Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Renewal of U.S. Navy Target and Missile Launch Activities on San Nicolas Island, 38863-38868 [2020-13860]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 125 (Monday, June 29, 2020)]
[Notices]
[Pages 38863-38868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13860]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA244]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Renewal of U.S. Navy Target and 
Missile Launch Activities on San Nicolas Island

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

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

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SUMMARY: In accordance with the regulations implementing the Marine

[[Page 38864]]

Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a Renewal incidental harassment authorization 
(IHA) to U.S. Navy (Navy) to incidentally harass marine mammals 
incidental to target and missile launch activities on San Nicolas 
Island (SNI).

DATES: This Renewal IHA is valid from June 19, 2020 through June 11, 
2021.

FOR FURTHER INFORMATION CONTACT: Bonnie DeJoseph, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization is provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical or nearly identical, or nearly identical, activities as 
described in the Description of the Specified Activities and 
Anticipated Impacts section of this notice is planned or (2) the 
activities as described in the Description of the Specified Activities 
and Anticipated Impacts section of this notice would not be completed 
by the time the IHA expires and a Renewal would allow for completion of 
the activities beyond that described in the Dates and Duration section 
of the initial notice, provided all of the following conditions are 
met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity.'' The activity for which incidental take of marine 
mammals is being requested addressed here qualifies as a military 
readiness activity.

History of Request

    On June 12, 2019, NMFS issued an IHA to the Navy to take marine 
mammals incidental to U.S. Navy Target and Missile Launch Activities on 
San Nicolas Island, California (84 FR 28462; June 19, 2019), effective 
from June 12, 2019 through June 11, 2020. On April 14, 2020, NMFS 
received an application for the Renewal of that initial IHA. As 
described in the application for Renewal IHA, the activities for which 
incidental take is requested are identical. As required, the applicant 
also provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-target-and-missile-launch-activities-san-nicolas-0) which confirms that 
the applicant has implemented the required mitigation and monitoring, 
and which also shows that no impacts of a scale or nature not 
previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    The Navy will continue a target and missile launch program from two 
launch sites on SNI. Missiles vary from tactical and developmental 
weapons to target missiles used to test defensive strategies and other 
weapons systems. Some launch events involve a single missile, while 
others involve the launch of multiple missiles in quick succession. The 
Navy plans to conduct a maximum of 40 missile launch events from SNI, 
but the total may be less than 40 depending on operational 
requirements. No more than 25 launches have occurred in any single year 
since 2001 (Table 1).

[[Page 38865]]



 Table 1--The Total Number of Launches That Have Occurred Since 2001 at
                                   SNI
------------------------------------------------------------------------
                                                              Number of
                        Time period                            launches
------------------------------------------------------------------------
August 2001 to October 2005................................           69
February 2006 to December 2009.............................           11
January 2010 to December 2014..............................           36
December 2015 to November 2018.............................           30
June 2019 to March 2020....................................           12
------------------------------------------------------------------------

Launch timing will be determined by operational, meteorological, and 
logistical factors. Up to 10 of the 40 launches may occur at night; 
night launches are also dependent on operational requirements and will 
only be conducted when required by test objectives. These planned 
activities are identical to those in the Initial IHA and are described 
in detail in the Initial Proposed IHA (84 FR 18809; May 2, 2019).
    Anticipated impacts, which would consist of Level B harassment of 
marine mammals, would also be identical to those analyzed and 
authorized in the Initial IHA (84 FR 28462; June 19, 2019). The Navy's 
request is for take of California sea lions (Zalophus californianus), 
harbor seals (Phoca vitulina), and northern elephant seals (Mirounga 
angustirostris) by Level B harassment only. All flights over SNI will 
be subsonic; therefore, there will be no sonic booms that could affect 
pinnipeds hauled out at sites on SNI. Neither Navy nor NMFS expects 
serious injury or mortality to result from this activity.

