Takes of Marine Mammals Incidental to Specified Activities: Taking Marine Mammals Incidental to U.S. Navy Surveillance Towed Array Sensor System Low Frequency Active Sonar Training and Testing in the Central and Western North Pacific Ocean and Eastern Indian Ocean, 40132-40213 [2019-16695]
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SUPPLEMENTARY INFORMATION:
DEPARTMENT OF COMMERCE
Purpose for Regulatory Action
National Oceanic and Atmospheric
Administration
50 CFR Part 218
[190731–0008]
RIN 0648–BI42
Takes of Marine Mammals Incidental to
Specified Activities: Taking Marine
Mammals Incidental to U.S. Navy
Surveillance Towed Array Sensor
System Low Frequency Active Sonar
Training and Testing in the Central and
Western North Pacific Ocean and
Eastern Indian Ocean
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; notification of
issuance of Letter of Authorization.
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AGENCY:
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 use of Surveillance
Towed Array Sensor System Low
Frequency Active (SURTASS LFA)
sonar systems onboard U.S. Navy
surveillance ships for training and
testing activities conducted under the
authority of the Secretary of the Navy in
the western and central North Pacific
Ocean and eastern Indian Ocean
(SURTASS LFA sonar activities)
beginning August 2019. These
regulations, which allow for the
issuance of a Letter of Authorization
(LOA) for the incidental take of marine
mammals during the described activities
and timeframes, prescribe the
permissible methods of taking and other
means of effecting the least practicable
adverse impact on marine mammal
species or stocks and their habitat, and
establish requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective on August 12, 2019,
through August 11, 2026.
ADDRESSES: A copy of the Navy’s
application and supporting documents,
as well as a list of the references cited
in this document, may be obtained
online at: www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities. In case of problems
accessing these documents, please call
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427–8401.
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These regulations, issued under the
authority of the MMPA (16 U.S.C. 1361
et seq.), establish a framework for
authorizing the take of marine mammals
incidental to the Navy’s use of
SURTASS LFA sonar systems onboard
U.S. Navy surveillance ships for training
and testing activities (categorized as
military readiness activities) conducted
under the authority of the Secretary of
the Navy in the western and central
North Pacific Ocean and eastern Indian
Ocean.
NMFS received an application from
the Navy requesting regulations and an
associated letter of authorization (LOA)
to take individuals of multiple species
and stocks of marine mammals (‘‘Navy’s
rulemaking/LOA application’’ or
‘‘Navy’s application’’) by Level B
harassment incidental to SURTASS LFA
sonar activities. Please see
‘‘Background’’ below for definitions of
harassment. This final rule establishes a
framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow
for the authorization of take of marine
mammals incidental to the Navy’s
specified activities.
Legal Authority for the Final Action
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) generally directs
the Secretary of Commerce to allow,
upon request, the incidental, but not
intentional taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region for up to five years
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
permissible methods of taking and other
means of effecting the least practicable
adverse impact (LPAI) on the affected
species or stocks and their habitat, 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 any associated LOAs. As
described in the Background section,
the MMPA has been amended in a
number of ways when the specified
activity is a military readiness activity,
including most recently in 2018 to
extend the maximum authorization
period under section 101(a)(5)(A) from
five to seven years for Department of
Defense military readiness activities. As
directed by this legal authority, this
final rule contains mitigation,
monitoring, and reporting requirements.
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Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, an incidental harassment
authorization may be issued following
notice and opportunity for public
comment.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other means of effecting the least
practicable adverse impact on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to in shorthand as
‘‘mitigation’’), and requirements
pertaining to the monitoring and
reporting of such takings.
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 it applies to a ‘‘military readiness
activity’’ to read as follows (Section
3(18)(B) of the MMPA): (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
FY 2004 NDAA amended the MMPA as
it relates to military readiness activities
and the incidental take authorization
(ITA) process such that ‘‘least
practicable adverse impact’’ shall
include consideration of personnel
safety, practicality of implementation,
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and impact on the effectiveness of the
military readiness activity. As
mentioned above, the NDAA for FY
2019 amended the MMPA to extend the
period of permitted incidental takings of
marine mammals covered by section
101(a)(5)(A) in the course of specified
military readiness activities from five to
seven years.
The authorization of incidental taking
under section 101(a)(5)(A) requires
promulgation of activity-specific
regulations following notice and
opportunity for public comment. Under
NMFS’ implementing regulations for
section 101(a)(5)(A), a Letter of
Authorization (LOA) also is required to
conduct activities pursuant to any
activity-specific regulations (50 CFR
216.106).
Summary of Request
On June 4, 2018, NMFS received a
request from the Navy for authorization
to take, by Level B harassment, 46
species of marine mammals incidental
to the use of SURTASS LFA sonar
onboard U.S. Navy surveillance ships
for training and testing activities
(categorized as military readiness
activities) conducted under the
authority of the Secretary of the Navy in
the western and central North Pacific
Ocean and eastern Indian Ocean
beginning in August 2019 and extending
to August 2026. On July 13, 2018, NMFS
published a notice of receipt (NOR) of
the Navy’s application in the Federal
Register (83 FR 32615), and requested
comments and information related to
the Navy’s request. The review and
comment period for the NOR ended on
August 13, 2018. The Navy submitted a
revised application on November 13,
2018, that included a minor change to
the mitigation measures provided in the
June 2018 application. On March 1,
2019, NMFS published a notice of
proposed rulemaking in the Federal
Register (84 FR 7186), and requested
comments and information related to
the Navy’s request. The review and
comment period for the proposed rule
ended on April 1, 2019. One comment
received during the NOR comment
period was addressed in the Proposed
Rule, and comments received during the
proposed rulemaking comment period
are addressed in this final rule. See
further details addressing comments
received in the Comments and
Responses section.
The Navy states, and NMFS concurs,
that these SURTASS LFA sonar
activities, classified as military
readiness activities, may incidentally
take marine mammals by exposing them
to SURTASS LFA sonar at levels that
constitute Level B harassment as
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defined above. The Navy requests
authorization to take, by Level B
Harassment, individuals from 139
stocks of 46 species of marine mammals
(10 species of mysticete (baleen) whales,
31 species of odontocete (toothed)
whales, and 5 species of pinnipeds
(seals and sea lions)). This rule also
covers the authorization of take of
animals from additional associated
stocks of marine mammals not listed
here, should one or more of the stocks
identified in this rule be formally
separated into multiple stocks, provided
NMFS is able to confirm the necessary
findings for the newly identified stocks.
As discussed later in this document,
incidental takes due to SURTASS LFA
sonar will be limited to Level B
harassment. No takes by Level A
harassment are authorized, as Level A
harassment is considered unlikely and
will be avoided through the
implementation of the Navy’s mitigation
measures, as discussed below.
In previous SURTASS LFA sonar
rulemakings, NMFS authorized some
Level A harassment takes in an
abundance of caution even though Level
A harassment takes were not
anticipated. However, to the knowledge
of the Navy and NMFS, no Level A
harassment takes have resulted over the
17-year history of SURTASS LFA sonar
activities. Additionally, the exposure
criteria and thresholds for assessing
Level A harassment have been modified
since prior rules based on the best
available science. Under these new
metrics, the zone for potential injury is
substantially reduced. Therefore, due to
the small injury zones and the fact that
mitigation measures would ensure that
marine mammals would not be exposed
to received levels associated with
injury, the Navy has not requested
authorization for Level A harassment
takes, and NMFS is not authorizing any
takes by Level A harassment.
NMFS published the first incidental
take rule for SURTASS LFA sonar,
effective from August 2002 through
August 2007, on July 16, 2002 (67 FR
46712); the second rule, effective from
August 2007 through August 2012, on
August 21, 2007 (72 FR 46846); and the
third rule, effective from August 2012
through August 2017, on August 20,
2012 (77 FR 50290).
In 2016, the Navy submitted an
application for a fourth incidental take
regulation under the MMPA (DoN,
2016) for the taking of marine mammals
by harassment incidental to the
deployment of up to four SURTASS
LFA sonar systems from August 15,
2017, through August 14, 2022. NMFS
published a proposed rule on April 27,
2017 (82 FR 19460). On August 10,
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2017, the Deputy Secretary of Defense,
after conferring with the Secretary of
Commerce, determined that it was
necessary for the national defense to
exempt all military readiness activities
that use SURTASS LFA sonar from
compliance with the requirements of the
MMPA for a period of up to two years
beginning August 13, 2017, through
August 12, 2019, or until such time
when NMFS issues regulations and an
LOA under MMPA section 101(a)(5)(A)
for military readiness activities
associated with the use of SURTASS
LFA sonar, whichever is earlier. During
the period of the National Defense
Exemption (NDE) (available at https://
www.surtass-lfa-eis.com/wp-content/
uploads/2018/01/SURTASS_LFA_NDE_
10Aug17.pdf), all military readiness
activities that involve the use of
SURTASS LFA sonar were required to
comply with all mitigation, monitoring,
and reporting measures set forth in the
NDE for SURTASS LFA sonar, which
were based on the measures included in
NMFS’ prior (2012) final rule (77 FR
50290; August 20, 2012) and 2017
proposed rule (82 FR 19460; April 27,
2017). As a result of the NDE, NMFS did
not finalize its April 2017 proposed
rule.
The NDE expires August 12, 2019. For
this rulemaking, the Navy will continue
to use SURTASS LFA sonar systems
onboard United States Naval Ship
(USNS) surveillance ships for training
and testing activities conducted under
the authority of the Secretary of the
Navy within the western and central
North Pacific Ocean and eastern Indian
Ocean. The operating features of the
LFA sonar will remain, and have
remained the same since the 2001
SURTASS LFA FOEIS/EIS. The typical
duty cycle of LFA sonar, based on
historical SURTASS LFA sonar use, is
7.5 to 10 percent (DoN, 2007). The
maximum duty cycle remains the same
at 20 percent.
For this rulemaking, the Navy scoped
the geographic extent of the area where
the specified activity will occur (Study
Area) to better reflect the areas where
the Navy anticipates conducting
SURTASS LFA sonar training and
testing activities. Whereas the previous
authorizations included certain routine
military operations among the scope of
actions analyzed, the Navy also has
narrowed the scope of activities in the
current request for authorization to
training and testing activities only, due
to various statutory and practical
considerations, as described in Chapter
1 of the 2019 SURTASS LFA FSEIS/
SOEIS, and discussed further below.
The Navy will transmit a total of up
to 496 LFA sonar transmission hours
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per year for its specified activity, as
described below (see Description of the
Specified Activities section), pooled
across all SURTASS LFA sonarequipped vessels in the first four years
of the authorization, with an increase in
usage to a total of up to 592 LFA
transmission hours in years five through
seven.
Changes From the Proposed to the Final
Rule
Since the proposed rule, based on
public comment and additional
analysis, NMFS and the Navy have
agreed to additional mitigation and
monitoring measures that are expected
to reduce the likelihood and/or severity
of adverse impacts on marine mammal
species/stocks and their habitat and are
practicable for implementation.
• In the proposed rule we presented
25 marine areas for further
consideration as marine mammal
Offshore Biologically Important Areas
(OBIAs) for SURTASS LFA sonar. After
considering public comments and
conducting additional analyses, 33
marine areas were assessed as potential
OBIAs. Of these 33 marine areas, 17
were determined to qualify as OBIAs.
All 17 of the areas were found to be
practicable and were designated as 14
OBIAs (some OBIAs encompass several
marine areas). All four of the OBIAs
previously designated in the SURTASS
LFA sonar Study Area have been
expanded spatially.
• The Navy will use no more than 25
percent of the authorized amount
(transmission hours) of SURTASS LFA
sonar for training and testing within 10
nautical miles (nmi) (18.5 kilometers
(km)) of any single OBIA during any
year (no more than 124 hours in years
1–4 and 148 hours in years 5–7) unless
the following conditions are met:
Should national security present a
requirement to conduct more than 25
percent of authorized hours of
SURTASS LFA sonar within 10 nmi
(18.5 km) of any single OBIA during any
year, naval units will obtain permission
from the appropriate designated
Command authority prior to
commencement of the activity. The
Navy will provide NMFS with
notification as soon as is practicable and
include the information (e.g., sonar
hours) in its annual activity reports
submitted to NMFS.
• The Navy has agreed to evaluate the
feasibility and appropriate methods to
collect new data to supplement the data
available on behavioral responses of
marine mammals to SURTASS LFA
sonar using newer methods and
technologies. These types of scientific
inquiries fit within the scope the Navy’s
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Living Marine Resources (LMR)
program. The LMR program weighs the
various Navy research needs against
each other through a needs and
solicitation process. The Navy has
submitted a needs statement to the LMR
advisory committee to research future
data collection that would supplement
understanding of how SURTASS LFA
sonar may affect marine resources,
including mysticetes and beaked
whales.
Description of the Specified Activities
Overview
The Navy’s primary mission is to
organize, train, and equip combat-ready
naval forces capable of accomplishing
American strategic objectives, deterring
maritime aggression, and assuring
freedom of navigation in ocean areas.
This mission is mandated by Federal
law in Section 8062 of Title 10 of the
United States Code, which directs the
Secretary of the Navy to ensure the
readiness of the U.S. naval forces.
