39684 Federal Register / Vol. 82, No. 161 / Tuesday, August 22, 2017 / Rules and Regulations 

number and have not changed since 

they were last approved by OMB. The 

rules contain information collection 

requirements necessary for the 

Commission to determine compliance of 

proposed equipment with its rules. 

The following is a description of the 

information collection requirements for 

which the Commission received OMB 

approval: 

Section 96.49—Equipment 

Authorization: (a) Each transmitter used 

for operation under this part and each 

transmitter marketed as set forth in 

section 2.803 of this chapter must be of 

a type which has been certificated for 

use under this part. (b) Any 

manufacturer of radio transmitting 

equipment to be used in these services 

must request equipment authorization 

following the procedures set forth in 

subpart J of part 2 of this chapter. 

Section 96.51—RF Safety: Licensees 

and manufacturers are subject to the 

radio frequency radiation exposure 

requirements specified in sections 

1.1307(b), 1.1310, 2.1091, and 2.1093 of 

this chapter, as appropriate. 

Applications for equipment 

authorization of Mobile or Portable 

devices operating under this section 

must contain a statement confirming 

compliance with these requirements for 

both fundamental emissions and 

unwanted emissions and technical 

information showing the basis for this 

statement must be submitted to the 

Commission upon request. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary, Office of the Secretary. 

[FR Doc. 2017–17637 Filed 8–21–17; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

[Docket No. 170201135–7754–02] 

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: Final rule. 

SUMMARY: Upon application from the 

U.S. Air Force (USAF) 86 Fighter 

Weapons Squadron (hereinafter referred 

to as 86 FWS), NMFS is issuing 

regulations under the Marine Mammal 

Protection Act (MMPA) for the taking of 

marine mammals incidental to Long 

Range Strike (LRS) Weapons System 

Evaluation Program (WSEP) exercises 

on the Barking Sands Underwater Range 

Expansion (BSURE) of the Pacific 

Missile Range Facility (PMRF) off Kauai, 

Hawaii. These regulations allow NMFS 

to issue a Letter of Authorization (LOA) 

for the incidental take of marine 

mammals during the USAF 86 FWS’s 

specified activities carried out during 

the rule’s period of effectiveness, set 

forth the permissible methods of taking, 

set forth other means of effecting the 

least practicable adverse impact on 

marine mammal species or stocks and 

their habitat, and set forth requirements 

pertaining to the monitoring and 

reporting of the incidental take. The 

specific activities are classified as 

military readiness activities. 

DATES: Effective on August 21, 2017, 

through August 22, 2022. 

ADDRESSES: To obtain an electronic 

copy of the USAF 86 FWS’s LOA 

application or other referenced 

documents, visit the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental/military.htm. Documents 

cited in this notice may also be viewed, 

by appointment, during regular business 

hours, at 1315 East-West Highway, 

SSMC III, Silver Spring, MD 20912. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the 86 FWS’s LOA 

application, NMFS proposed rule (82 FR 

21156; May 5, 2017), the 86 FWS’s Final 

Environmental Assessment/Overseas 

Environmental Assessment (EA/OEA) 

for the Long Range Strike Weapon 

Systems Evaluation Program at Kauai, 

Hawaii, and NMFS Finding of No 

Significant Impact (FONSI) may be 

obtained by visiting the internet at: 

http://www.nmfs.noaa.gov/pr/permits/ 

incidental/military.htm. Documents 

cited in this notice may also be viewed, 

by appointment, during regular business 

hours, at the aforementioned address 

(see ADDRESSES). 

Background 

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 rule and any subsequent 

LOA pursuant to those regulations. As 

directed by this legal authority, this 

final rule contains mitigation, 

monitoring, and reporting requirements. 

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 Secretary sets forth permissible 

methods of taking and other means of 

effecting the least practicable impact on 

the species or stock and its habitat. 

NMFS has defined ‘‘negligible impact’’ 

in 50 CFR 216.103 as ‘‘an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival.’’ 

The 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). 

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 the 


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proposed action (i.e., the issuance of 

regulations and an LOA) with respect to 

potential impacts on the human 

environment. 

Accordingly, NMFS has adopted the 

86 FWS’s EA/OEA, after an independent 

evaluation of the document found that 

it included adequate information 

analyzing the effects on the human 

environment of issuing incidental take 

authorizations. The 86 FWS made the 

draft EA/EOA available for public 

comment from July 27 through August 

26, 2016; no public comments were 

received. The final EA/EOA is available 

at http://www.afcec.af.mil/What-We-Do/ 

Environment/Pacific-Range-StrikeEnvironmental-Assessment/. On August 

11, 2017, NMFS issued a Finding of No 

Significant Impact (FONSI) which is 

available for review at http://

www.nmfs.noaa.gov/pr/permits/ 

incidental/military.htm. 

Summary of Request 

On December 21, 2016, NMFS 

received an adequate and complete 

application from the 86 FWS for 

regulations for the taking of 16 species 

of marine mammals representing 16 

stocks incidental to LRS WSEP activities 

in the BSURE area of the PMRF off 

Kauai, Hawaii. On January 6, 2017, we 

published a notice of receipt of the 86 

FWS’s application in the Federal 

Register (82 FR 1702), requesting public 

comment. We considered those 

comments and subsequently published 

a notice of proposed rulemaking in the 

Federal Register on May 5, 2017 (82 FR 

21156), again requesting public 

comments. Since publishing the 

proposed rule, the 86 FWS revised the 

number of munitions it would deploy 

annually, significantly decreasing the 

amount of live weapon explosions per 

year. This decreases the number of 

anticipated and authorized takes for this 

activity (see ‘‘Estimated Take’’ section) 

compared to what was presented in the 

proposed rule. In addition, the USAF 86 

FWS has worked with NMFS to greatly 

enhance marine mammal monitoring, 

resulting in increased detection 

probabilities, and thereby decreasing the 

likelihood of take of marine mammals. 

NMFS previously issued an incidental 

harassment authorization (IHA) to the 

86 FWS authorizing the taking of marine 

mammal species incidental to similar 

activities in 2016 (81 FR 67971; October 

3, 2016). The 86 FWS complied with all 

the requirements (e.g., mitigation, 

monitoring, and reporting) of the 

previous IHA; information regarding 

their monitoring results may be found in 

the Potential Effects of the Specified 

Activities on Marine Mammals and their 

Habitat section of this final rule. 

Summary of Major Provisions Within 

the Final Rule 

Following is a summary of some of 

the major provisions applicable to 86 

FWS’s LRS WSEP training missions. We 

have determined that 86 FWS’s 

adherence to the mitigation, monitoring, 

and reporting measures included in this 

rule would achieve the least practicable 

adverse impact on the affected marine 

mammals. The provisions, which are 

generally designed to minimize the 

duration and total volume of explosive 

detonations, include: 

• Restricting missions to daylight 

hours, only on weekdays, and only 

during the summer (June through 

August) or fall (September through 

November) months. 

• Limiting activity to one mission per 

calendar year with the 2017 mission 

limited to one day (dropping 8 small 

diameter bombs only) and the 2018 

through 2022 missions limited to 4 days 

of training over a 5-day period. We note 

the proposed rule stated that training 

would occur for five days per mission; 

however, the 86 FWS has clarified the 

fifth day is a contingency day and no 

training will occur on the fifth day if the 

scheduled four days of training are 

completed. 

• Limiting each mission day to four 

hours of training. This training duration 

limitation was presented in the 

proposed rule. 

• Reducing the number and type of 

munitions. We note this constitutes a 40 

to 92 percent reduction in total 

munitions from the proposed rule 

depending upon mission year. 

• Conducting a systematic aerial 

survey covering 8 miles (mi) (13 

kilometers (km)) using military aircraft 

equipped with sensor pods (e.g., Sniper 

advanced targeting pods) before, during 

and after each training day. A 

helicopter-based survey (i.e., the 

monitoring method presented in the 

application and proposed rule) will take 

place only as back-up should a sensor 

not be available. This monitoring plan is 

to be implemented in lieu of the 

helicopter surveys included in the 

proposed rule. 

• Monitoring for marine mammals 

within the weapon impact area using 

range cameras stationed on Makaha 

Ridge before, during and after training 

each mission day. This requirement 

constitutes an additional method of 

monitoring for marine mammals that 

was not included in the proposed rule. 

• Delaying mission activities if a 

marine mammal is observed in the 

designated exclusion zone (2.3 mile (mi) 

(3,704 m) for all missions and delaying 

missions if a marine mammal is 

observed within the Level A and/or 

Level B harassment zone but no take is 

authorized, resuming only after the 

animal is observed exiting the exclusion 

zone or the exclusion zone has been 

clear of any additional sightings for a 

period of 30 minutes. In the proposed 

rule, a mitigation measure was included 

that required mission delays if a 

protected species was observed within 

an impact zone; however, we have 

authorized the taking of marine 

mammals; therefore, this measure has 

been altered to a more practicable, 

consistent, and specified distance from 

the target site, which would avoid take 

in a manner that is not authorized (e.g., 

mortality, slight lung injury, Level A 

harassment of mid-frequency cetaceans). 

• Shifting the target site as far from a 

marine mammal observation as possible 

if it has been determined the mission 

may continue without taking a marine 

mammal in a manner not authorized. 

This mitigation measure is new to the 

final rule in an effort to further 

minimize impacts to marine mammals. 

• Delaying missions if adverse 

weather conditions impair the ability of 

aircraft to operate safely. This measure 

was included in the proposed rule. 

• Notifying NMFS Pacific Islands 

Regional Office (PIRO) and Pacific 

Islands Region Marine Mammal 

Stranding Network of scheduled 

mission activities at least 72 hours prior 

to executing training exercises, within 

24 hours of mission completion, and 

immediately if a dead or injured marine 

mammal is sighted. 

• Submitting a report of marine 

mammal surveys and LRS WSEP 

activities to the Office of Protected 

Resources (OPR) and PIRO 90 days after 

expiration of the current authorization. 

If subsequent regulations and LOA are 

requested, a draft report will be 

included with the incidental take 

authorization application. 

• Collecting passive acoustic 

monitoring (PAM) data using the U.S. 

