hawaiian Islands, which migrate primarily to northern British Columbia/ Southeast Alaska, the Gulf of Alaska, and the Bering Sea/Aleutian Islands (Muto et al., 2015). The current abundance estimate for the Central North Pacific stock is 10,103 animals, with potential biological removal (PBR) at 83 animals, and this stock is considered a strategic stock (Muto et al., 2015). Humpback whales occur seasonally in Hawaii, with peak sightings between December and May VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 each year; however, sightings have occurred in other months in very low numbers. Most humpback whales congregate off the island of Maui in the shallow protected waters, but can be seen off all of the islands, including the Northwestern Hawaiian Islands (Baird 2016). Humpback whales were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks continued to be listed as endangered. NMFS recently evaluated the status of the species, and on September 8, 2016, NMFS divided the species into 14 distinct population segments (DPS), removed the current species-level listing, and in its place listed four DPSs as endangered and one DPS as threatened (81 FR 62259, September 8, 2016). The remaining nine DPSs were not listed. There is one DPS that occurs in the action area: The Hawaii DPS, which is not listed under the ESA (81 FR 62259). Because this rule resulted in the designation of DPSs in the North Pacific, a parallel revision of MMPA population structure in the North Pacific is currently being considered. Sei Whale Sei whales occur seasonally in Hawaii in the winter and spring months and feed in higher latitude feeding grounds in the summer and fall (Carretta et al., 2014). Sightings of this species are rare in Hawaii. This species stays offshore of the islands in deeper waters (Baird 2016). Average group size for this species is 3.1 animals (Bradford et al., 2017). The abundance estimate for this stock from a 2010 survey is 178 animals (Carretta et al., 2014). More recent estimates, based on the 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, estimate the Hawaii stock of sei whales to be 391 individuals (Bradford et al., 2017). PBR is currently 0.2 sei whales per year (Carretta et al., 2014). The main threats to this stock are fisheries interactions and increasing levels of anthropogenic sound in the ocean (Carretta et al., 2014). This stock is listed as endangered under the ESA, and is considered a depleted and strategic stock under the MMPA. Minke Whale Minke whales occur seasonally in Hawaii (Carretta et al., 2014). Sightings of this species are rare; however, acoustic detection of their ‘‘boing’’ sounds are common. An acoustic study from 2007–2008 at a location 100 km north of the island of Oahu detected PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 21163 boings throughout the winter and spring months from October until May, with a peak in March (Baird 2016). The current abundance estimate for this stock is unknown and, therefore, PBR is also unknown (Carretta et al., 2014). There is insufficient data to determine trends in the population. The main threat to this stock is the increasing level of anthropogenic sound in the ocean (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered strategic or designated as depleted under the MMPA (Carretta et al., 2014). Pygmy Sperm Whale Pygmy sperm whales are found in tropical and warm-temperate waters throughout the world (Ross and Leatherwood 1994). This species prefers deeper waters with observations of this species in greater than 4,000 m depth (Baird et al., 2013); and, based on stomach contents from stranded individuals, pygmy sperm whales forage between 600 and 1,200 m depth (Baird 2016). Sightings are rare of this species, but observations include lone individuals or pairs, with an average group size of 1.5 individuals (Baird 2016). There is a single stock of Pygmy sperm whales in Hawaii. Current abundance estimates for this stock are unknown. A 2002 survey in Hawaii estimated 7,138 animals; however, this data is outdated and is no longer used. PBR cannot be calculated due to insufficient data. (Carretta et al., 2014). The main threats to this species are fisheries interactions and effects from underwater sounds such as active sonar (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered strategic or designated as depleted under the MMPA (Carretta et al., 2014). Dwarf Sperm Whale Dwarf sperm whales are found throughout the world in tropical to warm-temperate waters (Carretta et al., 2014). They are usually found in waters deeper than 500 m, most often sighted in depths between 500 and 1,000 m, but they have been documented in depths as shallow as 106 m and as deep as 4,700 m (Baird 2016). This species is often alone or in small groups of up to two to four individuals (average group size of 2.7 individuals), with a maximum observed group size of eight individuals (Baird 2016). When there are more than two animals together, they are often loosely associated, with up to several hundred meters between pairs of individuals (Baird 2016). E:\FR\FM\05MYP1.SGM 05MYP1 21164 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS There is one stock of dwarf sperm whales in Hawaii. Sighting data suggests a small resident population off Hawaii Island (Baird 2016). There are no current abundance estimates for this stock. In 2002, a survey off Hawaii estimated the abundance at 17,159; however, this data is outdated and is no longer used. PBR cannot be calculated due to insufficient data. It has been suggested that this species is probably one of the more abundant species of cetaceans in Hawaiian waters (Baird 2016). One of their main threats is interactions with fisheries; however, dwarf sperm whales are also sensitive to high-intensity underwater sounds and navy sonar testing. This stock is not listed as endangered under the ESA and is not considered strategic or designated as depleted under the MMPA (Carretta et al., 2014). Pygmy Killer Whale Pygmy killer whales are found in tropical and subtropical waters. The Hawaii stock occurs year round in Hawaii and has a small resident population within the main Hawaiian islands (Carretta et al., 2014). This resident group stays within 20 km of shore (Carretta et al., 2014) in water depths between 500 and 3,500 m (Baird 2016), while other populations may move farther offshore. The resident population is less common off the islands of Kauai and Niihau (Baird 2016). This stock forms stable social groups, with group sizes ranging from 2 to 33 individuals, and with average group sizes of 9 individuals (Baird 2016). Other research suggests a larger average group size of 25.7 animals (Bradford et al., 2017), but most of these sightings were farther offshore in pelagic waters. The most recent abundance estimate for this group in the SAR is 3,433 animals with PBR at 23 animals (Carretta et al., 2014). More recently, the abundance estimate for this stock, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 10,640 animals (Bradford et al., 2017). The main threats for this stock include fisheries interactions and increases in underwater sound in the ocean (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Short-Finned Pilot Whale Short-finned pilot whales are found primarily in tropical and warmtemperate waters (Carretta et al., 2014). This species prefers deeper waters, VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 ranging from 324 m to 4,400 m, with most sightings between 500 m and 3,000 m (Baird 2016). There are multiple resident populations in Hawaii, with small home ranges around one or two islands, as well as a pelagic population (Baird 2016). This stock forms stable social groups, with average group size of 18 individuals, but may form large aggregations of close to 200 individuals (Baird 2016). Other research suggests a larger average group size of 40.9 individuals (Bradford et al., 2017), but most of these sightings were farther offshore in pelagic waters. The most recent abundance estimate for this group in the SAR is 12,422 animals with PBR at 70 animals (Carretta et al., 2014). More recently, the abundance estimate for this stock, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 19,503 animals (Bradford et al., 2017). The main threat to this stock is interactions with fisheries (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Melon-Headed Whale Melon-headed whales are found in tropical and warm-temperate waters (Carretta et al., 2014). There are two demographically-independent populations in Hawaii, the Hawaiian Islands stock and the Kohala resident stock (Carretta et al., 2014). The resident stock have a small range restricted to the shallow waters around Hawaii Island, whereas the Hawaiian Islands stock are found all throughout the islands and out into the pelagic areas (Carretta et al., 2014). Only the latter stock may be affected by 86 FWS’s activities. This stock prefers waters deeper than 1,000 m (Baird 2016). This species forms large groups, with average group size of almost 250 individuals, with the largest group documented at close to 800 individuals (Baird 2016). Other research suggests a smaller average group size of 153 individuals (Bradford et al., 2017). The most recent abundance estimate for this stock in the SAR is 2,860 animals with PBR at 49 animals (Carretta et al., 2014). More recently, the abundance estimate for this stock, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 8,666 individuals (Bradford et al., 2017). The main threat to this species is human induced, most likely through fisheries interactions (Carretta et al., 2014) and mid-frequency sonar testing (Baird 2016). This stock is not listed as endangered or threatened under the PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Bottlenose Dolphin Bottlenose dolphins are found in tropical to warm-temperate waters (Carretta et al., 2014). They are common throughout the Hawaiian Islands, with coastal and offshore forms, and with limited range movements between islands and offshore waters (Carretta et al., 2014). There are four resident populations: (1) Kauai/Niihau, (2) Oahu, (3) the 4-island region, and (4) Hawaii; as well as one pelagic stock, which is separated by the 1,000 m isobaths (Carretta et al., 2014). Only the pelagic population is considered here. Average group size of bottlenose dolphins is 33.5 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 3,755 animals with PBR at 38 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 21,815 individuals (Bradford et al., 2017); however, this may be an overestimate since most of the sightings were in the Northwestern Hawaiian Islands (Baird 2016). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Pantropical Spotted Dolphin Pantropical spotted dolphins are found in tropical and subtropical waters (Carretta et al., 2014). There are four stocks in Hawaii: (1) The Oahu stock, (2) the 4-Island stock, (3) the Hawaii Island stock, and (4) the Hawaii pelagic stock. Only the pelagic stock is considered here. This species prefers deeper waters between 1,500 m and 3,000 m (Baird 2016). This species forms large groups with average group size of 60 individuals, with the largest group estimated at 400 individuals (Baird 2016). Other research suggests a smaller average group size of 43.2 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 15,917 animals with PBR at 115 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 55,795 individuals (Bradford et al., 2017). The main threat to this species is interactions with fisheries (Baird 2016). This stock is not listed as endangered or threatened under the E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). jstallworth on DSK7TPTVN1PROD with PROPOSALS Striped Dolphin Striped dolphins are found in tropical to warm-temperate waters (Carretta et al., 2014). There is one stock of striped dolphins in Hawaii. This is a deep water species, preferring depths greater than 3,500 m (Baird 2016). This species forms large groups, with an average group size of 28 individuals, and a maximum group size of 100 individuals (Baird 2016). Other research suggests a larger average group size of 52.6 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 20,651 animals with PBR at 154 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 61,201 individuals (Bradford et al., 2017). The main threat to this species is disease (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Spinner Dolphin Spinner dolphins are found in tropical and warm-temperate waters (Carretta et al., 2014). There are six stocks in the main Hawaiian islands: (1) Kauai/Niihau stock, (2) Oahu and the 4Islands region, (3) Hawaii island stock, (4) Pearl & Hermes Reef, (5) Kure/ Midway, and (6) pelagic stock. The boundary between the island-associated stocks and the pelagic stock is 10 nmi from shore (Carretta et al., 2014). Only the pelagic stock is considered here. The offshore stock is rarely sighted (Baird 2016), and most of the deep water activity is at night when they feed. The average group size for this species is 30 individuals with larger groups of nearly 300 animals observed (Baird 2016). The most recent abundance estimate for the pelagic stock in the SAR is 3,351 animals from a 2002 survey, which is outdated (Carretta et al., 2014). The main threat to this species is the constant interactions with humans during the day-time when they are resting (Carretta et al., 2014; Baird 2016). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Rough-Toothed Dolphin Rough-toothed dolphins are found in tropical and warm-temperate waters VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 (Carretta et al., 2014). While there is evidence for two island-associated stocks and one pelagic stock in Hawaii, there is only one stock designated for Hawaii (Carretta et al., 2014). Most sightings of this species off Kauai are in water depths of less than 1,000 m; however, it is the most often sighted species in depths greater than 3,000 m (Baird 2016). This species forms stable associations as part of larger groups, with average group sizes of 11 animals and maximum group sizes, observed off Kauai, of 140 individuals (Baird 2016). Other research suggests a larger average group size of 25.3 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 6,288 animals with PBR at 46 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 72,528 individuals (Bradford et al., 2017). The main threat to this species is interactions with fisheries (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Fraser’s Dolphin Fraser’s dolphin are found in tropical waters (Carretta et al., 2011). This is a deep water species occurring offshore of the Hawaiian islands, with sightings occurring in water depths between 1,515 m and 4,600 m (Baird 2016). This species forms large groups with average group sizes between 75 and 110 individuals (Baird 2016). Other research suggests a larger average group size of 283.3 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 10,226 animals with PBR at 47 animals (Carretta et al., 2011). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 51,491 individuals (Bradford et al., 2017). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2011). Risso’s Dolphin Risso’s dolphins are found in tropical to warm-temperate waters (Carretta et al., 2014). This is a deep water species, often found in depths greater than 3,000 m, and with the highest sighting rate in depths greater than 4,500 m (Baird 2016). This species forms small groups, PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 21165 with an average group size of 4 individuals, and a maximum group size of 25 individuals off the coast of Hawaii (Baird 2016). Other research, which was conducted offshore, suggests a larger average group size of 26.6 individuals (Bradford et al., 2017), which may be more representative of this species since they occur more often offshore in deeper waters. The most recent abundance estimate for the pelagic stock in the SAR is 7,256 animals with PBR at 42 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 11,613 individuals (Bradford et al., 2017). The main threat to this species is interactions with fisheries (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Longman’s Beaked Whale Longman’s beaked whales are found in tropical waters from the eastern Pacific westward through the Indian Ocean to the eastern coast of Africa (Carretta et al., 2014). There is one stock in Hawaii. Group sizes range from 18 to 110 individuals (Baird 2016), with an average group size of 59.8 individuals (Bradford et al., 2017). The most recent abundance estimate for the pelagic stock in the SAR is 4,571 animals with PBR at 28 animals (Carretta et al., 2014). More recently, the abundance estimate for all of the stocks in Hawaii, based on a 2010 survey pooled with sightings collected during previous NMFS surveys of the eastern Pacific, is 7,619 individuals (Bradford et al., 2017). The main threats to this species are interactions with fisheries and increasing sounds in the ocean, including military sonar (Carretta et al., 2014). This stock is not listed as endangered or threatened under the ESA and is not considered a depleted or strategic stock under the MMPA (Carretta et al., 2014). Potential Effects of the Specified Activity on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components (e.g., munition strikes and detonation effects) of the specified activity, including mitigation, may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include a quantitative analysis of the number of individuals E:\FR\FM\05MYP1.SGM 05MYP1 21166 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS that we expect 86 FWS to take during this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity would impact marine mammals, and will consider the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals, and from that on the affected marine mammal populations or stocks. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects on marine mammals from sound produced by surface detonations. Description of Sound Sources and WSEP Sound Types Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave. Amplitude is the height of the sound pressure wave or the ‘‘loudness’’ of a sound, and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (mPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 mPa). The received level is the sound level at the listener’s position. Note that we reference all underwater sound levels in this document to a pressure of 1 mPa, and all airborne sound levels in this document are referenced to a pressure of 20 mPa. Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 positive so that one can account for the values in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures. When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones. Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, and atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, and construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995): • Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions. • Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times. • Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 contributions is from approximately 12 Hz to over 100 kHz. • Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz; and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound as opposed to ambient sound. The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise ‘‘ambient’’ or ‘‘background’’ sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10–20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals. The sounds produced by the proposed WSEP activities are considered impulsive, which is one of two general sound types, the other being nonpulsed. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. (2007) for an in-depth discussion of these concepts. Impulsive sound sources (e.g., explosions, gunshots, sonic booms, and impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI 1986; Harris, 1998; NIOSH 1998; ISO 2003), and occur either as isolated events or repeated in E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules 1997; Wartzok and Ketten, 1999; Au and Hastings, 2008). Animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. For mid-frequency cetaceans, functional hearing estimates occur between approximately 150 Hz and 160 kHz, with best hearing estimated to occur between approximately 10 to less than 100 kHz (Finneran et al., 2005 and 2009, Natchtigall et al., 2005 and 2008; Yuen et al., 2005; Popov et al., 2010 and 2011; and Schlundt et al., 2011). On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (81 FR 51694). This new guidance established new some succession. These sounds have a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features. Marine Mammal Hearing When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Southall et al., 21167 thresholds for predicting onset of temporary (TTS) and permanent threshold shifts (PTS) for impulsive (e.g., explosives and impact pile drivers) and non-impulsive (e.g., vibratory pile drivers) sound sources. These acoustic thresholds are presented using dual metrics of cumulative sound exposure level (SELcum) and peak sound level (PK) for impulsive sounds and SELcum for non-impulsive sounds. The lower and/or upper frequencies for some of these functional hearing groups have been modified from those designated by Southall et al. (2007), and the revised generalized hearing ranges are presented in the new Guidance. The functional hearing groups and the associated frequencies are indicated in Table 3 below. TABLE 3—MARINE MAMMAL HEARING GROUPS AND THEIR GENERALIZED HEARING RANGE Hearing group Generalized hearing range * Low-frequency (LF) cetaceans (baleen whales) ................................................................................................ Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ..................... High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger and L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ............................................................................................. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ......................................................................... 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. 60 Hz to 39 kHz. jstallworth on DSK7TPTVN1PROD with PROPOSALS * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). There are sixteen marine mammal species with expected potential to cooccur with 86 FWS LRS WSEP military readiness activities. These species fall into the following hearing groups: (1) Low-frequency cetaceans (humpback whale (Megaptera novanglieae), sei whale (Balaenoptera borealis), and minke whale (Balaenoptera acutorostrata)); (2) mid-frequency cetaceans (Pygmy killer whale (Feresa attenuata), short-finned pilot whale (Globicephala macrorhynchus), melonheaded whale (Peponocephala electra), bottlenose dolphin (Tursiops truncatus), Pantropical spotted dolphin (Stenella attenuata), striped dolphin (Stenella coeruleoala), spinner dolphin (Stenella longirostris), rough-toothed dolphin (Steno bredanensis), Fraser’s dolphin (Lagenodelphis hosei), Risso’s dolphin (Grampus griseus), and Longman’s beaked whale (Indopacetus pacificus)); and (3) high-frequency cetaceans (Pygmy sperm whale (Kogia breviceps), and dwarf sperm whale (Kogia sima)). There are no phocid or otariid species that will be impacted by 86 FWS’s activities. A species’ functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals. VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 Acoustic Impacts Please refer to the information given previously (Description of Sound Sources) regarding sound, characteristics of sound types, and metrics used in this document. Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound from active acoustic sources can potentially result in one or more of the following: Temporary or permanent hearing impairment; non-auditory physical or physiological effects; behavioral disturbance; stress; and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et ¨ al., 2007; Gotz et al., 2009). The degree of effect is intrinsically related to the signal characteristics, received level, distance from the source, and duration of the sound exposure. In general, sudden, high level sounds can cause hearing loss, as can longer exposures to lower level sounds. Temporary or permanent loss of hearing will occur PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 almost exclusively as a result of exposure to noise within an animal’s hearing range. We first describe specific manifestations of acoustic effects before providing discussion specific to 86 FWS’s activities. Richardson et al. (1995) described zones of increasing intensity of effect that might be expected to occur, in relation to distance from a source and assuming that the signal is within an animal’s hearing range. First is the area within which the acoustic signal would be audible (potentially perceived) to the animal, but not strong enough to elicit any overt behavioral or physiological response. The next zone corresponds with the area where the signal is audible to the animal and of sufficient intensity to elicit behavioral or physiological responsiveness. Third is a zone within which, for signals of high intensity, the received level is sufficient to potentially cause discomfort or tissue damage to auditory or other systems. Overlaying these zones to a certain extent is the area within which masking (i.e., when a sound interferes with or masks the ability of an animal to detect a signal of interest that is above the absolute hearing threshold) may occur; the masking zone may be highly variable in size. E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21168 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules We describe the more severe effects (i.e., certain non-auditory physical or physiological effects and mortality) only briefly as we do not expect that there is a reasonable likelihood that 86 FWS’s activities may result in such effects (see below for further discussion). Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005b). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal’s hearing threshold would recover over time (Southall et al., 2007). Repeated sound exposure that leads to TTS could cause PTS. In severe cases of PTS, there can be total or partial deafness, while in most cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985). When PTS occurs, there is physical damage to the sound receptors in the ear (i.e., tissue damage); whereas, TTS represents primarily tissue fatigue and is reversible (Southall et al., 2007). In addition, other investigators have suggested that TTS is within the normal bounds of physiological variability and tolerance and does not represent physical injury (e.g., Ward 1997). Therefore, NMFS does not consider TTS to constitute auditory injury. Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak et al., 2008)—but are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40-dB threshold shift approximates PTS onset; e.g., Kryter et al., 1966; Miller, 1974) that inducing mild TTS (a 6-dB threshold shift approximates TTS onset; e.g., Southall et al., 2007). Based on data from terrestrial mammals, a precautionary assumption is that the PTS thresholds for impulse sounds (such as bombs) are at least 6 dB higher than the TTS threshold on a peak-pressure basis and PTS cumulative sound exposure level thresholds are 15 to 20 dB higher than TTS cumulative sound exposure level thresholds (Southall et al., 2007). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur. Non-auditory physiological effects or injuries that theoretically might occur in VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 marine mammals exposed to high level underwater sound or as a secondary effect of extreme behavioral reactions (e.g., change in dive profile as a result of an avoidance reaction) caused by exposure to sound include neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack, 2007). 86 FWS’s activities involve the use of devices such as explosives that are associated with these types of effects; however, severe injury to marine mammals is not anticipated from these activities. When a live or dead marine mammal swims or floats onto shore and is incapable of returning to sea, the event is termed a ‘‘stranding’’ (16 U.S.C. 1421h(3)). Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series (e.g., Geraci et al., 1999). However, the cause or causes of most strandings are unknown (e.g., Best 1982). Combinations of dissimilar stressors may combine to kill an animal or dramatically reduce its fitness, even though one exposure without the other would not be expected to produce the same outcome (e.g., Sih et al., 2004). For further description of stranding events see, e.g., Southall et al., 2006; Jepson et al., 2013; Wright et al., 2013. 1. Temporary threshold shift—TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the data published at the time of this writing concern TTS elicited by exposure to multiple pulses of sound. Marine mammal hearing plays a critical role in communication with conspecifics, and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. Currently, TTS data exist only for four species of cetaceans ((bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor porpoise (Phocoena phocoena), and Yangtze finless porpoise (Neophocoena asiaeorientalis)) and three species of pinnipeds (northern elephant seal (Mirounga angustirostris), harbor seal (Phoca vitulina), and California sea lion (Zalophus californianus)) exposed to a limited number of sound sources (i.e., mostly tones and octave-band noise) in laboratory settings (e.g., Finneran et al., 2002; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Popov et al., 2011). In general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower TTS onset than other measured pinniped or cetacean species. Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall et al. (2007) and Finneran and Jenkins (2012). 2. Behavioral effects—Behavioral disturbance may include a variety of effects, including subtle changes in behavior (e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, and time of day), as well as the interplay between factors (e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source (e.g., whether it is moving or stationary, number of sources, and distance from the source). Please see Appendices B–C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound. Habituation can occur when an animal’s response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a ‘‘progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,’’ rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have shown pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied, but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007). Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone to the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 2005). There are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight. Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (e.g., Frankel and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et al.; 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging), or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response. Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance (e.g., Croll et al., 2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal. Variations in respiration naturally vary with different behaviors, and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 21169 exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et al., 2007). Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007b). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994). Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Avoidance may be short-term, with animals returning to the area once the noise has ceased (e.g., Bowles et al., 1994; Goold 1996; Stone et al., 2000; Morton and Symonds 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006). A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (e.g., directed movement, and rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21170 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules mammal strandings (Evans and England 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves 2008), and whether individuals are solitary or in groups may influence the response. Behavioral disturbance can also impact marine mammals in subtler ways. Increased vigilance may result in costs related to diversion of focus and attention (i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (e.g., Beauchamp and Livoreil 1997; Fritz et al., 2002; Purser and Radford 2011). In addition, chronic disturbance can cause population declines through reduction of fitness (e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both (e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a fiveday period did not cause any sleep deprivation or stress effects. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruptions of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses. 3. Stress responses—An animal’s perception of a threat may be sufficient to trigger stress responses consisting of some combination of behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 2000). In many cases, an animal’s first and sometimes most VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 economical (in terms of energetic costs) response is behavioral avoidance of the potential stressor. Autonomic nervous system responses to stress typically involve changes in heart rate, blood pressure, and gastrointestinal activity. These responses have a relatively short duration and may or may not have a significant long-term effect on an animal’s fitness. Neuroendocrine stress responses often involve the hypothalamus-pituitaryadrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 2000). Increases in the circulation of glucocorticoids are also equated with stress (Romano et al., 2004). The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and ‘‘distress’’ is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function. Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005). Stress responses due to exposure to anthropogenic sounds or other stressors and their effects on marine mammals have also been reviewed (Fair and Becker 2000; Romano et al., 2002b) and, more rarely, studied in wild populations (e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales. These and other studies lead to a reasonable expectation that some marine mammals will experience physiological stress responses upon exposure to acoustic PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 stressors and that it is possible that some of these would be classified as ‘‘distress.’’ In addition, any animal experiencing TTS would likely also experience stress responses (NRC, 2003). 4. Auditory masking—Sound can disrupt behavior through masking, or interfering with, an animal’s ability to detect, recognize, or discriminate between acoustic signals of interest (e.g., those used for intraspecific communication and social interactions, prey detection, predator avoidance, and navigation) (Richardson et al., 1995). Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher intensity, and may occur whether the sound is natural (e.g., snapping shrimp, wind, waves, and precipitation) or anthropogenic (e.g., shipping, sonar, and seismic exploration) in origin. The ability of a noise source to mask biologically important sounds depends on the characteristics of both the noise source and the signal of interest (e.g., signal-tonoise ratio, temporal variability, and direction), in relation to each other and to an animal’s hearing abilities (e.g., sensitivity, frequency range, critical ratios, frequency discrimination, directional discrimination, age or TTS hearing loss), and existing ambient noise and propagation conditions. Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but it may result in a behavioral effect. The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on highfrequency echolocation sounds produced by odontocetes, but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals caused by anthropogenic noise may be considered as a reduction in the communication space of animals (e.g., Clark et al., 2009), E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS and may result in energetic or other costs as animals change their vocalization behavior (e.g., Miller et al., 2000; Foote et al., 2004; Parks et al., 2007b; Di Iorio and Clark, 2009; Holt et al., 2009). Masking can be reduced in situations where the signal and noise come from different directions (Richardson et al., 1995), through amplitude modulation of the signal, or through other compensatory behaviors (Houser and Moore 2014). Masking can be tested directly in captive species (e.g., Erbe 2008), but in wild populations it must be either modeled or inferred from evidence of masking compensation. There are few studies addressing real-world masking sounds likely to be experienced by marine mammals in the wild (e.g., Branstetter et al., 2013). Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world’s ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (e.g., from vessel traffic), contribute to elevated ambient sound levels, thus intensifying masking. The LRS WSEP training exercises proposed for the incidental take of marine mammals have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by live ordnance detonation at the surface of the water. Exposure to energy, pressure, or direct strike by ordnance has the potential to result in non-lethal injury (Level A harassment), disturbance (Level B harassment), serious injury, and/or mortality. In addition, NMFS also considered the potential for harassment from vessel and aircraft operations. Acoustic Effects, Underwater Explosive detonations at the water surface send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals. Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can be injured, killed, suffer non-lethal physical effects, experience hearing related effects with or without VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 behavioral responses, or exhibit temporary behavioral responses (e.g. flight responses, temporary avoidance) from hearing the blast sound. Generally, exposures to higher levels of impulse and pressure levels would result in greater impacts to an individual animal. The effects of underwater detonations on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the sound; the depth of the water column; the substrate of the habitat; the standoff distance between activities and the animal; and the sound propagation properties of the environment. Thus, we expect impacts to marine mammals from LRS WSEP activities to result primarily from acoustic pathways. As such, the degree of the effect relates to the received level and duration of the sound exposure, as influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The potential effects of underwater detonations from the proposed LRS WSEP training activities may include one or more of the following: Temporary or permanent hearing impairment, nonauditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). However, the effects of noise on marine mammals are highly variable, often depending on species and contextual factors (based on Richardson et al., 1995). In the absence of mitigation, impacts to marine species could result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulsive sounds on marine mammals. Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift. Given the available data, the received level of a single pulse (with no frequency weighting) might need to be approximately 186 dB re 1 mPa2–s (i.e., 186 dB sound exposure level (SEL) or approximately 221–226 dB p-p (peak)) in order to produce brief, mild TTS. Exposure to several strong pulses that each have received levels near 190 dB rms (175–180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 21171 function of the total received pulse energy. Non-auditory Physiological Effects— Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Serious Injury/Mortality: 86 FWS proposes to use munitions in its training exercises that may detonate above, at, or slightly below the water surface. The explosions from these weapons would send a shock wave and blast noise through the water, release gaseous byproducts, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. The shock wave and blast noise are of most concern to marine animals. In general, potential impacts from explosive detonations can range from brief effects (such as short term behavioral disturbance), tactile perception, physical discomfort, slight injury of the internal organs, and death of the animal (Yelverton et al., 1973; O’Keeffe and Young 1984; DoN 2001). Physical damage of tissues resulting from a shock wave (from an explosive detonation) constitutes an injury. Blast effects are greatest at the gas-liquid interface (Landsberg 2000) and gascontaining organs, particularly the lungs and gastrointestinal tract, are especially susceptible to damage (Goertner 1982; Yelverton et al., 1973). Nasal sacs, larynx, pharynx, trachea, and lungs may be damaged by compression/expansion caused by the oscillations of the blast gas bubble (Reidenberg and Laitman 2003). Severe damage (from the shock wave) to the ears can include tympanic membrane rupture, fracture of the ossicles, cochlear damage, hemorrhage, and cerebrospinal fluid leakage into the middle ear. Non-lethal injury includes slight injury to internal organs and the auditory system; however, delayed lethality can be a result of individual or cumulative sublethal injuries (DoN 2001). Immediate lethal injury would be a result of massive combined trauma to internal organs as a direct result of proximity to the point of detonation (DoN 2001). Disturbance Reactions Because the few available studies show wide variation in response to underwater sound, it is difficult to quantify exactly how sound from the LRS WSEP operational testing would affect marine mammals. It is likely that the onset of surface detonations could result in temporary, short term changes in an animal’s typical behavior and/or avoidance of the affected area. These E:\FR\FM\05MYP1.SGM 05MYP1 21172 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules Auditory Masking While it may occur temporarily, we do not expect auditory masking to result in detrimental impacts to an individual’s or population’s survival, fitness, or reproductive success. Dolphin movement is not restricted within the BSURE area, allowing for movement out of the area to avoid masking impacts, and the sound resulting from the detonations is short in duration. Also, masking is typically of greater concern for those marine mammals that utilize low frequency communications, such as baleen whales and, as such, is not likely to occur for marine mammals in the BSURE area. mammals are agile and move more quickly through the water, making them less susceptible to ship strikes. NMFS and 86 FWS are not aware of any vessel strikes of marine mammals within in BSURE area during training operations, and both parties do not anticipate that potential 86 FWS vessels engaged in the specified activity would strike any marine mammals. Aircraft produce noise at frequencies that are well within the frequency range of cetacean hearing and also produce visual signals such as the aircraft itself and its shadow (Richardson et al., 1995, Richardson and Wursig, 1997). A major difference between aircraft noise and noise caused by other anthropogenic sources is that the sound is generated in the air, transmitted through the water surface and then propagates underwater to the receiver, diminishing the received levels significantly below what is heard above the water’s surface. Sound transmission from air to water is greatest in a sound cone 26 degrees directly under the aircraft. There are fewer reports of reactions of odontocetes to aircraft than those of pinnipeds. Responses to aircraft by pinnipeds include diving, slapping the water with pectoral fins or tail fluke, or swimming away from the track of the aircraft (Richardson et al., 1995). The nature and degree of the response, or the lack thereof, are dependent upon the nature of the flight (e.g., type of aircraft, altitude, straight vs. circular flight pattern). Wursig et al. (1998) assessed the responses of cetaceans to aerial surveys in the north central and western Gulf of Mexico using a DeHavilland Twin Otter fixed-wing airplane. The plane flew at an altitude of 229 m (751.3 ft) at 204 km/hr (126.7 mph) and maintained a minimum of 305 m (1,000 ft) straight line distance from the cetaceans. Water depth was 100 to 1,000 m (328 to 3,281 ft). Bottlenose dolphins most commonly responded by diving (48 percent), while 14 percent responded by moving away. Other species (e.g., beluga (Delphinapterus leucas) and sperm whales) show considerable variation in reactions to aircraft but diving or swimming away from the aircraft are the most common reactions to low flights (less than 500 m; 1,640 ft). Vessel and Aircraft Presence The marine mammals most vulnerable to vessel strikes are slow-moving and/or spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., North Atlantic right whales (Eubalaena glacialis), fin whales, and sperm whales). Smaller marine Direct Strike by Ordnance Another potential risk to marine mammals is direct strike by ordnance, in which the ordnance physically hits an animal. Although strike from an item at the surface of the water while the animals are at the surface is possible, the potential risk of a direct hit to an animal within the target area would be jstallworth on DSK7TPTVN1PROD with PROPOSALS behavioral changes may include (Richardson et al., 1995): Changing durations of surfacing and dives, number of blows per surfacing, moving direction and/or speed; reduced/ increased vocal activities; changing/ cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); or avoidance of areas where sound sources are located. The biological significance of any of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However generally, one could expect the consequences of behavioral modification to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include: • Drastic changes in diving/surfacing patterns (such as those thought to cause beaked whale stranding due to exposure to military mid-frequency tactical sonar); • Habitat abandonment due to loss of desirable acoustic environment; and • Cessation of feeding or social interaction. The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007). VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 low. Marine mammals spend the majority of their time below the surface of the water, and the potential for one bomb or missile to hit that animal at that specific time is highly unlikely. Anticipated Effects on Habitat Detonations of live ordnance would result in temporary changes to the water environment. An explosion on the surface of the water from these weapons could send a shock wave and blast noise through the water, release gaseous byproducts, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. However, these effects would be temporary and not expected to last more than a few seconds. Similarly, 86 FWS does not expect any long-term impacts with regard to hazardous constituents to occur. The 86 FWS considered the introduction of fuel, debris, ordnance, and chemical materials into the water column within its EA and determined the potential effects of each to be insignificant. We summarize 86 FWS’s analyses in the following paragraphs. For a complete discussion of potential effects, please refer to section 3.0 in 86 FWS’s EA. Metals typically used to construct bombs and missiles include aluminum, steel, and lead, among others. Aluminum is also present in some explosive materials. These materials would settle to the seafloor after munitions detonate. Metal ions would slowly leach into the substrate and the water column, causing elevated concentrations in a small area around the munitions fragments. Some of the metals, such as aluminum, occur naturally in the ocean at varying concentrations and would not necessarily impact the substrate or water column. Other metals, such as lead, could cause toxicity in microbial communities in the substrate. However, such effects would be localized to a very small distance around munitions fragments and would not significantly affect the overall habitat quality of sediments in the BSURE area. In addition, metal fragments would corrode, degrade, and become encrusted over time. Chemical materials include explosive byproducts and also fuel, oil, and other fluids associated with remotely controlled target boats. Explosive byproducts would be introduced into the water column through detonation of live munitions. Explosive materials would include TNT and research department explosive (RDX), among others. Various byproducts are produced during and immediately after detonation of TNT and RDX. During the E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules very brief time that a detonation is in progress, intermediate products may include carbon ions, nitrogen ions, oxygen ions, water, hydrogen cyanide, carbon monoxide, nitrogen gas, nitrous oxide, cyanic acid, and carbon dioxide (Becker 1995). However, reactions quickly occur between the intermediates, and the final products consist mainly of water, carbon monoxide, carbon dioxide, and nitrogen gas, although small amounts of other compounds are typically produced as well. Chemicals introduced into the water column would be quickly dispersed by waves, currents, and tidal action, and eventually become uniformly distributed. A portion of the carbon compounds such as carbon monoxide and carbon dioxide would likely become integrated into the carbonate system (alkalinity and pH buffering capacity of seawater). Some of the nitrogen and carbon compounds, including petroleum products, would be metabolized or assimilated by phytoplankton and bacteria. Most of the gas products that do not react with the water or become assimilated by organisms would be released into the atmosphere. Due to dilution, mixing, and transformation, none of these chemicals are expected to have significant impacts on the marine environment. Explosive material that is not consumed in a detonation could sink to the substrate and bind to sediments. However, the quantity of such materials is expected to be inconsequential. Research has shown that if munitions function properly, nearly full combustion of the explosive materials will occur, and only extremely small amounts of raw material will remain. In addition, any remaining materials would be naturally degraded. TNT decomposes when exposed to sunlight (ultraviolet radiation) and is also degraded by microbial activity (Becker 1995). Several types of microorganisms have been shown to metabolize TNT. Similarly, RDX decomposes by hydrolysis, ultraviolet radiation exposure, and biodegradation. While we anticipate that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat and prey resources would be temporary and reversible. The main impact associated with the proposed activity would be temporarily elevated noise levels and the associated direct effects on marine mammals, previously discussed in this notice. Marine mammals are anticipated to temporarily vacate the area of live detonations. VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 However, these events are usually of short duration, and animals are anticipated to return to the activity area during periods of non-activity. Thus, based on the preceding discussion, we do not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations. Proposed Mitigation In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of affecting the least adverse impact practicable on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the incidental take authorization process 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. NMFS and 86 FWS have worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the military-readiness activity. We refer the reader to Section 11 of 86 FWS’s application for more detailed information on the proposed mitigation measures, which include the following: Timing Restriction: The 86 FWS will be restricted to certain times of the day and certain months of the year. All missions will occur on weekdays during daylight hours only. Missions will not occur during the months of January to May when transmission loss is greater due to winter/spring seasonal conditions and when marine mammal densities are higher. Visual Aerial Surveys: For the LRS WSEP activities, mitigation procedures consist of visual aerial surveys of the impact area for the presence of protected marine species (including marine mammals). During aerial observation, Navy test range personnel may survey the area from an S–61N helicopter or C–62 aircraft that is based at the PMRF land facility (typically, when missions are located relatively PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 21173 close to shore). Alternatively, when missions are located farther offshore, surveys may be conducted from mission aircraft (typically jet aircraft such as F– 15E, F–16, or F–22) or a U.S. Coast Guard C–130 aircraft. Protected species surveys typically begin within one hour of weapon release and as close to the impact time as feasible, given human safety requirements. Survey personnel must depart the human hazard zone before weapon release, in accordance with Navy safety standards. Personnel conduct aerial surveys within an area defined by a maximum 8-mi (13 km) radius around the impact point with surveys typically flown in a star pattern. This survey distance is much larger than requirements for similar actions at the PMRF and what was accomplished for October 2016 missions. This expanded area would encompass the entire behavioral threshold ranges (SEL) for all mid-frequency cetaceans, the entire PTS threshold ranges (SEL) for lowfrequency cetaceans and phocids, approximately 23 percent of the TTS threshold ranges (SEL) for lowfrequency cetaceans and phocids, and about 64 percent of the PTS threshold range (SEL) for high-frequency cetaceans (pygmy and dwarf sperm whales) (Table 5). The survey distance would not cover the entire behavioral harassment ranges for low- and highfrequency cetaceans and phocids. Given operational constraints, surveying these larger areas would not be feasible. Observers would consist of aircrew operating the C–26, S–61N, and C–130 aircraft from the PMRF and the Coast Guard. These aircrew are trained and experienced at conducting aerial marine mammal surveys and have provided similar support for other missions at the PMRF. Aerial surveys are typically conducted at an altitude of about 200 ft, but altitude may vary somewhat depending on sea state and atmospheric conditions. If adverse weather conditions preclude the ability for aircraft to safely operate, missions would either be delayed until the weather clears or cancelled for the day. The C–26 and other aircraft would generally be operated at a slightly higher altitude than the helicopter. The observers will be provided with the GPS location of the impact area. Once the aircraft reaches the impact area, premission surveys typically last for 30 minutes, depending on the survey pattern. The fixed-wing aircraft are faster than the helicopter, and, therefore, protected species may be more difficult to spot. However, to compensate for the difference in speed, E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21174 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules the aircraft may fly the survey pattern multiple times. Mission Delays: If a protected species is observed in the impact area, weapon release would be delayed until one of the following conditions is met: (1) The animal is observed exiting the impact area; or (2) the impact area has been clear of any additional sightings for a period of 30 minutes. All weapons will be tracked and their water entry points will be documented. Post-mission surveys would begin immediately after the mission is complete and the Range Safety Officer declares the human safety area is reopened. Approximate transit time from the perimeter of the human safety area to the weapon impact area would depend on the size of the human safety area and vary between aircraft but is expected to be less than 30 minutes. Post-mission surveys would be conducted by the same aircraft and aircrew that conducted the pre-mission surveys and would follow the same patterns as pre-mission surveys but would focus on the area down current of the weapon impact area to determine if protected species were affected by the mission (observation of dead or injured animals). If a serious injury or mortality occurs to a protected species due to LRS WSEP missions, NMFS would be notified immediately. A typical mission day would consist of pre-mission checks, safety review, crew briefings, weather checks, clearing airspace, range clearance, mitigations/ monitoring efforts, and other military protocols prior to launch of weapons. Potential delays could be the result of multiple factors including, adverse weather conditions leading to unsafe take-off, landing, and aircraft operations, inability to clear the range of non-mission vessels or aircraft, mechanical issues with mission aircraft or munitions, or presence of protected species in the impact area. These standard operating procedures are usually done in the morning, and live range time may begin in late morning once all checks are complete and approval is granted from range control. The range would be closed to the public for a maximum of four hours per mission day. Determination of the Zone of Influence: The zone of influence (ZOI) is defined as the area or volume of ocean in which marine mammals could be exposed to various pressure or acoustic energy levels caused by exploding ordnance. Refer to Appendix A of 86 FWS’s application for a description of the method used to calculate impact areas for explosives. The pressure and energy levels considered to be of VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 concern are defined in terms of metrics, criteria, and thresholds. A metric is a technical standard of measurement that describes the acoustic environment (e.g., frequency duration, temporal pattern, and amplitude) and pressure at a given location. Criteria are the resulting types of possible impact and include mortality, injury, and harassment. A threshold is the level of pressure or noise above which the impact criteria are reached. Standard impulsive and acoustic metrics were used for the analysis of underwater energy and pressure waves in this document. Several different metrics are important for understanding risk assessment analysis of impacts to marine mammals: SPL is the ratio of the absolute sound pressure to a reference level, SEL is the measure of sound intensity and duration, and positive impulse is the time integral of the pressure over the initial positive phase of an arrival. The criteria and thresholds used to estimate potential pressure and acoustic impacts to marine mammals resulting from detonations were obtained from Finneran and Jenkins (2012) and include mortality, Level A harassment, and Level B harassment. In some cases, separate thresholds have been developed for different species groups or functional hearing groups. Functional hearing groups included in the analysis are low-frequency cetaceans, midfrequency cetaceans, and highfrequency cetaceans. Based on the ranges presented in Table 5 and factoring operational limitations associated with the mission, 86 FWS estimates that during premission surveys, the proposed monitoring area would be approximately 8 mi (13 km) from the target area radius around the impact point, with surveys typically flown in a star pattern, which is much larger than requirements already in place for similar actions at the PMRF and what was accomplished for October 2016 missions. NMFS discussed with the 86 FWS and the U.S. Navy—whose hydrophones and PAM equipment in the PMRF would be used—the idea of using PAM for mitigation purposes to supplement visual surveys. Through these discussions, NMFS and 86 FWS attempted to determine if using PAM as a mitigation tool was feasible. The Navy described the constraints of using PAM as a real-time mitigation tool due to the limitations of the current technology. These include limitations on the ability to detect, classify, and estimate locations of marine mammals around the equipment; the fact that marine PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 mammals present in the area may not be vocalizing; and the fact that vocalizations made by some species may be outside of the frequency capabilities of the hydrophones. These limitations are explained further, below. In regards to the limitations to detect classify, and estimate locations of marine mammals around the equipment, and the fact that some of those animals may vocalize outside of the frequency capabilities of the hydrophones, the Navy states: Based on current capabilities, and given adequate time, vocalizing animals within an indeterminate radius around a particular phone are detected, but obtaining an estimated position for all individual animals passing through a predetermined area is not assured. Detecting vocalizations on a phone does not determine whether vocalizing individuals would be within the established mitigation zone in the timeframes required for mitigation. Since detection ranges are generally larger than current mitigation zones for many activities, this would unnecessarily delay events due to uncertainty in the animals location. To develop an estimated position for an individual, it must be vocalizing and its vocalizations must be detected on at least three hydrophones. The hydrophones must have the required bandwidth, and dynamic range to capture the signal. In addition, calls must be sufficiently loud so as to provide the required signal to noise ratio on the surrounding hydrophones. Typically, small odontocetes echolocate with a directed beam that makes detection of the call on multiple hydrophones difficult. Developing an estimated position of selected species requires the presence of whistles which may or may not be produced depending on the behavioral state. Large baleen species vocalize at frequencies well below 1 kHz. There are few broadband phones with low frequency capabilities at PMRF and they are widely spaced, especially on the southern portion of the range. This makes estimating the positions of low frequency baleen whales difficult in that area. For minke whale boings, it takes 30 to 45 minutes of calling (e.g. observing 8 calls or more) to have good confidence in a whale’s estimated position. Additionally, even minke whales that have been vocalizing for extended periods can, and have, gone silent for hours at a time. Extended gaps in calling have also been noted for fin, sei, and Bryde’s whales. We are currently unable to estimate positions of humpbacks in real-time. Beaked whales vocalize only during deep foraging dives which occur at a rate of approximately 10 per day. They produce highly directed echolocation clicks that are difficult to simultaneously detect on multiple hydrophones. Current real-time systems cannot follow individuals and at best produce sparse positions with multiple false locations. The position estimation process must occur in an area with hydrophones spaced to allow the detection of the same echolocation E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules click on at least three hydrophones. Typically, a spacing of less than 4 km in water depths of approximately 2 km is preferred. In the absence of localizations, the analyst can only determine with confidence if a group of beaked whales is somewhere within 6 km of a hydrophone. Beaked whales produce stereotypic click trains during deep (<700 m) foraging dives. The presence of a vocalizing group can be readily detected by an analyst by examining the click structure and repetition rate. However, estimating position is possible only if the same train of clicks is detected on multiple hydrophones which is often precluded by the animal’s narrow beam pattern. In regards to marine mammals not vocalizing in the area, the Navy states: jstallworth on DSK7TPTVN1PROD with PROPOSALS Animals must vocalize to be detected; the lack of detections on a hydrophone may give the false impression that the area is all clear. The lack of vocalization detections is not a direct measure of the absence of marine mammals. If an event were to be moved based upon low-confidence localizations, it may inadvertently be moved to an area where non-vocalizing animals of undetermined species/ESA status are present. NMFS decided that these analytical and technical limitations preclude the use of PAM as a real-time mitigation tool. However, we will require the use of PAM for monitoring purposes (as described below). We have carefully evaluated 86 FWS’s proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and • The practicability of the measure for applicant implementation. NMFS prescribes mitigation measures that accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here: 1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). 2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 reducing takes by behavioral harassment only). 3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to stimuli that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). 4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only). 5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/ disturbance of habitat during a biologically important time. 6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Based on our evaluation of 86 FWS’s proposed measures, as well as other measures that may be relevant to the specified activity, we have preliminarily determined that the proposed mitigation measures, including visual aerial surveys and mission delays if protected species are observed in the impact area, provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance (while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity). Proposed Monitoring and Reporting In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 21175 The 86 FWS submitted marine mammal monitoring and reporting measures in their LOA application. We may modify or supplement these measures based on comments or new information received during the public comment period. Any monitoring requirement we prescribe will improve our understanding of one or more of the following: • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) Affected species (e.g., life history, dive patterns); (3) Cooccurrence of marine mammal species with the action; or (4) Biological or behavioral context of exposure (e.g., age, calving or feeding areas). • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological). • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock. • Effects on marine mammal habitat and resultant impacts to marine mammals. • Mitigation and monitoring effectiveness. NMFS proposes to include the following monitoring and reporting measures in the LRS WSEP Authorization (if issued): (1) Using mission reporting forms, the 86 FWS will track the use of the PMRF for missions and protected species observations. (2) The 86 FWS will submit a summary report of marine mammal observations and LRS WSEP activities to the NMFS PIRO and the Office of Protected Resources 90 days after completion of mission activities each year. This report must include the following information: (i) Date and time of each LRS WSEP exercise; (ii) a complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of LRS WSEP exercises on marine mammal populations; and (iii) results of the LRS WSEP exercise monitoring, including number of marine mammals (by species) that may have been harassed due to presence within the activity zone. (3) The 86 FWS will monitor for marine mammals in the proposed action area through pre-mission aerial visual surveys. If 86 FWS personnel observe or detect any dead or injured marine E:\FR\FM\05MYP1.SGM 05MYP1 21176 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules mammals prior to testing, or detect any injured or dead marine mammal during live fire exercises, 86 FWS must cease operations and submit a report to NMFS OPR and PIRO within 24 hours. (4) The 86 FWS will monitor for marine mammals once the mission has ended or, if required, as soon as personnel declare the mission area safe. Post-mission aerial visual surveys will be identical to pre-mission surveys and will occur approximately 30 minutes after the munitions have been detonated, concentrating on the area down-current of the test site. Observers will document and report any marine mammal species, number, location, and behavior of any animals observed. Postmission monitoring determines the effectiveness of pre-mission mitigation by reporting sightings of any marine mammals within the ZOIs that may have been affected by mission activities. (5) As noted previously, PAM will not be used as a real-time mitigation tool, but the 86 FWS will use PAM by using the Navy’s hydrophones for monitoring within the PMRF, by collecting data before, during, and after LRS WSEP missions. This data will be stored at SPAWAR to be analyzed as funding allows. (6) The 86 FWS must immediately report any unauthorized takes of marine mammals (i.e., serious injury or mortality) to NMFS OPR and to the respective Pacific Islands Region stranding coordinator. The 86 FWS must cease operations and submit a report to NMFS within 24 hours. jstallworth on DSK7TPTVN1PROD with PROPOSALS Adaptive Management NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the 86 FWS regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring measures for these regulations. Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include: (1) Results from 86 FWS’s monitoring from the previous year(s); (2) results from other VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 marine mammal and/or sound research or studies; and (3) any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment. If, however, NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals in Hawaii, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action. Estimated Take by Incidental Harassment The NDAA of 2004 amended the definition of harassment as it applies to a military readiness activity (Section 3(18)(B) of the MMPA) to read as follows: (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). NMFS’ analysis identified the physiological responses and behavioral responses that could potentially result from exposure to explosive detonations. In this section, we will relate the potential effects on marine mammals from detonation of explosives to the MMPA regulatory definitions of Level A and Level B harassment. This section will also quantify the effects that might occur from the proposed military readiness activities in the PMRF BSURE area. As described below, quantifying take includes a consideration of acoustic thresholds identified by NMFS above PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 which received levels marine mammals are expected to be taken by either Level A or Level B harassment; predicted distances from the sound sources within which animals are expected to be exposed to sound levels above these thresholds; and the density of marine mammals within the areas ensonified above the thresholds. Level B Harassment Of the potential effects described earlier in this document, the following are the types of effects that would result from Level B harassment: Behavioral Harassment—Exposure to non-impulsive or impulsive sound, which causes a behavioral disturbance that rises to the level described in the above definition, is Level B harassment. Some of the lower level physiological stress responses discussed earlier would also likely co-occur with the predicted harassments, although these responses are more difficult to detect, and fewer data exist relating these responses to specific received levels of sound. When predicting Level B harassment on estimated behavioral responses, those takes may have a stress-related physiological component. Temporary Threshold Shift—As discussed previously, TTS can affect how an animal behaves in response to the environment, including conspecifics, predators, and prey. NMFS classifies exposure to explosives and other impulsive sources resulting in TTS as Level B harassment, not Level A harassment. Level A Harassment Of the potential effects that were described earlier, the following are the types of effects that result from Level A harassment and that may be expected from 86 FWS activities: Permanent Threshold Shift—PTS (resulting from exposure to explosive detonations) is irreversible, and NMFS considers this to be an injury. Table 4 outlines the explosive thresholds used by NMFS for this action when addressing noise impacts from explosives. BILLING CODE 3510–22–P E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS BILLING CODE 3510–22–C The 86 FWS completed acoustic modeling to determine the distances from their explosive ordnance corresponding to NMFS’ explosive thresholds; these distances were then used with each species’ density to determine exposure estimates. Below is a summary of the methodology for those modeling efforts. The maximum estimated range, or radius, from the detonation point to the point at which the various thresholds extend for all munitions proposed to be released in a 24-hour time period was calculated based on explosive acoustic characteristics, sound propagation, and sound transmission loss in the Study Area. These calculations incorporated water depth, sediment type, wind speed, bathymetry, and temperature/ salinity profiles (Table 5). Transmission loss was calculated from the explosive source depth down to an array of water depth bins extending to the maximum depths where marine mammals may occur (see depth distributions in Appendix B of the 86 FWS’s application). Then impact volumes were computed for each explosive source VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 (based on the total number of munitions released on a representative mission day). Impact areas were calculated from scaling the impact volumes by each depth bin, dividing by their depth intervals, summing each value over the entire water column and converting to square kilometers. The total energy for all weapons released as part of a representative mission day was calculated to assess impacts from the accumulated energy resulting from multiple weapon releases within a 24hour period. Given that there is a large degree of uncertainty in knowing this far in advance what types of explosives could be released on any particular mission day, in order to calculate the number of munitions to be released per mission day, the total number of each munition proposed to be released per year was divided by the annual number of mission days. Explosives generally will be separated by some number of minutes, with the exception of up to four SDB–I/II munitions, which includes a burst during which each ordnance hits the water surface within a few seconds of each other. For the purposes of PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 21177 predicting the number of exposures above threshold, calculating the area for each independent explosive and then adding those areas together and multiplying by species density would result in an overestimate. This is because all explosions will occur within 4 hours and are generally targeting the same spot, and several explosions have very large zones, so it is likely that many of the exposures will be experienced by the same individual animals. Therefore, to calculate take, we instead summed the energy of the expected number of separate explosives per day to create one area of impact to overlay with species density for that area. Since there would be a total of five mission days per year during the time frame of 2017—2021, the analysis assumed that in a representative mission day the following munitions and quantities would be released daily: One JASSM, six JDAMs, six SDB-Is, six SDB–IIs, and two HARMs. The 86 FWS used the calculations for transmission loss from the summer season in their model, because the parameters for the summer were more conservative (i.e., resulted in larger E:\FR\FM\05MYP1.SGM 05MYP1 EP05MY17.009</GPH> Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules 21178 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules distances from the sound source) than for the fall, taking into account wind speed, sound speed, and transmission loss (see 86 FWS’s seasonal parameters memo). Missions will most likely occur in the summer, but may also occur in the fall. Transmission loss was calculated from the explosive source depth down to an array of water depth volumes for each depth bin, dividing by their depth intervals, summing each value over the entire water column and converting to square kilometers. The radii shown in Table 5 are based on these impact areas, and were used for mitigation considerations. bins extending to the maximum depths where marine mammals may occur (see depth distributions in Appendix B of the 86 FWS’s application). Next, impact volumes were computed for each explosive source (i.e., total number of munitions released on a representative mission day). Impact areas were calculated by scaling the impact TABLE 5—DISTANCES (m) TO EXPLOSIVE THRESHOLDS USED TO CALCULATE PREDICTED TAKE FROM 86 FWS’S DAILY EXPLOSIVE ORDNANCE USE Level A harassment 2 Mortality 1 Species Slight lung injury GI tract injury 237 dB SPL Humpback Whale .............................................. Blue Whale ........................................................ Fin Whale .......................................................... Sei Whale .......................................................... Bryde’s Whale ................................................... Minke Whale ..................................................... Sperm Whale .................................................... Pygmy Sperm Whale ........................................ Dwarf Sperm Whale .......................................... Killer Whale ....................................................... False Killer Whale (MHI Insular stock) ............. False Killer Whale (all other stocks) ................. Pygmy Killer Whale ........................................... Short-finned Pilot Whale ................................... Melon-headed Whale ........................................ Bottlenose Dolphin ............................................ Pantropical Spotted Dolphin ............................. Striped Dolphin .................................................. Spinner Dolphin ................................................. Rough-toothed Dolphin ..................................... Fraser’s Dolphin ................................................ Risso’s Dolphin ................................................. Cuvier’s Beaked Whale ..................................... Blainville’s Beaked Whale ................................. Longman’s Beaked Whale ................................ Hawaiian Monk Seal ......................................... 