The Secretary of the Navy and the
Chief of Navy Operations (CNO) have
established that anti-submarine warfare
(ASW) is a critical capability for
achieving the Navy’s mission, and it
requires unfettered access to both the
high seas and littoral environments to
be prepared for all potential threats by
maintaining ASW core competency. The
Navy is challenged by the increased
difficulty in locating undersea threats
solely by using passive acoustic
technologies due to the advancement
and use of quieting technologies in
diesel-electric and nuclear submarines.
At the same time, as the distance at
which submarine threats can be
detected decreases due to quieting
technologies, improvements in torpedo
and missile design have extended the
effective range of these weapons.
One of the ways the Navy has
addressed the changing requirements for
ASW readiness was to develop
SURTASS LFA sonar, which is able to
reliably detect quieter and harder-tofind submarines at long range before
these vessels can get within their
effective weapons range to launch
against their targets. SURTASS LFA
sonar systems have a passive
component (SURTASS), which is a
towed line array of hydrophones used to
detect sound emitted or reflected from
submerged targets, and an active
component (LFA), which is comprised
of a set of acoustic transmitting
elements. The active component detects
objects by creating a sound pulse, or
‘‘ping’’ that is transmitted through the
water and reflects off the target,
returning in the form of an echo similar
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to echolocation used by some marine
mammals to locate prey and navigate.
SURTASS LFA sonar systems are longrange sensors that operate in the lowfrequency (LF) band (i.e., 100–500 Hertz
(Hz)). Because LF sound travels in
seawater for greater distances than
higher frequency sound, the SURTASS
LFA sonar system meets the need for
improved detection and tracking of
new-generation submarines at a longer
range and maximizes the opportunity
for U.S. armed forces to safely react to,
and defend against, potential submarine
threats while remaining a safe distance
beyond a submarine’s effective weapons
range. Thus, the active acoustic
component in the SURTASS LFA sonar
is an important augmentation to the
Navy’s passive and tactical systems, as
its long-range detection capabilities can
effectively counter the threat to the
Navy and national security interests
posed by quiet, diesel submarines.
The Navy’s specified activities for
MMPA incidental take coverage is to
continue employment of SURTASS LFA
sonar systems onboard USNS
surveillance ships for training and
testing activities conducted under the
authority of the Secretary of the Navy in
the western and central Pacific Ocean
and eastern Indian Ocean, which is
classified as a military readiness
activity, beginning August 13, 2019. The
use of the SURTASS LFA sonar system
will result in acoustic stimuli from the
generation of sound or pressure waves
in the water at or above levels that
NMFS has determined would result in
take of marine mammals under the
MMPA. This is the principal means of
marine mammal taking associated with
these military readiness activities. In
addition to the use of active acoustic
sources, the Navy’s activities include
the movement of vessels. This final rule
also analyzes the potential effects of this
aspect of the activities. NMFS does not
anticipate takes of marine mammals to
result from ship strikes from any
SURTASS LFA vessels because each
vessel moves at a relatively slow speed
(10 to 12 knots (kt) while transiting),
especially when towing the SURTASS
and LFA sonar systems (moving at 3 to
4 kt), and for a relatively short period
of time. Combined with the use of
mitigation measures as noted below, it
is likely that surveillance vessels will be
able to avoid any marine mammals.
The Navy will restrict SURTASS LFA
sonar training and testing activities to
the central and western North Pacific
Ocean and eastern Indian Ocean. The
Navy will not conduct training or
testing utilizing SURTASS LFA sonar
within the foreign territorial seas of
other nations and will maintain
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SURTASS LFA sonar received levels
below 180 decibels (dB) re: 1 mPa (rootmean-square (rms)) within 12 nmi (22
km) of any emerged land features or
within 1 km of the seaward boundaries
of designated Offshore Biologically
Important Areas (OBIAs) during their
effective periods (see Mitigation section
below for OBIA details). In addition to
these geographic mitigation measures,
the Navy will implement procedural
mitigation measures, including
monitoring for the presence of marine
mammals (including visual as well as
active and passive acoustic monitoring)
and implementing shutdown
procedures for marine mammals within
a mitigation zone around the LFA sonar
source (see Mitigation and Monitoring
sections below for further details).
Dates and Duration
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The specified activities may occur at
any time during the seven-year period of
validity of the regulations (August 13,
2019, through August 12, 2026). The
Navy currently conducts SURTASS LFA
sonar activities from four vessels. The
Navy is planning to add new vessels to
its ocean surveillance fleet. As new
vessels are developed, the onboard LFA
and High Frequency Marine Mammal
Monitoring sonar (HF/M3 sonar)
systems (discussed below) may need to
be updated, modified, or even redesigned. Current indications are that
future LFA sonar systems will have the
same operational characteristics and
that updates and modifications are
focused toward miniaturizing the
system components to reduce the
weight and handling of the systems. If
system parameters are modified as a
result of these updates the Navy will
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determine if supplementary analysis
would be required to cover the
deployment of these new systems. As
the new vessels and sonar system
components are developed and
constructed, at-sea testing would
eventually be necessary. The Navy
anticipates that new vessels, or new/
updated sonar system components,
would be ready for at-sea testing
beginning in the fifth year of the time
period covered by this final rule.
Thus, the Navy’s activity analysis
included consideration of the sonar
hours associated with future testing of
new or updated LFA sonar system
components and new ocean surveillance
vessels. This consideration resulted in
two scenarios of annual sonar transmit
hours: Years 1 to 4 will entail up to 496
hours total per year across all SURTASS
LFA sonar vessels, while years 5 to 7
will include an increase in LFA sonar
transmit hours up to 592 hours across
all vessels.
The SURTASS LFA sonar
transmission hours represent a
distribution across six activities that
include (with an approximate allocation
of hours indicated):
• Contractor crew proficiency
training (80 hours per year);
• Military crew (MILCREW)
proficiency training (96 hours per year);
• Participation in or support of naval
exercises (96 hours per year);
• Vessel and equipment maintenance
(64 hours per year);
• Acoustic research testing (160 hours
per year); and
• New SURTASS LFA sonar system
testing (96 hours per year; will occur in
years 5 to 7).
Each of these activities utilizes the
SURTASS LFA sonar system within the
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operating profile described above;
therefore, the number of hours
designated for each activity represents
an estimate for planning purposes.
As noted above, this rulemaking
would result in the fourth such
regulation for the Navy’s SURTASS LFA
sonar activities. The Navy is currently
conducting the specified activities
under an NDE that will expire on
August 12, 2019. Therefore, the Navy
requested MMPA rulemaking and an
LOA for SURTASS LFA sonar training
and testing activities effective beginning
August 13, 2019, to take marine
mammals incidental to the SURTASS
LFA sonar activities for a seven year
period.
SURTASS LFA Sonar Training and
Testing Areas
The geographic area of the SURTASS
LFA sonar activities covered by these
regulations includes the western and
central North Pacific Ocean and eastern
Indian Ocean outside of the territorial
seas of foreign nations (generally 12 nmi
(22 km) from most foreign nations).
Figure 1 depicts the areas of SURTASS
LFA sonar activities. In areas within 12
nmi from any emergent land (coastal
exclusion areas) and in areas identified
as OBIAs, SURTASS LFA sonar training
and testing would be conducted such
that received levels of LFA sonar are
below 180 dB re: 1 mPa rms sound
pressure level (SPL). This restriction
will be observed year-round for coastal
standoff zones and during known
periods of biological importance for
OBIAs.
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For this rulemaking, the Navy scoped
the geographic extent of its specified
activities to better reflect the areas
where the Navy anticipates conducting
SURTASS LFA sonar training and
testing activities now through 2026.
Fifteen representative model areas
(shown in Figure 1 and listed in Table
1), with nominal modeling sites in each
region, provide geographic context for
the SURTASS LFA sonar activities.
Modeled site
Location (latitude/longitude of
center of modeling area)
East of Japan .....................................................
North Philippine Sea ..........................................
West Philippine Sea ...........................................
Offshore Guam ..................................................
Sea of Japan ......................................................
East China Sea ..................................................
South China Sea ................................................
Offshore Japan 25° to 40° N .............................
Offshore Japan 10° to 25° N .............................
Hawaii North ......................................................
Hawaii South ......................................................
Offshore Sri Lanka .............................................
Andaman Sea ....................................................
Northwest of Australia ........................................
Northeast of Japan ............................................
38° N, 148° E.
29° N, 136° E.
22° N, 124° E.
11° N, 145° E ..........................
39° N, 132° E.
26° N, 125° E.
14° N, 114° E.
30° N, 165° E.
15° N, 165° E.
25° N, 158° W .........................
19.5° N, 158.5° W ...................
5° N, 85° E.
7.5° N, 96° E.
18° S, 110° E.
52° N, 163° E.
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Navy Mariana Islands Testing and Training Area.
Navy Hawaii-Southern California Training and Testing Area.
Navy Hawaii-Southern California Training and Testing Area.
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TABLE 1—REPRESENTATIVE SURTASS LFA SONAR MODELING AREAS THAT THE NAVY MODELED FOR THE 2019
SURTASS LFA FSEIS/SOEIS AND THE NAVY’S MMPA RULEMAKING/LOA APPLICATION
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Detailed Description of the Specified
Activities
SURTASS LFA Sonar—SONAR is an
acronym for Sound Navigation and
Ranging, and its definition includes any
system (biological or mechanical) that
uses underwater sound, or acoustics, for
detection, monitoring, and/or
communications. Active sonar is the
transmission of sound energy for the
purpose of sensing the environment by
interpreting features of received signals.
Active sonar detects objects by creating
a sound pulse, or ‘‘ping’’ that is
transmitted through the water and
reflects off the target, returning in the
form of an echo. Passive sonar detects
the transmission of sound waves created
by an object.
As mentioned previously, the
SURTASS LFA sonar system is a longrange, all-weather LF sonar (operating
between 100 and 500 Hertz (Hz)) system
that has both active and passive
components. LFA, the active system
component (which allows for the
detection of an object that is not
generating noise), is comprised of
source elements (called projectors)
suspended vertically on a cable beneath
the surveillance vessel. The projectors
produce an active sound pulse by
converting electrical energy to
mechanical energy by setting up
vibrations or pressure disturbances
within the water to produce a ping. The
Navy uses LFA as an augmentation to
the passive SURTASS operations when
passive system performance is
inadequate. SURTASS, the passive part
of the system, uses hydrophones (i.e.,
underwater microphones) to detect
sound emitted or reflected from
submerged targets, such as submarines.
The SURTASS hydrophones are
mounted on a horizontal line array that
is towed behind the surveillance vessel.
The Navy processes and evaluates the
returning signals or echoes, which are
usually below background or ambient
sound level, to identify and classify
potential underwater targets.
LFA Active Component—The active
component of the SURTASS LFA sonar
system consists of up to 18 projectors
suspended beneath the surveillance
vessel in a vertical line array. The
SURTASS LFA sonar projectors
transmit in the low-frequency band
(between 100 and 500 Hz). The source
level of an individual projector in the
SURTASS LFA sonar array is
approximately 215 dB re: 1 mPa at 1 m
or less. Sound pressure is the sound
force per unit area and is usually
measured in micropascals (mPa), where
one Pascal (Pa) is the pressure resulting
from a force of one newton exerted over
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an area of one square meter (m2). The
commonly used reference pressure level
in underwater acoustics is 1 mPa at 1 m,
and the units for source level are
decibels (dB) re: 1 mPa at 1 m). Because
of the physics involved in acoustic
beamforming (i.e., a method of mapping
noise sources by differentiating sound
levels based upon the direction from
which they originate) and sound
transmission loss processes, the
SURTASS LFA sonar array cannot have
a sound pressure level (SPL) higher than
the SPL of an individual projector.
The SURTASS LFA sonar acoustic
transmission is an omnidirectional
beam (a full 360 degrees (°)) in the
horizontal plane. The LFA sonar system
also has a narrow vertical beam that the
vessel’s crew can steer above or below
the horizontal plane. The typical
SURTASS LFA sonar signal is not a
constant tone, but rather is a
transmission of various signal types that
vary in frequency and duration
(including continuous wave (CW) and
frequency-modulated (FM) signals). A
complete sequence of sound
transmissions, also referred to by the
Navy as a ‘‘ping’’ or a wavetrain, can be
as short as six seconds (sec) or last as
long as 100 sec, with an average length
of 60 sec. Within each ping, the
duration of any continuous frequency
sound transmission is no longer than 10
seconds and the time between pings is
typically from six to 15 minutes (min).
Based on the Navy’s historical operating
parameters, the average duty cycle (i.e.,
the ratio of sound ‘‘on’’ time to total
time) for LFA sonar is normally 7.5 to
10 percent and will not exceed a
maximum duty cycle of 20 percent.
Compact LFA Active Component—In
addition to the LFA sonar system
currently deployed on the USNS
IMPECCABLE, the Navy developed a
compact LFA (CLFA) sonar system,
which is now deployed on its three
smaller surveillance vessels (i.e., the
USNS ABLE, EFFECTIVE, and
VICTORIOUS). The operational
characteristics of the active component
for the CLFA sonar system are
comparable to the LFA sonar system
and the potential impacts from the
CLFA sonar system will be similar to
the effects from the LFA sonar system.
