Rule2022-27951
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training Activities in the Gulf of Alaska Study Area
Primary source
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Published
January 4, 2023
Effective
February 3, 2023
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 activities conducted in the Gulf of Alaska (GOA) 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 Letters 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 88, Number 2 (Wednesday, January 4, 2023)]
[Rules and Regulations]
[Pages 604-697]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27951]
[[Page 603]]
Vol. 88
Wednesday,
No. 2
January 4, 2023
Part III
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 Activities in the Gulf of Alaska Study Area;
Final Rule
Federal Register / Vol. 88 , No. 2 / Wednesday, January 4, 2023 /
Rules and Regulations
[[Page 604]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 221219-0277]
RIN 0648-BK46
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Navy Training Activities in the Gulf of Alaska
Study Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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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
activities conducted in the Gulf of Alaska (GOA) 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 Letters 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 February 3, 2023 through February 2, 2030.
ADDRESSES: A copy of the Navy's application, NMFS' proposed and final
rules and subsequent LOAs 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 activities (which
qualify as military readiness activities) including the use of sonar
and other transducers, and in-air detonations at or near the surface
(within 10 m above the water surface) in the GOA Study Area. The GOA
Study Area is comprised of three areas: the Temporary Maritime
Activities Area (TMAA), a warning area, and the Western Maneuver Area
(WMA) (see Figure 1). The TMAA and WMA are temporary areas established
within the GOA for ships, submarines, and aircraft to conduct training
activities. The warning area overlaps and extends slightly beyond the
northern corner of the TMAA. The WMA is located south and west of the
TMAA and provides additional surface, sub-surface, and airspace in
which to maneuver in support of activities occurring within the TMAA.
The use of sonar and other transducers, and explosives would not occur
within the WMA.
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
activities. No lethal take is anticipated or proposed for
authorization.
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 LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
The 2004 NDAA (Pub. L. 108-136) removed the ``small numbers'' and
``specified geographical region'' limitations indicated above and
amended the definition of ``harassment'' as applied to a ``military
readiness activity.'' The activity for which incidental take of marine
mammals is being requested addressed here qualifies as a military
readiness activity.
Summary of Major Provisions Within the Final Rule
The following is a summary of the primary provisions of this final
rule regarding the Navy's activities. These provisions include, but are
not limited to:
<bullet> The use of defined powerdown and shutdown zones (based on
activity);
<bullet> Measures to reduce the likelihood of ship strikes;
<bullet> Activity limitations in certain areas and times that are
biologically important (e.g., for foraging or migration) for marine
mammals;
<bullet> Implementation of a Notification and Reporting Plan (for
dead or live stranded marine mammals); and
<bullet> Implementation of a robust monitoring plan to improve our
understanding of the environmental effects resulting from the Navy
training 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 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, including by Alaska Natives. 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 the species or stocks for taking for certain
subsistence uses
[[Page 605]]
(referred to in this rule as ``mitigation measures''); and 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 October 9, 2020, NMFS received an adequate and complete
application from the Navy requesting authorization for take of marine
mammals, by Level A harassment and Level B harassment, incidental to
training from the use of active sonar and other transducers and
explosives (in-air, occurring at or above the water surface) in the
TMAA over a 7-year period. On March 12, 2021, the Navy submitted an
updated application that provided revisions to the Northern fur seal
take estimate and incorporated additional best available science. In
August 2021, the Navy communicated to NMFS that it was considering an
expansion of the GOA Study Area and an expansion of the Portlock Bank
Mitigation Area proposed in its previous applications. On February 2,
2022, the Navy submitted a second updated application that described
the addition of the WMA to the GOA Study Area (which previously just
consisted of the TMAA) and the replacement of the Portlock Bank
Mitigation Area with the Continental Shelf and Slope Mitigation Area.
The GOA Study Area supports opportunistic experimentation and testing
activities when conducted as part of training activities and when
considered to be consistent with the proposed training activities.
These activities could occur as part of large-scale exercises or as
independent events. Therefore, there is no separate discussion or
analysis for testing activities that may occur as part of the proposed
military readiness activities in the GOA Study Area.
On January 8, 2021 (86 FR 1483), we published a notice of receipt
(NOR) of application in the Federal Register, requesting comments and
information related to the Navy's request for 30 days. We received one
comment on the NOR that was non-substantive in nature. On August 11,
2022, we published a notice of proposed rulemaking (87 FR 49656) and
requested comments and information related to the Navy's request for 45
days. All substantive comments received during the NOR and the proposed
rulemaking comment periods were considered in developing 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, 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, if issued: Surface
Warfare (detonations at or above the water surface) and Anti-Submarine
Warfare (sonar and other transducers). The Navy is also conducting Air
Warfare, Electronic Warfare, Naval Special Warfare, Strike Warfare, and
Support Operations, but these activities do not involve sonar and other
transducers, detonations at or above the water surface, or any other
stressors that could result in the take of marine mammals. (See the
2022 GOA Final Supplemental Environmental Impact Statement (FSEIS)/
Overseas Environmental Impact Statement (OEIS) (2022 GOA FSEIS/OEIS)
for more detail on those activities.) The activities will not include
in-water explosives, pile driving/removal, or use of air guns.
This is the third time NMFS has promulgated incidental take
regulations pursuant to the MMPA relating to similar military readiness
activities in the GOA, following regulations that were effective
beginning May 4, 2011 (76 FR 25479; May 4, 2011) and April 26, 2017 (82
FR 19530; April 27, 2017). For this third round of rulemaking, the
activities the Navy is planning to conduct are largely a continuation
of ongoing activities conducted for more than a decade. While the
specified activities have not changed, there are changes in the
platforms and systems used in those activities, as well as changes in
the bins (source classifications) used to analyze the activities. For
example, two new sonar bins were added (MF12 and ASW1) and another bin
was eliminated (HF6). This was due to changes in platforms and systems.
Further, the Navy expanded the GOA Study Area to include the WMA,
though the vast majority of the training activities will still occur
only in the TMAA.
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 establishing and executing training programs,
including at-sea training and exercises, and ensuring naval forces have
access to the ranges, operating areas (OPAREA), and airspace needed to
develop and maintain skills for conducting naval activities.
The Navy has conducted training activities in the TMAA portion of
the GOA Study Area since the 1990s. Since the 1990s, the Department of
Defense has conducted a major joint training exercise in Alaska and off
the Alaskan coast that involves the Departments of the Navy, Army, Air
Force, and Coast Guard participants reporting to a unified or joint
commander who coordinates the activities. These activities are planned
to demonstrate and evaluate the ability of the services to engage in a
conflict and successfully carry out plans in response to a threat to
national security. The Navy's planned activities for the period of
these regulations would be a continuation of the types and level of
training activities that have been ongoing for more than a decade.
The Navy's rulemaking/LOA application reflects the most up-to-date
compilation of training activities deemed necessary by senior Navy
leadership to accomplish military readiness requirements. The types and
[[Page 606]]
numbers of activities included in the rule account for fluctuations in
training in order to meet evolving or emergent military readiness
requirements. These regulations cover training activities that will
occur for a 7-year period beginning February 3, 2023.
Description of the Specified Activity
A detailed description of the specified activity was provided in
our Federal Register notice of proposed rulemaking (87 FR 49656; August
11, 2022); please see that notice of proposed rulemaking or the Navy's
application for more information. The Navy requested authorization to
take marine mammals incidental to conducting training activities. The
Navy has determined that acoustic and explosive (in-air, occurring at
or above the water surface) stressors are most likely to result in
impacts on marine mammals that could rise to the level of harassment,
and NMFS concurs with this determination. Descriptions of these
activities are provided in section 2 of the 2022 GOA FSEIS/OEIS (U.S.
Department of the Navy, 2022) 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
Training activities will be conducted intermittently in the GOA
Study Area over a maximum time period of up to 21 consecutive days
annually from April to October to support a major joint training
exercise in Alaska and off the Alaskan coast that involves the
Departments of the Navy, Army, Air Force, and Coast Guard. The
participants report to a unified or joint commander who coordinates the
activities planned to demonstrate and evaluate the ability of the
services to engage in a conflict and carry out plans in response to a
threat to national security. The specified activities will occur over a
maximum time period of up to 21 consecutive days each year during the
7-year period of validity of the regulations. The planned number of
training activities are described in the Detailed Description of
Proposed Activities section (Table 3).
Geographical Region
The GOA Study Area is entirely at sea and is comprised of the TMAA
and a warning area in the Gulf of Alaska, and the WMA. The term ``at-
sea'' refers to training activities in the Study Area (both the TMAA
and WMA) that occur (1) on the ocean surface, (2) beneath the ocean
surface, and (3) in the air above the ocean surface. Navy training
activities occurring on or over the land outside the GOA Study Area are
not included in this rule, and are covered under separate environmental
documentation prepared by the U.S. Air Force and the U.S. Army. As
depicted in Figure 1 of the proposed rule (87 FR 49656; August 11,
2022), the TMAA is a polygon roughly resembling a rectangle oriented
from northwest to southeast, approximately 300 nmi (556 km) in length
by 150 nmi (278 km) in width, located south of Montague Island and east
of Kodiak Island. The GOA Study Area boundary was intentionally
designed to avoid Endangered Species Act (ESA)-designated Steller sea
lion critical habitat. The WMA is located south and west of the TMAA,
and provides an additional 185,806 nmi\2\ (637,297 km\2\) of surface,
sub-surface, and airspace to support training activities occurring
within the TMAA. The boundary of the WMA follows the bottom of the
slope at the 4,000 m contour line, and was configured to avoid overlap
and impacts to ESA-designated critical habitat, biologically important
areas (BIAs), migration routes, and primary fishing grounds. The WMA
provides additional airspace and sea space for aircraft and vessels to
maneuver during training activities for increased training complexity.
The TMAA and WMA are temporary areas established within the GOA for
ships, submarines, and aircraft to conduct training activities.
Additional detail can be found in Chapter 2 of the Navy's rulemaking/
LOA application.
Primary Mission Areas
The Navy categorizes many of its training activities into
functional warfare areas called primary mission areas. The Navy's
planned activities for the GOA Study Area generally fall into the
following six primary mission areas: Air Warfare; Surface Warfare;
Anti-Submarine Warfare; Electronic Warfare; Naval Special Warfare; and
Strike Warfare. Most activities conducted in the GOA are categorized
under one of these primary mission areas; activities that do not fall
within one of these areas are listed as ``support operations'' or
``other training activities.'' Each warfare community (aviation,
surface, and subsurface) may train in some or all of these primary
mission areas. A description of the sonar, munitions, targets, systems,
and other materials used during training activities within these
primary mission areas is provided in Appendix A (Navy Activities
Descriptions) of the 2022 GOA FSEIS/OEIS.
The Navy describes and analyzes the effects of its training
activities within the 2022 GOA FSEIS/OEIS. In its assessment, the Navy
concluded that of the activities to be conducted within the GOA Study
Area, sonar use and in-air explosives occurring at or above the water
surface were the stressors resulting in impacts on marine mammals that
could rise to the level of harassment as defined under the MMPA. (The
Navy is not proposing to conduct any activities that use in-water or
underwater explosives.) These activities are limited to the TMAA. No
activities involving sonar use or explosives would occur in the WMA or
the portion of the warning area that extends beyond the TMAA.
Therefore, the Navy's rulemaking/LOA application provides the Navy's
assessment of potential effects from sonar use and explosives occurring
at or above the water surface in terms of the various warfare mission
areas they are associated with. Those mission areas include the
following:
<bullet> Surface Warfare (in-air detonations at or above the water
surface); \1\ and
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\1\ Defined herein as being within 10 meters of the ocean
surface.
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<bullet> Anti-Submarine warfare (sonar and other transducers).
The Navy's activities in Air Warfare, Electronic Warfare, Naval
Special Warfare, Strike Warfare, Support Operations, and Other Training
Activities do not involve sonar and other transducers, detonations at
or near the surface, or any other stressors that could result in
harassment, serious injury, or mortality of marine mammals. Therefore,
the activities in these warfare areas are not discussed further in this
rule, but are analyzed fully in the 2022 GOA FSEIS/OEIS. Additional
detail regarding the primary mission areas was provided in our Federal
Register notice of proposed rulemaking (87 FR 49656; August 11, 2022);
please see that notice of proposed rulemaking or the Navy's application
for more information.
Overview of the Major Training Exercise Within the GOA Study Area
The training activities in the GOA Study Area are considered to be
a major training exercise (MTE). An MTE, for purposes of this
rulemaking, is comprised of several unit-level activities conducted by
several units operating together, commanded and controlled by a single
Commander, and potentially generating more than 100 hours of active
sonar. These exercises typically employ an exercise scenario developed
to train and evaluate the exercise participants in tactical and
operational
[[Page 607]]
tasks. In an MTE, most of the activities being directed and coordinated
by the Commander in charge of the exercise are identical in nature to
the activities conducted during individual, crew, and smaller unit-
level training events. In a MTE, however, these disparate training
tasks are conducted in concert, rather than in isolation. At most, only
one MTE will occur in the GOA Study Area per year (over a maximum of 21
days).
Description of Stressors
The Navy uses a variety of sensors, platforms, weapons, and other
devices, including ones used to ensure the safety of Sailors and
Marines, to meet its mission. Training with these systems may introduce
sound and energy into the environment. The following subsections
describe the acoustic and explosive stressors for marine mammals and
their habitat (including prey species) within the GOA 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 GOA Study Area.
Stressor/resource interactions that were determined to have de minimis
or no impacts (e.g., vessel noise, aircraft noise, weapons noise, and
high-altitude (greater than 10 m above the water surface) explosions)
were not carried forward for analysis in the Navy's rulemaking/LOA
application. The Navy fully considered the possibility of vessel
strike, conducted an analysis, and determined that requesting take of
marine mammals by vessel strike was not warranted. Although the Navy
did not request take for vessel strike, NMFS also fully analyzed the
potential for vessel strike of marine mammals as part of this
rulemaking. Therefore, this stressor is discussed in detail below. No
Sinking Exercise (SINKEX) events are planned in the GOA Study Area for
this rulemaking, nor is establishment and use of a Portable Undersea
Tracking Range (PUTR) planned. NMFS reviewed the Navy's analysis and
conclusions on de minimis and no-impact sources and finds them complete
and supportable.
Acoustic stressors include acoustic signals emitted into the water
for a specific purpose, such as sonar, other transducers (devices that
convert energy from one form to another--in this case, into sound
waves), incidental sources of broadband sound produced as a byproduct
of vessel movement, aircraft transits, 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. Characteristics of each of these
sound sources are described in the following sections.
In order to better organize and facilitate the analysis of
approximately 300 sources of underwater sound used by the Navy,
including sonar and other transducers and explosives, a series of
source classifications, or source bins, were developed. The source
classification bins do not include the broadband noise produced
incidental to vessel movement, aircraft transits, and weapons firing.
Noise produced from vessel movement, aircraft transits, and use of
weapons or other deployed objects is not carried forward because those
activities were found to have de minimis or no impacts, as described
above.
The use of source classification bins provides the following
benefits:
<bullet> 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'';
<bullet> Improves efficiency of source utilization data collection
and reporting requirements anticipated under the MMPA authorizations;
<bullet> Ensures a precautionary approach to all impact estimates,
as all sources within a given class are modeled as the most impactful
source (highest source level, longest duty cycle, or largest net
explosive weight) within that bin;
<bullet> Allows analyses to be conducted in a more efficient
manner, without any compromise of analytical results; and
<bullet> Provides a framework to support the reallocation of source
usage (hours/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.
Sonar and Other Transducers
Active sonar and other transducers emit non-impulsive sound waves
into the water to detect objects, navigate safely, and communicate.
Passive sonars differ from active sound sources in that they do not
emit acoustic signals; rather, they only receive acoustic information
about the environment, or listen. In this rule, the terms sonar and
other transducers will be used to indicate active sound sources unless
otherwise specified.
The Navy employs a variety of sonars and other transducers to
obtain and transmit information about the undersea environment. Some
examples are mid-frequency hull-mounted sonars used to find and track
enemy submarines; high-frequency small object detection sonars used to
detect mines; high-frequency underwater modems used to transfer data
over short ranges; and extremely high-frequency (greater than 200
kilohertz (kHz)) doppler sonars used for navigation, like those used on
commercial and private vessels. The characteristics of these sonars and
other transducers, such as source level, beam width, directivity, and
frequency, depend on the purpose of the source. Higher frequencies can
carry more information or provide more information about objects off
which they reflect, but attenuate more rapidly. Lower frequencies
attenuate less rapidly, so they may detect objects over a longer
distance, but with less detail.
Additional detail regarding sound sources and platforms and
categories of acoustic stressors was provided in our Federal Register
notice of proposed rulemaking (87 FR 49656; August 11, 2022); please
see that notice of proposed rulemaking or the Navy's application for
more information.
Sonars and other transducers are grouped into classes that share an
attribute, such as frequency range or purpose of use. As detailed
below, classes are further sorted by bins based on the frequency or
bandwidth; source level; and, when warranted, the application in which
the source would be used. Unless stated otherwise, a reference distance
of 1 meter (m) is used for sonar and other transducers.