99 74 76 101 99 138 91 248 273 149 177 177 324 217 273 273 324 324 324 273 257 207 131 195 133 306 200 149 157 204 200 268 177 457 509 287 340 340 604 413 502 509 604 604 604 509 480 384 257 368 261 564 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 204 Level B harassment PTS Applicable SEL * 5,415 5,415 5,415 5,415 5,415 5,415 1,575 20,058 20,058 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 1,575 4,621 TTS Applicable SPL * Behavioral Applicable SEL * 1,241 1,241 1,241 1,241 1,241 1,241 413 4,879 4,879 413 413 413 413 413 413 413 413 413 413 413 413 413 413 413 413 1,394 Applicable SPL * 55,464 55,464 55,464 55,464 55,464 55,464 8,019 71,452 71,452 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 8,019 55,687 2,266 2,266 2,266 2,266 2,266 2,266 763 7,204 7,204 763 763 763 763 763 763 763 763 763 763 763 763 763 763 763 763 2,549 Applicable SEL * 59,039 59,039 59,039 59,039 59,039 59,039 11,948 74,804 74,804 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 11,948 58,736 1 Based on Goertner (1982). on Richmond et al. (1973). * Based on the applicable Functional Hearing Group. 2 Based Density Estimation Density estimates for marine mammals were derived from the Navy’s 2016 Marine Species Density Database (NMSDD). The 86 FWS used fall densities to estimate take. Fall densities are more conservative than summer densities because they include more species. Density estimates provided in Table 6 were extrapolated over the depth distributions by multiplying the density values by the percentage of time spent at each depth interval. These scaled densities were multiplied by the corresponding depth bin in the impact volume for each threshold and summed to create a three-dimensional exposure estimate. These estimates were then multiplied by the number of events, or total annual number of proposed mission days. NMFS refers the reader to Section 3 of 86 FWS’s application for detailed information on all equations used to calculate densities presented in Table 6. TABLE 6—MARINE MAMMAL DENSITY ESTIMATES WITHIN THE IMPACT LOCATION IN THE PMRF Density estimate (animals per square kilometer) Species jstallworth on DSK7TPTVN1PROD with PROPOSALS Fall Humpback whale ............................................................................................. Blue whale ....................................................................................................... Fin whale ......................................................................................................... Sei whale ......................................................................................................... Bryde’s whale .................................................................................................. Minke whale ..................................................................................................... Sperm whale .................................................................................................... Pygmy sperm whale ........................................................................................ Dwarf sperm whale .......................................................................................... Killer whale ...................................................................................................... VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 0.02110 0.00005 0.00006 0.00016 0.00010 0.00423 0.00156 0.00291 0.00714 0.00006 Spring Summer 0.02110 0.00005 0.00006 0.00016 0.00010 0.00423 0.00156 0.00291 0.00714 0.00006 E:\FR\FM\05MYP1.SGM 05MYP1 0 0 0 0 0.00010 0 0.00156 0.00291 0.00714 0.00006 Winter 0.02110 0.00005 0.00006 0.00016 0.00010 0.00423 0.00156 0.00291 0.00714 0.00006 21179 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules TABLE 6—MARINE MAMMAL DENSITY ESTIMATES WITHIN THE IMPACT LOCATION IN THE PMRF—Continued Density estimate (animals per square kilometer) Species Fall False killer whale (Main Hawaiian Islands insular stock) ................................ False killer whale (all other stocks) ................................................................. Pygmy killer whale ........................................................................................... Short-finned pilot whale ................................................................................... Melon-headed whale ....................................................................................... Bottlenose dolphin ........................................................................................... Pantropical spotted dolphin ............................................................................. Striped dolphin ................................................................................................. Spinner dolphin ................................................................................................ Rough-toothed dolphin .................................................................................... Fraser’s dolphin ............................................................................................... Risso’s dolphin ................................................................................................. Cuvier’s beaked whale .................................................................................... Blainville’s beaked whale ................................................................................. Longman’s beaked whale ................................................................................ Hawaiian monk seal ........................................................................................ Take Estimation The resulting total number of marine mammals potentially exposed to the various levels of thresholds (mortality, injury, and non-injurious harassment, including behavioral harassment), in the absence of mitigation measures, is listed in Table 7. To eliminate doublecounting of animals, exposure results from higher impact categories (e.g., mortality) were subtracted from lower impact categories (e.g., Level A Spring 0.00080 0.00071 0.00440 0.00919 0.00200 0.00316 0.00623 0.00335 0.00204 0.00470 0.021 0.00470 0.00030 0.00086 0.00310 0.00003 harassment). For impact categories with dual criteria (e.g., SEL and SPL metrics for PTS associated with Level A harassment), numbers in the table are based on the criterion resulting in the greatest number of exposures. Exposure levels include the possibility of injury to marine mammals and harassment (resulting in behavioral disruption (Level B harassment) in the absence of mitigation measures. The numbers represent total impacts for all detonations combined and do not take Summer 0.00080 0.00071 0.00440 0.00919 0.00200 0.00316 0.00623 0.00335 0.00204 0.00470 0.021 0.00470 0.00030 0.00086 0.00310 0.00003 Winter 0.00080 0.00071 0.00440 0.00919 0.00200 0.00316 0.00623 0.00335 0.00204 0.00470 0.021 0.00470 0.00030 0.00086 0.00310 0.00003 0.00080 0.00071 0.00440 0.00919 0.00200 0.00316 0.00623 0.00335 0.00204 0.00470 0.021 0.00470 0.00030 0.00086 0.00310 0.00003 into account the required mitigation and monitoring measures (see Section 11 of the 86 FWS’s application), which are expected to decrease the number of exposures shown in the Table 7. The 86 FWS and NMFS estimated that 16 species could be exposed to noise levels constituting Level B harassment (TTS and behavioral disruption), and 4 of those marine mammal species could be exposed to injurious noise levels (Level A harassment) (187 dB SEL) in the absence of mitigation measures. TABLE 7—MODELED NUMBER OF MARINE MAMMALS POTENTIALLY AFFECTED ANNUALLY BY LRS WSEP OPERATIONS Species Level A harassment (PTS only *) Mortality Level B harassment (TTS) Level B harassment (behavioral) Mysticetes (baleen whales) Humpback whale ............................................................................................. Blue whale ....................................................................................................... Fin whale ......................................................................................................... Sei whale ......................................................................................................... Bryde’s whale .................................................................................................. Minke whale ..................................................................................................... 0 0 0 0 0 0 4 0 0 0 0 1 54 0 0 0 0 11 38 0 0 1 0 19 0 9 22 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 83 203 0 0 0 1 5 1 2 3 2 1 3 10 2 0 0 0 36 87 0 0 0 2 6 1 2 4 2 1 3 14 2 0 0 jstallworth on DSK7TPTVN1PROD with PROPOSALS Odontocetes (toothed whales and dolphins) Sperm whale .................................................................................................... Pygmy sperm whale ........................................................................................ Dwarf sperm whale .......................................................................................... Killer whale ...................................................................................................... False killer whale (MHI Insular stock) ............................................................. False killer whale (all other stocks) ................................................................. Pygmy killer whale ........................................................................................... Short-finned pilot whale ................................................................................... Melon-headed whale ....................................................................................... Bottlenose dolphin ........................................................................................... Pantropical spotted dolphin ............................................................................. Striped dolphin ................................................................................................. Spinner dolphin ................................................................................................ Rough-toothed dolphin .................................................................................... Fraser’s dolphin ............................................................................................... Risso’s dolphin ................................................................................................. Cuvier’s beaked whale .................................................................................... Blainville’s beaked whale ................................................................................. VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 E:\FR\FM\05MYP1.SGM 05MYP1 21180 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules TABLE 7—MODELED NUMBER OF MARINE MAMMALS POTENTIALLY AFFECTED ANNUALLY BY LRS WSEP OPERATIONS— Continued Species Level A harassment (PTS only *) Mortality Longman’s beaked whale ................................................................................ Level B harassment (TTS) Level B harassment (behavioral) 0 0 1 1 Hawaiian monk seal ........................................................................................ 0 0 0 0 Total .......................................................................................................... 0 36 382 219 Pinnipeds These modeled take numbers show that the probability of some of these species being impacted by the 86 FWS’s activities is low (e.g., one modeled take for behavioral harassment of 4 of the 16 species). However, realistically, these species are seen in larger groups (rather than on an individual basis); therefore, we took into consideration average group sizes to determine our actual number of authorized takes. For example, melon-headed whales have a modeled take estimate of one individual, but their average group size is 153 individuals (Bradford et al., 2017); therefore, we propose to authorize 153 takes by Level B harassment of melon headed whales, of which one may be from TTS. Similarly, for all species, if the modeled take was less than average group size, we used this same rationale and calculation to determine the proposed takes by Level B harassment (harassment resulting in TTS or behavioral disruption). We assumed that, of the total Level B harassment takes, the modeled take numbers would be used for TTS, and the difference between TTS and the average group size would be the behavioral take. We did not adjust takes for PTS, since, in all four instances of predicted PTS, the number of PTS takes was greater than average group size (e.g., average group size for dwarf sperm whale is 2.7 (Baird 2016), and modeled PTS takes is 22). Proposed authorized take numbers are presented in Table 8. TABLE 8—ESTIMATED NUMBER OF MARINE MAMMALS FOR PROPOSED AUTHORIZED TAKE BY LRS WSEP OPERATIONS Species Level A harassment (PTS only*) Mortality Level B harassment (TTS) Level B harassment (behavioral) Humpback whale ............................................................................................. Sei whale ......................................................................................................... Minke whale ..................................................................................................... Pygmy sperm whale ........................................................................................ Dwarf sperm whale .......................................................................................... Pygmy killer whale ........................................................................................... Short-finned pilot whale ................................................................................... Melon-headed whale ....................................................................................... Bottlenose dolphin ........................................................................................... Pantropical spotted dolphin ............................................................................. Striped dolphin ................................................................................................. Spinner dolphin ................................................................................................ Rough-toothed dolphin .................................................................................... Fraser’s dolphin ............................................................................................... Risso’s dolphin ................................................................................................. Longman’s beaked whale ................................................................................ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 0 1 9 22 0 0 0 0 0 0 0 0 0 0 0 54 0 11 83 203 1 5 1 2 3 2 1 3 10 2 1 38 *3 19 36 87 * 25 * 36 * 152 * 32 * 40 * 51 * 1 29 * 22 * 273 * 25 * 59 Total .......................................................................................................... 0 36 382 927 jstallworth on DSK7TPTVN1PROD with PROPOSALS * Denotes an adjusted take value from what is represented in the modeled take numbers in Table 7. All mean group sizes were taken from Bradford et al. (2017) except spinner dolphins, because this value was not available in this publication. 1 Mean group size was taken from Baird (2016). Based on the mortality exposure estimates calculated by the acoustic model (and further supported by the anticipated effectiveness of the mitigation), zero marine mammals are expected to be affected by pressure levels associated with mortality or serious injury. Zero marine mammals are expected to be exposed to pressure levels associated with slight lung injury or gastrointestinal tract injury. NMFS considers PTS to fall under the injury category (Level A harassment). In VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 this case, it would be highly unlikely for this scenario to unfold, given the nature of any anticipated acoustic exposures that could potentially result from a mobile marine mammal that NMFS generally expects to exhibit avoidance behavior to loud sounds within the BSURE area. NMFS has relied on the best available scientific information to support the issuance of 86 FWS’s authorization. In the case of authorizing Level A harassment, NMFS has estimated that, PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 although unlikely, four marine mammal species (humpback whale, minke whale, dwarf sperm whale, and pygmy sperm whale) could experience minor PTS of hearing sensitivity. The available data and analyses include extrapolation of the results of many studies on marine mammal noise-induced TTS. An extensive review of TTS studies and experiments prompted NMFS to conclude that the possibility of minor PTS in the form of slight upward shift of hearing threshold at certain frequency E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules bands by one individual marine mammal is extremely low. Analyses and Preliminary Determinations jstallworth on DSK7TPTVN1PROD with PROPOSALS Negligible Impact Analysis 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.’’ A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through Level B harassment, we consider other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat. In making a negligible impact determination, NMFS considers the following: (1) The number of anticipated injuries, serious injuries, or mortalities; (2) The number, nature, intensity, and duration of Level B harassment takes; (3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/ contemporaneous actions when added to baseline data); (4) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population); (5) Impacts on habitat affecting rates of recruitment/survival; and (6) The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take. For reasons stated previously in this document, the specified activities are not likely to cause long-term behavioral disturbance, serious injury, or death. The takes from Level B harassment would be due to potential behavioral disturbance and TTS. The takes from Level A harassment would be due to potential PTS. Activities would occur only over a timeframe of five days each year in the summer months, over a maximum of four hours per day. VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 Behavioral disruption due to Level B harassment would be limited to reactions such as startle responses, movements away from the area, and short-term changes to behavioral state. These impacts are expected to be temporary and of short duration. We do not anticipate that the effects would be detrimental to rates of recruitment and survival because we do not expect serious or extended behavioral responses that would result in energetic effects at the level to impact fitness. Noise-induced threshold shifts (TS, which includes TTS and PTS) are defined as increases in the threshold of audibility of the ear (i.e., the sound has to be louder to be detected) at a certain frequency or range of frequencies (ANSI 1995; Yost 2007). Several important factors relate to the magnitude of TS, such as level, duration, spectral content (frequency range), and temporal pattern (continuous, intermittent) of exposure (Yost 2007; Henderson et al., 2008). TS occurs in terms of frequency range (Hz or kHz), hearing threshold level (dB), or both frequency and hearing threshold level. TTS was modeled to occur in 15 species of marine mammals from mission activities. If TTS occurs, it is expected to be at low levels and of short duration. As explained above, TTS is temporary with no long term effects to species. The modeled take numbers are expected to be overestimates since NMFS expects that successful implementation of the required aerialbased mitigation measures could avoid TTS. Further, it is uncommon to sight marine mammals within the target area, especially for prolonged durations. Avoidance varies among individuals and depends on their activities or reasons for being in the area. There are different degrees of PTS: Ranging from slight/mild to moderate and from severe to profound. Profound PTS or the complete loss of the ability to hear in one or both ears is commonly referred to as deafness. High-frequency PTS, presumably as a normal process of aging that occurs in humans and other terrestrial mammals, has also been demonstrated in captive cetaceans (Ridgway and Carder, 1997; Yuen et al., 2005; Finneran et al., 2005; Houser and Finneran, 2006; Finneran et al., 2007; Schlundt et al., 2011) and in stranded individuals (Mann et al., 2010). In terms of what is analyzed for the potential PTS (Level A harassment) in marine mammals as a result of 86 FWS’s LRS WSEP operations, if it occurs, NMFS has determined that the levels would be slight/mild because research shows that most cetaceans exhibit relatively high levels of avoidance. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 21181 Further, it is uncommon to sight marine mammals within the target area, especially for prolonged durations. Avoidance varies among individuals and depends on their activities or reasons for being in the area. Accordingly, NMFS’ predicted estimates for Level A harassment take (Table 8) are likely overestimates of the likely injury that will occur. NMFS expects that successful implementation of the required aerial-based mitigation measures could avoid Level A harassment take. Also, NMFS expects that some individuals would avoid the source at levels expected to result in injury. Nonetheless, although NMFS expects that Level A harassment is unlikely to occur at the numbers proposed to be authorized, because it is difficult to quantify the degree to which the mitigation and avoidance will reduce the number of animals that might incur PTS, NMFS is proposing to authorize (and analyze) the modeled number of Level A harassment takes, which does not take the mitigation or avoidance into consideration. However, we anticipate that, because of the proposed mitigation measures, and the likely short duration of exposures, any PTS incurred would be in the form of only a small degree of PTS, rather than total deafness. While animals may be impacted in the immediate vicinity of the activity, because of the short duration of the actual individual explosions themselves (versus continual sound source operation) combined with the short duration of the LRS WSEP operations (i.e., maximum of four hours per day over a maximum of five days per year), NMFS has preliminarily determined that there will not be a substantial impact on marine mammals or on the normal functioning of the nearshore or offshore waters off Kauai and its ecosystems. We do not expect that the proposed activity would impact rates of recruitment or survival of marine mammals, since we do not expect mortality (which would remove individuals from the population) or serious injury to occur. In addition, the proposed activity would not occur in areas (and/or at times) of significance for the marine mammal populations potentially affected by the exercises (e.g., feeding or resting areas, reproductive areas), and the activity would occur only in a small part of their overall range of those marine mammal populations, so the impact of any potential temporary displacement would be negligible and animals would be expected to return to the area after the cessation of activities. Although the proposed activity could result in Level E:\FR\FM\05MYP1.SGM 05MYP1 21182 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS A harassment (PTS only, as opposed to slight lung injury or gastrointestinal tract injury) and Level B harassment (behavioral disturbance and TTS), the level of harassment is not anticipated to impact rates of recruitment or survival of marine mammals, because the number of exposed animals is expected to be low due to the short-term and sitespecific nature of the activity. Moreover, the proposed mitigation and monitoring measures (described earlier in this preamble for the proposed rule) are expected to further minimize the potential for harassment. The protected species surveys would require 86 FWS to search the area for marine mammals, and if any are found in the impact zone, then the exercise would be suspended until the animals have left the area or relocated outside of the zone. Furthermore, LRS WSEP missions may be delayed or rescheduled for adverse weather conditions. In past missions (October 2016), the 86 FWS completed pre- and post-aerial surveys. The 86 FWS did not observe any marine mammals in the ZOI before missions occurred, and did not observe any marine mammals after missions were completed. The 86 FWS was authorized for Level A and Level B harassment takes of five species, but monitoring showed that they had zero takes of any species from mission activities. Based on NMFS’ preliminary analysis of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that 86 FWS’s LRS WSEP operations will result in the incidental take of marine mammals, by Level A and Level B harassment, and that the taking from the LRS WSEP activities will have a negligible impact on the affected species or stocks. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act There is one marine mammal species under NMFS’ jurisdiction that is listed as endangered under the Endangered Species Act (ESA) with confirmed or possible occurrence in the action area: The sei whale. In March 2017, NMFS VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 initiated formal consultation under Section 7 of the ESA. The Biological Opinion will analyze the effects to the one ESA listed species by the 86 FWS’ LRS WSEP activities. National Environmental Policy Act In 2016, 86 FWS provided NMFS with an Environmental Assessment (EA) titled, Environmental Assessment/ Overseas Environmental Assessment for the Long Range Strike Weapon Systems Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii. The EA analyzed the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals. NMFS will review and evaluate the 86 FWS EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216–6, Environmental Review Procedures for Implementing the National Environmental Policy Act, and determine whether or not to adopt the EA. Information in 86 FWS’s application, the EA, and this notice collectively provide the environmental information related to proposed issuance of the regulations for public review and comment. We will review all comments submitted in response to this notice as we complete the NEPA process, including the decision of whether to sign a Finding of No Significant Impact (FONSI) prior to a final decision on the LOA request. The 2016 NEPA documents are available for review at www.nmfs.noaa.gov/pr/ permits/incidental/military.html. Classification The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The RFA requires a Federal agency to prepare an analysis of a rule’s impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. A description of this proposed rule and its purpose are found earlier in the preamble for this action and is not repeated here. 86 FWS is the sole entity PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 that will be affected by this rulemaking and is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by LOAs issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to 86 FWS. NMFS does not expect the issuance of these regulations or the associated LOAs to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect 86 FWS and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities. Accordingly, no regulatory flexibility analysis is necessary, and none has been prepared. This action does not contain any collection of information requirements for purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). List of Subjects in 50 CFR Part 218 Regulations governing the taking and importing of marine mammals. Dated: May 2, 2017. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 218 is proposed to be amended as follows: PART 218—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES 1. The authority citation for part 218 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 2. Add subpart F to part 218 to read as follows: ■ Subpart F—Taking of Marine Mammals Incidental to the U.S. Air Force 86 Fighter Weapons Squadron Conducting Long Range Strike Weapons System Evaluation Program at the Pacific Missile Range Facility at Kauai, Hawaii. Sec. 218.50 Specified activity and specified geographical region. 218.51 Effective dates. 218.52 Permissible methods of taking. 218.53 Prohibitions. 218.54 Mitigation. 218.55 Requirements for monitoring and reporting. 218.56 Letters of Authorization. E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules 218.57 Renewals and Modifications of Letters of Authorization. 218.58 [Reserved] 218.59 [Reserved] impact on the species or stock of such marine mammal for taking for subsistence uses. § 218.54 § 218.50 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the 86 Fighter Weapons Squadron (86 FWS) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals as outlined in paragraph (b) of this section and incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) missions. (b) The taking of marine mammals by 86 FWS pursuant to a Letter of Authorization (LOA) is authorized only if it occurs at the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii. § 218.51 Effective dates. Regulations in this subpart are effective August 23, 2017, through August 22, 2022. § 218.52 Permissible methods of taking. Under a Letter of Authorization (LOA) issued pursuant to § 216.106 and § 218.56 of this chapter, the Holder of the LOA (herein after 86 FWS) may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment associated with LRS WSEP activities within the area described in § 218.50 of this subpart, provided the activities are in compliance with all terms, conditions, and requirements of these regulations in this subpart and the appropriate LOA. jstallworth on DSK7TPTVN1PROD with PROPOSALS § 218.53 Prohibitions. Notwithstanding takings contemplated in § 218.50 and authorized by an LOA issued under § 216.106 and § 218.56 of this chapter, no person in connection with the activities described in § 218.50 of this chapter may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 216.106 and § 218.56 of this chapter. (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal specified in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 Mitigation requirements. When conducting activities identified in § 218.50 of this chapter, the mitigation measures contained in the LOA issued under § 216.106 and § 218.56 of this chapter must be implemented. These mitigation measures shall include but are not limited to the following general conditions: (a) If daytime weather and/or sea conditions preclude adequate monitoring for detecting marine mammals and other marine life, LRS WSEP strike operations must be delayed until adequate sea conditions exist for monitoring to be undertaken. (b) Restrictions on time of activities; missions will only occur during daylight hours, on weekdays, and only during the summer or fall months. (c) Visual aerial surveys before and after mission activities each day. (d) Required delay of mission activities if a protected species is observed in the impact zones. Mission activities cannot resume until one of the following conditions is met: (1) The animal is observed exiting the impact area; or (2) The impact area has been clear of any additional sightings for a period of 30 minutes. (e) If post-mission surveys determine that an injury or lethal take of a marine mammal has occurred, the next mission will be suspended until the test procedure and the monitoring methods have been reviewed with NMFS and appropriate changes made. (f) Additional mitigation measures as contained in an LOA. § 218.55 Requirements for monitoring and reporting. (a) Holders of LOAs issued pursuant to § 218.56 for activities described in § 218.50(a) are required to cooperate with NMFS, and any other Federal, state, or local agency with authority to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the LOA, the Holder of the LOA must notify the Pacific Islands Region Stranding Coordinator, NMFS, by email, at least 72 hours prior to LRS WSEP missions. If the authorized activity identified in § 218.50(a) is thought to have resulted in the mortality or injury of any marine mammals or take of marine mammals not identified in § 218.50(b), then the Holder of the LOA must notify the Director, Office of Protected Resources, NMFS, or designee, by telephone (301–427–8401), PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 21183 within 48 hours of the injury or death. The Holder of the LOA must also contact the Pacific Islands Region stranding coordinator, NMFS, by email, at least one business day after completion of missions to declare that missions are complete. (b) The Holder of the LOA will use mission reporting forms to track their use of the PMRF BSURE area for the LRS WSEP missions and to track marine mammal observations. (c) Aerial surveys—Pre-mission aerial surveys and post-mission aerial surveys will be conducted. Pre-mission surveys would begin approximately one hour prior to detonation. Post-detonation monitoring surveys will commence once the mission has ended or, if required, as soon as personnel declare the mission area safe. The proposed monitoring area would be approximately 8 miles (13 kilometers) from the target area radius around the impact point, with surveys typically flown in a star pattern. Aerial surveys would be conducted at an altitude of about 200 feet, but altitude may vary somewhat depending on sea state and atmospheric conditions. If adverse weather conditions preclude the ability for aircraft to safely operate, missions would either be delayed until the weather clears or cancelled for the day. The observers will be provided with the GPS location of the impact area. Once the aircraft reaches the impact area, pre-mission surveys typically last for 30 minutes, depending on the survey pattern. The aircraft may fly the survey pattern multiple times. (d) The Holder of the LOA is required to: (1) Submit a draft report to NMFS OPR on all monitoring conducted under the LOA within 90 days of the completion of marine mammal monitoring, or 60 days prior to the issuance of any subsequent LOA for projects at the PMRF, whichever comes first. A final report shall be prepared and submitted within 30 days following resolution of comments on the draft report from NMFS. This report must contain the informational elements described in the Monitoring Plan, at a minimum (see www.nmfs.noaa.gov/pr/ permits/incidental/construction.htm), and shall also include: (i) Date and time of each LRS WSEP mission; (ii) A complete description of the preexercise and post-exercise activities related to mitigating and monitoring the effects of LRS WSEP missions on marine mammal populations; and (iii) Results of the monitoring program, including numbers by species/ stock of any marine mammals noted injured or killed as a result of the LRS E:\FR\FM\05MYP1.SGM 05MYP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21184 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules WSEP mission and number of marine mammals (by species if possible) that may have been harassed due to presence within the zone of influence. (2) The draft report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under the LOA if NMFS has not provided comments and recommendations within 90 days of receipt of the draft report. (e) Reporting injured or dead marine mammals: (1) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the LOA, such as an injury for species not authorized (Level A harassment), serious injury, or mortality, 86 FWS shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Pacific Islands Regional Stranding Coordinator, NMFS. The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). (2) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with 86 FWS to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The 86 FWS may not resume their activities until notified by NMFS. (3) In the event that 86 FWS discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), 86 FWS shall immediately report the incident to the Office of Protected Resources, NMFS, and the Pacific Islands Regional Stranding Coordinator, NMFS. (4) The report must include the same information identified in paragraph (e)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with 86 FWS to determine VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 whether additional mitigation measures or modifications to the activities are appropriate. (5) In the event that 86 FWS discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the activities authorized in the LOA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), 86 FWS shall report the incident to the Office of Protected Resources, NMFS, and the Pacific Islands Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The 86 FWS shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. (f) Additional Conditions. (1) The Holder of the LOA must inform the Director, Office of Protected Resources, NMFS, (301–427–8400) or designee (301–427–8401) prior to the initiation of any changes to the monitoring plan for a specified mission activity. (2) A copy of the LOA must be in the possession of the safety officer on duty each day that long range strike missions are conducted. (3) The LOA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals. § 218.56 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, 86 FWS must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, 86 FWS must apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, 86 FWS must apply for and obtain a modification of the LOA as described in § 218.57. (e) The LOA will set forth: (1) Permissible methods of incidental taking; (2) The number of marine mammals, by species and age class, authorized to be taken; (3) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species of marine mammals authorized for taking, on its PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 habitat, and on the availability of the species for subsistence uses; and (4) Requirements for monitoring and reporting. (f) Issuance of an LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA will be published in the Federal Register within 30 days of a determination. § 218.57 Renewals and Modifications of Letters of Authorization. (a) An LOA issued under § 216.106 and § 218.56 of this chapter for the activity identified in § 218.50(a) will be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For an LOA modification or renewal request by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis illustrating the change, and solicit public comment before issuing the LOA. (c) An LOA issued under § 216.106 and § 218.56 of this chapter for the activity identified in § 218.50(a) may be modified by NMFS under the following circumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with 86 FWS regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. E:\FR\FM\05MYP1.SGM 05MYP1 Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA are: (A) Results from 86 FWS’s monitoring from previous years; (B) Results from other marine mammal and sound research or studies; and (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not VerDate Sep<11>2014 14:02 May 04, 2017 Jkt 241001 authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified LOAs issued pursuant to PO 00000 Frm 00044 Fmt 4702 Sfmt 9990 21185 § 216.106 and 218.50 of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action. 218.58 [Reserved] 218.59 [Reserved] [FR Doc. 2017–09137 Filed 5–4–17; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\05MYP1.SGM 05MYP1

