Rule2022-14307
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Point Mugu Sea Range Study Area
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 8, 2022
Effective
July 7, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals incidental to the training and testing activities conducted in the Point Mugu Sea Range (PMSR) Study Area. The Navy's activities qualify as military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.
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[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Rules and Regulations]
[Pages 40888-40966]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14307]
[[Page 40887]]
Vol. 87
Friday,
No. 130
July 8, 2022
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to the U.S. Navy Training and Testing Activities in the Point Mugu Sea
Range Study Area; Final Rule
Federal Register / Vol. 87 , No. 130 / Friday, July 8, 2022 / Rules
and Regulations
[[Page 40888]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[220629-0147]
RIN 0648-BK07
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training and Testing Activities in the
Point Mugu Sea Range Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these
regulations pursuant to the Marine Mammal Protection Act (MMPA) to
govern the taking of marine mammals incidental to the training and
testing activities conducted in the Point Mugu Sea Range (PMSR) Study
Area. The Navy's activities qualify as military readiness activities
pursuant to the MMPA, as amended by the National Defense Authorization
Act for Fiscal Year 2004 (2004 NDAA). These regulations, which allow
for the issuance of a Letter of Authorization (LOA) for the incidental
take of marine mammals during the described activities and timeframes,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
and their habitat, and establish requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective from July 7, 2022, through July 7, 2029.
ADDRESSES: A copy of the Navy's application, NMFS' proposed and final
rules and subsequent LOA for the existing regulations, and other
supporting documents and documents cited herein may be obtained online
at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>. In case
of problems accessing these documents, please use the contact listed
here (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, issued under the authority of the MMPA (16
U.S.C. 1361 et seq.), provide the framework for authorizing the take of
marine mammals incidental to the Navy's training and testing activities
(which qualify as military readiness activities) from the use of at-
surface and near-surface explosive detonations throughout the PMSR
Study Area, as well as launch events from San Nicolas Island (SNI). The
PMSR Study Area includes 36,000 square miles and is located adjacent to
Los Angeles, Ventura, Santa Barbara, and San Luis Obispo Counties along
the Pacific Coast of Southern California (see Figure 1.1 of the
application). The two primary components of the PMSR are the Special
Use Airspace (SUA) and the ocean Operating Areas (PMSR-controlled sea
space). The PMSR-controlled sea space parallels the California coast
for approximately 225 nautical miles (nmi) (417 km) and extends
approximately 180 nmi seaward (333 km; see Figure 1-1 of the
application).
NMFS received an application from the Navy requesting 7-year
regulations and an authorization to incidentally take individuals of
multiple species of marine mammals (``Navy's rulemaking/LOA
application'' or ``Navy's application''). Take is anticipated to occur
by Level A harassment and Level B harassment incidental to the Navy's
training and testing activities, with no serious injury or mortality
anticipated or authorized.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if, 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 final rule and the subsequent LOA. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
The following is a summary of the major provisions of this final
rule regarding the Navy's activities. Major provisions include, but are
not limited to:
[ssquf] Measures to reduce the probability and/or severity of
impacts expected to result from exposure to explosives and launch
activities (i.e., minimize the likelihood or severity of permanent
threshold shift or other injury, and reduce instances of temporary
threshold shift or more severe behavioral disruption caused by
explosives and launch activities);
[ssquf] Activity limitations in certain areas and times that are
biologically important (e.g., pupping season on San Nicolas Island) for
marine mammals;
[ssquf] Measures to reduce the likelihood of ship strikes;
[ssquf] Implementation of a Notification and Reporting Plan (for
dead or live stranded marine mammals); and
[ssquf] Implementation of a robust monitoring plan to improve our
understanding of the environmental effects resulting from the Navy
training and testing activities.
Additionally, the rule includes an adaptive management component
that allows for timely modification of mitigation or monitoring
measures based on new information, when appropriate.
Background
The MMPA prohibits the take of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA direct the
Secretary of Commerce (as delegated to NMFS) to allow, upon request,
the incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review and the opportunity to submit
comments.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stocks and will not have an unmitigable adverse impact on the
availability of the species or stocks for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses
[[Page 40889]]
(referred to in this rule as ``mitigation measures''). NMFS also must
prescribe the requirements pertaining to the monitoring and reporting
of such takings. The MMPA defines ``take'' to mean to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal. The Analysis and Negligible Impact Determination section
below discusses the definition of ``negligible impact.''
The NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended
section 101(a)(5) of the MMPA to remove the ``small numbers'' and
``specified geographical region'' provisions indicated above and
amended the definition of ``harassment'' as applied to a ``military
readiness activity.'' The definition of harassment for military
readiness activities (section 3(18)(B) of the MMPA) is: (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).
In addition, the 2004 NDAA amended the MMPA as it relates to military
readiness activities such that the least practicable adverse impact
analysis shall include consideration of personnel safety, practicality
of implementation, and impact on the effectiveness of the military
readiness activity.
More recently, section 316 of the NDAA for Fiscal Year 2019 (2019
NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to
allow incidental take rules for military readiness activities under
section 101(a)(5)(A) to be issued for up to 7 years. Prior to this
amendment, all incidental take rules under section 101(a)(5)(A) were
limited to 5 years.
Summary and Background of Request
On March 9, 2020, NMFS received an application from the Navy for
authorization to take marine mammals by Level A harassment and Level B
harassment incidental to training and testing activities (categorized
as military readiness activities) from (1) the use of at-surface or
near-surface explosive detonations in the PMSR Study Area, as well as
(2) launch events from SNI, over a 7-year period beginning June 2022
through June 2029. We received a revised application on August 28,
2020, which provided minor revisions to the mitigation and monitoring
sections, and upon which the Navy's rulemaking/LOA application was
found to be adequate and complete. On September 4, 2020, we published a
notice of receipt (NOR) of application in the Federal Register (85 FR
55257), requesting comments and information related to the Navy's
request for 30 days. On July 16, 2021, we published a notice of
proposed rulemaking (86 FR 37790) and requested comments and
information related to the Navy's request for 45 days (``PMSR proposed
rule''). All comments received during the NOR and the proposed
rulemaking comment periods were considered in this final rule. Comments
received on the proposed rule are addressed in this final rule in the
Comments and Responses section.
The following types of training and testing, which are classified
as military readiness activities pursuant to the MMPA, as amended by
the 2004 NDAA, will be covered under the regulations and LOA: air
warfare (air-to-air, surface-to-air), electronic warfare (directed
energy--lasers and high-powered microwave systems), and surface warfare
(surface-to-surface, air-to-surface, and subsurface-to surface). The
activities will not include any underwater detonations, sonar, pile
driving/removal, or use of air guns.
The Navy's mission is to organize, train, equip, and maintain
combat-ready naval forces capable of winning wars, deterring
aggression, and maintaining freedom of the seas. This mission is
mandated by Federal law (10 U.S.C. 8062), which requires the readiness
of the naval forces of the United States. The Navy executes this
responsibility by training and testing at sea, often in designated
operating areas (OPAREA) and testing and training ranges. The Navy must
be able to access and utilize these areas and associated sea space and
air space in order to develop and maintain skills for conducting naval
operations. The Navy's testing activities ensure naval forces are
equipped with well-maintained systems that take advantage of the latest
technological advances. The Navy's research and acquisition community
conducts military readiness activities that involve testing. The Navy
tests ships, aircraft, weapons, combat systems, sensors, and related
equipment, and conducts scientific research activities to achieve and
maintain military readiness.
The Navy has been conducting testing and training activities in the
PMSR Study Area since the PMSR was established in 1946. The tempo and
types of training and testing activities fluctuate because of the
introduction of new technologies, the evolving nature of international
events, advances in warfighting doctrine and procedures, and changes in
force structure (e.g., organization of ships, submarines, aircraft,
weapons, and personnel). Such developments influence the frequency,
duration, intensity, and location of required training and testing
activities. The activities include current activities, previously
analyzed in the 2002 PMSR Environment Impact Statement/Overseas
Environmental Impact Statement (EIS/OEIS), and increases in the testing
and training activities as described in the 2022 PMSR Final EIS/OEIS
(FEIS/OEIS). NMFS promulgated MMPA incidental take regulations relating
to missile launches from SNI from June 3, 2014, through June 3, 2019
(79 FR 32678; June 6, 2014). Since then, the Navy has been operating
under incidental harassment authorizations (IHAs) (84 FR 28462, June
19, 2019; 85 FR 38863, June 29, 2020; and 86 FR 32372, June 21, 2021)
for those similar activities on SNI. For this rulemaking, the Navy is
requesting authorization for marine mammal take incidental to
activities on SNI similar to those they have conducted under these and
previous authorizations, as well as the use of at-surface and near-
surface explosive detonations throughout the PMSR Study Area. The
testing and training activities are deemed necessary to accomplish
Naval Air System Command's mission of providing for the safe and secure
collection of decision-quality data; and developing, operating,
managing and sustaining the interoperability of the Major Range Test
Facility Base at the PMSR into the foreseeable future.
The Navy's rulemaking/LOA application reflects the most up-to-date
compilation of training and testing activities deemed necessary to
accomplish military readiness requirements. The types and numbers of
activities included in the rule account for fluctuations in training
and testing in order to meet evolving or emergent military readiness
requirements. These regulations will cover training and testing
activities over a 7-year period beginning June 2022.
Description of the Specified Activity
A detailed description of the specified activity was provided in
our Federal Register notice of proposed rulemaking (86 FR 37790; July
16, 2021); please see that notice of proposed rulemaking or the Navy's
application for more information. The Navy has determined that
explosive stressors and missile launch activities are most likely to
result in impacts on marine mammals that could rise to the level of
[[Page 40890]]
harassment, and NMFS concurs with this determination. Descriptions of
these activities are provided in section 2 of the 2021 PMSR FEIS/OEIS
(U.S. Department of the Navy, 2021) and in the Navy's rulemaking/LOA
application (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities</a>), and are summarized here.
Dates and Duration
The specified activities can occur at any time during the 7-year
period of validity of the regulations, with the exception of the
activity types and time periods for which limitations have explicitly
been identified (to the maximum extent practicable; see Mitigation
Measures section). The amount of training and testing activities are
described in the Detailed Description of the Specified Activity section
(Table 1).
Geographical Region
The PMSR Study Area is located adjacent to Los Angeles, Ventura,
Santa Barbara, and San Luis Obispo Counties along the Pacific Coast of
Southern California and includes a 36,000-square-mile sea range (see
Figure 1 of the proposed rule). It is a designated Major Range Test
Facility Base and is considered a national asset that exists primarily
to provide test and evaluation information for Department of Defense
(DoD) decision makers and to support the needs of weapon system
development programs and DoD research needs. The two primary components
of the PMSR Study Area are Special Use Airspace and the ocean Operating
Areas. Additional detail can be found in Chapter 2 of the Navy's
rulemaking/LOA application. The Navy plans to conduct launch activities
on San Nicolas Island (SNI), California, for testing and training
activities associated with operations within the PMSR Study Area.
Overview of Training and Testing Within the PMSR Study Area
The Navy categorizes its at-sea activities into functional warfare
areas called primary mission areas. Each warfare community may train in
some or all of these primary mission areas. The Navy also categorizes
most, but not all, of its testing activities under these primary
mission areas. Activities addressed for the PMSR Study Area are
categorized under three primary mission areas: Air warfare (air-to-air,
surface-to-air); Electronic warfare (directed energy--lasers and high-
powered microwave systems); and Surface warfare (surface-to-surface,
air-to-surface, and subsurface-to-surface). Within those three primary
mission areas, there are more specific categories or activity scenarios
that reflect testing and training activities. A description of the
munitions, targets, systems, and other material used during training
and testing activities within these primary mission areas is provided
in Appendix A (Training and Testing Activities Descriptions) of the
2022 PMSR FEIS/OEIS.
The Navy also plans to continue a target and missile launch program
from two launch sites on SNI for testing and training activities
associated with operations within the PMSR Study Area. Missiles vary
from tactical and developmental weapons to target missiles used to test
defensive strategies and other weapons systems. Some launch events
involve a single missile or target, while others involve the launch of
multiple missiles or targets in quick succession. Missiles or targets
launched from SNI fly generally west, southwest, and northwest through
the PMSR Study Area. The primary launch locations are the Alpha Launch
Complex, located 190 meters (m) above sea level on the west-central
part of SNI and the Building 807 Launch Complex, which accommodates
several fixed and mobile launchers, at the western end of SNI at
approximately 11 m (12 yd) above sea level.
Description of Stressors
The Navy uses a variety of platforms, weapons, and other devices,
including ones used to ensure the safety of Sailors and Marines, to
meet its mission. Training and testing with these systems may introduce
acoustic (sound) energy or shock waves from explosives into the
environment. The following subsections describe explosives detonated at
or near the surface of the water and launch noise associated with
missiles launched from SNI for marine mammals and their habitat
(including prey species) within the PMSR Study Area. Because of the
complexity of analyzing sound propagation in the ocean environment, the
Navy relied on acoustic models in its environmental analyses and
rulemaking/LOA application that considered sound source characteristics
and varying ocean conditions across the PMSR Study Area. Stressor/
resource interactions that were determined to have de minimis or no
impacts (i.e., vessel, aircraft, or weapons noise) were not carried
forward for analysis in the Navy's rulemaking/LOA application. NMFS
reviewed the Navy's analysis and conclusions on de minimis sources and
finds them complete and supportable.
Acoustic stressors include incidental sources of broadband sound
produced as a byproduct of vessel movement and use of weapons or other
deployed objects. Explosives also produce broadband sound but are
characterized separately from other acoustic sources due to their
unique hazardous characteristics. There are no sonar activities planned
in the PMSR Study Area. Characteristics of explosives are described
below.
In order to better organize and facilitate the analysis of various
explosives used for training and testing by the Navy, including sonar
and other transducers and explosives, a series of source
classifications, or source bins, was developed by the Navy. The source
classification bins do not include the broadband sounds produced
incidental to vessel or aircraft transits, weapons firing, and bow
shocks.
The use of source classification bins provides the following
benefits:
[ssquf] Provides the ability for new sensors or munitions to be
covered under existing authorizations, as long as those sources fall
within the parameters of a bin;
[ssquf] Improves efficiency of source utilization data collection
and reporting requirements anticipated under the MMPA authorizations;
[ssquf] Ensures a conservative approach to all impact estimates, as
all sources within a given class are modeled as the most impactful
source (having the largest net explosive weight) within that bin;
[ssquf] Allows analyses to be conducted in a more efficient manner,
without any compromise of analytical results; and
[ssquf] Provides a framework to support the reallocation of source
usage (number of explosives) between different source bins, as long as
the total numbers of takes remain within the overall analyzed and
authorized limits. This flexibility is required to support evolving
Navy training and testing requirements, which are linked to real world
events.
Explosives
This section describes the characteristics of explosions during
naval training and testing. The activities analyzed in the Navy's
rulemaking/LOA application that use explosives are described in
Appendix A (PMSR Scenario Descriptions) of the 2022 PMSR FEIS/OEIS.
To more completely analyze the results predicted by the Navy's
acoustic effects model from detonations occurring in-air above the
ocean surface, it is necessary to consider the transfer of energy
across the air-water interface.
[[Page 40891]]
Detonation of an explosive in air creates a supersonic high
pressure shock wave that expands outward from the point of detonation
(Kinney and Graham, 1985; Swisdak, 1975). The near-instantaneous rise
from ambient pressure to an extremely high peak pressure is what makes
the explosive shock wave potentially injurious to an animal
experiencing the rapid pressure change (U.S. Department of the Navy,
2017e). Farther from an explosive, the peak pressures decay and the
explosive waves propagate as an impulsive, broadband sound. As the
shock wave-front travels away from the point of detonation, it slows
and begins to behave as an acoustic wave-front travelling at the speed
of sound. Whereas a shock wave from a detonation in-air has an abrupt
peak pressure, that same pressure disturbance when transmitted through
the water surface results in an underwater pressure wave that begins
and ends more gradually compared with the in-air shock wave, and
diminishes with increasing depth and distance from the source (Bolghasi
et al. 2017; Chapman and Godin, 2004; Cheng and Edwards, 2003; Moody,
2006; Richardson et al. 1995; Sawyers, 1968; Sohn et al. 2000; Swisdak,
1975; Waters and Glass, 1970; Woods et al. 2015). The propagation of
the shock wave in air and then transitioning underwater, is very
different from a detonation occurring deep underwater where there is
little interaction with the surface. In the case of an underwater
detonation occurring just below the surface, a portion of the energy
from the detonation would be released into the air (referred to as
surface blow off), and at greater depths a pulsating, air-filled
cavitation bubble would form, collapse, and reform around the
detonation point (Urick, 1983). The Navy's acoustic effects model for
analyzing underwater impacts on marine species does not account for the
loss of energy due to surface blow-off or cavitation at depth. Both of
these phenomena would diminish the magnitude of the acoustic energy
received by an animal under real-world conditions (U.S. Department of
the Navy, 2018c).
Propagation of explosive pressure waves in water is highly
dependent on environmental characteristics such as bathymetry, bottom
type, water depth, temperature, and salinity, which affect how the
pressure waves are reflected, refracted, or scattered; the potential
for reverberation; and interference due to multi-path propagation. In
addition, absorption greatly affects the distance over which higher-
frequency components of explosive broadband noise can propagate.
Because of the complexity of analyzing sound propagation in the ocean
environment, the Navy relies on acoustic models in its environmental
analyses that consider sound source characteristics and varying ocean
conditions across the PMSR Study Area (Navy, 2019a).
Missiles, rockets, bombs, and medium and large-caliber projectiles
may be explosive or nonexplosive, depending on the objective of the
testing or training activity in which they are used. The planned
activities do not include explosive munitions used underwater.
Missiles, bombs, and projectiles that detonate at or near (within 10 m
(11 yd) of) the water's surface are considered for the potential impact
they may have on marine mammals. All explosives used during testing and
training activities within the PMSR Study Area will detonate at or near
the surface or in-air. Several parameters influence the acoustic effect
of an explosive: the weight of the explosive warhead, the type of
explosive material, the boundaries and characteristics of the
propagation medium(s); and the detonation depth underwater and the
depth of the receiver (i.e., marine mammal). The net explosive weight
(NEW), which is the explosive power of a charge expressed as the
equivalent weight of trinitrotoluene (TNT), accounts for the first two
parameters.
Land-Based Launch Noise on San Nicolas Island
Noise from target and missile launches on SNI can also occur. These
ongoing activities affecting pinnipeds hauled out in the vicinity of
launch sites have been analyzed previously (NMFS 2014, 2019, 2020) and
are summarized below as part of the Navy's rulemaking/LOA application.
As part of previous authorizations, the Navy could conduct up to 40
launch events annually from SNI, but the total may be less than 40
depending on operational requirements. Launch timing will be determined
by operational, meteorological, and logistical factors. Up to 10 of the
40 launches may occur at night, but this is also dependent on
operational requirements, and night-time launches are only conducted
when required by test objectives.
Vessel Strike
Vessel strikes have the potential to result in incidental take from
serious injury and/or mortality. Vessel strikes are not specific to any
particular training or testing activity, but rather are a limited,
sporadic, and incidental result of Navy vessel movement within a study
area.
The number of Navy vessels in the PMSR Study Area at any given time
varies and is dependent on scheduled testing and training requirements.