<bullet> Frequency of the non-impulsive acoustic source:
[cir] Low-frequency sources operate below 1 kHz;
[cir] Mid-frequency sources operate at and above 1 kHz, up to and
including 10 kHz;
[cir] High-frequency sources operate above 10 kHz, up to and
including 100 kHz;
[cir] Very-high-frequency sources operate above 100 kHz but below
200 kHz;
<bullet> Sound pressure level of the non-impulsive source;
[cir] Greater than 160 decibels (dB) re 1 micro Pascal ([micro]Pa),
but less than 180 dB re: 1 [micro]Pa;
[cir] Equal to 180 dB re: 1 [micro]Pa and up to 200 dB re: 1
[micro]Pa;
[cir] Greater than 200 dB re: 1 [micro]Pa;
<bullet> Application in which the source would be used:
[cir] Sources with similar functions that have similar
characteristics, such as pulse length (duration of each pulse), beam
pattern, and duty cycle.
[[Page 608]]
The bins used for classifying active sonars and transducers that
are quantitatively analyzed for use in the TMAA are shown in Table 1
below. While general parameters or source characteristics are shown in
the table, the actual source parameters are classified. Acoustic source
bins used in the planned activities will vary annually. The seven-year
totals for the planned training activities take into account that
annual variability.
Table 1--Sonar and Other Transducers Quantitatively Analyzed in the TMAA
----------------------------------------------------------------------------------------------------------------
For annual training activities
-----------------------------------------------------------------------------------------------------------------
Source class category Bin Description Units Annual 7-Year total
----------------------------------------------------------------------------------------------------------------
Mid-Frequency (MF) Tactical MF1.......... Hull-mounted H 271 1,897
and non-tactical sources that surface ship
produce signals from 1 to 10 sonars (e.g.,
kHz. AN/SQS-53C and
AN/SQS-60).
MF3.......... Hull-mounted H 25 175
submarine
sonars (e.g.,
AN/BQQ-10).
MF4.......... Helicopter- H 27 189
deployed
dipping sonars
(e.g., AN/AQS-
22).
MF5.......... Active acoustic I 126 882
sonobuoys.
(e.g., DICASS)..
MF6.......... Active I 14 98
underwater
sound signal
devices (e.g.,
MK 84).
MF11......... Hull-mounted H 42 294
surface ship
sonars with an
active duty
cycle greater
than 80%.
MF12......... Towed array H 14 98
surface ship
sonars with an
active duty
cycle greater
than 80%.
High-Frequency (HF) Tactical HF1.......... Hull-mounted H 12 84
and non-tactical sources that submarine
produce signals greater than sonars.
10 kHz but less than 100 kHz. (e.g., AN/BQQ-
10).
Anti-Submarine Warfare (ASW) ASW1......... MF systems H 14 98
Tactical sources used during ASW2......... operating above H 42 294
ASW training activities. 200 dB.
MF Multistatic
Active Coherent
sonobuoy (e.g.,
AN/SSQ-125).
ASW3......... MF towed active H 273 1,911
acoustic
countermeasure
systems.
(e.g., AN/SLQ-
25).
ASW4......... MF expendable I 7 49
active acoustic
device
countermeasures
(e.g., MK3).
----------------------------------------------------------------------------------------------------------------
Notes: H = hours, I = count (e.g., number of individual pings or individual sonobuoys), DICASS = Directional
Command Activated Sonobuoy System.
Explosives
This section describes the characteristics of explosions during
naval training. The activities analyzed in the Navy's rulemaking/LOA
application that use explosives are described in additional detail in
Appendix A (Navy Activity Descriptions) of the 2022 GOA FSEIS/OEIS.
Explanations of the terminology and metrics used when describing
explosives in the Navy's rulemaking/LOA application are also in
Appendix B (Acoustic and Explosive Concepts) of the 2022 GOA FSEIS/
OEIS.
The near-instantaneous rise from ambient to an extremely high peak
pressure is what makes an explosive shock wave potentially damaging.
Farther from an explosive, the peak pressures decay and the explosive
waves propagate as an impulsive, broadband sound. Several parameters
influence the effect of an explosive: the weight of the explosive in
the warhead, the type of explosive material, the boundaries and
characteristics of the propagation medium, the detonation depth, and
the depth of the receiver (i.e., marine mammal). The net explosive
weight, which is the explosive power of a charge expressed as the
equivalent weight of trinitrotoluene (TNT), accounts for the first two
parameters. The effects of these factors are explained in Appendix B
(Acoustic and Explosive Concepts) of the 2022 GOA FSEIS/OEIS. The
activities analyzed in the Navy's rulemaking/LOA application and this
final rule that use explosives are described in further detail in
Appendix A (Navy Activities Descriptions) of the 2022 GOA FSEIS/OEIS.
Explanations of the terminology and metrics used when describing
explosives are provided in Appendix B (Acoustic and Explosive Concepts)
of the 2022 GOA FSEIS/OEIS.
Explosive detonations during training activities are from the use
of explosive bombs and naval gun shells; however, no in-water explosive
detonations are included as part of the training activities. For
purposes of the analysis in this rule, detonations occurring in air at
a height of 33 ft (10 m) or less above the water surface, and
detonations occurring directly on the water surface, were modeled to
detonate at a depth of 0.3 ft (0.1 m) below the water surface since
there is currently no other identified methodology for modeling
potential effects to marine mammals that are underwater as a result of
detonations occurring in-air at or above the surface of the ocean
(within 10 m above the surface). This conservative approach over-
estimates the potential underwater impacts due to low-altitude and
surface explosives by assuming that all explosive energy is released
and remains under the water surface.
Explosive stressors resulting from the detonation of some
munitions, such as missiles and gun rounds used in air-air and surface-
air scenarios, occur at high altitude. The resulting sound energy from
those detonations in air would not impact marine mammals. The explosive
energy released by detonations in air has been well studied, and basic
methods are available to estimate the explosive energy exposure with
distance from the detonation (e.g., U.S. Department of the Navy
(1975)). In air, the propagation of impulsive noise from an explosion
is highly influenced by atmospheric conditions, including temperature
and wind. While basic estimation methods do not consider the unique
environmental conditions that may be present on a given day, they do
allow for approximation of explosive energy propagation under neutral
atmospheric conditions. Explosions that occur during Air Warfare will
typically be at a sufficient altitude that a large portion of the sound
will refract 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 above the surface of the ocean are not likely to result in
acoustic impacts on marine mammals; therefore, these types of explosive
activities will not be discussed further
[[Page 609]]
in this document. (Note that most of these in-air detonations would
occur at altitudes substantially greater than 10 m above the surface of
the ocean, as described in further detail in section 3.0.4.2.2
(Explosions in Air) of the 2022 GOA FSEIS/OEIS.) Activities such as
air-surface bombing or surface-surface gunnery scenarios may involve
the use of explosive munitions that detonate upon impact with targets
at or above the water surface (within 10 m above the surface). For
these activities, acoustic effects modeling was undertaken as described
below.
In order to organize and facilitate the analysis of explosives,
explosive classification bins were developed. The use of explosive
classification bins provides the same benefits as described for
acoustic source classification bins discussed above and in Section
1.4.1 (Acoustic Stressors) of the Navy's rulemaking/LOA application.
The explosive bin types and the number of explosives detonating at
or above the water surface in the TMAA are shown in Table 2.
Table 2--Explosive Sources Quantitatively Analyzed That Detonate at or Above the Water Surface in the TMAA
----------------------------------------------------------------------------------------------------------------
Number of explosives
Number of explosives with the specified
Explosives (source class and net explosive weight (NEW)) (lb.) * with the specified activity (7-year
activity (annually) total)
----------------------------------------------------------------------------------------------------------------
E5 (>5-10 lb. NEW)................................................ 56 392
E9 (>100-250 lb. NEW)............................................. 64 448
E10 (>250-500 lb. NEW)............................................ 6 42
E12 (>650-1,000 lb. NEW).......................................... 2 14
----------------------------------------------------------------------------------------------------------------
* All of the E5, E9, E10, and E12 explosives would occur in-air, at or above the surface of the water, and would
also occur offshore away from the continental shelf and slope beyond the 4,000-meter isobath.
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.
Appendix B (Acoustic and Explosive Concepts) of the 2022 GOA FSEIS/OEIS
explains the characteristics of explosive detonations and how the above
factors affect the propagation of explosive energy in the water.
For in-air explosives detonating at or above the water surface, the
model estimating acoustic impacts assumes that all acoustic energy from
the detonation is underwater with no loss of sound or energy into the
air. Important considerations must be factored into the analysis of
results with these modeling assumptions, given that the peak pressure
and sound from a detonation in air significantly decreases across the
air-water interface as it is partially reflected by the water's surface
and partially transmitted underwater, as detailed in the following
paragraphs.
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 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, 2017a). As the
shock wave-front travels away from the point of detonation, it slows
and begins to behave as an acoustic wave-front traveling 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, 2018b).
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. Much of the scientific literature on
the transferal of shock wave impulse across the air-water interface has
focused on energy from sonic booms created by fast moving aircraft
flying at low altitudes above the ocean (Chapman and Godin, 2004; Cheng
and Edwards, 2003; Moody, 2006; Sawyers, 1968; Waters and Glass, 1970).
The shock wave created by a sonic boom is similar to the propagation of
a pressure wave generated by an explosion (although having a
significantly slower rise in peak pressure) and investigations of sonic
booms are somewhat informative. Waters and Glass (1970) were also
investigating sonic booms, but their methodology involved actual in-air
detonations. In those experiments, they detonated blasting caps
elevated 30 ft (9 m) above the surface in a flooded quarry and measured
the resulting pressure at and below the surface to determine the
penetration of the shock wave across the air-water interface.
Microphones above the water surface recorded the peak pressure in-air,
and hydrophones at various shallow depths underwater recorded the
unreflected remainder of the pressure wave after transition across the
air-water interface. The peak pressure measurements were compared and
the results supported the theoretical expectations for the penetration
of a pressure wave from air into water,
[[Page 610]]
including the predicted exponential decay of energy with distance from
the source underwater. In effect, the air-water interface acted as a
low-pass filter eliminating the high-frequency components of the shock
wave. At incident angles greater than 14 degrees perpendicular to the
surface, most of the shock wave from the detonation was reflected off
the water surface, which is consistent with results from similar
research (Cheng and Edwards, 2003; Moody, 2006; Yagla and Stiegler,
2003). Given that marine mammals spend, on average, up to 90 percent of
their time underwater (Costa, 1993; Costa and Block, 2009), and the
shock wave from a detonation is only a few milliseconds in duration,
marine mammals are unlikely to be exposed in-air when surfaced.
Vessel Strike
NMFS also considered the chance that a vessel utilized in training
activities could strike a marine mammal in the GOA Study Area,
including both the TMAA and WMA portions of the Study Area. 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 activity, but rather are a limited, sporadic, and
incidental result of Navy vessel movement within a study area. NMFS'
detailed analysis of the likelihood of vessel strike was provided in
the ``Potential Effects of Vessel Strike'' section of our proposed
rulemaking (87 FR 49656; August 11, 2022); please see that notice of
proposed rulemaking or the Navy's application for more information. No
additional information has been received since publication of the
proposed rule that substantively changes the agency's analysis or
conclusions. Therefore, the information and analysis included in the
proposed rule supports NMFS' concurrence with the Navy's conclusion and
our final determination that vessel strikes of marine mammals, and
associated serious injury or mortality, are not likely to result from
the Navy's activities included in this seven-year rule, and vessel
strikes are not discussed further.
Detailed Description of Specified Activities
Planned Training Activities
The Navy's Operational Commands have identified activity levels
that are needed in the GOA Study Area to ensure naval forces have
sufficient training, maintenance, and new technology to meet Navy
missions in the Gulf of Alaska. Training prepares Navy personnel to be
proficient in safely operating and maintaining equipment, weapons, and
systems to conduct assigned missions.
The Navy plans to conduct a single carrier strike group (CSG)
exercise, which will last for a maximum of 21 consecutive days in a
year. The CSG exercise is comprised of several individual training
activities. Table 3 lists and describes those individual activities
that may result in takes of marine mammals. The events listed will
occur intermittently during the 21 days and could be simultaneous and
in the same general area within the TMAA or could be independent and
spatially separate from other ongoing activities. The table is
organized according to primary mission areas and includes the activity
name, associated stressor(s), description and duration of the activity,
sound source bin, the areas where the activities are conducted in the
GOA Study Area, the maximum number of events per year in the 21-day
period, and the maximum number of events over 7 years. For further
information regarding the primary platform used (e.g., ship or aircraft
type) see Appendix A (Navy Activities Descriptions) of the 2022 GOA
FSEIS/OEIS.
Not all sound sources are used with each activity. The ``Annual #
of Events'' column indicates the maximum number of times that activity
could occur during any single year. The ``7-Year # of Events'' is the
maximum number of times an activity would occur over the 7-year period
of the regulations if the training occurred each year and at the
maximum levels requested. The events listed will occur intermittently
during the exercise over a maximum of 21 days. The maximum number of
activities may not occur in some years, and historically, training has
occurred only every other year. However, to conduct a conservative
analysis, NMFS analyzed the maximum times these activities could occur
over one year and 7 years. (Note the Navy proposes no low-frequency
active sonar (LFAS) use for the activities in this rulemaking.)
Table 3--Training Activities Analyzed for the 7-Year Period in the GOA Study Area
----------------------------------------------------------------------------------------------------------------
Stressor Annual # of 7-Year # of
category Activity Description Source bin events events
----------------------------------------------------------------------------------------------------------------
Surface Warfare
----------------------------------------------------------------------------------------------------------------
Explosive..... Gunnery Exercise, Surface ship E5........................ 6 42
Surface-to- crews fire inert
Surface. small-caliber,
(GUNEX-S-S)...... inert medium-
caliber, or
large-caliber
explosive rounds
at surface
targets.
Explosive..... Bombing Exercise. Fixed-wing E9, E10, E12.............. 18 126
(Air-to-Surface). aircraft conduct
(BOMBEX [A-S])... bombing
exercises
against
stationary
floating
targets, towed
targets, or
maneuvering
targets.
----------------------------------------------------------------------------------------------------------------
Anti-Submarine Warfare (ASW)
----------------------------------------------------------------------------------------------------------------
Acoustic...... Tracking Helicopter crews MF4, MF5, MF6............. 22 154
Exercise--Helico search for,
pter. track, and
(TRACKEX--Helo).. detect
submarines.
Acoustic...... Tracking Maritime patrol MF5, MF6, ASW2............ 13 91
Exercise--Mariti aircraft crews
me Patrol search for,
Aircraft. track, and
(TRACKEX--MPA)... detect
submarines.
Acoustic...... Tracking Surface ship ASW1, ASW3, MF1, MF11, 2 14
Exercise--Ship. crews search MF12.
(TRACKEX--Ship).. for, track, and
detect
submarines.
Acoustic...... Tracking Submarine crews ASW4, HF1, MF3............ 2 14
Exercise--Submar search for,
ine. track, and
(TRACKEX--Sub)... detect
submarines.
----------------------------------------------------------------------------------------------------------------
Notes: S-S = Surface to Surface, A-S = Air to Surface.
Standard Operating Procedures
For training 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. Standard operating procedures applicable to training have
been developed through
[[Page 611]]
years of experience, and their primary purpose is to provide for safety
(including public health and safety) and mission success. In many
cases, there are benefits to natural and cultural resources resulting
from standard operating procedures.
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 in the 2022 GOA FSEIS/OEIS. Additional details on standard
operating procedures were provided in our Federal Register notice of
proposed rulemaking (87 FR 49656; August 11, 2022); 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 August
11, 2022 (87 FR 49656), 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 comments. Of this total, one
submission was from the Marine Mammal Commission (Commission), and the
remaining comments were from a non-governmental organization (NGO) and
private citizens. Additionally, 2 days after the public comment period
ended, we received a comment letter from the Center for Biological
Diversity (CBD).
NMFS has reviewed and considered all public comments received on
the proposed rule and issuance of the LOA, including comments received
from CBD after the public comment period ended. All substantive
comments and our responses are described below. We organize our comment
responses by major categories.
Impact Analysis and Thresholds
Comment 1: The Commission strongly recommended that NMFS refrain
from using cutoff distances in conjunction with the Bayesian behavioral
response functions (BRFs) and re-estimate the numbers of marine mammal
takes based solely on the Bayesian BRFs in the final rule, as the use
of cutoff distances could be perceived as an attempt to reduce the
numbers of takes (85 FR 72326; November 12, 2020). The Commission
stated that as such, providing better-substantiated, alternative cut-
off distances is unnecessary, as their use in conjunction with the
Bayesian BRFs is redundant and potentially contradictory.
Response: The consideration of proximity (cut-off distances) was
part of the criteria developed in consultation between the Navy and
NMFS, and is appropriate based on the best available science, which
shows that marine mammal responses to sound vary based on both sound
level and distance. Therefore, these cut-off distances were applied
within the Navy's acoustic effects model. The derivation of the BRFs
and associated cut-off distances is provided in the 2017 technical
report titled ``Criteria and Thresholds for U.S. Navy Acoustic and
Explosive Effects Analysis (Phase III).'' To account for non-applicable
contextual factors, all available data on marine mammal reactions to
actual Navy activities and other sound sources (or other large-scale
activities such as seismic surveys when information on proximity to
sonar sources was not available for a given species group) were
reviewed to find the farthest distance to which significant behavioral
reactions were observed. In applying the distance cut-offs in
conjunction with the BRFs, these distances were rounded up to the
nearest 5 or 10 km interval, and for moderate to large scale activities
using multiple or louder sonar sources, these distances were greatly
increased--doubled in most cases. The Navy's BRFs applied within these
distances provide technically sound methods reflective of the best
available science to estimate the impact and potential take for the
actions analyzed within the 2022 GOA FSEIS/OEIS and included in this
rule. NMFS has independently assessed the thresholds used by the Navy
to identify Level B harassment by behavioral disturbance (referred to
as ``behavioral harassment thresholds'' throughout the rest of the
rule) and finds that they appropriately apply the best available
science and it is not necessary to recalculate take estimates.