The CLFA sonar system consists of
smaller projectors that weigh 142,000
lbs (64,410 kilograms (kg)), which is
182,000 lbs (82,554 kg) less than the
weight of the LFA projectors on the
USNS IMPECCABLE. The CLFA sonar
system also consists of up to 18
projectors suspended beneath the
surveillance vessel in a vertical line
array, and the CLFA sonar system
projectors transmit in the low-frequency
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band (also between 100 and 500 Hz)
with the same duty cycle as described
for LFA sonar. Similar to the active
component of the LFA sonar system, the
source level of an individual projector
in the CLFA sonar array is
approximately 215 dB re: 1 mPa or less.
For the analysis in this rulemaking,
NMFS will use the term LFA to refer to
both the LFA sonar system and/or the
CLFA sonar system, unless otherwise
specified.
SURTASS Passive Component—The
passive component of the SURTASS
LFA sonar system consists of a
SURTASS Twin-line (TL–29A)
horizontal line array mounted with
hydrophones. The Y-shaped array is
1,000 ft (305 m) in length and has an
operational depth of 500 to 1,500 ft
(152.4 to 457.2 m).
High-Frequency Marine Mammal
Monitoring Active Sonar (HF/M3)—
Although technically not part of the
SURTASS LFA sonar system, the Navy
will also use a high-frequency sonar
system, called the HF/M3 sonar, to
detect and locate marine mammals
within the SURTASS LFA sonar
mitigation zone, as described in the
Mitigation and Monitoring sections. This
enhanced commercial fish-finding
sonar, mounted at the top of the
SURTASS LFA sonar vertical line array,
has a source level of 220 dB re: 1 mPa
at 1 m with a frequency range of 30 to
40 kilohertz (kHz). The duty cycle is
variable, but is normally below three to
four percent and the maximum pulse
duration is 40 milliseconds (ms). The
HF/M3 sonar has four transducers with
8 degrees horizontal and 10 degrees
vertical beamwidths, which sweep a full
360 degrees in the horizontal plane
every 45 to 60 sec with a maximum
range of approximately 1.2 mi (2 km).
Vessel Specifications—The Navy
currently deploys SURTASS LFA sonar
on four twin-hulled ocean surveillance
vessels that are 235 to 282 feet (ft) (72
to 86 m) in length, with twin-shafted
diesel electric engines capable of
providing 3,200 to 5,000 horsepower.
Each vessel has an observation area on
the bridge that is more than 30 ft above
sea level from where lookouts will
monitor for marine mammals whenever
SURTASS LFA sonar is transmitting. As
stated previously, the Navy may
develop and field additional SURTASS
LFA equipped vessels, either to replace
or complement the Navy’s current
SURTASS LFA capable fleet, and these
vessels may be in use beginning in the
fifth year of the time period covered by
this rulemaking.
The operational speed of each vessel
during sonar activities will be
approximately 3.4 miles per hour (mph)
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(5.6 km per hour (km/hr); 3 kt) and each
vessel’s cruising speed outside of sonar
activities would be a maximum of
approximately 11.5 to 14.9 mph (18.5 to
24.1 km/hr; 10 to 13 kt). During sonar
activities, the SURTASS LFA sonar
vessels will generally travel in straight
lines or in oval-shaped (i.e., racetrack)
patterns depending on the training or
testing scenario.
Comments and Responses
We published a notice of proposed
rule in the Federal Register on March 1,
2019 (84 FR 7186), with a 30-day
comment period. During the 30-day
comment period, we received eight total
comment letters. Of this total, one
submission was from another Federal
agency, one letter was from
organizations or individuals acting in an
official capacity (e.g., non-governmental
organizations (NGOs)), and six
submissions were from private citizens.
NMFS has reviewed all public
comments received on the proposed
rule and issuance of the LOA. All
relevant comments and our responses
are described below organized by major
category. We provide no response to
specific comments that addressed
species or statutes not relevant to our
proposed rule under section
101(a)(5)(A) of the MMPA (e.g.,
comments related to sea turtles).
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General Comments
The majority of the comments from
six private citizens expressed general
opposition toward the Navy’s proposed
training and testing activities, cited
concern for marine mammals and the
oceans, and requested that NMFS not
issue the LOAs, but without providing
information relevant to NMFS’
decisions. NMFS appreciates the
concerns expressed for marine life and
resources. We reiterate that no mortality
of marine mammals is anticipated, nor
is any injury (Level A harassment) of
marine mammals anticipated; therefore,
neither injuries nor mortality of marine
mammals is authorized for the
SURTASS LFA sonar activities.
Moreover, the MMPA directs the
Secretary of Commerce (whose authority
has been delegated to NMFS) to allow,
upon request, the incidental taking for
a specified activity, provided that we
are able to make the required findings
under section 101(a)(5)(A) and set forth
regulations containing the required
prescriptions for mitigation, monitoring,
and reporting after notice and comment.
Therefore, these comments were not
considered further. The remaining
comments are addressed below.
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the Offshore Sri Lanka, Andaman Sea,
Northwestern Australia, and Northeast
Density Estimates
of Japan (humpback whales only)
Comment 1: The Marine Mammal
modeling areas the specific data source
Commission (hereafter ‘‘Commission’’)
(e.g., Kaschner et al., 2006 or SMRU
expressed concerns regarding the
Ltd., 2012) is also referenced. NMFS
density estimates used in Navy’s Global coordinated closely with the Navy in
Marine Species Density Database
the development of its incidental take
(Global NMSDD). The Commission and
application, and agrees that the methods
The Commission and Natural Resources the Navy has put forth described herein
Defense Council (NRDC), The Humane
to estimate densities are appropriate and
Society of the United States, and
based on the best available science.
Humane Society Legislative Fund
Comment 2: The Commission and
(hereafter ‘‘NRDC et al.’’) recommended NRDC et al. recommended that NMFS
that NMFS require the Navy to make
specify whether and how uncertainty
available to the public the resulting
was incorporated in abundance and
products of the current version of the
density estimates in the preamble to the
Global NMSDD, similar to the
final rule and, if it was not, that NMFS
information provided in Department of
require the Navy to incorporate
the Navy (2017c), as soon as possible.
measures of uncertainty inherent in the
The Commission noted that they have
underlying data (e.g., CV, standard
requested for several years that this
deviations, standard errors) in those
information be made available to the
estimates and re-estimate the numbers
public and are puzzled why neither the
of takes accordingly in the final rule.
Navy nor NMFS has provided it. The
The Commission noted that for all of the
Commission asserted that without
Navy’s Phase III activities since 2016,
public access to such data, the process
including for Hawaii-Southern
is not transparent and there is no basis
California Training and Testing (HSTT),
to assert that either NMFS’ or the Navy’s the Navy has incorporated uncertainty
analyses are based on best available
in the densities and the group size
data.
estimates that ultimately seed its animat
Response: Currently, the NMSDD is
modeling. It is unclear why the same
not publically available since
approach was not taken for SURTASS
proprietary geospatial modeling data are LFA sonar, particularly since the action
included in the database, for which the
areas for HSTT and SURTASS LFA
Navy has established proprietary data
sonar overlap.
sharing agreements. However, products
Response: Information on uncertainty
of the Navy’s database have been made
(e.g., CV, standard deviations, standard
available to the public, such as the U.S.
errors, etc.) in species/stock population
Navy Marine Species Density Database
estimates for each modeling area is
Phase III for the Hawaii-Southern
included when available in the 2019
California Training and Testing Study
SURTASS LFA FSEIS/SOEIS (Chapter 3
Area (DoN, 2017c). The citations for the and Appendix D). The population
sighting surveys or other data upon
estimates provided in the 2019
which the densities were derived in the SURTASS LFA FSEIS/SOEIS (Chapter 3
NMSDD have been provided when
and Appendix D) were used to model
appropriate, and information similar to
estimated takes using the Acoustic
that presented in the U.S. Navy Marine
Integration Model (AIM) (described in
Species Density Database Phase III for
the Estimated Take of Marine Mammals
the Hawaii-Southern California Training section). The AIM is a Monte Carlo
and Testing Study Area (DoN, 2017c) is based statistical model in which
provided in the 2019 SURTASS LFA
multiple iterations of realistic
FSEIS/SOEIS (Chapter 3 and Appendix
predictions of acoustic source use as
D) for the 15 Representative Modeling
well as animal distribution and
Areas in the SURTASS LFA sonar Study movement patterns (‘‘animats’’) are
Area. Chapter 3, Section 3.4.3.3.3
conducted to provide statistical
describes the process and methods used predictions of estimated impacts from
to derive marine mammal occurrence
exposure to acoustic source
and population estimates (abundance
transmissions. AIM does not include
and density) in the model areas.
uncertainty in population estimates to
Appendix D includes detailed
predict estimated takes, however
information on the available data and
uncertainty in the horizontal and
abundance and density estimates by
vertical movement patterns of marine
model area and species/stock and these
mammals is incorporated through the
references are also included in the
Monte Carlo components of the AIM. At
marine mammal species, stocks (DPSs),
each 30-sec timestep, the diving pattern,
swim speed, and heading of each animat
abundance, and density estimates by
season summary table (Chapter 3, Table are re-sampled, resulting in movement
3–8). When the NMSDD is referenced in of each animat through the acoustic
Impact Analysis
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field. In the AIM, the modeled marine
mammal animats were set to populate
the simulation area with densities of
0.086, 0.17, or 0.34 animats/nmi2 (0.025,
0.05, or 0.1 animats/km2). These
densities are often higher than those
estimated in the marine environment (as
many species/stocks are rare in
modelled areas). This ‘‘over population’’
of the modeling environment ensures
that the result of the simulation is not
unduly influenced by the chance
placement of a few simulated marine
mammals. To obtain final harassment
estimates, the modeled results are
normalized by the ratio of the modeled
animat density to the real-world marine
mammal density estimate. This allows
for greater statistical power without
overestimating risk. Additional details
on the methods used to calculate take
estimates are included in the Estimated
Take of Marine Mammals section.
NMFS considers these estimates
conservative as take estimates are based
on the maximum potential impact to a
species or stock across all model areas
in which a SURTASS LFA sonar activity
may occur. Therefore, if an activity
occurs in a different model area than the
area where the maximum potential
impact was predicted, the actual
potential impact may be less than
estimated. Here, the densities and
modeling used reflect the best available
science and, further, monitoring of
SURTASS activities from the past 17
years of activities do not suggest that
these models have underestimated
marine mammal exposure.
Comment 3: NRDC et al.
recommended that NMFS consider
alternative and potentially more
powerful modeling approaches that are
emerging to extrapolate cetacean
densities beyond surveyed regions
(Corkeron et al., 2011; Lambert et al.,
2014; Mannocci et al., 2015) which are
likely to be superior to the Kaschner et
al. (2006) model (and more consistent
with the prior recommendations of
NMFS biologists) that the Navy has
relied on in the past. They
recommended that the Navy should
consult with NMFS experts on the
utility of these models for estimating
densities within the LFA Study Area.
They also recommended that NMFS
examine the data collected during the
International Whaling Commission’s
Pacific Ocean Whale and Ecosystem
Research Programme (IWC–POWER)
2010, 2013, 2014, 2015, and 2016
surveys with the view to developing
improved marine mammal density
models for regions of the western and
central Pacific.
Response: NMFS is aware of the
active area of research in developing
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density models for data poor areas that
extrapolate cetacean densities beyond
surveyed regions. For example, the
Navy and NMFS were reviewers of, and
used, the results of Mannocci et al.
(2017) in the U.S. Navy’s Atlantic Fleet
Training and Testing (AFTT) Study
Area NEPA analysis and MMPA
rulemaking. NMFS and the Navy will
continue to discuss and examine the
utility of these emerging models for
estimating densities of marine mammals
in the SURTASS LFA sonar Study Area.
It is possible that the sighting results
from the IWC–POWER cruises could be
used to extrapolate density and
abundance estimates throughout the
North Pacific in the future, using the
methods developed by Mannocci et al.
(2015) that were applied to extrapolate
density estimates in the North Atlantic
(Mannocci et al., 2017). Cruise reports
through 2017 are available online, with
cruises continuing for another few
years. When additional results are
available, NMFS and the Navy will
consider use of these methods to
extrapolate density and abundance
estimates that could inform mitigation
through Adaptive Management process,
or to inform analyses for future actions.
Lambert et al. (2014) used the simulated
distribution of micronekton from the
Spatial Ecosystem And Population
Dynamics Model (SEAPODYM) to
predict the habitat of three cetacean
guilds in tropical waters. While their
results provide some interesting insights
into the use of predicted prey maps in
cetacean distribution models, they are
best used to prioritize future research
areas. Corkeron et al. (2011) developed
statistical methods for using spatially
autocorrelated sighting results to
identify the Dhofar coast of Oman as an
important region for the Arabian Sea
DPS of humpback whales. However, the
Dhofar coast of Oman is outside of the
SURTASS LFA sonar Study Area and
Corkeren et al. state ‘‘Although it is
theoretically possible for us to project
model predictions into other areas, we
consider this inadvisable, as our basic
design was not to make inference about
the distribution of humpback whales
along the entire Oman coast.’’ Therefore,
though its statistical models could be
applied to sightings data within the
SURTASS LFA Study Area, these
humpback whale results are not
applicable. When considering how to
predict marine mammal densities across
large spatial scales using many varied
datasets, there are often multiple
appropriate and effective ways that data
can be modeled and extrapolated, and
NMFS does not prescribe any particular
model in these cases, as long as our
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40139
review indicates that the proposed
method is supportable. Here, the
densities and modeling used reflect the
best available science and, further,
monitoring of SURTASS activities from
the past 17 years of activities do not
suggest that these models have
underestimated marine mammal
exposure.