Navy vessels transit at speeds that are optimal for fuel conservation
or to meet training and testing requirements. Additional detail on
vessel strike was provided in our Federal Register notice of proposed
rulemaking (86 FR 37790; July 16, 2021); please see that notice of
proposed rulemaking or the Navy's application for more information.
Information on Navy vessel movement in the PMSR Study Area is provided
in the Vessel Movement section of this rule.
Detailed Description of the Specified Activities
Planned Training and Testing Activities
Training and testing activities will be conducted at sea, in
designated airspace, and on SNI, within the PMSR Study Area.
The training and testing activities are deemed necessary to
accomplish Naval Air Systems Command's mission of providing for the
safe and secure collection of decision-quality data; and developing,
operating, managing and sustaining the interoperability of the Major
Range Test Facility Base at the PMSR into the foreseeable future.
Collectively, the training and testing activities support current and
projected military readiness requirements into the foreseeable future,
as shown in Table 1.
[[Page 40892]]
Table 1--Maximum Number of Annual Planned Activities in the PMSR Study
Area
[Inclusive of SNI launches]
------------------------------------------------------------------------
Planned
Activity Activity sub category activities
------------------------------------------------------------------------
Aerial Targets (# of targets).. ....................... 176
Surface Targets (# of targets). ....................... 522
Ordnance (# of ordnance)....... Bombs.................. 30
Gun Ammunition......... 281,230
Missiles............... 584
Rockets................ 40
------------------------------------------------------------------------
Most of the factors influencing frequency and types of activities
are fluid in nature (i.e., continually evolving and changing), and the
annual activity level in the PMSR Study Area will continue to
fluctuate. The number of events may not be the same year to year, but
the maximum number of events were predicted annually. Total annual
events will not exceed what is planned in Table 1 above. Training and
testing duration and frequency varies depending on Fleet requirements,
and funding and does not occur on a predictable annual cycle.
Fleet training activities occur over scheduled continuous and
uninterrupted blocks of time, focusing on the development of core
capabilities/skills. Training events in the PMSR Study Area are
conducted to ensure Navy forces can sustain their training cycle
requirements. Primarily, changes occur with increases or decreases in
annual operational tempo of activities, in addition to changes in the
types of aircraft, vessels, targets, ordnance, and tasks that are
actions or processes performed as part of Navy operations.
Future testing depends on scientific and technological developments
that are not easy to predict, and experimental designs may evolve with
emerging science and technology. Even with these challenges, the Navy
makes every effort to forecast all future testing requirements. As a
result, testing requirements are driven by the need to support Fleet
readiness based on emerging national security interests, and
alternatives must have sufficient annual capacity to conduct the
research, development, and testing of new systems and technologies,
with upgrades, repairs, and maintenance of existing systems.
Fleet Training
Fleet training within the PMSR Study Area includes the same types
of warfare of the primary mission areas. Training conducted in
conjunction with testing activities provide Fleet operators unique
opportunities to train with ship and aircraft combat weapon systems and
personnel in scripted warfare environments, including live-fire events.
For example, Fleet training would occur while testing a weapon system,
in which Sailors would experience (be trained in) the use of the system
being tested. Combat ship crews train in conjunction with scheduled
ship testing and qualification trials, to take advantage of the
opportunity to provide concurrent training and familiarization for ship
personnel in maintaining and operating installed equipment, identifying
design problems, and determining deficiencies in support elements
(e.g., documentation, logistics, test equipment, or training). Live and
inert weapons, along with chaff, flares, jammers, and lasers may be
used.
Typically concurrent with testing, surface training available
within the PMSR Study Area includes tracking events, missile-firing
events, gun-firing events, high-speed anti-radiation missile events,
and shipboard self-defense system training, (e.g., Phalanx (Close-in
Weapons System), Rolling Airframe Missile, and Evolved Sea Sparrow
Missile). These events are limited in scope and generally focus on one
or two tasks. Missiles may be fired against subsonic, supersonic, and
hypersonic targets. Certain training events designed for single ships
are conducted to utilize unique targets only available for training in
the PMSR Study Area.
Aviation warfare training conducted in the PMSR Study Area,
categorized as unit-level training, is designed for a small number of
aircraft up to a squadron of aircraft. These training events occur
within the PMSR Study Area, as it is the only West Coast Navy venue to
provide powered air-to-air targets. They are limited in scope and
generally focus on one or two tasks. These scenarios require planning
and coordination to ensure safe and effective training.
Combat Systems Testing
The System Command Program Executive Offices are tasked with
conducting extensive combat systems tests and trials on each new
platform prior to releasing the platform to the Fleet, to include ships
that have been in an extended upgrade or overhaul status. The PMSR
Study Area is the preferred site to conduct these tests, as it offers a
venue for a thorough evaluation of combat and weapons system
performance through the actual employment of weapon systems. The
comprehensive tests are conducted by the responsible Test or Program
Manager, with close cooperation from the Fleet Type Commanders (Surface
Force, Air Force, or Submarine Force). Frequent tests conducted in the
PMSR Study Area are Combat Systems Ship Qualification Trials (CSSQTs).
This is a series of comprehensive tests and trials designed to show
that the equipment and systems included in the CSSQT program meet
combat system requirements. Live and inert weapons, along with chaff,
flares, jammers, and lasers may be used. Naval Sea Systems Command has
recently developed two new reporting programs to test and evaluate
combat and weapons system performance on new classes of ships,
resulting in an increased tempo in the PMSR Study Area.
Explosives At-Surface or Near the Surface
Missiles, bombs, and projectiles that detonate at or near (within
10 m (11 yd) of) the water's surface are considered for the potential
that they could result in an acoustic impact to marine mammals that may
be underwater and nearby. The maximum number of explosives and the
appropriate events modeling bin for the planned activities are provided
in Table 2. Table 2 describes the maximum number of explosives that
could be used in any year under the planned training and testing
activities. Under the planned activities, bin use could vary annually
(but will not exceed the maximum), and the 7-year totals for the
planned training and testing activities take into account that annual
variability.
[[Page 40893]]
Table 2--Explosives Detonating at or Near the Surface by Bins Annually and for a 7-Year Period for Training and
Testing Activities Within the PMSR Study Area
[Inclusive of SNI launches]
----------------------------------------------------------------------------------------------------------------
Maximum number
Maximum number of high
Primary mission area activity of high explosives used
scenarios Explosive bin Munition Type explosive over a 7-year
munitions used period planned
annually activity
----------------------------------------------------------------------------------------------------------------
Surface-Surface................... E1 Gunnery.............. 22,110 154,770
E3 Gunnery.............. 4,909 34,363
E5 Gunnery.............. 1,666 11,662
Air-Surface....................... E5 Rockets.............. 24 168
Air-Surface; Surface-Air.......... E6 Missiles............. 72 504
Air-Surface....................... E7 Missiles, Bombs...... 45 315
Air-Surface; Surface-Air.......... E8 Missiles............. 45 315
Air-Surface; Surface-Surface...... E9 Missiles, Bombs, 58 406
Rockets.
Surface-Surface; Subsurface- E10 Missiles............. 13 91
Surface.
----------------------------------------------------------------------------------------------------------------
Note: Bins E1-E5 are gunnery events that involve guns with high rates of firing ``clusters'' of munitions (e.g.,
>80-200 rounds per minute for Bin E1, 500-650 rounds per minute for Bin E3, and 16-20 rounds per minutes for
Bin E5), hence the high number of HE munitions used during these activities. The numbers above do not reflect
the actual number of events, which can vary and typically last 1-3 hrs. The increase in tempo under the
planned action is a result of an increase in Combat Systems Ship Qualification Trials as discussed in Section
2.2.1 (Current and Proposed Activities) of the 2021 PMSR FSEIS/OEIS.
Explosions that occur during air warfare will typically be at a
sufficient altitude that a large portion of the sound refracts upward
due to cooling temperatures with increased altitude. Based on an
understanding of the explosive energy released by detonations in air,
detonations occurring in air at altitudes greater than 10 m (11 yd) are
not likely to result in acoustic impacts to marine mammals and thus are
not carried forward in the analysis.
Missile Launch Activities on SNI
A combination of missiles and targets are launched from SNI,
including aerial targets, surface-to-surface missiles, and surface-to-
air missiles, with aerial targets representing the majority of the
launches from SNI. For information on the sound levels these missiles
produce please refer to Section 1.2 of the application. Under this
rule, missiles launched from SNI will have sound source levels the same
or lower than missiles described above or previously launched from the
island.
Table 3 shows the number of launches that have occurred at SNI
since 2001 and the number of launch events that have occurred during
the associated comprehensive reporting timeframes. There have not been
more than 25 launch events conducted in any given year since 2001.
However, as part of the planned activities, 40 launch events per year
from SNI involving various missiles and aerial targets are requested
for take authorization.
Table 3--The Total Number of Launches That Have Occurred Since 2001 at
SNI
------------------------------------------------------------------------
Number of
Time period launches
------------------------------------------------------------------------
August 2001 to March 2008................................... 77
June 2009 to June 2014...................................... 36
June 2014 to June 2019...................................... 27
------------------------------------------------------------------------
Vessel Movement
The number and type of scheduled Navy vessels or Navy support
vessels operating within the PMSR Study Area depends on the
requirements for mission-essential activities, such as the test and
evaluation of new weapon systems or qualification trials for upgraded
existing ships. The types of Navy vessels or Navy support vessels
operating within the PMSR are highly variable and range from small work
boats used for nearshore work to major Navy combatants, up to and
including aircraft carriers. Navy activities are conducted in large
subdivisions of the total PMSR Study Area, and blocks of range times
are allocated based on activity requirements. Most activities include
either one or two vessels and may last from a few hours to 2 weeks.
Vessel movement as part of the planned activities will be widely
dispersed throughout the PMSR Study Area.
The PMSR Study Area military vessel activity can be divided into
two categories: project ships and support boats. Project ships are
larger Navy combatant vessels, such as destroyers, cruisers, or any
other commissioned Navy or foreign military ship directly involved in
events. They may operate anywhere within the PMSR Study Area depending
on activity needs, although most ship operations occur within 60 nmi
(111 km) of SNI. Most project ships and scheduled training ships
operating in the PMSR Study Area transit there from off-range (e.g.,
San Diego). Support boats are smaller vessels directly involved in test
activities and operate from the Port Hueneme Harbor. While they may
also operate throughout the PMSR Study Area, support boat operations
occur mainly within the range areas receiving the most use. Smaller
support boats have limited range and usually operate close to shore
near Point Mugu and SNI. The activity level of ships or boats is
characterized by a ship or boat event.
The Navy tabulated annual at-sea vessel steaming days for training
and testing activities projected for the PMSR Study Area. Approximately
333 annual events of Navy at-sea vessel usage will occur over 2,085
hours (approximately 87 at-sea days) in the PMSR Study Area (Table 4).
In comparison to the Southern California portion (SOCAL) of the Hawaii-
Southern California Training and Testing (HSTT) Study Area, the
estimated number of annual at-sea days in the PMSR Study Area is less
than 3 percent of what occurs in SOCAL annually.
[[Page 40894]]
Table 4--Annual At-Sea Vessel Steaming Days for Training and Testing Activities Projected for the PMSR Study
Area
----------------------------------------------------------------------------------------------------------------
Planned activity
Vessel Ship type -------------------------------
Events Hours
----------------------------------------------------------------------------------------------------------------
CG......................................... Guided Missile Cruiser............. 41 275
DDG-51..................................... Guided Missile Destroyer........... 36 132
LHA........................................ Amphibious Assault Ship............ 40 200
SDTS....................................... Self-Defense Test Ship............. 50 190
WMSL-751/OPC............................... Coast Guard Cutter................. 6 28
LCS Variant (LCS 1)........................ Littoral Combat Ship............... 40 360
LCS Variant (LCS 2)........................ 40 360
FF......................................... Future Frigate..................... 40 360
DDG 1000 Zumwalt Class..................... Guided Missile Destroyer........... 3 30
LHD........................................ Amphibious Assault Ship............ 4 13
LPD........................................ Amphibious Transport Deck.......... 4 13
LSD........................................ Dock Landing Ship.................. 4 13
CVN........................................ Nuclear-Powered Aircraft Carrier... 6 16
SSBN....................................... Ballistic Missile Submarine........ 19 95
-------------------------------
Total.................................. ................................... 333 2,085
----------------------------------------------------------------------------------------------------------------
Standard Operating Procedures
For training and testing to be effective, personnel must be able to
safely use their sensors and weapon systems as they are intended to be
used in military missions and combat operations and to their optimum
capabilities. Because standard operating procedures are essential to
safety and mission success, the Navy considers them to be part of the
planned Specified Activities, and has included them in the
environmental analysis (see Chapter 3 (Affected Environment and
Environmental Consequences) of the 2021 PMSR FSEIS/OEIS for further
details). Additional details on standard operating procedures were
provided in our Federal Register notice of proposed rulemaking (86 FR
37790; July 16, 2021); please see that notice of proposed rulemaking or
the Navy's application for more information.
Comments and Responses
We published the proposed rule in the Federal Register on June 16,
2021 (86 FR 37790), with a 45-day comment period. With that proposed
rule, we requested public input on our analyses, our preliminary
findings, and the proposed regulations, and requested that interested
persons submit relevant information and comments. During the 45-day
comment period, we received four comment submissions: one from the
Marine Mammal Commission (Commission); one from a non-governmental
organization, the Natural Resources Defense Council (NRDC); and two
from private citizens. The private citizens' comments, one of which
expressed general disapproval of the action, and the other of which was
unrelated to this action, have been reviewed, but did not include
information pertinent to NMFS' decision in this final rule, and
therefore, are not addressed further.
NMFS has reviewed and considered all public comments received on
the proposed rule and issuance of the LOA. All substantive comments and
our responses are described below. We organize our comment responses by
major categories.
Density Estimates
Pinniped Density Estimates
Comment 1: The Commission commented that the following pinniped
information was omitted in Navy documents for the PMSR Study Area, but
has been previously included in other Navy environmental compliance
documents as well as versions of the Navy Marine Species Density
Database (NMSDD).
<bullet> Abundance(s), percentages of occurrence in the area and
whether those percentages were dependent on age and sex, and
percentages within the three stipulated geographic distances from shore
for California sea lions. Only fall and winter densities were parsed by
the three geographic distances, spring and summer were parsed by two
distances (e.g., see Figures 7-40 to 7-43 in Navy 2020 technical
report, ``Quantifying Acoustic Impacts on Marine Species: Methods and
Analytical Approach for Activities at the Point Mugu Sea Range'')
(hereinafter referred as the ``PMSR Density Technical Report'').
<bullet> Abundance(s), percentages of the population at sea, and
percentages within the two depth regimes for Guadalupe fur seals.
<bullet> Abundance and whether haulout correction factors or
percentages of the population at-sea were incorporated for harbor
seals, as was done for other locations (e.g., Navy 2019 technical
report, ``U.S. Navy Marine Species Density Database Phase III for the
Northwest Training and Testing Study Area'').
Response: The Navy's application indicated in Section 6.5.2.1.4
(Marine Mammal Density) that to characterize the marine species density
for large areas such as the PMSR Study Area, the Navy compiled data
from several sources and the PMSR densities were in most cases
consistent with the densities in the Hawaii-Southern California
Training and Testing (HSTT) or Northwest Training and Testing (NWTT)
Study Areas. The Navy developed a protocol to select the best available
data sources for each species, distribution area, and time of year
(season). The resulting Geographic Information System database, the
NMSDD, includes seasonal density values for every marine mammal species
present within the PMSR Study Area (U.S. Department of the Navy, 2017d,
2019a). The Navy applied these densities to the PMSR Study Area and
relied on detailed explanations presented previously in the technical
reports, ``Navy Marine Species Density Database Phase III for the
Hawaii-Southern California Training and Testing Study Area (2017)''
(hereinafter ``HSTT Density Technical Report'') and the ``U.S. Navy
Marine Species Density Database Phase III for the Northwest Training
and Testing Study Area'' (hereinafter ``NWTT Density Technical
Report'').
[[Page 40895]]
The Navy has provided additional details on the density derivations
in this final rule in this Comments and Responses section to address
the Commission's comments. It is important to note that the Navy is
continuously updating species densities in the NMSDD based on new
survey data, updated species distribution models, telemetry data, and,
in the case of pinnipeds, new information on post breeding and molting
distributions and haulout behavior. The availability of updated density
estimates for use in the NMSDD may not coincide with the Navy's
schedule for acoustic impacts modeling, which runs simultaneously for
numerous projects, and can lead to differences in densities used based
on timing of different projects.
California sea lions--The densities used for the PMSR Study Area
were taken from the latest density derivations presented in the NWTT
Density Technical Report. The California sea lion densities in the NWTT
Study Area were based on in-water abundance estimates by Lowry and
Forney (2005) off the California coast. The Navy only needs in-water
densities to complete acoustic effects modeling, so these data were of
particular interest and relevancy. Because the abundance estimates were
for sea lions occurring in the water (as opposed to at haulouts), the
Navy did not need to derive an in-water abundance for the density
calculation, and the other factors, such as age- and sex- specific
haulout correction factors that are typically applied, were not needed.
The Navy used the in-water abundance provided by Lowry and Forney
(2005) to derive an in-water density. Figures 7-40 through 7-43 in the
Navy 2020 PMSR Density Technical Report depicted densities for
California sea lions in the PMSR Study Area used three strata defined
by distance from shore (0 to 40 km (0 to 22 nmi), 40 to 70 km (22 to 38
nmi), and 0 to 450 km (0 to 243 nmi)). The third stratum was included
as an attempt to account for a wider distribution of sea lions
documented during El Ni[ntilde]o conditions. For the two figures
appearing to have only 2 strata (Figures 7-40 and 7-43), the density
ranges shown in the legends span two of the three uniform density
estimates, making it appear as if there are only two strata. In Figure
7-40 of the Navy's 2020 PMSR Density Technical Report, the two strata,
40 to 70 km (22 to 38 nmi) and 0 to 450 km (0 to 243 nmi), had
densities that fall within the range 0.0037-0.0065 sea lions/km\2\ and
therefore used one color. A similar overlap in densities occurs in
Figure 7-43, except that in this figure the first two strata (0 to 40
km (0 to 22 nmi) and 40 to 70 km (22 to 38 nmi)) represent densities in
the same density range shown in the legend and therefore are the same
color on the map.
The following description of the density derivation for California
sea lions is taken from the NWTT Study Area Technical Report (Navy
2020).
Seasonal at-sea abundance is estimated from strip transect
survey data collected offshore along the California coastline (Lowry
and Forney, 2005). The survey area was divided into 7 strata,
labeled A through G. Abundance estimates from the two northernmost
strata (A and B, note this refers to a different area/set of strata
than are addressed in the paragraph above) were used to estimate the
abundance of California sea lions occurring in the [NWTT] Study
Area. While the northernmost stratum (A) only partially overlaps
with the [NWTT] Study Area, this approach conservatively assumes
that all sea lions from the two strata would continue north into the
Study Area . . . The abundance estimates used in this report, based
on Lowry and Forney (2005), were: 2,822 sea lions in fall, 3,977 in
spring, and 3,288 in winter. An estimate of 3,000 male sea lions is
used for the month of August. Projected 2017 seasonal abundance
estimates were derived by applying an annual growth rate of 5.4
percent (Carretta et al. 2017) between 1999 and 2017 to the
abundance estimates from Lowry and Forney (2005). No correction for
hauled-out sea lions was needed because counts were of sea lions in
the water (Lowry and Forney, 2005).