Agencies

[Federal Register Volume 82, Number 86 (Friday, May 5, 2017)]
[Proposed Rules]
[Pages 21156-21185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09137]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 201135-7135-01]
RIN 0648-BG65


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the U.S. Air Force 86 Fighter 
Weapons Squadron Conducting Long Range Strike Weapons System Evaluation 
Program at the Pacific Missile Range Facility at Kauai, Hawaii

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received an application, pursuant to the Marine 
Mammal Protection Act (MMPA), from the U.S. Air Force 86 Fighter 
Weapons Squadron (86 FWS) for authorization to take marine mammals 
incidental to Long Range Strike Weapons System Evaluation Program (LRS 
WSEP) activities in the Barking Sands Underwater Range Expansion 
(BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, 
Hawaii, for the period of August 23, 2017, through August 22, 2022. 
NMFS is proposing regulations to govern that take, and requests 
comments on the proposed regulations.

DATES: Comments and information must be received no later than June 5, 
2017.

ADDRESSES: You may submit comments on this document by either of the 
following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov, enter 0648-BG65 in the ``Search'' box, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Comments should be addressed to Jolie Harrison, 
Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East West Highway, 
Silver Spring, MD 20910.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the end of the comment period. Attachments to electronic comments will 
be accepted in Microsoft Word or Excel or Adobe PDF

[[Page 21157]]

file formats only. To help NMFS process and review comments more 
efficiently, please use only one method to submit comments. All 
comments received are a part of the public record and will generally be 
posted on www.regulations.gov 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. 
NMFS will accept anonymous comments (enter N/A in the required fields 
if you wish to remain anonymous).

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of 86 FWS's application and any supporting documents, as 
well as a list of the references cited in this document, 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 above (see FOR FURTHER INFORMATION CONTACT). 
The following associated documents are also available at the same 
internet address: list of the references used in this document, the 
seasonal parameters memo, and 86 FWS's Environmental Assessment (EA) 
titled, ``Environmental Assessment/Overseas Environmental Assessment 
for the Long Range Strike Weapon Systems Evaluation Program at the 
Pacific Missile Range Facility at Kauai, Hawaii.'' Documents cited in 
this notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

Purpose and Need for Regulatory Action

    This proposed rule, to be issued under the authority of the MMPA, 
would establish a framework for authorizing the take of marine mammals 
incidental to LRS WSEP activities in the BSURE area of the PMRF off 
Kauai, Hawaii. We received an application from 86 FWS requesting 5-year 
regulations and authorization for the take, by Level B harassment, of 
16 species of marine mammals, and, by Level A harassment of 4 of those 
species. The regulations would be valid from August 23, 2017, to August 
22, 2022. Please see Background below for definitions of Level A and 
Level B harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A) 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 for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity, as well as monitoring and reporting 
requirements. Section 101(a)(5)(A) of the MMPA and the implementing 
regulations at 50 CFR part 216, subpart I provide the legal basis for 
issuing this proposed rule containing five-year regulations, and for 
any subsequent Letters of Authorization (LOA) issued pursuant to those 
regulations. As directed by this legal authority, this proposed rule 
contains mitigation, monitoring, and reporting requirements.
    The National Defense Authorization Act for Fiscal Year 2004 
(Section 319, Pub. L. 108-136, November 24, 2003) (NDAA of 2004) 
removed the ``small numbers'' and ``specified geographical region'' 
limitations indicated earlier 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, 16 U.S.C. 1362(18)(B)): ``(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 Major Provisions Within the Proposed Rule

    Following is a summary of some of the major provisions in this 
proposed rule for 86 FWS's LRS WSEP activities. We have preliminarily 
determined that 86 FWS's adherence to the proposed mitigation, 
monitoring, and reporting measures listed below would achieve the least 
practicable adverse impact on the affected marine mammals. They 
include:
     Restricting time of activities to missions that will occur 
only during day-light hours, only on weekdays, and only during the 
summer or fall months.
     Conducting visual aerial surveys before and after mission 
activities each day.
     Delaying mission activities if a protected species is 
observed in the impact zones, and resuming only after one of the 
following conditions is met: (1) The animal is observed exiting the 
impact area; or (2) the impact area has been clear of any additional 
sightings for a period of 30 minutes.
     If daytime weather and/or sea conditions preclude adequate 
monitoring for detecting marine mammals and other marine life, delaying 
LRS WSEP strike operations until adequate sea conditions exist for 
monitoring to be undertaken.
     Using mission reporting forms to track the use of the PMRF 
for missions and protected species observations.
     Submitting a summary report of marine mammal observations 
and LRS WSEP activities to the NMFS Pacific Islands Regional Office 
(PIRO) and the Office of Protected Resources 90 days after expiration 
of the current authorization.
     Using Passive Acoustic Monitoring (PAM) by using the 
Navy's hydrophones within the PMRF to collect data before, during, and 
after LRS WSEP missions. This data will be stored at Space and Naval 
Warfare Systems Command (SPAWAR) to be analyzed as funding allows.
     If unauthorized takes of marine mammals (i.e., serious 
injury or mortality) occur, ceasing operations and reporting to NMFS 
and to the respective Pacific Islands Region stranding network 
representative immediately and submitting a report to NMFS within 24 
hours.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA(16 U.S.C. 1371(a)(5)(A) 
and (D)) direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals of a species or population stock, 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

[[Page 21158]]

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.

Summary of Request

    On June 23, 2016, NMFS received a request for regulations from 86 
FWS for the taking of small numbers of marine mammals incidental to LRS 
WSEP activities in the BSURE area of the PMRF off Kauai, Hawaii. We 
received revised drafts on November 29, 2016, and December 21, 2016, 
which we considered adequate and complete. On January 6, 2017, we 
published a notice of receipt of 86 FWS's application in the Federal 
Register (82 FR 1702), requesting comments and information for thirty 
days related to 86 FWS's request. We received comments from private 
citizens, one marine mammal research organization, and six non-
governmental organization (NGOs), which we considered in the 
development of this proposed rule.
    The 86 FWS proposes taking marine mammals incidental to LRS WSEP 
activities by Level B harassment of 16 species of marine mammals and by 
Level A harassment of 4 of those species. NMFS has previously issued an 
incidental harassment authorization (IHA) to 86 FWS authorizing the 
taking of marine mammals incidental to LRS WSEP activities in the BSURE 
area of the PMRF in 2016 (81 FR 67971; October 3, 2016). The 
regulations proposed in this action, if issued, would be effective from 
August 23, 2017, through August 22, 2022.

Description of the Specified Activity

Overview

    The 86 FWS proposes to conduct air-to-surface missions in the BSURE 
area of the PMRF. The LRS WSEP test objective is to conduct operational 
evaluations of long range strike weapons and other munitions as part of 
LRS WSEP operations to properly train units to execute requirements 
within Designed Operational Capability Statements, which describe 
units' real-world operational expectations in a time of war. Due to 
threats to national security, an increasing number of missions 
involving air-to-surface activities have been directed by the 
Department of Defense (DoD). Accordingly, the U.S. Air Force seeks the 
ability to conduct operational evaluations of all phases of long range 
strike weapons within the U.S. Navy's Hawaii Range Complex (HRC). LRS 
WSEP objectives are to evaluate air-to-surface and maritime weapon 
employment data, evaluate tactics, techniques, and procedures in an 
operationally realistic environment and to determine the impact of 
tactics, techniques, and procedures on combat Air Force training. The 
munitions associated with the proposed activities are not part of a 
typical unit's training allocations and, prior to attending a WSEP 
evaluation, most pilots and weapon systems officers have only dropped 
weapons in simulators or used the aircraft's simulation mode. Without 
WSEP operations, pilots would be using these weapons for the first time 
in combat. On average, half of the participants in each unit drop an 
actual weapon for the first time during a WSEP evaluation. 
Consequently, WSEP is a military readiness activity and is the last 
opportunity for squadrons to receive operational training and 
evaluations before they deploy.
    LRSWSEP missions involve the use of multiple types of live and 
inert munitions (bombs and missiles) scored above, at, or just below 
the water's surface in the BSURE (Table 1). The ordnance may be 
delivered by multiple types of aircraft, including bombers and fighter 
aircraft. Weapon performance will be evaluated by an underwater 
acoustic hydrophone array system as the weapons strike the water 
surface. Net explosive weight of the live munitions ranges from 23 to 
300 pounds (lbs). Missions will occur annually over five years from 
2017 and 2021 (see Table 1), primarily during the summer but may occur 
in the fall as well. All missions will be conducted during daylight 
hours. LRS WSEP missions could potentially take 16 species of marine 
mammals by Level B harassment, and additionally, 4 of those species by 
Level A harassment.

Dates and Duration

    The specified activity may occur during the summer months, or less 
likely in fall months, during the five-year period of validity of the 
proposed regulations. Missions will occur only on weekdays during 
daytime hours. Missions will occur, on average, approximately five days 
per year on consecutive days. The LOA would be valid from August 20, 
2017, through August 19, 2022.

Specified Geographical Region

    The specific planned impact area is approximately 44 nautical miles 
(nmi) (81 kilometers (km)) offshore of Kauai, Hawaii, in a water depth 
of about 15,240 feet (ft) (4,645 meters (m)). (see Figure 2-2 of 86 
FWS's application). All activities will take place within the PMRF, 
which is located in Hawaii off the western shores of the island of 
Kauai and includes broad ocean areas to the north, south, and west (see 
Figure 2-1 of 86 FWS's application).
    Within the PMRF, activities would occur in the BSURE area, which 
lies in Warning Area 188A (W-188A). The BSURE consists of about 900 nmi 
\2\ of instrumented underwater ranges, encompassing the deep-water 
portion of the PMRF and providing over 80 percent of the PMRF's 
underwater scoring capability. The BSURE facilitates training, tactics, 
development, and test and evaluation for air, surface, and subsurface 
weapons systems in deep water. It provides a full spectrum of range 
support, including radar, underwater instrumentation, telemetry, 
electronic warfare, remote target command and control, communications, 
data display and processing, and target/weapon launching and recovery 
facilities. The underwater tracking system begins 9 nmi (17 km) from 
the north shore of Kauai and extends out to 40 nmi (74 km) from shore. 
The LRS WSEP missions would employ live weapons with long flight paths 
requiring large amounts of airspace, and would conclude with weapon 
impact and surface detonations within the BSURE instrumented range.

Detailed Description of Activities

    The LRS WSEP training missions, classified as military readiness 
activities, refer to the deployment of live (containing explosive 
charges) missiles and bombs from aircraft toward the water surface. 
Depending on the requirements of a given mission, munitions may be 
inert (containing no explosives or only a ``spotting'' charge) or live 
(containing explosive charges). Live munitions may detonate above, at, 
or slightly below the water surface. The actions include air-to-surface 
test missions of the Joint Air-to-Surface Stand-off Missile/Joint Air-
to-Surface Stand-off Missile-Extended Range (JASSM/JASSM-ER), Small 
Diameter Bomb-I/II (SDB-I/II), High-speed Anti-Radiation Missile 
(HARM), Joint Direct Attack Munition/Laser Joint Direct Attack Munition 
(JDAM/LJDAM), and Miniature Air-Launched Decoy (MALD), including 
detonations above the water, at the water surface, and slightly below 
the water surface (Table 1).
    Aircraft used for munition releases would include bombers and 
fighter aircraft. Additional airborne assets, such as the P-3 Orion or 
the P-8 Poseidon, would be used to relay telemetry and

[[Page 21159]]

flight termination system streams between the weapon and ground 
stations. Other support aircraft would be associated with range 
clearance activities before and during the mission and with air-to-air 
refueling operations. All weapon delivery aircraft would originate from 
an out base and fly into military-controlled airspace prior to 
employment. Due to long transit times between the out base and mission 
location, air-to-air refueling may be conducted in either W-188 or W-
189. Bombers, such as the B-1, would deliver the weapons, conduct air-
to-air refueling, and return to their originating base as part of one 
sortie. However, when fighter aircraft are used, the distance and 
corresponding transit time to the various potential originating bases 
would make return flights after each mission day impractical. In these 
cases, the aircraft would temporarily (less than one week) park 
overnight at Hickam Air Force Base (HAFB) and would return to their 
home base at the conclusion of each mission set. Multiple weapon 
release aircraft would be used during some missions, each potentially 
releasing multiple munitions. Each LRS WSEP mission set will occur over 
a maximum of five consecutive days per year. Approximately 10 Air Force 
personnel would be on temporary duty to support each mission set.
    Aircraft flight maneuver operations and weapon release would be 
conducted in W-188A. Chase aircraft may be used to evaluate weapon 
release and to track weapons. Flight operations and weapons delivery 
would be in accordance with published Air Force directives and weapon 
operational release parameters, as well as all applicable Navy safety 
regulations and criteria established specifically for the PMRF. 
Aircraft supporting LSR WSEP missions would primarily operate at high 
altitudes--only flying below 3,000 ft for a limited time as needed for 
escorting non-military vessels outside the hazard area or for 
monitoring the area for protected marine species (e.g., marine mammals 
and sea turtles). Protected marine species aerial surveys would be 
temporary (approximately 30 minutes) and would focus on an area 
surrounding the weapon impact point on the water. Post-mission surveys 
would focus on the area down current of the weapon impact location. 
Range clearance procedures for each mission would cover a much larger 
area for human safety. Weapon release parameters would be conducted as 
approved by the PMRF Range Safety. Daily mission briefs would specify 
planned release conditions for each mission. Aircraft and weapons would 
be tracked for time, space, and position information. The 86 FWS test 
director would coordinate with the PMRF Range Safety Officer, 
Operations Conductor, Range Facility Control Officer, and other 
applicable mission control personnel for aircraft control, range 
clearance, and mission safety.
Joint Air-to-Surface Stand-Off Missile/Joint Air-to-Surface Stand-Off 
Missile--Extended Range (JASSM/JASSM-ER)
    The JASSM is a stealthy precision cruise missile designed for 
launch outside area defenses against hardened, medium-hardened, soft, 
and area type targets. The JASSM has a range of more than 200 nmi (370 
km) and carries a 1,000-lb warhead with approximately 300 lbs of 2,4,6-
trinitrotoluene (TNT) equivalent net explosive weight (NEW). The 
specific explosive used is AFX-757, a type of plastic bonded explosive 
(PBX). The weapon has the capability to fly a preprogrammed route from 
launch to a target, using Global Positioning System (GPS) technology 
and an internal navigation system (INS) combined with a Terminal Area 
Model when available. Additionally, the weapon has a Common Low 
Observable Auto-Routing function that gives the weapon the ability to 
find the route that best utilizes the low observable qualities of the 
JASSM. In either case, these routes can be modeled prior to weapon 
release. The JASSM-ER has additional fuel and a different engine for a 
greater range than the JASSM (500 nmi (926 km)) but maintains the same 
functionality of the JASSM.
Small Diameter Bomb-I/Small Diameter Bomb-II (SDB-I/SDB-II)
    The SDB-I is a 250-lb air-launched GPS-INS guided weapon for fixed 
soft to hardened targets. SDB-II expands the SDB-I capability with 
network enabling and uses a tri-mode sensor infrared, millimeter, and 
semi-active laser to attack both fixed and movable targets. Both 
munitions have a range of up to 60 nmi (111 km). The SDB-I contains 37 
lbs of TNT-equivalent NEW, and the SDB-II contains 23 lbs NEW. The 
explosive used in both SDB-I and SDB-II is AFX-757.
High-Speed Anti-Radiation Missile (HARM)
    The HARM is a supersonic air-to-surface missile designed to seek 
and destroy enemy radar-equipped air defense systems. The HARM has a 
proportional guidance system that homes in on enemy radar emissions 
through fixed antenna and seeker head in the missile nose. It has a 
range of up to 80 nmi (148 km) and contains 45 lbs of TNT-equivalent 
NEW. The explosive used is PBXN-107.
Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/
LJDAM)
    The JDAM is a smart GPS-INS weapon that uses an unguided gravity 
bomb and adds a guidance and control kit, converting it to a precision-
guided munition. The LJDAM variant adds a laser sensor to the JDAM, 
permitting guidance to a laser designated target. Both JDAM and LJDAM 
contain 192 lbs of TNT-equivalent NEW with multiple fusing options, 
with detonations occurring upon impact or with up to a 10-millisecond 
delay.
Miniature Air Launched Decoy/Miniature Air Launched Decoy--Jamming 
(MALD/MALD-J)
    The MALD is an air-launched, expendable decoy that will provide the 
Air Force the capability to simulate, deceive, decoy, and saturate an 
enemy's threat integrated air defense system (IADS). The MALD 
production has recently transitioned to include the MALD-J variant, 
which has the same decoy capability of the MALD plus the addition of 
jamming IADS. The MALD and MALD-J have ranges up to 500 nmi (926 km) to 
include a 200 nmi (370 km) dash with a 30-minute loiter mode. It has no 
warhead, and no detonation would occur upon impact with the water 
surface.
    Releases of live ordnance associated with 2017-2021 missions would 
result in either airbursts, surface detonations, or subsurface 
detonations (10-ft (3 m) water depth). Up to four SDB I/II munitions 
could be released simultaneously, such that each ordnance would hit the 
water surface within a few seconds of each other. Aside from the SDB-I/
II releases, all other weapons would be released separately, impacting 
the water surface at different times. There will be a total of five 
mission days per year during the time frame of 2017 to 2021.
    A typical mission day would consist of pre-mission checks, safety 
review, crew briefings, weather checks, clearing airspace, range 
clearance, mitigations/monitoring efforts, and other military protocols 
prior to launch of weapons. Potential delays could be the result of 
multiple factors, including adverse weather conditions leading to 
unsafe take-off, landing, and aircraft operations, inability to clear 
the range of non-mission vessels or aircraft, mechanical issues with 
mission aircraft or munitions, or presence of protected species in the 
impact area. These standard operating procedures are

[[Page 21160]]

usually done in the morning, and live range time may begin in late 
morning once all checks are complete and approval is granted from range 
control. The range would be closed to the public for a maximum of four 
hours per mission day.
    Each long range strike weapon would be released in W-188A and would 
follow a given flight path with programmed GPS waypoints to mark its 
course in the air. Long range strike weapons would complete their 
maximum flight range (up to 500 nmi distance for JASSM-ER) at an 
altitude of approximately 18,000 ft (equivalent in kms) mean sea level 
(MSL) and terminate at a specified location for scoring of the impact. 
The cruise time would vary among the munitions but would be about 45 
minutes for JASSM/JASSM-ER and 10 minutes for SDB-I/II. The time frame 
between employments of successive munitions would vary, but releases 
could be spaced by approximately one hour to account for the JASSM 
cruise time. The routes and associated safety profiles would be 
contained within W-188A boundaries. The objective of the route designs 
is to complete full-scale evasive maneuvers that avoid simulated 
threats, and would not consist of a standard ``paper clip'' or 
regularly shaped route. The final impact point on the water surface 
would be programmed into the munitions for weapons scoring and 
evaluations. The JDAM/LJDAM munitions would also be set to impact at 
the same point on the water surface.
    All missions would be conducted in accordance with applicable 
flight safety, hazard area, and launch parameter requirements 
established for the PMRF. A weapon hazard region would be established, 
with the size and shape determined by the maximum distance a weapon 
could travel in any direction during its descent. The hazard area is 
typically adjusted for potential wind speed and direction, resulting in 
a maximum composite safety footprint for each mission (each footprint 
boundary is at least 10 nmi from the Kauai coastline). This information 
is used to establish a Launch Exclusion Area and Aircraft Hazard Area. 
These exclusion areas must be verified to be clear of all non-mission 
and non-essential vessels and aircraft before live weapons are 
released. In addition, a buffer area must also be clear on the water 
surface so that vessels do not enter the exclusion area during the 
launch window. Prior to weapon release, a range sweep of the hazard 
area would be conducted by participating mission aircraft or other 
appropriate aircraft, potentially including S-61N helicopter, C-26 
aircraft, fighter aircraft (F-15E, F-16, F-22), or the Coast Guard's C-
130 aircraft.
    The PMRF has used small water craft docked at the Port Allen public 
pier to keep nearshore areas clear of tour boats for some mission 
launch areas. However, for missions with large hazard areas that occur 
far offshore from Kauai, it would be impractical for these smaller 
vessels to conduct range clearance activities. The composite safety 
footprint weapons associated with LRS WSEP missions is anticipated to 
be rather large; therefore, it is likely that range clearing activities 
would be conducted solely by aircraft.
    The Range Facility Control Officer is responsible for establishing 
hazard clearance areas, directing clearance and surveillance assets, 
and reporting range status to the Operations Conductor. The Control 
Officer is also responsible for submitting all Notice to Airmen 
(NOTAMs) and Notice to Mariners (NOTMARs), and for requesting all 
Federal Aviation Administration airspace clearances.
    The 86 FWS would also like to use a maximum of eight target boats 
and a maximum of 5,000 20-mm gunnery rounds each year. The gunnery 
rounds would be inert (do not contain explosives), which would minimize 
the potential for fragmentation and creation of marine debris, and 
would be fired against a target boat. Because the use of target boats 
with inert munitions does not have an acoustic component, it would not 
take any marine mammals, and is therefore not discussed further.

                                           Table 1--Summary of Proposed Testing at the PMRF From 2017 to 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     Number of Proposed Releases
         Type of munition              Live or inert       NEW      Type of aircraft    Detonation scenario --------------------------------------------
                                                           (lb)                                                2017     2018     2019     2020     2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
JASSM/JASSM-ER...................  Live................      300  Bomber, Fighter.....  Surface............        6        6        6        6        6
SDB-I............................  Live................       37  Bomber, Fighter.....  Surface............       30       30       30       30       30
SDB-II...........................  Live................       23  Bomber, Fighter.....  Surface............       30       30       30       30       30
HARM.............................  Live................       45  Fighter.............  Surface............       10       10       10       10       10
JDAM/LJDAM.......................  Live................      192  Bomber, Fighter.....  Subsurface \1\.....       30       30       30       30       30
MALD/MALD-J......................  Inert...............      N/A  Fighter.............  N/A................        4        4        4        4        4
--------------------------------------------------------------------------------------------------------------------------------------------------------
HARM = High Anti-Radiation Missile; JASSM = Joint Air-to-Surface Standoff Missile; JASSM-ER = Joint Air-to-Surface Standoff Missile--Extended Range;
  JDAM = Joint Direct Attack Munition; lb = pounds; LJDAM = Laser Joint Direct Attack Munition; MALD = Miniature Air Launched Decoy; MALD-J = Miniature
  Air Launched Decoy--Jamming; N/A = not applicable (inert); SDB = Small Diameter Bomb
\1\ Assumes a 10-millisecond time-delayed fuse resulting in detonation occurring at an approximate 10-foot water depth.

Description of Marine Mammals in the Area of the Specified Activity

    There are 25 marine mammal species with potential or confirmed 
occurrence in the proposed activity area; however, not all of these 
species occur in this region during the project timeframe. Table 2 
lists and summarizes key information regarding stock status and 
abundance of these species. Please see NMFS' draft 2016 Stock 
Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars for 
more detailed accounts of these stocks' status and abundance.

[[Page 21161]]



                                               Table 2--Marine Mammals That Could Occur in the BSURE Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Stock  abundance
                                                                ESA/MMPA  status;       (CV, Nmin,  most                            Occurrence in BSURE
              Species                         Stock           strategic  (Y/N) \1\     recent  abundance           PBR \3\                  area
                                                                                          survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Family: Balaenopteridae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale (Megaptera            Central North Pacific.  N; Y..................  10,103 (0.300; 7,890;  83...................  Seasonal; throughout
 novaeangliae) \4\.                                                                   2006).                                        known breeding
                                                                                                                                    grounds during
                                                                                                                                    winter and spring
                                                                                                                                    (most common
                                                                                                                                    November through
                                                                                                                                    April).
Blue Whale (Balaenoptera musculus).  Central North Pacific.  Y; Y..................  81 (1.14; 38; 2010)..  0.1..................  Seasonal; infrequent
                                                                                                                                    winter migrant; few
                                                                                                                                    sightings, mainly
                                                                                                                                    fall and winter;
                                                                                                                                    considered rare.
Fin whale (Balaenoptera physalus...  Hawaii................  Y; Y..................  58 (1.12; 27; 2010)..  0.1..................  Seasonal, mainly fall
                                                                                                                                    and winter;
                                                                                                                                    considered rare.
Sei whale (Balaenoptera borealis)..  Hawaii................  Y; Y..................  178 (0.90; 93; 2010).  0.2..................  Rare; limited
                                                                                                                                    sightings of
                                                                                                                                    seasonal migrants
                                                                                                                                    that feed at higher
                                                                                                                                    latitudes.
Bryde's whale (Balaenoptera brydei/  Hawaii................  -; N..................  798 (0.28; 633; 2010)  6.3..................  Uncommon; distributed
 edeni).                                                                                                                            throughout the
                                                                                                                                    Hawaiian Exclusive
                                                                                                                                    Economic Zone.
Minke whale (Balaenoptera            Hawaii................  -; N..................  n/a (n/a; n/a; 2010).  Undet................  Regular but seasonal
 acutorostrata).                                                                                                                    (October-April).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Family: Physeteridae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter                Hawaii................  Y; Y..................  3,354 (0.34; 2,539;    10.2.................  Widely distributed
 macrocephalus).                                                                      2010).                                        year round; more
                                                                                                                                    likely in waters >
                                                                                                                                    1,000 m depth, most
                                                                                                                                    often > 2,000 m.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Family: Kogiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pygmy sperm whale (Kogia breviceps)  Hawaii................  -; N..................  n/a (n/a; n/a; 2010).  Undet................  Widely distributed
                                                                                                                                    year round; more
                                                                                                                                    likely in waters >
                                                                                                                                    1,000 m depth.
Dwarf sperm whale (Kogia sima).....  Hawaii................  -; N..................  n/a (n/a; n/a; 2010).  Undet................  Widely distributed
                                                                                                                                    year round; more
                                                                                                                                    likely in waters >
                                                                                                                                    500 m depth.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Family: Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale (Orcinus orca)........  Hawaii................  -; N..................  101 (1.00; 50; 2010).  1....................  Uncommon; infrequent
                                                                                                                                    sightings.
False killer whale (Pseudorca        Hawaii Pelagic........  -; N..................  1,540 (0.66; 928;      9.3..................  Regular.
 crassidens).                                                                         2010).
                                     NWHI Stock............  -; N..................  617 (1.11; 290; 2010)  2.3..................  Regular.
Pygmy killer whale (Feresa           Hawaii................  -; N..................  3,433 (0.52; 2,274;    23...................  Year-round resident.
 attenuata).                                                                          2010).
Short-finned pilot whale             Hawaii................  -; N..................  12,422 (0.43; 8,872;   70...................  Commonly observed
 (Globicephala macrorhynchus).                                                        2010).                                        around Main Hawaiian
                                                                                                                                    Islands and
                                                                                                                                    Northwestern
                                                                                                                                    Hawaiian Islands.
Melon headed whale (Peponocephala    Hawaii Islands stock..  -; N..................  5,794 (0.20; 4,904;    4....................  Regular.
 electra).                                                                            2010).