Navy’s hydrophones on the PMRF range 

before, during, and after LRS WSEP 

missions. These data will be stored at 

the Space and Naval Warfare Systems 

Command (SPAWAR) and analyzed to 

better understand the effects of WSEP 

training activities on marine mammals. 

A report will be submitted to NMFS 90 

days after expiration of this rule or 

included with an application requesting 

future MMPA authorizations, whichever 

is first. Please see the Monitoring and 

Reporting section for more details. 

• Delaying training if an 

unauthorized take of a marine mammal 

(i.e., mortality or serious injury; take of 

marine mammal species not authorized) 

occurs, and reporting the incident to 


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39686 Federal Register / Vol. 82, No. 161 / Tuesday, August 22, 2017 / Rules and Regulations 

OPR, PIRO, and the Pacific Islands 

Region Stranding Network 

representative immediately followed by 

a report to NMFS within 24 hours. 

• Notifying OPR, PIRO, and the 

Pacific Island Region Stranding Network 

immediately, should a marine mammal 

be sighted that is dead or seriously 

injured, when such mortality or injury 

is clearly not a result of LRS WSEP 

activities (e.g., exhibiting advanced 

decomposition and/or scavenger 

wounds). 

Detailed Description of the Specified 

Activity 

The proposed rule (82 FR 21156; May 

5, 2017) and the 86 FWS EA/OEA 

include a complete description of the 

USAF’s specified training activities for 

which NMFS is authorizing incidental 

take of marine mammals in this final 

rule. Surface and sub-surface 

detonations are the stressors most likely 

to result in impacts on marine mammals 

that could rise to the level of 

harassment. The aforementioned 

documents can be found at http://

www.nmfs.noaa.gov/pr/permits/ 

incidental/military.htm). The 

description of location, delivery aircraft, 

and weapon types remain unchanged, 

and we incorporate this description by 

reference, and provide a summary 

below. However, the 86 FWS has 

reduced the amount of live (containing 

explosive charges) missiles and bombs 

and duration of each mission that would 

occur under this rule, and we provide 

more detailed information below. 

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. 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. 

Mission training will take place on 

the U.S. Navy’s PMFR. The PMRF is the 

world’s largest instrumented, multidimensional testing and training missile 

range, covering over 1,100 square miles 

(2,800 km2) of instrumented underwater 

range and over 42,000 square miles 

(109,000 km2) of controlled airspace. 

Within the PMRF, activities would 

occur only in the BSURE area, which 

lies in Warning Area 188A (W–188A). 

Specifically, the impact area is in the 

most northern portion of the BSURE 

approximately 44 nautical miles (nmi) 

(81 km) offshore of Kauai, Hawaii, in a 

water depth of about 15,240 feet (ft) (4.6 

km) (see Figure 2–2 of 86 FWS’s 

application). The BSURE is outfitted 

with 41 recently installed replacement 

hydrophones with response of 

approximately 50 hertz (Hz) to 48 kHz. 

The 18 legacy BSURE hydrophones 

(some not operational) have responses 

of approximately 100 Hz to 19 kHz and 

are located in similar positions to some 

of the replacement hydrophones. 

Hydrophones spacing ranges from 

approximately 13,123 ft (4 km) to over 

22,966 ft (7 km), in water depths ranging 

from 5,577 ft (1.7 km) to 15,412 ft (4.7 

km). 

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 (10 ft (3 m)) the water 

surface. 

Air-to-surface training missions 

include testing of the Joint Air-toSurface Stand-off Missile/Joint Air-toSurface Stand-off Missile-Extended 

Range (JASSM/JASSM–ER), Small 

Diameter Bomb-I/II (SDB–I/II), Highspeed 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). 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 SDB–I is a 250-lb airlaunched 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 semiactive 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 TNTequivalent NEW, and the SDB–II 

contains 23 lbs NEW. The explosive 

used in both SDB–I and SDB–II is AFX– 

757. The HARM is a supersonic air-tosurface missile designed to seek and 

destroy enemy radar-equipped air 

defense systems. 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. 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 precisionguided 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 TNTequivalent NEW with multiple fusing 

options, with detonations occurring 

upon impact or with up to a 10- 

millisecond delay. The MALD is an airlaunched, expendable decoy with 

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. 

Mission aircraft may consist of fighter 

aircraft including F–16, F–15, A–10, and 

bombers such as B–1 and B–52. Weapon 

deployment will occur from at least one 

aircraft. These aircraft will be outfitted 

with sensors (e.g., target sniper pods) 

capable of observing very small targets 

from high altitudes and multiple miles 

away. Support aircraft associated with 

range clearance activities before and 

during the mission, air-to-air refueling 

operation support, and chase aircraft 

will also be outfitted with these sensors. 

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). 

All munitions would be detonated 

within a four hour timeframe daily. 

Since the publication of the proposed 

rule, the USAF clarified the five mission 

days described in the proposed rule 

actually constitute four bombing days 

and one day set aside as contingency 

(e.g., if weather or logistics prevent 

detonations on one of the four training 

days). In addition, the 86 FWS revised 

the extent of their mission by greatly 

reducing the amount of live munitions 

used each year. In total over the life of 

these regulations, the original amount of 

live munitions dropped would have 

been 530; however, that is now reduced 

to 220 live bombs and missiles for a 

total 5-year reduction of 58 percent. The 

amount of weapon reduction per year is 

provided in Table 1. 


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TABLE 1—MAXIMUM AMOUNT OF MUNITIONS, BY TYPE, TO BE RELEASED BY THE USAF 86 FWS 

Type of munition NEW 

(lb) 

Detonation 

scenario 

Number of proposed live weapon releases 

2017 2018 2019 2020 2021 

Original Final Original Final Original Final Original Final Original Final 

JASSM/JASSM–ER ..... 300 Surface ............ 6 0 6 2 6 4 6 4 6 4 

SDB–I .......................... 37 Surface ............ 30 8 30 14 30 14 30 14 30 14 

SDB–II ......................... 23 Surface ............ 30 0 30 0 30 10 30 16 30 20 

HARM .......................... 45 Surface ............ 10 0 10 6 10 6 10 10 10 10 

JDAM/LJDAM .............. 192 Subsurface 1 .... 30 0 30 16 30 16 30 16 30 16 

Annual ..................

Total .....................

................ ......................... 106 8 106 38 106 50 106 60 106 64 

% Reduction ......... ................ ......................... 92% 64% 53% 43% 40% 

Releases of live ordnance associated 

with missions conducted under this rule 

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. 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, to clear the area 

of civilian vessels and aircraft. The size 

and shape of the hazard area is 

determined by the maximum distance a 

weapon could travel in any direction 

during its descent and 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). 

Proposed mitigation, monitoring, and 

reporting measures are described in 

detail later in this document (please see 

the Mitigation and Monitoring and 

Reporting sections). 

Comments and Responses 

A notice of receipt of USAF 86 FWS’s 

application published in the Federal 

Register on January 6, 2017 (82 FR 

1702). NMFS published a proposed rule 

in the Federal Register on May 5, 2017 

(82 FR 21156). During the 30-day public 

comment period on the proposed rule, 

NMFS received comments from the 

Marine Mammal Commission (MMC), 

Dr. Robin Baird from Cascadia Research 

Collective (CRC), Earthjustice on behalf 

of the Animal Welfare Institute, Center 

for Biological Diversity, Conservation 

Council for Hawai‘i, Natural Resources 

Defense Council, and the Ocean 

Mammal Institute (herein after 

‘‘EarthJustice’’), the Center for 

Regulatory Effectiveness (CRE), and 18 

members of the general public. 

Following are the comments received 

and NMFS’ responses. 

Comment 1: The MMC was concerned 

that the methods used by the USAF to 

estimate range-to-effects (i.e., distances 

to various thresholds) are overly 

conservative and do not match the 

range-to-effects produced by the Navy 

included in the Navy’s Draft 

Environmental Impact Statement/ 

Overseas Environmental Impact 

Statement (DEIS) and Letter of 

Authorization Application for Training 

and Research, Development, Test, and 

Evaluation within the Hawaii-Southern 

California Fleet Training and Testing 

Study Area (HSTT) for Phase II. The 

MMC recommended NMFS review the 

USAF and Navy’s modeling of range-toeffects to ensure the results are 

comparable for similar munitions at the 

various thresholds, including the same 

trends in range-to-effects based on the 

same metric (i.e., SEL vs SPLpeak). The 

MMC subsequently recommended 

NMFS revise the estimated numbers of 

takes based on any changes to the rangeto-effects, and thus impact areas, after 

comparison with the Navy ranges. 

NMFS Response: The acoustic and 

take estimate models used by the USAF 

were thoroughly reviewed by NMFS 

acoustic experts. While we understand 

this approach is more simplistic than 

the sophisticated models used by the 

Navy and result in more conservative 

ranges to effects and take numbers, the 

USAF methods are scientifically sound. 

Every depth bin was treated 

independently; therefore, each has its 

own range-to-effects associated with it. 

The ranges to which the MMC refers 

(Table 5 in the proposed rule) represent 

the maximum estimated range, or 

radius, from the detonation point to the 

point for any depth bin at which the 

various thresholds extend for all 

munitions proposed to be released in a 

24-hour time period. Total exposures 

(takes) were found by taking the volume 

of a disk with a given thickness in depth 

and radius equal to the range-to-effect 

for that depth bin, multiplied by the 

dive-profile-weighted animal densities, 

and then summing all of those densityweighted disk volumes. The mitigation 

range is based on the maximum range, 

regardless of which depth that occurs, 

rather than some average range over 

depth bins or just the near-surface bins. 

Further, instead of assuming equal 

density throughout the water column, 

they combined marine mammal density 

(obtained from the Navy’s Marine 

Species Density Database (U.S. 

Department of the Navy, 2016) with 

depth information so that impact 

estimates are based on threedimensional density distributions. 

NMFS believes this is an appropriate 

and acceptable approach to determine 

the number of takes, by species, 

requested and authorized. 