The strata used to calculate densities were based on
distribution data from Wright et al. (2010) and Lowry and Forney
(2005) indicating that approximately 90 percent of California sea
lions occurred within 40 km (22 nmi) of shore and 100 percent of sea
lions were within 70 km (38 nmi) of shore. The offshore distribution
is consistent with survey data reported by Oleson et al. (2009) and
migration patterns observed by Gearin et al. (2017), which showed
that males remained within the 1,000 m (1,094 yd) isobath as they
migrated between Puget Sound and the Channel Islands. Sea lions
tagged in Puget Sound and tracked as they traveled along the U.S.
West Coast were within a mean distance of 14 nmi (26 km) from shore
(DeLong et al. 2017). A third stratum was added that extends from
shore to 450 km (243 nmi) offshore to account for anomalous
conditions, such as changes in sea surface temperature and upwelling
associated with El Ni[ntilde]o, during which California sea lions
have been encountered farther from shore, presumable seeking prey
(DeLong and Jeffries, 2017; Weise et al. 2010). Sample density
calculations are provided below.
Fall Density = (7,273 sea lions x 0.90)/11,744 km\2\ = 0.5573 sea
lions/km\2\ (0 to 40 km Stratum)
Spring Density = (10,249 sea lions x 0.10)/791 km\2\ = 1.2951 sea
lions/km\2\ (40 to 70 km Stratum)
Winter Density = (8,473 sea lions x 1.00)/143,518 km\2\ = 0.0590 sea
lions/km\2\ (0 to 450 km Stratum)
August Density = 3,000 sea lions/93,747 km\2\ = 0.0288 sea lions/
km\2\ (0 to 40 km Stratum)
Densities in the NWTT Density Technical Report were the most
recently calculated densities for California sea lion and were used
instead of densities calculated for the HSTT Density Technical Report
(U.S. Department of the Navy, 2017).
Guadalupe fur seals--A more detailed description of the density
derivation for Guadalupe fur seal was missing from the PMSR Density
Technical Report, but is provided here. Densities for Guadalupe fur
seals were derived for both the HSTT Study Area and later for the NWTT
Study Area. However, following completion of acoustic impact modeling
for the HSTT EIS/OEIS, new data became available on the abundance and
distribution of Guadalupe fur seals in southern California. These data
showed that the fur seals were distributed farther offshore than
presented in the HSTT Density Technical Report. Densities for Guadalupe
fur seal off California were revised for use in subsequent projects,
including the 2022 PMSR EIS/OEIS, as noted in a footnote in the HSTT
Density Technical Report. A description of the derivation of the
updated densities for Guadalupe fur seal was prepared but was not
appended to the HSTT Density Technical Report and was not otherwise
available to the public. The same data prompting the revised densities
for the HSTT Study Area were used in deriving densities for Guadalupe
fur seals in the NWTT Study Area, and a detailed explanation of how the
data were used in the NWTT Study Area is described in the NWTT Density
Technical Report. However, it would not be possible to derive the
revised HSTT densities, later applied to the PMSR Study Area, from
information in the NWTT Density Technical Report. Therefore, a
description of the revised HSTT density derivation for Guadalupe fur
seal is provided below. These densities were used for the PMSR Study
Area acoustic analysis and are shown in the PMSR Density Technical
Report.
To determine the density of Guadalupe fur seals in the Southern
California area, the entire population (33,485 fur seals) was divided
by the area of the NMFS Southern California Stratum seaward of the
3,000 m (3,281 yd) isobath. The Southern California portion of the HSTT
Study Area extends to just north of Isla Guadalupe, so a majority of
the range of the Guadalupe fur seal overlaps with the offshore
[[Page 40896]]
portion of the SOCAL Range Complex. Guadalupe fur seals are expected to
occur year-round in the Southern California portion of the HSTT Study
Area, with abundance in the region varying seasonally and by life stage
(Norris, 2017). In summer (June-August), adult males are expected to be
hauled-out on Guadalupe Island south of the HSTT Study Area. Adult
females would also be expected to be on or in the vicinity of Guadalupe
Island in summer and south of the Study Area. Satellite-tagged
juveniles and weaned pups (<2 years old) have been shown to migrate
north after the breeding season through the Southern California portion
of the HSTT Study Area and to areas north of the Study Area and remain
there from June through November (i.e., summer and fall) (Norris 2017).
Seasonal densities were calculated by estimating the percentage of
the population occurring at sea in HSTT the Study Area for each season.
For all life stages combined, approximately 73 percent of the
population is expected to be in the HSTT Study Area in winter and
spring (non-breeding season) and approximately 33 percent of the
population is expected to be in the HSTT Study Area in summer and fall,
encompassing the breeding season (Norris 2017). Spatially, two thirds
of the Guadalupe fur seal population (66.7 percent) would be expected
in the Baja stratum and one third (33.3 percent) would be expected in
the SOCAL stratum during the year. Furthermore, while at sea, healthy
Guadalupe fur seals are not expected to haul out. Sick or stranded fur
seals may be sighted along the coast or on offshore islands during the
non-breeding season, however, these cases are not representative of the
population at sea. Therefore, no adjustment to account for hauled-out
fur seals is needed.
Densities are calculated by estimating the number of fur seals in
the two strata during winter/spring and summer/fall. The spatial area
for the SOCAL stratum is approximately 66,058 km\2\ (19,259 nmi\2\) and
the spatial area for the Baja stratum is approximately 152,889 km\2\
(44,575 nmi\2\).
SOCAL Offshore (>3,000 m (3,281 yd) isobath)
Winter/Spring: (33,485 x 0.73) x 0.333/66,058 km\2\ = 0.1232 fur
seals/km\2\
Summer/Fall: (33,485 x 0.33) x 0.333/66,058 km\2\ = 0.0557 fur
seals/km\2\
Extrapolating these densities into the PMSR likely overestimated
occurrence in the PMSR Study Area, because Guadalupe fur seals are more
prevalent farther south off southern California and Baja California,
Mexico where breeding colonies are located.
Harbor seals--A density estimate for PMSR Study Area was
extrapolated from the NWTT Study Area. As described below, an in-water
abundance was calculated using published haulout correction factors and
used to estimate an annual density. The following description from the
NWTT Density Technical Report is provided.
An estimate of 30,968 harbor seals make up the California stock
(Carretta et al. 2017). As with the Washington and Oregon Coast
stock, growth is assumed to be flat (Carretta et al. 2017; DeLong
and Jeffries, 2017). Based on surveys in 2002 and 2004, Lowry et al.
(2008) estimated that 37.8 percent of harbor seals in the California
stock are in northern California, defined as the area from Point
Reyes to the California/Oregon border (i.e., the coastline from
38.00 N to 42.000[deg] N). Harbor seals in northern California are
expected to be in the water 36 percent of the time (Harvey and
Goley, 2011), and a single stratum extending 30 km (16 nmi) from
shore between 38.00 N to 42.000[deg] N along the California
coastline was used to define the spatial area.
Density = (30,968 x 0.378) x 0.36/15,496 km\2\ = 0.2719 seals/km\2\
As shown in the PMSR Density Technical Report (Navy 2020), the Navy
used an annual harbor seal density of 0.2719 areas within 50 miles
around all known haulout sites within the PMSR Study Area. Zero density
was used beyond 50 miles from shore.
Comment 2: The Commission also comments that the area metrics
necessary to derive the density estimates were omitted by the Navy's
2020 PMSR Density Technical Report. Since the densities were exactly
the same for elephant seals and northern fur seals in that report as
had been used previously for the HSTT Study Area in the HSTT Density
Technical Report (Navy 2017), the same presumed occurrence areas had to
have been used. For northern fur seals, the area used was based on the
NMFS SOCAL stratum for its vessel-based surveys (i.e., Barlow 2010);
while for elephant seals, the area was based on the Navy SOCAL modeling
area (Department of the Navy 2017c). None of the underlying abundance
data that were provided in the reports above are related to either of
those areas. As such, it is unclear why the Navy felt it necessary to
use two different areas, when neither of them relates to the abundance
data. Both areas are similar in extent, with the Navy SOCAL modeling
area being approximately 13 percent larger than the NMFS SOCAL stratum.
Response: As noted in the comment, the densities for northern fur
seal and northern elephant seal used for the PMSR acoustic analysis
were extrapolated from the HSTT Study Area, and the derivations of
those densities were described in detail in the HSTT Density Technical
Report. The northern fur seal density calculation used the NMFS SOCAL
Bight stratum (318,541 km\2\; 92,872 nmi\2\) to represent fur seal
distribution and the northern elephant seal density calculation used
the Navy SOCAL modeling area stratum (361,872 km\2\) to represent
northern elephant seal distribution. While there is not a substantial
difference between the sizes of the two areas (as pointed out in the
comment), and both areas were used in the pinniped density estimates
for these and other species, the smaller NMFS SOCAL Bight Stratum was
used for the northern fur seal calculation, because most northern fur
seals were expected to move north of San Miguel Island after the
breeding season and would not be distributed over as wide an area as
elephant seals off California. Northern elephant seals in the
California stock also migrate north of the Channel Islands after
breeding and molting periods, and elephant seals from the Mexico
population are known to migrate into SOCAL from the south. Elephant
seals would be distributed over a larger area off California and
farther offshore, so the larger of the two strata, the Navy SOCAL
Modeling Stratum, was used for elephant seals.
At the time that HSTT Phase III densities were calculated, the Navy
sought to estimate densities in pre-defined strata to focus where
densities were needed for modeling acoustic impacts. The practice was
relevant to creating models of cetacean densities, which were based on
repeated surveys of the California Current Ecosystem (CCE) and other
well defined areas; however, published descriptions of pinniped
abundances and distributions were based mainly on seals and sea lions
at haulout sites with some complimentary telemetry data, and less often
on line transect surveys at sea. Beginning with the NWTT EIS/OEIS, the
Navy moved away from using pre-defined strata for pinnipeds and relied
more on published data describing distributions based on depth,
distance from shore, and other habitat preferences as well as telemetry
data to define pinniped strata.
Comment 3: The Commission comments that for the other three
pinniped species (harbor seal, California sea lion, and Guadalupe fur
seal), some of the densities provided in the Navy 2020 PMSR Density
Technical Report differ by orders of magnitude from those provided in
the Navy's technical report, HSTT Density Technical Report (Navy
[[Page 40897]]
2017), even though some of the same data appear to have been used and
are based on some of the same geographic areas. The Commission said
that the Navy stated that, although the density estimates may not be
accurate given interannual variability and fluctuations in population
size or may not exactly reflect spatial distributions, they represent
the best available science due to the paucity of other data and are
considered to be the most conservative in the technical report Navy
2020 PMSR Density Technical Report. The Commission further claims it is
unclear how such a statement can be evaluated when the underlying data
were not provided for public review and comment. As such, the
Commission recommends that, prior to issuing any final rule, NMFS
provide information regarding the data and assumptions used to inform
the pinniped density estimates and allow for additional public review
and comment on that information.
Response: NMFS has provided additional detail regarding how the
densities for PMSR were calculated and the underlying assumptions in
the response to Comment 1. The Navy maintains the Navy Marine Species
Density Database (NMSDD), which uses standard protocols to support
spatially explicit density estimates for all of the Navy training and
testing rules. The Navy develops NMSDD reports for all major training
regions (e.g., HSTT and NWTT) and the reports detail the standard
methods used across all areas and specify the results for the given
region/Study Area. The HSTT and NWTT NMSDD reports have been provided
for public review and comment through the National Environmental Policy
Act (NEPA) (draft EIS) and MMPA (proposed rule) compliance
documentation associated with the Navy's NWTT and HSTT actions over the
last few years. The Point Mugu proposed rule included an overview of
the methods used for estimating density in the PMSR, and referenced the
more detailed NMSDD report for HSTT, which NMFS considered sufficient
to support the necessary determinations. As further described below,
while the proposed rule referenced the HSTT NMSDD report in supporting
the PMSR density estimates, in some cases the more up-to-date estimates
from the NWTT NMSDD report were actually used to support the NMSDD
estimate for PMSR. While this inadvertently omitted reference to the
NWTT report created some confusion, the density estimates presented in
the proposed rule were correct, the general methodology was available
for public review, and our findings remain the same. Below we include
additional information to address the Commission's comment regarding
the densities differing by order of magnitude.
New densities were derived for the NWTT Study Area using an
improved approach, and those densities were used for PMSR Study Area
instead of the older HSTT densities that the Commission is making
comparisons to. As the Commission points out, the new densities were in
some cases orders of magnitude greater than the older HSTT densities.
The increases were due to several factors. The main factors were (1)
the calculation of more refined in-water abundance estimates using
species-specific and seasonal haulout factors for example, and (2)
smaller and more representative areas of occurrence over which the in-
water abundance estimates were distributed to calculate the densities.
Generally, smaller distribution areas translate to higher densities
when the abundance estimates are about the same.
For example, for harbor seals, the highest HSTT density was 0.0183.
The highest density for the NWTT Study Area, which was 0.2719, was the
density used for the PMSR Study Area. The HSTT density was based on an
abundance of 6,813 seals in southern California, approximately 22
percent of the population. The NWTT density assumed 37.8 percent of
seals occurred in northern California for an abundance of 11,706 seals.
So, one factor contributing to an increase in density is an increase in
abundance. For the HSTT Study Area, we used the Southern California
stratum to be consistent with strata used for cetacean densities, but,
in retrospect, this was an overestimation (and oversimplification) of
where harbor seals would most likely occur. For the NWTT Study Area, we
used a distribution area along the coastline extending from shore to 30
km (16 nmi) offshore, which is considerably smaller than the Southern
California stratum and a better representation of the typical
distribution of harbor seals. Since harbor seals are more common
farther north, off central and northern CA where approximately 88
percent of the population occurs, it was more appropriate to use the
NWTT density instead of the HSTT density for PMSR Study Area.
For California sea lions, the highest HSTT density was 0.0596
(excluding San Diego Bay and Silver Strand). The highest density in
NWTT was 1.49. Similar to the approach used in HSTT for harbor seals,
the in-water abundance from Lowry and Forney (2005) was distributed
over the expansive SOCAL Modeling Area to ensure a density was provided
in all areas where modeling was needed. In contrast, for the NWTT Study
Area, the distribution area was based more on California sea lion's
preferred habitat, which was divided into three strata based on
distance from shore, resulting in a more realistic range that better
represented where the sea lions predominantly occur. This resulted in a
smaller distribution area and a larger density. The details of these
calculations are provided in the NWTT Density Technical Report.
For Guadalupe fur seal, the source data on abundance and
distribution changed based on new research available after the HSTT
densities were finalized, as explained in Comment 1. A comparison with
the older HSTT densities published in the HSTT Density Technical Report
is not relevant.
Comment 4: The Commission commented that it had previously provided
extensive comments regarding the manner in and the data upon which the
Navy had derived its pinniped density estimates, including for the
densities that were used by the Navy for the HSTT Study Area, as
provided in Navy (2017c; see the Commission's 13 July 2018 letter). The
Commission comments that both NMFS and the Navy failed to recognize
that the original abundance estimate that they had used of 18,430
elephant seals from Lowry (2002) was based on elephant seal counts from
only Santa Barbara Island (SBI), San Clemente Island (SCI), and SNI
(Navy 2017c). Navy (2017c) specified that large rookeries also occur on
San Miguel Island (SMI) and Santa Rosa Island (SRI), but both islands
are located at least 55 km (30 nmi) north of the HSTT Study Area and
thus were not included. That may be appropriate for the HSTT Study
Area, but SMI and SRI are both well within the PMSR Study Area. A total
of 37,294 elephant seals were sighted at SBI, SNI, SMI, and SRI in 2001
(Lowry 2002), which is greater than the 36,646 seals that NMFS
estimated would occur in the PMSR Study Area presently. If the relevant
abundance estimates had been forward-projected using the applicable
3.8-percent growth rate into 2021, the California population estimate
would be 81,618 elephant seals. Added to the Mexico population
estimate, 112,618 seals would be expected to occur in the PMSR Study
Area rather than the 36,646 seals used to inform the density estimate
for the proposed rule. An underestimation by a factor of more than
three is not considered
[[Page 40898]]
insignificant. Moreover, NMFS cannot deem one growth rate best
available science for incidental taking purposes and another best
available science for its Stock Assessment Reports (SARs), particularly
since NMFS used the same overall stock abundance for both purposes
(Tables 5, 31, and 32 in the proposed rule). At a minimum and until
additional data are provided for the other pinniped species and
additional assumptions are provided for elephant seals, the Commission
recommends that NMFS (1) re-estimate the density for elephant seals
based on (a) the 2001 abundance of 37,294 elephant seals from SBI, SNI,
SMI, and SRI (Lowry 2002) forward-projected to 2021 using the 3.8-
percent growth rate from Lowry et al. (2014) for the California
population, and (b) at least 31,000 seals from Lowry et al. (2014) as
representative of the Mexico population; and (2) then re-estimate the
numbers of takes accordingly in the final rule.
Response: This Commission is correct that San Miguel Island (SMI)
and Santa Rosa Island (SRI) are in PMSR Study Area and inhabited by
elephant seals during molting and breeding periods. However, elephant
seals travel north and west of the PMSR Study Area (post breeding/
molting) as far as the Gulf of Alaska and the central North Pacific
(e.g., Robinson et al. 2012), and the density estimated for the PMSR
Study Area assumed a large percentage of elephant seals remained in the
PMSR Study Area year round. This conservative assumption overestimates
the abundance in the PMSR year round and, while not ideal, essentially
offsets the lack of abundance data from SMI and SRI that were left out
of the density calculations for the PMSR Study Area. Furthermore, when
breeding and molting in California, elephant seals are mainly hauled
out or near haulout sites, with the exception of short foraging bouts
by lactating females. Therefore, time in the water, particularly from
shore, while in the PMSR Study Area is less than assumed in the density
estimate, further reducing the probability of exposures.
A growth rate of 1.7 percent was applied to the abundance estimate
for elephant seals in southern California, as described in the HSTT
Density Technical Report. The growth rate was not used to predict
future, unpredictable changes in species' abundance (i.e., ``forward
project''), but rather to estimate changes in abundance from the most
recent survey date to the present time. That is, the Navy only brought
the abundance from the date of the latest survey up to the time of the
analysis by applying a published annual growth rate to some species'
abundances. If an abundance was based on a 10 year old survey, then the
Navy used the growth rate to calculate an estimated abundance for ``the
present time.'' The reasoning for this approach is abundance for some
species has been impacted by UMEs or El Nino events or higher
recruitment years since the most recent surveys were conducted, and in
some cases it may be reasonable to assume a growth rate accounts for
those factors and can be used to estimate a present day abundance. The
analysis is not attempting to forecast abundances or predict future
changes due to UMEs or climate change, etc., rather it is attempting to
update an older abundance where appropriate, to better represent
species' density at the time of analysis. The MMC commented that
different growth rates were used in the calculation of elephant seal
abundance. The discussion in the HSTT Density Technical Report (Section
11.1.3) reviews two approaches to estimating the abundance: (1) using
island-specific abundances from the three islands (SBI, SNI, and SCI)
from Lowry (2002) and a 1.7 percent growth rate, and (2) using the 2010
pup count and a multiplier from Lowry et al. (2014) and a 1.1 percent
growth rate. The 1.1 percent growth rate is the average growth rate of
populations on the three islands (SBI, SNI, and SCI) (Lowry et al.
