40132 Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: Background The MMPA prohibits the ‘‘take’’ of National Oceanic and Atmospheric Purpose for Regulatory Action marine mammals, with certain Administration These regulations, issued under the exceptions. Sections 101(a)(5)(A) and authority of the MMPA (16 U.S.C. 1361 (D) of the MMPA (16 U.S.C. 1361 et 50 CFR Part 218 et seq.), establish a framework for seq.) direct the Secretary of Commerce [190731–0008] authorizing the take of marine mammals (as delegated to NMFS) to allow, upon incidental to the Navy’s use of RIN 0648–BI42 request, the incidental, but not SURTASS LFA sonar systems onboard intentional, taking of small numbers of U.S. Navy surveillance ships for training Takes of Marine Mammals Incidental to marine mammals by U.S. citizens who and testing activities (categorized as Specified Activities: Taking Marine engage in a specified activity (other than military readiness activities) conducted Mammals Incidental to U.S. Navy commercial fishing) within a specified under the authority of the Secretary of Surveillance Towed Array Sensor geographical region if certain findings the Navy in the western and central System Low Frequency Active Sonar are made and either regulations are North Pacific Ocean and eastern Indian Training and Testing in the Central and issued or, if the taking is limited to Ocean. Western North Pacific Ocean and harassment, an incidental harassment Eastern Indian Ocean NMFS received an application from authorization may be issued following the Navy requesting regulations and an notice and opportunity for public AGENCY: National Marine Fisheries associated letter of authorization (LOA) comment. Service (NMFS), National Oceanic and to take individuals of multiple species Authorization for incidental takings Atmospheric Administration (NOAA), and stocks of marine mammals (‘‘Navy’s shall be granted if NMFS finds that the Commerce. rulemaking/LOA application’’ or taking will have a negligible impact on ACTION: Final rule; notification of ‘‘Navy’s application’’) by Level B the species or stock(s) and will not have issuance of Letter of Authorization. harassment incidental to SURTASS LFA an unmitigable adverse impact on the sonar activities. Please see availability of the species or stock(s) for SUMMARY: NMFS, upon request from the ‘‘Background’’ below for definitions of taking for subsistence uses (where U.S. Navy (Navy) issues these harassment. This final rule establishes a relevant). Further, NMFS must prescribe regulations pursuant to the Marine framework under the authority of the the permissible methods of taking and Mammal Protection Act (MMPA) to MMPA (16 U.S.C. 1361 et seq.) to allow other means of effecting the least govern the taking of marine mammals for the authorization of take of marine practicable adverse impact on the incidental to the use of Surveillance mammals incidental to the Navy’s affected species or stocks and their Towed Array Sensor System Low specified activities. habitat, paying particular attention to Frequency Active (SURTASS LFA) Legal Authority for the Final Action rookeries, mating grounds, and areas of sonar systems onboard U.S. Navy similar significance, and on the surveillance ships for training and Section 101(a)(5)(A) of the MMPA (16 availability of such species or stocks for testing activities conducted under the U.S.C. 1371(a)(5)(A)) generally directs taking for certain subsistence uses authority of the Secretary of the Navy in the Secretary of Commerce to allow, (referred to in shorthand as the western and central North Pacific upon request, the incidental, but not ‘‘mitigation’’), and requirements Ocean and eastern Indian Ocean intentional taking of small numbers of pertaining to the monitoring and (SURTASS LFA sonar activities) marine mammals by U.S. citizens who reporting of such takings. beginning August 2019. These engage in a specified activity (other than The 2004 NDAA (Pub. L. 108–136) regulations, which allow for the commercial fishing) within a specified removed the ‘‘small numbers’’ and issuance of a Letter of Authorization geographical region for up to five years ‘‘specified geographical region’’ (LOA) for the incidental take of marine if, after notice and public comment, the limitations indicated above and mammals during the described activities agency makes certain findings and amended the definition of ‘‘harassment’’ and timeframes, prescribe the issues regulations that set forth as it applies to a ‘‘military readiness permissible methods of taking and other permissible methods of taking and other activity’’ to read as follows (Section means of effecting the least practicable means of effecting the least practicable 3(18)(B) of the MMPA): (i) Any act that adverse impact on marine mammal adverse impact (LPAI) on the affected injures or has the significant potential to species or stocks and their habitat, and species or stocks and their habitat, as injure a marine mammal or marine establish