Comment 2: The Commission recommended that NMFS explain why the
constants and exponents for onset mortality and onset slight lung
injury thresholds for the current phase of incidental take rulemaking
for the Navy (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 in the preamble to the final rule.
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).'' 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 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 commenter 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 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 3: The Commission recommended 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 for explosives for the final rule. The Commission
stated that the current approach is inconsistent with the manner in
which the Navy estimated the numbers of takes for Permanent Threshold
Shift (PTS), Temporary Threshold Shift (TTS), and behavior for
explosive activities, as all of those takes have been and continue to
be based on onset, not 50 percent values.
The Commission stated that in addition, the circumstances of the
deaths of multiple common dolphins during one of the Navy's underwater
detonation events in March 2011 (Danil and St. Leger, 2011) indicate
that the Navy's mitigation measures are not fully effective, especially
for explosive activities. Recently, Oedekoven and Thomas (2022) also
confirmed the ineffectiveness of Navy lookouts to sight marine mammals
at various distances
[[Page 612]]
during mid-frequency active (MFA) sonar exercises.
If the Navy does not implement the Commission's recommendation, the
Commission further recommended that NMFS (1) specify why it bases
explosive thresholds for Level A harassment on onset PTS and Level B
harassment on onset TTS and onset behavioral response, while the
explosive thresholds for mortality and 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,
particularly given the ineffectiveness of lookouts.
Response: For explosives, the type of data available are different
from 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 GOA FSEIS/OEIS) 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, the application of the 50 percent threshold is appropriate
for the purposes of estimating take in consideration of the required
mitigation. 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 where an animal
might be exposed above the 1 percent risk to onset injury and onset
mortality criteria would over-predict effects because a subset of those
exposures will not happen because of the reduction provided by the
mitigation. The Navy, in coordination with NMFS, has determined that
the 50 percent incidence of onset injury and onset mortality occurrence
is a reasonable representation of a potential effect and 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 from 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 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.
While the Lookout Effectiveness Study suggests that detection of
marine mammals is less certain than previously assumed, given the
modeling results, this does not affect whether use of the 50 percent
threshold is appropriate for calculating mortality from explosives. For
explosives in bin E12, the bin with the largest net explosive weight
(NEW; >650-1,000 lb.) planned for use by the Navy in the GOA Study
Area, the average range to 50 percent non-auditory injury for all
marine mammal hearing groups (Table 30) is 190 m. The range to 50
percent mortality risk for all marine mammal hearing groups (Table 31)
for the same bin (E12) and the smallest (i.e., the most susceptible to
mortality) modeled animal size (10 kg), is 55 m. The range to one
percent onset mortality for the same bin (E12) and the smallest modeled
animal size (10 kg) is 73 m (with a minimum and maximum of 65 m and 80
m, respectively). Considering that zero takes by non-auditory injury
were modeled without consideration of the planned mitigation measures,
and with a zone almost 3.5 times larger than the 50 percent onset
mortality zone for the highest NEW and most susceptible animal weight,
mortality as a result of explosives is unlikely to occur, especially at
larger distances than that which were modeled, regardless of lookout
effectiveness. However, it is also important to note that the ranges to
50 percent and one percent onset mortality for E12 explosives are both
significantly smaller than the mitigation zones reported on in the
Lookout Effectiveness Study (200, 500 and 1,000 yards; Oedekoven and
Thomas, 2022).
Comment 4: The Commission continues to maintain that NMFS has not
provided adequate justification for dismissing the possibility that
single underwater detonations can cause a behavioral response, and,
therefore, again recommended that it estimate and authorize behavior
takes of marine mammals during all explosive activities, including
those that involve single detonations consistent with in-air explosive
events.
Response: NMFS acknowledges 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
[[Page 613]]
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 in the Commission's letter 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 detonation below
the TTS threshold in a manner that would qualify as a take. Conversely,
for single in-air events 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.
Comment 5: A commenter stated that the Navy must consider the risks
of vessel noise on the species. Chronic stress in North Atlantic right
whales is associated with exposure to low frequency noise from ship
traffic. Specifically, ``the adverse consequences of chronic stress
often include long-term reductions in fertility and decreases in
reproductive behavior; increased rates of miscarriages; increased
vulnerability to diseases and parasites; muscle wasting; disruptions in
carbohydrate metabolism; circulatory diseases; and permanent cognitive
impairment'' (Rolland et al., 2012). These findings have led
researchers to conclude that ``over the long term, chronic stress
itself can reduce reproduction, negatively affect health, and even kill
outright'' (Rolland et al., 2007). North Pacific right whales likely
suffer in the same ways.
Response: NMFS did consider the risks of vessel noise on marine
mammals. Navy vessels are designed to be quieter than civilian vessels,
and the vessel noise associated with Navy activities is not expected to
cause harassment of marine mammals (see the Potential Effects of
Specified Activities on Marine Mammals and Their Habitat section in the
proposed rule; 87 FR 49656; August 11, 2022). NMFS included an in-depth
discussion of stress response in the Physiological Stress section of
the proposed rule (87 FR 49656; August 11, 2022). There are currently
neither adequate data nor mechanisms by which the impacts of stress
from acoustic exposure can be reliably and independently quantified.
However, stress effects that result from noise exposure likely often
occur concurrently with behavioral harassment and many are likely
captured and considered in the quantification of other takes by
harassment that occur when individuals come within a certain distance
of a sound source (behavioral harassment, PTS, and TTS).
Density Estimates
Comment 6: The Commission recommended that NMFS (1) clarify how and
for which species uncertainty was incorporated in the density estimates
and whether and how uncertainty was incorporated in the group size
estimates and specify the distribution(s) used and, (2) if uncertainty
was not incorporated, re-estimate the numbers of marine mammal takes in
the final rule based on the uncertainty inherent in the density
estimates provided in Department of the Navy (2021) or the abundance
estimates in the underlying references (NMFS stock assessment reports
(SARs), Fritz et al. 2016, etc.) and the group size estimates provided
in Department of the Navy (2020a). Furthermore, if uncertainty is not
incorporated in the group size estimates, the Commission recommends
that NMFS specify why it did not do so.
Response: Similar to other Navy Phase III training and testing
impact analyses, uncertainty was incorporated in species density and
group size estimates for those species with uncertainty values
available, when distributing the animats in the Navy Acoustic Effects
Model. Since 2016, the Navy Acoustics Effects Model has been refined;
marine species density estimates have been updated; and NMFS has
published new effects criteria, weighting functions, and thresholds for
multiple species, that are incorporated into the model analysis. As
discussed in the technical report titled ``Quantifying Acoustic Impacts
on Marine Mammals and Sea Turtles: Methods and Analytical Approach for
Phase III Training and Testing'' (U.S. Department of the Navy, 2018),
available at <a href="http://www.goaeis.com">www.goaeis.com</a>, marine mammal density data are provided as
a 10x10 km grid where each cell has a mean density and standard error.
In the Navy Acoustic Effects Model, species densities are distributed
into simulation areas. Sixty distributions that vary based on the
standard deviation of the density estimates are run per season for each
species to account for statistical uncertainty in the density
estimates.
Clarification on the incorporation of uncertainty in density
estimates is provided in the Density Technical Report ``U.S. Navy
Marine Species Density Database Phase III for the Gulf of Alaska
Temporary Maritime Activities Area,'' as cited in the 2022 GOA FSEIS/
OEIS and available at <a href="http://www.goaeis.com">www.goaeis.com</a>. Uncertainty in the density
estimates was incorporated into the estimation of take for all species
with appropriate measures of uncertainty available, which is most
species.
Using a mean density estimate that incorporates appropriate
measures of uncertainty, as was done for the species listed in the
Commission's comment, is a commonly used and scientifically valid
method of estimating a value (i.e., a density in this context). There
is equal probability of underestimating and overestimating takes even
with a large coefficient of variation (CV) associated with a mean
density estimate. Therefore, using the mean density and incorporating
the CV into the distribution of animats in the Navy Acoustic Effects
Model is reasonable and representative of species distribution in the
GOA Study Area.
Regarding pinnipeds, NMFS and the Navy continue to seek appropriate
methods for incorporating uncertainty into density estimates for
pinnipeds, and by extension, into the Navy's estimates of exposures. As
the Commission noted in its comment, of the six pinniped species for
which the Navy calculates densities, only the northern fur seal
incorporated a CV as a measure of uncertainty in the density estimate.
The CV was provided in the SAR (Muto et al., 2020a) as a measure of
uncertainty in the abundance of northern fur seals, and that abundance
(620,660 northern fur seals) was the basis for the density calculation,
making the CV directly applicable to the density estimate. Only limited
data were available for calculating densities for California sea lions
and ribbon seals in the GOA Study Area, as described in the Density
Technical Report, and no estimate of uncertainty in either the
abundance or the density was available or could be estimated. The SAR
did not provide a CV or other measure of uncertainty in the abundance
estimate
[[Page 614]]
for northern elephant seals, so none was available for use in the
density calculation. The SAR provided a standard error in the abundance
estimates for the four harbor seal stocks (Muto et al., 2020a) as a
measure of uncertainty in the abundance; however, those abundance
estimates were combined as described in the Density Technical Report
and used to calculate an abundance over the continental shelf--the only
part of the harbor seal distribution within the GOA Study Area. The
stock abundances were not direct inputs into the density calculations;
therefore, it would not have been statistically correct to manipulate
(e.g., sum or average) four standard error values representing
uncertainty in the separate abundance estimates to derive a standard
error and apply it to a calculated continental shelf abundance. The
abundance for Steller sea lions was taken from Fritz et al. (2016)
Table 1A (pups) and Table 6 (non-pups for Eastern Gulf). The
recommended formula of pup count x 3.5 was used to estimate the Central
Gulf non-pup abundance. (Note that Table 6 only included the abundance
for Rookery Cluster Area-9, a portion of the Central Gulf abundance.)
No measure of uncertainty in the abundance is provided in either table
(Fritz et al., 2016). The Navy intends to incorporate, and NMFS intends
to consider, uncertainty in its density estimates for pinnipeds in the
future, as data or statistically valid methodologies allow.
NMFS concurs with the Navy's use of uncertainty, where available,
in the densities applied through their model and reiterates that the
best available science was used and applied appropriately to estimate
marine mammal take.
Comment 7: The Commission stated that in its January 4, 2021 letter
on the 2020 GOA Draft Supplemental Environmental Impact Statement
(DSEIS)/OEIS, it recommended that the Navy request a small number of
gray whale takes in its rulemaking/LOA application regardless of
whether its model estimated zero takes. Density estimates are not
available for gray whales in the TMAA, but the whales could occur there
within the timeframe that the Navy's activities would occur (Department
of the Navy, 2020b and 2021; Ferguson et al., 2015; Palacios et al.,
2021). The Navy did not request any gray whale takes in its revised LOA
application, but NMFS proposed to authorize four Level B harassment
behavioral takes of the Eastern North Pacific (ENP) stock in the
proposed rule (87 FR 49656; August 11, 2022) based on group size from
Rone et al. (2017). The Commission supports that approach but is unsure
why NMFS did not also propose to authorize takes of the Western North
Pacific (WNP) stock of gray whales. Palacios et al. (2021) and Mate et
al. (2015) have shown that gray whales tagged off eastern Russia have
been tracked through the TMAA, similar to and in about equal proportion
to ENP gray whales. Telemetry, photo-identification, and genetic
studies have all shown movements and interchange between the WNP and
ENP stocks of gray whales (Weller et al., 2012, Urb[aacute]n et al.,
2019, Lang et al., 2022). Therefore, the Commission recommends that
NMFS include in the final rule four Level B harassment behavioral takes
for the ENP and WNP stocks of gray whales, as well as its proposed
Level B harassment behavioral takes for the WNP stock of humpback
whales.
Response: This final rule authorizes take of four Eastern North
Pacific stock gray whales, as proposed. However, it does not authorize
four takes of Western North Pacific gray whales as recommended by the
Commission. As noted by the Commission, Palacios et al. (2021) and Mate
et al. (2015) show that several gray whales tagged off of eastern
Russia entered or came close to the TMAA. However, these occurrences
were outside of the time period that the Navy plans to conduct its
activity (April to October). Of the whales discussed in Palacios et al.
(2021), one whale occurred in the TMAA on December 30 and 31, 2011, one
whale occurred in the TMAA on March 29 and April 1, 2012, and later
passed the TMAA approximately 600-700 km south of its boundary from
December 26-31, 2011, and a third whale passed the TMAA approximately
300-400 km south of its boundary from January 22-25, 2011. Of the
whales tagged by Mate et al. (2015), three whales occurred within the
Gulf of Alaska; however, like those tagged by Palacios et al. (2021),
these whales mainly occurred in the Gulf of Alaska outside of the
Navy's planned training period of April to October. Three of the
whales' transits between Sakhalin Island, Russia and the Eastern North
Pacific occurred during the fall and winter. A return trip to Russia
from Baja California, Mexico by one of the three whales took place from
February to May 2012. While it is not completely clear, based on Figure
1 of Mate et al. (2015), it appears likely that the whale had crossed
the Gulf of Alaska by April or in early April. While there are
movements and interchange between the Eastern and Western North Pacific
gray whales, as noted by the Commission, including migration of Western
North Pacific gray whales through the Gulf of Alaska, as noted in Table
4 of the proposed rule (87 FR 49656, August 11, 2022), their occurrence
in the TMAA is rare. Given the occurrence information described above
and the very low population estimate of Western North Pacific gray
whales (290 whales in comparison to 26,960 Eastern North Pacific gray
whales), NMFS has not added take of Western North Pacific gray whales
to this final rule.
Comment 8: For Baird's beaked whales, the Navy used a presumed
density of 0.0005 whales/km\2\ from Waite (2003) based on a single
sighting of four Baird's beaked whales. The Commission stated that this
density estimate is of little value for reasons outlined in its January
4, 2021 letter commenting on the 2020 GOA DSEIS/OEIS. In addition, the
Navy specified that six visual sightings and 32 acoustic detections of
Baird's beaked whales occurred during the 2013 survey in the TMAA
(Department of the Navy 2021). Rone et al. (2014) also noted that
Baird's beaked whales often travel in large groups. The Navy further
specified average group size as 8.08 for Baird's beaked whales, 2.04
for Cuvier's beaked whales, and 6 for Stejneger's beaked whales (see
Table 26 in Department of the Navy, 2020a). As such, the Commission
asserts that the density from Waite (2003) is a vast underestimate.
The Commission further states that Rone et al. (2014) documented
the first fine-scale habitat use of a tagged Baird's beaked whale in
the region. The tagged individual showed the importance of seamount
habitat, remaining approximately nine days, presumably foraging, within
a relatively small geographic range inside the TMAA, with approximately
six of those days spent in the vicinity of a single seamount (Rone et
al., 2014). The greatest density of Cuvier's beaked whales also was
attributed to the seamount stratum based on Yack et al. (2015). At a
minimum, the stratum-specific densities for Cuvier's beaked whales
should have been used as surrogates for Baird's beaked whales, with the
understanding that the Cuvier's beaked whale densities may still be an
underestimate based on the larger group size of Baird's beaked whales.
The Commission recommended that NMFS use the three stratum-specific
densities of Cuvier's beaked whales as surrogates for Baird's beaked
whales and re-estimate the numbers of takes accordingly for the final
rule.
Response: The Navy developed a hierarchical system, described in
each
[[Page 615]]
of the density technical reports, for identifying and selecting the
best available density data. As described in Section 2.2.2 of the
Density Technical Report for the GOA, the density value of a surrogate
species can be used as a proxy value when species-specific density data
are not available. A density estimate for Baird's beaked whale is
available based on sighting data collected within the GOA; therefore,
the use of density estimates for a surrogate species would not be
consistent with the established hierarchy or the best scientific
information available. NMFS and the Navy will update density estimates
for Baird's beaked whale in the future if more recent survey data
become available. Additionally, take estimates could be modified if
other information supported it--however, no such information suggests
that the estimated and authorized take are not appropriate, and 106
annual takes continues to represent the best available science.
Comment 9: The Commission stated that the Navy indicated that it
used data derived from Hobbs and Waite (2010) to characterize harbor
porpoise density in various strata based on published depth
distributions (Department of Navy, 2021). The Navy did not stipulate
where those depth strata delineations originated or what density from
Hobbs and Waite (2010) was used. Hobbs and Waite (2010) provided an
uncorrected density of 0.062 porpoises/km\2\ for GOA and a corrected
abundance of 31,046 porpoises for the 158,733 km\2\ area surveyed (see
Table 2), which would result in a corrected density of 0.198 porpoises/
km\2\. Both densities are greater than the 0.0473 porpoises/km\2\ that
Navy used for the GOA (Department of the Navy, 2021). If NMFS considers
the data in Hobbs and Waite (2010) to be the best available science,
the Commission recommends that NMFS use the corrected density of 0.198
porpoises/km\2\ from Hobbs and Waite (2010) for the 100 to 200-m
isobath stratum and re-estimate the numbers of takes accordingly for
harbor porpoises in the final rule.