2014). The growth rate of 3.8 percent reported in the 2014 SAR
(Carretta et al. 2015) is for the entire population. Given their
migratory behavior, which differs by sex and lifestage, it is not
realistic to assume that 112,618 elephant seals would be in the PMSR
Study Area at any time. While not relevant to the PMSR density, the
Navy notes that in the most recent version of the SAR (Carretta et al.
2021) NMFS has revised the annual growth rate for the population down
to 3.1 percent, further illustrating the variability and level of
imprecision in estimating abundances and densities, particularly when
attempting to project changes. The MMC recommended estimating the
Mexico population of elephant seals at 31,000 seals. The Navy also
considers this to be an overestimation based on studies by Elorriaga-
Verplancken et al. (2015) and Garcia-Aguilar et al. (2018) indicating
the population is in decline. Garcia-Aguilar et al. (2018) cite a 2009
abundance of 22,000 seals. Applying the -3.2 percent annual growth rate
from Elorriaga-Verplancken et al. (2015) to the 2009 population
estimate reduces that population to approximately 18,000 seals in 2015
(time of analysis). Most of the seals would only transit through the
HSTT Study Area, limiting their time in the HSTT Study Area and
potential for exposure to acoustic stressors, as explained in the HSTT
Density Technical Report. Based on these factors, an abundance estimate
of 15,083 seals occurring in the HSTT Study Area is a reasonable and
conservative estimate.
NMFS has reviewed the additional information provided by the Navy,
and agrees that the information has been applied appropriately to
develop density and population numbers.
Comment 5: The Commission states that pinniped densities must be
refined for the Navy's Phase IV compliance documents. The Commission
recommends that NMFS consult with the Navy and experts in academia and
at its own Science Centers to develop more refined pinniped density
estimates that account for pinniped movements, distribution, at-sea
correction factors, and density gradients associated with proximity to
haulout sites or rookeries.
Response: For future Navy Phase IV compliance documents (e.g.,
EISs), the Navy explained that it did and will continue to consult with
authors of the papers relevant to the analyses as well as other experts
in academia and at the NMFS Science Centers during the development of
the Navy's analyses. During the development of the HSTT and NWTT
Density Technical Reports, which supplied densities for the PMSR
analysis, the Navy had ongoing communications with various subject
matter experts and specifically discussed pinniped movements, the
distribution of populations within the study areas to support the
analyses, the pinniped haulout or at-sea correction factors, and the
appropriateness of density gradients associated with proximity to
haulout sites or rookeries. As shown in the references cited, the
personal communications with researchers have been made part of the
public record, although many other informal discussions with colleagues
have also assisted in the Navy's approach to the analyses presented.
Moving forward in Phase IV, the Navy has continued to engage with
pinniped experts to improve the representation of species' occurrence
and distribution by calculating monthly densities as appropriate for
each species and basing distribution areas on habitat preferences and
region specific haul out behavior. Revised and updated densities for
the California coast will also apply to the PMSR Study Area which is
being reanalyzed as part of the new Hawaii-California Study Area (HCTT)
EIS/OEIS project.
[[Page 40899]]
Cetacean Density Estimates
Comment 6: The Commission comments that similar to the pinniped
densities, the Navy did not specify the underlying data and assumptions
used to estimate most of its cetacean density estimates for the PMSR
NMSDD in the technical report, ``Quantifying Acoustic Impacts on Marine
Species: Methods and Analytical Approach for Activities at the Point
Mugu Sea Range'' (Navy 2020). The lack of transparency does not afford
either the Commission or the public an opportunity to provide informed
comments. Further, many of the densities in the same geographic areas
differ by an order of magnitude or more from those provided in the
technical report, ``U.S. Navy Marine Species Density Database Phase III
for the Hawaii-Southern California Training and Testing Study Area
Navy'' (Navy 2017) and/or Becker et al. (2020), which included updated
models of some of the densities that were provided in ``U.S. Navy
Marine Species Density Database Phase III for the Hawaii-Southern
California Training and Testing Study Area Navy'' (Navy 2017). The
Commission understands that densities provided by Becker et al. (2020)
are considered best available science, and it is unclear why those were
not used for the PMSR Study Area. Therefore, the Commission recommends
that, prior to issuing any final rule, NMFS provide information
regarding the data and assumptions used to inform the cetacean density
estimates, allow for additional public review and comment on that
information, and, if Becker et al. (2020) was not used to inform those
estimates, explain why.
Response: At the time that the Navy's acoustic modeling and
analysis was conducted Becket et al. 2020 was not available. The Navy
did consult with E. Becker to ensure consistency with the information
in the paper that was published in 2020.
For the HSTT Phase III analysis, the HSTT Density Technical Report
(cited as Navy 2017c in the MMC comment above), density estimates from
Becker et al. (2016; ``Moving Towards Dynamic Ocean Management: How
Well Do Modeled Ocean Products Predict Species Distributions?'', Remote
Sensing, 8, 149) were used; these estimates were based on distribution
models (SDMs) developed from line-transect survey data collected within
the Southwest Fisheries Science Center (SWFSC) CCE study area from
1991-2009. Subsequently, for the NWTT Phase III analysis, the NWTT
Density Technical Report (Navy 2019), updated density estimates were
available, and these were based on line-transect survey data collected
within the CCE study area during summer and fall from 1991-2014. Since
the updated models included the 2014 anomalously warm year, a greater
range of habitat conditions was available to parameterize the SDMs, and
they were developed using improved modeling methods. Multi-year (1991-
2014) average density surfaces from these SDMs were developed for 13
cetacean species and one small beaked whale guild (the guild includes
Cuvier's beaked whale and species from the genus Mesoplodon), and were
provided to the Navy for the NWTT Phase III analysis. A subset of these
models was subsequently published in 2020 (Becker et al. 2020,
``Performance evaluation of cetacean species distribution models
developed using generalized additive models and boosted regression
trees'', Ecology and Evolution, 10, 5759-5784). Density estimates from
both these sources were available at the time the Navy was identifying
data to use for the PMSR analysis.
The Commission references the most recent SDMs built with 1991-2018
data, as presented in Becker et al. (2020; ``Habitat-based density
estimates for cetaceans in the California Current Ecosystem based on
1991-2018 survey data'', U.S. Department of Commerce, NOAA Technical
Memorandum NMFS-SWFSC-638), hereafter ``Becker et al. 2020 TM'' to
differentiate from the 2020 Ecology and Evolution manuscript mentioned
above. The SDMs presented in the Becker et al. 2020 TM represent an
improvement over the previous models because they included additional
sighting data collected over the continental shelf and slope that were
surveyed more sparsely in previous years, they better accounted for
population changes in the CCE study area over the 1991-2018 survey
period, and they more accurately accounted for uncertainty than prior
iterations owing to methodological improvements. In addition, to ensure
that the multi-year average density surfaces reflect more recent
conditions and were based on those survey years that more
comprehensively covered the study area, predictions for 1991, 1993, and
2009 were not included in the multi-year average. The multi-year
average density surfaces derived from these models are thus based on
predictions for summer/fall 1996-2018. Furthermore, for two species
with documented population increases in the study area (i.e., fin whale
and humpback whale), the year covariate was set to 2018 to decrease the
potential for biased-low density estimates derived from the multi-year
average surfaces. Density estimates from the Becker et al. 2020 TM SDMs
were not available at the time the Navy was identifying the best
estimates to use for the PMSR analysis. As noted above, this manuscript
was subsequently published in Ecology and Evolution in 2020, and was
based on SDMs developed with the 1991-2014 SWFSC survey data.
Regarding the Commission's comment that ``many of the densities in
the same geographic areas differ by an order of magnitude or more from
those provided in Department of the Navy (2017c) and/or Becker et al.
(2020)''--it is difficult to respond to this comment without more
information on which species estimates the Commission is referring to.
Also, since the estimates from Becker et al. models are spatially-
explicit, it is unclear if the Commission is comparing specific pixel
values, or looking at the highest density ranges on the PMSR maps and
comparing them to the density plots included in the Becker et al. 2020
TM, in which case the difference in the highest density range can be
due to just a few high pixel values and/or the density ranges selected
for presentation purposes. Comparisons are also challenging since the
Becker et al. TM presents density surfaces for the entire CCE study
area while the PMSR density plots are specific to that study area, and
thus appear more pixelated given the finer spatial resolution. To help
address this comment, the density estimates provided in the PMSR
Density Technical Report were compared to those presented in the Becker
et al. 2020 TM. The latter presents density estimates for 14 cetacean
species and the small beaked whale guild for summer/fall. The
comparison was thus based on these species and seasons. For their 5-7
year environmental planning analysis, the Navy incorporates the multi-
year average density plots into the Navy Marine Species Density
Database (NMSDD) and uses these for their acoustic analyses. Therefore,
the comparison was based on these density surfaces (vs. yearly plots),
although the yearly predictions for the three large whale species were
also compared to see if any substantial differences were apparent.
Below is a brief summary that compares the density values and
distribution patterns presented in the PMSR Density Technical Report
with those presented in the Becker et al. 2020 TM. Note that all
density values are presented in number of animals per square km (anis/
km\2\), or as abundance
[[Page 40900]]
estimates (number of whales/dolphins occurring in a defined study
area).
Blue whale. The data source is cited as ``Becker et al. in prep.''
so the density estimates used for the PMSR analysis were the multi-year
average predictions from the SDMs built with 1991-2014 survey data,
while the multi-year average density surfaces presented in Becker et
al. (2020 TM) were based on predictions from 1996-2018. The blue whale
density plot presented in the PMSR Study Area has the highest density
value (0.0091) as compared to the density plot included in the Becker
et al. 2020 TM with the highest value (0.0117), and predicted
distribution patterns from the two models within the PMSR Study Area
are similar. Although not presented in the 2020 Ecology and Evolution
paper, Table 5 compares the yearly CCE study area abundance estimates
derived from the SDMs built with 1991-2014 data (left) with those
presented in Becker et al. (2020 TM) built with 1991-2018 data on the
right, and provides the 95 percent confidence intervals (presented for
overlapping years). As shown below, all of the abundance estimates
derived from the model used for the PMSR analysis fall within the
confidence limits of the SDMs presented in Becker et al. (2020 TM).
Table 5--Blue Whale SDM and Becker et al. (2020) Abundance Estimates
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Year Abundance Abundance
(1991-2014 SDMs) (Becker et al.
2020 TM) Log-normal 95 percent Cis
(Becker et al. 2020 TM)
----------------------------------------------------------------------------------------------------------------
1996.................................. 1,901 1,946 945 4,009
2001.................................. 1,720 1,657 868 3,162
2005.................................. 1,201 1,042 542 2,004
2008.................................. 1,081 919 445 1,899
2014.................................. 1,574 1,077 495 2,342
----------------------------------------------------------------------------------------------------------------
As noted above, the Navy used the multi-year averages in their
analyses, so the data used in the PMSR analysis reflect the 1991-2014
average, while the Becker et al. (2020 TM) data reflect the 1996-2018
average. For blue whale, the CCE study area point estimate for 2018 was
the lowest yet (670 whales), resulting in a slightly lower point
estimate for the 1996-2018 multi-year average density surface (1,219
whales) than the 1991-2014 average density surface (1,572 whales);
density estimates within the PMSR are similar for both sets of
predictions. NMFS concurs with this analysis and confirms it does not
change our analysis or findings for blue whales.
Fin whale. A source was not provided in the PMSR document for the
density data used for fin whale but based on the density figure in the
PMSR Density Technical Report, it was the multi-year average density
surface from the SDM built with 1991-2014 data (i.e., the model
presented in the Becker et al. 2020 Ecology and Evolution paper). The
fin whale density plot for the PMSR Study Area had the highest density
value (0.0310) as compared to the density plot included in the Becker
et al. 2020 TM with the highest density value (0.0821). Predicted
distribution patterns from the two models within the PMSR Study Area
are similar. Although not presented in the 2020 Ecology and Evolution
paper, Table 6 compares the CCE study area abundance estimates derived
from the SDMs built with 1991-2014 data (left), with those presented in
Becker et al. (2020 TM) on the right. The estimates are so similar that
the 95 percent confidence intervals are not presented below, but they
are presented in Becker et al. (2020 TM). Therefore, yearly predictions
from the two models are similar for those years that overlap.
Table 6--Fin Whale SDM and Becker et al. (2020) Abundance Estimates
------------------------------------------------------------------------
Abundance
Year Abundance (1991- (Becker et al.
2014 SDMs) 2020 TM)
------------------------------------------------------------------------
1996.............................. 3,358 3,804
2001.............................. 5,753 5,733
2005.............................. 7,533 7,319
2008.............................. 7,668 7,606
2014.............................. 10,504 10,139
------------------------------------------------------------------------
As noted above, the Navy used the multi-year averages in their
analysis, so the data used in the PMSR analysis reflect the 1991-2014
average while the Becker et al. (2020 TM) data reflect the 1996-2018
average. For fin whale, this created a notable increase in the latter
since the point estimate for 2018 was the highest yet (11,065 whales),
and, given documented population increases in the study area, the year
covariate was set to 2018 to decrease the potential for biased-low
density estimates derived from the multi-year average surfaces.
Therefore, the fin whale density surface used in the PMSR analysis is
likely biased-low to some extent, but as noted above, the updated
Becker et al. (2020 TM) estimates were not available at the time the
Navy was identifying density data for the PMSR analysis. NMFS concurs
with this analysis and confirms it does not change our analysis or
findings for fin whales.
Humpback whale. A source was not provided in the PMSR document for
the density data used for humpback whale, but, based on the density
figure, it was the multi-year average density surface from the SDM
built with 1991-2014 data (i.e., the model presented in the Becker et
al. 2020 Ecology and Evolution paper). The humpback whale density plot
presented in Hulton et al. (2020) for the PMSR study area had the
highest density value (0.0479) as compared to the density plot included
in the Becker et al. 2020 TM with the highest density value (0.194), so
this is a case where the highest values do differ by an order of
magnitude, although highest densities mainly occur north of
[[Page 40901]]
Point Conception and outside the PMSR Study Area. Although not
presented in the 2020 Ecology and Evolution paper, Table 7 compares the
CCE study area abundance estimates derived from the SDMs built with
1991-2014 data (left) with those presented in Becker et al. (2020 TM)
on the right. The estimates are so similar that the 95 percent
confidence intervals are not presented below, but they are presented in
Becker et al. (2020 TM).
Table 7--Humpback Whale SDM and Becker et al. (2020) Abundance Estimates
------------------------------------------------------------------------
Abundance
Year Abundance (1991- (Becker et al.
2014 SDMs) 2020 TM)
------------------------------------------------------------------------
1996.............................. 1,267 1,181
2001.............................. 1,361 1,364
2005.............................. 1,454 1,575
2008.............................. 1,638 1,727
2014.............................. 3,162 2,178
------------------------------------------------------------------------
As noted above for fin whale, exclusion of the early years (1991
and 1993) and accounting for the documented increase in humpback whale
abundance in the study area over the survey period when deriving the
multi-year average density surfaces resulted in higher densities for
the more recent 1996-2018 multi-year average. Also, the point estimate
for 2018 was the highest yet (4,784 whales). Therefore, the humpback
whale density surface used in the PMSR analysis is likely biased-low to
some extent, but, as noted above, the updated Becker et al. (2020 TM)
estimates were not available at the time the Navy was identifying
density data for the PMSR analysis. NMFS concurs with this analysis and
confirms it does not change our analysis or findings for humpback
whales.
Minke whale. Since the new minke whale SDM developed in Becker et
al. (2020 TM) was not available at the time the Navy was identifying
density data for the PMSR Study Area, the Navy used a uniform density
estimate of 0.000737. (The estimate came from Barlow 2016, Table 7, and
is an average of the Southern and Central CA strata estimates.)
Baird's beaked whale. The HSTT Density Technical Report (Navy 2017)
was erroneously cited as the source of the Baird's beaked whale density
surface in the PMSR Density Technical Report, when in fact, the plot is
consistent with the multi-year average density plot developed using
1991-2014 survey data as described in Becker et al. 2020 (the 2020
Ecology and Evolution paper). Predicted distribution patterns from this
and the Becker et al. (2020 TM) SDM for Baird's beaked whale are very
similar, and although the highest density value on the PMSR plot is
0.0072 and on the Becker et al. (2020 TM) plot it is 0.0932, the top
density RANGES overlap (i.e., 0.0048-0.0072 vs. 0.0032-0.0932,
respectively); this is a case where there were a few high pixel values
in northern waters of the CCE study area and outside the PMSR Study
Area, thus increasing the highest value of the density range in the
Becker et al. 2020 TM plot. Density values within the PMSR Study Area
are similar. NMFS concurs with this analysis and confirms it does not
change our analysis or findings for Baird's beaked whales.
Small beaked whale guild (Cuvier's beaked whale and species in the
genus Mesoplodon). The HSTT Density Technical Report (Navy 2017) was
erroneously cited as the source of the density surface for the small
beaked whale guild in the PMSR Density Technical Report, but the plot
is consistent with the multi-year average density plot developed using
1991-2014 survey data as described in Becker et al. 2020 (the 2020
Ecology and Evolution paper). Higher density values are included in the
1991-2014 average density surface used for the PMSR analysis as
compared to the Becker et al. (2020 TM) average density surface, and
the distribution pattern in the former better matches the SWFSC
sighting data. As noted in Becker et al. (2020 TM), the small beaked
whale guild SDM had some of the worst model metrics among all species
and predicted distribution patterns matched poorly to actual sightings
during the surveys, so the density data used for the PMSR Study Area
analysis are more appropriate than the more recent model for this group
of species. NMFS concurs with this analysis and confirms it does not
change our analysis or findings for the small beaked whale guild.
Bottlenose dolphin (offshore stock). Becker et al. (2016) was
erroneously cited as the source of the density surface for the offshore
stock of common bottlenose dolphin in the PMSR Density Technical
Report, but the plot is consistent with the multi-year average density
plot developed using 1991-2014 survey data as described in Becker et
al. 2020 (the 2020 Ecology and Evolution paper). Predicted distribution
patterns from this and the Becker et al. (2020 TM) SDM for common
bottlenose dolphin are very similar, and although the highest density
value on the PMSR plot is 0.2282 and on the Becker et al. (2020 TM)
plot it is 1.55, the top density RANGES overlap (i.e., 0.1295-0.2282
vs. 0.0085-1.55, respectively); similar to Baird's beaked whale, this
is a case where there were a few high pixel values (in this case in the
extreme SW corner of the CCE study area and outside the PMSR Study
Area), which served to increase the highest value of the density range
presented in the Becker et al. 2020 TM plot. Density values within the
PMSR Study Area are similar for this species. NMFS concurs with this
analysis and confirms it does not change our analysis or findings.
Dall's porpoise. Becker et al. (2016) was erroneously cited as the
source of the density surface for the Dall's porpoise in the PMSR
Density Technical Report, but the plot is consistent with the multi-
year average density plot developed using 1991-2014 survey data as
described in Becker et al. 2020 (the 2020 Ecology and Evolution paper).