Since development of the proposed 

rule, 86 FWS has reduced the amount of 

munitions it intends to detonate each 

year and clarified that each mission 

would only occur for a maximum of 

four days, annually, which represents a 

reduction from the proposed rule. The 

five days included in the proposed rule 

included one contingency day (e.g., if 

poor weather or technical difficulty 

prevents one day of training). Further, 

the 86 FWS confirmed in 2017, the 

mission consists of dropping eight small 

diameter bombs in one day. However, 

the 86 FWS will retain the same 8 mi 

(13 km) monitoring zone as in the 

proposed rule. 

Comment 2: Multiple commenters 

expressed concern that the proposed 

aerial survey that would occur prior to 

mission exercises and designed to 

trigger mitigation (e.g., shut down, delay 

of mission) is insufficient to minimize 

impacts on marine mammals for several 

reasons, including low detection 

probability in high sea states, especially 

for inconspicuous and elusive animals 


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such as dwarf sperm whales and beaked 

whales, as well as potentially using an 

inappropriate survey platform which 

may fly at altitudes and survey speeds 

prohibiting visual detection. They also 

noted the range is not in the lee of the 

island; therefore, sea states rating higher 

on the Beaufort scale are common. 

NMFS Response: The 86 FWS is 

required to conduct their missions in a 

variety of sea states and marine 

conditions that would be operationally 

realistic, while still considering the 

safety of mission personnel. Therefore, 

no restrictions on sea state are included 

in the proposed or final rule. However, 

NMFS recognizes the efficacy of aerial 

surveys at detecting marine mammals is 

reduced as sea surface conditions 

deteriorate, particularly for deep diving 

and more cryptic cetaceans (e.g., beaked 

whales). Therefore, we re-assessed the 

survey design, in concert with 

practicability, and worked with the 86 

FWS to develop a more robust 

monitoring plan. As a result, the 86 

FWS will substitute the helicopter 

survey platform with military aircraft 

(e.g., F–16) equipped with aircraft 

sensors (e.g., SNIPER target pods) 

capable of operating in high-definition 

forward-looking infrared (FLIR), highdefinition television modes using 

synthetic aperture radar (SAR), or other 

operational sensors. The sniper pod 

hangs from the underbelly of the plane 

and, in this case, the pod would be used 

to ‘‘target’’ observations of marine 

mammals. The capabilities of the 

instrumentation within aircraft far 

exceeds that of the naked eye. It is 

believed that using these assets in 

addition to conducting visual surveys 

will provide multiple opportunities to 

ensure that marine mammals potentially 

on or near the water surface within the 

required survey areas will be identified 

and can thus be avoided. In addition, 

because pilots are equipped with these 

sensors while in route to launch the 

bomb or missile, they will be 

monitoring for marine mammals on the 

flight path to the weapon impact area, 

allowing for monitoring up until right 

before missile/bomb detonation. Preduring, and post-mission day survey 

protocol is fully described in the 86 

FWS Mitigation and Monitoring Plan 

available at http://www.nmfs.noaa.gov/ 

pr/permits/incidental/military.htm. 

The 86 FWS will retain the option of 

using a helicopter to conduct the 

surveys should the target pods 

malfunction; however, this is not the 

preferred aerial platform. 

Comment 3: Multiple commenters 

recommended the 86 FWS should 

utilize the Navy’s MR3 hydrophones on 

the FRMP to conduct passive acoustic 

monitoring (PAM) for mitigation 

purposes. That is, the hydrophones 

should be monitored in real-time and 

used to call for mission delays or shutdowns. One commenter supplemented 

this recommendation by providing 

information that the instrumented 

hydrophone range at PMRF has 

frequently been used for real-time 

detection, classification and localization 

(DCL) of marine mammals on the range 

as part of research activities (Baird et al., 

2016; Baird et al., 2015; Baird et al., 

2012) and that CRC has participated in 

10 different field efforts off PMRF 

working in conjunction with the Navy 

to respond to marine mammals that are 

detected acoustically through the 

hydrophone system. Those efforts led 

the Navy to successfully direct a CRC 

small vessel to a variety of species of 

marine mammals on the range, 

including sperm whales, short-finned 

pilot whales, false killer whales, 

Blainville’s beaked whales, bottlenose 

dolphins, and rough-toothed dolphins, 

demonstrating that groups can be 

successfully localized and classified as 

to species using this method. The MMC 

also noted Helble et al. (2015) indicated 

they were able to track multiple animals 

on PMRF hydrophones in real time, 

including humpback whales, a species 

that can be problematic to localize. The 

MMC also cited Martin and Matsuyama 

(2015) as support that tracking of baleen 

whales is possible on the range. 

NMFS Response: The efficacy of 

localizing on marine mammals is 

dependent on multiple factors: (1) 

Where on the range the animals are 

located (due to differences in 

hydrophone spacing and bandwidth), 

(2) what species are present and the 

types and regularity of vocalizations 

produced (echolocation clicks or 

infrequent whistling are difficult or 

impossible to use for localizations in 

real time), and (3) the capabilities and 

knowledge of the personnel conducting 

the localizations. The proposed rule 

described NMFS’ efforts to work with 

the 86 FWS and the Navy to investigate 

using PAM as a mitigation support tool 

and identifies the limitations of this 

technology at detecting, localizing, and 

identifying marine mammals to a degree 

that would be sufficient to warrant a 

shut down or delay in mission. The 

proposed rule outlined three primary 

limiting factors: (1) To develop an 

estimated position for an individual, it 

must be vocalizing for an extended 

duration and its vocalizations must be 

detected on at least three hydrophones; 

(2) small odontocetes and deep divers 

(e.g., beaked whales) echolocate with a 

directed beam that makes detection of 

the call on multiple hydrophones 

difficult, and (3) the position estimation 

process must occur in an area with 

hydrophones spaced to allow the 

detection of the same echolocation click 

on at least three hydrophones (a spacing 

of less than four km in water depths of 

approximately two km is preferred). 

However, NMFS further investigated 

using PAM to trigger mitigation. 

We reviewed the aforementioned 

reports cited in the comment letter and 

determined the weapon impact area 

used for LRS WSEP activities, which is 

located at the very north end of the 

PMRF underwater range, has significant 

technical differences in PAM 

capabilities compared to the majority of 

areas where the researchers have been 

directed to study marine mammals for 

the Navy. The PMRF is comprised of 

three distinct regions: The SWTR, 

BSURE and Barking Sands Tracking 

Underwater Range (BARSTUR). The 

SWTR (Shallow Water Test Range) is 

the closest to shore and in the 

shallowest waters and comprises the 

smallest physical area with 

hydrophones. The majority of PMRF’s 

hydrophones (118, although many are 

not operational) are at SWTR, and all 

are high pass filtered at ∼10 kHz and 

located relatively close together 

(hydrophone spacing is designed to be 

a function of depth). The second largest 

area is the BARSTUR at 13.3 percent the 

size of BSURE, located just south of 

BSURE in shallower waters with 42 

hydrophones (some not operational). 

Thirty six of the hydrophones are high 

pass filtered at ∼10 kHz. Six BARSTUR 

hydrophones have lower frequency 

response (i.e., ∼ 100 Hz to ∼ 48 kHz). 

The largest and most northern area is 

the BSURE and is where the weapon 

impact area is located. The BSURE has 

41 recently installed ‘‘replacement’’ 

hydrophones with response ∼50 Hz to 

48 kHz. The 18 legacy BSURE 

hydrophones (some not operational) 

have response ∼100 Hz to ∼ 19 kHz and 

are located in similar positions to some 

of the replacement hydrophones. 

Hydrophones spacing ranges from 

approximately 4 km to over 7 km, in 

water depths ranging from 1.7 km to 4.7 

km. In summary, the detection and 

localization capabilities on PMRF are 

not uniform throughout the range due to 

the number of hydrophones, frequency 

response, spacing, and depth logistics. 

For example, the depth and spacing of 

hydrophones in the BSURE is much 

greater (i.e., deeper and farther apart) 

than in the SWTR and BARSTUR where 

the cited marine mammal tagging 

research effort using PAM detection 

assistance was concentrated. In 

addition, all hydrophones in the BSURE 


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are located south of the weapon impact 

area; making the ability to detect and 

localize animals off the range (i.e., to the 

north of the impact area) even more 

improbable. Finally, the process for 

localizing humpback whales in Helble 

et al. (2015) was fully performed using 

recorded data in the laboratory with 

Matlab algorithms, not in real-time at 

PMRF. The paper did mention the 

algorithm as being suitable for real-time 

application; however, additional 

software work is required before the 

algorithm can be implemented into the 

M3R real-time system. The processing 

speed for localizing humpback whales 

in Helble et al. (2015) was also 

described as being ‘‘five times faster 

than real time’’ but that is describing the 

ability to process five days of recorded 

data in the laboratory in one day, which 

is important for processing large 

recorded data sets. 

For these reasons as well as those 

cited in the proposed rule, NMFS has 

not included a requirement to use PAM 

to trigger mitigation. We note the U.S. 

Navy also does not use PAM to trigger 

mitigation on the PMRF. However, per 

the 86 FWS’s Mitigation and Monitoring 

Plan, the 86 FWS will collect acoustic 

data and provide a report to NMFS upon 

expiration of the LOA (or concurrent 

with a future LOA application, 

whichever is first) informing the 

potential impacts of the missions on 

marine mammals (see the Monitoring 

and Reporting section). The 86 FWS 

will utilize sensor pods and range 

cameras capable of detecting marine 

mammals before and during missions to 

trigger mitigation. 

Comment 4: One commenter offered 

information with respect to NMFS’ 

assumption that marine mammals are 

expected to exhibit avoidance behavior 

in response to loud sounds within the 

BSURE, citing findings from research on 

cetaceans off Kauai showing that 

individuals of four different species of 

odontocetes exposed to relatively high 

source levels of mid-frequency active 

(MFA) sonar are not leaving the area 

(Baird et al., 2014; Baird et al., 2017). 

The commenter recommended against 

assuming that the responsive behaviors 

of animals moving away from an initial 

sound source will reduce the likelihood 

of repeated exposure or repeated TTS 

leading to PTS may not be correct for all 

species in this area. 

NMFS Response: There is a paucity of 

data on behavioral responses of 

cetaceans to explosives, although in 

recent years there has been a 

concentrated effort to better understand 

the impacts of MFA sonar on marine 

mammals (e.g., Baird et al., 2012, 2014, 

2017; Henderson et al., 2014, Southall et 

al., 2009, Tyack et al., 2011). It is 

important to note MFA sonar is an 

intrinsically different source than 

explosives used here by the 86 FWS. 