Detailed Description of the Activity

    A detailed description of the target and missile launch activities 
for which take is authorized here may be found in the notices of the 
Proposed and Final IHAs for the initial authorization. The location, 
timing, and nature of the activities, including the types of equipment 
planned for use, are identical to those described in the previous 
notices. This Renewal would be effective for a period of one year from 
the date of issuance.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the notices of the 
Proposed and Final IHAs for the initial authorization. NMFS has 
reviewed the monitoring data from the initial IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects which species or stocks have the 
potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
section contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for the authorized 
take may be found in the Notices of the Proposed IHA for the initial 
authorization. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects our 
initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
Proposed and Final IHAs for the initial authorization. Specifically, 
the source levels, days of operation, and marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Further, the 2019 monitoring data received from the Navy 
suggests that the actual number of marine mammals taken during the Navy 
launches remained well under the number authorized in the initial IHA 
and in this Renewal IHA. The stocks taken, methods of take, and types 
of take remain unchanged from the previously issued IHA, as do the 
number of takes, which are indicated below in Table 2.

                         Table 2--Proposed Level B Harassment Take for Pinnipeds on SNI
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                                          Authorized
                Species                     Level B      Percent of stock abundance taken by Level B harassment
                                          harassment        (assuming each instance is different individual)
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California sea lion...................          11,000  257,606 (4.27 percent).
Harbor seal...........................             480  30,968 (less than 2 percent).
Northern elephant seal................              40  179,000 (less than 1 percent).
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document remains accurate. The following measures are authorized 
for this renewal:

Mitigation

Operation Restrictions

    Personnel must not enter pinniped haulouts. Personnel may be 
adjacent to pinniped haulouts prior to and following a launch for 
monitoring purposes. All aircraft and helicopter flight paths must 
maintain a minimum distance of 305 meters (m) from recognized seal 
haulouts and rookeries, to the maximum extent practicable. Missiles 
must not cross over pinniped haulouts at elevations less than 305 m 
(1,000 feet (ft)).
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
takes are met, the Navy must consult with NMFS before the next launch 
event.
    The Navy must review the launch procedure and monitoring methods, 
in cooperation with NMFS, if any incidents of injury or mortality of a 
pinniped are discovered during post-launch surveys, or if surveys 
indicate possible effects to the distribution, size, or productivity of 
the affected pinniped populations as a result of the specified 
activities. If necessary, appropriate changes must be made through 
modification to this Authorization prior

[[Page 38866]]

to conducting the next launch of the same vehicle.

Timing Restrictions

    The Navy may not conduct more than 10 launch events at night. 
Launches must not occur during February through April, to the maximum 
extent practicable. Launches must be limited during January through 
February and June through July, to the maximum extent practicable.
Monitoring Measures
    The Navy must obtain visual, video and audio, and acoustic data 
from up to three pinniped haulout monitoring sites during each launch 
event, to the maximum extent practicable. The holder of this IHA is 
required to abide by the following marine mammal and acoustic 
monitoring requirements:

Visual Monitoring

    Marine mammal monitoring must be conducted by qualified, trained 
protected species observers. The following visual monitoring measures 
will be conducted during preparations for video and acoustic 
monitoring, as described in Video and Audio Monitoring section below: 
1) Visual monitoring must be conducted before and after launches, 
including scanning the affected haulout beaches and counting the number 
and species of pinnipeds over a 15-30 minute period; 2) Prior to a 
launch event, Navy personnel must make observations of the monitored 
pinniped haulout and record the numbers and species of pinnipeds 
observed on field data sheets; and 3) After a launch event, Navy 
personnel must return to the monitored pinniped haulout and record the 
numbers and species of pinnipeds that remain on the haulout sites and 
any notable changes.