Comment 4: The Commission
recommended that, in the preamble to
the final rule, NMFS specify how
density estimates were derived and
what statistic (e.g., mean, median,
maximum) was used when multiple
sources are referenced in Tables 2–16 of
the Federal Register notice and Table 3–
2 of the revised LOA application.
Response: We have included the
density estimate and associated
reference or references for each species/
stock in each of the 15 Representative
Modeling Areas in the SURTASS LFA
sonar Study Area in Tables 2 through 16
of this rule. Additional details on the
densities used for each species/stock in
each modeling area are provided in the
2019 SURTASS LFA FSEIS/SOEIS
(Chapter 3, Table 3–8 and Appendix D).
In Chapter 3, Table 3–8 2019 SURTASS
LFA FSEIS/SOEIS, multiple references
are provided to reflect references used
to support the population density
estimate and seasonality of occurrence.
In Tables 2–16 of this rule we have
included only the reference to the
density estimate. Appendix D of the
2019 SURTASS LFA FSEIS/SOEIS
includes detailed descriptions and
references for each species/stock in each
of the model areas that include how
each density estimate was derived. In
response to this comment the Navy has
also reviewed and revised the
descriptions in Appendix D of the 2019
SURTASS LFA FSEIS/SOEIS to increase
clarity.
Comment 5: With respect to estimated
densities of cetaceans in Offshore Guam,
the Commission recommended that
NMFS use the densities stipulated in
Department of the Navy (2018b) for blue
whales, Bryde’s whales, fin whales,
ginkgo-toothed beaked whales, and
Deraniyagala’s beaked whales rather
than the densities in Table 5 of the
Federal Register notice and re-estimate
the numbers of takes accordingly in the
final rule.
Response: As recommended, we have
revised the densities for blue whales,
Bryde’s whales, fin whales, ginkgotoothed beaked whales, and
Deraniyagala’s beaked whales to those
presented in the U.S. Navy marine
species density database Phase III for
the Mariana Islands Training and
Testing Study Area (DoN, 2018b) and
have revised our estimated takes of
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these species/stocks in the Offshore
Guam modeling area accordingly.
Comment 6: NRDC et al.
recommended that NMFS require the
Navy to conduct baseline research in
unsurveyed areas that it repeatedly
employs in LFA sonar operations,
prioritizing areas on the basis of
exposure frequency, environmental
vulnerability, and research feasibility.
Response: Per the Council on
Environmental Quality (CEQ) regulation
40 CFR 1502.22, the Navy has indicated
plainly in the 2019 SURTASS LFA
FSEIS/SOEIS where data or information
are lacking to support Navy analyses
and how the Navy has resolved the
issue of scarcity of data/information
(i.e., surrogate data/information). The
Navy is not required to conduct costly
baseline research, such as that
suggested, to obtain incomplete or
unavailable data and information for
areas in which the Navy operates LFA
sonar (CEQ Regulation 1502.22).
Further, the ESA and MMPA only
require that a Federal agency consider
the best available data, and do not
require the agency generate the data
itself. However, as noted in this rule, the
Navy does fund ongoing research and
conservation related to marine
mammals. The Navy sponsors a
significant portion of the U.S. research
on the effects of human-generated sound
on marine mammals (between
approximately 25 to 30 million dollars
per year on marine mammal research
from the Navy’s three main programs:
Office of Naval Research, Living Marine
Resources Program, and the Fleet/
SYSCOM monitoring programs), which
is crucial to the overall knowledge base
on the potential for effects from
underwater anthropogenic noise on
marine mammals (82 FR 19460, 19516;
April 27, 2017). See Office of Naval
Research (https://www.onr.navy.mil/)
and Navy Living Marine Resources
program (https://
navysustainability.dodlive.mil/
environment/lmr/) for examples of Navy
support research. The Navy also
sponsors research to determine marine
mammal abundances and densities for
all Navy ranges and other operational
areas (see Marine Species Monitoring
Program: https://www.
navymarinespeciesmonitoring.us/). As
described in the Description of Marine
Mammals in the Area of the Specified
Activities section of the rule and
Chapter 3 and Appendix D of the
SURTASS LFA FSEIS/SOEIS, the Navy
used a combination of density estimates
from a region with similar
oceanographic characteristics to that
model area, estimates derived from the
Navy’s Marine Species Density Database
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(DoN, 2018), and pooled density
estimates for species of the same genus
if sufficient data were not available to
compute a density for individual
species or the species are difficult to
distinguish at sea (e.g., Mesoplodon spp.
and Kogia spp.) to inform their analyses
in unsurveyed areas, which NMFS
concurred represented the best available
science.
Permanent Threshold Shift (PTS)/
Temporary Threshold Shift (TTS)
Thresholds and Take Estimates
Comment 7: The Commission
recommended that NMFS (1) specify the
numbers of model-estimated Level A
harassment (PTS) takes of marine
mammals in the absence of
implementing mitigation measures and
any and all assumptions (including
within the animat modeling scenarios)
that were made to reduce those takes to
zero in the preamble to the final rule
and (2) authorize the model-estimated
Level A harassment (PTS) takes rather
than reducing them to zero in the final
rule. The Commission stated that
specifics regarding the situations in
which those takes were estimated to
occur (i.e., distances to the source and
timeframe over which the exposure
occurred) should be delineated in the
preamble to the final rule as well.
Response: The Navy quantitatively
assessed the potential for PTS and TTS
resulting from exposure to SURTASS
LFA sonar transmissions using NMFS’
2018 Acoustic Technical Guidance for
estimating impacts of PTS and TTS
using AIM. In AIM the potential for PTS
is considered within the context of the
mitigation and monitoring efforts that
would occur whenever SURTASS LFA
sonar is transmitting. Mitigation
monitoring is designed to detect marine
mammals before they are exposed to a
received level of 180 dB re: 1 mPa SPL.
The probability of detection of a marine
mammal by the HF/M3 system alone
within the LFA sonar mitigation zone
approaches 100 percent over the course
of multiple pings (see the 2001
SURTASS LFA FOEIS/EIS, Subchapters
2.3.2.2 and 4.2.7.1 for the HF/M3 sonar
testing results as well as section 5.4.3 of
the 2019 SURTASS LFA FSEIS/SOEIS
for a summary of the effectiveness of the
HF/M3 system). As described in the
Estimated Take of Marine Mammals
section, with the implementation of the
three-part monitoring programs (visual,
passive acoustic, and HF/M3
monitoring, as discussed below), NMFS
and the Navy do not expect that marine
mammals would be injured by
SURTASS LFA sonar because a marine
mammal is likely to be detected and
active transmissions suspended or
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delayed to avoid injurious exposure.
Therefore, in incorporating mitigation,
AIM assumes no animats will be
exposed to SURTASS LFA sonar in the
LFA sonar mitigation zone. AIM records
the exposure history for each individual
animat and the potential impact is
determined on an individual animal
basis. The sound energy received by
each individual animat over the 24-hr
modeled period was calculated as sound
exposure level (SEL) and the potential
for that animal to experience PTS and
then TTS was considered using the
NMFS (2018) acoustic guidance
thresholds. When mitigation is applied
in the modeling-analysis environment,
estimations of PTS impacts were 0 for
all marine mammal species in all model
areas.
Therefore, the Navy did not request
and NMFS is not authorizing Level A
harassment take. As presented in the
Estimated Take of Marine Mammals
section, based on simple spherical
spreading (i.e., transmission loss based
on 20 × log10 [range {m}]), all hearing
groups except LF cetaceans would need
to remain within 22 ft (7 m) for the
entire duration (60 sec) of an LFA sonar
ping to potentially experience PTS. LF
cetaceans would need to remain at the
greatest distance from the transmitting
LFA sonar, 135 ft (41 m) before
experiencing the onset of PTS. This
distance is well within the LFA sonar
mitigation zone and a distance where
visual, passive, and acoustic monitoring
can reliably detect small and large
marine mammals 100 percent of the
time and transmission can shut down
before any injury can occur. NMFS has
determined that the suite of mitigation
monitoring efforts is highly effective at
detecting marine mammals and
avoiding Level A take and notes that
there have been no reported or known
incidents of Level A harassment of any
marine mammal in 17 years of
SURTASS LFA sonar activities.
Therefore, NMFS has determined that
authorizing Level A harassment take is
not warranted.
Comment 8: The Commission
recommended that NMFS explain why
TTS takes are greater than behavior
takes for some species of mysticetes, or
stocks of mysticetes within the same
species, in the preamble to the final
rule.
Response: The estimated Level B
harassment takes presented in Chapter 4
of the 2019 SURTASS LFA FSEIS/
SOEIS are correct. Table 18 in this final
rule presents total Level B Harassment
takes (including both behavioral
disruption and TTS). In the vast
majority of mysticete species/stocks,
estimated takes by behavioral disruption
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are greater than estimated incidents of
TTS; however, in a few cases the
predicted numbers of TTS are higher
than the estimated takes by behavioral
disruption. This is due to the way these
two impacts are assessed. The TTS
acoustic threshold level is based on
cumulative SEL metric and a take
occurs when a marine mammal exposed
to sounds above the threshold level (a
step function where 0 is no take and 1
is a take for each individual). Behavioral
response is calculated for each
individual on a continuum from 0 to 1
based on the marine mammals single
ping equivalent (SPE) value. Therefore,
many more marine mammals may be
(and typically are) exposed at sound
(SPE) levels with a very low risk for a
behavior response (less than 1). When
these risk values are summed to
calculate the estimated take due to
behavioral response, the result may be
an estimate that is lower than the
estimate for TTS. In their response to
comments in the SURTASS LFA FSEIS/
SOEIS, the Navy provides the following
example to illustrate: If the blue whale
has a hypothetical population estimate
of 10 individuals, one animal may
experience TTS, five may have some
percent risk of a behavioral response,
and four may not be impacted.
Estimating take, one animal is predicted
to experience TTS. The five animals in
the population have potential
behavioral response (risk values) of 0.5,
0.2, 0.05, 0.04, and 0.01. When summed,
this is 0.8 for the entire population.
Therefore, the risk of TTS (1 animal) is
greater than the risk of behavioral
response (0.8 animal), but the number of
animals experiencing TTS (one) is less
than the number that have the potential
to experience a behavioral response
(five).
Behavioral Harassment Thresholds and
Take Estimates
Comment 9: With respect to SPE as
the metric to estimate behavioral
response, the Commission
recommended that NMFS use either (1)
a metric (i.e., SPL or sound exposure
level (SEL)) and associated thresholds
that are based on physics rather than
SPE or (2) the behavioral response
metrics and thresholds that the Navy
currently uses for all other LF sonar
sources based on Department of the
Navy (2017b) to estimate behavior takes
for the final rule. NRDC et al. also stated
that given the lack of any tenable
justification for maintaining an SPE
approach, NMFS, and the Navy, should
use the more widely accepted, more
conservative SEL in determining the
effect of multiple exposures on marine
mammals.
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Response: The behavioral risk
function is based on field measurements
of behavioral responses of mysticetes
during the SURTASS LFA Sonar Low
Frequency Sound Scientific Research
Program (LFS SRP). SPE was developed
by researchers in the LFS SRP to
account for received energy from all
LFA sonar transmissions that a modeled
animal (‘‘animat’’) receives during a 24hr period of a SURTASS LFA sonar
mission. SPE was also designed to
approximate the manner in which the
effect of repeated exposures accumulate,
as known from studies on humans
(Kryter, 1985; Richardson et al., 1995;
Ward, 1968). SPE accounts for the
increased potential effect of repeated
exposures on animals by adding 5 x
log10 (number of pings) to each 1-dB
received level (RL) increment (Kryter,
1985; Richardson et al., 1995; Ward,
1968). If an individual’s exposure
within a 24-hour period is dominated by
a single loud pulse, the SPE will not be
greater than the SPL (rms) of that single
loud pulse. However, if there are two or
more pulses of the same amplitude, the
calculated SPE will be greater than the
SPL (rms) of a single pulse because the
SPE metric accounts for accumulation,
and SPL does not. Therefore, the
calculated SPE is never lower than the
SPL rms of the loudest pulse.
The SEL metric is used to determine
physiological effects (PTS and TTS) and
the Navy’s rulemaking and LOA
application, as well as this final rule,
use the SEL metric to estimate these
impacts as described in the NMFS’ 2018
Acoustic Technical Guidance. Research
indicates that behavioral responses are
context specific and due to both
received level and a suite of other
factors including behavioral context. All
other applicants use SPL thresholds for
assessing Level B harassment by
behavioral disruption, and the Navy
uses SPL based risk functions for all of
its other training and testing activities,
which utilize sound sources of shorter
pulse lengths. Since SPE allows for a
consideration of the duration of a signal
and is always more conservative than
SPL rms values, it is equal to or more
conservative than an SPL based risk
function and NMFS concurs with its use
with SURTASS LFA sonar.