Response: Hobbs and Waite (2010) estimated the abundance of the GOA
harbor porpoise stock based on aerial surveys conducted in the summer
of 1998. The surveys were conducted along transect lines that ran from
shore (including inlets, straits, and sounds) out to the 1,000 m depth
contour, and were concentrated in nearshore areas where harbor porpoise
are known to occur. Once corrected for perception and availability
bias, Hobbs and Waite (2010) estimated a total of 31,046 harbor
porpoise in the GOA stock (i.e., a density estimate of 0.1956 animal/
km\2\ based on a study region of 158,733 km\2\). Hobbs and Waite (2010)
note that, despite the ranges of depth surveyed in the GOA, harbor
porpoise were present primarily in waters less than 100 m in depth,
which is consistent with aerial surveys off the U.S. West Coast where
porpoise are mainly found in 20-60 m depth (Carretta et al., 2001).
Based on these data, it was assumed 90 percent of the harbor porpoise
are found in waters up to 100 m depth, 10 percent in waters from 100
from 200 m depth, and few in waters from 200 to 1,000 m depth.
Given their nearshore distribution, it would not be appropriate to
use an overall harbor porpoise density estimate of 0.1956 animal/km\2\
for analysis in the GOA TMAA; density estimates need to be derived
specific to the depth ranges where they are known to occur. To derive
density estimates, depth strata were identified consistent with Hobbs
and Waite (2010) and are shown below for waters within the GOA TMAA (to
be consistent with the survey coverage of Hobbs and Waite (2010), the
areas included nearshore regions within inlets, straits, and sounds).
The total area within the 1,000 m depth contour = 101,588.64 km\2\.
GOA TMAA depth distribution:
<100 m = 39,332.23 km\2\
100-200 m = 42,020.44 km\2\
200-1,000 m = 20,235.97 km\2\
TOTAL = 101,588.64 km\2\
Based on the Hobbs and Waite (2010) density estimate of 0.1956
animal/km\2\, approximately 19,871 harbor porpoise could occur within
the TMAA. Based on these values, the following density estimates were
calculated using the estimate of 19,871 harbor porpoises, the
percentages noted above, and the area of each depth strata in the GOA
TMAA.
GOA harbor porpoise density estimates:
<100 m = 0.4547 animals/km\2\
100-200 m = 0.0473 animals/km\2\
200-1,000 m = 0.00001 animals/km\2\
Comment 10: The Commission stated that the Navy used abundance
estimates divided by given areas to estimate densities, and the areas
used were again inconsistent among species. For Northern fur seal, the
Commission recommended that NMFS (1) specify why the Navy chose to use
the GOA Large Marine Ecosystem (LME) area rather than the U.S.
Geological Service (USGS) GOA area, (2) use the most recent northern
fur seal abundance estimate of 626,618 rather than 620,660, (3)
determine whether the information in the text or in Table 10-2 in
Department of the Navy (2021) is correct regarding the assumed
delineations of juvenile northern fur seals by sex and re-estimate the
abundances provided in Table 10-3 based on the most recent abundance
estimate and the correct delineation assumptions, (4) apply to
September and October the same assumptions that were made regarding
juveniles of both sexes for August, and (5) re-estimate the densities
in Table 10-4 and the numbers of takes of northern fur seals in the
final rule.
Response: We first note that take estimation is not an exact
science. There are many inputs that go into an estimate of marine
mammal exposure, and the data upon which those inputs are based come
with varying levels of uncertainty and precision. Also, differences in
life histories, behaviors, and distributions of stocks can support
different decisions regarding methods in different situations. Further,
there may be more than one acceptable method to estimate take in a
particular situation. Accordingly, while the applicant bears the
responsibility of providing by species or stock the estimated number
and type of takes (see 50 CFR 216.104(a)(6)) and NMFS always ensures
that an applicant's methods are technically supportable and reflect the
best available science, NMFS does not prescribe any one method for
estimating take (or calculating some of the specific take estimate
components that the commenter is concerned about). NMFS reviewed the
areas, abundances, and correction factors used by the Navy to estimate
take for the GOA Study Area and concurs that they are appropriate.
While some of the suggestions the commenter makes could provide
alternate valid ways to conduct the analyses, these modifications are
not required in order to have equally valid and supportable analyses.
In addition, we note that (1) some of the specific recommendations that
the commenter makes in this comment and others are largely minor in
nature within the context of our analysis (e.g., abundance estimate of
626,618 rather than 620,660) and (2) even where the recommendation is
somewhat larger in scale, given the ranges of the majority of these
stocks, the size of the stocks, and the number and nature of pinniped
takes, recalculating the estimated take for any of these pinniped
stocks using the commenter's recommended changes would not change NMFS'
assessment of impacts on the rates of recruitment or survival of any of
these stocks, or the negligible impact determinations. Below, and in
subsequent comment responses, we address the commenter's issues in more
detail.
The Navy adopted new methodologies and densities based on the best
available science to improve the Navy's pinniped
[[Page 616]]
density estimates in the GOA and Northwest Training and Testing (NWTT)
Study Areas. NMFS has reviewed the Navy's analysis and choices in
relation to these comments and concurs that they are technically sound
and reflect the best available science. The same approach taken for the
pinniped density estimates in the NWTT Study Area was applied to
density estimates in the GOA Study Area, including the use of haulout
factors, telemetry data, and age and sex class distinctions (as data
permitted). One difference was the application of a growth rate used to
calculate abundances for some pinniped species in the NWTT Study Area.
Applying an annual growth rate for pinniped species in the GOA was
determined to be unnecessary or inappropriate based on discussions with
pinniped subject matter experts at the NMFS Alaska Fisheries Science
Center's Marine Mammal Lab. As was done in the NWTT Study Area, the
Navy estimated seasonal in-water abundances for each species and
divided those abundances by an area representing the distribution of
each pinniped species. It would have been inappropriate and less
accurate to assume all pinniped species were distributed equally over
the same area (e.g., the GOA LME). For example, it would not have been
representative of species occurrence to distribute harbor seals over
the GOA LME to calculate density; however, the GOA LME was
representative of the northern fur seal distribution.
The percentages of northern fur seals occurring in the GOA LME
presented in Table 10-2 are consistent with the information presented
in the text of the Density Technical Report (U.S. Department of the
Navy, 2021). The percentages for January through March were not shown
in Table 10-2 because the Navy only presented densities for the period
relevant to the planned training in the GOA Study Area (April through
October). The percentages for January through April (equivalent to the
data in Table 10-2) are provided in the table below.
Table 4--Monthly Percentages of Age and Sex Classes of Northern Fur Seal in the Gulf of Alaska LME From January to April
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern Pacific stock California
---------------------------------------------------------------------------- stock
Juvenile Juvenile ------------
Month Adult Adult females (2 males (2
females males and 3 year and 3 year Yearlings* Pups Pups
(percent) (percent) olds; old; (percent) (percent) (percent)
percent) percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
January........................................................ 20 25 35 25 10 10 50
February....................................................... 20 20 20 20 10 10 50
March.......................................................... 25 25 25 10 15 15 50
April.......................................................... 15 15 35 10 15 15 50
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Assumes yearlings, which are not included in Zeppelin et al. (2019) and pups in the Eastern Pacific stock have the same month percentages through
June.
As described in the text of the Density Technical Report, the
average percentage from January through April is 29 percent for
juvenile females and 16 percent for juvenile males. Those averages were
used for May and June for females and males, respectively. The process
for estimating juvenile abundances, as presented in Table 10-2, is
described in the text of the Density Technical Report. For example, the
abundance of juvenile females is calculated as:
Abundance = 620,660 x 0.085 x 0.35 = 18,456 juvenile female fur
seals; where 8.5 percent is the class percentage of the stock (Density
Technical Report Table 10-1, see footnote 2) and 35 percent is the
portion of the class occurring in the Study Area in April (Table 10-2).
The estimates of monthly abundances, including for juveniles, were
validated by pinniped scientists at the Alaska Fisheries Science
Center's Marine Mammal Lab, several of whom are co-authors on the paper
by Zeppelin et al. (2019). The paper does not provide occurrence data
for September, and, as shown in Figure 4 of the paper, the abundance of
juveniles in the GOA in October is at or near zero.
Comment 11: The Commission stated that it is unclear why the Navy
did not forward-project the abundance estimates of Western Distinct
Population Segment (wDPS) Steller sea lions to at least 2021, as trend
data are available in NMFS' 2019 SAR and remain the same through 2021
(Muto et al., 2022). They also request clarification as to why the Navy
used Fritz et al. (2016) for the abundance estimates for western and
eastern Steller sea lions. Those abundances were from surveys conducted
in 2015 and have been updated by Sweeney et al. (2018 and 2019) as
referenced in NMFS' 2019, 2020, and 2021 SARs. The Commission
recommended that NMFS re-estimate (1) the Steller sea lion densities
for the western DPS based on abundance data from Sweeney et al. (2018
and 2019) rather than Fritz et al. (2016) and forward-project the
abundance estimates into 2022 using the trend data provided in NMFS'
2021 SAR, and (2) the number of Steller sea lion takes.
Response: In the NWTT Study Area, the Navy used an annual growth
rate to estimate densities for some pinniped species to account for
abundance estimates reported in the SARs that were based on older
survey data or when abundance estimates were no longer supported by the
SAR. The intent of applying a growth rate was to estimate an abundance
to the present time (i.e., at the time densities were being
calculated). Growth rates were not used to ``forward project''
abundance estimates into the future, but to bring estimates up to the
present if a reliable growth rate was available and appropriate to use
for the species and location. A similar process was considered for
estimating densities in the GOA Study Area; however, the Navy,
following discussions with pinniped scientists at the NMFS Alaska
Fisheries Science Center's Marine Mammal Lab, determined that applying
a growth rate (including the trend data provided in NMFS' 2021 SAR)
would not be appropriate for pinniped species occurring in the GOA,
because available abundance estimates were considered accurate and
representative.
While the SARs do reference more recent surveys (Sweeney et al.,
2018, 2019), there is no substantial difference in the relevant
abundance data reported
[[Page 617]]
by Sweeney et al. (2017, 2018, 2019) and Fritz et al. (2016). Sweeney
et al. (2018) states that, ``there were no--or limited--new data
collected for the GOA regions in 2018.'' Table 1 in Sweeney et al.
(2018) shows that there were only two sites in the Central Gulf that
were surveyed (and they were surveyed on a single day) and no sites in
the Eastern Gulf that were surveyed. Figure 8 (pups) shows that the
realized pup count is approximately the same as the pup count reported
by Fritz et al. (2016) in Table 1. In both cases, the totals reported
by Fritz et al. (2016) are higher. Given a lack of new data and that
abundance estimates from both sources are similar, Sweeney et al.
(2018) should not be considered a superior source of abundance data for
Steller sea lions in the Eastern Gulf and Central Gulf regions. Sweeney
et al. (2017) reports more extensive survey data for the Eastern Gulf
and Central Gulf than Sweeney et al. (2018); however, Figure 7 of the
2017 paper shows that realized pup counts are similar to those reported
by Sweeney et al. (2018) and lower than those provided by Fritz et al.
(2016). Lastly, the data, analysis, and discussion presented by Fritz
et al. (2016) are more comprehensive than the abbreviated information
presented by Sweeney et al. (2017, 2018) and include information
specific to each sub-region (e.g., Central Gulf and Eastern Gulf)
within the Western DPS. Given the similarity in abundances estimates,
with the abundances in Fritz et al. (2016) more conservative for the
Navy's analysis, no meaningful change in the density of Western DPS
Steller sea lions would result from recalculating densities based on
Sweeney et al. (2017, 2018, 2019).
A small area east of the 144[deg] W longitude line, which defines
the DPS boundary for Steller sea lions, overlapped with a
conservatively sized area used by the Navy to delineate where species'
densities were needed for modeling. The ``density area'' extended well
beyond the TMAA and the Navy's area of potential effects; however, only
densities inside the TMAA were reported in the Density Technical
Report. The Navy estimated two seasonal densities for the Eastern DPS
of Steller sea lions in the portion of the density area defined by the
144[deg] W longitude line and the 500 m isobath (see table below).
Table 5--Seasonal Densities for Eastern DPS Steller Sea Lions
------------------------------------------------------------------------
Eastern DPS DPS area name
------------------------------------------------------------------------
34,196............................ Abundance.
63 percent........................ May-August percent in-water (haulout
factor).
75 percent........................ April, September-October percent in-
water (haulout factor).
21,543............................ May-August in-water abundance.
25,647............................ April, September-October in-water
abundance.
90,796............................ Area (km\2\)
0.2373............................ May-August density (animals/km\2\)
0.2825............................ April, September-October density
(animals/km\2\)
------------------------------------------------------------------------
The portion of the Eastern DPS that overlaps with the density area
and is in waters less than 500 m is approximately 100 km north of the
TMAA. The portion of the Eastern DPS (east of the 144[deg] W longitude
line) that overlaps with the TMAA is farther offshore and considerably
deeper than 500 m and therefore has a zero density. Table 10-6 in the
Density Technical Report specifically indicates densities are only
provided inside the TMAA. Therefore, only a zero density for the
Eastern DPS is reported in Table 10-6 for areas inside the TMAA.
Additional text has been added to the Density Technical Report to
explain this in greater detail. Prior to Navy analysis, NMFS reviewed
and concurred with all densities used in the Density Technical Report.
Comment 12: The Commission stated that in addition to the Navy's
use of an inconsistent geographical area for elephant seals, the Navy
used an outdated abundance estimate. The abundance estimate is from 12
years ago, and the Commission asserted that it should have been
forward-projected to at least 2021 based on the growth rate included in
NMFS' 2019 SAR. Since then, NMFS has updated its elephant seal
abundance estimate to 187,386 and its annual growth rate to 3.1 percent
based on Lowry et al. (2020; Carretta et al., 2022). The Commission
recommended that NMFS (1) specify why the Navy chose to use the USGS
GOA area rather than the GOA LME area to estimate elephant seal
densities in the preamble to the final rule, (2) use the most recent
abundance estimate of 187,386 rather than 179,000 and forward-project
it into 2022 using the trend data provided in NMFS' 2021 SAR, and (3)
re-estimate the number of elephant seal takes in the final rule.
Response: It is not clear what the Commission means by
``inconsistent geographic areas for elephant seals.'' The USGS
definition of the GOA represented the distribution information reported
in Peterson et al. (2015) and Robinson et al. (2012), which were the
primary sources used to define monthly elephant seal distributions, and
was geographically more relevant to the TMAA than the GOA LME, which
extends along the coast of southeast Alaska and British Columbia,
Canada, far from the TMAA. Female northern elephant seals are primarily
distributed throughout the eastern North Pacific following their post-
breeding and post-molting migrations. The GOA LME does not adequately
represent their distribution, which begins with northward migrations
from the Channel Islands off California and is concentrated with
highest densities centered near the boundary between the sub-Arctic and
subtropical gyres, south of the GOA LME (Robinson et al., 2012). Male
elephant seals tend to forage and transit over the shelf closer to
shore than females; however, they primarily migrate from the Channel
Islands through the GOA to the Aleutian Islands. Unlike northern fur
seals, which use much of the GOA LME during migration and their non-
breeding season, northern elephant seals occur outside of the GOA LME
for a large portion of the year, making the GOA LME less relevant to
their distribution and inadequate as an area representing their
occurrence in a density calculation. Figure 1 in Peterson et al. (2015)
illustrates how using the GOA LME as the density distribution area
would be problematic. Telemetry data shows that some females migrated
into the GOA LME off southeast Alaska and British Columbia, Canada
following their post breeding (short) foraging trip; however, none of
the tracks reached the GOA. Calculating densities in the southeast
portion of the GOA LME was irrelevant to the Navy's analysis in the
TMAA, and extrapolating densities from the southeast GOA LME into the
TMAA would not have been accurate. The Navy searched for another
geographic definition of the GOA that would encompass the entire TMAA
but not extend as far south along the coast as the GOA LME. The USGS
definition of the GOA met those requirements and allowed the Navy to
more accurately estimate the proportion of elephant seals occurring in
proximity to the TMAA based on the kernel density distribution data
presented by Robinson et al. (2012). Based on these considerations, the
Navy determined that the USGS definition of the GOA was more
appropriate to use in calculating densities for northern elephant seals
in the TMAA. NMFS reviewed and concurs with the Navy's determination.
Please see Comment 10 for a response to the comment on the
[[Page 618]]
use of different geographic areas for different species.
The Navy does not ``forward project'' abundances for any species,
and NMFS concurs with this decision. A growth rate was applied to
project an abundance to the present time (i.e., at the time densities
were being calculated) for selected species in the NWTT Study Area. A
similar process was considered for species in the GOA Study Area;
however, the Navy, following discussions with pinniped scientists at
the Alaska Fisheries Science Center's Marine Mammal Lab, determined
that applying a growth rate would not be appropriate for pinniped
species occurring in the GOA Study Area, because available abundance
estimates were considered accurate and representative. NMFS concurs
with this decision. Elephant seal researchers at the University of
California Santa Cruz reviewed the Navy's elephant seal density
estimates and confirmed the estimates as reasonable. The Navy is aware
that the elephant seal abundance estimate in the SAR is older, and the
Navy will continue to seek updated information on elephant seal
abundance.
Further, as explained in more detail in response to Comments 10 and
14, take estimation is not an exact science, and updating the density
using the most recent northern elephant seal abundance estimate of
187,386 rather than 179,000 is not required in order to have an equally
valid and supportable analysis. The change would be minor in nature
within the context of our analysis, and recalculating the estimated
take using the commenter's recommended changes would not change NMFS'
assessment of impacts on the rates of recruitment or survival of any of
these stocks, or the negligible impact determinations.