While the legend in the PMSR density plot presents density values up to
0.4939, the range of the highest value plotted on the map within the
PMSR Study Area is 0.0911-0.1435. In summer/fall, highest densities of
Dall's porpoise occur north of the PMSR Study Area. Density values
within the PMSR Study Area are similar between those presented in the
PMSR Density Technical Report and Becker et al. (2020 TM), although a
bit lower in the latter, but of the same order of magnitude. NMFS
concurs with this analysis and confirms it does not change our analysis
or findings.
Long-beaked common dolphin. The data source is cited as ``Becker et
al. in prep.'', so the density estimates used for the PMSR analysis
were the multi-year average predictions from the SDMs built
[[Page 40902]]
with 1991-2014 survey data (i.e., the model presented in the Becker et
al. 2020 (the 2020 Ecology and Evolution paper). Predicted distribution
patterns from this and the Becker et al. (2020 TM) SDM for long-beaked
dolphin are very similar, and density values within the PMSR Study Area
are also very similar for this species, with a few higher pixels in the
Becker et al. (2020 TM) serving to increase the highest density range,
but all within the same order of magnitude as the PMSR values. NMFS
concurs with this analysis and confirms it does not change our analysis
or findings.
Northern right whale dolphin. The data source is cited as ``Becker
et al. in prep.'', so the density estimates used for the PMSR analysis
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data (i.e., the model presented in the Becker et al. 2020
(2020 Ecology and Evolution paper). Predicted distribution patterns
from this and the Becker et al. (2020 TM) SDM for northern right whale
dolphin are very similar, and although the highest density value on the
PMSR plot is 0.1430 and on the Becker et al. (2020 TM) plot it is 3.07,
the top density RANGES overlap (i.e., 0.0989-0.1430 vs. 0.0837-3.07,
respectively); similar to some of the other species, this is a case
where there were a few high pixel values (in this case north and
outside the PMSR Study Area), which served to increase the highest
value of the density range presented in the Becker et al. 2020 TM plot.
Density values within the PMSR are similar for this species. NMFS
concurs with this analysis and confirms it does not change our analysis
or findings.
Pacific white-sided dolphin. The data source is cited as ``Becker
et al. in prep.'', so the density estimates used for the PMSR analysis
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data. Density values within the PMSR Study Area are similar
between the two model predictions, although the distribution patterns
reveal some differences; the multi-year 1991-2014 average plot used for
the PMSR show higher densities just north of Point Conception as
compared to the multi-year 1996-2018 average plot presented in Becker
et al. (2020 TM). NMFS concurs with this analysis and confirms it does
not change our analysis or findings.
Risso's dolphin. The data source is cited as ``Becker et al. in
prep.'', so the density estimates used for the PMSR analysis were the
multi-year average predictions from the SDMs built with 1991-2014
survey data (i.e., the model presented in the Becker et al. 2020 (the
2020 Ecology and Evolution paper). Both the density values and
distribution patterns within the PMSR Study Area are similar between
the two model predictions. NMFS concurs with this analysis and confirms
it does not change our analysis or findings.
Short-beaked common dolphin. The data source is cited as ``Becker
et al. in prep.'', so the density estimates used for the PMSR analysis
were the multi-year average predictions from the SDMs built with 1991-
2014 survey data (i.e., the model presented in the Becker et al. 2020
(the 202 Ecology and Evolution paper). The highest density value on the
PMSR plot is 3.82 and on the Becker et al. (2020 TM) plot it is 2.95;
however, density estimates from the latter are higher throughout much
of the PMSR Study Area, particularly throughout the Southern California
Bight and extending to the north/northeast. Similar to both fin and
humpback whales, the point estimate for 2018 was the highest yet for
short-beaked common dolphin (1,056,308 dolphins). Therefore, the short-
beaked common dolphin density surface used in the PMSR analysis is
likely biased-low to some extent, but, as noted above, the Becker et
al. (2020 TM) estimates were not available at the time the Navy was
identifying density data for the PMSR analysis. NMFS concurs with this
analysis and confirms it does not change our analysis or findings.
Sperm whale. The data source is cited as ``Becker et al. in
prep.'', so the density estimates used for the PMSR analysis were the
multi-year average predictions from the SDMs built with 1991-2014
survey data. As noted in Becker et al. (2020 TM), the sperm whale SDM
had some of the worst model metrics among all species and predicted
distribution patterns matched poorly to actual sightings during the
surveys, so the density data used for the PMSR analysis are more
appropriate for this species. NMFS concurs with this analysis and
confirms it does not change our analysis or findings.
Striped dolphin. The data source is cited as ``Becker et al. in
prep.'', so the density estimates used for the PMSR analysis were the
multi-year average predictions from the SDMs built with 1991-2014
survey data (i.e., the model presented in the Becker et al. 2020 (the
2020 Ecology and Evolution paper). Although the Becker et al. (2020 TM)
shows higher densities throughout much of the CCE study area, the
density values within the PMSR Study Area don't vary by more than an
order of magnitude between the two model predictions. NMFS concurs with
this analysis and confirms it does not change our analysis or findings.
Overall summary and conclusions. The SWFSC habitat modeling team
has been developing SDMs for the CCE study area for more than 20 years.
Over this time period, the availability of additional survey data
(which increases sample sizes and also increases the range of habitat
covariate values used to parameterize the models), as well as
methodological advances, have resulted in substantial improvements to
the SDMs and associated model-derived density estimates. The latest
models include data collected from the most recent SWFSC survey
conducted in 2018, and SMDs derived from the full set of 1991-2018
survey data are presented in Becker et al. (2020 TM). These data were
not available when the Navy was identifying density data to use for the
PMSR analysis. Although the source of density data could have been more
clearly identified in the PMSR Density Technical Report, the Navy
consistently used density data that were available from the previous
set of SDMs that were developed using 1991-2014 survey data.
For most species, the multi-year density surfaces derived from the
two separate sets of models are similar, revealing generally consistent
distribution patterns and abundance estimates that are in the same
order of magnitude within the PMSR Study Area. In some cases, density
estimates appear to differ by more than an order of magnitude based on
a comparison of density plots, but this is due to a few high pixel
estimates located outside the PMSR Study Area that determine the upper
bound of the highest density range, and does not indicate big
differences in the density overall or across the area.
Species for which density estimates differ substantially include
fin whale and humpback whale, due to the methods used in Becker et al.
(2020 TM) to ensure that the multi-year average density surfaces better
accounted for documented increases in the populations of both these
species between 1991 and 2018. In addition, due to the increase in the
numbers of short-beaked common dolphins occurring in the PMSR Study
Area in recent years, the Becker et al. (2020 TM) density estimates for
this species are also substantially higher than previous estimates.
While the most recent models were not available at the time the Navy
was identifying density data to use for the PMSR analysis, we have
qualitatively considered this information in this final rule, and we
have found that these differences would not change any of the required
findings. Also, we note that the Becker et al.
[[Page 40903]]
(2020 TM) SDMs, as well as SDMs developed recently for the Southern
California Current (Becker et al. In Press, Frontiers in Marine
Science), will be used in the Navy's upcoming Hawaii-California Testing
and Training (HCTT) analysis, which includes the PMSR Study Area.
Uncertainty in Density Estimates
Comment 7: The Commission comments that for Phase III activities in
the HSTT Study Area, the Navy used more refined density estimation
methods for cetaceans and accounted for uncertainty in the density and
group size estimates that seeded its animat modeling (Navy 2018). The
PMSR Density Technical Report indicated that uncertainty in its density
and group size estimates for the PMSR Study Area was incorporated but
did not specify what type of uncertainty or what, if any, distribution
was used. The PMSR Density Technical Report also did not specify
whether uncertainty was used for its density estimates for pinnipeds.
NMFS similarly did not include in the preamble to the proposed rule any
details regarding whether and how uncertainty was incorporated into
either the density or group size estimates. The Commission recommends
that NMFS (1) clarify whether and how uncertainty was incorporated in
the density and group size estimates, including densities for
pinnipeds, and specify the distribution(s) used and, (2) if uncertainty
was not incorporated, re-estimate the numbers of takes based on the
uncertainty inherent in the density estimates (e.g., Becker et al.
2020) or the underlying references (e.g., Lowry 2002, Lowry et al.
2014, NMFS SARs, etc.). If NMFS chooses not to incorporate uncertainty
in its density estimates, including for pinnipeds, the Commission
recommends that NMFS specify why it did not do so in the preamble to
the final rule.
Response: As noted in the PMSR Density Technical Report the Navy
did not apply statistical uncertainty outside the survey boundaries
into non-surveyed areas, since it deemed application of statistical
uncertainty would not be meaningful or appropriate. We note that there
are no measures of uncertainty (i.e., no coefficient of variation (CV),
standard deviation (SD), or standard error (SE)) provided in NMFS
Pacific Stock Assessment Report (SAR) Appendix 3 (Carretta et al. 2019)
as well as the 2021 draft Pacific SAR, associated with the abundance
data for any of the pinniped species present in Southern California.
Although some measures of uncertainty are presented in some citations
within the SAR and in other relevant publications for some survey
findings, it is not appropriate for the Navy to attempt to derive
summations of total uncertainty for an abundance when the authors of
the cited studies and the SAR have not. For additional information
regarding use of pinniped density data, see the HSTT Density Technical
Report Section 11. As a result of the lack of published applicable
measures of uncertainty for pinnipeds during this analysis, the Navy
did not incorporate measures of uncertainty into the pinniped density
estimates. NMFS independently reviewed the methods and densities used
by the Navy and concurs that they are appropriate and reflect the best
available science.
Criteria Thresholds
General Threshold Comments
Comment 8: The Commission has supported the weighting functions and
associated thresholds used for Navy Phase III activities (Navy 2017b).
However, numerous more recent studies provide additional information on
behavioral audiograms (e.g., Cunningham and Reichmuth 2015, Branstetter
et al. 2017, Kastelein et al. 2017b and 2019a, Sills et al. 2020a,
Kastelein 2021a and b, Ruscher et al. 2021, and Sills et al. 2021) and
temporary threshold shift (TTS) (e.g., Kastelein et al. 2017a and c,
Popov et al. 2017, Kastelein et al. 2018a and b, 2019b-d, and 2020a-f,
Sills et al. 2020b, Kastelein et al. 2021a and b). The Navy discussed
only a few of these references in its Draft Supplemental Environmental
Impact Statement (DSEIS) and LOA application. It also noted that the
otariid and phocid composite audiograms are consistent with recently
published behavioral audiograms of pinnipeds but did not provide any
references, including those denoted herein, in its LOA application.
NMFS similarly did not discuss any of the aforementioned references in
its preamble to the proposed rule, whether the composite audiograms
were consistent with the recently-reported behavioral audiograms or
whether the criteria, presumably the TTS (and thus permanent threshold
shift (PTS)) thresholds, were still considered conservative as compared
to the recently-reported TTS data for harbor porpoises, harbor seals,
and California sea lions. As such, the Commission recommends that NMFS
specify in the preamble to the final rule whether the aforementioned
references support the continued use of the current weighting functions
and PTS and TTS thresholds for the various functional hearing groups
and, if the newer data indicate that either the current weighting
functions or PTS and TTS thresholds would significantly underestimate
impacts, specify whether and how it plans to revise them.
Response: NMFS is aware of these recent papers (Kastelein et al.
2021a and b) and is currently working with the Navy to update NMFS'
Technical Guidance for Assessing the Effects of Anthropogenic Sound on
Marine Mammal Hearing Version 2.0 (Acoustic Technical Guidance) (NMFS
2018) to reflect relevant papers that have been published since the
2018 update on our 3-5 year update schedule in the Acoustic Technical
Guidance. First, we note that the recent peer-reviewed updated marine
mammal noise exposure criteria by Southall et al. (2019a) provide
identical PTS and TTS thresholds and weighting functions to those
provided in NMFS' Acoustic Technical Guidance.
NMFS will continue to review and evaluate new relevant data as it
becomes available and consider the impacts of those studies on the
Acoustic Technical Guidance to determine what revisions/updates may be
appropriate. However, any such revisions must undergo peer and public
review before being adopted, as described in the Acoustic Guidance
methodology. In the meanwhile, NMFS has also carefully considered the
other references that the commenter cites, and while some of the
relevant data may potentially suggest changes to TTS/PTS thresholds for
some species, any such changes would not be expected to change the
predicted take estimates in a manner that would change the necessary
determinations supporting the issuance of these regulations, and the
data and values used in this rule reflect the best available science.
In-Water Behavior Thresholds for Explosives
Comment 9: The Commission comments that the Navy routinely requests
and NMFS routinely authorizes behavior takes of marine mammals
associated with exposure to single in-air explosive events (e.g.,
missile launch noise and sonic booms), including those that occur in
the PMSR Study Area (section 6.6 in the Navy's LOA application). The
Commission states that NMFS has based its take estimates on the numbers
of animals that have responded behaviorally to single launch events,
including for the PMSR proposed rule (see section 6.6 in the Navy's LOA
application and 84 FR 28470 (June 19, 2019), as one example for
previous authorizations issued for launch activities at SNI). The
[[Page 40904]]
Commission states that ``[c]ontinuing to dismiss the fact that a single
explosive event, including that of a 500-lb bomb, has the potential to
cause behavior takes to marine mammals underwater is illogical . . .
given that an animal exposed to such an event is expected to exhibit
the factors the Navy differentiated as a behavioral response in
Department of the Navy (2017b) and NMFS routinely authorizes behavior
takes for such events when exposed in air, including for the Navy's own
proposed launch activities under the PMSR proposed rule.'' The
Commission also states that the Navy, and in turn NMFS, has not
provided adequate justification for dismissing the possibility that
single underwater detonations can cause a behavioral response and
therefore again recommends that NMFS estimate and ultimately authorize
behavior takes of marine mammals during all in-water explosive
activities, including those that involve single detonations consistent
with in-air explosive activities in the final rule. If NMFS does not
authorize behavior takes of marine mammals for all in-water explosive
activities, the Commission recommends that NMFS justify in the preamble
to the final rule why it believes that marine mammals, including
pinnipeds, would only be taken by single in-air explosive detonations
and not single in-water explosive detonations. The Commission further
recommends that NMFS and the Navy revise the behavior thresholds for
in-water explosive sources for Phase IV activities and ensure that any
such threshold is based on data that involve impulsive sources, rather
than the currently-used threshold that was based on non-impulsive
tones.
Response: NMFS does not ignore the possibility that single
underwater detonations can cause a behavioral response. The current
take estimate framework allows for the consideration of animals
exhibiting behavioral disturbance during single explosions as they are
counted as ``taken by Level B harassment'' if they are exposed above
the TTS threshold, which is 5 decibels (dB) higher than the behavioral
harassment threshold. We acknowledge in our analysis that individuals
exposed above the TTS threshold may also be harassed by behavioral
disruption and those potential impacts are considered in the negligible
impact determination. Neither NMFS nor the Navy are aware of evidence
to support the assertion that animals will have significant behavioral
responses (i.e., those that would rise to the level of a take) to
temporally and spatially isolated explosions at received levels below
the TTS threshold. However, if any such responses were to occur, they
would be expected to be few and to result from exposure to the somewhat
higher received levels bounded by the TTS thresholds and would thereby
be accounted for in the take estimates. The derivation of the explosive
injury criteria is provided in the 2017 technical report titled
``Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects
Analysis (Phase III)''.
Regarding the assertion that the approaches for assessing the
impacts from a single underwater detonation and a single in-air
detonation are inconsistent, we disagree. Both approaches/thresholds
are based on the best available data. As noted above, we are unaware of
data suggesting that marine mammals will respond to single underwater
explosive detonations below the TTS threshold in a manner that would
qualify as a take. Conversely, for single in-air detonations such as
missile launch noise and sonic booms, there are extensive data
supporting the application of the lower behavioral thresholds, i.e.,
pinnipeds moving significant distances or flushing in response to these
in-air levels of sounds.
Regarding the recommendation that explosive thresholds used for
assessing impacts in Phase IV be based on impulsive sources, NMFS will
continue to work with the Navy to ensure that the best available
science is used in the development and revision of the thresholds to be
used to assess acoustic impacts in Phase IV of the Navy actions.
In-Water Takes for Explosives
Comment 10: The Commission comments that the number of takes that
NMFS proposed to authorize does not accurately reflect the group sizes
of various species. The Navy's 2017 report, ``Dive Distribution and
Group Size Parameters for Marine Species Occurring in the U.S. Navy's
Atlantic and Hawaii[hyphen]Southern California Training and Testing
areas'', specified that the mean group size of long-beaked common
dolphins was 255, 16 for the offshore stock of common bottlenose
dolphins, and 56 for striped dolphins. However, NMFS proposed to
authorize a total of 119 takes of long-beaked common dolphins, 11 takes
of offshore bottlenose dolphin, and 2 takes of striped dolphins per
year (see Table 18 of the proposed rule)--all of which are less than
the mean group sizes reported by the Navy. The numbers of takes of
northern right whale dolphins, Pacific white-sided dolphins, Risso's
dolphins, short-beaked common dolphins, and sperm whales also are less
than the mean group sizes specified in Table 48 of the above report.
For other species that routinely occur in the PMSR Study Area but for
which model-estimated takes were zero (e.g., Cuvier's beaked whales,
Baird's beaked whales, Kogia spp., etc.), NMFS did not propose to
authorize any takes (see Table 18 of the proposed rule). The Commission
recommends that NMFS, at minimum, authorize Level B harassment
(behavior) takes that are at least the mean group size reported in
Table 48 of the Navy 2017 report for all species in which model-
estimated takes are either less than mean group size (long- and short-
beaked common dolphins, offshore bottlenose dolphins, striped dolphins,
northern right whale dolphins, Pacific white-sided dolphins, Risso's
dolphins, and sperm whales) or zero for those species that routinely
occur in the PMSR Study Area (e.g., Cuvier's beaked whales, Baird's
beaked whales, Kogia spp., etc.) in the final rule.
Response: NMFS indicates in the Description of Marine Mammals and
Their Habitat in the Area of the Specified Activities section of this
final rule that the following species/stocks had zero calculated
estimated takes: Bryde's whale (Eastern Tropical Pacific), Gray whale
(Western North Pacific), Sei whale (Eastern North Pacific), Baird's
beaked whale (California, Oregon, and Washington), Bottlenose dolphin
(California Coastal), Cuvier's beaked whale (California, Oregon, and
Washington), Harbor Porpoise (Morro Bay), Killer whale (Eastern North
Pacific Offshore, Eastern North Pacific Transient or West Coast
Transient), Mesoplodont spp. (California, Oregon, and Washington),
Short-finned pilot whale (California, Oregon, and Washington), and
Northern fur seal (California). NMFS continues to agree with the Navy's
analysis; therefore, no takes were authorized for those species where
takes were modeled to be zero.
However, to precautionarily ensure adequate incidental take
coverage should the Navy encounter and expose a larger group than was
originally estimated and proposed, the authorized annual take by Level
B harassment was increased to group size for 7 dolphin species where
the annual takes proposed were fewer than the species group size,
specifically for Long- and Short-beaked common dolphins, Offshore
Bottlenose dolphins, Striped dolphins, Northern right whale dolphins,
Pacific white-sided dolphins, and Risso's dolphins. These changes are
reflected in Table 21 and explained in detail in the Changes from the
Proposed Rule to the Final Rule section of this final rule. For sperm
whales, however,
[[Page 40905]]
given they prefer deeper waters and Navy activities are at the surface
or near-surface, their secondary range includes areas of higher
latitudes in the PMSR Study Area, NMFS concurs with the Navy's initial
proposed take and does not find that an increase in the take estimates
is warranted.