Although the LFS SRP study is from
the late 1990s, the source used was the
most similar in source characteristics
and operating parameters to the
SURTASS LFA sonar source, and most
closely matches the nature and context
of the Navy’s current activity.
Specifically, the multiple LF sources
that may be used in the Navy’s major
training exercises (such as AFTT and
HSTT) include sources that are operated
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differently, are operated at different
frequencies, and are only one
component of any training activity —
and for these reasons, the Navy and
NMFS found it appropriate to apply the
thresholds and modeling utilized for the
other active Navy sources. However, for
SURTASS, the results of the LFS SRP
remain the best available data for the
purpose of predicting potential impacts
from exposure to SURTASS LFA sonar
as they evaluated the behavioral
responses of LF hearing specialists
conducting biologically important
behaviors to exposures of SURTASS
LFA sonar. NMFS and the Navy have
evaluated the science conducted with
other sound sources (e.g., mid-frequency
sonar, the European ‘‘low-frequency
active sonar’’ that operates at 1–2 and 6–
7 kHz) and no newer data change the
prediction of expected behavioral
responses.
Comment 10: The Commission
recommended that NMFS and the Navy
prioritize conducting a behavioral
response study (BRS) using updated
BRS methods involving SURTASS LFA
sonar and mysticetes, other odontocetes
including sperm whales, and/or phocids
under the monitoring requirements for
the final rule and ensure that the
behavior thresholds are able to be
updated accordingly before the next
rulemaking.
Response: The Navy has agreed to
evaluate the feasibility and appropriate
methods to collect new data to
supplement the data available on
behavioral responses of marine
mammals to SURTASS LFA sonar using
newer methods and technologies. These
types of scientific inquiries fit within
the scope the Navy’s Living Marine
Resources (LMR) program. The LMR
program weighs the various Navy
research needs against each other
through a needs and solicitation
process. The Navy has submitted a
needs statement to the LMR advisory
committee to research future data
collection that would supplement
understanding of how SURTASS LFA
sonar may affect marine resources,
including mysticetes and beaked
whales.
Comment 11: NRDC et al. noted that
the proposed rule analysis relies
entirely on the LFA Scientific Research
Program (SRP) in establishing
behavioral risk parameters for the
SURTASS LFA system. They noted that
study took place twenty years ago and
is inconsistent with more recent science
on the behavioral response of marine
mammals to low-frequency underwater
noise. They stated that reliance on the
SRP to the exclusion of all other
scientific literature on the impacts of
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low-frequency sound would be arbitrary
and capricious. NRDC et al. noted that
marine mammal science, including the
technology used to study behavioral
response to underwater noise, has
advanced significantly over the two
decades since the SRP concluded. They
stated that the tags used in the SRP were
Time-Depth Recorders, which, in
rendering only depth profile, are
primitive by comparison with
contemporary marine mammal tags,
which include accelerometers,
magnetometers, and hydrophones. The
newer tags provide far greater capacity
to track alterations in animal
orientation, velocity, and noise
production, and therefore to detect
disruptions in marine mammal feeding
and other behaviors. Additionally, they
noted that the SRP’s sample sizes were
small, focal species were limited, and
the LFA system was generally operated
at less than full power. They noted that
new technologies and methods indicate
limitations of the Navy’s research. They
cited studies that observed reductions in
buzz rates in sperm whales and harbor
porpoises that could not have been
observed without newly available
technology (Miller et al., 2009; Pirotta et
al., 2014).
Response: As noted in the response to
Comment 9, the data collected during
the SURTASS LFA sonar LFS SRP
studies remain the best available data
for predicting behavioral responses to
SURTASS LFA sonar. However, NMFS
and Navy also considered other relevant
studies on the potential effects of LF
sound transmissions on marine
mammals. None of these other studies
contradict the conclusions of the LFS
SRP (see the Potential Effects of the
Specified Activity on Marine Mammals
and their Habitat section in the
proposed rule and Chapter 4 of the 2019
SURTASS LFA FSEIS/SOEIS for
descriptions of studies). While we
acknowledge the age of the SURTASS
sonar LFS SRP data, the age of these
data does not invalidate them, their
contributions to science, nor the
conclusions based upon those data. It is
true that the technology and techniques
available to gather marine animal data
have become increasingly diverse and
sophisticated over time and that LFS
SRP sample sizes were small. The
commenter points out the sorts of data
that may be gathered utilizing new
technologies and cites to the
‘‘limitations’’ of the SRP. NMFS
acknowledges that newer methods may
allow for additional data collection,
however, in the meanwhile, NMFS and
the Navy have considered all of the
data, LFS SRP and otherwise, that are
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applicable to the SURTASS LFA sonar
assessment and are aware of no basis to
invalidate the overall results of the SRP.
As noted in the response to Comment
10, the Navy will evaluate the feasibility
and appropriate methods to collect new
data to supplement the data available on
behavioral responses of marine
mammals to SURTASS LFA sonar.
Comment 12: NRDC et al. noted that
the Navy claims that the SRP remains
more relevant than the host of more
recent investigations because it is the
only study of a tonal source operating at
frequencies below 500 Hz. The
commenters noted that researchers in
the Stellwagen Bank National Marine
Sanctuary documented suppression in
humpback whale vocalization during
operations of an Ocean Acoustic
Waveguard Remote Sensing (OAWRS)
system, a powerful low-frequency fish
sensor operating at similar frequencies,
at distances of 200 km from the source
(Risch et al. 2012). The Heard Island
Feasibility Test, which likewise
involved a tonal sound source operating
below 500 Hz, reported complete
cessations in vocalizations of longfinned pilot whales and sperm whales
over a 4900 km2 area following
exposure (Bowles et al. 1994). They
stated that these papers join a spate of
other studies documenting large-scale
changes in baleen whale vocalizations
and those of other species in response
to predominantly low-frequency
anthropogenic noise (Nowacek et al.,
2015) and that the best available science
indicates that the Navy’s behavioral
response function for LFA, promulgated
by NMFS in the Proposed Rule, is nonconservative.
Response: We disagree that the LFA
sonar behavioral response function is
non-conservative. Discussion of
additional studies on the behavioral
responses of marine mammals to a
variety of sound sources are provided in
the Potential Effects of the Specified
Activity on Marine Mammals and their
Habitat section in the proposed rule and
Chapter 4 of the 2019 SURTASS LFA
FSEIS/SOEIS. As discussed in the
proposed rule, the potential for
behavioral response to an anthropogenic
source is highly variable and contextspecific. Also, as discussed in the
proposed rule, the recorded OAWRS
produced a series of frequencymodulated pulses and signal received
levels. Risch et al. (2012) documented
reduction in humpback whale
vocalization concurrent with
transmissions of the low-frequency
OAWRS system at distances of 200 km
(108 nmi) from the source. The OAWRS
source appears to have affected more
whales than Phase III of the LFS SRP,
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even though exposure was at a lower RL
(88 to 110 dB re: 1 mPa), which the
authors noted was a novel sound source
that provided a compelling contextual
probability for the observed effects.
Gong et al. (2014) assessed the effects of
the OAWRS transmissions on calling
rates on Georges Bank and determined
constant vocalization rates of humpback
whales, with a reduction occurring
before the OAWRS system began
transmitting. Risch et al. (2014) pointed
out that the results of Risch et al. (2012)
and Gong et al. (2014) are not
contradictory, but rather highlight the
principal point of their original paper
that behavioral responses depend on
many contextual factors, including
range to source, RL above background
noise level, novelty of signal, and
differences in behavioral state. Further,
the authors did not state or imply that
the observed behaviors had long-term
effects on individual animals or
populations. The responses of whales to
the OAWRS system are consistent with
the LFA behavioral response function,
as it estimates that behavioral changes
can occur at received levels lower than
180 dB. Results from the Heard Island
Feasibility Test (Bowles et al., 1994)
show that during the pre-experiment
baseline period, sperm whales were
detected 24 percent of the time and
short-finned pilot whales were detected
eight percent of the time. During nighttime recordings during the baseline
period, sperm whales were detected
eight percent of the time and pilot
whales were detected zero percent of
the time. Neither species was detected
during the low-frequency transmissions,
but both species were detected 36 h
after transmissions ended. It is not
known whether sperm and pilot whales
were masked during the transmissions
or whether they ceased vocalizing.
Since sperm whales frequently become
silent in the presence of anthropogenic
noise (Watkins and Schevill, 1975;
Watkins et al., 1985), it is possible they
exhibited a behavioral response.
NMFS concurs with the use of the
Navy’s behavioral response function
and that it conservatively estimates
Level B harassment takes. There is no
indication that this method
underestimates take. While the entire
ensonified area cannot be monitored
(using visual or passive and active
acoustic monitoring), marine mammal
observations during SURTASS LFA
sonar activity and those predicted using
annual activity level and location
indicate the Navy has never exceeded
authorized take for SURTASS LFA
sonar activities (with the first LOA for
SURTASS LFA sonar activities
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beginning in August 2002). The
potential for behavioral response to an
anthropogenic source is highly
dependent on context, including
characteristics of the sound signals and
their pattern of transmission, the
environmental factors affecting sound
movement, and the behavioral state of
the animal during exposure. Further,
not every response of a marine mammal
rises to the level of a take, and some of
the responses cited by the commenter
would not necessarily do so (e.g., minor
modifications in vocalizations of a
duration shorter than exposure to the
signal). As previously noted, the
SURTASS LFS SRP exposed LF
specialist cetaceans engaged in
biologically important behaviors to realworld SURTASS LFA sonar
transmissions; the SRP results remain
the best available science for assessing
potential impacts associated with
exposure to SURTASS LFA sonar. The
SURTASS LFS SRP experiments
exposed baleen whales to RLs ranging
from 120 to about 155 dB re: 1 mPa rms
SPL and detected only minor, shortterm behavioral responses. Short-term
behavioral responses do not necessarily
constitute significant changes in
biologically important behaviors. The
behavioral response function is also
conservative for non-LF specialists, as it
was developed for species believed to be
most sensitive to SURTASS LFA sonar.
Therefore, although the results of the
risk function modeling are interpreted
such that they would constitute
‘‘significant disruptions to biologically
important behaviors,’’ (i.e., causing
disruption of natural behavioral
patterns, including, but not limited to,
migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where
such patterns are abandoned or
significantly altered) not all predicted
exposures would in fact rise to such a
level, and the resulting risk function
modeling is conservative for all marine
mammals.
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Mitigation and Monitoring
Least Practicable Adverse Impact
Determination
Comment 13: The Commission noted
that NMFS’ interpretation of the least
practicable impact standard in various
proposed rules has been an evolving
one, and it is unclear that any of those
discussions, targeted to specific
instances, should be considered to
constitute a formal interpretation.
Rather, it is a shifting target that
requires the Commission and other
stakeholders to comment repeatedly on
the various permutations. The
Commission stated that such generally
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applicable policies and interpretations
should be developed through a separate
rulemaking (e.g., in amendments to 50
CFR 216.103 or 216.105) or policy
statement rather than in individual
incidental take authorizations and
recommended that NMFS pursue such a
rulemaking or publish a proposed
policy for public review and comment.
The Commission expressed concerns
that some stakeholders may not be
aware of or choose not to comment on
the proposed interpretation in this
context, because the particular
authorization may not otherwise be of
interest to them (e.g., because the
activity is in a geographical location or
concerns a type of activity not of
particular interest).
Response: We appreciate the
Commission’s recommendation and
may consider the recommended
approaches in the future. We note,
however, that providing relevant
explanations in a proposed incidental
take rule is an effective and efficient
way to provide information to the reader
and solicit focused input from the
public, and ultimately affords the same
opportunities for public comment as a
stand-alone rulemaking would. NMFS
has provided similar explanations of the
least practicable adverse impact
standard in other recent section
101(a)(5)(A) rules, including: the final
rules for U.S. Navy Training and Testing
Activities in the Atlantic Fleet Study
Area (83 FR 57076; November 14, 2018)
and the Hawaii-Southern California
Study Area (83 FR 66846; December 21,
2018), as well as the proposed rule for
Geophysical Surveys Related to Oil and
Gas Activities in the Gulf of Mexico (83
FR 29212; June 22, 2018).
Comment 14: The Commission stated
that in its previous letters it
recommended that NMFS adopt a twostep approach when applying the least
practicable adverse impact standard.
First, it should identify the criteria it
will use to determine whether adverse
impacts on marine mammal species/
stocks or their habitat are anticipated. If
potential adverse impacts are identified,
the second step should be to determine
whether measures designed to reduce
those impacts are available and
practicable. The Commission expressed
concern that, because NMFS’ criteria for
applying the least practicable adverse
impact standard commingle elements
related to whether impacts are adverse
and whether potential mitigation
measures are likely to be effective,
NMFS’ analysis is not as clear as it
should be. The Commission therefore
recommended that NMFS rework its
evaluation criteria for applying the least
practicable adverse impact standard to
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40143
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.
Response: The Commission
recommends NMFS consider applicable
factors in its least practicable adverse
impact analysis in a specific manner.
However, it did not provide any
suggested criteria for determining its
recommended first step.
NMFS has clearly articulated the
agency’s interpretation of the LPAI
standard and our evaluation framework
in the Mitigation section of this notice.