The 86 FWS will not use sonar during 

the LRS WSEP missions. MFA is 

characterized as non-impulsive, 

narrowband sources with center 

frequencies of 2.6 and 3.3 kHz, while 

explosives are impulsive- noise with 

high peak sound pressure, short 

duration, fast rise-time, and broad 

frequency content times. Despite these 

differences, we expect the range of 

behavioral reactions from both sources 

to be somewhat similar. Henderson et 

al. (2014) found responses included 

changes in behavioral state or direction 

of travel, changes in vocalization rates 

and call intensity, or a lack of 

vocalizations while MFA sonar 

occurred. Similar to the findings noted 

by the commenter, 43 percent of focal 

groups exposed to sonar did not change 

their behavior, possibly due to tolerance 

and/or habituation. For more sensitive 

species (e.g., beaked whales), avoidance 

behavior in response to MFA sonar has 

been well documented (Southall et al., 

2009, Tyack et al., 2011). 

As described in the proposed rule, 

NMFS acknowledges that behavioral 

responses to sound are highly variable 

and context-specific, and that 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. NMFS did not limit its 

analysis of potential impacts to 

avoidance. The proposed rule discusses 

that the onset of surface detonations 

could result in a number of temporary, 

short term changes in an animal’s 

typical behavior, including, 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); and 

visible startle response or aggressive 

behavior (such as tail/fluke slapping or 

jaw clapping). The proposed rule also 

includes a discussion on potential 

tolerance and habituation. 

For those animals that do avoid the 

area, we remain confident this behavior 

will reduce the potential for TTS and 

PTS. The avoidance reaction we predict 

does not necessarily need to occur on a 

large spatial scale (e.g., moving to the 

lee side of the island), but could likely 

occur more locally, for example just 

outside strong received levels from the 

target site. Further, because of the 

planned reduction in number of 

explosives planned for each mission, 

the TTS and PTS zones are likely an 

overestimate, making any movement 

away from the impact site helpful in 

further reducing auditory impacts. 

Comment 5: A marine mammal 

researcher commented that based on 

relative density and range-to-effects, it is 

unclear why no takes of Endangered 

Species Act (ESA)-listed sperm whales 

(Physeter microcephalus) were 

requested or proposed to be authorized 

in the rule when sei whale 

(Balaenoptera borealis) density (a 

species for which take is requested and 

authorized) is lower than sperm whale 

density. 

NMFS Response: The 86 FWS 

evaluated the likelihood of taking 

incidental to the specified activities for 

sperm whales which are classified as a 

mid-frequency cetaceans. The range to 

effects for the sperm whale is less than 

that of sei whales (a low frequency 

hearing specialist). Considering sperm 

whale density (0.0016 animals/km2), the 

distance to the Level B behavioral 

isopleth minus the Level B TTS isopleth 

distance (11.95 km¥8.01 km), and 

assuming five training days per mission 

(the original schedule), the number of 

sperm whales possibly exposed to Level 

B harassment equaled 0.3 animals per 

year. When rounding, this probability 

becomes zero for sperm whales. For sei 

whales (0.0002 animals/km2), the final 

exposure value was 0.7 per year; 

therefore, it was rounded to one animal. 

The probability of taking both species is 

also decreased because the 86 FWS will 

only conduct four training days per 

mission, not the original five days 

included in the application. In 

summary, NMFS agrees there is a slight 

probability a sperm whale may be 

within the action area during training; 

however, this probability is very low. 

The 86 FWS did not request take of this 

species, and the 86 FWS is aware that 

take of sperm whales is not authorized. 

Comment 6: A marine mammal 

researcher was concerned there is a 

potential for 86 FWS activities to 

overlap spatially and temporally with 

scientific research activities on the 

PMRF, and, as a result, those 

researchers may be displaced. 

NMFS Response: The 86 FWS will 

issue a Notice to Mariners to inform the 

public that a military mission will be 

conducted and that portions of the 

Pacific Ocean will be temporarily closed 

for human safety concerns. The 86 FWS 

will also coordinate with NMFS OPR 

and PIRO once mission schedules have 

been set and no less than 72 hours prior 

to conducting each operation. If a 

researcher is concerned their planned 

research may be interrupted by 86 FWS 

activities, they may contact NMFS or 


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the 86 FWS directly to determine when 

missions are scheduled. In addition, we 

do not anticipate a conflict with 

researchers, not only because of these 

alert requirements, but also because the 

weapon impact area is in the most 

northern part of the BSURE range in 

very deep water where small boat 

operations do not typically occur, and 

missions are to be conducted for only 

one day in 2017 and one to four days 

for the remainder of the effective period 

of this rule. 

Comment 7: The MMC acknowledged 

the USAF would archive the PAM 

recordings for analysis when funding is 

available at a later time, but 

recommended fulfilling the monitoring 

requirements under section 101(a)(5) of 

the MMPA should be made a priority. 

NMFS Response: The final rule 

contains monitoring and reporting 

requirements that fully comply with 

section 101(a)(5)(A) of the MMPA. The 

purpose of analyzing acoustic data is to 

better understand the effects of the 

missions on marine mammals using 

acoustic recordings from PMRF 

hydrophones. Because the year one 

mission will occur only for one day 

(eight small diameter bombs) and year 

two through five missions will occur for 

a maximum of four days (maximum of 

four hours per day), NMFS finds that 

requiring an assessment of animal 

behavior for each mission year would 

yield a data poor analysis because the 

amount of acoustic data collected in any 

given year is likely to be minimal, if any 

at all. Therefore, the 86 FWS will 

combine all data over the course of 5 

years and provide NMFS a final report 

within 90 days after the rule expires. 

However, if 86 FWS applies for a 

subsequent rule prior to expiration of 

this rule, a draft acoustic monitoring 

report shall be submitted with that 

application. 

Comment 8: Comments received from 

individual citizens who opposed 

harming animals can be summarized in 

four general statements: (1) The 

activities will kill animals or make them 

deaf, (2) the USAF should conduct 

activities in areas where marine life will 

not be harmed or should conduct 

‘‘virtual’’ training, (3) the mitigation and 

monitoring are ineffective, and (4) a 

warning should be provided to marine 

mammals prior to the exercises to give 

them time to leave the area. 

NMFS Response: The following 

responses correspond to the numbered 

statements above: (1) NMFS did not 

propose to authorize, nor are we 

authorizing, death or serious injury of 

marine mammals incidental to the 

specified activity in this rule, because 

take in this manner was not requested, 

and, for reasons provided in this rule 

and associated documents, we do not 

believe it will occur. While NMFS does 

believe there is potential for PTS, 

experiencing PTS does not mean an 

animal will become deaf to the degree 

they are unable to communicate and 

perform other vital life functions. In 

addition, our thresholds are 

conservative in that they anticipate the 

accumulated energy at which animal 

may experience any level of PTS, not 

complete deafness. The distances also 

represent where the animal would have 

to remain relative to the detonation site 

for the duration of the exercise each day 

as described in the proposed rule. 

Because the amount of live weapons has 

been greatly reduced and marine 

mammal monitoring would occur up 

until weapon detonation, we believe the 

chance of PTS, while it still may exist 

slightly, is also greatly reduced. We do 

not expect animals to remain stationary; 

instead we expect them to move away 

from the source, not toward it, thereby 

reducing the potential for PTS. (2) 

NMFS must evaluate a proposed activity 

and is required to prescribe mitigation 

to affect the least practicable adverse 

impact. We do not have the authority to 

require the USAF to conduct missions 

elsewhere or use virtual training. (3) 

Please see our responses to the other 

public comments regarding mitigation 

and monitoring. (4) NMFS, in 

consultation with the USAF, considered 

a mitigation measure that involved 

conducting inert munition training or 

detonating small weapons prior to larger 

weapons. The 86 FWS indicated it is not 

known at this time in what order 

munitions will be detonated; however, 

NMFS has required that this mitigation 

measure be followed if the Project 

Engineer/Commanding Officer 

determines doing so will not interfere 

with the mission. 

Comment 9: CRE does not oppose 

NMFS’ issuance of the rule, but they do 

oppose NMFS’ use of our ‘‘Technical 

Guidance for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing—Acoustic Threshold 

Levels for Onset of Permanent and 

Temporary Threshold Shifts’’ 

(Technical Guidance) (NMFS 2016) in 

our analysis of the potential impacts of 

the USAF’s military readiness activities 

on marine mammals. CRE commented 

that it is questionable whether NMFS 

has the authority to use the Technical 

Guidance until the Commerce Secretary 

has completed his review required by 

Executive Order (EO) 13795. They 

further recommend NMFS remove any 

claim that the Office of Management 

and Budget (OMB) had approved an 

Information Collection Request for the 

Technical Guidance, and NMFS should 

correct information disseminations that 

suggest or require that the Technical 

Guidance may be used for any 

regulatory purpose. 

NMFS Response: EO 13795 does not 

state the Technical Guidance cannot be 

used during the Secretary’s review 

process; therefore, the Technical 

Guidance remains applicable during 

this time. Prior to its release, the 

Technical Guidance was subject to an 

internal review, three external peer 

reviews, as well as a follow-up peer 

review, three public comment periods, 

and received informal input from key 

Federal partners. As such, it represents 

the best available science. However, in 

accordance with EO 13795, NMFS 

solicited additional public comment on 

the Technical Guidance (82 FR 24950, 

May 31, 2017). NMFS will also consult 

the appropriate Federal agencies to 

assist the Secretary of Commerce in 

reviewing the Technical Guidance for 

consistency with the policy in section 2 

of EO 13795. As mandated by the EO, 

at the conclusion of the review, the 

Secretary will make a determination on 

how to proceed. At that point, NMFS 

will determine what information will be 

provided on our information 

disseminations. Further, the Technical 

Guidance explicitly states it is a 

guidance document and that ITA 

applicants are not required to use it. An 

applicant may propose an alternative 

approach if it is likely to produce a 

more accurate estimate of auditory 

impact for the project being evaluated. 