Comment 13: The Commission stated that for harbor seals, the Navy
indicated that it derived the proportion of the total population
estimates in Table 10-10 of Department of the Navy (2021) from data
provided by model A in Table 2 of Hastings et al. (2012). While
Hastings et al. (2012) provided survival estimates of various age
classes for seals on Tugidak Island in Table 2, they did not provide
relative age-class proportions for the population. The Navy also used
abundance estimates from 2015-2018 for the four stocks. As for other
pinniped species, those estimates should have been forward-projected to
at least 2021 based on the trend data available in NMFS' 2019 SAR. In
addition, the Navy did not provide references regarding its assumption
that harbor seals would be in the water for 50 percent of the time from
June through September and for 60 percent of the time in April, May,
and October. Boveng et al. (2012) indicated that the proportion of
seals hauled out in Cook Inlet peaked at 43 percent in June compared to
32 percent in October. Those haul-out proportions would equate to 57
percent of seals in the water in June and 68 percent of the seals in
the water in October--both of which are greater than the Navy's
assumptions. For simplicity, the Navy could have used 60 and 70 percent
rather than 50 and 60 percent. The Commission recommended that NMFS (1)
re-estimate the densities of harbor seals based on the abundance data
forward-projected to 2022 using the trend data provided in NMFS' 2021
SAR and based on 60 percent of seals being in the water from June
through September and 70 percent of the seals being in the water in
April, May, and October as denoted in Boveng et al. (2012) and (2) re-
estimate the number of harbor seal takes in the final rule.
Response: The Navy calculated relative age class proportions for
harbor seal using survival rates and assuming an annual increase of
1,234 harbor seals per year for the South Kodiak stock. The annual
increase was based on the 8-year trend estimate from the SAR (Muto et
al., 2019). Projections were made out to 35 years, and age class
proportions were calculated based on the relative abundances in this
hypothetical population after 35 years. This part of the process was
not explained in detail in the Density Technical Report (November
2020), but the approach was reviewed by pinniped scientists at the
Alaska Fisheries Science Center's Marine Mammal Lab and deemed a
reasonable approach for determining relative proportions of each age
class represented in the four relevant harbor seal stocks. Additional
text was added to the March 2021 Density Technical Report to outline
this process in more detail.
The abundances for the four stocks used in the density calculations
are the abundances in the 2019 final SAR (Muto et al., 2020b) and were
the most recent abundances available at the time the densities were
derived. The abundance estimates were provided to the Navy by the
Alaska Fisheries Science Center's Marine Mammal Lab in advance of being
updated in the SAR. The Navy, following discussions with pinniped
scientists at the Alaska Fisheries Science Center's Marine Mammal Lab,
determined that applying a growth rate would not be appropriate for
pinniped species occurring in the GOA Study Area because available
abundance estimates are considered accurate and representative, and
particularly in the case of harbor seals, very recent. NMFS reviewed
and concurs with all densities used in the Density Technical Report.
The haulout factors used to estimate the number of harbor seals in
the water were adapted from Withrow and Loughlin (1995), who estimated
that harbor seals were hauled out 58 percent of the time (42 percent in
water) during molting season (August-September) on Grand Island in
southeast Alaska; Pitcher and McAllister (1981), who estimated seals
were in the water 50 percent of the time during pupping season and 59
percent during molting season on Kodiak Island; and Withrow et al.
(1999) in Withrow et al. (1999) who reported seals were hauled out 52
percent of the time (48 percent in water) at Pedersen and Aialik
glaciers on the Kenai Peninsula. These references report haulout data
from the GOA region and are consistent in their estimates. After
reviewing Boveng et al. (2012), it appears that the haulout correction
factor for October may be 20 percent not 32 percent, as noted in the
comment and the abstract (see Table 4 in Boveng et al. (2012)). While
similar haulout percentages have been reported for harbor seals
elsewhere for late fall or winter (Withrow and Loughlin, 1995; Yochem
et al., 1987), this proportion (i.e., 20 percent hauled out and 80
percent in the water) appears to be somewhat of an anomaly for the
region based on the other studies cited above. Note that the Navy's
proposed training activities would occur between April and October (not
in late fall or winter) and have historically occurred in late spring
or summer. For August, a timeframe more relevant to the Proposed
Action, Boveng et al. (2012) qualify their results by noting that the
number of seals hauled out in August (i.e., 35 percent) was expected to
be higher, consistent with other survey results, and that the lower
percentage was likely due to tags falling off during the molt in
August, limiting available data and leading the authors to use
mathematical functions to interpolate the August data and correct their
abundance estimate (i.e., effectively discounting their tag-based
haulout data). They conceded that the approach outlined in the paper
likely underestimates the proportion of seals hauled out in August (see
page 31 of Boveng et al. (2012)) and that the proportion of seals
hauled out during molting season is often higher than during pupping
season. Taking this reasoning into consideration, estimating that 50
percent instead of 57 percent of
[[Page 619]]
seals would be in the water for June through September (pupping and
molting seasons) is a reasonable approximation and is consistent with
the references cited above (Pitcher and McAllister, 1981). Lastly, J.
London, one of the co-authors of Boveng et al. (2012), reviewed the
Navy's density calculations for harbor seals in the GOA and concurred
that the density estimates were appropriate for the Navy's model. The
Navy has updated the Density Technical Report to better explain the
sources for the haulout factors that were used in the analysis. NMFS
has reviewed the Navy's analysis and choices in relation to this
comment and concurs that they are technically sound and reflect the
best available science.
Comment 14: The Commission stated that rather than use the older
abundance estimates that informed the densities in Department of the
Navy (2021), NMFS correctly used abundance estimates from the most
recent SARs, including the 2021 SARs (Carretta et al., 2022, Muto et
al., 2022), in its negligible impact determination analysis (Tables 41-
46 in the proposed rule; 87 FR 49656; August 11, 2022). NMFS specified
in the preamble to the proposed rule that those 2021 SARs represent the
best available science (85 FR 49666; August 11, 2022) and then used the
associated abundances to inform its analysis. NMFS should not consider
one abundance estimate the best available science for its density
estimates (85 FR 49716; August 11, 2022) and another abundance estimate
best available science for its negligible impact determination analysis
for the same species (85 FR 49666; August 11, 2022). The Commission
stated that this approach is inconsistent with the tack taken for other
Navy rulemakings (e.g., Atlantic Fleet Training and Testing (AFTT)).
For its negligible impact determinations in the AFTT rulemaking, NMFS
indicated that it compared the predicted takes to abundance estimates
generated from the same underlying density estimate instead of certain
SARs, which are not based on the same underlying data and would not be
appropriate for the analysis (e.g., Tables 72-77; 83 FR 57076 and
57214). It is clear that the more recent SAR data represent best
available science, further supporting the need for NMFS to correct the
various pinniped density estimates using those data. The Commission
recommends that NMFS use the same species-specific abundance estimates
to both derive the densities and inform its negligible impact
determinations for the various pinniped species in the final rule.
Response: NMFS referenced the latest abundance estimates for all
species and stocks, as included in the 2021 final SARs, in its
negligible impact determinations. NMFS recognizes that mathematically,
it is most appropriate to compare a density/take estimate to an
abundance estimate that is derived from the same data. However, in the
instances in this rule where a density/take estimate calculated using
an older abundance estimate was compared to a newer abundance estimate,
the result is very similar as if the take estimate were compared to the
same abundance estimate that the corresponding density was derived
from. As described above in responses to Comments 10 through 13, older
abundance estimates were used to derive some densities given that those
data were the best available at the time, and it is impractical to
update the densities each time a new abundance estimate is generated
(which could be up to two times per year, as an estimate could
potentially be updated in both a draft and final SAR each year).
Further, neither take estimation nor negligible impact determinations
is an exact science. While NMFS does reference the abundance estimates
of the stocks in the negligible impact analyses, the comparison between
the authorized take and abundance for a given stock is meant to provide
a relative sense of where a larger portion of a species or stock is
being taken by Navy activities, where there is a higher likelihood that
the same individuals are being taken on multiple days, and where that
number of days might be higher or sequential. This comparison between
authorized take and the stock abundance is not used for making a small
numbers determination for this authorization, as authorizations for
military readiness activities do not require a small numbers
determination. Therefore, referencing an abundance estimate in a
negligible impact determination that is more recent than the abundance
estimate used to derive a density would not have an impact on the
determination unless there is a vast difference in the two abundance
estimates, and that is not the case here.
Comment 15: A commenter asserted that, as explained in the
Commission's letter, many of NMFS' density and take estimates are
inaccurate and underestimated. The Commission specifically recommended
that NMFS clarify and ``re-estimate the numbers of marine mammal
takes.'' The commenter asserted that NMFS' underestimates are apparent
in regard to many of the seal, sea lion, and porpoise species because
NMFS estimates that there will be zero takes for those species when all
other active LOAs in the area estimate large numbers of takes for those
species. Authorizing the take of even more marine mammals will have a
non-negligible impact on the species or stocks under the MMPA because
it will likely adversely affect the annual rates of recruitment or
survival. Thus, NMFS should deny the Navy's LOA application.
Response: NMFS' responses to Comments 6 through 13 address the
Commission's density and take estimate recommendations. Regarding take
of seals, sea lions, and porpoises, NMFS and the Navy carefully
considered the potential for take of all marine mammal species that may
occur in the GOA Study Area and the TMAA portion of the GOA Study Area
(the portion of the GOA Study Area in which the use of sonar and other
transducers and explosives at or near the surface (within 10 m above
the water surface) will occur) in particular. Numerous species are not
expected to occur in the TMAA, as described in the Species Not Included
in the Analysis section of this final rule. While harbor porpoise,
Steller sea lion, California sea lion, harbor seal, and ribbon seal
could occur in the GOA Study Area, modeling indicates that take of
these species is unlikely to result from the use of sonar and other
transducers or explosives at or near the surface (within 10 m above the
water surface).
Further, the comparison of the take estimate for the Navy's GOA
training activities to take authorizations for other activities in
Alaska is not appropriate given the differences in location among these
activities and the likelihood of occurrence of various species at these
project sites. The Navy's Gulf of Alaska activities are planned for the
GOA Study Area, an offshore area in the Gulf of Alaska (see Figure 1 of
the proposed rule; 87 FR 49656; August 11, 2022), while the projects
that the commenter has referenced are occurring either at a location on
the Alaska shoreline or in the Arctic Ocean. Given that occurrence of
marine mammals at shoreline locations is site specific, and the
distance of the Arctic Ocean from the GOA Study Area, it is incorrect
to assume that occurrence of marine mammals would be similar at all
project sites. For the reasons described above, including in the
responses to Comments 6 through 13re, authorizing additional takes of
marine mammals beyond that proposed for authorization in the proposed
rule is not warranted, and the authorized takes will have a negligible
impact on the relevant species and stocks as described in the Analysis
and
[[Page 620]]
Negligible Impact Determination section of this final rule.
Mitigation
Comment 16: A commenter stated that when the Navy's activity
occurs, utmost caution should be exercised in the whereabouts of marine
mammals. The commenter further suggested that the Navy should reduce
the amount of incidental take of marine mammals.
Response: As discussed in the Mitigation Measures section of this
final rule, and in Chapter 5 (Mitigation) of the 2022 GOA FSEIS/OEIS,
the Navy will implement extensive mitigation to avoid or reduce
potential impacts from the GOA activities on marine mammals. The
mitigation measures would reduce the probability and/or severity of
impacts expected to result from acute exposure to acoustic sources or
explosives, ship strike, and impacts to marine mammal habitat.
Specifically, the Navy would use a combination of delayed starts,
powerdowns, and shutdowns to avoid mortality or serious injury,
minimize the likelihood or severity of PTS or other injury, and reduce
instances of TTS or more severe behavioral disruption caused by
acoustic sources or explosives. The Navy would also implement two time/
area restrictions that would reduce take of marine mammals in areas or
at times where they are known to engage in important behaviors, such as
foraging or migration, particularly for North Pacific right whales,
humpback whales, and gray whales.
Comment 17: A commenter stated that as part of the Navy's
mitigation efforts, the Navy requires all bridge watch standers and
other applicable personnel to complete Marine Species Awareness
Training (MSAT) prior to standing watch or serving as a lookout.
However, the commenter stated that absent is any mention of refresher
training conducted prior to any major exercises such as the carrier
strike group (CSG) exercise. The commenter states that given their
experience as a former Surface Warfare Officer and Anti-Submarine
Warfare Officer (ASWO), they know that MSAT training is generally
required annually and that knowledge in this area among bridge watch
standers and especially lookouts is low and quickly atrophies after
training. The commenter states that while it would be unreasonable to
suggest conducting training prior to every exercise, special
consideration should be given to major CSG exercises. Major CSG
exercises include multiple ships often testing various capabilities
where the risk of taking marine mammals is elevated and can only
properly be mitigated if the watch standers are freshly trained.
Therefore, the commenter recommended MSAT training be reconducted and
documented prior to any major CSG exercise.
Additionally, given the increased use of active sonar during major
CSG exercises, the commenter recommended the Combat Acoustics Division,
ASWO, and Surface Ship Anti-Submarine Warfare Specialist conduct Sonar
Positional Reporting System training prior to any major CSG exercises.
The commenter asserted that this will ensure that active sonar use is
properly documented and can be later reviewed if a marine mammal is
significantly injured to determine if active sonar was a likely cause.
Response: The Navy routinely refines its training modules to
improve sailor professional knowledge and skills. It also seeks and
provides lessons learned to units periodically on all the environmental
compliance tools (Protective Measures Assessment Protocol (PMAP), Sonar
POsitional ReporTing System (SPORTS), Marine Species Awareness Training
(MSAT)). The Navy requires Lookouts and other personnel to complete
their assigned environmental compliance responsibilities (e.g.,
mitigation, reporting requirements) before, during, and after training
activities. MSAT was first developed in 2007 and has since undergone
numerous updates to ensure that the content remains current. The MSAT
product was approved by NMFS and most recently updated by the Navy in
2018. In 2014, the Navy developed a series of educational training
modules, known as the Afloat Environmental Compliance Training program,
to ensure Navy-wide compliance with environmental requirements. The
Afloat Environmental Compliance Training program, including the updated
MSAT, helps Navy personnel from the most junior Sailors to Commanding
Officers gain a better understanding of their personal environmental
compliance roles and responsibilities.
MSAT, PMAP, and SPORTS training are required for personnel both
upon reporting aboard (e.g., newly assigned to a command) and annually
thereafter as per Navy policy. Additional MSAT may be required again
within an annual period for special circumstance (e.g., large crew
transfers, regional ship strikes, as mandated by internal Navy exercise
directions). In addition to the required use of PMAP to obtain the
procedural and geographic mitigations prior to events in a CSG
exercise, pre-exercise orders for exercises in the GOA and in other
locations instruct review of MSAT at least once annually. Since each
unit is on individual deployment and their own training schedule,
additional training for individual units may occur as situations
warrant (e.g., bridge team rotation). There are multiple tools for
ships' personnel to utilize in support of these procedural
requirements, including whale identification wheels. Navy has recently
published a revised Lookout Training Handbook (NAVEDTRA 12968-E) to
assist in the training of lookout skills and species identification.
NMFS and the Navy continue to look for ways to improve lookout
effectiveness through the adaptive management process. However, NMFS
does not find it appropriate to include a requirement to conduct
additional MSAT or SPORTS training prior to an exercise.
Comment 18: A commenter stated that one of the most effective means
to protect marine mammals from noise and disturbance is to impose time
and area restrictions. The agency should consider additional mitigation
and time and area restrictions, including but not limited to the
specific recommendations outlined in its letter.
Response: NMFS agrees that time and area restrictions are an
effective tool for minimizing impacts of an activity on marine mammals.
NMFS addressed the commenter's specific recommendations for additional
mitigation in its responses to Comments 19 through 25 and Comments 27,
28, and 30. Please see the Mitigation Measures section of this rule and
Section 5.5 (Mitigation Measures Considered but Eliminated) of the 2022
GOA FSEIS/OEIS for a full discussion of additional mitigation measures
that were considered.
Comment 19: A commenter recommended extending the mitigation areas
to include a buffer zone to protect the biologically sensitive areas
from received levels that are above the take threshold.