Specifically, NMFS identified the
adverse impacts that it is considering in
the LPAI analysis and comprehensively
evaluated an extensive suite of measures
that might be available to reduce those
impacts (some of which are adopted and
some that are not) both in the context
of their expected ability to reduce
impacts to marine mammal species or
stocks and their habitat, as well as their
practicability (see Mitigation and
Negligible Impact Analysis and
Determination sections). In the
Mitigation section, NMFS has explained
in detail our interpretation of the least
practicable adverse impact standard, the
rationale for our interpretation, and our
approach for implementing our
interpretation. The ability of a measure
to reduce effects on marine mammals is
entirely related to its ‘‘effectiveness’’ as
a measure, whereas the effectiveness of
a measure is not connected to its
practicability. NMFS’ interpretation of
the LPAI standard is a reasonable
interpretation that gives effect to the
language in the statute and the
underlying legislative intent. Congress
intended the agencies administering
section 101(a)(5)(A) to consider
practicability when determining
appropriate mitigation, but we do not
believe the analysis must be conducted
in such a rigid sequential fashion. There
is a tension inherent in the phrase ‘‘least
practicable adverse impact’’ in that
‘‘least [. . .] adverse impact’’ pulls in
favor of one direction (i.e., expanding
mitigation) while ‘‘practicable’’ pulls in
favor of the other direction (i.e., limiting
mitigation), and weighing the relative
costs and benefits is, in our view, a
more meaningful way to address and
resolve this tension. Contrary to the
Commission’s suggestion, there is no
formulaic way to do this. As we
explained in the discussion of the LPAI
standard above using a simple
hypothetical example to illustrate the
point, means of minimizing adverse
impacts at the species or stock level is
not a black and white proposition.
Further, the standard is accomplished
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through mitigation imposed for
individuals—yet the standard does not
require that we minimize individual
takes or impacts to the maximum extent
practicable.
NMFS’ approach laid out in this
rulemaking acknowledges that, even
when the negligible impact standard is
met, NMFS must still consider
mitigation under the LPAI standard.
NMFS’ approach recognizes that
impacts to species or stocks of marine
mammals accrue through individuals
and, as such, allows for reducing
impacts on individuals, but with a focus
on measures designed to avoid or
minimize impacts on marine mammals
that are likely to increase the probability
or severity of population level effects.
The greater the likelihood that a
measure will contribute to reducing the
probability or severity of adverse
impacts to a species or stock, the greater
the weight that measure is given when
considered in combination with
practicability to determine the
appropriateness of a mitigation measure.
While the analysis we describe can be
conducted for each measure, we read
the ‘‘means of effecting the LPAI’’
standard as ultimately applying to the
totality of all required measures taken
together. Accordingly, NMFS can take
into account other measures that will be
implemented when considering the
benefit of additional measures. NMFS
has weighed the relevant considerations
as explained in its fuller discussion of
LPAI.
While the Ninth Circuit’s opinion in
Pritzker (83 F.3d 1125 (9th Cir. 2016))
did not directly address this question,
the Court appeared to view NMFS’
conceptual approach of weighing
various considerations as an acceptable
one. In response to our 2012 rule, where
we described our approach as including
‘‘a careful balancing of the likely degree
to which the measure is expected to
minimize adverse impacts to marine
mammals with the likely effect of that
measure on personnel safety,
practicality of implementation, and
impact on the effectiveness of military
readiness activity,’’ the Court said ‘‘this
formulation makes sense so far as it is
stated,’’ Pritzker, 828 F.3d at 1135
(emphasis added), though faulted NMFS
for not meaningfully discussing how the
measures it imposed would meet that
standard. The legislative history on the
2004 MMPA amendments for military
readiness activities provides further
support, in that it shows Congress
intended additional weighing for
military readiness impacts and placed
equal import on the military’s need to
conduct training activities. 2004
U.S.C.C.A.N. at 1447 (stating that the
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changes with the MMPA ‘‘properly
balance the equities associated with
military readiness and maritime species
protection’’).
Comment 15: The Commission stated
that section 101(a)(5)(A)(i)(II)(aa) of the
MMPA specifies that incidental take
regulations are to set forth permissible
methods of taking pursuant to such
activity, and other means of effecting
the least practicable adverse impact on
such species or stock and its habitat,
paying particular attention to rookeries,
mating grounds, and other areas of
similar significance. The Commission
stated that in this case, NMFS has only
identified in the most general sense the
means it will use to effect the least
practicable adverse impact—it will
identify and impose heightened
protections in as yet unidentified
OBIAs—and has provided no
information to assess when and where
NMFS believes it would be practicable
for the Navy to abide by those
exclusions. Only at the final rule stage
would NMFS generate a list of the areas
that meet the OBIA criteria, provide its
rationale for determining which areas
satisfy those criteria, and discuss
whether requiring the Navy to employ
mitigation measures in and near those
areas would be practicable. The
Commission stated that this approach is
inconsistent with how NMFS has
handled every previous rulemaking
involving the Navy’s activities, and
more importantly, is inconsistent with
the requirements of the Administrative
Procedure Act (APA), which requires
that NMFS give the public a meaningful
opportunity to comment on what the
agency is proposing. In this instance,
the public is not being given a
meaningful opportunity to comment on
which OBIAs are appropriate to include
in the final rule. Rather, commenters are
left to speculate on which OBIAs NMFS
might select and to comment in a
vacuum as to whether those would be
practicable for the Navy to meet its
operational goals if some or all of the
OBIAs that meet the criteria are
included in the final rule. The
Commission recommended that, in this
and other proposed rules, NMFS inform
the public what measures it is proposing
to include in the final rule to satisfy the
requirements of section
101(a)(5)(A)(i)(II)(aa) of the MMPA
rather than leaving the public to
speculate on all of the possibilities and
the practicability of implementing them.
Response: NMFS disagrees with both
the Commission’s description of the
lack of information that NMFS provided
the public in the proposed rule and the
assertion that it was inconsistent with
the requirements of the APA. NMFS
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described a clear proposed process and
detailed set of factors that would be
used to identify OBIAs, both prior to the
finalization of the rule, as well as
adaptively throughout the course of the
rule. Further, NMFS provided the
public with a carefully evaluated and
honed list (reduced from hundreds
considered, down to 25 presented) of
potential OBIAs that preliminarily met
the biological criteria (in addition to the
four that were already established for
the geographic areas included in the
Study Area) to provide input on. NMFS
systematically described these OBIA
candidates in the context of the OBIA
process and factors and indicated all of
the references from which the
supporting information was obtained.
The public was given adequate
information upon which to base input
on this mitigation, as required by the
APA. The fact that the practicability of
these areas for the Navy was not
discussed in the proposed rule did not
prevent the public from providing
meaningful input on the information
and potential OBIAs presented.
Comment 16: The Commission noted
that the analysis provided in the
Federal Register notice seems to
conflate the species and habitat portions
of the least practicable adverse impact
standard. NMFS discussed the
distinction between impacts on
individual marine mammals versus
impacts on species and stocks in some
detail. However, that distinction is
irrelevant when considering adverse
impacts to important marine mammal
habitat such as rookeries, mating
grounds, and areas of similar
significance. All of these types of areas
are important at the species or stock
level. Further, the Commission stated
that it believes all of the areas that meet
the OBIA designation criteria constitute
important habitat for purposes of
implementing section
101(a)(5)(A)(i)(II)(aa) of the MMPA and
that mitigation measures to avoid or
reduce adverse impacts to all of those
areas should be included in the final
rule unless such measures are not
practicable. The Commission therefore
recommended that, in the final rule,
NMFS again require that the Navy
ensure that none of the areas designated
as OBIAs (or the 1 km buffer zones
around them) are subjected to SURTASS
LFA sonar received levels of 180 dB re
1 mPa or greater. Further, because the
proposed rule did not include any
information that indicates it would be
impracticable for the Navy to adhere to
such a limitation for any of the OBIAs
under consideration, the Commission
recommended that this mitigation
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measure apply to all areas the
Commission recommended be
designated as OBIAs herein. If NMFS or
the Navy believes it would be
impracticable to implement the
identified measures in any of those
areas, then NMFS should make that case
in a subsequent Federal Register notice
and provide the public with an
opportunity to comment on any
proposed exceptions before adopting
them.
Response: NMFS disagrees with the
Commission’s assertion that NMFS
conflates the species and habitat
portions of the LPAI standard. NMFS
recognizes the LPAI standard includes a
requirement to prescribe measures that
will effect the least practicable adverse
impact on both the affected species or
stocks and their habitat. In our
description of implementation of the
standard, we state that reduction of
habitat impacts is relevant, particularly
as it relates to rookeries, mating
grounds, and areas of similar
significance, and can include measures
to reduce impacts of an activity on
known prey utilized in the area or
reducing impacts on physical habitat.
Our discussion of least practicable
adverse impact points out that because
habitat value is informed by marine
mammal presence and use, in some
cases there may be overlap in measures
for the species or stock and for use of
habitat. Here we have identified timearea restrictions based on a combination
of factors that include higher densities
and observations of specific important
behaviors of the animals themselves, but
these also clearly reflect preferred
habitat. In addition to being delineated
based on physical features that drive
habitat function (e.g., bathymetric
features, among others), the high
densities and concentration of certain
important behaviors (e.g., feeding) in
these particular areas clearly indicates
the presence of preferred habitat. Just
because the OBIAs address both marine
mammals and their habitat does not
mean that NMFS has conflated the two
pieces of the standard. The MMPA does
not specify that effects to habitat must
be mitigated in separate measures, and
NMFS has clearly identified measures
that provide for mitigation of impacts to
both marine mammal ‘‘species or stocks
and their habitat,’’ as required by the
statute.
Further, this rulemaking evaluated the
effects of SURTASS LFA sonar activities
on marine mammal habitat, specifically
including prey, and concluded that
marine mammal prey will not be
exposed to sustained duration and
intensity of sound levels that would
result in significant adverse effects to
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marine mammal food resources.
Accordingly, no additional mitigation
for habitat beyond the geographic based
measures identified to minimize
impacts on the affected species or stocks
while using/occurring in certain
preferred habitat (such as OBIAs), or the
coastal standoff range was warranted.
To the Commission’s last point, in
consideration of input from the public
and our final evaluation, NMFS
identified 17 areas (in the form of 14
OBIAs) as satisfying the necessary
biological and geographic qualifications
for OBIA designation and the Navy
found that the implementation of all of
these areas as OBIAs would be
practicable. Accordingly, all 14 OBIAs
are included in the final regulations.
Comment 17: NRDC et al. expressed
concern that NMFS, in its discussion of
the LPAI standard, has set forth an
interpretation that remains inconsistent
with the plain language of the MMPA
and with the Court’s ruling in Pritzker
(83 F.3d 1125 (9th Cir. 2016)). NRDC et
al. stated that the agency reserves its
consideration of mitigation measures to
those that ultimately ‘‘are likely to
increase the probability or severity of
population-level effects’’ (84 FR 7228),
and that it appears to base this
understanding on an imputation of
population-level harm into the ‘‘least
practicable adverse impact’’ standard,
and particularly into the standard’s
reference to ‘‘such species or stock.’’
NRDC et al. stated that the Court in
NRDC v. Pritzker specifically rejected
this assumption when the agency
attempted to import it into the statute
via its existing regulations concerning
‘‘negligible impact.’’ NRDC agreed with
NMFS that the reduction of impacts to
affected species or stocks ‘‘accrues
through the application of mitigation
measures that limit impacts to
individual animals’’ and, consistent
with this, ‘‘focuses on measures that are
designed to avoid or minimize impacts
on individual marine mammals’’ that, in
turn, ‘‘are likely to increase the risk of
population-level effects’’ (citing to 84
FR 7228). They cite as an example that
the agency recognizes measures
‘‘limiting interruption of known feeding,
breeding, mother/young, or resting
behaviors’’ as having ‘‘greater value’’ for
mitigation. However, NRDC stated that
NMFS’ formulation remains problematic
in practice. NRDC stated that in
detaching itself from the MMPA’s ‘‘take
provision,’’ it creates ‘‘vagueness that
leaves the provision open to
inconsistent, arbitrary application’’ and
that the proposed rule appears to
wander beyond the interpretation that
NMFS sets down when it rejects the
White Paper (Identifying Areas of
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Biological Importance to Cetaceans in
Data-Poor Regions) guidelines to
establish OBIAs in data-poor regions.
NRDC et al. state that the proposed rule:
‘‘does so on the grounds [. . .] that
establishing OBIAs would not further
reduce fitness consequences (i.e., ‘the
potential for impacts on reproduction or
survival’) in individual marine
mammals and thus would not reduce
the probability of population-level
harm. Id. at 7247. Yet this is an
ostensibly higher bar than is articulated
by the agency in its section interpreting
the least practicable adverse impact
standard, requiring actual reduction of
fitness impacts rather than reduced
disruption of behavioral responses
associated with fitness. Compare id. at
7229 (listing factors having ‘greater
value’ for mitigation to include ‘limiting
interruption of known feeding,
breeding, mother/young, or resting
behaviors’). Putting aside the
inconsistency with the statute,
discussed above, our practical concern
is that NMFS’ interpretation will be
used as a convenient legal defense—just
as it was in Pritzker—to prop up an
insufficient analysis. NMFS should
ensure that it applies the ‘‘least
practicable adverse impact’’ standard in
a manner that reduces the impacts (e.g.,
Level A and Level B harassment take)
that Congress intended to prohibit in
adopting the MMPA.’’