Finally, as explicitly explained in the 

Guidance, the scientific data compiled 

therein do not mandate any particular 

policy or regulatory choice, rather, they 

are used in the analyses that inform 

regulatory decisions and, as is 

appropriate in the case of the MMPA, 

the regulatory decisions are subject to 

notice and comment. 

Description of Marine Mammals in the 

Area of Specified Activities 

There are 25 marine mammal species 

with potential or confirmed occurrence 

in the proposed activity area. Not all of 

these species occur in this region during 

the project timeframe, or the likelihood 

of occurrence is very low. The 

‘‘Description of Marine Mammals in the 

Area of the Specified Activities’’ section 

included in the proposed rule (82 FR 

21156; May 5, 2017) and sections 3 and 

4 of the USAF’s application summarize 

available information regarding status 

and trends, distribution and habitat 

preferences, and behavior and life 

history, of the potentially affected 

species. These descriptions have not 


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changed and are incorporated here by 

reference. Additional information 

regarding population trends and threats 

may be found in NMFS’s Stock 

Assessment Reports (SAR; 

www.nmfs.noaa.gov/pr/sars/) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’s 

Web site (www.nmfs.noaa.gov/pr/ 

species/mammals/). Additional 

information may be found in the USAF 

86 FWS EA/EOA for LRS WSEP training 

exercises in the BSURE of the PMRF, 

which is available online at http://

www.afcec.af.mil/What-We-Do/ 

Environment/Pacific-Range-StrikeEnvironmental-Assessment/. 

Of the 25 species that may occur in 

Hawaiian waters, 16 species occur in 

densities great enough during the 

seasons the training exercises may occur 

(summer or fall) to warrant inclusion in 

this rule (Table 2). The final list of 

species is based on summer density 

estimates, a conservative range-toeffects, and duration of the activity. 

TABLE 2—MARINE MAMMAL SPECIES AND STOCKS LIKELY TO BE EXPOSED TO 86 FWS LRS WSEP TRAINING MISSIONS

Species Stock 

ESA/MMPA 

status; 

strategic 

(Y/N)1

Stock abundance (CV, 

Nmin, most recent 

abundance survey) 2

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 ........... Seasonal; throughout 

known breeding grounds 

during winter and spring 

(most common November through April). 

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. 

Minke whale (Balaenoptera 

acutorostrata).

Hawaii ................................ -; N .............. n/a (n/a; n/a; 2010) ............ Undet ..... Regular but seasonal (October-April). 

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. 

Family: Delphinidae 

Pygmy killer whale (Feresa 

attenuata).

Hawaii ................................ -; N .............. 3,433 (0.52; 2,274; 2010) .. 23 ........... Year-round resident. 

Short-finned pilot whale 

(Globicephala 

macrorhynchus).

Hawaii ................................ -; N .............. 12,422 (0.43; 8,872; 2010) 70 ........... Commonly observed 

around Main Hawaiian 

Islands and Northwestern Hawaiian Islands. 

Melon headed whale 

(Peponocephala electra).

Hawaii Islands stock .......... -; N .............. 5,794 (0.20; 4,904; 2010) .. 4 ............. Regular. 

Bottlenose dolphin 

(Tursiops truncatus).

Hawaii pelagic ................... -; N .............. 5,950 (0.59; 3,755; 2010) .. 38 ........... Common in deep offshore 

waters. 

Pantropical spotted dolphin 

(Stenella attenuata).

Hawaii pelagic ................... -; N .............. 15,917 (0.40; 11,508; 

2010).

115 ......... Common; primary occurrence between 100 and 

4,000 m depth. 

Striped dolphin (Stenella 

coeruleoala).

Hawaii ................................ -; N .............. 20,650 (0.36; 15,391; 

2010).

154 ......... Occurs regularly year 

round but infrequent 

sighting during survey. 

Spinner dolphin (Stenella 

longirostris).

Hawaii pelagic ................... -; N .............. n/a (n/a; n/a; 2010) ............ Undet ..... Common year-round in offshore waters. 

Rough-toothed dolphins 

(Steno bredanensis).

Hawaii stock ...................... -; N .............. 6,288 (0.39; 4,581; 2010) .. 46 ........... Common throughout the 

Main Hawaiian Islands 

and Hawaiian Islands 

EEZ. 

Fraser’s dolphin 

(Lagenodelphis hosei).

Hawaii ................................ -; N .............. 16,992 (0.66; 10,241; 

2010).

102 ......... Tropical species only recently documented within Hawaiian Islands EEZ 

(2002 survey). 


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TABLE 2—MARINE MAMMAL SPECIES AND STOCKS LIKELY TO BE EXPOSED TO 86 FWS LRS WSEP TRAINING

MISSIONS—Continued 

Species Stock 

ESA/MMPA 

status; 

strategic 

(Y/N)1

Stock abundance (CV, 

Nmin, most recent 

abundance survey) 2

PBR 3 Occurrence in BSURE 

area 

Risso’s dolphin (Grampus 

griseus).

Hawaii ................................ -; N .............. 7,256 (0.41; 5,207; 2010) .. 42 ........... Previously considered rare 

but multiple sightings in 

Hawaiian Islands EEZ 

during various surveys 

conducted from 2002– 

2012. 

Family: Ziphiidae 

Longman’s beaked whale 

(Indopacetus pacificus).

Hawaii ................................ -; N .............. 4,571 (0.65; 2,773; 2010) .. 28 ........... Considered rare; however, 

multiple sightings during 

2010 survey. 

1Endangered 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. 3Potential 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). 4Values for humpback whales are from the 2015 Alaska SAR. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). 

Subsequently, NMFS (2016) described 

generalized hearing ranges for these 

marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. The 

functional groups and the associated 

frequencies are indicated in Table 3; 

note that these frequency ranges 

correspond to the range for the 

composite group, with the entire range 

not necessarily reflecting the 

capabilities of every species within that 

group (please refer to the proposed rule 

(82 FR 21156; May 5, 2017) for more 

detail. 

TABLE 3—MARINE MAMMAL HEARING

GROUPS

[NMFS, 2016] 

Hearing group 

Generalized 

hearing 

range * 

Low-frequency (LF) cetaceans 

(baleen whales).

7 Hz to 35 

kHz. 

Mid-frequency (MF) 

cetaceans (dolphins, 

toothed whales, beaked 

whales, bottlenose whales).

150 Hz to 

160 kHz. 

High-frequency (HF) 

cetaceans (true porpoises, 

Kogia, river dolphins, 

cephalorhynchid, 

Lagenorhynchus cruciger & 

L. australis).

275 Hz to 

160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals).50 Hz to 86 

kHz. 

TABLE 3—MARINE MAMMAL HEARING

GROUPS—Continued 

[NMFS, 2016] 

Hearing group 

Generalized 

hearing 

range * 

Otariid pinnipeds (OW) (underwater) (sea lions and fur 

seals).

60 Hz to 39 

kHz. 

* 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). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

In the Potential Effects of Specified 

Activities on Marine Mammals section 

of the proposed rule (82 FR 21156; May 

5, 2017), we included a qualitative 

discussion of the different ways that the 

USAF 86 FWS LRS WSEP training 

activities may potentially affect marine 

mammals without consideration of 

mitigation and monitoring measures. 

These effects are incorporated here by 

reference; however, we note the new 

information on decreased munition 

amount likely further reduces the 

chance and severity of these effects. 

Estimated Take 

This section provides the number of 

incidental takes, by stock, authorized 


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through this final rule, which informs 

both NMFS’ consideration of the 

negligible impact determination. 

Harassment is the only type of take 

expected to result from these activities. 

For this military readiness activity, the 

MMPA defines ‘‘harassment’’ as: (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). 

Authorized takes primarily cover 

Level B harassment, as explosive 

detonations have the potential to result 

in disruption of behavioral patterns 

and/or TTS for individual marine 

mammals. There is also some potential 

for auditory injury (Level A harassment) 

to result, primarily for mysticetes and 

high frequency species due to the size 

of the predicted auditory injury zones. 

Auditory injury is unlikely to occur for 

mid-frequency species. The proposed 

mitigation and monitoring measures are 

expected to minimize the severity of 

such taking to the extent practicable. No 

mortality or serious injury is authorized 

for this activity. Below we describe how 

the take is estimated. 

Described in the most basic way, we 

estimate take by considering: (1) 

Acoustic thresholds above which NMFS 

believes the best available science 

indicates marine mammals will be 

behaviorally harassed or incur some 

degree of permanent hearing 

impairment; (2) the area or volume of 

water that will be ensonified above 

these levels in a day; (3) the density or 

occurrence of marine mammals within 

these ensonified areas; and, (4) and the 

number of days of activities. These 

elements and the method by which 

takes were calculated are described in 

detail in the proposed rule for this 

action. While some aspects have not 

changed (e.g., acoustic thresholds and 

modeling approach), we are reducing 

the amount of authorized take proposed 

from the proposed rule based on the 

significant reduction of explosives 

employed annually. Here, we again 

provide NMFS acoustic thresholds for 

explosives for reference and discuss the 

manner by which takes were estimated 

for a reduced number of munitions. 

Based on the best available science, 

NMFS uses the acoustic and pressure 

thresholds indicated in Table 4 to 

predict the onset of behavioral 

harassment, PTS, tissue damage, and 

mortality. 

Based on the thresholds in Table 4, 

the USAF calculated the distances to 

each based on the amount of ordnance 

that could be dropped on any given day 

per the munition amounts included in 

the application. We also note that for 

sources that are detonated at shallow 

depths such as is the case here, 

explosions may breach the surface with 

some of the acoustic energy escaping the 

water column. The source levels used in 

the acoustic model were not adjusted for 

this possible venting nor did subsequent 

analysis attempt to take this into 

account; therefore, this is another reason 

to identify the resulting analysis as 

conservative. 

Although the amount of munitions 

included in each mission has been 

significantly reduced, the USAF was 

unable to recalculate these distances 

using the original modeling due to time 

and funding constraints. Therefore, the 

reduction in impacts (i.e., take) was 

estimated using the correction factor 

discussed below Table 5. Although the 

prior calculations (Table 5) overestimate 

the range-to-effects, in the absence of 

mitigation, we continue to use these 

distances to conservatively inform the 

mitigation and monitoring measures. If 

during the course of this rule, the USAF 

is able to recalculate these zones based 


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on the actual amount of munitions 

dropped per day, NMFS will reconsider, 

pursuant to the adaptive management 

provisions (see Adaptive Management 

section), the extent of the mitigation 

zones after review of the model. 