Response: The mitigation areas included in the final rule and
described in Chapter 5 (Mitigation) of the 2022 GOA FSEIS/OEIS
represent the maximum mitigation within mitigation areas and the
maximum size of mitigation areas that are practicable for the Navy to
implement under their specified activity. Implementing additional
mitigation (e.g., buffer zones that would extend the size of the
mitigation areas) beyond what is included in the final rule is
impracticable due to implications for safety, sustainability, and the
Navy's ability to continue meeting its mission requirements. However,
this Phase III rule includes a new mitigation area, the Continental
Shelf and Slope Mitigation Area. Navy personnel will not detonate
[[Page 621]]
explosives below 10,000 ft altitude (including at the water surface)
during training at all times in the Continental Shelf and Slope
Mitigation Area (including in the portion that overlaps the North
Pacific Right Whale Mitigation Area). Previously, the Navy's
restriction on explosives applied seasonally within the North Pacific
Right Whale Mitigation Area and within the Portlock Bank Mitigation
Area. With the development of the Continental Shelf and Slope
Mitigation Area, that restriction now applies across the entire
continental shelf and slope out to the 4,000 m depth contour within the
TMAA. Mitigation in the Continental Shelf and Slope Mitigation Area was
initially designed to avoid or reduce potential impacts on fishery
resources for Alaska Natives. However, the area includes highly
productive waters where marine mammals (including humpback whales
(Lagerquist et al., 2008) and North Pacific right whales) feed and
overlaps with a small portion of the North Pacific right whale feeding
BIA off of Kodiak Island. Additionally, the Continental Shelf and Slope
Mitigation Area overlaps with a very small portion of the humpback
whale critical habitat Unit 5, on the western side of the TMAA, and a
small portion of humpback whale critical habitat Unit 8 on the north
side of the TMAA. The Continental Shelf and Slope Mitigation Area also
overlaps with a very small portion of the gray whale migration BIA. The
remainder of the designated critical habitat and BIAs are located
beyond the boundaries of the GOA Study Area. While the overlap of the
mitigation area with critical habitat and feeding and migratory BIAs is
limited, mitigation in the Continental Shelf and Slope Mitigation Area
may reduce the probability, number, and/or severity of takes of
humpback whales, North Pacific right whales, and gray whales in this
important area (noting that the Navy's Acoustic Effects Model estimated
zero takes for gray whales, though NMFS has conservatively authorized
four takes by Level B harassment). Additionally, mitigation in this
area will likely reduce the number and severity of potential impacts to
marine mammals in general, by reducing the likelihood that feeding is
interrupted, delayed, or precluded for some limited amount of time.
When practicable, NMFS sometimes recommends the inclusion of
buffers around areas specifically delineated to contain certain
important habitat or high densities of certain species, to allow for
further reduced effects on specifically identified features/species.
However, buffers are not always considered necessary or appropriate in
combination with more generalized and inclusive measures, such as
coastal offsets or other areas that are intended to broadly contain
important features for a multitude of species. In the case of this
rulemaking, NMFS and the Navy have included two protective areas that
will reduce impacts on multiple species and habitats and, as described
above, limitations in additional areas is not practicable.
Comment 20: A commenter recommended prohibiting active sonar in the
Portlock Bank Mitigation Area.
Response: Increasing the geographic mitigation requirements
pertaining to the use of active sonar in the TMAA, either by adding a
sonar restriction to Portlock Bank or expanding the size of the North
Pacific Right Whale Mitigation Area is not practicable, for the reasons
detailed in Section 5.5.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS,
which NMFS has reviewed and concurs with. However, mitigation for
explosives was included in the 2020 GOA DSEIS/OEIS in a ``Portlock Bank
Mitigation Area,'' and this area has since been expanded into the
Continental Shelf and Slope Mitigation Area. (Please see the Mitigation
Areas section of this final rule and Section 5.4 (Geographic Mitigation
to be Implemented) of the 2022 GOA FSEIS/OEIS for additional details
about the requirements in this area and the ecological benefits.)
Comment 21: A commenter recommended moving the GOA Study Area
activities to the fall, after September, which the commenter stated
would avoid fishing seasons as well as primary whale feeding months.
Alternatively, the Navy should adopt geographic mitigation shoreward of
the continental shelf between June and September because that portion
of the TMAA is near the biologically important feeding areas for North
Pacific right whales, fin whale, humpback whales, and gray whales
during those months.
Response: As described in Section 5.4.3 (Operational Assessment) of
the 2022 GOA FSEIS/OEIS, it would not be practical to shift the months
of the Proposed Action due to impacts on safety, sustainability, and
mission requirements. The exercise, Northern Edge, is a U.S. Indo-
Pacific Command (USINDOPACOM) sponsored exercise, led by Headquarters
Pacific Air Forces. The joint service training exercise typically
occurs every other year during odd number years for approximately a
two-week period. The Navy has participated in this or its predecessor
exercises for decades, and although naval warships and planes play a
vital role in Northern Edge, the Navy does not determine the specific
dates for conducting each exercise. USINDOPACOM determines exercise
dates based on a number of factors, including weather conditions,
safety of personnel and equipment, effectiveness of training,
availability of forces, deployment schedules, maintenance periods,
other exercise schedules within the Pacific region, and important
environmental considerations. Although the Navy is unable to further
restrict the months when training could be conducted in the GOA Study
Area, the Navy is required to implement geographic mitigation in the
North Pacific Right Whale Mitigation Area and the Continental Shelf and
Slope Mitigation Area.
Mitigation within the North Pacific Right Whale Mitigation Area is
primarily designed to avoid or further reduce potential impacts to
North Pacific right whales within important feeding habitat. The
mitigation area fully encompasses the portion of the BIA identified by
Ferguson et al. (2015) for North Pacific right whale feeding that
overlaps the GOA Study Area (overlap between the GOA Study Area and the
BIA occurs in the TMAA only) (see Figure 2 of the proposed rule; 87 FR
49656; August 11, 2022). North Pacific right whales are thought to
occur in the highest densities in the BIA from June to September. The
Navy will not use surface ship hull-mounted MF1 mid-frequency active
sonar in the mitigation area from June 1 to September 30, as was also
required in the Phase II (2017-2022) rule (82 FR 19530; April 26,
2017). The North Pacific Right Whale Mitigation Area is fully within
the boundary of the Continental Shelf and Slope Mitigation Area,
discussed below. Therefore, the mitigation requirements in that area
also apply to the North Pacific Right Whale Mitigation Area. While the
potential occurrence of North Pacific right whales in the GOA Study
Area is expected to be rare due to the species' small population size,
these mitigation requirements would help further avoid or further
reduce the potential for impacts to occur within North Pacific right
whale feeding habitat, thus likely reducing the number of takes of
North Pacific right whales, as well as the severity of any disturbances
by reducing the likelihood that feeding is interrupted, delayed, or
precluded for some limited amount of time.
Additionally, the North Pacific Right Whale Mitigation Area
overlaps with a small portion of the humpback whale critical habitat
Unit 5, in the southwest
[[Page 622]]
corner of the TMAA. While the overlap of the two areas is limited,
mitigation in the North Pacific Right Whale Mitigation Area may reduce
the number and/or severity of takes of humpback whales in this
important area.
The mitigation in this area would also help avoid or reduce
potential impacts on fish and invertebrates that inhabit the mitigation
area and which marine mammals prey upon. As described in Section
5.4.1.5 (Fisheries Habitats) of the 2022 GOA FSEIS/OEIS, the productive
waters off Kodiak Island support a strong trophic system from plankton,
invertebrates, small fish, and higher-level predators, including large
fish and marine mammals.
As described in further detail in response to Comment 19, the
Continental Shelf and Slope Mitigation Area is expected to reduce the
probability, number, and/or severity of takes of humpback whales, North
Pacific right whales, and gray whales in this important area (noting
that no takes are predicted for gray whales). Additionally, mitigation
in this area will likely reduce the number and severity of potential
impacts to marine mammals in general, by reducing the likelihood that
feeding is interrupted, delayed, or precluded for some limited amount
of time.
Comment 22: A commenter recommended capping the maximum level of
activities conducted each year.
Response: The commenters offer no rationale for why a cap is needed
and nor do they suggest what an appropriate cap might be. The Navy is
responsible under Title 10 of the U.S. Code for conducting the needed
amount of testing and training to maintain military readiness, which is
what they have proposed and NMFS has analyzed. Further, the MMPA states
that NMFS shall issue MMPA authorizations if the necessary findings can
be made, as they have been here. Importantly, as described in the
Mitigation Areas section, the Navy will limit activities (active sonar,
explosive use, etc.) to varying degrees in two areas that are important
to sensitive species or for important behaviors in order to minimize
impacts that are more likely to lead to adverse effects on rates of
recruitment or survival.
Comment 23: A commenter recommended increasing the exclusion zone
because some animals are sensitive to sonar at low levels of exposure.
Response: The commenter does not suggest what an appropriate
exclusion zone size would be. The Navy, in coordination with NMFS,
customized its mitigation zone sizes and mitigation requirements for
each applicable training activity category or stressor. Each mitigation
zone represents the largest area that (1) Lookouts can reasonably be
expected to observe during typical activity conditions (i.e., most
environmentally protective) and (2) the Navy can implement the
mitigation without impacting safety or the ability to meet mission
requirements. The current exclusion zones represent the maximum
distance practicable for the Navy to implement during training within
the TMAA, as described in Chapter 5 of the FSEIS/OEIS and, further,
they encompass the area in which any marine mammal would be expected to
potentially be injured. The active sonar mitigation zones also extend
beyond the average ranges to temporary threshold shift for otariids and
into a portion of the average ranges to temporary threshold shift for
all other marine mammal hearing groups; therefore, mitigation would
help avoid or reduce the potential for some exposure to higher levels
of temporary threshold shift. This final rule includes procedural
mitigation and mitigation areas to further avoid or reduce potential
impacts from active sonar on marine mammals in areas where important
behaviors such as feeding and migration occur.
Comment 24: A commenter recommended imposing a 10-knot ship speed
in Mitigation Areas to reduce the likelihood of vessel strikes.
Response: Generally speaking, it is impracticable (because of
impacts to mission effectiveness) to further reduce ship speeds for
Navy activities, and, moreover, given the maneuverability of Navy ships
at higher speeds and the presence of Lookouts, any further reduction in
speed would be unlikely to reduce the already extremely low probability
of a ship strike (which is not authorized, nor expected to occur in the
GOA Study Area). The Navy is unable to impose a 10-knot ship speed
limit because it would not be practical to implement and would not
allow the Navy to continue meeting its training requirements due to
diminished realism of training exercises, as detailed in Section
5.3.4.1 (Vessel Movement) of the 2022 GOA FSEIS/OEIS. The Navy requires
flexibility to use variable ship speeds for training, operational,
safety, and engineering qualification requirements. Navy ships
typically use the lowest speed practical given mission needs. NMFS has
reviewed the Navy's analysis of additional restrictions and the impacts
they would have on military readiness and concurs with the Navy's
assessment that they are impracticable.
The main driver for ship speed reduction is reducing the
possibility and severity of ship strikes to large whales. However, even
given the wide ranges of speeds from slow to fast that Navy ships have
used in training in the GOA Study Area, there have been no documented
vessel strikes of marine mammals by the Navy.
As discussed in the 2016 GOA FSEIS/OEIS Section 5.1.2 (Vessel
Safety), Navy standard operating procedures require that ships operated
by or for the Navy have personnel assigned to stand watch at all times,
day and night, when moving through the water (i.e., when the vessel is
underway). A primary duty of watch personnel is to ensure safety of the
ship, which includes the requirement to detect and report all objects
and disturbances sighted in the water that may be indicative of a
threat to the ship and its crew, such as debris, a periscope, surfaced
submarine, or surface disturbance. Per safety requirements, watch
personnel also report any marine mammals sighted that have the
potential to be in the direct path of the ship, as a standard collision
avoidance procedure. As described in Section 5.3.4.1 (Vessel Movement)
of the 2022 GOA FSEIS/OEIS, Navy vessels are also required to operate
in accordance with applicable navigation rules. Applicable rules
include the Inland Navigation Rules (33 CFR part 83) and International
Regulations for Preventing Collisions at Sea (72 Collision
Regulations), which were formalized in the Convention on the
International Regulations for Preventing Collisions at Sea, 1972. These
rules require that vessels proceed at a safe speed so proper and
effective action can be taken to avoid collision and so vessels can be
stopped within a distance appropriate to the prevailing circumstances
and conditions. In addition to standard operating procedures, the Navy
implements mitigation to avoid vessel strikes, which includes requiring
vessels to maneuver to maintain at least 500 yd distance from whales,
and 200 yd or 100 yd distance away from other marine mammals (except
those intentionally swimming alongside or choosing to swim alongside
vessels, such as for bow-riding or wake-riding). Additionally, please
see the Potential Effects of Vessel Strike section of the proposed rule
(87 FR 49656; August 11, 2022) for discussion regarding the differences
between Navy ships and commercial ships which make Navy ships less
likely to affect marine mammals.
When developing Phase III mitigation measures, the Navy analyzed
the potential for implementing additional types of mitigation, such as
vessel speed restrictions within the GOA Study Area.
[[Page 623]]
The Navy determined that based on how the training activities will be
conducted within the GOA Study Area, vessel speed restrictions would be
incompatible with practicability criteria for safety, sustainability,
and training missions, as described in Chapter 5 (Mitigation), Section
5.3.4.1 (Vessel Movement) of the 2022 GOA FSEIS/OEIS. However, this
rule includes mitigation to further reduce the already low potential
for vessel strike as described in the Mitigation Measures section of
this final rule and in Chapter 5 of the 2022 GOA FSEIS/OEIS.
Occurrences of large whales may be higher over the continental shelf
and slope relative to other areas of the TMAA. The Navy would issue
pre-event awareness messages to alert ships and aircraft participating
in training activities within the TMAA to the possible presence of
concentrations of large whales on the continental shelf and slope.
Large whale species in the TMAA include, but are not limited to, fin
whale, blue whale, humpback whale, gray whale, North Pacific right
whale, sei whale, and sperm whale. To maintain safety of navigation and
to avoid interactions with these species, the Navy will instruct
vessels to remain vigilant to the presence of large whales that may be
vulnerable to vessel strikes or potential impacts from training
activities. Additionally, ships and aircraft will use the information
from the awareness messages to assist their visual observation of
applicable mitigation zones during training activities and to aid in
the implementation of procedural mitigation.
Comment 25: A commenter recommended that NMFS add mitigation for
other marine mammal stressors such as dipping sonar and contaminants.
Response: The Navy implements mitigation for active sonar,
including dipping sonar, as outlined in Table 34 of this rule, and in
Section 5.3.2.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS. Expanding
active sonar mitigation requirements would be impractical for the
reasons detailed in Section 5.5.1 (Active Sonar) of the 2022 GOA FSEIS/
OEIS, which NMFS has reviewed and concurs with. As described in Section
3.8.3.3 (Secondary Stressors) of the 2022 GOA FSEIS/OEIS, potential
impacts of secondary stressors (including contaminants), were
determined to be discountable, negligible, or insignificant, and not
expected to result in the take of any mammal; therefore, mitigation for
contaminants is not warranted.
Least Practicable Adverse Impact Determination
Comment 26: The Commission recommended that NMFS--
<bullet> clearly separate its application of the least practicable
adverse impact requirement from its negligible impact determination;
<bullet> adopt a clear decision-making framework that recognizes
the species and stock component and the marine mammal habitat component
of the least practicable adverse impact provision and always consider
whether there are potentially adverse impacts on marine mammal habitat
and whether it is practicable to minimize them;
<bullet> rework its evaluation criteria for applying the least
practicable adverse impact standard to separate the factors used to
determine whether a potential impact on marine mammals or their habitat
is adverse and whether possible mitigation measures would be effective;
<bullet> address these concerns by adopting a simple, two-step
analysis that more closely tracks the statutory provisions being
implemented and, if NMFS is using some other legal standard to
implement the least practicable adverse impact requirements, provide a
clear and concise description of that standard and explain why it
believes it to be ``sufficient'' to meet the statutory legal
requirements; and
<bullet> adopt general regulations to govern the process and set
forth the basic steps and criteria that apply across least practicable
adverse impact determinations.
Response: NMFS has made clear in this and other rules that the
agency separates its application of the least practicable adverse
impact requirement in the Mitigation Measures section from its
negligible impact analyses and determinations for each species or stock
in a separate section. Further, NMFS has made this separation clear in
practice for years by requiring mitigation measures to reduce impacts
to marine mammal species and stocks and their habitat for all projects,
even those for which the anticipated take would clearly have a
negligible impact, even in the absence of mitigation.
In the Mitigation Measures section of this rule, NMFS has explained
in detail our interpretation of the least practicable adverse impact
standard, the rationale for our interpretation, and how we implement
the standard. The method the agency is using addresses all of the
necessary components of the standard and produces effective mitigation
measures that result in the least practicable adverse impact on both
the species or stocks and their habitat. The commenter has failed to
illustrate why NMFS' approach is inadequate or why the commenter's
proposed approach would be better, and we therefore decline to accept
the recommendation.
Also, in the Mitigation Measures section, NMFS has explained in
detail our interpretation and application of the least practicable
adverse impact standard. The commenter has recommended an alternate way
of interpreting and implementing the least practicable adverse impact
standard, in which NMFS would consider the effectiveness of a measure
in our evaluation of its practicability. The commenter erroneously
asserts that NMFS currently considers the effectiveness of a measure in
a determination of whether the potential effects of an activity are
adverse, but the commenter has misunderstood NMFS' application of the
standard--rather, NMFS appropriately considers the effectiveness of a
measure in the evaluation of the degree to which a measure will reduce
adverse impacts on marine mammal species or stocks and their habitat,
as a less effective measure will less successfully reduce these impacts
on marine mammals. Further, the commenter has not provided information
that shows that their proposed approach would more successfully
evaluate mitigation under the least practicable adverse impact
standard, and we decline to accept it.
Further, NMFS disagrees with the commenter's assertion that
analysis of the rule's mitigation measures under the least practicable
adverse impact standard remains unclear or that the suggested
shortcomings exist. The commenter provides no rationale as to why the
two-step process they describe is better than the process that NMFS
uses to evaluate the least practicable adverse impact that is described
in the rule, and therefore we decline to accept the recommendation.
Regarding the assertion that the standard shifts on a case-by-case
basis, the commenter misunderstands the agency's process. Neither the
least practicable adverse impact standard nor NMFS' process for
evaluating it shifts on a case-by-case basis. Rather, as the commenter
suggests should be the case, the evaluation itself is case-specific to
the proposed activity, the predicted impacts, and the mitigation under
consideration.