requirements pertaining to the well as monitoring and reporting mammal stock in the wild (Level A monitoring and reporting of such taking. requirements. Section 101(a)(5)(A) of Harassment); or (ii) Any act that DATES: Effective on August 12, 2019, the MMPA and the implementing disturbs or is likely to disturb a marine through August 11, 2026. regulations at 50 CFR part 216, subpart mammal or marine mammal stock in the ADDRESSES: A copy of the Navy’s I provide the legal basis for issuing this wild by causing disruption of natural application and supporting documents, final rule and any associated LOAs. As behavioral patterns, including, but not as well as a list of the references cited described in the Background section, limited to, migration, surfacing, nursing, in this document, may be obtained the MMPA has been amended in a breeding, feeding, or sheltering, to a online at: www.fisheries.noaa.gov/ number of ways when the specified point where such behavioral patterns national/marine-mammal-protection/ activity is a military readiness activity, are abandoned or significantly altered incidental-take-authorizations-military- including most recently in 2018 to (Level B Harassment). In addition, the readiness-activities. In case of problems extend the maximum authorization FY 2004 NDAA amended the MMPA as accessing these documents, please call period under section 101(a)(5)(A) from it relates to military readiness activities the contact listed below (see FOR five to seven years for Department of and the incidental take authorization FURTHER INFORMATION CONTACT). Defense military readiness activities. As (ITA) process such that ‘‘least FOR FURTHER INFORMATION CONTACT: directed by this legal authority, this practicable adverse impact’’ shall Wendy Piniak, Office of Protected final rule contains mitigation, include consideration of personnel Resources, NMFS, (301) 427–8401. monitoring, and reporting requirements. safety, practicality of implementation, VerDate Sep<11>2014 18:45 Aug 12, 2019 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\13AUR2.SGM 13AUR2 jspears on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations 40133 and impact on the effectiveness of the defined above. The Navy requests 2017, the Deputy Secretary of Defense, military readiness activity. As authorization to take, by Level B after conferring with the Secretary of mentioned above, the NDAA for FY Harassment, individuals from 139 Commerce, determined that it was 2019 amended the MMPA to extend the stocks of 46 species of marine mammals necessary for the national defense to period of permitted incidental takings of (10 species of mysticete (baleen) whales, exempt all military readiness activities marine mammals covered by section 31 species of odontocete (toothed) that use SURTASS LFA sonar from 101(a)(5)(A) in the course of specified whales, and 5 species of pinnipeds compliance with the requirements of the military readiness activities from five to (seals and sea lions)). This rule also MMPA for a period of up to two years seven years. covers the authorization of take of beginning August 13, 2017, through The authorization of incidental taking animals from additional associated August 12, 2019, or until such time under section 101(a)(5)(A) requires stocks of marine mammals not listed when NMFS issues regulations and an promulgation of activity-specific here, should one or more of the stocks LOA under MMPA section 101(a)(5)(A) regulations following notice and identified in this rule be formally for military readiness activities opportunity for public comment. Under separated into multiple stocks, provided associated with the use of SURTASS NMFS’ implementing regulations for NMFS is able to confirm the necessary LFA sonar, whichever is earlier. During section 101(a)(5)(A), a Letter of findings for the newly identified stocks. the period of the National Defense Authorization (LOA) also is required to As discussed later in this document, Exemption (NDE) (available at http:// conduct activities pursuant to any incidental takes due to SURTASS LFA www.surtass-lfa-eis.com/wp-content/ activity-specific regulations (50 CFR sonar will be limited to Level B uploads/2018/01/SURTASS_LFA_NDE_ 216.106). harassment. No takes by Level A 10Aug17.pdf), all military readiness Summary of Request harassment are authorized, as Level A activities that involve the use of harassment is considered unlikely and SURTASS LFA sonar were required to On June 4, 2018, NMFS received a will be avoided through the comply with all mitigation, monitoring, request from the Navy for authorization implementation of the Navy’s mitigation and reporting measures set forth in the to take, by Level B harassment, 46 measures, as discussed below. NDE for SURTASS LFA sonar, which species of marine mammals incidental In previous SURTASS LFA sonar were based on the measures included in to the use of SURTASS LFA sonar rulemakings, NMFS authorized some NMFS’ prior (2012) final rule (77 FR onboard U.S.