[[Page 21162]]

 
Bottlenose dolphin (Tursiops         Hawaii pelagic........  -; N..................  5,950 (0.59; 3,755;    38...................  Common in deep
 truncatus).                                                                          2010).                                        offshore waters.
Pantropical spotted dolphin          Hawaii pelagic........  -; N..................  15,917 (0.40; 11,508;  115..................  Common; primary
 (Stenella attenuata).                                                                2010).                                        occurrence between
                                                                                                                                    100 and 4,000 m
                                                                                                                                    depth.
Striped dolphin (Stenella            Hawaii................  -; N..................  20,650 (0.36; 15,391;  154..................  Occurs regularly year
 coeruleoala).                                                                        2010).                                        round but infrequent
                                                                                                                                    sighting during
                                                                                                                                    survey.
Spinner dolphin (Stenella            Hawaii pelagic........  -; N..................  n/a (n/a; n/a; 2010).  Undet................  Common year-round in
 longirostris).                                                                                                                     offshore waters.
Rough-toothed dolphins (Steno        Hawaii stock..........  -; N..................  6,288 (0.39; 4,581;    46...................  Common throughout the
 bredanensis).                                                                        2010).                                        Main Hawaiian
                                                                                                                                    Islands and Hawaiian
                                                                                                                                    Islands EEZ.
Fraser's dolphin (Lagenodelphis      Hawaii................  -; N..................  16,992 (0.66; 10,241;  102..................  Tropical species only
 hosei).                                                                              2010).                                        recently documented
                                                                                                                                    within Hawaiian
                                                                                                                                    Islands EEZ (2002
                                                                                                                                    survey).
Risso's dolphin (Grampus griseus)..  Hawaii................  -; N..................  7,256 (0.41; 5,207;    42...................  Previously considered
                                                                                      2010).                                        rare but multiple
                                                                                                                                    sightings in
                                                                                                                                    Hawaiian Islands EEZ
                                                                                                                                    during various
                                                                                                                                    surveys conducted
                                                                                                                                    from 2002-2012.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Family: Ziphiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale (Ziphius       Hawaii................  -; N..................  1,941 (n/a; 1,142;     11.4.................  Year-round occurrence
 cavirostris).                                                                        2010).                                        but difficult to
                                                                                                                                    detect due to diving
                                                                                                                                    behavior.
Blainville's beaked whale            Hawaii................  -; N..................  2,338 (1.13; 1,088;    11...................  Year-round occurrence
 (Mesoplodon densirostris).                                                           2010).                                        but difficult to
                                                                                                                                    detect due to diving
                                                                                                                                    behavior.
Longman's beaked whale (Indopacetus  Hawaii................  -; N..................  4,571 (0.65; 2,773;    28...................  Considered rare;
 pacificus).                                                                          2010).                                        however, multiple
                                                                                                                                    sightings during
                                                                                                                                    2010 survey.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Order--Carnivora--Superfamily Pinnipedia (seals, sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Family: Phocidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaiian monk seal (Neomonachus      Hawaii................  Y; Y..................  1,112 (n/a; 1,088;     Undet................  Predominantly occur
 schauinslandi).                                                                      2013).                                        at Northwestern
                                                                                                                                    Hawaiian Islands;
                                                                                                                                    approximately 138
                                                                                                                                    individuals in Main
                                                                                                                                    Hawaiian Islands.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance
  estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is
  presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2015 Pacific
  SARs, except humpback whales--see comment 4.
\3\ Potential biological removal (PBR), defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed
  from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ Values for humpback whales are from the 2015 Alaska SAR.

    Of these 25 species, 5 are listed as endangered under the 
Endangered Species Act (ESA) and as depleted throughout their range 
under the MMPA. These are: Blue whale, fin whale, sei whale, sperm 
whale, and the Hawaiian monk seal. Only one of these species, the sei 
whale, may be impacted by 86 FWS's activities.
    Of the 25 species that may occur in Hawaiian waters, only certain 
stocks occur in the impact area during the season in which LRS WSEP 
activities may occur. Sixteen species are

[[Page 21163]]

considered likely to be in the impact area during the five days of 
project activities. Although sperm whales are frequently detected in 
this area and have even been satellite-tagged with presence in this 
area of the PMRF (Baird 2016), because of the low density of this 
species and the short duration of mission activities, take was not 
requested for this species. Similarly, large baleen whales like the fin 
and blue whales occur in this area in all or most months of the year; 
however, their densities during the time of the 86 FWS's activities are 
very low (or 0) that the probability they will be impacted by the 
mission activities during the 4 hours per day on the 5 days over the 
course of the year is minimal, and no take was modeled or requested for 
these species.
    We have reviewed 86 FWS's species descriptions, including life 
history information, distribution, regional distribution, diving 
behavior, and acoustics and hearing, for accuracy and completeness. We 
refer the reader to Sections 3 and 4 of 86 FWS's application and to 
Chapter 3 in 86 FWS's EA, rather than reprinting the information here.
    Below, for those 16 species that are likely to be taken by the 
activities described, we offer a brief introduction to the species and 
relevant stock as well as available information regarding population 
trends and threats, and describe any information regarding local 
occurrence.

Humpback Whale

    Humpback whales are found worldwide in all ocean basins. In winter, 
most humpback whales occur in the subtropical and tropical waters of 
the Northern and Southern Hemispheres (Muto et al., 2015). These 
wintering grounds are used for mating, giving birth, and nursing new 
calves. Humpback whales migrate nearly 3,000 mi (4,830 km) from their 
winter breeding grounds to their summer foraging grounds in Alaska.
    There are five stocks of humpback whales, one of which occurs in 
Hawaii: The Central North Pacific Stock, which consists of winter/
spring populations in the Hawaiian Islands, which migrate primarily to 
northern British Columbia/Southeast Alaska, the Gulf of Alaska, and the 
Bering Sea/Aleutian Islands (Muto et al., 2015). The current abundance 
estimate for the Central North Pacific stock is 10,103 animals, with 
potential biological removal (PBR) at 83 animals, and this stock is 
considered a strategic stock (Muto et al., 2015). Humpback whales occur 
seasonally in Hawaii, with peak sightings between December and May each 
year; however, sightings have occurred in other months in very low 
numbers. Most humpback whales congregate off the island of Maui in the 
shallow protected waters, but can be seen off all of the islands, 
including the Northwestern Hawaiian Islands (Baird 2016).
    Humpback whales were listed as endangered under the Endangered 
Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced 
the ESCA, and humpbacks continued to be listed as endangered. NMFS 
recently evaluated the status of the species, and on September 8, 2016, 
NMFS divided the species into 14 distinct population segments (DPS), 
removed the current species-level listing, and in its place listed four 
DPSs as endangered and one DPS as threatened (81 FR 62259, September 8, 
2016). The remaining nine DPSs were not listed. There is one DPS that 
occurs in the action area: The Hawaii DPS, which is not listed under 
the ESA (81 FR 62259). Because this rule resulted in the designation of 
DPSs in the North Pacific, a parallel revision of MMPA population 
structure in the North Pacific is currently being considered.

Sei Whale

    Sei whales occur seasonally in Hawaii in the winter and spring 
months and feed in higher latitude feeding grounds in the summer and 
fall (Carretta et al., 2014). Sightings of this species are rare in 
Hawaii. This species stays offshore of the islands in deeper waters 
(Baird 2016). Average group size for this species is 3.1 animals 
(Bradford et al., 2017).
    The abundance estimate for this stock from a 2010 survey is 178 
animals (Carretta et al., 2014). More recent estimates, based on the 
2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, estimate the Hawaii stock of sei whales 
to be 391 individuals (Bradford et al., 2017). PBR is currently 0.2 sei 
whales per year (Carretta et al., 2014). The main threats to this stock 
are fisheries interactions and increasing levels of anthropogenic sound 
in the ocean (Carretta et al., 2014). This stock is listed as 
endangered under the ESA, and is considered a depleted and strategic 
stock under the MMPA.

Minke Whale

    Minke whales occur seasonally in Hawaii (Carretta et al., 2014). 
Sightings of this species are rare; however, acoustic detection of 
their ``boing'' sounds are common. An acoustic study from 2007-2008 at 
a location 100 km north of the island of Oahu detected boings 
throughout the winter and spring months from October until May, with a 
peak in March (Baird 2016).
    The current abundance estimate for this stock is unknown and, 
therefore, PBR is also unknown (Carretta et al., 2014). There is 
insufficient data to determine trends in the population. The main 
threat to this stock is the increasing level of anthropogenic sound in 
the ocean (Carretta et al., 2014). This stock is not listed as 
endangered or threatened under the ESA and is not considered strategic 
or designated as depleted under the MMPA (Carretta et al., 2014).

Pygmy Sperm Whale

    Pygmy sperm whales are found in tropical and warm-temperate waters 
throughout the world (Ross and Leatherwood 1994). This species prefers 
deeper waters with observations of this species in greater than 4,000 m 
depth (Baird et al., 2013); and, based on stomach contents from 
stranded individuals, pygmy sperm whales forage between 600 and 1,200 m 
depth (Baird 2016). Sightings are rare of this species, but 
observations include lone individuals or pairs, with an average group 
size of 1.5 individuals (Baird 2016).
    There is a single stock of Pygmy sperm whales in Hawaii. Current 
abundance estimates for this stock are unknown. A 2002 survey in Hawaii 
estimated 7,138 animals; however, this data is outdated and is no 
longer used. PBR cannot be calculated due to insufficient data. 
(Carretta et al., 2014). The main threats to this species are fisheries 
interactions and effects from underwater sounds such as active sonar 
(Carretta et al., 2014). This stock is not listed as endangered or 
threatened under the ESA and is not considered strategic or designated 
as depleted under the MMPA (Carretta et al., 2014).

Dwarf Sperm Whale

    Dwarf sperm whales are found throughout the world in tropical to 
warm-temperate waters (Carretta et al., 2014). They are usually found 
in waters deeper than 500 m, most often sighted in depths between 500 
and 1,000 m, but they have been documented in depths as shallow as 106 
m and as deep as 4,700 m (Baird 2016). This species is often alone or 
in small groups of up to two to four individuals (average group size of 
2.7 individuals), with a maximum observed group size of eight 
individuals (Baird 2016). When there are more than two animals 
together, they are often loosely associated, with up to several hundred 
meters between pairs of individuals (Baird 2016).

[[Page 21164]]

    There is one stock of dwarf sperm whales in Hawaii. Sighting data 
suggests a small resident population off Hawaii Island (Baird 2016). 
There are no current abundance estimates for this stock. In 2002, a 
survey off Hawaii estimated the abundance at 17,159; however, this data 
is outdated and is no longer used. PBR cannot be calculated due to 
insufficient data. It has been suggested that this species is probably 
one of the more abundant species of cetaceans in Hawaiian waters (Baird 
2016). One of their main threats is interactions with fisheries; 
however, dwarf sperm whales are also sensitive to high-intensity 
underwater sounds and navy sonar testing. This stock is not listed as 
endangered under the ESA and is not considered strategic or designated 
as depleted under the MMPA (Carretta et al., 2014).

Pygmy Killer Whale

    Pygmy killer whales are found in tropical and subtropical waters. 
The Hawaii stock occurs year round in Hawaii and has a small resident 
population within the main Hawaiian islands (Carretta et al., 2014). 
This resident group stays within 20 km of shore (Carretta et al., 2014) 
in water depths between 500 and 3,500 m (Baird 2016), while other 
populations may move farther offshore. The resident population is less 
common off the islands of Kauai and Niihau (Baird 2016). This stock 
forms stable social groups, with group sizes ranging from 2 to 33 
individuals, and with average group sizes of 9 individuals (Baird 
2016). Other research suggests a larger average group size of 25.7 
animals (Bradford et al., 2017), but most of these sightings were 
farther offshore in pelagic waters.
    The most recent abundance estimate for this group in the SAR is 
3,433 animals with PBR at 23 animals (Carretta et al., 2014). More 
recently, the abundance estimate for this stock, based on a 2010 survey 
pooled with sightings collected during previous NMFS surveys of the 
eastern Pacific, is 10,640 animals (Bradford et al., 2017). The main 
threats for this stock include fisheries interactions and increases in 
underwater sound in the ocean (Carretta et al., 2014). This stock is 
not listed as endangered or threatened under the ESA and is not 
considered a depleted or strategic stock under the MMPA (Carretta et 
al., 2014).

Short-Finned Pilot Whale

    Short-finned pilot whales are found primarily in tropical and warm-
temperate waters (Carretta et al., 2014). This species prefers deeper 
waters, ranging from 324 m to 4,400 m, with most sightings between 500 
m and 3,000 m (Baird 2016). There are multiple resident populations in 
Hawaii, with small home ranges around one or two islands, as well as a 
pelagic population (Baird 2016). This stock forms stable social groups, 
with average group size of 18 individuals, but may form large 
aggregations of close to 200 individuals (Baird 2016). Other research 
suggests a larger average group size of 40.9 individuals (Bradford et 
al., 2017), but most of these sightings were farther offshore in 
pelagic waters.
    The most recent abundance estimate for this group in the SAR is 
12,422 animals with PBR at 70 animals (Carretta et al., 2014). More 
recently, the abundance estimate for this stock, based on a 2010 survey 
pooled with sightings collected during previous NMFS surveys of the 
eastern Pacific, is 19,503 animals (Bradford et al., 2017). The main 
threat to this stock is interactions with fisheries (Carretta et al., 
2014). This stock is not listed as endangered or threatened under the 
ESA and is not considered a depleted or strategic stock under the MMPA 
(Carretta et al., 2014).

Melon-Headed Whale

    Melon-headed whales are found in tropical and warm-temperate waters 
(Carretta et al., 2014). There are two demographically-independent 
populations in Hawaii, the Hawaiian Islands stock and the Kohala 
resident stock (Carretta et al., 2014). The resident stock have a small 
range restricted to the shallow waters around Hawaii Island, whereas 
the Hawaiian Islands stock are found all throughout the islands and out 
into the pelagic areas (Carretta et al., 2014). Only the latter stock 
may be affected by 86 FWS's activities. This stock prefers waters 
deeper than 1,000 m (Baird 2016). This species forms large groups, with 
average group size of almost 250 individuals, with the largest group 
documented at close to 800 individuals (Baird 2016). Other research 
suggests a smaller average group size of 153 individuals (Bradford et 
al., 2017).
    The most recent abundance estimate for this stock in the SAR is 
2,860 animals with PBR at 49 animals (Carretta et al., 2014). More 
recently, the abundance estimate for this stock, based on a 2010 survey 
pooled with sightings collected during previous NMFS surveys of the 
eastern Pacific, is 8,666 individuals (Bradford et al., 2017). The main 
threat to this species is human induced, most likely through fisheries 
interactions (Carretta et al., 2014) and mid-frequency sonar testing 
(Baird 2016). This stock is not listed as endangered or threatened 
under the ESA and is not considered a depleted or strategic stock under 
the MMPA (Carretta et al., 2014).

Bottlenose Dolphin

    Bottlenose dolphins are found in tropical to warm-temperate waters 
(Carretta et al., 2014). They are common throughout the Hawaiian 
Islands, with coastal and offshore forms, and with limited range 
movements between islands and offshore waters (Carretta et al., 2014). 
There are four resident populations: (1) Kauai/Niihau, (2) Oahu, (3) 
the 4-island region, and (4) Hawaii; as well as one pelagic stock, 
which is separated by the 1,000 m isobaths (Carretta et al., 2014). 
Only the pelagic population is considered here. Average group size of 
bottlenose dolphins is 33.5 individuals (Bradford et al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 3,755 animals with PBR at 38 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 21,815 individuals (Bradford et al., 
2017); however, this may be an overestimate since most of the sightings 
were in the Northwestern Hawaiian Islands (Baird 2016). This stock is 
not listed as endangered or threatened under the ESA and is not 
considered a depleted or strategic stock under the MMPA (Carretta et 
al., 2014).

Pantropical Spotted Dolphin

    Pantropical spotted dolphins are found in tropical and subtropical 
waters (Carretta et al., 2014). There are four stocks in Hawaii: (1) 
The Oahu stock, (2) the 4-Island stock, (3) the Hawaii Island stock, 
and (4) the Hawaii pelagic stock. Only the pelagic stock is considered 
here. This species prefers deeper waters between 1,500 m and 3,000 m 
(Baird 2016). This species forms large groups with average group size 
of 60 individuals, with the largest group estimated at 400 individuals 
(Baird 2016). Other research suggests a smaller average group size of 
43.2 individuals (Bradford et al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 15,917 animals with PBR at 115 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 55,795 individuals (Bradford et al., 
2017). The main threat to this species is interactions with fisheries 
(Baird 2016). This stock is not listed as endangered or threatened 
under the

[[Page 21165]]

ESA and is not considered a depleted or strategic stock under the MMPA 
(Carretta et al., 2014).

Striped Dolphin

    Striped dolphins are found in tropical to warm-temperate waters 
(Carretta et al., 2014). There is one stock of striped dolphins in 
Hawaii. This is a deep water species, preferring depths greater than 
3,500 m (Baird 2016). This species forms large groups, with an average 
group size of 28 individuals, and a maximum group size of 100 
individuals (Baird 2016). Other research suggests a larger average 
group size of 52.6 individuals (Bradford et al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 20,651 animals with PBR at 154 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 61,201 individuals (Bradford et al., 
2017). The main threat to this species is disease (Carretta et al., 
2014). This stock is not listed as endangered or threatened under the 
ESA and is not considered a depleted or strategic stock under the MMPA 
(Carretta et al., 2014).

Spinner Dolphin

    Spinner dolphins are found in tropical and warm-temperate waters 
(Carretta et al., 2014). There are six stocks in the main Hawaiian 
islands: (1) Kauai/Niihau stock, (2) Oahu and the 4-Islands region, (3) 
Hawaii island stock, (4) Pearl & Hermes Reef, (5) Kure/Midway, and (6) 
pelagic stock. The boundary between the island-associated stocks and 
the pelagic stock is 10 nmi from shore (Carretta et al., 2014). Only 
the pelagic stock is considered here. The offshore stock is rarely 
sighted (Baird 2016), and most of the deep water activity is at night 
when they feed. The average group size for this species is 30 
individuals with larger groups of nearly 300 animals observed (Baird 
2016).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 3,351 animals from a 2002 survey, which is outdated (Carretta et 
al., 2014). The main threat to this species is the constant 
interactions with humans during the day-time when they are resting 
(Carretta et al., 2014; Baird 2016). This stock is not listed as 
endangered or threatened under the ESA and is not considered a depleted 
or strategic stock under the MMPA (Carretta et al., 2014).

Rough-Toothed Dolphin

    Rough-toothed dolphins are found in tropical and warm-temperate 
waters (Carretta et al., 2014). While there is evidence for two island-
associated stocks and one pelagic stock in Hawaii, there is only one 
stock designated for Hawaii (Carretta et al., 2014). Most sightings of 
this species off Kauai are in water depths of less than 1,000 m; 
however, it is the most often sighted species in depths greater than 
3,000 m (Baird 2016). This species forms stable associations as part of 
larger groups, with average group sizes of 11 animals and maximum group 
sizes, observed off Kauai, of 140 individuals (Baird 2016). Other 
research suggests a larger average group size of 25.3 individuals 
(Bradford et al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 6,288 animals with PBR at 46 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 72,528 individuals (Bradford et al., 
2017). The main threat to this species is interactions with fisheries 
(Carretta et al., 2014). This stock is not listed as endangered or 
threatened under the ESA and is not considered a depleted or strategic 
stock under the MMPA (Carretta et al., 2014).

Fraser's Dolphin

    Fraser's dolphin are found in tropical waters (Carretta et al., 
2011). This is a deep water species occurring offshore of the Hawaiian 
islands, with sightings occurring in water depths between 1,515 m and 
4,600 m (Baird 2016). This species forms large groups with average 
group sizes between 75 and 110 individuals (Baird 2016). Other research 
suggests a larger average group size of 283.3 individuals (Bradford et 
al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 10,226 animals with PBR at 47 animals (Carretta et al., 2011). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 51,491 individuals (Bradford et al., 
2017). This stock is not listed as endangered or threatened under the 
ESA and is not considered a depleted or strategic stock under the MMPA 
(Carretta et al., 2011).

Risso's Dolphin

    Risso's dolphins are found in tropical to warm-temperate waters 
(Carretta et al., 2014). This is a deep water species, often found in 
depths greater than 3,000 m, and with the highest sighting rate in 
depths greater than 4,500 m (Baird 2016). This species forms small 
groups, with an average group size of 4 individuals, and a maximum 
group size of 25 individuals off the coast of Hawaii (Baird 2016). 
Other research, which was conducted offshore, suggests a larger average 
group size of 26.6 individuals (Bradford et al., 2017), which may be 
more representative of this species since they occur more often 
offshore in deeper waters.
    The most recent abundance estimate for the pelagic stock in the SAR 
is 7,256 animals with PBR at 42 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 11,613 individuals (Bradford et al., 
2017). The main threat to this species is interactions with fisheries 
(Carretta et al., 2014). This stock is not listed as endangered or 
threatened under the ESA and is not considered a depleted or strategic 
stock under the MMPA (Carretta et al., 2014).

Longman's Beaked Whale

    Longman's beaked whales are found in tropical waters from the 
eastern Pacific westward through the Indian Ocean to the eastern coast 
of Africa (Carretta et al., 2014). There is one stock in Hawaii. Group 
sizes range from 18 to 110 individuals (Baird 2016), with an average 
group size of 59.8 individuals (Bradford et al., 2017).
    The most recent abundance estimate for the pelagic stock in the SAR 
is 4,571 animals with PBR at 28 animals (Carretta et al., 2014). More 
recently, the abundance estimate for all of the stocks in Hawaii, based 
on a 2010 survey pooled with sightings collected during previous NMFS 
surveys of the eastern Pacific, is 7,619 individuals (Bradford et al., 
2017). The main threats to this species are interactions with fisheries 
and increasing sounds in the ocean, including military sonar (Carretta 
et al., 2014). This stock is not listed as endangered or threatened 
under the ESA and is not considered a depleted or strategic stock under 
the MMPA (Carretta et al., 2014).

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components (e.g., munition strikes and detonation effects) of the 
specified activity, including mitigation, may impact marine mammals and 
their habitat. The Estimated Take by Incidental Harassment section 
later in this document will include a quantitative analysis of the 
number of individuals

[[Page 21166]]

that we expect 86 FWS to take during this activity. The Negligible 
Impact Analysis section will include the analysis of how this specific 
activity would impact marine mammals, and will consider the content of 
this section, the Estimated Take by Incidental Harassment section, and 
the Proposed Mitigation section to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals, and from that on the affected marine 
mammal populations or stocks. In the following discussion, we provide 
general background information on sound and marine mammal hearing 
before considering potential effects on marine mammals from sound 
produced by surface detonations.

Description of Sound Sources and WSEP Sound Types

    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound, and is 
typically measured using the decibel (dB) scale. A dB is the ratio 
between a measured pressure (with sound) and a reference pressure 
(sound at a constant pressure, established by scientific standards). It 
is a logarithmic unit that accounts for large variations in amplitude; 
therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter. The source level (SL) represents the 
sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that we reference all underwater sound levels in this 
document to a pressure of 1 [mu]Pa, and all airborne sound levels in 
this document are referenced to a pressure of 20 [mu]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Rms is calculated by squaring all of the 
sound amplitudes, averaging the squares, and then taking the square 
root of the average (Urick 1983). Rms accounts for both positive and 
negative values; squaring the pressures makes all values positive so 
that one can account for the values in the summation of pressure levels 
(Hastings and Popper, 2005). This measurement is often used in the 
context of discussing behavioral effects, in part because behavioral 
effects, which often result from auditory cues, may be better expressed 
through averaged units than by peak pressures.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in all 
directions away from the source (similar to ripples on the surface of a 
pond), except in cases where the source is directional. The 
compressions and decompressions associated with sound waves are 
detected as changes in pressure by aquatic life and man-made sound 
receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound. Ambient 
sound is defined as environmental background sound levels lacking a 
single source or point (Richardson et al., 1995), and the sound level 
of a region is defined by the total acoustical energy being generated 
by known and unknown sources. These sources may include physical (e.g., 
waves, earthquakes, ice, and atmospheric sound), biological (e.g., 
sounds produced by marine mammals, fish, and invertebrates), and 
anthropogenic sound (e.g., vessels, dredging, aircraft, and 
construction). A number of sources contribute to ambient sound, 
including the following (Richardson et al., 1995):
     Wind and waves: The complex interactions between wind and 
water surface, including processes such as breaking waves and wave-
induced bubble oscillations and cavitation, are a main source of 
naturally occurring ambient noise for frequencies between 200 Hz and 50 
kHz (Mitson 1995). In general, ambient sound levels tend to increase 
with increasing wind speed and wave height. Surf noise becomes 
important near shore, with measurements collected at a distance of 8.5 
km from shore showing an increase of 10 dB in the 100 to 700 Hz band 
during heavy surf conditions.
     Precipitation: Sound from rain and hail impacting the 
water surface can become an important component of total noise at 
frequencies above 500 Hz, and possibly down to 100 Hz during quiet 
times.
     Biological: Marine mammals can contribute significantly to 
ambient noise levels, as can some fish and shrimp. The frequency band 
for biological contributions is from approximately 12 Hz to over 100 
kHz.
     Anthropogenic: Sources of ambient noise related to human 
activity include transportation (surface vessels and aircraft), 
dredging and construction, oil and gas drilling and production, seismic 
surveys, sonar, explosions, and ocean acoustic studies. Shipping noise 
typically dominates the total ambient noise for frequencies between 20 
and 300 Hz. In general, the frequencies of anthropogenic sounds are 
below 1 kHz; and, if higher frequency sound levels are created, they 
attenuate rapidly (Richardson et al., 1995). Sound from identifiable 
anthropogenic sources other than the activity of interest (e.g., a 
passing vessel) is sometimes termed background sound as opposed to 
ambient sound.
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    The sounds produced by the proposed WSEP activities are considered 
impulsive, which is one of two general sound types, the other being 
non-pulsed. The distinction between these two sound types is important 
because they have differing potential to cause physical effects, 
particularly with regard to hearing (e.g., Ward, 1997 in Southall et 
al., 2007). Please see Southall et al. (2007) for an in-depth 
discussion of these concepts.
    Impulsive sound sources (e.g., explosions, gunshots, sonic booms, 
and impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI 1986; Harris, 1998; NIOSH 1998; ISO 2003), and occur either as 
isolated events or repeated in

[[Page 21167]]

some succession. These sounds have a relatively rapid rise from ambient 
pressure to a maximal pressure value followed by a rapid decay period 
that may include a period of diminishing, oscillating maximal and 
minimal pressures, and generally have an increased capacity to induce 
physical injury as compared with sounds that lack these features.

Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Current 
data indicate that not all marine mammal species have equal hearing 
capabilities (Richardson et al., 1995; Southall et al., 1997; Wartzok 
and Ketten, 1999; Au and Hastings, 2008).
    Animals are less sensitive to sounds at the outer edges of their 
functional hearing range and are more sensitive to a range of 
frequencies within the middle of their functional hearing range. For 
mid-frequency cetaceans, functional hearing estimates occur between 
approximately 150 Hz and 160 kHz, with best hearing estimated to occur 
between approximately 10 to less than 100 kHz (Finneran et al., 2005 
and 2009, Natchtigall et al., 2005 and 2008; Yuen et al., 2005; Popov 
et al., 2010 and 2011; and Schlundt et al., 2011).
    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(81 FR 51694). This new guidance established new thresholds for 
predicting onset of temporary (TTS) and permanent threshold shifts 
(PTS) for impulsive (e.g., explosives and impact pile drivers) and non-
impulsive (e.g., vibratory pile drivers) sound sources. These acoustic 
thresholds are presented using dual metrics of cumulative sound 
exposure level (SELcum) and peak sound level (PK) for impulsive sounds 
and SELcum for non-impulsive sounds. The lower and/or upper frequencies 
for some of these functional hearing groups have been modified from 
those designated by Southall et al. (2007), and the revised generalized 
hearing ranges are presented in the new Guidance. The functional 
hearing groups and the associated frequencies are indicated in Table 3 
below.

   Table 3--Marine Mammal Hearing Groups and Their Generalized Hearing
                                  Range
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger
 and L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    There are sixteen marine mammal species with expected potential to 
co-occur with 86 FWS LRS WSEP military readiness activities. These 
species fall into the following hearing groups: (1) Low-frequency 
cetaceans (humpback whale (Megaptera novanglieae), sei whale 
(Balaenoptera borealis), and minke whale (Balaenoptera acutorostrata)); 
(2) mid-frequency cetaceans (Pygmy killer whale (Feresa attenuata), 
short-finned pilot whale (Globicephala macrorhynchus), melon-headed 
whale (Peponocephala electra), bottlenose dolphin (Tursiops truncatus), 
Pantropical spotted dolphin (Stenella attenuata), striped dolphin 
(Stenella coeruleoala), spinner dolphin (Stenella longirostris), rough-
toothed dolphin (Steno bredanensis), Fraser's dolphin (Lagenodelphis 
hosei), Risso's dolphin (Grampus griseus), and Longman's beaked whale 
(Indopacetus pacificus)); and (3) high-frequency cetaceans (Pygmy sperm 
whale (Kogia breviceps), and dwarf sperm whale (Kogia sima)). There are 
no phocid or otariid species that will be impacted by 86 FWS's 
activities. A species' functional hearing group is a consideration when 
we analyze the effects of exposure to sound on marine mammals.