Regarding the recommendation to adopt general regulations, we
appreciate the recommendation and may consider the recommended approach
in the future. However, providing directly relevant explanations of
programmatic
[[Page 624]]
approaches or interpretations related to the incidental take provisions
of the MMPA in a proposed incidental take authorization is an effective
and efficient way to provide information to and solicit focused input
from the public. Further, this approach affords the same opportunities
for public comment as a stand-alone rulemaking would.
Monitoring
Comment 27: A commenter recommended that NMFS improve detection of
marine mammals with restrictions on low-visibility activities and
alternative detection such as thermal or acoustic methods.
Response: As described in Section 5.5.1 (Active Sonar) of the 2022
GOA FSEIS/OEIS, which NMFS has reviewed and concurs with, although the
majority of sonar use occurs during the day, the Navy has a nighttime
training requirement for some active sonar systems. Training in both
good visibility (e.g., daylight, favorable weather conditions) and low
visibility (e.g., nighttime, inclement weather conditions) is vital
because environmental differences between day and night and varying
weather conditions affect sound propagation and the detection
capabilities of sonar. After sunset and prior to sunrise, Lookouts and
other Navy watch personnel employ night visual search techniques, which
could include the use of night vision devices. The Navy requires
flexibility in the timing of its use of active sonar and explosives in
order to meet individual training schedules. In June and July, there
are approximately 19 hours of daylight per day in the GOA; therefore,
there are naturally fewer hours of available nighttime to be used for
sonar training. Due to the already limited timeframe of when the
Proposed Action can occur in the GOA Study Area based on weather
conditions (April through October), time-of-day restrictions on the use
of active sonar would prevent the Navy from successfully completing its
mission requirements within the necessary timeframes. As described in
Section 5.5.4 (Thermal Detection Systems and Unmanned Aerial Vehicles)
of the 2022 GOA FSEIS/OEIS, thermal detection systems have not been
sufficiently studied in terms of their effectiveness and compatibility
with Navy military readiness activities. The Navy plans to continue
researching thermal detection systems and will provide information to
NMFS about the status and findings of Navy-funded thermal detection
studies and any associated practicality assessments at the annual
adaptive management meetings described in the Adaptive Management
section of this rule. Please see NMFS' response to Comment 28 regarding
passive acoustic monitoring.
Comment 28: The Commission asserted that Navy lookouts have been
determined to be ineffective, therefore passive and/or active acoustic
monitoring must be used to supplement visual monitoring, especially for
activities that could injure or kill marine mammals. The Commission
recommended that NMFS require the Navy to use passive (i.e., DIFAR and
other types of passive sonobuoys, operational hydrophones) and active
acoustic (i.e., tactical sonars that are in use during the actual
activity and active sonobuoys or other sources similar to fish-finding
sonars) monitoring, whenever practicable, to supplement visual
monitoring during the implementation of its mitigation measures for all
activities that could cause injury or mortality. The Commission stated
that at a minimum, sonobuoys deployed (e.g., see Binder et al. (2021))
and active sources and hydrophones used during an activity should be
monitored for marine mammals--ideally, the Navy should develop and
refine new technologies to supplement its visual monitoring, similar to
the Department of National Defence in Canada (Binder et al., 2021,
Thomson and Binder, 2021). The Commission stated that if NMFS does not
adopt this recommendation, it recommends that NMFS justify (1) how it
concluded that the Navy's mitigation measures based on visual
monitoring do not need to be supplemented for those activities
involving injury when Oedekoven and Thomas (2022) have determined that
Navy lookouts are ineffective at sighting numerous types of marine
mammals at various distances and for those activities involving
mortality when marine mammals have been killed previously and (2) how
visual monitoring is sufficient for effecting the least practicable
adverse impact on the numerous marine mammal species and stocks.
In a related comment, a commenter recommended installing passive
acoustic monitoring in the TMAA to inform mariners about the presence
of marine mammals.
Response: While we acknowledge that the Lookout Effectiveness Study
suggests that detection of marine mammals is less certain than
previously assumed at certain distances, we disagree with the assertion
that the Lookouts have been shown to be wholly ineffective. Lookouts
remain an important component of the Navy's mitigation strategy,
especially as it relates to minimizing exposure to the more harmful
impacts that may occur within closer proximity to the source, where
Lookouts are most effective. Further, as described below, NMFS and the
Navy are also considering, through the adaptive management process,
whether there are additional measures that would be practicable to
implement that would improve effectiveness of Lookouts, such as
enhanced personnel training.
The Navy does employ passive acoustic devices (e.g., remote
acoustic sensors, expendable sonobuoys, passive acoustic sensors on
submarines) to supplement visual monitoring when practicable to do so
(i.e., when assets that have passive acoustic monitoring capabilities
are already participating in the activity) as discussed in Section
5.2.1 (Procedural Mitigation Development) and Section 5.3 (Procedural
Mitigation to be Implemented) of the 2022 GOA FSEIS/OEIS. 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 (e.g., one or two) and type
of devices typically used; therefore it is not typically possible to
use these to implement mitigation shutdown procedures. As discussed in
Section 5.5.3 (Active and Passive Acoustic Monitoring Devices) of the
2022 GOA FSEIS/OEIS, which NMFS reviewed and concurs accurately
assesses the practicability of utilizing additional passive or active
acoustic systems for mitigation monitoring, there are significant
manpower and logistical constraints that make constructing and
maintaining additional passive acoustic monitoring systems or platforms
for each training and testing activity, or instrumented ranges,
impracticable. The Navy's existing passive acoustic monitoring devices
(e.g., sonobuoys) are designed, maintained, and allocated to specific
training units or testing programs for specific mission-essential
purposes. Reallocating these assets to different training units or
testing programs for the purpose of monitoring for marine mammals would
prevent the Navy from using its equipment for its intended mission-
essential purpose. Additionally, diverting platforms that have passive
acoustic monitoring capability would impact their ability to meet their
Title 10 requirements (see Section 1.4, Purpose of and Need for
Proposed Military Readiness Training Activities, of the 2022 GOA FSEIS/
OEIS) and reduce the service life of those systems.
[[Page 625]]
Furthermore, adding a passive acoustic monitoring capability to
additional explosive activities (either by adding a passive acoustic
monitoring device to a platform already participating in the activity,
or by adding an additional platform to the activity) for mitigation is
not practical. For example, all platforms participating in an explosive
bombing exercise (e.g., firing aircraft, safety aircraft) must focus on
situational awareness of the activity area and continuous coordination
between multiple training components for safety and mission success.
Therefore, it is impractical for participating platforms to divert
their attention to non-mission essential tasks, such as deploying
sonobuoys and monitoring for acoustic detections during the event
(e.g., setting up a computer station). The Navy does not have available
manpower or resources to allocate additional aircraft for the purpose
of deploying, monitoring, and retrieving passive acoustic monitoring
equipment during a bombing exercise.
As noted in the comment, the Navy conducted a Lookout Effectiveness
Study in association with the University of St. Andrews for several
years to assess the ability of shipboard Lookouts to observe marine
mammals while conducting hull-mounted sonar training activities at sea.
The University of St. Andrews' report was provided to NMFS on April 1,
2022 as required by a Term and Condition in the Endangered Species Act
(ESA) Incidental Take Statements for the Biological Opinions associated
with NMFS' 2020 final rule for Navy training and testing activities in
the NWTT and Mariana Islands Training and Testing (MITT) Study Areas.
The Lookout Effectiveness Study is available at <a href="https://www.navymarinespeciesmonitoring.us">https://www.navymarinespeciesmonitoring.us</a>. Overall, the report provides NMFS
and the Navy with valuable contextual information, but requires some
level of interpretation with regard to the numerical results. For
instance, the study's statistical model assumed that Navy ships moved
in a straight line at a set speed for the duration of the field trials,
and that animals could not move in a direction perpendicular to a ship.
Violation of this model assumption would underestimate Lookout
effectiveness for some data points. The Navy and NMFS determined that
the Lookout Effectiveness Study results would not alter the acoustic
effects quantitative analysis of potential impacts on marine mammals
from the specified activities, and that the acoustic effects
quantitative analyses included in the 2022 GOA FSEIS/OEIS and in the
GOA proposed rule (87 FR 49656; August 11, 2022) did not underestimate
the number or extent of marine mammal takes due to the conservative
approach already taken by the Navy in its quantitative analysis
process. NMFS and the Navy are currently working to determine how and
to what extent the Study's results should be incorporated into future
environmental analyses. The Navy and NMFS are also considering, through
the adaptive management process, whether there are additional measures
that would be practicable to implement that would improve effectiveness
of Lookouts, such as enhanced personnel training.
Regarding how NMFS concluded that the Navy's mitigation measures
based on visual monitoring do not need to be supplemented for those
activities involving injury considering Oedekoven and Thomas (2022),
NMFS implemented the least practicable adverse impact standard as
described in the Implementation of Least Practicable Adverse Impact
Standard section of the proposed rule and in this final rule. As stated
in the Take Request section of the proposed rule (87 FR 49656; August
11, 2022) and the Take Estimation section of this final rule, for
training activities in the GOA Study Area, no mortality or non-auditory
injury is anticipated, even without consideration of planned mitigation
measures. For the reasons described above in this response, including
cost, impact on the specified activities, practicality of
implementation, and impact on the effectiveness of the military
readiness activity, the Commission's recommendations are not
practicable. Therefore, absent additional available techniques for
mitigation monitoring, the procedural mitigation and mitigation areas
described in this final rule are sufficient for effecting the least
practicable adverse impact on the numerous marine mammal species and
stocks.
Other Comments
Comment 29: The Commission noted that the Navy recently published
the 2022 GOA FSEIS/OEIS for conducting the proposed training activities
in GOA (87 FR 54214; September 2, 2022) and requested any comments by
October 3, 2022. The public comment period for NMFS' proposed rule
closed September 26, 2022 (87 FR 49656; August 11, 2022). The
Commission stated it is unclear whether and how any changes to the
proposed rule would inform the 2022 GOA FSEIS/OEIS, as it has already
been drafted and determinations apparently already made. Under the
Administrative Procedure Act (APA), an agency is expected to provide a
full and sufficient rationale supporting its action at the time any
statutory decision is made. That rationale is comprised in part by the
agency's responses to public comments, which in this case were included
in Appendix G81 of the 2022 GOA FSEIS/OEIS. Since NMFS was a
cooperating agency on the 2020 GOA DSEIS/OEIS and indicated that it
plans to adopt the FSEIS that will underpin the final rule (87 FR
49757; August 11, 2022), it can be perceived as though decisions have
been made preemptively for the various statutory determinations. Such
practice runs counter to the requirements of the APA and undermines the
intent of the public process.
Response: This rulemaking process provided notice and opportunity
for the pubic to comment prior to final decision-making by NMFS on both
the 2022 GOA FSEIS/OEIS and this MMPA rule. In the proposed rule (87 FR
49656; August 11, 2022), NMFS stated its plan to adopt the GOA SEIS/
OEIS for the GOA Study Area provided our independent evaluation of the
document found that it included adequate information analyzing the
effects on the human environment of issuing regulations and an LOA
under the MMPA. We further stated in the proposed rule that we would
review all comments prior to concluding our National Environmental
Policy Act (NEPA) process and making a final decision on the MMPA
rulemaking and request for a LOA, which we have since done.
Neither NMFS nor the Navy signed a Record of Decision (the decision
document through which NMFS adopted the 2022 GOA FSEIS/OEIS) until the
comments received in both the NEPA and MMPA processes were considered.
During this rulemaking process, had comments been received on the
proposed rule that warranted changes or additional analysis in the NEPA
process, NMFS and the Navy would have addressed these comments through
each agency's Record of Decision, or otherwise amended the analysis to
address the issues raised by any such comments.
Comment 30: A commenter stated that NMFS should consult with Alaska
Native communities and add mitigation for environmental justice
impacts.
Response: NMFS invited Alaska Native federally-recognized Tribes in
the Gulf of Alaska region to a presentation and opportunity to discuss
the proposed rule. A member from one Tribe attended, and indicated that
the Tribe would likely submit a letter with recommendations for
consideration in
[[Page 626]]
the final rule. Further, the Navy has consulted and will continue to
consult with Alaska Native Tribes through government-to-government
consultations (see Appendix E (Agency Correspondence) of the 2022 GOA
FSEIS/OEIS). One Tribe provided recommendations to the Navy as part of
the GOA FSEIS/OEIS process, which NMFS reviewed and considered in
preparing its proposed rule (87 FR 49656; August 11, 2022).
It is unclear what the commenter means by ``add mitigation for
environmental justice impacts,'' and the commenter did not provide
sufficient information in order to incorporate such a recommendation.
However, the Portlock Bank Mitigation Area that was included in the
2020 Draft SEIS/OEIS was developed for the purpose of reducing
potential impacts on fishery resources in a location important to
Alaska Native Tribes. That mitigation area was expanded, as included in
NMFS' proposed rule (87 FR 49656; August 11, 2022), this final rule,
and in the 2022 GOA FSEIS/OEIS, to cover the entire continental shelf
and slope in a new area called the Continental Shelf and Slope
Mitigation Area. (Please see the Mitigation Areas section of this final
rule and Section 5.4 (Geographic Mitigation to be Implemented) of the
2022 GOA FSEIS/OEIS for additional details about the requirements in
this area and the ecological benefits.)
The MMPA requires that ITAs must not have an unmitigable adverse
impact on subsistence uses (16 U.S.C. 1371(a)(5)(A)(i)), and NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of the species
or stocks for taking for subsistence purposes. The Navy's training
activities are not expected to impact the ability of Alaska Natives to
conduct subsistence hunts or the availability of marine mammals to
those hunts. There is no spatial and temporal overlap between the
Navy's proposed activities and subsistence whaling or sealing areas.
The GOA Study Area is located over 12 nautical miles offshore with the
nearest inhabited land being the Kenai Peninsula (24 nautical miles
from the GOA Study Area). Information provided by Tribes in harvest
reports indicates that harvests tend to occur nearshore, and they do
not use the GOA Study Area for subsistence hunting of marine mammals.
Please see the Subsistence Harvest of Marine Mammals section for more
information.
Comment 31: A commenter stated that NMFS should deny the proposed
LOA application because there are already several active LOAs in Alaska
that allow the take of many of the same species as requested by the
proposed LOA, and that the cumulative impacts of the proposed LOA
combined with the active LOAs demonstrates that the proposed LOA will
have a non-negligible impact on the impacted species or stocks. The
commenter references the following authorizations and the number of
authorized takes of marine mammals for each project: USGS Floating Dock
Expansion; Hoonah Marine Industrial Center Cargo Dock; Alaska
Department of Transportation and Public Facilities Ferry Berth
Improvements; NOAA Port Facility Project in Ketchikan, AK; Reissuance
of Alaska Department of Transportation and Public Facilities Metlakatla
Facility; Hilcorp Alaska, LLC Oil and Gas; AGDC Liquefied Natural Gas
Construction; NOAA Fisheries Research in the Arctic Ocean (see Friends
of Animals' comment letter for additional detail). Further, the
commenter stated that the actual total number of takes for these
projects is even greater than the number included in these
authorizations because these projects do not include all the active
authorizations or the authorizations currently in progress in Alaska.
The commenter stated that when considering the projects cumulatively,
there is a large number of authorizations authorizing the take of vast
numbers of marine mammals in Alaska.
Response: The MMPA requires that NMFS issue an incidental take
authorization, provided the necessary findings are made for the
specified activity put forth in the application and appropriate
mitigation and monitoring measures are set forth, as described in the
Background section of this notice. Both the statute and the agency's
implementing regulations call for analysis of the effects of the
applicant's activities on the affected species and stocks, not analysis
of other unrelated activities and their impacts on the species and
stocks. That does not mean, however, that effects on the species and
stocks caused by other activities are ignored. As described in the GOA
Study Area proposed rule (87 FR 49656; August 11, 2022) and this final
rule, the preamble for NMFS' implementing regulations under section
101(a)(5) (54 FR 40338; September 29, 1989) explains in response to
comments that the impacts from other past and ongoing anthropogenic
activities are incorporated into the negligible impact analysis via
their impacts on the environmental baseline. Consistent with that
direction, NMFS has factored into its negligible impact analyses the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline (e.g., as reflected in the density/distribution
and status of the species, population size and growth rate, and other
relevant stressors (such as Unusual Mortality Events (UMEs)). See the
Analysis and Negligible Impact Determination section of this rule.
Our 1989 final rule for the MMPA implementing regulations also
addressed how cumulative effects from unrelated activities would be
considered. There we stated that such effects are not separately
considered in making findings under section 101(a)(5) concerning
negligible impact, but that NMFS would consider cumulative effects that
are reasonably foreseeable when preparing a NEPA analysis and also that
reasonably foreseeable cumulative effects would be considered under
section 7 of the ESA for ESA-listed species.