In-Air Thresholds for Explosives
Comment 11: The Commission comments that the in-air PTS, TTS, and
behavior thresholds were absent from both the Navy's LOA application
and NMFS' preamble to the proposed rule, and that it is unclear what,
if any, thresholds were used to inform either the Navy's or NMFS'
impact analyses. The Commission recommends that NMFS provide any Phase
IV in-air and in-water PTS and TTS thresholds and associated weighting
functions to the public for review and comment, consistent with the
Phase III in-water auditory thresholds. The Commission also stated
that, in its May 2019 letter regarding a proposed incidental harassment
authorization for launch activities at SNI, the unweighted behavior
threshold of 100 dB re 20 [mu]Pa2-sec to be applied to all pinnipeds
from Department of the Navy (2017b) was inconsistent with other recent
proposed and final rules for the U.S. Air Force (Air Force; 84 FR 335;
January 24, 2019 and 84 FR 14321; April 10, 2019) and other recent
proposed rules or authorizations involving other launch activities (83
FR 57434; November 15, 2018, 82 FR 49334; October 25, 2017, 82 FR 6463;
January 19, 2017, 81 FR 18584; March 31, 2016, etc.). Further, the
Commission reiterates its 2019 recommendation that NMFS compile all in-
air response data and determine whether the in-air behavior thresholds
can be revised or whether additional paired visual and acoustic
monitoring data are necessary to refine the in-air thresholds before
issuing the PMSR final rule. If the thresholds cannot be revised with
data currently available, the Commission recommends that NMFS (1)
ensure that the Navy, the Air Force, and any other relevant entities
collect the necessary data to inform in-air behavior thresholds, and
(2) revise, allow for public comment on, and finalize those thresholds
in the next 3 years.
Response: The Commission is correct that the in-air behavioral
thresholds were missing, but these have now been added to Table 12
(Behavioral Thresholds). However, the Navy's testing and training
activities (outside of target and missile launches) are modeled at or
near-surface (essentially underwater) and the in-air behavioral
thresholds would not apply to those other testing and training
activities, as they were modeled underwater. The in-air thresholds
would apply to the target and missile launches on SNI.
Regarding the Commission's comment that the unweighted behavior
threshold of 100 dB re 20 [mu]Pa2-sec applied to all pinnipeds from
Department of the Navy (2017b) was inconsistent with other recent
proposed and final rules for the U.S. Air Force (Air Force; 84 FR 335;
January 24, 2019 and 84 FR 14321; April 10, 2019), it is true that the
Navy is using in-air behavior thresholds different from what is used by
the U.S. Air Force. The Navy's thresholds in the Criteria and
Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase
III) Technical Report (U.S. Department of the Navy, 2017) for TTS/PTS
are correct, while for behavior, the Navy uses a value of 100 dB sound
exposure level (SEL) for all pinnipeds rather than 90 dB sound pressure
level (SPL) for harbor seals/100 dB SPL for all other pinnipeds. In
this case, the issues the Commission points out regarding in-air
behavioral thresholds are not applicable, as the estimated takes are
based on the last 3 years of pinniped observation from Navy's
monitoring reports and are not directly based on specific in-air
thresholds.
The Navy selects beaches to survey based largely on where sound
received is expected to reach 100 dB SEL or greater and where animals
are reacting to launch noises. In the case of harbor seals, the Navy is
already monitoring beaches where sound levels are less than 100 dB SEL
and often under 90 dB SPL (site O--Phoca Reef and Pirates Cove). The
Navy is monitoring at site O because oftentimes the harbor seals are
not hauled out on the western end of SNI on the typically monitored
beaches during launch events. The Navy is cognizant of the fact that
some harbor seals are reacting to sound levels lower than 90 dB SPL.
Accordingly, the Navy is monitoring those pinnipeds and requesting
additional take by Level B harassment to account for this potential.
NMFS indicated in the Acoustic Thresholds sections of both the
proposed rule and this final rule that using the best available
science, NMFS, in coordination with the Navy, has established acoustic
thresholds that identify the most appropriate received level of
underwater sound above which marine mammals exposed to these sound
sources could be reasonably expected to directly experience a
disruption in behavior patterns to a point where they are abandoned or
significantly altered, to incur TTS (equated to Level B harassment), or
to incur PTS of some degree (equated to Level A harassment). Thresholds
have also been developed to identify the pressure levels above which
animals may incur non-auditory injury from exposure to pressure waves
from explosive detonation. Refer to the ``Criteria and Thresholds for
U.S. Navy Acoustic and Explosive Effects Analysis (Phase III)'' report
(U.S. Department of the Navy, 2017c) for detailed information on how
the criteria and thresholds were derived. The criteria and thresholds
in this document have been available for the public at <a href="https://www.hstteis.com/Documents/2018-Hawaii-Southern-California-Training-and-Testing-Final-EIS-OEIS/2018-Final-EIS-OEIS-Supporting-Technical-Documents">https://www.hstteis.com/Documents/2018-Hawaii-Southern-California-Training-and-Testing-Final-EIS-OEIS/2018-Final-EIS-OEIS-Supporting-Technical-Documents</a>. That said, regarding the recommendation that NMFS compile
all in-air response data and determine whether the in-air behavior
thresholds can be revised or whether additional paired visual and
acoustic monitoring data are necessary to refine the in-air thresholds
before issuing the PMSR final rule. NMFS will not be refining the in-
air thresholds for this final rule. The Navy's proposed Phase IV
criteria are still in development and NMFS will work with the Navy and
others within NOAA on any proposed changes and review the in-air
thresholds for pinnipeds and, if appropriate, update NMFS' Acoustic
Technical Guidance, which will include peer review and public comment.
NMFS will continue to review and evaluate new relevant data as it
becomes available and consider the impacts of those studies on the
Acoustic Technical Guidance to determine what revisions/updates may be
appropriate. In the meanwhile, the data and values used in this rule
reflect the best available science.
In-Air Behavior Takes for Launch Activities
Comment 12: The Commission comments that, similar to the various
in-air thresholds, the take estimation method for launch activities was
omitted from the preamble to the proposed rule. NMFS indicated in the
preamble to the proposed rule that it had reviewed the Navy's data,
methodology, and analysis and determined that it was complete and
accurate (86 FR 37822; July 16, 2021). If that was the case, it is
unclear why the details were omitted from the proposed rule for the
very activities that were estimated to result in the greatest numbers
of takes for California sea lions, harbor seals, and elephant seals
(see Tables 18 and 19 in the proposed rule). The Commission claims that
the Navy's 2019 proposed authorization
[[Page 40906]]
also indicated that a total of 4,940 Level B harassment takes of
California sea lions occurred during 18 launches in the 2015-2017
monitoring seasons (84 FR 18822; May 2, 2019), which equates to an
average of 275 takes per launch. The Commission claims there were only
15 launches and the average number of takes per launch in the 2019 IHA
should have been 329 rather than 275. The Commission comments that NMFS
must specify the underlying references, assumptions, and methods used
to estimate the numbers of takes for all activities for which taking
would be authorized for each Federal Register notice.
Response: NMFS indicated in the preamble to the proposed rule that
it had reviewed the Navy's data, methodology, and analysis presented in
section 5.2 (Incidental Take of Marine Mammals from Launch Activities
at San Nicolas Island) of the Navy's rulemaking/LOA application, which
were based on monitoring results from past launches, and determined
that it was complete and accurate. Specifically, the estimation of the
amount of take by Level B harassment that would be expected to occur as
a result of launch events was based on the total take by species
observed for three previous monitoring seasons divided by the number of
launch events over that time period. NMFS has added additional details
in the preamble in the Estimated Take of Marine Mammals section of this
final rule to clarify how the takes estimated were derived for target
and missile launches on SNI. This is also described in the paragraphs
below.
For California sea lions, take estimates were derived from three
monitoring seasons where an average of 274.44 instances of take of sea
lions by Level B harassment occurred per launch event. Therefore, 275
sea lions was then multiplied by 40 launch events, for a conservative
take estimate of 11,000 instances of take for California sea lions by
Level B harassment. This estimate is conservative because the Navy has
not conducted more than 25 launch events (although authorized for more)
in a given year since 2001.
For harbor seals a total of 12 takes were derived from previous
monitoring seasons and multiplied by 40 launch events for a total of
480 instances of take by Level B harassment.
For northern elephant seals, take estimates were derived from
previous monitoring seasons where an average of 0.61 instances of take
of northern elephant seals by Level B harassment occurred per launch
event. Therefore, one northern elephant seal was then multiplied by 40
launch events for a conservative take estimate of 40 instances of take
of northern elephant seals by Level B harassment. Generally, northern
elephant seals do not react to launch events other than by exhibiting
simple alerting responses, such as raising their heads or temporarily
going from sleeping to being awake; however, to account for the rare
instances where they have reacted, the Navy considered that some
northern elephant seals could be taken during launch events.
The Commission is incorrect about the number of launches that took
place during the monitoring periods from 2015-2017; it was, in fact, 18
launches that took place. The launch activities are described in the
Navy's 2014-2019 monitoring report, which NMFS provided to the
Commission. Monitoring reports can also be found at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-target-and-missile-launch-activities-san-nicolas">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-target-and-missile-launch-activities-san-nicolas</a>. The average number of
takes per launch in the 2019 IHA was correct (275 animals) as is the
underlying data used to determine the estimated take for the 2019 IHA,
the 2020 renewal IHA, and this final rule.
Comment 13: The Commission comments that the method NMFS used to
determine in-air takes is flawed for several reasons. The Commission
states the Navy is only able to monitor at most three haulout sites
during each launch event. However, California sea lions and harbor
seals are present at several additional haulout sites on the west side
of SNI. The Navy also estimates the number of pinnipeds hauled out at
least 2 hours before the launch occurs. For safety reasons, the
observers are not allowed to be at the haulout sites for at least 2
hours before and during a launch. The video cameras that document the
responses of the hauled-out animals are able to view only a portion of
the animals. Thus, the Commission says it is unclear whether new
animals haul out or enter the water in the more than 2 hours after the
animals were last counted. When equipment failures occur or launches
occur at night, responses are not observed.
Response: The Navy is committed to several types of monitoring in
order to document the responses of hauled-out animals. NMFS has
approved the Navy's monitoring methods in previous authorizations and
does not believe the methods are flawed. It is correct that the Navy
monitors at most 3 haulout sites during each launch and the Navy
attempts to vary the sites they are monitoring during each launch, so
the Navy is not always monitoring the same 3 sites. This is precisely
for the reason the Commission pointed out, as there are several haulout
sites on the west side of SNI. During visual surveys, the Navy also
estimates the number of pinnipeds hauled out at least 2 hours before
the launch occurs. For safety reasons, the observers are not allowed to
be at the haulout sites for at least 2 hours before and during a
launch. However, the Navy conducts more than just visual surveys in
order to obtain the most accurate information on the number of hauled
out animals. Video and acoustic monitoring of up to three pinniped
haulout areas and rookeries will be conducted during launch events that
include missiles or targets that have not been previously monitored
using video and acoustic recorders for at least three launch events.
Video monitoring cameras would be either high-definition video cameras,
or Forward-Looking Infrared Radiometer (FLIR) thermal imaging cameras
for night launch events. The Navy is also experimenting with time-lapse
photography to fill in any data gaps that may occur from the other
methods of monitoring. Marine mammal monitoring includes multiple
surveys during the year that record the species, number of animals,
general behavior, presence of pups, age class, gender and reactions to
launch noise or other natural or human caused disturbances, in addition
to environmental conditions that may include tide, wind speed, air
temperature, and swell. Between the different methods of monitoring,
NMFS is confident that the Navy will be able to continue to complete
their monitoring requirements and record accurate data if equipment
issues arise or launches occur during the day or night.
Comment 14: The Commission comments that the criteria that the Navy
used to enumerate takes under a previous authorization and in previous
monitoring reports were based on animals moving at least 10 m (11 yd;
84 FR 37845; August 2, 2019). NMFS' more recent criteria, including
those that it used for the U.S. Air Force's 2019 final rule (see Table
9; 84 FR 337; January 24, 2019), are based on animals moving at least
two body lengths (Level 2 response). The 10-m (11-yd) metric is much
greater than the estimated 4 or 5 m (4 or 5 yd) that adult female and
male sea lions move in two body lengths. The Commission is concerned
that NMFS is allowing Department of Defense agencies to use two
different sets of criteria for the same activities (i.e., launch
activities) as related to the same definition of Level B harassment
under section 3(18)(B)(ii) of the MMPA. The
[[Page 40907]]
Commission recommends that NMFS specify in the PMSR final rule that the
Level B harassment criteria are based on the definitions of Level 2 and
3 responses provided in Sec. 217.65(b)(3)(ii) of the Air Force's final
rule.
Response: In contrast to the activities considered for this final
rule, which are considered military readiness activities, the
activities that were the subject of NMFS' 2019 rule for the Air Force
were not evaluated as military readiness activities; therefore a
different definition of Level B harassment applied. For the U.S. Air
Force rule, the standard non-military-readiness pinniped thresholds
were used. For military readiness activities, the MMPA defines Level B
harassment as: ``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.'' The
Navy proposed a slightly different version of the criteria for
determining when behavioral response of a hauled pinniped rises to the
level of harassment, as is appropriate for use with the definition of
Level B harassment associated with military readiness activities. NMFS
concurred that this version, which has been used in prior incidental
take authorizations associated with launch activities on SNI, is
appropriate for evaluating Level B harassment in association with this
specified activity. NMFS may re-evaluate these criteria with the Navy
for any subsequent applications we receive for these activities.
Comment 15: The Commission comments that NMFS underestimates harbor
seal takes as well on SNI. NMFS previously had noted, and the Navy's
monitoring reports have confirmed, that harbor seals were not always
present when the Navy conducted its monitoring during launch events,
and there have not been many places to observe harbor seals during the
launches (84 FR 18821; May 2 2019). NMFS indicated that most of the
beaches where harbor seals have been hauled out, and which the Navy has
been able to monitor, occur in area O, which is not in the trajectory
of most of the launches. That may be the case, but the animals still
have responded to sound levels that range from 79-99 dB 20 re [mu]Pa at
those beaches. NMFS also indicated that harbor seal presence at the
haulout sites is dependent on tides. Since the Navy cannot predict
whether it will conduct launches during high or low tide, the
Commission states NMFS must assume that harbor seals have the potential
to be present during each launch irrespective of the tidal cycle.
Furthermore, the Navy focuses much of its monitoring on sea lion
haulout sites, where harbor seals generally do not haul out. NMFS noted
that harbor seals do not prefer beaches with California sea lions
present (84 FR 18821; May 2, 2019). Moreover, and as routinely is the
case for harbor seals, Navy monitoring reports from 2014-2017 indicated
that for all but one launch 100 percent of the hauled-out harbor seals
within the view of the camera responded to the launch. Thus, the
Commission says that 12 harbor seals taken per launch on all of SNI is
illogical and a vast underestimate.
Response: NMFS disagrees with the Commission's assertion that
harbor seal takes are too low. Approximately 42 harbor seals were
estimated to have been affected during the June 2019 through March 2020
monitoring period. These figures are approximate and included
extrapolations for pinnipeds on portions of the beach that were not
within the field of view of the camera. These estimates correspond to
an average rate of 4.08 harbor seals affected per launch and are
certainly within the estimated 12 harbor seals taken per launch. Only
12 missile launch events occurred during that period, while the Navy
was authorized for 40 events. It is incorrect to state that the Navy
only focuses on California sea lion beaches. During the 2019-2020
monitoring period, the Navy had cameras set up on Phoca Reef, which
corresponds to site O (referred to by the commenter) where harbor seals
tend to haul out. The Navy was able to monitor Phoca Reef during
approximately half of the launches. The Navy is required to monitor 3
sites during launches, and these sites can consist of any combination
of Dos Coves South, Vizcaino Point South, Red Eye West, Red Eye East,
Bachelor Beach, and Phoca Reef. It is not possible to monitor all of
these sites for every launch, and the Navy makes a decision about where
to monitor based on several factors, including local weather
conditions, the type of launch activity planned, the types and location
of pinnipeds hauled out, as well as tidal factors.
Comment 16: The Commission commented that Navy's take estimation
method is not consistent with either the method recently used by the
U.S. Air Force for its proposed and final rule (84 FR 321; January 24,
2019 and 84 FR 14314; April 10, 2019, respectively) or the intent of
the MMPA to estimate the numbers of marine mammals that are likely to
be disturbed. The U.S. Air Force based its take estimates on abundance
estimates at the various haulout sites based on Lowry et al. (2017),
previous response rates of the various pinniped species, and the number
of launches per year. Specifically for harbor seals, the Commission
says NMFS should have estimated the number of takes based on a 100-
percent response rate and the number of animals that were documented in
areas J through N on SNI in 2015 and area O in 2014, as stipulated in
Lowry et al. (2017) and as was considered best available science for
the U.S. Air Force's proposed and final rule. Using that approach, 110
harbor seals could be taken during each of the 40 proposed launch
events, for a total of 4,400 harbor seal takes. For California sea
lions, the response rate should be based on the number of sea lions
that moved a `short distance' according to the 2014-2017 monitoring
reports multiplied by the number of sea lions in the same areas in 2015
from Lowry et al. (2017) and the number of launches. The Commission
states that a similar approach should be taken for elephant seals.
Accordingly, the Commission recommends that NMFS (1) authorize 4,400
Level B harassment takes of harbor seals, and (2) estimate Level B
harassment takes of California sea lions and elephant seals based on
the numbers of both species in areas J through N in 2015 as stipulated
in Lowry et al. (2017), response rates based on each species moving a
short distance according to the 2014-2017 monitoring reports, and 40
proposed launch events in the final rule.
Response: The difference in methods of take estimation between the
Navy and the U.S. Air Force are based on what is appropriate for each
agency based on the activities that are being conducted. It does not
mean that one method is not appropriate for estimating take.
For harbor seals, NMFS believes the amount of Level B harassment
take suggested as appropriate by the Commission would be an
overestimate based on previous observations during Navy's launch
events. Before the launch events, the Navy monitors several sites
around the western end of SNI to determine where pinnipeds are hauled
out and what species are on the beaches. During this pre-launch
monitoring, harbor seals are frequently not present. For harbor seals
on SNI, the estimated takes are based on pinniped observation from
Navy's monitoring reports and not directly based on specific in-air
thresholds. The beaches that the Navy surveys are largely based on
where sound received is expected to reach 100 dB SEL or greater and
where animals are reacting to launch noises. In the case of
[[Page 40908]]
harbor seals, the Navy is already monitoring beaches where sound levels
are less than 100 dB SEL and often under 90 dB SPL (site O--Phoca Reef
and Pirates Cove). The Navy is monitoring at site O because oftentimes
the harbor seals are not hauled out on the western end of SNI on the
typically monitored beaches during launch events. In addition, the Navy
has previously surveyed other parts of SNI to determine if pinnipeds
are reacting in response to launch events. The Navy conducted surveys
of the eastern end of SNI and did not find pinnipeds reacting to launch
events. The estimated take for harbor seals was based on the total
number of takes (12) over a 3-yr monitoring period multiplied by 40
launch events for a total of 480 instances of take by Level B
harassment. Using the total number of takes (12) was a change from the
proposed IHA in 2019 (84 FR 18809; May 2, 2019) in which we used an
average number of takes multiplied by the number of launches. The
estimated take would be lower (120 harbor seals) if the average was
used, as was the case for California sea lions and Northern elephant
seals. The take estimate was revised from 120 to 480 harbor seal
instances of take by Level B harassment to possibly account for any
additional harbor seals that hauled out and reacted to launch events.