Video and Audio Monitoring

    Before each launch, Navy personnel must set up or activate up to 
three video cameras (either high-definition video cameras, or Forward-
Looking Infrared Radiometer (FLIR) thermal imaging cameras for night 
launch events) such that they overlook the monitoring sites. Each 
camera will be set to record a focal group of pinnipeds within the 
haulout for the maximum recording time permitted by the camera 
capacity. Video and audio monitoring must be conducted by recording 
continuously from a minimum of two hours before the event to 
approximately one hour after the event in order to:
    Determine the composition of the focal subgroup of pinnipeds 
(approximate numbers and sexes of each age class).
    Describe the launch event, including documenting the occurrence of 
a launch event, the type of target/missile launched, the timing of the 
event, and duration of audibility.
    Document movements of pinnipeds, including number and proportion 
moving, direction and distance moved, and pace of movement (slow or 
vigorous). In addition, the following variables concerning the 
circumstances of the observations must also be recorded from the 
videotape or from direct observations at the site:
    1. Study location,
    2. Local time,
    3. Weather (including an estimate of wind strength and direction, 
and presence of precipitation), and
    4. Tide state.
    Identify and document any change in behavior or movements of 
pinnipeds that occurs at the time of the launch event.
    Compare received levels of launch sound with pinniped responses, 
based on acoustic and behavioral data from up to three monitoring sites 
at different distances from the launch site and missile path during 
each launch; from the data accumulated across a series of launches, to 
attempt to establish the ``dose-response'' relationship for launch 
sounds under different launch conditions if possible.
    Ascertain periods or launch conditions when pinnipeds are most and 
least responsive to launch activities. Lastly, document take by 
harassment: (1) Pinnipeds that are exposed to launch sounds strong 
enough to cause a temporary threshold shift (TTS); or (2) Pinnipeds 
that leave the haulout site, or exhibit prolonged movement (greater 
than 10 m) or prolonged behavioral changes (such as pups separated from 
mothers) relative to their behavior immediately prior to the launch.

Acoustic Monitoring

    The Navy must use up to four autonomous audio recorders to make 
acoustical measurements. During each launch, these must be located as 
close as practicable to pinniped haulout monitoring sites and near the 
launch pad itself. The monitored pinniped haulout sites must typically 
include one site as close as possible to the missile's planned flight 
path and one or two locations farther from the flight path within the 
area of potential impact with pinnipeds present. Autonomous Terrestrial 
Acoustic Recorders must be deployed at the recording locations on the 
launch day well before the launch time, and must be retrieved later the 
same day. Acoustic measurements must be collected and reported 
consistent with section 13.2 of the Navy's application.
Reporting
    A draft report on all monitoring conducted under the IHA must be 
submitted within 90 calendar days of the completion of marine mammal 
and acoustic monitoring or 60 days prior to the issuance of any 
subsequent IHA or incidental take regulations for this project, 
whichever comes first. A final report must 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 Section 5 of the Authorization.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as serious injury, or mortality, the Navy must immediately cease 
the specified activities and report the incident to the NMFS Office of 
Protected Resources (301-427-8401) and the West Coast Stranding 
Coordinator (562-980-3230). The report must include the following 
information:
    1. Time and date of the incident;
    2. Description of the incident;
    3. Environmental conditions (e.g., wind speed and direction, cloud 
cover, and visibility);
    4. Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    5. Species identification or description of the animal(s) involved;
    6. Fate of the animal(s); and
    7. Photographs or video footage of the animal(s).
    Activities must not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the Navy to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The Navy may not 
resume their activities until notified by NMFS.
    In the event the Navy 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), the Navy must immediately report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Region Stranding Coordinator, NMFS. The report must

[[Page 38867]]

include the same information identified in 6(b)(i) of this IHA. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with the Navy to determine whether additional 
mitigation measures or modifications to the activities are appropriate.
    In the event that the Navy discovers an injured or dead large whale 
or other cetaceans, and the lead observer determines that the injury or 
death is not associated with or related to the specified activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Navy must report the incident 
to the Office of Protected Resources, NMFS, and the West Coast Region 
Stranding Coordinator, NMFS, within 24 hours of the discovery.
    This Authorization 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.