Acoustic Impacts

    Please refer to the information given previously (Description of 
Sound Sources) regarding sound, characteristics of sound types, and 
metrics used in this document. Anthropogenic sounds cover a broad range 
of frequencies and sound levels and can have a range of highly variable 
impacts on marine life, from none or minor to potentially severe 
responses, depending on received levels, duration of exposure, 
behavioral context, and various other factors. The potential effects of 
underwater sound from active acoustic sources can potentially result in 
one or more of the following: Temporary or permanent hearing 
impairment; non-auditory physical or physiological effects; behavioral 
disturbance; stress; and masking (Richardson et al., 1995; Gordon et 
al., 2004; Nowacek et al., 2007; Southall et al., 2007; G[ouml]tz et 
al., 2009). The degree of effect is intrinsically related to the signal 
characteristics, received level, distance from the source, and duration 
of the sound exposure. In general, sudden, high level sounds can cause 
hearing loss, as can longer exposures to lower level sounds. Temporary 
or permanent loss of hearing will occur almost exclusively as a result 
of exposure to noise within an animal's hearing range. We first 
describe specific manifestations of acoustic effects before providing 
discussion specific to 86 FWS's activities.
    Richardson et al. (1995) described zones of increasing intensity of 
effect that might be expected to occur, in relation to distance from a 
source and assuming that the signal is within an animal's hearing 
range. First is the area within which the acoustic signal would be 
audible (potentially perceived) to the animal, but not strong enough to 
elicit any overt behavioral or physiological response. The next zone 
corresponds with the area where the signal is audible to the animal and 
of sufficient intensity to elicit behavioral or physiological 
responsiveness. Third is a zone within which, for signals of high 
intensity, the received level is sufficient to potentially cause 
discomfort or tissue damage to auditory or other systems. Overlaying 
these zones to a certain extent is the area within which masking (i.e., 
when a sound interferes with or masks the ability of an animal to 
detect a signal of interest that is above the absolute hearing 
threshold) may occur; the masking zone may be highly variable in size.

[[Page 21168]]

    We describe the more severe effects (i.e., certain non-auditory 
physical or physiological effects and mortality) only briefly as we do 
not expect that there is a reasonable likelihood that 86 FWS's 
activities may result in such effects (see below for further 
discussion). Marine mammals exposed to high-intensity sound, or to 
lower-intensity sound for prolonged periods, can experience hearing 
threshold shift (TS), which is the loss of hearing sensitivity at 
certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; 
Finneran et al., 2002, 2005b). TS can be permanent (PTS), in which case 
the loss of hearing sensitivity is not fully recoverable, or temporary 
(TTS), in which case the animal's hearing threshold would recover over 
time (Southall et al., 2007). Repeated sound exposure that leads to TTS 
could cause PTS. In severe cases of PTS, there can be total or partial 
deafness, while in most cases the animal has an impaired ability to 
hear sounds in specific frequency ranges (Kryter 1985).
    When PTS occurs, there is physical damage to the sound receptors in 
the ear (i.e., tissue damage); whereas, TTS represents primarily tissue 
fatigue and is reversible (Southall et al., 2007). In addition, other 
investigators have suggested that TTS is within the normal bounds of 
physiological variability and tolerance and does not represent physical 
injury (e.g., Ward 1997). Therefore, NMFS does not consider TTS to 
constitute auditory injury.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals--PTS data exists only for a single harbor seal 
(Kastak et al., 2008)--but are assumed to be similar to those in humans 
and other terrestrial mammals. PTS typically occurs at exposure levels 
at least several decibels above (a 40-dB threshold shift approximates 
PTS onset; e.g., Kryter et al., 1966; Miller, 1974) that inducing mild 
TTS (a 6-dB threshold shift approximates TTS onset; e.g., Southall et 
al., 2007). Based on data from terrestrial mammals, a precautionary 
assumption is that the PTS thresholds for impulse sounds (such as 
bombs) are at least 6 dB higher than the TTS threshold on a peak-
pressure basis and PTS cumulative sound exposure level thresholds are 
15 to 20 dB higher than TTS cumulative sound exposure level thresholds 
(Southall et al., 2007). Given the higher level of sound or longer 
exposure duration necessary to cause PTS as compared with TTS, it is 
considerably less likely that PTS could occur.
    Non-auditory physiological effects or injuries that theoretically 
might occur in marine mammals exposed to high level underwater sound or 
as a secondary effect of extreme behavioral reactions (e.g., change in 
dive profile as a result of an avoidance reaction) caused by exposure 
to sound include neurological effects, bubble formation, resonance 
effects, and other types of organ or tissue damage (Cox et al., 2006; 
Southall et al., 2007; Zimmer and Tyack, 2007). 86 FWS's activities 
involve the use of devices such as explosives that are associated with 
these types of effects; however, severe injury to marine mammals is not 
anticipated from these activities.
    When a live or dead marine mammal swims or floats onto shore and is 
incapable of returning to sea, the event is termed a ``stranding'' (16 
U.S.C. 1421h(3)). Marine mammals are known to strand for a variety of 
reasons, such as infectious agents, biotoxicosis, starvation, fishery 
interaction, ship strike, unusual oceanographic or weather events, 
sound exposure, or combinations of these stressors sustained 
concurrently or in series (e.g., Geraci et al., 1999). However, the 
cause or causes of most strandings are unknown (e.g., Best 1982). 
Combinations of dissimilar stressors may combine to kill an animal or 
dramatically reduce its fitness, even though one exposure without the 
other would not be expected to produce the same outcome (e.g., Sih et 
al., 2004). For further description of stranding events see, e.g., 
Southall et al., 2006; Jepson et al., 2013; Wright et al., 2013.
    1. Temporary threshold shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to sound (Kryter 1985). While 
experiencing TTS, the hearing threshold rises, and a sound must be at a 
higher level in order to be heard. In terrestrial and marine mammals, 
TTS can last from minutes or hours to days (in cases of strong TTS). In 
many cases, hearing sensitivity recovers rapidly after exposure to the 
sound ends. Few data on sound levels and durations necessary to elicit 
mild TTS have been obtained for marine mammals, and none of the data 
published at the time of this writing concern TTS elicited by exposure 
to multiple pulses of sound.
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and in interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to 
serious. For example, a marine mammal may be able to readily compensate 
for a brief, relatively small amount of TTS in a non-critical frequency 
range that occurs during a time where ambient noise is lower and there 
are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts.
    Currently, TTS data exist only for four species of cetaceans 
((bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise (Phocoena phocoena), and Yangtze finless porpoise (Neophocoena 
asiaeorientalis)) and three species of pinnipeds (northern elephant 
seal (Mirounga angustirostris), harbor seal (Phoca vitulina), and 
California sea lion (Zalophus californianus)) exposed to a limited 
number of sound sources (i.e., mostly tones and octave-band noise) in 
laboratory settings (e.g., Finneran et al., 2002; Nachtigall et al., 
2004; Kastak et al., 2005; Lucke et al., 2009; Popov et al., 2011). In 
general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) 
and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have 
a lower TTS onset than other measured pinniped or cetacean species. 
Additionally, the existing marine mammal TTS data come from a limited 
number of individuals within these species. There are no data available 
on noise-induced hearing loss for mysticetes. For summaries of data on 
TTS in marine mammals or for further discussion of TTS onset 
thresholds, please see Southall et al. (2007) and Finneran and Jenkins 
(2012).
    2. Behavioral effects--Behavioral disturbance may include a variety 
of effects, including subtle changes in behavior (e.g., minor or brief 
avoidance of an area or changes in vocalizations), more conspicuous 
changes in similar behavioral activities, and more sustained and/or 
potentially severe reactions, such as displacement from or abandonment 
of high-quality habitat. Behavioral responses to sound are highly 
variable and context-specific and any reactions depend on numerous 
intrinsic and extrinsic factors (e.g., species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
and time of day), as well as the interplay between factors (e.g., 
Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; 
Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not 
only among individuals but also within an individual, depending on 
previous experience with a sound source,

[[Page 21169]]

context, and numerous other factors (Ellison et al., 2012), and can 
vary depending on characteristics associated with the sound source 
(e.g., whether it is moving or stationary, number of sources, and 
distance from the source). Please see Appendices B-C of Southall et al. 
(2007) for a review of studies involving marine mammal behavioral 
responses to sound.
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance (Bejder et al., 2009). The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. As noted, behavioral state may affect the type of response. 
For example, animals that are resting may show greater behavioral 
change in response to disturbing sound levels than animals that are 
highly motivated to remain in an area for feeding (Richardson et al., 
1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with 
captive marine mammals have shown pronounced behavioral reactions, 
including avoidance of loud sound sources (Ridgway et al., 1997; 
Finneran et al., 2003). Observed responses of wild marine mammals to 
loud pulsed sound sources (typically seismic airguns or acoustic 
harassment devices) have been varied, but often consist of avoidance 
behavior or other behavioral changes suggesting discomfort (Morton and 
Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007).
    Available studies show wide variation in response to underwater 
sound; therefore, it is difficult to predict specifically how any given 
sound in a particular instance might affect marine mammals perceiving 
the signal. If a marine mammal does react briefly to an underwater 
sound by changing its behavior or moving a small distance, the impacts 
of the change are unlikely to be significant to the individual, let 
alone to the stock or population. However, if a sound source displaces 
marine mammals from an important feeding or breeding area for a 
prolonged period, impacts on individuals and populations could be 
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, 
2005). There are broad categories of potential response, which we 
describe in greater detail here, that include alteration of dive 
behavior, alteration of foraging behavior, effects to breathing, 
interference with or alteration of vocalization, avoidance, and flight.
    Changes in dive behavior can vary widely and may consist of 
increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive (e.g., Frankel 
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et 
al.; 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may 
reflect interruptions in biologically significant activities (e.g., 
foraging), or they may be of little biological significance. The impact 
of an alteration to dive behavior resulting from an acoustic exposure 
depends on what the animal is doing at the time of the exposure and the 
type and magnitude of the response.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    Variations in respiration naturally vary with different behaviors, 
and alterations to breathing rate as a function of acoustic exposure 
can be expected to co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Various studies have shown that respiration rates may 
either be unaffected or could increase, depending on the species and 
signal characteristics, again highlighting the importance in 
understanding species differences in the tolerance of underwater noise 
when determining the potential for impacts resulting from anthropogenic 
sound exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et 
al., 2007).
    Marine mammals vocalize for different purposes and across multiple 
modes, such as whistling, echolocation click production, calling, and 
singing. Changes in vocalization behavior in response to anthropogenic 
noise can occur for any of these modes and may result from a need to 
compete with an increase in background noise or may reflect increased 
vigilance or a startle response. For example, in the presence of 
potentially masking signals, humpback whales and killer whales have 
been observed to increase the length of their songs (Miller et al., 
2000; Fristrup et al., 2003; Foote et al., 2004), while right whales 
have been observed to shift the frequency content of their calls upward 
while reducing the rate of calling in areas of increased anthropogenic 
noise (Parks et al., 2007b). In some cases, animals may cease sound 
production during production of aversive signals (Bowles et al., 1994).
    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors, and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). For example, gray whales 
are known to change direction--deflecting from customary migratory 
paths--in order to avoid noise from seismic surveys (Malme et al., 
1984). Avoidance may be short-term, with animals returning to the area 
once the noise has ceased (e.g., Bowles et al., 1994; Goold 1996; Stone 
et al., 2000; Morton and Symonds 2002; Gailey et al., 2007). Longer-
term displacement is possible, however, which may lead to changes in 
abundance or distribution patterns of the affected species in the 
affected region if habituation to the presence of the sound does not 
occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et 
al., 2006).
    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other avoidance responses in 
the intensity of the response (e.g., directed movement, and rate of 
travel). Relatively little information on flight responses of marine 
mammals to anthropogenic signals exist, although observations of flight 
responses to the presence of predators have occurred (Connor and 
Heithaus 1996). The result of a flight response could range from brief, 
temporary exertion and displacement from the area where the signal 
provokes flight to, in extreme cases, marine

[[Page 21170]]

mammal strandings (Evans and England 2001). However, it should be noted 
that response to a perceived predator does not necessarily invoke 
flight (Ford and Reeves 2008), and whether individuals are solitary or 
in groups may influence the response.
    Behavioral disturbance can also impact marine mammals in subtler 
ways. Increased vigilance may result in costs related to diversion of 
focus and attention (i.e., when a response consists of increased 
vigilance, it may come at the cost of decreased attention to other 
critical behaviors such as foraging or resting). These effects have 
generally not been demonstrated for marine mammals, but studies 
involving fish and terrestrial animals have shown that increased 
vigilance may substantially reduce feeding rates (e.g., Beauchamp and 
Livoreil 1997; Fritz et al., 2002; Purser and Radford 2011). In 
addition, chronic disturbance can cause population declines through 
reduction of fitness (e.g., decline in body condition) and subsequent 
reduction in reproductive success, survival, or both (e.g., Harrington 
and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, 
Ridgway et al. (2006) reported that increased vigilance in bottlenose 
dolphins exposed to sound over a five-day period did not cause any 
sleep deprivation or stress effects.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hour cycle). 
Disruptions of such functions resulting from reactions to stressors 
such as sound exposure are more likely to be significant if they last 
more than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than one day 
and not recurring on subsequent days is not considered particularly 
severe unless it could directly affect reproduction or survival 
(Southall et al., 2007). Note that there is a difference between multi-
day substantive behavioral reactions and multi-day anthropogenic 
activities. For example, just because an activity lasts for multiple 
days does not necessarily mean that individual animals are either 
exposed to activity-related stressors for multiple days or, further, 
exposed in a manner resulting in sustained multi-day substantive 
behavioral responses.
    3. Stress responses--An animal's perception of a threat may be 
sufficient to trigger stress responses consisting of some combination 
of behavioral responses, autonomic nervous system responses, 
neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 
2000). In many cases, an animal's first and sometimes most economical 
(in terms of energetic costs) response is behavioral avoidance of the 
potential stressor. Autonomic nervous system responses to stress 
typically involve changes in heart rate, blood pressure, and 
gastrointestinal activity. These responses have a relatively short 
duration and may or may not have a significant long-term effect on an 
animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well-studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker 2000; Romano 
et al., 2002b) and, more rarely, studied in wild populations (e.g., 
Romano et al., 2002a). For example, Rolland et al. (2012) found that 
noise reduction from reduced ship traffic in the Bay of Fundy was 
associated with decreased stress in North Atlantic right whales. These 
and other studies lead to a reasonable expectation that some marine 
mammals will experience physiological stress responses upon exposure to 
acoustic stressors and that it is possible that some of these would be 
classified as ``distress.'' In addition, any animal experiencing TTS 
would likely also experience stress responses (NRC, 2003).
    4. Auditory masking--Sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, and navigation) (Richardson et al., 1995). Masking 
occurs when the receipt of a sound is interfered with by another 
coincident sound at similar frequencies and at similar or higher 
intensity, and may occur whether the sound is natural (e.g., snapping 
shrimp, wind, waves, and precipitation) or anthropogenic (e.g., 
shipping, sonar, and seismic exploration) in origin. The ability of a 
noise source to mask biologically important sounds depends on the 
characteristics of both the noise source and the signal of interest 
(e.g., signal-to-noise ratio, temporal variability, and direction), in 
relation to each other and to an animal's hearing abilities (e.g., 
sensitivity, frequency range, critical ratios, frequency 
discrimination, directional discrimination, age or TTS hearing loss), 
and existing ambient noise and propagation conditions.
    Under certain circumstances, marine mammals experiencing 
significant masking could also be impaired from maximizing their 
performance fitness in survival and reproduction. Therefore, when the 
coincident (masking) sound is man-made, it may be considered harassment 
when disrupting or altering critical behaviors. It is important to 
distinguish TTS and PTS, which persist after the sound exposure, from 
masking, which occurs during the sound exposure. Because masking 
(without resulting in TS) is not associated with abnormal physiological 
function, it is not considered a physiological effect, but it may 
result in a behavioral effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes, but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals caused by anthropogenic noise may 
be considered as a reduction in the communication space of animals 
(e.g., Clark et al., 2009),

[[Page 21171]]

and may result in energetic or other costs as animals change their 
vocalization behavior (e.g., Miller et al., 2000; Foote et al., 2004; 
Parks et al., 2007b; Di Iorio and Clark, 2009; Holt et al., 2009). 
Masking can be reduced in situations where the signal and noise come 
from different directions (Richardson et al., 1995), through amplitude 
modulation of the signal, or through other compensatory behaviors 
(Houser and Moore 2014). Masking can be tested directly in captive 
species (e.g., Erbe 2008), but in wild populations it must be either 
modeled or inferred from evidence of masking compensation. There are 
few studies addressing real-world masking sounds likely to be 
experienced by marine mammals in the wild (e.g., Branstetter et al., 
2013).
    Masking affects both senders and receivers of acoustic signals and 
can potentially have long-term chronic effects on marine mammals at the 
population level as well as at the individual level. Low-frequency 
ambient sound levels have increased by as much as 20 dB (more than 
three times in terms of SPL) in the world's ocean from pre-industrial 
periods, with most of the increase from distant commercial shipping 
(Hildebrand 2009). All anthropogenic sound sources, but especially 
chronic and lower-frequency signals (e.g., from vessel traffic), 
contribute to elevated ambient sound levels, thus intensifying masking.
    The LRS WSEP training exercises proposed for the incidental take of 
marine mammals have the potential to take marine mammals by exposing 
them to impulsive noise and pressure waves generated by live ordnance 
detonation at the surface of the water. Exposure to energy, pressure, 
or direct strike by ordnance has the potential to result in non-lethal 
injury (Level A harassment), disturbance (Level B harassment), serious 
injury, and/or mortality. In addition, NMFS also considered the 
potential for harassment from vessel and aircraft operations.

Acoustic Effects, Underwater

    Explosive detonations at the water surface send a shock wave and 
sound energy through the water and can release gaseous by-products, 
create an oscillating bubble, or cause a plume of water to shoot up 
from the water surface. The shock wave and accompanying noise are of 
most concern to marine animals. Depending on the intensity of the shock 
wave and size, location, and depth of the animal, an animal can be 
injured, killed, suffer non-lethal physical effects, experience hearing 
related effects with or without behavioral responses, or exhibit 
temporary behavioral responses (e.g. flight responses, temporary 
avoidance) from hearing the blast sound. Generally, exposures to higher 
levels of impulse and pressure levels would result in greater impacts 
to an individual animal.
    The effects of underwater detonations on marine mammals are 
dependent on several factors, including the size, type, and depth of 
the animal; the depth, intensity, and duration of the sound; the depth 
of the water column; the substrate of the habitat; the standoff 
distance between activities and the animal; and the sound propagation 
properties of the environment. Thus, we expect impacts to marine 
mammals from LRS WSEP activities to result primarily from acoustic 
pathways. As such, the degree of the effect relates to the received 
level and duration of the sound exposure, as influenced by the distance 
between the animal and the source. The further away from the source, 
the less intense the exposure should be.
    The potential effects of underwater detonations from the proposed 
LRS WSEP training activities may include one or more of the following: 
Temporary or permanent hearing impairment, non-auditory physical or 
physiological effects, behavioral disturbance, and masking (Richardson 
et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et 
al., 2007). However, the effects of noise on marine mammals are highly 
variable, often depending on species and contextual factors (based on 
Richardson et al., 1995).
    In the absence of mitigation, impacts to marine species could 
result from physiological and behavioral responses to both the type and 
strength of the acoustic signature (Viada et al., 2008). The type and 
severity of behavioral impacts are more difficult to define due to 
limited studies addressing the behavioral effects of impulsive sounds 
on marine mammals.
    Hearing Impairment and Other Physical Effects--Marine mammals 
exposed to high intensity sound repeatedly or for prolonged periods can 
experience hearing threshold shift. Given the available data, the 
received level of a single pulse (with no frequency weighting) might 
need to be approximately 186 dB re 1 [mu]Pa2-s (i.e., 186 dB sound 
exposure level (SEL) or approximately 221-226 dB p-p (peak)) in order 
to produce brief, mild TTS. Exposure to several strong pulses that each 
have received levels near 190 dB rms (175-180 dB SEL) might result in 
cumulative exposure of approximately 186 dB SEL and thus slight TTS in 
a small odontocete, assuming the TTS threshold is (to a first 
approximation) a function of the total received pulse energy.
    Non-auditory Physiological Effects--Non-auditory physiological 
effects or injuries that theoretically might occur in marine mammals 
exposed to strong underwater sound include stress and other types of 
organ or tissue damage (Cox et al., 2006; Southall et al., 2007).
    Serious Injury/Mortality: 86 FWS proposes to use munitions in its 
training exercises that may detonate above, at, or slightly below the 
water surface. The explosions from these weapons would send a shock 
wave and blast noise through the water, release gaseous by-products, 
create an oscillating bubble, and cause a plume of water to shoot up 
from the water surface. The shock wave and blast noise are of most 
concern to marine animals. In general, potential impacts from explosive 
detonations can range from brief effects (such as short term behavioral 
disturbance), tactile perception, physical discomfort, slight injury of 
the internal organs, and death of the animal (Yelverton et al., 1973; 
O'Keeffe and Young 1984; DoN 2001). Physical damage of tissues 
resulting from a shock wave (from an explosive detonation) constitutes 
an injury. Blast effects are greatest at the gas-liquid interface 
(Landsberg 2000) and gas-containing organs, particularly the lungs and 
gastrointestinal tract, are especially susceptible to damage (Goertner 
1982; Yelverton et al., 1973). Nasal sacs, larynx, pharynx, trachea, 
and lungs may be damaged by compression/expansion caused by the 
oscillations of the blast gas bubble (Reidenberg and Laitman 2003). 
Severe damage (from the shock wave) to the ears can include tympanic 
membrane rupture, fracture of the ossicles, cochlear damage, 
hemorrhage, and cerebrospinal fluid leakage into the middle ear.
    Non-lethal injury includes slight injury to internal organs and the 
auditory system; however, delayed lethality can be a result of 
individual or cumulative sublethal injuries (DoN 2001). Immediate 
lethal injury would be a result of massive combined trauma to internal 
organs as a direct result of proximity to the point of detonation (DoN 
2001).

Disturbance Reactions

    Because the few available studies show wide variation in response 
to underwater sound, it is difficult to quantify exactly how sound from 
the LRS WSEP operational testing would affect marine mammals. It is 
likely that the onset of surface detonations could result in temporary, 
short term changes in an animal's typical behavior and/or avoidance of 
the affected area. These

[[Page 21172]]

behavioral changes may include (Richardson et al., 1995): Changing 
durations of surfacing and dives, number of blows per surfacing, moving 
direction and/or speed; reduced/increased vocal activities; changing/
cessation of certain behavioral activities (such as socializing or 
feeding); visible startle response or aggressive behavior (such as 
tail/fluke slapping or jaw clapping); or avoidance of areas where sound 
sources are located.
    The biological significance of any of these behavioral disturbances 
is difficult to predict, especially if the detected disturbances appear 
minor. However generally, one could expect the consequences of 
behavioral modification to be biologically significant if the change 
affects growth, survival, or reproduction. Significant behavioral 
modifications that could potentially lead to effects on growth, 
survival, or reproduction include:
     Drastic changes in diving/surfacing patterns (such as 
those thought to cause beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cessation of feeding or social interaction.
    The onset of behavioral disturbance from anthropogenic sound 
depends on both external factors (characteristics of sound sources and 
their paths) and the specific characteristics of the receiving animals 
(hearing, motivation, experience, demography) and is difficult to 
predict (Southall et al., 2007).

Auditory Masking

    While it may occur temporarily, we do not expect auditory masking 
to result in detrimental impacts to an individual's or population's 
survival, fitness, or reproductive success. Dolphin movement is not 
restricted within the BSURE area, allowing for movement out of the area 
to avoid masking impacts, and the sound resulting from the detonations 
is short in duration. Also, masking is typically of greater concern for 
those marine mammals that utilize low frequency communications, such as 
baleen whales and, as such, is not likely to occur for marine mammals 
in the BSURE area.

Vessel and Aircraft Presence

    The marine mammals most vulnerable to vessel strikes are slow-
moving and/or spend extended periods of time at the surface in order to 
restore oxygen levels within their tissues after deep dives (e.g., 
North Atlantic right whales (Eubalaena glacialis), fin whales, and 
sperm whales). Smaller marine mammals are agile and move more quickly 
through the water, making them less susceptible to ship strikes. NMFS 
and 86 FWS are not aware of any vessel strikes of marine mammals within 
in BSURE area during training operations, and both parties do not 
anticipate that potential 86 FWS vessels engaged in the specified 
activity would strike any marine mammals.
    Aircraft produce noise at frequencies that are well within the 
frequency range of cetacean hearing and also produce visual signals 
such as the aircraft itself and its shadow (Richardson et al., 1995, 
Richardson and Wursig, 1997). A major difference between aircraft noise 
and noise caused by other anthropogenic sources is that the sound is 
generated in the air, transmitted through the water surface and then 
propagates underwater to the receiver, diminishing the received levels 
significantly below what is heard above the water's surface. Sound 
transmission from air to water is greatest in a sound cone 26 degrees 
directly under the aircraft.
    There are fewer reports of reactions of odontocetes to aircraft 
than those of pinnipeds. Responses to aircraft by pinnipeds include 
diving, slapping the water with pectoral fins or tail fluke, or 
swimming away from the track of the aircraft (Richardson et al., 1995). 
The nature and degree of the response, or the lack thereof, are 
dependent upon the nature of the flight (e.g., type of aircraft, 
altitude, straight vs. circular flight pattern). Wursig et al. (1998) 
assessed the responses of cetaceans to aerial surveys in the north 
central and western Gulf of Mexico using a DeHavilland Twin Otter 
fixed-wing airplane. The plane flew at an altitude of 229 m (751.3 ft) 
at 204 km/hr (126.7 mph) and maintained a minimum of 305 m (1,000 ft) 
straight line distance from the cetaceans. Water depth was 100 to 1,000 
m (328 to 3,281 ft). Bottlenose dolphins most commonly responded by 
diving (48 percent), while 14 percent responded by moving away. Other 
species (e.g., beluga (Delphinapterus leucas) and sperm whales) show 
considerable variation in reactions to aircraft but diving or swimming 
away from the aircraft are the most common reactions to low flights 
(less than 500 m; 1,640 ft).

Direct Strike by Ordnance

    Another potential risk to marine mammals is direct strike by 
ordnance, in which the ordnance physically hits an animal. Although 
strike from an item at the surface of the water while the animals are 
at the surface is possible, the potential risk of a direct hit to an 
animal within the target area would be low. Marine mammals spend the 
majority of their time below the surface of the water, and the 
potential for one bomb or missile to hit that animal at that specific 
time is highly unlikely.