TABLE 5—DISTANCES (m) TO EXPLOSIVE THRESHOLDS BASED ON THE ORIGINALLY PROPOSED AMOUNT OF MUNITIONS

PER MISSION DAY

Species Mortality 1

Level A harassment Level B harassment 

Slight lung 

injury 

GI tract injury PTS TTS Behavioral 

237 dB SPL SEL SPL SEL SPL SEL 

Low-Frequency Cetaceans 

Humpback Whale .............. 99 200 204 5,415 1,241 55,464 2,266 59,039 

Blue Whale ........................ 74 149 

Fin Whale .......................... 76 157 

Sei Whale .......................... 101 204 

Bryde’s Whale ................... 99 200 

Minke Whale ..................... 138 268 

Mid-Frequency Cetaceans 

Sperm Whale .................... 91 177 204 1,575 413 8,019 763 11,948 

Killer Whale ....................... 149 287 

False Killer Whale (MHI Insular stock) .................... 177 340 

False Killer Whale (all 

other stocks) .................. 177 340 

Pygmy Killer Whale ........... 324 604 

Short-finned Pilot Whale ... 217 413 

Melon-headed Whale ........ 273 502 

Bottlenose Dolphin ............ 273 509 

Pantropical Spotted Dolphin ................................ 324 604 

Striped Dolphin .................. 324 604 

Spinner Dolphin ................. 324 604 

Rough-toothed Dolphin ..... 273 509 

Fraser’s Dolphin ................ 257 480 

Risso’s Dolphin ................. 207 384 

Cuvier’s Beaked Whale ..... 131 257 

Blainville’s Beaked Whale 195 368 

Longman’s Beaked Whale 133 261 

High-Frequency Cetaceans 

Pygmy Sperm Whale ........ 248 457 204 20,058 4,879 71,452 7,204 74,804 

Dwarf Sperm Whale .......... 273 509 

To determine the final amount of take 

authorized in the proposed rule, we 

considered the amount of take proposed 

based on the original amount of 

munitions released versus the final 

amount of munitions and the fact the 86 

FWS would only conduct one day of 

training in 2017 and up to four days, 

annually, in 2018 through 2022 (the 

proposed rule considered five days of 

activity for each year). The amount of 

munition reduction ranges from 40 to 92 

percent based on year. Based on these 

factors, we adjusted takes to be more 

realistic but also conservative to allow 

for adequate coverage (Table 6). For 

those species where take was equal to 

fewer than five animals, annually, we 

maintained this amount of take to 

account for random occurrence on any 

given day. For all other species, we 

reduced the amount of take by 20 

percent (or one half of the lowest 

reduction for any given year (i.e., 40 

percent). 

TABLE 6—ANNUAL ORIGINAL AND FINAL AUTHORIZED TAKE NUMBERS BY SPECIES

Species Mortality/tissue 

damage 

Level A harassment 

(PTS only *) 

Level B harassment 

(TTS) 

Level B harassment 

(behavioral) 

Original Final Original Final Original Final 

Humpback whale ......... 0 4 4 54 44 38 30 

Sei whale ..................... 0 0 0 0 0 3 3 

Minke whale ................. 0 1 1 11 9 19 15 

Pygmy sperm whale .... 0 9 7 83 66 36 29 

Dwarf sperm whale ...... 0 22 18 203 162 87 70 

Pygmy killer whale ....... 0 0 0 1 1 25 * 25 

Short-finned pilot whale 0 0 0 5 5 36 * 36 

Melon-headed whale .... 0 0 0 1 1 152 * 152 

Bottlenose dolphin ....... 0 0 0 2 2 32 26 

Pantropical spotted dolphin ........................... 0 0 0 3 3 40 * 40 

Striped dolphin ............. 0 0 0 2 2 51 * 51 


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TABLE 6—ANNUAL ORIGINAL AND FINAL AUTHORIZED TAKE NUMBERS BY SPECIES—Continued 

Species Mortality/tissue 

damage 

Level A harassment 

(PTS only *) 

Level B harassment 

(TTS) 

Level B harassment 

(behavioral) 

Original Final Original Final Original Final 

Spinner dolphin ............ 0 0 0 1 1 29 * 29 

Rough-toothed dolphin 0 0 0 3 3 22 * 22 

Fraser’s dolphin ........... 0 0 0 10 8 273 * 273 

Risso’s dolphin ............. 0 0 0 2 2 25 * 25 

Longman’s beaked 

whale ........................ 0 0 0 1 1 59 * 59 

Total ...................... 0 36 30 382 310 927 885 

* Denotes average group size. 

We expect the amount of take we are 

authorizing to be a very conservative 

estimate and the likelihood of the 86 

FWS reaching or exceeding that level of 

take is unlikely given the reduced 

amount of munitions proposed each 

year, the reduction of training duration, 

and the mitigation and monitoring 

measures. NMFS expects that Level A 

harassment is unlikely to occur at the 

numbers proposed to be authorized 

because NMFS is authorizing (and 

analyzing) the modeled number of Level 

A harassment takes, which does not take 

the mitigation or avoidance measures 

into consideration. 

Mitigation 

In order to issue regulations and a 

LOA 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 

effecting the least practicable impact 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 (latter not 

applicable for this action because there 

are no subsistence uses in Hawaii). 

NMFS regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting such activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). The NDAA for FY 2004 

amended the MMPA as it relates to 

military readiness activities and the 

incidental take authorization process 

such that ‘‘least practicable impact’’ 

shall include consideration of personnel 

safety, practicality of implementation, 

and impact on the effectiveness of the 

military readiness activity. 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned) the likelihood 

of effective implementation (probability 

implemented as planned), and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

The primary means of mitigating for 

impacts to marine mammals is mission 

delay if marine mammals are observed 

within certain distances from the 

weapon impact site during pre-mission 

surveys, during missions, or via range 

camera monitoring. Since promulgation 

of the proposed rule, the 86 FWS 

identified that the 2017 missions would 

be limited to one day involving only 

eight small diameter bombs (23 to 37 lb 

NEW). The 2018 through 2022 missions 

include more explosives than 2017 

constituting all possible munitions 

types; however, in substantially less 

amount than included in the proposed 

rule. The range-to-effects distances 

modeled by the USAF includes 24 

explosives ranging from 300 to 23 lb 

NEW. The USAF did not have the 

capability to remodel range to effects 

based on the reduced amount of 

munitions; therefore, we have outlined 

circumstances that conservatively 

accounts for this reduction separately 

for 2017 and jointly for 2018 through 

2022. In the final rule, we identify an 

‘‘exclusion zone’’ as absolutely 

triggering a delay while a ‘‘harassment 

zone’’ may or may not trigger a delay 

based on species observed and distance 

from the weapon impact site. The 

following circumstances apply to the 

implementation of exclusion zones and 

mitigation zones. 

For all mission years, training shall be 

delayed if a marine mammal is observed 

within a 2.3 mi (3,704 m) exclusion 

zone. In the 86 FWS’s 2016 IHA, this 

was the monitoring and mitigation zone 

established based on eight small 

diameter bombs (37 lb NEW) and one 

JASSM/JASSM–ER (300 lb NEW). This 

distance also greatly exceeds the 

maximum calculated range-to-effects for 

mortality and tissue injury when 

considering the original amount and 

type of munitions (Table 5). This 

exclusion zone will avoid any mortality 

or tissue damage, avoid PTS of midfrequency cetaceans, and reduce the 

potential for severe PTS and TTS in 

low-frequency and high-frequency 

cetaceans. A standard minimum 2.3 mi 

(3,704 m) exclusion zone also allows for 

consistency in mitigation throughout 

each year for implementation ease. 

Therefore, NMFS has applied this 

exclusion zone as the threshold for 

mission delay mitigation for all training 

conducted during the effective dates of 

the regulations. 

For all missions, delay of mission is 

to be triggered based on the location of 

an observed marine mammals relative to 

the weapon impact site. If a species is 

observed within a harassment zone 

identified in Table 5 (based on hearing 

group) and take is not authorized for 

that species or the 86 FWS has exceeded 

take for that species, mission delay 

mitigation would be triggered. 

The USAF has also committed to 

delaying deployment of munitions if an 

animal is sighted anywhere within the 


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8 mi (13 km) monitoring area (see 

Monitoring and Reporting section 

below). However, delaying missions 

until an animal leaves the entire 

monitoring area may not be practicable 

or necessarily warranted because we 

have authorized take for select species. 

If an animal is observed within the 8 mi 

(13 km) monitoring area and the USAF 

86 FWS has determined missions may 

resume without exceeding authorized 

take, the USAF may carry on with 

training. However, the 86 FWS will shift 

the target impact site (i.e., the x, y 

coordinates of the detonation site) away 

from an animal sighting should mission 

delay mitigation not be triggered. The 

target site will be shifted to the farthest 

distance possible from the sighting but 

is confined to the two-mile wide 

weapon impact area. 

If adverse weather conditions impair 

the ability of aircraft to operate safely, 

missions will either be delayed until the 

weather clears or cancelled for the day. 

Monitoring and Reporting 

In order to issue regulations 

authorizing take incidental to a 

specified 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 authorizations 

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. Effective reporting is critical 

both to compliance as well as ensuring 

that the most value is obtained from the 

required monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (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 marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

During the proposed rulemaking 

stage, the USAF 86 FWS proposed using 

a helicopter as a marine mammal survey 

platform and conducting such surveys 

before and after each day of training as 

this was the survey method used during 

the 2016 mission for which NMFS 

issued an IHA. However, in 

consideration of public comment and 

additional available methods, NMFS 

recommended monitoring 

enhancements intended to better 

address the increased duration and 

amount of activity covered in this rule 

as compared to the one-day activity in 

the IHA. As a result, the USAF 86 FWS, 

in consultation with NMFS, modified 

their Mitigation and Monitoring Plan to 

increase marine mammal detection 

probability and more clearly articulate 

the protocols followed for the survey. 