The cumulative effects of the incremental impact of the proposed
action when added to other past, present, and reasonably foreseeable
future actions (as well as the effects of climate change) were
evaluated against the appropriate resources and regulatory baselines in
the 2022 GOA FSEIS/OIES. The best available science and a comprehensive
review of past, present, and reasonably foreseeable actions (including
construction and oil and gas activities) was used to develop the
Cumulative Impacts analysis. This analysis is contained in Chapter 4 of
the 2022 GOA FSEIS/OIES. As required under NEPA, the level and scope of
the analysis is commensurate with the scope of potential impacts of the
action and the extent and character of the potentially-impacted
resources (e.g., the geographic boundaries for cumulative impacts
analysis for some resources are expanded to include activities outside
the GOA Study Area that might impact migratory or wide-ranging
animals), as reflected in the resource-specific discussions in Chapter
3 (Affected Environment and Environmental Consequences) of the 2022 GOA
FSEIS/OEIS. The 2022 GOA FSEIS/OEIS considered the proposed training
activities alongside other actions in the region whose impacts may be
additive to those of the proposed training. Past and present actions
are also included in the analytical process as part of the affected
environmental baseline conditions presented in Chapter 3 of the 2022
GOA FSEIS/OEIS. The 2022 GOA FSEIS/OEIS did so in accordance with 1997
Council on Environmental Quality (CEQ) guidance. Per the guidance, a
qualitative approach and best
[[Page 627]]
professional judgment are appropriate where precise measurements are
not available. Where precise measurements and/or methodologies were
available, they were used. Guidance from CEQ states it ``is not
practical to analyze cumulative effects of an action on the universe;
the list of environmental effects must focus on those that are truly
meaningful.''
Further, cumulative effects to listed species of the specified
activity in combination with other activities are analyzed in the ESA
biological opinion. This analysis is contained in section 9 (Cumulative
Effects). The opinion states that it assumes effects in the future
would be similar to those in the past and, therefore, are reflected in
the anticipated trends described in the Species and Designated Critical
that May be Affected and Environmental Baseline sections of the
biological opinion (Sections 0 and 7, respectively).
Comment 32: The Commission recommended that NMFS (1) specify the
total numbers of model-estimated Level A harassment (PTS) takes in the
preamble to the final rule and (2) authorize the model-estimated Level
A harassment takes in the final rule, ensuring that those takes inform
the negligible impact determination analyses. If NMFS does not adopt
the Commission's recommendation, then the Commission recommended that
in the preamble to the final rule NMFS (1) provide details on the
specific mitigation effectiveness scores and how the model-estimated
Level A harassment takes were reduced based on avoidance and the
mitigation effectiveness scores and (2) justify how it can continue to
allow the Navy to implement mitigation effectiveness scores to reduce
Level A harassment takes when Navy lookouts have been determined to be
ineffective at sighting marine mammals. At the very least, the
estimated mitigation effectiveness scores from Oedekoven and Thomas
(2022) should have been used to reduce any Level A harassment takes
that were estimated to occur within 914 m of a surface vessel operating
MFA or high-frequency active (HFA) sonar rather than arbitrary,
presumed mitigation effectiveness scores that are not supported by best
available science. Reducing model-estimated takes based on mitigation
effectiveness for other activities remains unsubstantiated. As such,
mitigation effectiveness should not be used to reduce the numbers of
marine mammal takes for the final rule for GOA or any of the upcoming
Phase IV rulemakings.
Response: The consideration of marine mammal avoidance and
mitigation effectiveness is an important part of NMFS' and the Navy's
overall analysis of impacts from sonar and explosive sources. NMFS has
independently evaluated the method and agrees that it is appropriately
applied to augment the model in the prediction and authorization of
injury and mortality as described in the rule, including after
consideration of Oedekoven and Thomas (2022). Details of the analysis
are provided in the Navy's 2018 technical report titled ``Quantifying
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and
Analytical Approach for Phase III Training and Testing.'' Detailed
information on the mitigation analysis was included in the proposed
rule, including information about the technical report.
As discussed in the proposed rule, this final rule, and the Navy's
report, animats in the Navy's acoustic effects model do not move
horizontally or ``react'' to sound in any way. Specifically, this means
that the Navy's model does not take into account either the likelihood
of avoidance or any consideration of mitigation effectiveness.
Accordingly, NMFS and the Navy's analysis appropriately applies a
quantitative adjustment to the exposure results calculated by the model
to consider avoidance and mitigation.
Regarding avoidance, sound levels diminish quickly below levels
that could cause PTS. Specifically, behavioral response literature,
including the recent 3S studies (multiple controlled sonar exposure
experiments on cetaceans in Norwegian waters) and Southern California
behavioral response studies (SOCAL BRS) (multiple cetacean behavioral
response studies in Southern California), indicate that multiple
species from different cetacean suborders do in fact avoid approaching
sound sources by a few hundred meters or more, which would reduce
received sound levels for individual marine mammals to levels below
those that could cause PTS (see Appendix B of the ``Criteria and
Thresholds for U.S. Navy Acoustic and Explosive Impacts to Marine
Mammals and Sea Turtles Technical Report'' (U.S. Department of the
Navy, 2017) and Southall et al. (2019a)). The ranges to PTS for most
marine mammal groups are within a few tens of meters and the ranges for
the most sensitive group, the HF cetaceans, average about 200 m, to a
maximum of 270 m in limited cases. HF cetaceans such as harbor
porpoises, however, have been observed reacting to anthropogenic sound
at greater distances than other species and are likely to avoid their
zones of hearing impacts (TTS and PTS) as well. Section 3.8.3.1.1.5
(Behavioral Reactions--Behavioral Reactions to Sonar and Other
Transducers) in Section 3.8 (Marine Mammals) of the 2022 GOA FSEIS/OEIS
documents multiple studies in which marine mammals responded to sonar
exposure with avoidance at exposures below which PTS would occur.
As discussed in the Navy's report, the Navy's acoustic effects
model does not consider procedural mitigations (i.e., power-down or
shut-down of sonars, or pausing explosive activities when animals are
detected in specific zones adjacent to the source), which necessitates
consideration of these factors in the Navy's overall acoustic analysis.
Credit taken for mitigation effectiveness is extremely conservative.
For example, if Lookouts can see the whole area, they get credit for it
in the calculation; if they can see more than half the area, they get
half credit; if they can see less than half the area, they get no
credit. Not considering animal avoidance and mitigation effectiveness
would lead to a great overestimate of injurious impacts and not
constitute the best available scientific information. NMFS concurs with
the analytical approach used, i.e., we believe the estimated take by
Level A harassment numbers represent the maximum number of these takes
that are likely to occur and it would not be appropriate to authorize a
higher number or consider a higher number in the negligible impact
analysis.
The Navy assumes that Lookouts will not be 100 percent effective at
detecting all individual marine mammals within the mitigation zones for
each activity. This is due to 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). The Navy quantitatively assessed the effectiveness of its
mitigation measures on a per-scenario basis for four factors: (1)
species sightability, (2) a Lookout's ability to observe the range to
permanent threshold shift (for sonar and other transducers) and range
to mortality (for explosives), (3) the portion of time when mitigation
could potentially be conducted during periods of reduced daytime
visibility (to include inclement weather and high sea-state) and the
portion of time when mitigation could potentially be conducted at
night, and (4) the ability for sound sources to be
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positively controlled (e.g., powered down).
The adjustment made for mitigation effectiveness is small (no more
than \1/3\ of the takes by PTS adjusted) to ensure that takes by PTS
are not underestimated. The Navy's models predicted take by PTS for fin
whale, Dall's porpoise, and northern elephant seal only. Takes by PTS
from explosives were not adjusted to account for avoidance or
mitigation for any species (i.e., the authorized take by PTS from
explosives is equal to the model-estimated PTS from explosives). For
fin whale, Navy Acoustic Effects Model (NAEMO) predicted 1.6 takes by
PTS from sonar, which was reduced to 0 after consideration of both
mitigation credit (-0.5 takes by PTS) and avoidance (-1.05 takes by
PTS). For Dall's porpoise, NAEMO predicted 527 takes by PTS from sonar,
which was reduced to 19 after consideration of both mitigation credit
(-144 takes by PTS) and avoidance (-364 takes by PTS). (Given that the
calculation for avoidance incorporates the adjustment made for
mitigation effectiveness, for Dall's porpoise, even if no adjustment
were made for mitigation effectiveness, the overall number of takes by
PTS (from sonar and explosives) would increase by just 7 takes.) For
elephant seal, NAEMO predicted 0 takes by PTS from sonar, and
therefore, no adjustment was made for mitigation or avoidance.
The g(0) values used by the Navy for their mitigation effectiveness
adjustments take into account the differences in sightability with sea
state, and utilize averaged g(0) values for sea states of 1-4 and
weighted as suggested by Barlow (2015). Using g(0) values is an
appropriate and conservative approach (i.e., it underestimates the
protection afforded by the Navy's mitigation measures) for the reasons
detailed in the technical report. For example, during line-transect
surveys, there are typically two primary observers searching for
animals. Each primary observer looks for marine species in the forward
90-degree quadrant on their side of the survey platform and scans the
water from the vessel out to the limit of the available optics (i.e.,
the horizon). Because Navy Lookouts focus their observations on
established mitigation zones, their area of observation is typically
much smaller than that observed during line-transect surveys. The
mitigation zone size and distance to the observation platform varies by
Navy activity. For example, during hull-mounted mid-frequency active
sonar activities, the mitigation zone extends 1,000 yd from the ship
hull. During the conduct of training activities, there is typically at
least one, if not numerous, support personnel involved in the activity
(e.g., range support personnel aboard a torpedo retrieval boat or
support aircraft). In addition to the Lookout posted for the purpose of
mitigation, these additional personnel observe for and disseminate
marine species sighting information amongst the units participating in
the activity whenever possible as they conduct their primary mission
responsibilities. However, as a conservative approach to assigning
mitigation effectiveness factors, the Navy elected to account only for
the minimum number of required Lookouts used for each activity;
therefore, the mitigation effectiveness factors may underestimate the
likelihood that some marine mammals may be detected during activities
that are supported by additional personnel who may also be observing
the mitigation zone, even considering the mitigation scores reported in
Oedekoven and Thomas (2022).
While use of the estimated mitigation effectiveness scores from
Oedekoven and Thomas (2022) to reduce Level A harassment takes may be
more conservative than the current scores, using the Oedekoven and
Thomas (2022) scores would not necessarily be more accurate, given the
assumptions made in the report. For small cetaceans in particular, as
stated in the report, ``the [Oedekoven and Thomas (2022)] model assumed
no horizontal movement, while some small cetaceans are attracted to
ships and can move quickly'' or show avoidance behaviors, though, the
report does note that despite that limitation, the probability of small
cetaceans going undetected is still high. The Navy's mitigation
effectiveness adjustments also assume a high probability that an animal
would go undetected.
In addition to the differences in assumptions highlighted above,
the p(detection) in the Oedekoven and Thomas (2022) takes into account
the portion of time an animal or pod is at the surface. For
availability, Oedekoven and Thomas (2022) used assumptions about dive
behavior based on several representative species (the most sighted
species in the study) and applied these assumptions across entire
animal groups (rorqual, sperm, and small cetacean). Alternatively, the
Navy's analysis uses specific g(0) values for the species in the study
area. Given the differences in assumptions between the Navy's methods
and those outlined in Oedekoven and Thomas (2022), NMFS does not find
it appropriate to modify the mitigation effectiveness adjustment based
on the Oedekoven and Thomas (2022) results at this time. However, NMFS
and the Navy are continuing to evaluate the report results in order to
determine how to best apply mitigation effectiveness moving forward.
Although NAEMO predicted PTS takes from the GOA activities, no
mortality or non-auditory injuries were predicted by NAEMO. Therefore,
as detailed in the Estimated Take of Marine Mammals section of this
rule, and in Section 3.8.3.2.2.1 (Methods for Analyzing Impacts from
Explosives) of the 2022 GOA FSEIS/OEIS, the Navy Acoustic Effects Model
estimated zero takes by mortality for all marine mammal species in the
TMAA. Therefore, mitigation for explosives is discussed qualitatively
but was not factored into the quantitative analysis for marine mammals
(i.e., mitigation effectiveness scores were not calculated, or used to
reduce mortality exposures for explosives). For all of the reasons
above, NMFS considers the estimated and authorized take (that was
adjusted for aversion and mitigation) appropriate, and that is what has
been analyzed in the negligible impact analysis. Accordingly, we
decline the commenter's recommendation to analyze and authorize the
model-estimated PTS, as it is neither expected to occur nor authorized.
Comment 33: A commenter stated that the Navy could use modern
technology in simulators for its training exercises, and that it could
use computer simulation and other technological techniques to better
train their personnel.
Response: As described in Section 2.5.5 (Simulated Training) in the
2022 GOA Final SEIS/OEIS, the Navy continues to use computer simulation
and other types of simulation for training activities whenever
possible; however, there are limits to the realism that current
simulation technology can provide, and its use cannot substitute for
live training. Training through simulated means cannot replicate the
conditions in which Navy personnel and platforms are required to
conduct military operations. While beneficial as a complementing medium
to train and test personnel and platforms, simulation alone cannot
accurately replicate both the conditions and the stresses that must be
placed on personnel and platforms during actual training. These
conditions and stresses are absolutely vital to adequately preparing
Naval forces to conduct the broad spectrum of military operations
required of them by operational Commanders. Therefore, simulation as an
alternative that
[[Page 629]]
completely replaces training in the field does not meet the purpose of
and need for the Navy's proposed action and was eliminated from further
analysis.
The commenter did not provide sufficient information regarding
``other technological techniques to better training their personnel''
in order to incorporate such a recommendation.
Comment 34: A commenter stated that the Navy should not increase
the amount of incidental take of marine mammals in their quest to
expand the size of the training zone in the Gulf of Alaska Study Area.
The commenter stated that the Navy could better utilize the existing
zone at its current size, and that the testing of real weapons should
only occur within the existing training zone. Further, when exercises
occur, utmost caution should be exercised in the whereabouts of marine
mammals.
Response: The inclusion of the WMA in the GOA Study Area is not
expected to result in additional take of marine mammals beyond that
which will occur in the TMAA portion of the GOA Study Area. As stated
in the proposed rule (87 FR 49656; August 11, 2022), no activities
involving sonar use or explosives will occur in the WMA or the portion
of the warning area that extends beyond the TMAA. The WMA provides
additional airspace and sea space for aircraft and vessels to maneuver
during training activities for increased training complexity.
Regarding caution around marine mammals, the Navy is required to
implement mitigation measures, including procedural mitigation
measures, such as required shutdowns and delays of activities if marine
mammals are sighted within certain distances, and geographic area
mitigation measures, including limitations on activities such as sonar
in areas that are important for certain behaviors such as feeding.
These mitigation measures were designed to lessen the frequency and
severity of impacts from the Navy's activities on marine mammals and
their habitat, and ensure that the Navy's activities have the least
practicable adverse impact on species and stocks. See the Mitigation
Measures section of this final rule for additional detail on specific
procedural mitigation measures and measures in mitigation areas.
Changes From the Proposed Rule to the Final Rule
This final rule includes no substantive changes from the proposed
rule. However, this final rule includes a minor addition to reporting
requirements. The new measure requires the Navy to coordinate with NMFS
prior to conducting exercises within the GOA Study Area. This may occur
as a part of coordination the Navy does with other local stakeholders.
Description of Marine Mammals and Their Habitat in the Area of the
Specified Activities
Marine mammal species and their associated stocks that have the
potential to occur in the GOA Study Area are presented in Table 6. The
Navy anticipates the take of individuals of 16 marine mammal species by
Level A harassment and Level B harassment, and NMFS has conservatively
analyzed and authorized incidental take of two additional species. The
Navy does not request authorization for any serious injuries or
mortalities of marine mammals, and NMFS agrees that serious injury and
mortality is unlikely to occur from the Navy's activities. NMFS
recently designated critical habitat under the Endangered Species Act
(ESA) for humpback whales in the TMAA portion of the GOA Study Area,
and this designated critical habitat is considered below (86 FR 21082;
April 21, 2021). The WMA portion of the GOA Study Area does not overlap
ESA-designated critical habitat for humpback whales or any other
species.
The GOA proposed rule included additional information about the
species in this rule, all of which remains valid and applicable but has
not been reprinted in this final rule, including a subsection entitled
Marine Mammal Hearing that described the importance of sound to marine
mammals and characterized the different groups of marine mammals based
on their hearing sensitivity. Therefore, we refer the reader to our
Federal Register notice of proposed rulemaking (87 FR 49656; August 11,
2022) for more information.
Information on the status, distribution, abundance, population
trends, habitat, and ecology of marine mammals in the GOA Study Area
may be found in Chapter 4 of the Navy's rulemaking/LOA application.
NMFS reviewed this information and found it to be accurate and
complete. Additional information on the general biology and ecology of
marine mammals is included in the 2022 GOA FSEIS/OEIS. Table 6
incorporates the best available science, including data from the 2021
U.S. Pacific and the Alaska Marine Mammal Stock Assessment Reports
(SARs; Carretta et al., 2022; Muto et al., 2022), as well as monitoring
data from the Navy's marine mammal research efforts. NMFS has also
reviewed new scientific literature since publication of the proposed
rule and determined that none of these nor any other new information
changes our determination of which species have the potential to be
affected by the Navy's activities or the information pertinent to
status, distribution, abundance, population trends, habitat, or ecology
of the species in this final rulemaking, except as noted below.
To better define marine mammal occurrence in the TMAA, the portion
of the GOA Study Area where take of marine mammals is anticipated to
occur, four regions within the TMAA were defined (and are depicted in
Figure 3-1 of the Navy's rulemaking/LOA application), consistent with
the survey strata used by Rone et al. (2017) during the most recent
marine mammal surveys in the TMAA. The four regions are: inshore,
slope, seamount, and offshore.
Table 6--Marine Mammal Occurrence Within the GOA Study Area
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[…truncated; see source link]Indexed from Federal Register on January 4, 2023.
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