NMFS concludes that the number of authorized take is adequate and
sufficient for California sea lions and Northern Elephant seals. For
California sea lions, take estimates were derived from Navy monitoring
reports in which an average of 274.44 instances of take of sea lions by
Level B harassment occurred per launch event. Therefore, 275 sea lions
was multiplied by 40 launch events, for a conservative take estimate of
11,000 instances of take for California sea lions by Level B
harassment. Generally, northern elephant seals do not react to launch
events other than by exhibiting simple alerting responses, such as
raising their heads or temporarily going from sleeping to being awake;
however, to account for the rare instances where they have reacted, the
Navy considered that some northern elephant seals could be taken during
launch events. For Northern elephant seals an average of 0.61 instances
of take of northern elephant seals by Level B harassment occurred per
launch event from the Navy's monitoring reports. Therefore, one
northern elephant seal was then multiplied by 40 launch events for a
conservative take estimate of 40 instances of take of northern elephant
seals by Level B harassment.
As reported in the Navy 2014-2019 comprehensive monitoring report
from the previous rule, approximately 3,876 California sea lions, 99
Harbor seals, and 11 Northern elephant seals (average 144 California
sea lions, 3.5 harbor seals, and 0.4 Northern elephant seals) were
estimated to have been affected by launches conducted during that
monitoring period. The estimates also included extrapolations for
pinnipeds on portions of the beach that were not within the field of
view of the camera. During the 2014-2019 monitoring period 27 launch
events occurred at SNI even though 40 launch events annually were
authorized. If NMFS had used these averages the estimated take would
have been even lower than what NMFS is authorizing in this final rule.
In summary, NMFS believe the Level B harassment take estimates for
pinnipeds on SNI are sufficient based on actual field monitoring
conducted by the Navy of the pinniped haulout areas that could
potentially be affected by noise from launch events.
In-Water Mortality and Injury Thresholds for Explosives
Comment 17: The Commission notes that the constants and exponents
associated with the impulse metrics for both onset mortality and onset
slight lung injury have been amended from those used in Tactical
Training Theater Assessment and Planning (TAP) I and Phase II
activities, and that the Navy did not explain why the constants and
exponents have changed when the underlying data have not. The
modifications yield both smaller and larger zones. The Commission
states the results are counterintuitive since the Navy presumably
amended the impulse metrics to account for lung compression with depth,
thus the zones would be expected to be smaller rather than larger the
deeper the animal dives. The Commission states that the Navy should
provide a sufficient explanation regarding the constants and exponents
or specify the assumptions made. NMFS, however, did provide a response
in the preamble to the NWTT final rule. It stated that the numerical
coefficients are slightly larger in Phase III than in Phase II,
resulting in a slightly greater threshold near the surface. It also
stated that the rate of increase for the Phase II thresholds with depth
is greater than the rate of increase for Phase III thresholds with
depth because the Phase III equations take into account the
corresponding reduction in lung size with depth (making an animal more
vulnerable to injury per the Goertner model; 85 FR 72327; November 12,
2020). The Commission says that NMFS' response in the NWTT final rule
does not explain why lower absolute thresholds prevail below 8 m (9 yd)
in depth, and why, if lung compression is accounted for in Phase III,
the rate of increase of the Phase II thresholds with depth would be
greater when lung compression was not accounted for. The Commission
again recommends that NMFS explain in the preamble to the final rule
why the constants and exponents for onset mortality and onset slight
lung injury thresholds for Phase III that consider lung compression
with depth result in lower rather than higher absolute thresholds when
animals occur at depths greater than 8 m.
Response: The derivation of the explosive injury equations,
including any assumptions, is provided in the 2017 technical report
titled ``Criteria and Thresholds for U.S. Navy Acoustic and Explosive
Effects Analysis (Phase III)''. Specifically, the equations were
modified for the current rulemaking period (Phase III) to fully
incorporate the injury model in Goertner (1982), specifically to
include lung compression with depth. NMFS independently reviewed and
concurred with this approach.
The impulse mortality/injury equations are depth dependent, with
thresholds increasing with depth due to increasing hydrostatic pressure
in the model for both the previous 2015-2020 phase of rulemaking (Phase
II) and Phase III. The Commission correctly observes that above 8 m,
the Phase II threshold is lower than the Phase III threshold, and below
8 m, the Phase II threshold is greater than the Phase III threshold.
The differences in injury and mortality thresholds are due to taking
into account the complete Goertner (1994) model in the Phase III
criteria, as the Navy has shown in the technical report ``Criteria and
Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase
III)''. The underlying experimental data used in Phase II and Phase III
remain the same, and two aspects of the Phase III revisions explain the
relationships the Commission notes:
(1) The numeric coefficients in the equations are computed by
inserting the Richmond et al. (1973) experimental data into the model
equations. Because the Phase III model equation accounts for lung
compression, the plugging of experimental exposure values into a
different model results in different coefficients. The numeric
coefficients are slightly larger in Phase III versus Phase II,
resulting in a slightly greater threshold near the surface.
(2) The rate of increase for the Phase II thresholds with depth is
greater than the rate of increase for Phase III
[[Page 40909]]
thresholds with depth because the Phase III equations take into account
the corresponding reduction in lung size with depth (making an animal
more vulnerable to injury per the Goertner model), as the commenter
notes.
Comment 18: The Commission comments that, consistent with other
Phase III documents, the Navy used the onset mortality and onset slight
lung injury criteria to determine only the range to effects, while it
used the 50 percent mortality and 50 percent slight lung injury
criteria to estimate the numbers of marine mammal takes. That approach
is inconsistent with the manner in which the Navy estimated the numbers
of takes for PTS, TTS, and behavior for explosive activities. All of
those takes have been and continue to be based on onset, not 50-percent
values. The Commission comments that NMFS' responses in the
corresponding preambles to the final rules, that over predicting
impacts by using onset values would not afford extra protection to any
animal, is irrelevant from an impact analysis standpoint. NMFS'
additional response in the preamble to the NWTT final rule, that
estimating takes based on the onset values would over predict effects
because many of those exposures would not happen because of effective
mitigation (85 FR 72328; November 12, 2020), is unsubstantiated. The
Navy has not determined the effectiveness of any of its mitigation
measures, and explosive activities for which mitigation measures were
implemented still resulted in the deaths of multiple common dolphins in
2011. It would be more prudent for the Navy and NMFS to estimate
injuries and mortalities based on onset rather than a 50-percent
incidence of occurrence. The Commission recommends that NMFS use onset
mortality, onset slight lung injury, and onset gastrointestinal (GI)
tract injury thresholds rather than the 50-percent thresholds to
estimate both the numbers of marine mammal takes and the respective
ranges to effect in the final rule. If NMFS does not implement the
Commission's recommendation, the Commission further recommends that in
the preamble to the final rule NMFS (1) specify why it is
inconsistently basing its explosive thresholds for Level A harassment
on onset PTS and for Level B harassment on onset TTS and onset
behavioral response, while the explosive thresholds for mortality and
non-auditory Level A harassment are based on the 50-percent criteria
for mortality, slight lung injury, and GI tract injury, (2) provide
scientific justification supporting the assumption that slight lung and
GI tract injuries are less severe than PTS and thus the 50-percent
rather than onset criteria are more appropriate for estimating Level A
harassment for those types of injuries, and (3) justify why the number
of estimated mortalities should be predicated on at least 50 percent
rather than 1 percent of the animals dying.
Response: For explosives, the type of data available are different
than those available for hearing impairment, and this difference
supports the use of different prediction methods. Nonetheless, as
appropriate, and similar to take estimation methods for PTS, NMFS and
the Navy have used a combination of exposure thresholds and
consideration of mitigation to inform the take estimates. The Navy used
the range to 1 percent risk of onset mortality and onset injury (also
referred to as ``onset'' in the 2022 PSMR FSEIS/OEIS and the Navy's
2017 technical report titled ``Criteria and Thresholds for U.S. Navy
Acoustic and Explosive Effects Analysis (Phase III)'') to inform the
development of mitigation zones for explosives. Ranges to effect based
on 1 percent risk criteria to onset injury and onset mortality were
examined to ensure that explosive mitigation zones would encompass the
range to any potential mortality or non-auditory injury, affording
actual protection against these effects. In all cases, the mitigation
zones for explosives extend beyond the range to 1 percent risk of onset
non-auditory injury, even for a small animal (representative mass = 5
kg). Given the implementation and expected effectiveness of this
mitigation (based on the smaller size of the zone and available
monitoring data), the application of the indicated 50-percent threshold
is appropriate for the purposes of estimating take. Using the 1 percent
onset non-auditory injury risk criteria to estimate take would result
in an over-estimate of take, and would not afford extra protection to
any animal. Specifically, calculating take based on marine mammal
density within the area that an animal might be exposed above the 1
percent risk to onset injury and onset mortality criteria would over-
predict effects because many of those exposures will not happen because
of the effective mitigation. The Navy and NMFS consider the 50-percent
incidence of onset injury and onset mortality occurrence a reasonable
representation of a potential effect, and thereby appropriate for take
estimation, given the mitigation requirements at the 1-percent onset
injury and onset mortality threshold, and the area ensonified above
this threshold would capture the appropriate reduced number of likely
injuries.
While the approaches for evaluating non-auditory injury and
mortality are based on different types of data and analyses than the
evaluation of PTS and behavioral disturbance, and are not identical,
NMFS disagrees with the commenter's assertion that the approaches are
inconsistent, as both approaches consider a combination of thresholds
and mitigation (where applicable) to inform take estimates. For the
same reasons, it is not necessary for NMFS to ``provide scientific
justification supporting the assumption that slight lung and GI tract
injuries are less severe than PTS,'' as that assumption is not part of
NMFS' rationale for the methods used. NMFS has explained in detail its
justification for the number of estimated mortalities, which is based
on both the 50 percent threshold and the mitigation applied at the one
percent threshold. Further, we note that many years of Navy monitoring
following explosive exercises has not detected evidence that any injury
or mortality has resulted from Navy explosive exercises with the
exception of one incident with dolphins in California, after which
mitigation was adjusted to better account for explosives with delayed
detonations (i.e., zones for events with time-delayed firing were
enlarged).
Furthermore, for these reasons, the methods used for estimating
mortality and non-auditory injury are appropriate for estimating take,
including determining the ``significant potential'' for non-auditory
injury consistent with the statutory definition of Level A harassment
for military readiness activities, within the limits of the best
available science. Using the one percent threshold would be
inappropriate and would result in an overestimation of effects,
whereas, given the mitigation applied within this larger area, the 50
percent threshold results in an appropriate mechanism for estimating
the significant potential for non-auditory injury.
Mitigation Measures
Extents of Zones and Passive Acoustic Monitoring
Comment 19: The Commission commented that the proposed mitigation
zones would not protect high-frequency (HF) cetaceans from PTS. For
example, the mitigation zone for a missile is 1,829 m (2,000 yd; Table
23 in the proposed rule), but the mean PTS zones range from 2,177-3,791
m (2,381-4,146 yd) for HF Cetaceans (Table 6-8 in the LOA application).
[[Page 40910]]
Similarly, the mitigation zone for an explosive bomb is 2,286 m (2,500
yd; Table 24 in the proposed rule), but the mean PTS zones similarly
range from 2,177-3,791 m (2,381-4,146 yd) for HF cetaceans. The
appropriateness of such zones is further complicated by aircraft
deploying bombs at surface targets directly beneath the aircraft,
minimizing the ability to observe the entire extent of the zone(s). In
addition, missiles and rockets can be fired from vessels at targets 139
km (75 nmi) away from the firing platform (Table 23 in the proposed
rule). In either case, marine mammals could be present in the target
area at the time of the launch unbeknownst to the Navy.
Response: NMFS is aware that some mitigation zones do not fully
cover the area in which an animal from a certain hearing group may
incur PTS. The mitigation zones extend beyond the respective average
ranges to PTS for all marine mammal hearing groups except HF cetaceans
(the mitigation zones extend into a portion of the respective average
ranges to PTS for this hearing group). The mitigation zones also extend
into a portion of the average ranges to TTS for marine mammals.
Therefore, depending on the species, mitigation will help avoid or
reduce all or a portion of the potential for exposure to mortality,
non-auditory injury, PTS, and higher levels of TTS for the largest
explosives in bins E10 and bin E6. Explosives in smaller source bins
(e.g., missiles in bin E9, rockets in bin E3) have shorter predicted
impact ranges; therefore, the mitigation zones will cover a greater
portion of the impact ranges for these explosives.
For this small subset of circumstances, NMFS discussed potential
enlargement of the mitigation zones with the Navy, but concurred with
the Navy's assessment that further enlargement would be impracticable.
Specifically, the Navy explained that, as discussed in Chapter 5
(Standard Operating Procedures and Mitigation) of the 2022 PMSR FEIS/
OEIS, for explosive mitigation zones any additional increases in
mitigation zone size (beyond what is depicted for each explosive
activity), or additional observation requirements, would be
impracticable to implement due to implications for safety,
sustainability, the Navy's ability to meet requirements under Title 10
of the U.S. Code (Title 10 requirements) to successfully accomplish
military readiness objectives, and the Navy's ability to conduct
testing and training associated with required acquisition milestones or
as required to meet operational requirements.
Increasing the mitigation zone sizes would result in larger areas
over which firing would need to be ceased in response to a sighting,
and therefore would likely increase the number of times detonations
would be ceased, which could extend the length of the activity. These
impacts could significantly diminish event realism in a way that would
prevent the activity from meeting its intended objectives. Explosive
missile and rocket events require focused situational awareness of the
activity area and continuous coordination between the participating
platforms as required during military missions and combat operations.
Additionally, Navy determined that the mitigation detailed in Chapter 5
(Standard Operating Procedures and Mitigation) of the 2022 PMSR FEIS/
OEIS and mirrored in this final rule, provides the greatest extent of
protection that is practicable to implement. NMFS has analyzed the fact
that, despite these mitigation measures, some Level A harassment may
occur in some circumstances (i.e., for HF cetaceans, as noted by the
commenter); the Navy is authorized for these takes by Level A
harassment.
Comment 20: The Commission notes that NMFS included only the
SELcum-based ranges to effect in the preamble to the proposed rule
(Tables 11-15) and specified that sound from multiple successive
explosions can be expected to increase the range to the onset of an
impact based on the SELcum thresholds (86 FR 37817; July 16, 2021).
Although that may be true relative to the SELcum of a single
detonation, the SPLpeak thresholds result in larger ranges to effect
for the majority of the explosive bins for HF, low-frequency (LF), and
mid-frequency (MF) cetaceans and phocids for PTS and LF cetaceans and
otariids for TTS (see Tables 6-7 to 6-16 in the Navy's LOA
application). For otariids and phocids, the range to onset PTS is
larger for the SPLpeak rather than the SELcum threshold for clusters of
10, 12, and/or 25 munitions. As such, NMFS should have included the
relevant zones in the preamble to the proposed rule for transparency
purposes.
Response: The peak pressure range-to-effect tables are in Navy's
LOA application submittal, next to the SEL range-to-effect tables and
the relevant zones as noted by the Commission; thus, there is no issue
of NMFS not being transparent. NMFS references (and often provides
links to access) additional documents such as the application or
previous monitoring reports that are relevant to the incidental take
authorization process when a proposed authorization is published.
Comment 21: The Commission commented that the Navy indicated in the
PMSR DEIS/OEIS that lookouts would not be 100 percent effective at
detecting all species of marine mammals for every activity because of
the inherent limitations of observing marine species and because the
likelihood of sighting individual animals is largely dependent on
observation conditions (e.g., time of day, sea state, mitigation zone
size, observation platform) and animal behavior (e.g., the amount of
time an animal spends at the surface of the water and group size). The
Commission agrees and has made recommendations regarding the
effectiveness of the Navy's visual monitoring.
Since 2010, the Navy has been collaborating with researchers at the
University of St. Andrews to study Navy lookout effectiveness, but they
have not been conducted on a scale and in a manner sufficient to
provide useful results. Accordingly, the Commission asserts that a
precautionary approach should be taken until such time that sufficient
data are available, and that the Navy should supplement its visual
monitoring measures with other monitoring measures rather than simply
reducing the size of the zones it plans to monitor and instead use
passive acoustic monitoring. The Navy did not propose to supplement
visual monitoring with passive acoustic monitoring during any of its
explosive activities, nor did it mention passive acoustic monitoring in
relation to mitigation in either its LOA application or its DEIS/OEIS
for the PMSR Study Area. Further, NMFS did not propose to require the
Navy to use passive acoustic monitoring and did not mention passive
acoustic monitoring in regard to mitigation in the preamble to the
proposed rule.
The Commission comments that sonobuoys, which are deployed and used
during many of the Navy's activities, could be deployed and used
without having to construct or maintain additional systems. For
example, multiple sonobuoys could be deployed with the target prior to
an activity to better determine whether the target area is clear and
remains clear until the munition is launched. The Navy previously
specified that passive acoustic detections would not provide range or
bearing to detected animals and therefore cannot be used to determine
an animal's location or confirm its presence in a mitigation zone. The
Commission does not agree, as Directional Frequency Analysis and
[[Page 40911]]
Recording (DIFAR) sonobuoys perform both functions and are routinely
used by the Navy. The Commission contends that, at a minimum for PMSR,
passive acoustic monitoring should be used to supplement visual
monitoring, especially since the activities that the Navy proposed to
conduct could injure or kill marine mammals.
Contrary to NMFS' assertion in the preamble to the NWTT final rule
that sonobuoys have a narrow band that does not overlap with the
vocalizations of all marine mammals (85 FR 72349; November 12, 2020),
the Navy has highlighted numerous instances of sonobuoys being used to
detect and locate baleen whales, delphinids, and beaked whales. All
instances represent detection of a broadband, rather than narrow band,
repertoire of frequencies. NMFS also indicated that bearing or distance
of detections cannot be provided based on the number and type of
devices typically used (85 FR 72349; November 12, 2020), and the
Commission asserts this is incorrect.
The Commission further notes that personnel who monitor hydrophones
and sonobuoys used by the Navy on the operational side also have the
ability to monitor for marine mammals. The Commission stated that
ability exists--four independent sightings were made not by the Navy
lookouts but by the passive acoustic technicians (Department of the
Navy (2013)), among other examples. The Commission asserts that
although aircraft may not have passive or active acoustic capabilities,
aircraft carriers or other vessels from which the aircraft originated
very likely do have such capabilities. Given that the effectiveness of
Navy lookouts conducting visual monitoring has yet to be determined,
the Commission contends that, at a minimum for the PMSR Study Area,
passive acoustic monitoring should be used to supplement visual
monitoring. Therefore, the Commission again recommends that NMFS
require the Navy to use passive acoustic monitoring (i.e., DIFAR and
other types of sonobuoys), whenever practicable, to supplement visual
monitoring during implementation of its mitigation measures for all
explosive activities in the final rule.