Anticipated Effects on Habitat

    Detonations of live ordnance would result in temporary changes to 
the water environment. An explosion on the surface of the water from 
these weapons could send a shock wave and blast noise through the 
water, release gaseous by-products, create an oscillating bubble, and 
cause a plume of water to shoot up from the water surface. However, 
these effects would be temporary and not expected to last more than a 
few seconds. Similarly, 86 FWS does not expect any long-term impacts 
with regard to hazardous constituents to occur. The 86 FWS considered 
the introduction of fuel, debris, ordnance, and chemical materials into 
the water column within its EA and determined the potential effects of 
each to be insignificant. We summarize 86 FWS's analyses in the 
following paragraphs. For a complete discussion of potential effects, 
please refer to section 3.0 in 86 FWS's EA.
    Metals typically used to construct bombs and missiles include 
aluminum, steel, and lead, among others. Aluminum is also present in 
some explosive materials. These materials would settle to the seafloor 
after munitions detonate. Metal ions would slowly leach into the 
substrate and the water column, causing elevated concentrations in a 
small area around the munitions fragments. Some of the metals, such as 
aluminum, occur naturally in the ocean at varying concentrations and 
would not necessarily impact the substrate or water column. Other 
metals, such as lead, could cause toxicity in microbial communities in 
the substrate. However, such effects would be localized to a very small 
distance around munitions fragments and would not significantly affect 
the overall habitat quality of sediments in the BSURE area. In 
addition, metal fragments would corrode, degrade, and become encrusted 
over time.
    Chemical materials include explosive byproducts and also fuel, oil, 
and other fluids associated with remotely controlled target boats. 
Explosive byproducts would be introduced into the water column through 
detonation of live munitions. Explosive materials would include TNT and 
research department explosive (RDX), among others. Various byproducts 
are produced during and immediately after detonation of TNT and RDX. 
During the

[[Page 21173]]

very brief time that a detonation is in progress, intermediate products 
may include carbon ions, nitrogen ions, oxygen ions, water, hydrogen 
cyanide, carbon monoxide, nitrogen gas, nitrous oxide, cyanic acid, and 
carbon dioxide (Becker 1995). However, reactions quickly occur between 
the intermediates, and the final products consist mainly of water, 
carbon monoxide, carbon dioxide, and nitrogen gas, although small 
amounts of other compounds are typically produced as well.
    Chemicals introduced into the water column would be quickly 
dispersed by waves, currents, and tidal action, and eventually become 
uniformly distributed. A portion of the carbon compounds such as carbon 
monoxide and carbon dioxide would likely become integrated into the 
carbonate system (alkalinity and pH buffering capacity of seawater). 
Some of the nitrogen and carbon compounds, including petroleum 
products, would be metabolized or assimilated by phytoplankton and 
bacteria. Most of the gas products that do not react with the water or 
become assimilated by organisms would be released into the atmosphere. 
Due to dilution, mixing, and transformation, none of these chemicals 
are expected to have significant impacts on the marine environment.
    Explosive material that is not consumed in a detonation could sink 
to the substrate and bind to sediments. However, the quantity of such 
materials is expected to be inconsequential. Research has shown that if 
munitions function properly, nearly full combustion of the explosive 
materials will occur, and only extremely small amounts of raw material 
will remain. In addition, any remaining materials would be naturally 
degraded. TNT decomposes when exposed to sunlight (ultraviolet 
radiation) and is also degraded by microbial activity (Becker 1995). 
Several types of microorganisms have been shown to metabolize TNT. 
Similarly, RDX decomposes by hydrolysis, ultraviolet radiation 
exposure, and biodegradation.
    While we anticipate that the specified activity may result in 
marine mammals avoiding certain areas due to temporary ensonification, 
this impact to habitat and prey resources would be temporary and 
reversible. The main impact associated with the proposed activity would 
be temporarily elevated noise levels and the associated direct effects 
on marine mammals, previously discussed in this notice. Marine mammals 
are anticipated to temporarily vacate the area of live detonations. 
However, these events are usually of short duration, and animals are 
anticipated to return to the activity area during periods of non-
activity. Thus, based on the preceding discussion, we do not anticipate 
that the proposed activity would have any habitat-related effects that 
could cause significant or long-term consequences for individual marine 
mammals or their populations.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
affecting the least adverse impact practicable on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for certain subsistence uses.
    The NDAA of 2004 amended the MMPA as it relates to military-
readiness activities and the incidental take authorization process 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.
    NMFS and 86 FWS have worked to identify potential practicable and 
effective mitigation measures, which include a careful balancing of the 
likely benefit of any particular measure to the marine mammals with the 
likely effect of that measure on personnel safety, practicality of 
implementation, and impact on the military-readiness activity. We refer 
the reader to Section 11 of 86 FWS's application for more detailed 
information on the proposed mitigation measures, which include the 
following:
    Timing Restriction: The 86 FWS will be restricted to certain times 
of the day and certain months of the year. All missions will occur on 
weekdays during daylight hours only. Missions will not occur during the 
months of January to May when transmission loss is greater due to 
winter/spring seasonal conditions and when marine mammal densities are 
higher.
    Visual Aerial Surveys: For the LRS WSEP activities, mitigation 
procedures consist of visual aerial surveys of the impact area for the 
presence of protected marine species (including marine mammals). During 
aerial observation, Navy test range personnel may survey the area from 
an S-61N helicopter or C-62 aircraft that is based at the PMRF land 
facility (typically, when missions are located relatively close to 
shore). Alternatively, when missions are located farther offshore, 
surveys may be conducted from mission aircraft (typically jet aircraft 
such as F-15E, F-16, or F-22) or a U.S. Coast Guard C-130 aircraft.
    Protected species surveys typically begin within one hour of weapon 
release and as close to the impact time as feasible, given human safety 
requirements. Survey personnel must depart the human hazard zone before 
weapon release, in accordance with Navy safety standards. Personnel 
conduct aerial surveys within an area defined by a maximum 8-mi (13 km) 
radius around the impact point with surveys typically flown in a star 
pattern. This survey distance is much larger than requirements for 
similar actions at the PMRF and what was accomplished for October 2016 
missions. This expanded area would encompass the entire behavioral 
threshold ranges (SEL) for all mid-frequency cetaceans, the entire PTS 
threshold ranges (SEL) for low-frequency cetaceans and phocids, 
approximately 23 percent of the TTS threshold ranges (SEL) for low-
frequency cetaceans and phocids, and about 64 percent of the PTS 
threshold range (SEL) for high-frequency cetaceans (pygmy and dwarf 
sperm whales) (Table 5). The survey distance would not cover the entire 
behavioral harassment ranges for low- and high-frequency cetaceans and 
phocids. Given operational constraints, surveying these larger areas 
would not be feasible.
    Observers would consist of aircrew operating the C-26, S-61N, and 
C-130 aircraft from the PMRF and the Coast Guard. These aircrew are 
trained and experienced at conducting aerial marine mammal surveys and 
have provided similar support for other missions at the PMRF. Aerial 
surveys are typically conducted at an altitude of about 200 ft, but 
altitude may vary somewhat depending on sea state and atmospheric 
conditions. If adverse weather conditions preclude the ability for 
aircraft to safely operate, missions would either be delayed until the 
weather clears or cancelled for the day. The C-26 and other aircraft 
would generally be operated at a slightly higher altitude than the 
helicopter. The observers will be provided with the GPS location of the 
impact area. Once the aircraft reaches the impact area, pre-mission 
surveys typically last for 30 minutes, depending on the survey pattern. 
The fixed-wing aircraft are faster than the helicopter, and, therefore, 
protected species may be more difficult to spot. However, to compensate 
for the difference in speed,

[[Page 21174]]

the aircraft may fly the survey pattern multiple times.
    Mission Delays: If a protected species is observed in the impact 
area, weapon release would be delayed until one of the following 
conditions is met: (1) The animal is observed exiting the impact area; 
or (2) the impact area has been clear of any additional sightings for a 
period of 30 minutes. All weapons will be tracked and their water entry 
points will be documented.
    Post-mission surveys would begin immediately after the mission is 
complete and the Range Safety Officer declares the human safety area is 
reopened. Approximate transit time from the perimeter of the human 
safety area to the weapon impact area would depend on the size of the 
human safety area and vary between aircraft but is expected to be less 
than 30 minutes. Post-mission surveys would be conducted by the same 
aircraft and aircrew that conducted the pre-mission surveys and would 
follow the same patterns as pre-mission surveys but would focus on the 
area down current of the weapon impact area to determine if protected 
species were affected by the mission (observation of dead or injured 
animals). If a serious injury or mortality occurs to a protected 
species due to LRS WSEP missions, NMFS would be notified immediately.
    A typical mission day would consist of pre-mission checks, safety 
review, crew briefings, weather checks, clearing airspace, range 
clearance, mitigations/monitoring efforts, and other military protocols 
prior to launch of weapons. Potential delays could be the result of 
multiple factors including, adverse weather conditions leading to 
unsafe take-off, landing, and aircraft operations, inability to clear 
the range of non-mission vessels or aircraft, mechanical issues with 
mission aircraft or munitions, or presence of protected species in the 
impact area. These standard operating procedures are usually done in 
the morning, and live range time may begin in late morning once all 
checks are complete and approval is granted from range control. The 
range would be closed to the public for a maximum of four hours per 
mission day.
    Determination of the Zone of Influence: The zone of influence (ZOI) 
is defined as the area or volume of ocean in which marine mammals could 
be exposed to various pressure or acoustic energy levels caused by 
exploding ordnance. Refer to Appendix A of 86 FWS's application for a 
description of the method used to calculate impact areas for 
explosives. The pressure and energy levels considered to be of concern 
are defined in terms of metrics, criteria, and thresholds. A metric is 
a technical standard of measurement that describes the acoustic 
environment (e.g., frequency duration, temporal pattern, and amplitude) 
and pressure at a given location. Criteria are the resulting types of 
possible impact and include mortality, injury, and harassment. A 
threshold is the level of pressure or noise above which the impact 
criteria are reached.
    Standard impulsive and acoustic metrics were used for the analysis 
of underwater energy and pressure waves in this document. Several 
different metrics are important for understanding risk assessment 
analysis of impacts to marine mammals: SPL is the ratio of the absolute 
sound pressure to a reference level, SEL is the measure of sound 
intensity and duration, and positive impulse is the time integral of 
the pressure over the initial positive phase of an arrival.
    The criteria and thresholds used to estimate potential pressure and 
acoustic impacts to marine mammals resulting from detonations were 
obtained from Finneran and Jenkins (2012) and include mortality, Level 
A harassment, and Level B harassment. In some cases, separate 
thresholds have been developed for different species groups or 
functional hearing groups. Functional hearing groups included in the 
analysis are low-frequency cetaceans, mid-frequency cetaceans, and 
high-frequency cetaceans.
    Based on the ranges presented in Table 5 and factoring operational 
limitations associated with the mission, 86 FWS estimates that during 
pre-mission surveys, the proposed monitoring area would be 
approximately 8 mi (13 km) from the target area radius around the 
impact point, with surveys typically flown in a star pattern, which is 
much larger than requirements already in place for similar actions at 
the PMRF and what was accomplished for October 2016 missions.
    NMFS discussed with the 86 FWS and the U.S. Navy--whose hydrophones 
and PAM equipment in the PMRF would be used--the idea of using PAM for 
mitigation purposes to supplement visual surveys. Through these 
discussions, NMFS and 86 FWS attempted to determine if using PAM as a 
mitigation tool was feasible. The Navy described the constraints of 
using PAM as a real-time mitigation tool due to the limitations of the 
current technology. These include limitations on the ability to detect, 
classify, and estimate locations of marine mammals around the 
equipment; the fact that marine mammals present in the area may not be 
vocalizing; and the fact that vocalizations made by some species may be 
outside of the frequency capabilities of the hydrophones. These 
limitations are explained further, below.
    In regards to the limitations to detect classify, and estimate 
locations of marine mammals around the equipment, and the fact that 
some of those animals may vocalize outside of the frequency 
capabilities of the hydrophones, the Navy states:

    Based on current capabilities, and given adequate time, 
vocalizing animals within an indeterminate radius around a 
particular phone are detected, but obtaining an estimated position 
for all individual animals passing through a predetermined area is 
not assured. Detecting vocalizations on a phone does not determine 
whether vocalizing individuals would be within the established 
mitigation zone in the timeframes required for mitigation. Since 
detection ranges are generally larger than current mitigation zones 
for many activities, this would unnecessarily delay events due to 
uncertainty in the animals location.
    To develop an estimated position for an individual, it must be 
vocalizing and its vocalizations must be detected on at least three 
hydrophones. The hydrophones must have the required bandwidth, and 
dynamic range to capture the signal. In addition, calls must be 
sufficiently loud so as to provide the required signal to noise 
ratio on the surrounding hydrophones. Typically, small odontocetes 
echolocate with a directed beam that makes detection of the call on 
multiple hydrophones difficult. Developing an estimated position of 
selected species requires the presence of whistles which may or may 
not be produced depending on the behavioral state.
    Large baleen species vocalize at frequencies well below 1 kHz. 
There are few broadband phones with low frequency capabilities at 
PMRF and they are widely spaced, especially on the southern portion 
of the range. This makes estimating the positions of low frequency 
baleen whales difficult in that area. For minke whale boings, it 
takes 30 to 45 minutes of calling (e.g. observing 8 calls or more) 
to have good confidence in a whale's estimated position. 
Additionally, even minke whales that have been vocalizing for 
extended periods can, and have, gone silent for hours at a time. 
Extended gaps in calling have also been noted for fin, sei, and 
Bryde's whales. We are currently unable to estimate positions of 
humpbacks in real-time.
    Beaked whales vocalize only during deep foraging dives which 
occur at a rate of approximately 10 per day. They produce highly 
directed echolocation clicks that are difficult to simultaneously 
detect on multiple hydrophones. Current real-time systems cannot 
follow individuals and at best produce sparse positions with 
multiple false locations.
    The position estimation process must occur in an area with 
hydrophones spaced to allow the detection of the same echolocation

[[Page 21175]]

click on at least three hydrophones. Typically, a spacing of less 
than 4 km in water depths of approximately 2 km is preferred. In the 
absence of localizations, the analyst can only determine with 
confidence if a group of beaked whales is somewhere within 6 km of a 
hydrophone. Beaked whales produce stereotypic click trains during 
deep (<700 m) foraging dives. The presence of a vocalizing group can 
be readily detected by an analyst by examining the click structure 
and repetition rate. However, estimating position is possible only 
if the same train of clicks is detected on multiple hydrophones 
which is often precluded by the animal's narrow beam pattern.

    In regards to marine mammals not vocalizing in the area, the Navy 
states:

    Animals must vocalize to be detected; the lack of detections on 
a hydrophone may give the false impression that the area is all 
clear. The lack of vocalization detections is not a direct measure 
of the absence of marine mammals. If an event were to be moved based 
upon low-confidence localizations, it may inadvertently be moved to 
an area where non-vocalizing animals of undetermined species/ESA 
status are present.

    NMFS decided that these analytical and technical limitations 
preclude the use of PAM as a real-time mitigation tool. However, we 
will require the use of PAM for monitoring purposes (as described 
below).
    We have carefully evaluated 86 FWS's proposed mitigation measures 
in the context of ensuring that we prescribe the means of effecting the 
least practicable adverse impact on the affected marine mammal species 
and stocks and their habitat. Our evaluation of potential measures 
included consideration of the following factors in relation to one 
another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    NMFS prescribes mitigation measures that accomplish, have a 
reasonable likelihood of accomplishing (based on current science), or 
contribute to the accomplishment of one or more of the general goals 
listed here:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to stimuli 
expected to result in incidental take (this goal may contribute to 1, 
above, or to reducing takes by behavioral harassment only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to stimuli that we expect to result in the take of marine mammals (this 
goal may contribute to 1, above, or to reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to training 
exercises that we expect to result in the take of marine mammals (this 
goal may contribute to 1, above, or to reducing the severity of 
harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of 86 FWS's proposed measures, as well as 
other measures that may be relevant to the specified activity, we have 
preliminarily determined that the proposed mitigation measures, 
including visual aerial surveys and mission delays if protected species 
are observed in the impact area, provide the means of effecting the 
least practicable adverse impact on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance (while also considering 
personnel safety, practicality of implementation, and the impact of 
effectiveness of the military readiness activity).

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area.
    The 86 FWS submitted marine mammal monitoring and reporting 
measures in their LOA application. We may modify or supplement these 
measures based on comments or new information received during the 
public comment period. Any monitoring requirement we prescribe will 
improve our understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    NMFS proposes to include the following monitoring and reporting 
measures in the LRS WSEP Authorization (if issued):
    (1) Using mission reporting forms, the 86 FWS will track the use of 
the PMRF for missions and protected species observations.
    (2) The 86 FWS will submit a summary report of marine mammal 
observations and LRS WSEP activities to the NMFS PIRO and the Office of 
Protected Resources 90 days after completion of mission activities each 
year. This report must include the following information: (i) Date and 
time of each LRS WSEP exercise; (ii) a complete description of the pre-
exercise and post-exercise activities related to mitigating and 
monitoring the effects of LRS WSEP exercises on marine mammal 
populations; and (iii) results of the LRS WSEP exercise monitoring, 
including number of marine mammals (by species) that may have been 
harassed due to presence within the activity zone.
    (3) The 86 FWS will monitor for marine mammals in the proposed 
action area through pre-mission aerial visual surveys. If 86 FWS 
personnel observe or detect any dead or injured marine

[[Page 21176]]

mammals prior to testing, or detect any injured or dead marine mammal 
during live fire exercises, 86 FWS must cease operations and submit a 
report to NMFS OPR and PIRO within 24 hours.
    (4) The 86 FWS will monitor for marine mammals once the mission has 
ended or, if required, as soon as personnel declare the mission area 
safe. Post-mission aerial visual surveys will be identical to pre-
mission surveys and will occur approximately 30 minutes after the 
munitions have been detonated, concentrating on the area down-current 
of the test site. Observers will document and report any marine mammal 
species, number, location, and behavior of any animals observed. Post-
mission monitoring determines the effectiveness of pre-mission 
mitigation by reporting sightings of any marine mammals within the ZOIs 
that may have been affected by mission activities.
    (5) As noted previously, PAM will not be used as a real-time 
mitigation tool, but the 86 FWS will use PAM by using the Navy's 
hydrophones for monitoring within the PMRF, by collecting data before, 
during, and after LRS WSEP missions. This data will be stored at SPAWAR 
to be analyzed as funding allows.
    (6) The 86 FWS must immediately report any unauthorized takes of 
marine mammals (i.e., serious injury or mortality) to NMFS OPR and to 
the respective Pacific Islands Region stranding coordinator. The 86 FWS 
must cease operations and submit a report to NMFS within 24 hours.

Adaptive Management

    NMFS may modify (including augment) the existing mitigation, 
monitoring, or reporting measures (after consulting with the 86 FWS 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring measures for these regulations.
    Possible sources of data that could contribute to the decision to 
modify the mitigation, monitoring, or reporting measures in an LOA 
include: (1) Results from 86 FWS's monitoring from the previous 
year(s); (2) results from other marine mammal and/or sound research or 
studies; and (3) any information that reveals marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.
    If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment. If, however, NMFS determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals in Hawaii, an LOA may be modified without 
prior notice or opportunity for public comment. Notice would be 
published in the Federal Register within 30 days of the action.

Estimated Take by Incidental Harassment

    The NDAA of 2004 amended the definition of harassment as it applies 
to a military readiness activity (Section 3(18)(B) of the MMPA) to read 
as follows: (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).
    NMFS' analysis identified the physiological responses and 
behavioral responses that could potentially result from exposure to 
explosive detonations. In this section, we will relate the potential 
effects on marine mammals from detonation of explosives to the MMPA 
regulatory definitions of Level A and Level B harassment. This section 
will also quantify the effects that might occur from the proposed 
military readiness activities in the PMRF BSURE area. As described 
below, quantifying take includes a consideration of acoustic thresholds 
identified by NMFS above which received levels marine mammals are 
expected to be taken by either Level A or Level B harassment; predicted 
distances from the sound sources within which animals are expected to 
be exposed to sound levels above these thresholds; and the density of 
marine mammals within the areas ensonified above the thresholds.

Level B Harassment

    Of the potential effects described earlier in this document, the 
following are the types of effects that would result from Level B 
harassment:
    Behavioral Harassment--Exposure to non-impulsive or impulsive 
sound, which causes a behavioral disturbance that rises to the level 
described in the above definition, is Level B harassment. Some of the 
lower level physiological stress responses discussed earlier would also 
likely co-occur with the predicted harassments, although these 
responses are more difficult to detect, and fewer data exist relating 
these responses to specific received levels of sound. When predicting 
Level B harassment on estimated behavioral responses, those takes may 
have a stress-related physiological component.
    Temporary Threshold Shift--As discussed previously, TTS can affect 
how an animal behaves in response to the environment, including 
conspecifics, predators, and prey. NMFS classifies exposure to 
explosives and other impulsive sources resulting in TTS as Level B 
harassment, not Level A harassment.

Level A Harassment

    Of the potential effects that were described earlier, the following 
are the types of effects that result from Level A harassment and that 
may be expected from 86 FWS activities:
    Permanent Threshold Shift--PTS (resulting from exposure to 
explosive detonations) is irreversible, and NMFS considers this to be 
an injury.
    Table 4 outlines the explosive thresholds used by NMFS for this 
action when addressing noise impacts from explosives.
BILLING CODE 3510-22-P

[[Page 21177]]

[GRAPHIC] [TIFF OMITTED] TP05MY17.009

BILLING CODE 3510-22-C
    The 86 FWS completed acoustic modeling to determine the distances 
from their explosive ordnance corresponding to NMFS' explosive 
thresholds; these distances were then used with each species' density 
to determine exposure estimates. Below is a summary of the methodology 
for those modeling efforts.
    The maximum estimated range, or radius, from the detonation point 
to the point at which the various thresholds extend for all munitions 
proposed to be released in a 24-hour time period was calculated based 
on explosive acoustic characteristics, sound propagation, and sound 
transmission loss in the Study Area. These calculations incorporated 
water depth, sediment type, wind speed, bathymetry, and temperature/
salinity profiles (Table 5). Transmission loss was calculated from the 
explosive source depth down to an array of water depth bins extending 
to the maximum depths where marine mammals may occur (see depth 
distributions in Appendix B of the 86 FWS's application). Then impact 
volumes were computed for each explosive source (based on the total 
number of munitions released on a representative mission day). Impact 
areas were calculated from scaling the impact volumes by each depth 
bin, dividing by their depth intervals, summing each value over the 
entire water column and converting to square kilometers. The total 
energy for all weapons released as part of a representative mission day 
was calculated to assess impacts from the accumulated energy resulting 
from multiple weapon releases within a 24-hour period. Given that there 
is a large degree of uncertainty in knowing this far in advance what 
types of explosives could be released on any particular mission day, in 
order to calculate the number of munitions to be released per mission 
day, the total number of each munition proposed to be released per year 
was divided by the annual number of mission days.
    Explosives generally will be separated by some number of minutes, 
with the exception of up to four SDB-I/II munitions, which includes a 
burst during which each ordnance hits the water surface within a few 
seconds of each other. For the purposes of predicting the number of 
exposures above threshold, calculating the area for each independent 
explosive and then adding those areas together and multiplying by 
species density would result in an overestimate. This is because all 
explosions will occur within 4 hours and are generally targeting the 
same spot, and several explosions have very large zones, so it is 
likely that many of the exposures will be experienced by the same 
individual animals. Therefore, to calculate take, we instead summed the 
energy of the expected number of separate explosives per day to create 
one area of impact to overlay with species density for that area. Since 
there would be a total of five mission days per year during the time 
frame of 2017--2021, the analysis assumed that in a representative 
mission day the following munitions and quantities would be released 
daily: One JASSM, six JDAMs, six SDB-Is, six SDB-IIs, and two HARMs.
    The 86 FWS used the calculations for transmission loss from the 
summer season in their model, because the parameters for the summer 
were more conservative (i.e., resulted in larger

[[Page 21178]]

distances from the sound source) than for the fall, taking into account 
wind speed, sound speed, and transmission loss (see 86 FWS's seasonal 
parameters memo). Missions will most likely occur in the summer, but 
may also occur in the fall. Transmission loss was calculated from the 
explosive source depth down to an array of water depth bins extending 
to the maximum depths where marine mammals may occur (see depth 
distributions in Appendix B of the 86 FWS's application). Next, impact 
volumes were computed for each explosive source (i.e., total number of 
munitions released on a representative mission day). Impact areas were 
calculated by scaling the impact volumes for each depth bin, dividing 
by their depth intervals, summing each value over the entire water 
column and converting to square kilometers. The radii shown in Table 5 
are based on these impact areas, and were used for mitigation 
considerations.

               Table 5--Distances (m) to Explosive Thresholds Used To Calculate Predicted Take From 86 FWS's Daily Explosive Ordnance Use
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Level A harassment \2\                          Level B harassment
                                                              ------------------------------------------------------------------------------------------
                                                   Mortality                  GI tract              PTS                TTS             Behavioral
                     Species                          \1\      Slight lung     injury   ----------------------------------------------------------------
                                                                  injury   -------------  Applicable   Applicable   Applicable   Applicable   Applicable
                                                                             237 dB SPL     SEL *        SPL *        SEL *        SPL *        SEL *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback Whale..................................           99          200          204        5,415        1,241       55,464        2,266       59,039
Blue Whale......................................           74          149          204        5,415        1,241       55,464        2,266       59,039
Fin Whale.......................................           76          157          204        5,415        1,241       55,464        2,266       59,039
Sei Whale.......................................          101          204          204        5,415        1,241       55,464        2,266       59,039
Bryde's Whale...................................           99          200          204        5,415        1,241       55,464        2,266       59,039
Minke Whale.....................................          138          268          204        5,415        1,241       55,464        2,266       59,039
Sperm Whale.....................................           91          177          204        1,575          413        8,019          763       11,948
Pygmy Sperm Whale...............................          248          457          204       20,058        4,879       71,452        7,204       74,804
Dwarf Sperm Whale...............................          273          509          204       20,058        4,879       71,452        7,204       74,804
Killer Whale....................................          149          287          204        1,575          413        8,019          763       11,948
False Killer Whale (MHI Insular stock)..........          177          340          204        1,575          413        8,019          763       11,948
False Killer Whale (all other stocks)...........          177          340          204        1,575          413        8,019          763       11,948
Pygmy Killer Whale..............................          324          604          204        1,575          413        8,019          763       11,948
Short-finned Pilot Whale........................          217          413          204        1,575          413        8,019          763       11,948
Melon-headed Whale..............................          273          502          204        1,575          413        8,019          763       11,948
Bottlenose Dolphin..............................          273          509          204        1,575          413        8,019          763       11,948
Pantropical Spotted Dolphin.....................          324          604          204        1,575          413        8,019          763       11,948
Striped Dolphin.................................          324          604          204        1,575          413        8,019          763       11,948
Spinner Dolphin.................................          324          604          204        1,575          413        8,019          763       11,948
Rough-toothed Dolphin...........................          273          509          204        1,575          413        8,019          763       11,948
Fraser's Dolphin................................          257          480          204        1,575          413        8,019          763       11,948
Risso's Dolphin.................................          207          384          204        1,575          413        8,019          763       11,948
Cuvier's Beaked Whale...........................          131          257          204        1,575          413        8,019          763       11,948
Blainville's Beaked Whale.......................          195          368          204        1,575          413        8,019          763       11,948
Longman's Beaked Whale..........................          133          261          204        1,575          413        8,019          763       11,948
Hawaiian Monk Seal..............................          306          564          204        4,621        1,394       55,687        2,549       58,736
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Based on Goertner (1982).
\2\ Based on Richmond et al. (1973).
* Based on the applicable Functional Hearing Group.

Density Estimation

    Density estimates for marine mammals were derived from the Navy's 
2016 Marine Species Density Database (NMSDD). The 86 FWS used fall 
densities to estimate take. Fall densities are more conservative than 
summer densities because they include more species. Density estimates 
provided in Table 6 were extrapolated over the depth distributions by 
multiplying the density values by the percentage of time spent at each 
depth interval. These scaled densities were multiplied by the 
corresponding depth bin in the impact volume for each threshold and 
summed to create a three-dimensional exposure estimate. These estimates 
were then multiplied by the number of events, or total annual number of 
proposed mission days. NMFS refers the reader to Section 3 of 86 FWS's 
application for detailed information on all equations used to calculate 
densities presented in Table 6.