Public Comments

    A notice of NMFS' proposal to issue a Renewal IHA to the Navy was 
published in the Federal Register on June 1, 2020 (85 FR 33124). That 
notice either described, or referenced descriptions of, the Navy's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
proposed amount and manner of take, and proposed mitigation, monitoring 
and reporting measures. NMFS received a comment letter from one entity, 
the Marine Mammal Commission (Commission). The comments and our 
responses are summarized below.
    Comment 1: The Commission recommended that NMFS refrain from 
issuing the Navy's authorization renewal until after the public comment 
period closes on 16 June 2020 and all comments received are fully 
considered.
    Response: NMFS concurs and will not issue until the public comment 
period closes and all comments are considered fully.
    Comment 2: the Commission again recommends that NMFS refrain from 
issuing renewals for any authorization and instead use its abbreviated 
Federal Register notice process, which is similarly expeditious and 
fulfills NMFS's intent to maximize efficiencies. The Commission has 
further recommended that, if NMFS continues to propose to issue 
renewals, that it (1) stipulate that a renewal is a one-time 
opportunity (a) in all Federal Register notices requesting comments on 
the possibility of a renewal, (b) on its web page detailing the renewal 
process, and (c) in all draft and final authorizations that include a 
term and condition for a renewal and, (2) if NMFS declines to adopt 
this recommendation, explain fully its rationale for not doing so.
    Response: While NMFS has consistently expressed the intent to 
implement Renewals as one-time opportunities, as the Commission noted, 
NMFS recently concurred with the Commission's recommendation to more 
explicitly describe this intent in all Federal Register notices and 
IHAs, and the website. However, NMFS does not agree with the 
Commission's recommendation to refrain from issuing Renewals and, 
therefore, does not adopt the Commission's recommendation. NMFS has 
addressed the Commission's concerns in multiple FR notices (e.g., 84 FR 
52464, October 2, 2019), but has also committed to provide a detailed 
explanation of its decision within 120 days, as required by section 
202(d) of the MMPA.
    Comment 3: The Commission recommends that NMFS review applications 
and Federal Register notices more thoroughly prior to submitting them 
to the Federal Register for public comment.
    Response: Renewal language was erroneously included in the draft 
IHA and NMFS appreciates the Commission's comment noting it. NMFS will 
continue to review Federal Register notices as thoroughly as possible 
given available resources and required timelines.
    Comment 4: The Commission recommends that NMFS review their 
comments on the initial IHA.
    Response: NMFS reviewed the Commission's comments on the initial 
IHA and the responses published in the Federal Register notice 
announcing the issuance of the final initial 2019 IHA (84 FR 28462; 
June 19, 2019) remain valid.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHA with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the Renewal IHA qualifies to be categorically 
excluded from further NEPA review.

Determinations

    The action of this Renewal IHA, target and missile launch 
activities, will be identical to the activities analyzed in the Initial 
IHA. Based on the analysis detailed in the notice of the Initial IHA 
authorization of the likely effects of the specified activity on marine 
mammals and their habitat, and taking into consideration the 
implementation of the monitoring and mitigation measures, NMFS found 
that the total marine mammal take from the activity will have a 
negligible impact on all affected marine mammal species or stocks.
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. Based on the information and analysis contained here and 
in the referenced documents, NMFS has determined the following: (1) The 
required mitigation measures will affect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the Navy's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (4) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. No incidental take of ESA-listed species is proposed 
for authorization or expected to result from this activity. Therefore, 
NMFS has determined that formal consultation under section 7 of the ESA 
is not required for this action.

[[Page 38868]]

Renewal

    NMFS has issued a Renewal IHA to the Navy for the take of marine 
mammals incidental to conducting target and missile launch activities 
on SNI, California from June 19, 2020 through June 11, 2021.

    Dated: June 23, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-13860 Filed 6-26-20; 8:45 am]
 BILLING CODE 3510-22-P