The Mitigation and Monitoring Plan, 

found at http://www.nmfs.noaa.gov/pr/ 

permits/incidental/military.htm, 

provides detailed information. Here we 

summarize the major provisions; 

however, the USAF 86 FWS is 

responsible for implementing the full 

plan. 

A pre-mission and post-mission 

survey will be conducted by a chase 

aircraft (e.g., F–16, F–15) at altitudes 

ranging from 1,000 ft to 25,000 ft. The 

aircraft will be equipped with a sensor 

pod (e.g., Sniper or Litening advanced 

targeting pods). Pre-mission surveys 

begin no less than 30 minutes prior to 

the start of a mission, primarily using 

visual lookouts who will scan the water 

surface in closely-spaced line-transect 

patterns as the aircraft circles above the 

monitoring area. In addition to having a 

dedicated marine mammal visual 

lookout, the aircraft’s targeting pods, or 

comparable sensor, will supplement the 

visual lookout surveys of the same area. 

Targeting pods have the ability to use 

high-definition forward looking infrared 

(FLIR) and high-definition television 

modes, both of which are displayed in 

real-time to the aircrew in the cockpit. 

Using thermal signatures, such as warmblooded marine mammals in a 

comparatively cooler marine 

environment, it is expected that marine 

mammals at or near the water surface 

would be prominent and easy to 

identify in FLIR mode. 

Advanced targeting pods are most 

frequently used by the USAF and are 

currently installed on F–16, F–15C/E, 

A–10, B–1, and B–52 aircraft. Combat 

aircrews receive extensive training and 

have gained combat experience using 

advanced targeting pods to track and 

identify targets that are similar in size, 

and in some cases smaller than, marine 

mammals. For example, the USAF was 

able to detect sharks from an AC–130 

aircraft conducting a 3-mi (5-km) orbit 

at 15,000 ft altitude using an electrooptical/infrared sensor in the Gulf of 

Mexico within the Eglin Gulf Test and 

Training Range (see Figure 2 in the 

Mitigation and Monitoring Plan). Even 

though the aircraft and survey location 

are different than what is proposed 

under Long Range Strike WSEP 

activities, the capabilities to detect 

marine life near the water surface are 

expected to be similar. 

Mission aircraft are capable of flying 

at various altitudes and airspeeds. As 

part of operational procedures, aircrew 

must conduct aerial surveillance of a 

potential impact or target area prior to 

releasing any weapons to confirm the 

location of the target and ensure the 

human safety zone around the impact 

area is clear. In order to accomplish this, 

the aircraft must operate at an 

appropriate altitude and airspeed that is 

operationally safe while meeting 

mission objectives. The range of 

altitudes and airspeeds at which this 

occurs varies across all aerial platforms; 

therefore, a specific altitude and 

airspeed requirement cannot be 

determined because each LRSWSEP 

event will not have the same types of 

aircraft participating each year. 

However, regardless of aircraft type, the 

pre-mission aircraft will be equipped 

with a sensor pod to survey for marine 

mammals. 

In addition to aerial surveys, there are 

other assets on the PMRF Range that 

will also be used to supplement the 

aerial surveys. Range cameras are 

installed on Makaha Ridge, at an 

elevation between 1,500 and 1,700 ft, 

and are able to see out to 50 nmi from 

the shore. Since the weapon impact area 

is approximately 44 nm from shore, it 

would be within the line of sight of the 

cameras. The optical lenses of the 

cameras have the zoom capability to see 

marine life if they are at or near the 

surface. The camera feed will be 

monitored by personnel within the 


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mission control room at PMRF. Since 

these cameras will be used to track 

weapon impacts, they will be available 

to supplement aerial survey efforts by 

providing opportunistic sighting 

information. Therefore, during premission surveys, the range cameras on 

Makaha Ridge will be zoomed in on the 

weapon impact area and will be 

monitored in real-time for at least 30 

minutes prior to weapon release. 

During the mission (i.e., as aircraft are 

inbound to release weapons), aircrew of 

the plane carrying the weapon, the 

chase aircraft, and the range camera 

operator will observe for protected 

species. If a protected species is 

observed, weapon release will be 

delayed per the mitigation 

requirements. The mission aircraft pilot 

will divert effort to following the 

protected species until it is confirmed to 

be outside the mitigation zone and on a 

path away from the area (i.e., on a 

heading and swim speed suggesting it is 

outside the mitigation zone). 

NMFS may modify and 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. 

Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, and reporting 

measures in an LOA include, but is not 

limited to: 

(i) Results of new range-to-effects 

models based on maximum amount of 

weapons, by type, utilized during each 

mission; 

(ii) Results from 86 FWS’s monitoring 

from the previous year(s); 

(iii) Results from other marine 

mammal and/or sound research or 

studies; or 

(iv) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations or 

subsequent LOA. 

Adaptive Management 

The final regulations governing the 

take of marine mammals incidental to 

86 FWS training activities on the 

BSURE area of the PMRF contain an 

adaptive management component. The 

reporting requirements associated with 

this final rule are designed to provide 

NMFS with monitoring data from the 

previous year to allow NMFS to 

consider whether any changes are 

appropriate. NMFS and the 86 FWS 

would meet to discuss the monitoring 

reports, activities, any updated 

modeling efforts, and current science 

and whether mitigation or monitoring 

modifications are appropriate. The use 

of adaptive management allows NMFS 

to consider new information from 

different sources to determine (with 

input from the 86 FWS regarding 

practicability) on an annual or biennial 

basis if mitigation or monitoring 

measures should be modified (including 

additions or deletions). Mitigation 

measures could be modified if new data 

suggests that such modifications would 

have a reasonable likelihood of reducing 

adverse effects to marine mammal 

species or stocks and their habitat and 

if the measures are practicable. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results of new 

range-to-effects models based on 

maximum amount of weapons, by type, 

utilized during each mission; (2) results 

from 86 FWS’s monitoring from the 

previous year(s); (3) Results from other 

marine mammal and/or sound research 

or studies; or (4) Any information that 

reveals marine mammals may have been 

taken in a manner, extent, or number 

not authorized by the regulations or 

subsequent LOA. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

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’’ 

(50 CFR 216.103). 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 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 harassment, NMFS considers 

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 effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

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 because 

the specified activity would be limited 

to 4 hours per day for no more than 4 

days per year. 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. 

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, the ranges-toeffects identified are conservative (i.e., 

the longest distance for any given depth 

bin) and, in some cases, include more 

energy than would be released per day 

due to reduced munition expenditure. 

The 86 FWS would also maintain an 

exclusion zone extending 2.3 mi from 

the target site and shift the target site 

away from an animal should it be 

observed (and delay mitigation is not 

triggered). In addition, marine mammals 

would likely begin to move away from 

the immediate area once bombing 

begins, decreasing exposure to the full 

amount of acoustic energy used to 

calculate ranges-to-effects. Therefore, 

we anticipate that, because of the 

mitigation measures, conservative 

range-to-effects analysis, 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 four days per year), 

NMFS has determined there will not be 

a substantial impact on marine 

mammals or their habitat. We do not 

expect the activity would impact rates 

of recruitment or survival of marine 

mammals due to mortality (which 

would remove individuals from the 

population) or serious injury because 

we do not expect those impacts to occur 

not are we authorizing that manner of 

take. In addition, the activity would 

occur only in a small part of a stock’s 


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overall range, and would not occur in 

any areas known to be specifically 

important or unique for feeding or 

reproductive behaviors when compared 

to overall range. Therefore, 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. In addition, 

although the activity could result in 

Level A harassment (PTS only, as 

opposed to slight lung injury or 

gastrointestinal tract injury) and Level B 

harassment (behavioral disturbance and 

TTS), the number of exposed animals is 

expected to be low due to the short-term 

and site-specific nature of the activity. 

Therefore, we do not anticipate the level 

of harassment to impact rates of 

recruitment or survival of marine 

mammals. 

In past missions (October 2016), the 

86 FWS completed pre- and post-aerial 

surveys. The 86 FWS did not observe 

any marine mammals during the premission aerial survey 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 the ordinance 

failed to detonate therefore, in addition 

to no marine mammal sightings, no take 

was documented. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, NMFS finds that the total 

marine mammal take from the proposed 

activity will have a negligible impact on 

all affected marine mammal species or 

stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has 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 (ESA) 

Section 7(a)(2) of the ESA 1973 (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. To ensure 

ESA compliance for the issuance of the 

final rule and LOA, NMFS consults 

internally, in this case with the ESA 

Interagency Cooperation Division, 

whenever we propose to authorize take 

for endangered or threatened species. 

There is one marine mammal species 

under NMFS’ jurisdiction that is listed 

as endangered or threatened under the 

ESA with confirmed or possible 

occurrence in the Study Area, the sei 

whale. The USAF 86 FWS consulted 

with NMFS pursuant to section 7 of the 

ESA, and NMFS also consulted 

internally on the issuance of a rule and 

LOA under section 101(a)(5)(A) of the 

MMPA for LRS WSEP training 

activities. NMFS issued a Biological 

Opinion concluding that the issuance of 

the rule and subsequent LOA are likely 

to adversely affect, but are not likely to 

jeopardize, the continued existence of 

the threatened and endangered species 

under NMFS’ jurisdiction and are not 

likely to result in the destruction or 

adverse modification of critical habitat 

in the PMRF. The Biological Opinion for 

this action is available on NMFS’ Web 

site (http://www.nmfs.noaa.gov/pr/ 

permits/incidental/military.htm). 

Classification 

The Office of Management and Budget 

has determined that this final rule is not 

significant for purposes of Executive 

Order 12866. This rule is not an 

Executive Order 13771 regulatory action 

because this rule is not significant under 

Executive Order 12866. 

Pursuant to the Regulatory Flexibility 

Act (RFA), the Chief Counsel for 

Regulation of the Department of 

Commerce certified to the Chief Counsel 

for Advocacy of the Small Business 

Administration at the proposed rule 

stage that this rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The USAF 86 FWS is the sole entity that 

would be affected by this rulemaking, 

and the USAF 86 FWS is not a small 

governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. Because this action 

directly affects the USAF 86 FWS and 

not a small entity, NMFS concluded the 

action will not result in a significant 

economic impact on a substantial 

number of small entities. No comments 

were received regarding this 

certification. As a result, a regulatory 

flexibility analysis is not required and 

none has been prepared. 