Response: The Lookout effectiveness study referenced by the
Commission is now complete. Previously, this type of study has never
been conducted; itis extremely complex to ensure data validity, and
required a substantial amount of data to conduct meaningful statistical
analysis. As noted by the Commission, previously there has not been
enough data collected to conduct a sufficient analysis; therefore,
drawing conclusions on an incomplete data set is not scientifically
valid. The draft report was submitted to NMFS in April 2022 and is
currently being reviewed as of the drafting of this final rule. The
report provides a statistical assessment of the data available to date
characterizing the effectiveness of Navy Lookouts relative to trained
marine mammal observers for the purposes of implementing the mitigation
measures.
There are no applicable passive acoustic monitoring arrays within
the PMSR Study Area that could both detect marine mammals and alert
vessels in the area to their presence. However, the Navy queries
``real-time'' whale/dolphin sighting record sources in the days leading
up to an event. These include Whale Safe (<a href="http://www.whalesafe.com">www.whalesafe.com</a>) and Island
Packers marine mammal sightings updated on their website daily
(<a href="http://www.islandpackers.com/marine-mammal-sightings">www.islandpackers.com/marine-mammal-sightings</a>), and any recent reports
of cetacean strandings in the local area. Whale Safe focuses on three
large cetacean species (blue, humpback, and fin whales) and is a tool
that displays both visual and acoustic whale detections in the Santa
Barbara Channel. It also includes a blue whale habitat model that
predicts the likelihood of blue whale presence, whereas Island Packers
reports on a broad range of cetacean species they observe in the
Channel Islands National Park and the Channel Islands National Marine
Sanctuary.
As discussed with the Navy for explosive mitigation zones, any
additional increases in mitigation zone size (beyond what is depicted
for each explosive activity) or observation requirements would be
impracticable to implement due to implications for safety,
sustainability, and the Navy's ability to meet Title 10 requirements to
successfully accomplish military readiness objectives. As discussed in
the comment, the Navy does employ passive acoustic monitoring when
practicable to do so in other Study Areas (i.e., when assets that have
passive acoustic monitoring capabilities are already participating in
the activity). For other explosive events, there are no platforms
participating that have passive acoustic monitoring capabilities.
Adding a passive acoustic monitoring capability (either by adding a
passive acoustic monitoring device to a platform already participating
in the activity, or by adding a platform with integrated passive
acoustic monitoring capabilities to the activity) for mitigation is not
practicable. The Navy does not have sufficient resources to construct
and maintain additional passive acoustic monitoring systems or
platforms for each training and testing activity. Additionally,
diverting platforms that have passive acoustic monitoring platforms
would impact their ability to meet their Title 10 requirements and
reduce the service life of those systems.
The Navy uses recent marine mammal sighting data to determine
general presence of marine mammal species in the Southern California
area and issue alerts to event managers. These data are not used to
alter schedules or siting of events because of geographic bias in
marine mammal reporting, lag times in data reporting, and the highly
dynamic nature of cetacean movements. The Navy instead focuses efforts
on event participant awareness and marine mammal surveys in a hazard
area within hours or minutes of an event.
The time spent surveying for marine mammals varies with the size of
the area being searched. A typical flight would include approximately
1-1.5 hours of search time for an area within 5 miles of the target
location. Smaller search areas would require less time. In all cases,
multiple passes are made over the target location. Effort does not
change when there have been recent sightings in the general vicinity.
In this way, the Navy's survey and notification efforts parallel
efforts to notify ships to be more vigilant as they traverse designated
shipping lanes. We note that whales that do not vocalize can never be
detected using passive acoustic monitoring. We note that sonobuoys have
a narrow band that does not overlap with the vocalizations of all
marine mammals, and there is no bearing or distance on detections based
on the number and type of devices typically used; therefore it is not
possible to use these to implement mitigation shutdown procedures.
Although the Navy is continuing to improve its capabilities to use
range instrumentation to aid in the passive acoustic detection of
marine mammals, at this time it is not effective or practicable for the
Navy to monitor instrumented ranges for the purpose of real-time
mitigation.
Mitigation Areas and Least Practicable Adverse Impact Standard
Comment 22: The NRDC comments that despite the increase in
activities, the proposed rule contemplates no additional mitigation
measures to minimize harm to the environment and ``rejects outright any
mitigation measures such as time-area restrictions to protect the high
value habitats for marine mammals that are present in the PMSR [Study
Area]''. Of particular concern to NRDC is habitat for endangered blue
whale, fin whale, and
[[Page 40912]]
humpback whale, as well as the gray whale, which is currently
undergoing an Unusual Mortality Event (UME). The comment asserts that
NMFS fails to require mitigation that would protect these populations
and high-value habitats from increased Navy activities that contribute
to acoustic harm and ship-strike risk.
Response: NMFS has addressed this comment regarding high-value
habitats for blue, fin, gray, and humpback whales as it relates to
biologically important areas in responses to Comments 24 through 26,
below. NMFS has also addressed any risk from vessel strike in response
to Comment 27, below. The proposed and final rules do include time/area
restriction on SNI, where target and missile launches would be
scheduled to avoid peak pinniped pupping periods between January and
July, to the maximum extent practicable.
Comment 23: The NRDC commented that NMFS must conduct its own
analysis and clearly articulate it, and asserted that NMFS parrots the
Navy's position on mitigation, accepting, without any meaningful
evaluation of its own, the Navy's assertions of impracticability. The
NRDC cites the outcome of Conservation Council v. NMFS, 97 F. Supp. 3d
1210 (D. Haw. 2015), in which the parties were able to reach a
settlement agreement establishing time-area management measures on the
Navy's HSTT Study Area notwithstanding NMFS' finding, following the
Navy, that all such management measures would substantially affect
military readiness and were not practicable. NRDC states that NMFS is
simply accepting what the Navy says without conducting its own
analysis. NRDC cites Conservation Council in stating that ``if time/
area restrictions are practicable and NMFS chooses not to impose them''
then the agency must consider ``measures of equivalent effect'' to
minimize injury to marine mammals. 97 F.Supp.3d at 1231.
Response: First, the commenter's reference to mitigation measures
implemented pursuant to a prior settlement agreement is entirely
inapplicable to a discussion of NMFS' responsibility to ensure the
least practicable adverse impact under the MMPA. Specifically, for
those areas that were previously covered under the 2015 settlement
agreement for the HSTT Study Area, it is essential to understand that:
(1) the measures were developed during negotiations with the plaintiffs
and were not evaluated during those negotiations under NMFS' least
practicable adverse impact mitigation assessment, and (2) the Navy's
agreement to restrictions on its activities as part of a relatively
short-term settlement (which did not extend beyond the expiration of
the 2013 regulations) did not mean that those restrictions were
practicable to implement over the longer term.
Regarding the remainder of the comments, NMFS disagrees with much
of what the commenter asserts. First, we have carefully explained our
interpretation of the least practicable adverse impact standard and how
it applies to both stocks and individuals and habitat, in the proposed
and final rule where we refer the reader to the NWTT Study Area rule
(85 FR 72312; November 12, 2020) for further explanation of our
interpretation of least practicable adverse impact, and what
distinguishes it from the negligible impact standard.
Furthermore, we have applied the standard correctly in this rule in
requiring measures that reduce impacts to individual marine mammals in
a manner that reduces the probability and/or severity of population-
level impacts.
NMFS agrees that we must conduct our own analysis, which we have
done here, and not just accept what is provided by the Navy. That does
not mean, however, that NMFS should not review the Navy's analysis of
effectiveness and practicability of its proposed mitigation measures,
which by regulation the Navy was required to submit with its
application, and concur with those aspects of the Navy's analysis with
which NMFS agrees. NMFS has described our process for identifying the
measures needed to meet the least practicable adverse impact standard
in the Mitigation Measures section in this final rule, and we have
followed the approach described there when analyzing potential
mitigation for the Navy's activities in the PMSR Study Area. Responses
to specific recommendations for mitigation measures provided by the
commenters are discussed separately.
Comment 24: NRDC comments that NMFS has identified seven
Biologically Important Areas (BIAs) located within the PMSR Study Area
that provide important habitats for endangered and vulnerable marine
mammal species. NMFS and its experts identified their BIAs for the west
coast in areas with consistently high sighting concentrations, using
data from years of coastal small-boat surveys that were designed to
maximize encounters with target species, as well as from other sources.
The nine BIAs for blue whales represent only 2 percent of U.S. waters
in the West Coast region but encompass 87 percent of documented
sightings; similarly, the seven BIAs for humpback whales represent 3
percent of U.S. waters in the West Coast region, but encompass 89
percent of documented sightings. NRDC asserts that the proposed rule
concurs with the Navy's assessment that any geographic mitigation
measures, including within the BIAs that occur in the PMSR Study Area,
would have ``significant direct negative effects on mission
effectiveness'' and are thus considered impractical (86 FR 37823; July
16, 2021). NRDC states that by the Navy's own admission, testing and
training activities have historically not taken place in five out of
seven of the BIAs in the PMSR Study Area, and the Navy has no current
plans to use these areas for activities involving explosives or
ordnance. NRDC disagrees with NMFS' determination that time-area
closures in at least the five BIAs where the Navy has no current plans
for testing and training are impracticable. NRDC states the proposed
rule fails to discuss why such mitigation is impracticable, beyond a
simple adoption of the Navy's assessment, or consider measures ``of
equivalent effect,'' in violation of the least practicable adverse
impact standard per Conservation Council, 97 F.Supp.3d at 1231.
Response: NMFS evaluated the potential effectiveness and
practicability of geographic mitigation. Specifically, we reviewed the
Navy's analysis in Chapter 5 (Standard Operating Procedures and
Mitigation) of the 2022 PMSR FEIS/OEIS (including section 5.3.6.2 on
Geographic Mitigation), which considers and discusses the same factors
that NMFS considers to satisfy the least practicable adverse impact
standard (including practicability), and we concur with the analysis
and conclusions. Chapter 5 (Standard Operating Procedures and
Mitigation) Section 5.3.6.2 (Geographic Mitigation) of the 2022 PMSR
FEIS/OEIS includes a detailed discussion of time-area management
considerations for blue whale, humpback whale, and gray whale. Chapter
5 of the 2022 PMSR FEIS/OEIS discusses and reflects the integration of
standard operating procedures and mitigation measures along with
consideration of in the Measures Considered but Eliminated section,
includes an analysis of an array of different types of mitigation that
have been recommended over the years by non-governmental organizations
or the public, through scoping or public comment on environmental
compliance documents. Also described in Chapter 5 (Standing Operating
Procedures and
[[Page 40913]]
Mitigation) of the 2022 PMSR FEIS/OEIS, it has been recommended that
the Navy reinclude area restrictions. Some of these mitigation measures
could potentially reduce the number of marine mammals taken, via direct
reduction of the activities or amounts. However, as described in
Chapter 5 of the 2022 PMSR FEIS/OEIS, the Navy needs to train and test
in the conditions in which it conducts warfare, and these types of
modifications fundamentally change the activity in a manner that would
not support the purpose and need for the training and testing (i.e.,
are entirely impracticable) and therefore are not considered further.
The mitigation required from the Navy as described in this final rule
and the 2022 PMSR FSEIS/OEIS represents the least practicable adverse
impact, as described further below. Any further mitigation, including
entirely prohibiting training or testing activities or time/area
restriction within the BIAs as discussed above, is impracticable due to
implications for safety, sustainability, and mission requirements for
the reasons described in Chapter 5 (Standard Operating Procedures and
Mitigation) of the 2022 PMSR FSEIS/OEIS.
In this rule, we have required time-area mitigation on SNI for
hauled out pinnipeds during the pupping season based on a combination
of factors that include higher densities and observations of specific
important behaviors of marine mammals themselves, and in areas that
clearly reflect preferred habitat. In addition to being delineated
based on physical features that drive habitat function, the high
densities and concentration of certain important behaviors (e.g.,
breeding, resting) in these particular areas clearly indicate the
presence of preferred habitat.
As described in our description of how we implement the least
practicable adverse impact standard, we consider the degree to which
the successful implementation of a potential measure is expected to
reduce adverse impacts to marine mammal species or stocks and their
habitat (to include consideration of the nature and scope of the
anticipated impacts in the absence of the mitigation) and the
practicability of applicant implementation. To begin, as described in
the Estimated Take of Marine Mammals section of this final rule,
predicted impacts to, and total authorized take of, humpback, blue, and
gray whales is at a minimal level (no more than 11, 11, and 14 takes by
level B harassment annually, respectively). Given this very limited
number of instances of take within a year, and the fact that these
species do not have notable site fidelity in the area beyond
potentially staying in one area to feed for several days, there is no
reason to think that any individual whale would be taken on more than a
couple days within a year. As described in the Negligible Impact
Analysis section, this low severity and magnitude of impacts is not
expected to impact the reproduction or survival of any individuals,
much less the species or stock. We recognize that repeated disturbances
over longer durations have a greater chance of impacting the
reproduction or survival of any individual marine mammals, and time/
area restrictions in biologically important areas are one of the best
means of reducing the severity and magnitude of impacts. However, in
situations with minimal impacts to begin with, such as one or two
exposures/year of a handful of individuals, there is a much smaller
margin of potential added protection/reduction of impacts. Such is the
case here. Moreover, time-area restrictions would be less effective to
reduce potential impacts from testing and training activities within
the PMSR Study Area for the relatively small areas identified as BIAs,
given the variability in the presence of marine mammals. While blue
whales and humpback whales generally return annually to the same large-
scale regional foraging grounds that these BIAs are within, satellite
tagging data shows these foraging grounds are large, with the locus of
highest use shifting year to year within those regional areas (Mate et
al. 1999; Mate et al. 2016; Mate et al. 2018a, 2018b). This is
confirmed by surveys and studies, some of which have occurred since the
2015 BIAs were identified, comparing inter-annual variability in
modeled abundance and distribution (Becker et al. 2016; Becker et al.
2018) and explained by studies documenting both shifts in the
distribution of prey (Santora et al. 2020; Santora et al. 2017; Santora
et al. 2011), and shifts in their foraging in response to ecosystem
changes (Fleming et al. 2016).
When these factors are considered in combination with the fact that
the Navy has adequately described why these measures would not be
practicable, NMFS concurs that the additional geographic mitigations
are not warranted. In some cases, the Navy has noted that they have no
current plans to conduct certain activities in certain areas. While
these statements suggest a lower likelihood that impacts will occur in
such an area, they do not preclude the potential for activities to
occur in the area should the need arise in the future, nor do they
eliminate the impracticability of associated geographic limitations.
Comment 25: NRDC comments that NMFS should require time-area
restrictions in at least the Point Conception/Arguello blue whale
feeding area and the Santa Barbara Channel-San Miguel blue whale
feeding area during the June to October season when blue whales are
most likely to occur in concentrations in the PMSR Study Area.
Response: First, as described in the Estimated Take of Marine
Mammals section and the response to Comment 24, predicted impacts on
and total take of blue whales throughout the Study Area and in any
given year is already at a minimal level (no more than 11 takes by
Level B harassment). Only a subset of those impacts/takes might
reasonably be expected to fall within these blue whale BIAs randomly in
space and in time (only a portion of the training area, and active 5 of
12 months) and, further, when the fact that these BIAs are in an area
of low Navy use (because of oil platforms, vessel routes to large
ports, and other reasons) is considered, it is questionable whether any
impacts will occur in the areas at all. Given this, and the specific
nature of blue whale feeding in the region discussed above, time/area
restrictions in these areas would likely afford little, if any,
additional reduction of numbers or severity of take. When combined with
the impracticability of implementation, NMFS concurs that these
additional measures are not warranted. NMFS has explained that
geographic mitigation in large whale feeding areas is impracticable due
to implications for safety, sustainability, and mission requirements
for the reasons described in Chapter 5 (Standard Operating Procedures
and Mitigation) of the 2022 PMSR FSEIS/OEIS, for which NMFS is a
cooperating agency.
Of additional note, the Santa Barbara to San Miguel Blue Whale
Feeding Area BIA that is within the PMSR Study Area largely overlaps
the Channel Islands National Marine Sanctuary (CINMS) and the Channel
Islands National Park (CINP) boundaries, which are areas where the Navy
is not planning to conduct training and testing activities involving
explosives, as stated in Chapter 5 (Standard Operating Procedures and
Mitigation) of the 2022 PMSR FEIS/OEIS. Furthermore, no missiles,
munitions, explosives, or other live testing or training would be
conducted within the CINMS boundaries, as stated in Chapter 6 (Other
Regulatory Considerations) of the
[[Page 40914]]
2022 PMSR FEIS/OEIS. In addition, the Navy is not proposing the use of
remotely operated vehicles, unmanned underwater vehicles, or bottom
crawlers as part of this 2022 PMSR FEIS/OEIS's action. Surface targets
may be towed or operated under their own power as they transit through
the CINMS to the PMSR Study Area. The Navy's standard operating
procedures for vessel transits would minimize impacts to sanctuary
resources, including large whales. Specifically, the Navy will
implement Large Whale Awareness Notification Messages through which the
Navy will issue a seasonal awareness notification message to alert
ships and aircraft operating in the area to the possible presence of
concentrations of large whales, including blue whales (June 1 through
October 31), gray whales (November 1 through March 31) and fin whales
(November 1 through May 31). Any Navy activity that would occur within
these boundaries would typically include vessels and targets transiting
through the area to the PMSR Study Area. No explosives or gunnery
events would occur within the Santa Barbara to San Miguel BIA or within
the boundaries of the CINMS or Channel Islands National Park.
Comment 26: NRDC comments that NMFS should prohibit the use of
explosives and gunnery activities and require vessel speed restrictions
in the Morro Bay to Point Sal feeding area and the Santa Barbara
Channel-San Miguel feeding area in order to protect humpback whales and
humpback whale critical habitat units of high conservation value.
Response: First, as described in the Estimated Take of Marine
Mammals section and the response to Comment 24, predicted impacts to,
and total authorized take of, humpback whales throughout the Study Area
and any given year is already at a minimal level (no more than 11 takes
by Level B harassment). Only a subset of those impacts/takes might
reasonably be expected to fall within the humpback whale BIAs randomly
in space and in time (only a portion of the training area, and active a
subset of 12 months). Given this, time/area restrictions in these areas
would likely afford little, if any, additional reduction of number or
severity of take. When combined with the impracticability of limiting
explosive use in certain geographic areas, as described in sections
5.3.6.1 and 5.3.6.2 of the point Mugu Sea Range Final EIS, which NMFS
concurs with, NMFS has determined that these additional measures are
not warranted.
Regarding impacts to humpback whale critical habitat, while Navy
activities in the PMSR could potentially kill or injure a small amount
of krill, other crustaceans, or forage fish (e.g., sardine, anchovy),
other prey items would likely be available to humpback whales in the
immediate area surrounding the activity, or would return to the area
after the activity is complete, and the impacts would not be at the
level that it would adversely affect the availability of prey in a
manner that might impact growth, reproduction, or survival of any
individual humpback whales. The 2021 biological opinion concluded that
given the frequency of the events that are part of the proposed action,
the short duration of these events, the various mitigation measures
(including halting of activities until marine mammals are out of the
area and are not observed feeding), the fact that detonations are not
proposed to occur in the water column but rather at or near (within 10
m (11 yd) above) the surface, and the relatively large number of prey
items available throughout the critical habitat, any impacts of
explosives resulting from PM
[…truncated; see source link]Indexed from Federal Register on July 8, 2022.
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