                 Table 6--Marine Mammal Density Estimates Within the Impact Location in the PMRF
----------------------------------------------------------------------------------------------------------------
                                                          Density estimate (animals per square kilometer)
                     Species                     ---------------------------------------------------------------
                                                       Fall           Spring          Summer          Winter
----------------------------------------------------------------------------------------------------------------
Humpback whale..................................         0.02110         0.02110               0         0.02110
Blue whale......................................         0.00005         0.00005               0         0.00005
Fin whale.......................................         0.00006         0.00006               0         0.00006
Sei whale.......................................         0.00016         0.00016               0         0.00016
Bryde's whale...................................         0.00010         0.00010         0.00010         0.00010
Minke whale.....................................         0.00423         0.00423               0         0.00423
Sperm whale.....................................         0.00156         0.00156         0.00156         0.00156
Pygmy sperm whale...............................         0.00291         0.00291         0.00291         0.00291
Dwarf sperm whale...............................         0.00714         0.00714         0.00714         0.00714
Killer whale....................................         0.00006         0.00006         0.00006         0.00006

[[Page 21179]]

 
False killer whale (Main Hawaiian Islands                0.00080         0.00080         0.00080         0.00080
 insular stock).................................
False killer whale (all other stocks)...........         0.00071         0.00071         0.00071         0.00071
Pygmy killer whale..............................         0.00440         0.00440         0.00440         0.00440
Short-finned pilot whale........................         0.00919         0.00919         0.00919         0.00919
Melon-headed whale..............................         0.00200         0.00200         0.00200         0.00200
Bottlenose dolphin..............................         0.00316         0.00316         0.00316         0.00316
Pantropical spotted dolphin.....................         0.00623         0.00623         0.00623         0.00623
Striped dolphin.................................         0.00335         0.00335         0.00335         0.00335
Spinner dolphin.................................         0.00204         0.00204         0.00204         0.00204
Rough-toothed dolphin...........................         0.00470         0.00470         0.00470         0.00470
Fraser's dolphin................................           0.021           0.021           0.021           0.021
Risso's dolphin.................................         0.00470         0.00470         0.00470         0.00470
Cuvier's beaked whale...........................         0.00030         0.00030         0.00030         0.00030
Blainville's beaked whale.......................         0.00086         0.00086         0.00086         0.00086
Longman's beaked whale..........................         0.00310         0.00310         0.00310         0.00310
Hawaiian monk seal..............................         0.00003         0.00003         0.00003         0.00003
----------------------------------------------------------------------------------------------------------------

Take Estimation

    The resulting total number of marine mammals potentially exposed to 
the various levels of thresholds (mortality, injury, and non-injurious 
harassment, including behavioral harassment), in the absence of 
mitigation measures, is listed in Table 7. To eliminate double-counting 
of animals, exposure results from higher impact categories (e.g., 
mortality) were subtracted from lower impact categories (e.g., Level A 
harassment). For impact categories with dual criteria (e.g., SEL and 
SPL metrics for PTS associated with Level A harassment), numbers in the 
table are based on the criterion resulting in the greatest number of 
exposures. Exposure levels include the possibility of injury to marine 
mammals and harassment (resulting in behavioral disruption (Level B 
harassment) in the absence of mitigation measures. The numbers 
represent total impacts for all detonations combined and do not take 
into account the required mitigation and monitoring measures (see 
Section 11 of the 86 FWS's application), which are expected to decrease 
the number of exposures shown in the Table 7.
    The 86 FWS and NMFS estimated that 16 species could be exposed to 
noise levels constituting Level B harassment (TTS and behavioral 
disruption), and 4 of those marine mammal species could be exposed to 
injurious noise levels (Level A harassment) (187 dB SEL) in the absence 
of mitigation measures.

         Table 7--Modeled Number of Marine Mammals Potentially Affected Annually by LRS WSEP Operations
----------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B         Level B
                     Species                         Mortality      harassment      harassment      harassment
                                                                   (PTS only *)        (TTS)       (behavioral)
----------------------------------------------------------------------------------------------------------------
                                           Mysticetes (baleen whales)
----------------------------------------------------------------------------------------------------------------
Humpback whale..................................               0               4              54              38
Blue whale......................................               0               0               0               0
Fin whale.......................................               0               0               0               0
Sei whale.......................................               0               0               0               1
Bryde's whale...................................               0               0               0               0
Minke whale.....................................               0               1              11              19
----------------------------------------------------------------------------------------------------------------
                                    Odontocetes (toothed whales and dolphins)
----------------------------------------------------------------------------------------------------------------
Sperm whale.....................................               0               0               0               0
Pygmy sperm whale...............................               0               9              83              36
Dwarf sperm whale...............................               0              22             203              87
Killer whale....................................               0               0               0               0
False killer whale (MHI Insular stock)..........               0               0               0               0
False killer whale (all other stocks)...........               0               0               0               0
Pygmy killer whale..............................               0               0               1               2
Short-finned pilot whale........................               0               0               5               6
Melon-headed whale..............................               0               0               1               1
Bottlenose dolphin..............................               0               0               2               2
Pantropical spotted dolphin.....................               0               0               3               4
Striped dolphin.................................               0               0               2               2
Spinner dolphin.................................               0               0               1               1
Rough-toothed dolphin...........................               0               0               3               3
Fraser's dolphin................................               0               0              10              14
Risso's dolphin.................................               0               0               2               2
Cuvier's beaked whale...........................               0               0               0               0
Blainville's beaked whale.......................               0               0               0               0

[[Page 21180]]

 
Longman's beaked whale..........................               0               0               1               1
----------------------------------------------------------------------------------------------------------------
                                                    Pinnipeds
----------------------------------------------------------------------------------------------------------------
Hawaiian monk seal..............................               0               0               0               0
                                                 ---------------------------------------------------------------
    Total.......................................               0              36             382             219
----------------------------------------------------------------------------------------------------------------

    These modeled take numbers show that the probability of some of 
these species being impacted by the 86 FWS's activities is low (e.g., 
one modeled take for behavioral harassment of 4 of the 16 species). 
However, realistically, these species are seen in larger groups (rather 
than on an individual basis); therefore, we took into consideration 
average group sizes to determine our actual number of authorized takes. 
For example, melon-headed whales have a modeled take estimate of one 
individual, but their average group size is 153 individuals (Bradford 
et al., 2017); therefore, we propose to authorize 153 takes by Level B 
harassment of melon headed whales, of which one may be from TTS. 
Similarly, for all species, if the modeled take was less than average 
group size, we used this same rationale and calculation to determine 
the proposed takes by Level B harassment (harassment resulting in TTS 
or behavioral disruption). We assumed that, of the total Level B 
harassment takes, the modeled take numbers would be used for TTS, and 
the difference between TTS and the average group size would be the 
behavioral take. We did not adjust takes for PTS, since, in all four 
instances of predicted PTS, the number of PTS takes was greater than 
average group size (e.g., average group size for dwarf sperm whale is 
2.7 (Baird 2016), and modeled PTS takes is 22). Proposed authorized 
take numbers are presented in Table 8.

         Table 8--Estimated Number of Marine Mammals for Proposed Authorized Take by LRS WSEP Operations
----------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B         Level B
                     Species                         Mortality      harassment      harassment      harassment
                                                                    (PTS only*)        (TTS)       (behavioral)
----------------------------------------------------------------------------------------------------------------
Humpback whale..................................               0               4              54              38
Sei whale.......................................               0               0               0             * 3
Minke whale.....................................               0               1              11              19
Pygmy sperm whale...............................               0               9              83              36
Dwarf sperm whale...............................               0              22             203              87
Pygmy killer whale..............................               0               0               1            * 25
Short-finned pilot whale........................               0               0               5            * 36
Melon-headed whale..............................               0               0               1           * 152
Bottlenose dolphin..............................               0               0               2            * 32
Pantropical spotted dolphin.....................               0               0               3            * 40
Striped dolphin.................................               0               0               2            * 51
Spinner dolphin.................................               0               0               1        * \1\ 29
Rough-toothed dolphin...........................               0               0               3            * 22
Fraser's dolphin................................               0               0              10           * 273
Risso's dolphin.................................               0               0               2            * 25
Longman's beaked whale..........................               0               0               1            * 59
                                                 ---------------------------------------------------------------
    Total.......................................               0              36             382             927
----------------------------------------------------------------------------------------------------------------
* Denotes an adjusted take value from what is represented in the modeled take numbers in Table 7. All mean group
  sizes were taken from Bradford et al. (2017) except spinner dolphins, because this value was not available in
  this publication.
\1\ Mean group size was taken from Baird (2016).

    Based on the mortality exposure estimates calculated by the 
acoustic model (and further supported by the anticipated effectiveness 
of the mitigation), zero marine mammals are expected to be affected by 
pressure levels associated with mortality or serious injury. Zero 
marine mammals are expected to be exposed to pressure levels associated 
with slight lung injury or gastrointestinal tract injury.
    NMFS considers PTS to fall under the injury category (Level A 
harassment). In this case, it would be highly unlikely for this 
scenario to unfold, given the nature of any anticipated acoustic 
exposures that could potentially result from a mobile marine mammal 
that NMFS generally expects to exhibit avoidance behavior to loud 
sounds within the BSURE area.
    NMFS has relied on the best available scientific information to 
support the issuance of 86 FWS's authorization. In the case of 
authorizing Level A harassment, NMFS has estimated that, although 
unlikely, four marine mammal species (humpback whale, minke whale, 
dwarf sperm whale, and pygmy sperm whale) could experience minor PTS of 
hearing sensitivity. The available data and analyses include 
extrapolation of the results of many studies on marine mammal noise-
induced TTS. An extensive review of TTS studies and experiments 
prompted NMFS to conclude that the possibility of minor PTS in the form 
of slight upward shift of hearing threshold at certain frequency

[[Page 21181]]

bands by one individual marine mammal is extremely low.

Analyses and Preliminary Determinations

Negligible Impact Analysis

    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.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through Level B 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat. In making a 
negligible impact determination, NMFS considers the following:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, intensity, and duration of Level B 
harassment takes;
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures to 
reduce the number or severity of incidental take.
    For reasons stated previously in this document, the specified 
activities are not likely to cause long-term behavioral disturbance, 
serious injury, or death.
    The takes from Level B harassment would be due to potential 
behavioral disturbance and TTS. The takes from Level A harassment would 
be due to potential PTS. Activities would occur only over a timeframe 
of five days each year in the summer months, over a maximum of four 
hours per day.
    Behavioral disruption due to Level B harassment would be limited to 
reactions such as startle responses, movements away from the area, and 
short-term changes to behavioral state. These impacts are expected to 
be temporary and of short duration. We do not anticipate that the 
effects would be detrimental to rates of recruitment and survival 
because we do not expect serious or extended behavioral responses that 
would result in energetic effects at the level to impact fitness.
    Noise-induced threshold shifts (TS, which includes TTS and PTS) are 
defined as increases in the threshold of audibility of the ear (i.e., 
the sound has to be louder to be detected) at a certain frequency or 
range of frequencies (ANSI 1995; Yost 2007). Several important factors 
relate to the magnitude of TS, such as level, duration, spectral 
content (frequency range), and temporal pattern (continuous, 
intermittent) of exposure (Yost 2007; Henderson et al., 2008). TS 
occurs in terms of frequency range (Hz or kHz), hearing threshold level 
(dB), or both frequency and hearing threshold level.
    TTS was modeled to occur in 15 species of marine mammals from 
mission activities. If TTS occurs, it is expected to be at low levels 
and of short duration. As explained above, TTS is temporary with no 
long term effects to species. The modeled take numbers are expected to 
be overestimates since NMFS expects that successful implementation of 
the required aerial-based mitigation measures could avoid TTS. Further, 
it is uncommon to sight marine mammals within the target area, 
especially for prolonged durations. Avoidance varies among individuals 
and depends on their activities or reasons for being in the area.
    There are different degrees of PTS: Ranging from slight/mild to 
moderate and from severe to profound. Profound PTS or the complete loss 
of the ability to hear in one or both ears is commonly referred to as 
deafness. High-frequency PTS, presumably as a normal process of aging 
that occurs in humans and other terrestrial mammals, has also been 
demonstrated in captive cetaceans (Ridgway and Carder, 1997; Yuen et 
al., 2005; Finneran et al., 2005; Houser and Finneran, 2006; Finneran 
et al., 2007; Schlundt et al., 2011) and in stranded individuals (Mann 
et al., 2010).
    In terms of what is analyzed for the potential PTS (Level A 
harassment) in marine mammals as a result of 86 FWS's LRS WSEP 
operations, if it occurs, NMFS has determined that the levels would be 
slight/mild because research shows that most cetaceans exhibit 
relatively high levels of avoidance. Further, it is uncommon to sight 
marine mammals within the target area, especially for prolonged 
durations. Avoidance varies among individuals and depends on their 
activities or reasons for being in the area.
    Accordingly, NMFS' predicted estimates for Level A harassment take 
(Table 8) are likely overestimates of the likely injury that will 
occur. NMFS expects that successful implementation of the required 
aerial-based mitigation measures could avoid Level A harassment take. 
Also, NMFS expects that some individuals would avoid the source at 
levels expected to result in injury. Nonetheless, although NMFS expects 
that Level A harassment is unlikely to occur at the numbers proposed to 
be authorized, because it is difficult to quantify the degree to which 
the mitigation and avoidance will reduce the number of animals that 
might incur PTS, NMFS is proposing to authorize (and analyze) the 
modeled number of Level A harassment takes, which does not take the 
mitigation or avoidance into consideration. However, we anticipate 
that, because of the proposed mitigation measures, and the likely short 
duration of exposures, any PTS incurred would be in the form of only a 
small degree of PTS, rather than total deafness.
    While animals may be impacted in the immediate vicinity of the 
activity, because of the short duration of the actual individual 
explosions themselves (versus continual sound source operation) 
combined with the short duration of the LRS WSEP operations (i.e., 
maximum of four hours per day over a maximum of five days per year), 
NMFS has preliminarily determined that there will not be a substantial 
impact on marine mammals or on the normal functioning of the nearshore 
or offshore waters off Kauai and its ecosystems. We do not expect that 
the proposed activity would impact rates of recruitment or survival of 
marine mammals, since we do not expect mortality (which would remove 
individuals from the population) or serious injury to occur. In 
addition, the proposed activity would not occur in areas (and/or at 
times) of significance for the marine mammal populations potentially 
affected by the exercises (e.g., feeding or resting areas, reproductive 
areas), and the activity would occur only in a small part of their 
overall range of those marine mammal populations, so the impact of any 
potential temporary displacement would be negligible and animals would 
be expected to return to the area after the cessation of activities. 
Although the proposed activity could result in Level

[[Page 21182]]

A harassment (PTS only, as opposed to slight lung injury or 
gastrointestinal tract injury) and Level B harassment (behavioral 
disturbance and TTS), the level of harassment is not anticipated to 
impact rates of recruitment or survival of marine mammals, because the 
number of exposed animals is expected to be low due to the short-term 
and site-specific nature of the activity.
    Moreover, the proposed mitigation and monitoring measures 
(described earlier in this preamble for the proposed rule) are expected 
to further minimize the potential for harassment. The protected species 
surveys would require 86 FWS to search the area for marine mammals, and 
if any are found in the impact zone, then the exercise would be 
suspended until the animals have left the area or relocated outside of 
the zone. Furthermore, LRS WSEP missions may be delayed or rescheduled 
for adverse weather conditions.
    In past missions (October 2016), the 86 FWS completed pre- and 
post-aerial surveys. The 86 FWS did not observe any marine mammals in 
the ZOI before missions occurred, and did not observe any marine 
mammals after missions were completed. The 86 FWS was authorized for 
Level A and Level B harassment takes of five species, but monitoring 
showed that they had zero takes of any species from mission activities.
    Based on NMFS' preliminary analysis of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS preliminarily finds that 86 FWS's LRS WSEP operations 
will result in the incidental take of marine mammals, by Level A and 
Level B harassment, and that the taking from the LRS WSEP activities 
will have a negligible impact on the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has preliminarily determined that the 
total taking of affected species or stocks would not have an 
unmitigable adverse impact on the availability of such species or 
stocks for taking for subsistence purposes.

Endangered Species Act

    There is one marine mammal species under NMFS' jurisdiction that is 
listed as endangered under the Endangered Species Act (ESA) with 
confirmed or possible occurrence in the action area: The sei whale. In 
March 2017, NMFS initiated formal consultation under Section 7 of the 
ESA. The Biological Opinion will analyze the effects to the one ESA 
listed species by the 86 FWS' LRS WSEP activities.

National Environmental Policy Act

    In 2016, 86 FWS provided NMFS with an Environmental Assessment (EA) 
titled, Environmental Assessment/Overseas Environmental Assessment for 
the Long Range Strike Weapon Systems Evaluation Program at the Pacific 
Missile Range Facility at Kauai, Hawaii. The EA analyzed the direct, 
indirect, and cumulative environmental impacts of the specified 
activities on marine mammals. NMFS will review and evaluate the 86 FWS 
EA for consistency with the regulations published by the Council of 
Environmental Quality (CEQ) and NOAA Administrative Order 216-6, 
Environmental Review Procedures for Implementing the National 
Environmental Policy Act, and determine whether or not to adopt the EA. 
Information in 86 FWS's application, the EA, and this notice 
collectively provide the environmental information related to proposed 
issuance of the regulations for public review and comment. We will 
review all comments submitted in response to this notice as we complete 
the NEPA process, including the decision of whether to sign a Finding 
of No Significant Impact (FONSI) prior to a final decision on the LOA 
request. The 2016 NEPA documents are available for review at 
www.nmfs.noaa.gov/pr/permits/incidental/military.html.

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.), the Chief Counsel for Regulation of the Department of Commerce 
has certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The RFA requires a Federal agency to prepare an analysis of a rule's 
impact on small entities whenever the agency is required to publish a 
notice of proposed rulemaking. However, a Federal agency may certify, 
pursuant to 5 U.S.C. 605(b), that the action will not have a 
significant economic impact on a substantial number of small entities. 
A description of this proposed rule and its purpose are found earlier 
in the preamble for this action and is not repeated here. 86 FWS is the 
sole entity that will be affected by this rulemaking and is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Any requirements imposed by LOAs issued pursuant to 
these regulations, and any monitoring or reporting requirements imposed 
by these regulations, will be applicable only to 86 FWS.
    NMFS does not expect the issuance of these regulations or the 
associated LOAs to result in any impacts to small entities pursuant to 
the RFA. Because this action, if adopted, would directly affect 86 FWS 
and not a small entity, NMFS concludes the action would not result in a 
significant economic impact on a substantial number of small entities. 
Accordingly, no regulatory flexibility analysis is necessary, and none 
has been prepared.
    This action does not contain any collection of information 
requirements for purposes of the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

List of Subjects in 50 CFR Part 218

    Regulations governing the taking and importing of marine mammals.

    Dated: May 2, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 218 is proposed 
to be amended as follows:

PART 218--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 218 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart F to part 218 to read as follows:

Subpart F--Taking of Marine Mammals Incidental to the U.S. Air 
Force 86 Fighter Weapons Squadron Conducting Long Range Strike 
Weapons System Evaluation Program at the Pacific Missile Range 
Facility at Kauai, Hawaii.

Sec.
218.50 Specified activity and specified geographical region.
218.51 Effective dates.
218.52 Permissible methods of taking.
218.53 Prohibitions.
218.54 Mitigation.
218.55 Requirements for monitoring and reporting.
218.56 Letters of Authorization.

[[Page 21183]]

218.57 Renewals and Modifications of Letters of Authorization.
218.58 [Reserved]
218.59 [Reserved]


Sec.  218.50  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the 86 Fighter 
Weapons Squadron (86 FWS) and those persons it authorizes to conduct 
activities on its behalf, for the taking of marine mammals as outlined 
in paragraph (b) of this section and incidental to Long Range Strike 
Weapons System Evaluation Program (LRS WSEP) missions.
    (b) The taking of marine mammals by 86 FWS pursuant to a Letter of 
Authorization (LOA) is authorized only if it occurs at the Barking 
Sands Underwater Range Expansion (BSURE) area of the Pacific Missile 
Range Facility (PMRF) off Kauai, Hawaii.


Sec.  218.51  Effective dates.

    Regulations in this subpart are effective August 23, 2017, through 
August 22, 2022.


Sec.  218.52  Permissible methods of taking.

    Under a Letter of Authorization (LOA) issued pursuant to Sec.  
216.106 and Sec.  218.56 of this chapter, the Holder of the LOA (herein 
after 86 FWS) may incidentally, but not intentionally, take marine 
mammals by Level A and Level B harassment associated with LRS WSEP 
activities within the area described in Sec.  218.50 of this subpart, 
provided the activities are in compliance with all terms, conditions, 
and requirements of these regulations in this subpart and the 
appropriate LOA.


Sec.  218.53  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.50 and authorized 
by an LOA issued under Sec.  216.106 and Sec.  218.56 of this chapter, 
no person in connection with the activities described in Sec.  218.50 
of this chapter may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 and 
Sec.  218.56 of this chapter.
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  218.54  Mitigation requirements.

    When conducting activities identified in Sec.  218.50 of this 
chapter, the mitigation measures contained in the LOA issued under 
Sec.  216.106 and Sec.  218.56 of this chapter must be implemented. 
These mitigation measures shall include but are not limited to the 
following general conditions:
    (a) If daytime weather and/or sea conditions preclude adequate 
monitoring for detecting marine mammals and other marine life, LRS WSEP 
strike operations must be delayed until adequate sea conditions exist 
for monitoring to be undertaken.
    (b) Restrictions on time of activities; missions will only occur 
during day-light hours, on weekdays, and only during the summer or fall 
months.
    (c) Visual aerial surveys before and after mission activities each 
day.
    (d) Required delay of mission activities if a protected species is 
observed in the impact zones. Mission activities cannot resume until 
one of the following conditions is met:
    (1) The animal is observed exiting the impact area; or
    (2) The impact area has been clear of any additional sightings for 
a period of 30 minutes.
    (e) If post-mission surveys determine that an injury or lethal take 
of a marine mammal has occurred, the next mission will be suspended 
until the test procedure and the monitoring methods have been reviewed 
with NMFS and appropriate changes made.
    (f) Additional mitigation measures as contained in an LOA.


Sec.  218.55  Requirements for monitoring and reporting.

    (a) Holders of LOAs issued pursuant to Sec.  218.56 for activities 
described in Sec.  218.50(a) are required to cooperate with NMFS, and 
any other Federal, state, or local agency with authority to monitor the 
impacts of the activity on marine mammals. Unless specified otherwise 
in the LOA, the Holder of the LOA must notify the Pacific Islands 
Region Stranding Coordinator, NMFS, by email, at least 72 hours prior 
to LRS WSEP missions. If the authorized activity identified in Sec.  
218.50(a) is thought to have resulted in the mortality or injury of any 
marine mammals or take of marine mammals not identified in Sec.  
218.50(b), then the Holder of the LOA must notify the Director, Office 
of Protected Resources, NMFS, or designee, by telephone (301-427-8401), 
within 48 hours of the injury or death. The Holder of the LOA must also 
contact the Pacific Islands Region stranding coordinator, NMFS, by 
email, at least one business day after completion of missions to 
declare that missions are complete.
    (b) The Holder of the LOA will use mission reporting forms to track 
their use of the PMRF BSURE area for the LRS WSEP missions and to track 
marine mammal observations.
    (c) Aerial surveys--Pre-mission aerial surveys and post-mission 
aerial surveys will be conducted. Pre-mission surveys would begin 
approximately one hour prior to detonation. Post-detonation monitoring 
surveys will commence once the mission has ended or, if required, as 
soon as personnel declare the mission area safe. The proposed 
monitoring area would be approximately 8 miles (13 kilometers) from the 
target area radius around the impact point, with surveys typically 
flown in a star pattern. Aerial surveys would be conducted at an 
altitude of about 200 feet, but altitude may vary somewhat depending on 
sea state and atmospheric conditions. If adverse weather conditions 
preclude the ability for aircraft to safely operate, missions would 
either be delayed until the weather clears or cancelled for the day. 
The observers will be provided with the GPS location of the impact 
area. Once the aircraft reaches the impact area, pre-mission surveys 
typically last for 30 minutes, depending on the survey pattern. The 
aircraft may fly the survey pattern multiple times.
    (d) The Holder of the LOA is required to:
    (1) Submit a draft report to NMFS OPR on all monitoring conducted 
under the LOA within 90 days of the completion of marine mammal 
monitoring, or 60 days prior to the issuance of any subsequent LOA for 
projects at the PMRF, whichever comes first. A final report shall be 
prepared and submitted within 30 days following resolution of comments 
on the draft report from NMFS. This report must contain the 
informational elements described in the Monitoring Plan, at a minimum 
(see www.nmfs.noaa.gov/pr/permits/incidental/construction.htm), and 
shall also include:
    (i) Date and time of each LRS WSEP mission;
    (ii) A complete description of the pre-exercise and post-exercise 
activities related to mitigating and monitoring the effects of LRS WSEP 
missions on marine mammal populations; and
    (iii) Results of the monitoring program, including numbers by 
species/stock of any marine mammals noted injured or killed as a result 
of the LRS

[[Page 21184]]

WSEP mission and number of marine mammals (by species if possible) that 
may have been harassed due to presence within the zone of influence.
    (2) The draft report will be subject to review and comment by NMFS. 
Any recommendations made by NMFS must be addressed in the final report 
prior to acceptance by NMFS. The draft report will be considered the 
final report for this activity under the LOA if NMFS has not provided 
comments and recommendations within 90 days of receipt of the draft 
report.
    (e) Reporting injured or dead marine mammals:
    (1) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the LOA, 
such as an injury for species not authorized (Level A harassment), 
serious injury, or mortality, 86 FWS shall immediately cease the 
specified activities and report the incident to the Office of Protected 
Resources, NMFS, and the Pacific Islands Regional Stranding 
Coordinator, NMFS. The report must include the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with 86 FWS to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The 86 FWS may not 
resume their activities until notified by NMFS.
    (3) In the event that 86 FWS discovers an injured or dead marine 
mammal, and the lead observer determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition), 86 FWS shall immediately 
report the incident to the Office of Protected Resources, NMFS, and the 
Pacific Islands Regional Stranding Coordinator, NMFS.
    (4) The report must include the same information identified in 
paragraph (e)(i) of this section. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with 86 FWS 
to determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (5) In the event that 86 FWS discovers an injured or dead marine 
mammal, and the lead observer determines that the injury or death is 
not associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), 86 FWS shall report the incident to 
the Office of Protected Resources, NMFS, and the Pacific Islands 
Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. 
The 86 FWS shall provide photographs or video footage or other 
documentation of the stranded animal sighting to NMFS.
    (f) Additional Conditions. (1) The Holder of the LOA must inform 
the Director, Office of Protected Resources, NMFS, (301-427-8400) or 
designee (301-427-8401) prior to the initiation of any changes to the 
monitoring plan for a specified mission activity.
    (2) A copy of the LOA must be in the possession of the safety 
officer on duty each day that long range strike missions are conducted.
    (3) The LOA may be modified, suspended or withdrawn if the holder 
fails to abide by the conditions prescribed herein, or if NMFS 
determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.


Sec.  218.56  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, 86 FWS must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, 86 FWS must apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, 86 FWS must 
apply for and obtain a modification of the LOA as described in Sec.  
218.57.
    (e) The LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) The number of marine mammals, by species and age class, 
authorized to be taken;
    (3) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species of marine mammals authorized for taking, on 
its habitat, and on the availability of the species for subsistence 
uses; and
    (4) Requirements for monitoring and reporting.
    (f) Issuance of an LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA will be published in the 
Federal Register within 30 days of a determination.


Sec.  218.57  Renewals and Modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 and Sec.  218.56 of this 
chapter for the activity identified in Sec.  218.50(a) will be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal request by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis illustrating the 
change, and solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 and Sec.  218.56 of this 
chapter for the activity identified in Sec.  218.50(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with 86 FWS regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.

[[Page 21185]]

    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
are:
    (A) Results from 86 FWS's monitoring from previous years;
    (B) Results from other marine mammal and sound research or studies; 
and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified LOAs issued pursuant to Sec.  216.106 and 
218.50 of this chapter, an LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within 30 days of the action.


218.58   [Reserved]


218.59   [Reserved]

[FR Doc. 2017-09137 Filed 5-4-17; 8:45 am]
 BILLING CODE 3510-22-P