The Assistant Administrator for 

Fisheries has determined that there is 

good cause under the Administrative 

Procedure Act (5 U.S.C 553(d)(3)) to 

waive the 30-day delay in the effective 

date of the measures contained in the 

final rule. NMFS is unable to 

accommodate the 30-day delay of 

effectiveness due to delays resulting 

from: Late changes in the action 

(reductions in activity levels and 

increased monitoring protocol that 

would improve protections for marine 

mammals), and the resulting need for 

new take analysis to address decreased 

munitions in both this rule and the 

accompanying Biological Opinion. The 

USAF 86 FWS is the only entity subject 

to the regulations, and it has requested 

that NMFS issue the LOA prior to the 

scheduled August 24, 2017, training to 

avoid mission delays. A waiver of the 

30-day delay of the effective date of the 

final rule will allow the USAF 86 FWS 

to finalize operational procedures to 

ensure compliance with required 

mitigation, monitoring, and reporting 

requirements, and have MMPA 

authorization in place to support of the 

training exercise. Any delay of enacting 

the final rule would result in either: (1) 

A suspension of planned USAF training, 

which would disrupt vital training 

essential to national security; or (2) the 

USAF’s procedural non-compliance 

with the MMPA (should the USAF 

conduct training without an LOA), 

thereby resulting in the potential for 

unauthorized takes of marine mammals. 

For these reasons, the Assistant 

Administrator finds good cause to waive 

the 30-day delay in the effective date. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Incidental 

take, Indians, Labeling, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, Seafood, 

Transportation. 

Dated: August 16, 2017. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 218 is 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. 


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218.50 Specified activity and specified 

geographical region. 

218.51 Effective dates. 

218.52 Permissible methods of taking. 

218.53 Prohibitions. 

218.54 Mitigation requirements. 

218.55 Requirements for monitoring and 

reporting. 

218.56 Letters of Authorization. 

218.57 Renewals and Modifications of 

Letters of Authorization. 

218.58 [Reserved] 

218.59 [Reserved] 

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 

§ 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 21, 2017, through 

August 22, 2022. 

§ 218.52 Permissible methods of taking. 

Under a LOA issued pursuant to 

§ 216.106 of this chapter and § 218.56, 

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, 

provided the activities are in 

compliance with all terms, conditions, 

and requirements of these regulations in 

this subpart and the associated LOA. 

§ 218.53 Prohibitions. 

Notwithstanding takings 

contemplated in § 218.50 and 

authorized by an LOA issued under 

§ 216.106 of this chapter and § 218.56, 

no person in connection with the 

activities described in § 218.50 may: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or the LOA issued under 

§ 216.106 of this chapter and § 218.56. 

(b) Take a marine mammal species or 

stock not specified in the LOA; and 

(c) Take a marine mammal species or 

stock specified in the LOA in any 

manner other than as specified. 

§ 218.54 Mitigation requirements. 

When conducting activities identified 

in § 218.50, the mitigation measures 

contained in the LOA issued under 

§ 216.106 of this chapter and § 218.56 

must be implemented. These mitigation 

measures shall include but are not 

limited to the following general 

conditions: 

(a) Execute missions during day-light 

hours only, no more than four hours per 

day, no more than one day during 2017, 

no more than four days per year for 

2018 through 2022 over a five-day 

period, on weekdays, and only during 

summer (June through August) or fall 

(September through November) months. 

(b) Delay live munition detonations if 

a marine mammal is observed within 

the designated exclusion zone (2.3 mile 

(mi) (3,704 m) from the weapon impact 

site), resuming only after the animal is 

observed exiting the exclusion zone or 

the exclusion zone has been clear of any 

additional sightings for a period of 30 

minutes. 

(c) Delay live munition detonations if 

a marine mammal is observed in an 

impact zone but outside of the 2.3 mi 

exclusion zone and if the manner of 

taking is not authorized (e.g., animal is 

observed in Level A impact zone for that 

species and no Level A take is 

authorized), resuming only after the 

animal is observed exiting the zone. 

(d) Shift the target site as far as 

possible from an observed marine 

mammal’s location (but within the twomile wide weapon impact area) if a 

marine mammal is observed during the 

pre-mission survey or during missions 

and continuing the mission will not 

result in an unauthorized take of a 

marine mammal. 

(e) Suspend live munition detonations 

if an unauthorized take of a marine 

mammal occurs, and report the incident 

to NMFS Office of Protected Resources 

(OPR), NMFS Pacific Islands Regional 

Office (PIRO), and the Pacific Islands 

Region Marine Mammal Stranding 

Network representative immediately 

followed by a report to NMFS within 24 

hours. 

(f) Implement a best management 

practice, on a daily basis, of conducting 

inert munition training or small bomb 

detonations prior to detonating large 

bombs if the Project Engineer/ 

Commanding Office determines this 

practice does not interfere with mission 

training. 

(g) 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. 

(b) All marine mammal monitoring 

will be carried out in compliance with 

the 86 FWS Marine Mammal Mitigation 

and Monitoring Plan, dated August 

2017. 

(c) Aerial Surveys: The 86 FWS will 

conduct pre-, during, and post-training 

surveys each mission day. 

(1) The marine mammal survey 

monitoring area will extend no less than 

approximately 8 mi (13 kilometers (km)) 

from the designated impact site. 

(2) Surveys will utilize military 

aircraft equipped with advanced 

targeting sensor pods (e.g., SNIPER 

pods) at altitudes and speeds ideal for 

detecting marine mammals using such 

equipment; aircraft will fly transect 

lines covering the entire eight mi 

monitoring area. A helicopter-based 

survey may substitute the military 

aircraft survey platform and use of 

sensor pods only if a sensor pod is not 

be available. 

(3) A pre-mission marine mammal 

survey will commence no later than 30 

minutes prior to beginning training 

activities. 

(4) Aircraft personnel will also 

observe for marine mammals during 

training (e.g., on approach to weapon 

launch location). 

(5) Aircraft personnel will conduct a 

post-mission survey for marine 

mammals immediately following the 

end of training each mission day. A 

helicopter may be used in lieu of 

mission aircraft only if sensor pod is not 

available. 

(d) Range Camera Surveys: 86 FWS 

personnel will use the Makaha Ridge 

range cameras to monitor for marine 

mammals within the weapon impact 

area at least 30 minutes prior to, during, 

and immediately after training 

activities. 

(e) Helicopter surveys: If military 

aircraft equipped with a sensor pod 

cannot be used for marine mammal 

surveys, the 86 FWS may substitute a 


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helicopter as the survey platform. The 

helicopter will fly at an approximately 

200 feet altitude and will cover the 8 mi 

monitoring area. 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. 

(f) Acoustic Monitoring: 

(1) The 86 FWS will comply with all 

acoustic monitoring as described in the 

86 FWS Mitigation and Monitoring 

Plan. 

(2) Acoustic data from the PRMF 

hydrophones will be collected and 

stored by the 86 FWS. Data will be 

analyzed to better understand the effects 

of LRS WSEP missions. The results of 

the analysis will accompany any 

subsequent LOA request or, if no 

request is made, no later than 90 after 

expiration of the LOA. 

(g) The 86 FWS will contact the 

Pacific Islands Region stranding 

coordinator, NMFS, by email, at least 72 

hours prior to mission onset and one 

business day after completion of 

missions to declare that missions are 

complete. 

(h) 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 accompanying a 

subsequent application for regulations. 

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, and 

shall also include: 

(i) Date and time of each LRS WSEP 

mission; 

(ii) A complete description of the preexercise, exercise, and post-exercise 

activities related to mitigating and 

monitoring the effects of LRS WSEP 

missions on marine mammals; 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 

WSEP mission and number of marine 

mammals (by species if possible) that 

may have been harassed due to presence 

within the designated harassment zones. 

(iv) 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. 

(2) Report injured or dead marine 

mammals: 

(i) 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, the 86 FWS shall immediately 

cease the specified activities and 

immediately report the incident to 

Pacific Islands Regional Stranding 

Coordinator (888–256–9840), NMFS 

followed by a report submitted to NMFS 

Office of Protected Resources and the 

Pacific Islands Regional Office within 

24 hours. The report must include the 

following information: 

(A) Time and date of the incident; 

(B) Description of the incident; 

(C) Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, and visibility); 

(D) Description of all marine mammal 

observations in the 24 hours preceding 

the incident; 

(E) Species identification or 

description of the animal(s) involved; 

(F) Fate of the animal(s); and 

(G) Photographs or video footage of 

the animal(s). 

(ii) 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. 

(iii) 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 Pacific Islands Regional 

Stranding Coordinator, followed by a 

report to NMFS Office of Protected 

Resources and the Pacific Island 

Regional Office within 24 hours of the 

discovery. The report must include the 

same information identified in 

paragraph (h)(2)(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. 

(iv) 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. 

(3) Additional Conditions: 

(i) 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. 

(ii) A copy of the LOA must be in the 

possession of the safety officer on duty 

each mission day. 

(iii) 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 stock, 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. 


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Federal Register / Vol. 82, No. 161 / Tuesday, August 22, 2017 / Rules and Regulations 39701 

(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 of 

this chapter and § 218.56 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 of 

this chapter and § 218.56 for the activity 

identified in § 218.50(a) may be 

modified by NMFS under the following 

circumstances: 

(1) Adaptive Management—NMFS 

may modify and 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. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, and reporting 

measures in an LOA include, but is not 

limited to: 

(A) Results of new range-to-effects 

models based on maximum amount of 

weapons, by type, utilized during each 

mission; 

(B) Results from 86 FWS’s monitoring 

from the previous year(s); 

(C) Results from other marine 

mammal and/or sound research or 

studies; or 

(D) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations or 

subsequent LOA. 

(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 in the LOA issued pursuant to 

§ 216.106 of this chapter and § 218.50, 

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. 2017–17718 Filed 8–21–17; 8:45 am] 

BILLING CODE 3510–22–P 


sradovich on DSK3GMQ082PROD with RULES