Response: NMFS’ interpretation and
implementation of the LPAI standard is
not inconsistent with the statute or the
Pritzker decision, as described in the
Mitigation section of this rule (and not
re-included here). We interpret the LPAI
standard as having a species or stocklevel focus but believe the reduction of
impacts to those species or stocks
accrues through the application of
mitigation measures that limit impacts
to individual animals. Accordingly,
NMFS’ analysis focuses on measures
that are designed to avoid or minimize
impacts on individual marine mammals
that are likely to increase the probability
or severity of population-level effects.
NMFS acknowledges that it is not a
mathematical formula; in evaluating a
measure, consideration of its value and
its practicability will necessarily
involve exercise of the agency’s
professional judgment taking into
account the specified activity and other
contextual factors. NMFS’ rule fully
discusses its evaluation applying the
standard it sets forth. Moreover, there is
no inconsistency in the standard and
the application in view of the full
discussion in this rule. The language
quoted in the comment cannot be
isolated from the context of the full
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discussion in the rule and then cited as
proof of inconsistency. Specifically, to
support its assertion, NRDC points to
our rationale for not adopting the
recommendations in the White Paper
(discussed in detail in the Mitigation
section). The comment mischaracterizes
our conclusions by suggesting our
reasoning is based solely on the fact that
the recommendations in the White
Paper will not further reduce fitness
consequences of individuals and thus
would not reduce population level
harm. This ignores the fuller discussion,
in which our assessment shows that the
proposed mitigation would add little, if
any, value for lowering the probability
or severity of impacts to individual
marine mammal fitness, but also that it
is highly impracticable for the Navy.
Thus, the White Paper
recommendations were not adopted
based on a straightforward application
of the LPAI standard.
Procedural Mitigation Effectiveness and
Recommendations
Comment 18: The Commission
recommended that, in the final rule,
NMFS require the Navy to (1) use a 30minute clearance time when a marine
mammal has not been observed to have
left the mitigation zone, consistent with
other Navy activities and (2) conduct
post-activity monitoring including
visual, passive acoustic, and active
acoustic monitoring for 30 rather than
15 minutes.
Response: A 30-minute post
monitoring timeframe is more widely
used in other authorizations mainly due
to the fact that marine mammal
detections are largely reliant on visual
surveys and this time accounts for
marine mammals with longer-duration
dives. In addition to visual and passive
acoustic monitoring, the HF/M3 (active
acoustic monitoring system) is used
with SURTASS LFA sonar activities.
Detection through active acoustics is
typically not used with authorizations
for other activities. However, given the
near 100 percent effectiveness of the
HF/M3 system with multiple pings (see
response to Comment 7), in combination
with the two other mitigation
monitoring efforts (visual and passive
acoustic monitoring), NMFS feels
confident that any marine mammals
present in the mitigation zone would be
detected within the 15-minute
timeframe.
Comment 19: The Commission noted
that it does not appear that the Navy has
conducted a study to investigate the
effectiveness of the suite of mitigation
measures currently being employed or
proposed for SURTASS LFA sonar
activities and that such a study would
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be prudent. The Commission noted that
determination of effectiveness has been
based solely on what has been
‘‘observed’’ via the three monitoring
methods and some theoretical
assumptions. True ‘‘effectiveness’’
studies evaluate not only the animals
that are detected, but also those that are
missed. The Navy is conducting a
lookout effectiveness study to assess the
effectiveness of visual monitoring. A
similar study, including the assessment
of both passive and active acoustic
monitoring, would provide a more
appropriate means than the Navy’s
current approach for concluding that the
measures are 100 percent effective.
Response: The effectiveness of the
HF/M3 sonar system to monitor and
detect marine mammals has been
assessed. Details on this assessment and
the effectiveness of the HF/M3 system
are provided in a technical report by
Ellison and Stein (2001), the 2001
SURTASS LFA FOEIS/EIS (see
subchapters 2.3.2.2 and 4.2.7.1 for the
HF/M3 sonar testing results), as well as
Chapter 4, Section 5.4.3 of the 2019
SURTASS LFA FSEIS/SOEIS. The study
qualitatively and quantitatively assessed
the HF/M3 system’s ability to detect
marine mammals of various sizes with
170 hours of at-sea testing, including
trials off the coast of San Diego with
trained bottlenose dolphins, as well as
several developmental tests with
artificial targets (which allowed for
examination of whether these methods
potentially miss animals). The results
indicate a near 100 percent probability
of detecting marine mammals before
they enter the LFA mitigation zone. As
noted by the commenter, the Navy
continues to assess the effectiveness of
its mitigation measures. The results of
any new studies will be assessed
through the Adaptive Management
process. NMFS acknowledges the
limitations associated with visual and
passive acoustic monitoring, but
together with the near 100 percent
effectiveness of active acoustic
monitoring with the HF/M3 sonar
system, NMFS has determined that
these mitigation monitoring measures
are highly effective.
Comment 20: NRDC et al. noted that
the proposed mitigation distance
resulting in sound pressure levels
within OBIAs and coastal exclusion
zones not to exceed 180 dB re 1 mPa
(rms) bears no relation to the Navy’s
behavioral response function, even
though the agencies have repeatedly
identified behavioral disruption as the
primary marine mammal impact of
concern from LFA sonar, or to any
qualitative assessment of stress response
or masking effects. NRDC et al. noted
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that it roughly reflects the Navy’s
threshold for the onset of auditory
injury per NMFS guidance. NRDC et al.
stated that the 180 dB threshold fails to
meaningfully protect marine mammals
from the behavioral impacts that the
agencies have repeatedly characterized
as the impacts of primary concern. They
noted that according to prior Navy
analysis, the 175–180 dB (rms) annulus
has an average ‘‘take’’ risk of 91.5
percent, the 170–175 dB (rms) annulus
a take risk of 80.5 percent, the 165–170
dB (rms) annulus a risk of 61.5 percent,
the 160–165 dB annulus a risk of 38.5
percent (rms), the 155–160 dB annulus
a risk of 18 percent, and the 150–155 dB
annulus a risk on the order of 8–9
percent (see 2007 SEIS at 4–74). They
stated that given the greater area
subsumed within the lower-decibel
annuluses, the number of takes
occurring within even the 150 dB
annulus can be high, despite the lower
relative risk. NRDC et al. stated that the
geographic sound field operational
constraints designed to eliminate LFA
exposures out to at least 150 dB (rms)
are likely to be practicable for most, if
not all, OBIAs, as the Navy already
avoids dive sites out to 145 dB (rms)
(DSEIS at 5–5), nominally requiring a
greater mitigation distance than a 150
dB (rms) standoff would entail. They
stated that the Navy’s broad claim of
impracticability for any mitigation
threshold lower than 180 dB
exemplifies the non-rigorous
rationalizing that the court in
Conservation Council found
unconvincing and unsupportable under
the MMPA (See 97 F.Supp.3d at 1229–
31). NRDC et al. stated that NMFS’
‘‘practicability criterion’’ requires a sitespecific discussion, with the Navy, of
any OBIA that the Navy initially
determines to be impracticable, to see if
a modification of the OBIA can address
the issue. They recommended that the
Navy and NMFS presumptively adopt a
150 dB (rms) mitigation distance from
each OBIA, except where geographically
specific, clearly stated operational needs
make such a distance impracticable, in
which case it should adopt the largest
practicable distance, to be determined
on a case-by-case basis according to the
procedure set forth in the ‘‘practicability
criterion.’’
Response: After the development of
NMFS’ 2018 Acoustic Technical
Guidance, NMFS and the Navy
reevaluated the use of 180 dB re: 1 mPa
rms as the basis for the LFA mitigation
zone and concluded that 180 dB would
be retained as the mitigation basis (see
the Mitigation section of this final rule
and Chapter 5, Section 5.2 of the 2019
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SURTASS LFA FSEIS/SOEIS for details
on this reevaluation). However, in
consideration of updated PTS and TTS
thresholds, the 180 dB threshold for the
OBIA and the coastal exclusion zone
boundaries is expected to preclude not
only PTS at the outer perimeter of these
areas, but also likely some instances of
TTS and more severe forms of Level B
harassment by behavioral disruption.
Moreover, the 180 dB threshold applies
at a distance 1 km from OBIA
boundaries, further reducing exposure
levels at the OBIA perimeters to
approximately 174 dB. In addition, the
likelihood and severity of behavioral
harassment is further reduced within
these important areas as maximum
received levels in these areas are even
lower the farther an animal is from the
perimeter and the farther the vessel is
from the edge. In other words, while an
individual in the coastal exclusion zone
might be exposed to levels as high as
180 dB (174 dB if in an OBIA, given the
1 km buffer) briefly if animal is at the
edge and a SURTASS LFA vessel has
approached at the closest allowable
distance from the edge—the majority of
individuals within the area will always
be exposed to levels increasingly lower
than that (the farther they are from the
edge), plus the vast majority of the time
SURTASS LFA vessels will not be right
at the edge. Therefore, while this
mitigation measure based on 180 dB
will not totally avoid all takes within
OBIAs, it will meaningfully reduce both
the number and severity of takes within
these important areas significantly by
ensuring that the majority of individual
marine mammals within these areas are
exposed to lower levels with lower
probabilities of being taken, and less
severe responses if the take occurs.
Regarding the comments about
practicability, NMFS and the Navy have
thoroughly evaluated the practicability
of all of the mitigation measures,
including the OBIAs and their
associated 180-dB zones, and in
consideration of public comments have
added an additional measure to further
minimize behavioral harassment within
OBIAs. Specifically, no more than 25
percent of the authorized amount of
SURTASS LFA sonar will be used for
training and testing within 10 nmi (18.5
km) of any single OBIA during any year
unless it is required for national
security, permission is obtained from
the appropriate designated Command
authority prior to commencement of the
activity, NMFS is notified as soon as is
practicable, and these sonar hours are
reported in annual activity reports. This
measure ensures that exposures (and
thereby probability and severity of Level
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B harassment) to LFA sonar of
individuals within OBIAs will be even
further limited, both in received level
and time. Specifically, the already
protective circumstances described for
OBIAs above will be in place up until
an OBIA has been exposed to LFA sonar
for 124–148 hours per year; beyond that
number of hours, the maximum
received level an individual may be
exposed to (when both the animal is at
the edge and the vessel at its closest
approach) would be substantially
reduced and, as described above, any
marine mammals further within the
OBIA would be exposed to even lower
levels, and even lower when the vessel
is not right at the edge.
Further, it is inappropriate to compare
the 145-dB zone around dive sites to the
180-dB zone around OBIAs, as they
have different purposes and are subject
to different requirements. Whereas the
goal of the 145-dB zone around dive
sites is generally to avoid any impacts
to human divers and is in no way
associated with the requirements of the
MMPA, take of marine mammals is
expected and authorized to occur, but as
required by the MMPA, NMFS and the
Navy have ensured that the extensive
suite of measures required will effect
the least practicable adverse impact.
Comment 21: NRDC et al. stated that
the criteria NMFS adopted [NMFS’
Acoustic Technical Guidance],
following the Navy, to estimate
temporary and permanent threshold
shift in marine mammals are erroneous
and non-conservative. They stated that
Wright (2015) identified several
statistical and numerical faults in the
Navy’s approach, such as pseudoreplication and inconsistent treatment
of data that tend to bias the proposed
criteria towards an underestimation of
effects. NRDC et al. stated that similar
and additional issues were raised by a
dozen scientists during the public
comment period on the draft Acoustic
Technical Guidance held by NMFS and
noted that at the root of the problem is
the agencies’ broad extrapolation from a
small number of individual animals,
mostly bottlenose dolphins, without
taking account of what Racca et al.
(2015) have succinctly characterized as
a ‘‘non-linear accumulation of
uncertainty.’’
Response: NMFS disagrees with this
characterization of the Acoustic
Technical Guidance and the associated
recommendation. The Acoustic
Technical Guidance is a compilation,
interpretation, and synthesis of the
scientific literature that provides the
best scientific information regarding the
effects of anthropogenic sound on
marine mammals’ hearing. The
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Technical Guidance was classified as a
Highly Influential Scientific Assessment
and, as such, underwent three
independent peer reviews, at three
different stages in its development,
including a follow-up to one of the peer
reviews, prior to its dissemination by
NMFS. In addition, there were three
separate public comment periods,
during which time we received and
responded to similar comments on the
guidance (81 FR 51694; August 4, 2016),
which we cross-reference here, and
more recent public and interagency
review under Executive Order 13795.
This review process was scientifically
rigorous and ensured that the Guidance
represents the best scientific data
available. Furthermore, the recent peerreviewed updated marine mammal
noise exposure criteria by Southall et al.
(2019) provide identical PTS and TTS
thresholds to those provided in NMFS’
Acoustic Technical Guidance.
NMFS disagrees with any suggestion
that the use of the Acoustic Technical
Guidance provides erroneous results.
The use of the 180-dB rms threshold to
identify where PTS would occur is
plainly outdated, as the best available
science indicates that rms SPL is not an
appropriate metric by which to gauge
potential auditory injury (whereas the
scientific debate regarding thresholds
for Level B harassment by behavioral
disruption is not about the proper
metric but rather the proper level or
levels and how these may vary in
different contexts).
Regarding the suggestion that the
thresholds are non-conservative,
multiple studies from humans,
terrestrial mammals, and marine
mammals have demonstrated less TTS
from intermittent exposures compared
to continuous exposures with the same
total energy because hearing is known to
experience some recovery in between
noise exposures, which means that the
effects of intermittent noise sources
such as tactical sonars are likely
overestimated. Marine mammal TTS
data have also shown that, for two
exposures with equal energy, the longer
duration exposure tends to produce a
larger amount of TTS. Most marine
mammal TTS data have been obtained
using exposure durations of tens of
seconds up to an hour, much longer
than the durations of many tactical
sources (much less the continuous time
that a marine mammal in the field
would be exposed consecutively to
those levels), further suggesting that the
use of these TTS data are likely to
overestimate the effects of sonars with
shorter duration signals.
Regarding the suggestion of pseudoreplication and erroneous models, since
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marine mammal hearing and noiseinduced hearing loss data are limited,
both in the number of species and in the
number of individuals available,
attempts to minimize pseudoreplication would further reduce these
already limited data sets. Specifically,
with marine mammal behavioral
temporary threshold shift studies,
behaviorally derived data are only
available for two mid-frequency
cetacean species (bottlenose dolphin,
beluga) and two phocids (in-water)
pinniped species (harbor seal and
northern elephant seal), with otariid (inwater) pinnipeds and high-frequency
cetaceans only having behaviorallyderived data from one species.
Arguments from Wright (2015)
regarding pseudo-replication within the
TTS data are therefore largely irrelevant
in a practical sense because there are so
few data points. Multiple data points
were not included for the same
individual at a single frequency. If
multiple data points existed at one
frequency, the lowest TTS onset was
always used. There is only a single
frequency where TTS onset data exist
for two individuals of the same species:
3 kHz for dolphins. Their TTS
(unweighted) onset values were 193 and
194 dB re 1 mPa2s. Thus, NMFS believes
that the current approach makes the best
use of the given data. Appropriate
means of reducing pseudo-replication
may be considered in the future, if more
data become available. Many other
comments from Wright (2015) and the
comments from Racca et al. (2015b)
appear to be erroneously based on the
idea that the shapes of the auditory
weighting functions and TTS/PTS
exposure thresholds are directly related
to the audiograms; i.e., that changes to
the composite audiograms would
directly influence the TTS/PTS
exposure functions (e.g., Wright (2015)
describes weighting functions as
‘‘effectively the mirror image of an
audiogram’’ (p. 2) and states, ‘‘The
underlying goal was to estimate how
much a sound level needs to be above
hearing threshold to induce TTS.’’ (p.
3)). Both statements are incorrect and
suggest a fundamental
misunderstanding of the criteria/
threshold derivation. This would
require a constant (frequencyindependent) relationship between
hearing threshold and TTS onset that is
not reflected in the actual marine
mammal TTS data. Attempts to create a
‘‘cautionary’’ outcome by artificially
lowering the composite audiogram
thresholds would not necessarily result
in lower TTS/PTS exposure levels, since
the exposure functions are to a large
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extent based on applying mathematical
functions to fit the existing TTS data.
Comment 22: NRDC et al. stated the
proposed rule gives little consideration
to expanding the LFA coastal exclusion
zone, assuming, based on its analysis in
prior environmental reviews, that its
standoff distance should remain 12 nmi
from shore. The commenters stated that
this reliance on prior analyses is not
supportable.
Response: As described in the
Mitigation section, the Navy’s 2007
SURTASS LFA FSEIS/SOEIS evaluated
increasing the coastal standoff distance
up to 46 km (25 nmi). Based on a sixstep analysis process, its analysis
showed that increasing the coastal
standoff range would decrease exposure
to higher received levels for
concentrations of marine animals
closest to shore, but would do so at the
expense of increasing exposure levels
for shelf break and pelagic species. This
result is due to the reduced overlap of
the exposure area with land leading to
an increase in exposure area as the
sound source moves farther offshore.
There have been no changes to the best
available scientific information or other
indications that the coastal standoff
distance should be increased since this
analysis; therefore, there is no change in
this mitigation measure from previous
rulemakings. Nonetheless, it is also
erroneous to say that the new rule gives
no consideration to further extending
the coastal exclusion, given the
extensive analysis of the White Paper
(see Mitigation section and response to
Comment 23 immediately below),
which included a recommendation for a
larger coastal exclusion. As noted in the
2012 final rule (77 FR 50290; August 20,
2012), over 80 percent of the existing
and potential marine protected areas
reviewed were within 12 nmi from a
coastline, indicating the effectiveness of
the coastal standoff as one of the
primary mitigation measures for
reducing potential impacts to marine
mammals. OBIAs expand upon this
protection by avoiding or minimizing
impacts in areas beyond the coastal
standoff distance where marine
mammals are known to engage in
specific behaviors that may lead to more
severe impacts if interrupted; known to
congregate in higher densities; and/or
known to have a limited range and
small abundance that creates more
vulnerability for the stock as a whole.
These criteria are important when
determining whether mitigation would
be likely to reduce the probability of
effects to individuals that would
translate to minimization of impacts at
the population level under the LPAI
standard.
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Comment 23: NRDC et al. noted that
they have called on the Navy and NMFS
to adopt a more expansive, more
biologically meaningful coastal
exclusion, particularly one that protects
the continental shelf and slope with a
standoff from the shelf break. They
noted that NMFS’ own subject-matter
experts, in the White Paper, recommend
that, absent specific data to the contrary,
‘‘all continental shelf waters and waters
100 km of the continental slope should
be designated as biologically important
habitat for marine mammals.’’ They
recommended that NMFS, in
consultation with the Navy, should
consider alternative coastal exclusion
areas.
Response: NMFS carefully considered
the White Paper’s recommendations and
we present an evaluation of the White
Paper’s recommendation to restrict LFA
sonar transmissions from all continental
shelf waters and waters 100 km seaward
of continental slope in the White Paper
Specific Recommendations subsection
of the Mitigation section. As discussed
in this section, given the other
mitigation measures we are requiring,
takes of marine mammals would be
limited to Level B harassment in the less
severe range of behavioral reactions and
some TTS, as described above.
Consequently, the only additional
anticipated value to restricting
SURTASS LFA sonar activities in
continental shelf waters and waters 100
km seaward of continental slope would
be some potential, though not certain or
significant, reduction in the number of
less severe behavioral reactions in those
areas. In general, not all behavioral
responses rise to the level of a take and
not all harassment takes result in fitness
consequences to individuals that have
the potential to translate to population
consequences to the species or stock.
Given the anticipated impacts of
SURTASS LFA sonar, there is little to
no likelihood that the impacts of the
anticipated takes would accrue in a
manner that would impact a species or
stock even in the absence of any
additional mitigation. Considered with
the uncertain potential of this proposed
recommendation to provide meaningful
incremental reduction of risk or severity
of impacts to individual marine
mammals, NMFS concludes that this
recommendation would not reasonably
be expected to provide a reduction in
the probability or degree of effects on
any marine mammal species or stocks.
Moreover, NMFS discusses why the
measure would not be practicable for
the Navy to implement. NMFS
acknowledges that while these measures
could potentially reduce the numbers of
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takes of some individual marine
mammals within a limited number of
species, or could add some small degree
of protection to preferred habitat or
feeding behaviors in certain
circumstances, this limited and
uncertain benefit did not justify
adopting the White Paper’s
recommendations considering the
existing mitigation measures already
implemented by the Navy and the high
degree of impracticality for Navy
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Offshore Biologically Important Areas
(OBIAs)
OBIA Criteria/Evaluation Process
Comment 24: The Commission noted
that a lack of data or insufficient data
regarding marine mammal presence and
abundance is not an adequate basis for
failing to adopt precautionary measures,
especially when such data are not
available for most of the world’s oceans.
The Commission noted it made this
point in its 2011 letter on a previous
DSEIS and the U.S. Court of Appeals for
the Ninth Circuit remanded the
SURTASS LFA sonar case on that basis.
The Commission stated that the Ninth
Circuit indicated that NMFS and the
Navy should have considered whether a
precautionary approach would give
more protection to marine mammals,
and then whether that protection would
impede military training to a degree that
makes such mitigation impracticable.
The Commission stated that it appears
that NMFS is failing to take a
sufficiently precautionary approach,
particularly with respect to the Pacific
Remote Island MNM.
Response: We acknowledge that the
Ninth Circuit opinion stated that NMFS
‘‘should have considered whether ‘the
precautionary approach’ would give
more protection to marine mammals,
and then whether that protection would
impede military training to a degree
making that mitigation not practicable.’’
Pritzker, 828 F.3d at 1138. The Court
went on to fault NMFS for not
considering the White Paper’s
recommendations. Taken in the context
of the Court’s full discussion, however,
we read the Ninth Circuit’s use of the
term ‘‘the precautionary approach’’ as
specifically referring to the
recommendations in the White Paper for
designating OBIAs in ‘‘data-poor’’
regions of the ocean (described therein
as a precautionary approach for
designating OBIAs), rather than a
broader mandate to adopt a
‘‘precautionary approach’’ in carrying
out the requirements of the statute.
In response to the Ninth Circuit’s
opinion and in the context of the LPAI
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standard, for this rulemaking NMFS
directly considered the White Paper
recommendations (see discussion of the
White Paper recommendation in the
Mitigation section). We considered the
factors as instructed by the Court,
although we ultimately did not adopt
the White Paper’s recommendations.
NMFS’ interpretation of the Ninth
Circuit’s opinion is based on the fact
that neither the MMPA nor NMFS’
implementing regulations include
references to, or requirements for, the
precautionary approach, nor is there a
clear, agreed-upon description of what
the precautionary approach is or would
entail in the context of the MMPA or
any specific activity. Nevertheless, the
MMPA by nature is inherently
protective, including the requirement to
mitigate to the lowest level practicable
(‘‘least’’ practicable adverse impacts, or
‘‘LPAI,’’ on species or stocks and their
habitat).1 This requires that NMFS
1 We are aware of statements we made in the
preamble for our 2001 incidental take regulations
for the Navy’s ship shock tests (66 FR 22450, 22453
(May 4, 2001)), in which we evaluated the impact
of underwater detonations that propagate shock
waves through a ship’s hull under deliberate and
controlled conditions to simulate near misses from
underwater explosions similar to those encountered
in combat. In that case, NMFS was authorizing up
to four mortalities and six non-serious injuries of
various species. During that rulemaking we
received a public comment stating that in the
absence of adequate data, NMFS and the Navy
should apply the precautionary principle, ‘‘the
fundamental elements of the principle being: the
existence of some indication of threat of harm; the
harm is serious or irreversible; scientific
uncertainty as to the nature or severity of the
outcome; and an obligation on decision-makers.’’
Our response said:
The MMPA prohibits the taking of marine
mammals unless exempted or permitted. Taking
means to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine
mammal. Therefore, NMFS believes that the
precautionary principle is already at the core of the
MMPA. However, because the MMPA authorizes
the taking of marine mammals under section
101(a)(5), provided certain conditions and
requirements are met, NMFS must prudently apply
the Precautionary Principle through careful analysis
of impacts and implementation of measures that
will reduce impacts to marine mammals to the
lowest level practicable. As described in this
document, NMFS believes that it and the Navy have
applied the Precautionary Principle to the greatest
extent possible for this action through an extensive
aerial monitoring and mitigation program that will
protect marine mammals to the greatest extent
practicable. The mitigation and monitoring program
are discussed later in this document. In addition,
NMFS and the Navy have applied the precautionary
principle by having the decision-making process in
the public forum through NEPA and notice and
comment rulemaking.
Taken as a whole, we do not view that response
as inconsistent with our current position. We agree
here that the MMPA is inherently protective. As for
the mitigation imposed for the ship shock trials, we
said we conducted a careful analysis of impacts and
implementation of measures that will reduce
impacts to marine mammals to the lowest level
practicable. This consisted of an extensive aerial
monitoring program, delaying detonations, and
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40149
assess measures in light of the LPAI
standard. To fulfill that requirement,
NMFS considers all measures that we
are reasonably aware of (e.g., from
recommendations or review of data) that
have the potential to reduce impacts on
marine mammal species or stocks, their
habitat, or subsistence uses of those
stocks, regardless of whether those
measures are characterized as
‘‘precautionary’’ or address ‘‘data-poor’’
areas. Through the LPAI standard,
NMFS considers ‘‘precautionary’’
recommendations such as those
contained in the White Paper. As
discussed below, the OBIA process
specifically allows for consideration of
areas that could be characterized as
relatively ‘‘data-poor’’ and we also
considered measures that provide for
mitigation in data-poor areas under the
LPAI standard (independent of the
OBIA process, i.e., the White Paper). In
short, we believe the requirements of
section 101(a)(5)(A), including the LPAI
standard, have been satisfied.
The Ninth Circuit’s Pritzker decision
faulted NMFS for not considering the
White Paper mitigation
recommendations for ‘‘data-poor areas’’
against the OBIA standards NMFS had
set for the 2012 rule. We do not read the
opinion as holding that the MMPA
compelled a change in the criteria and
process for evaluating OBIAs. Again,
NMFS addressed the Court’s decision by
separately and independently
evaluating the White Paper’s
recommendations for benefits to the
affected species or stocks and
practicability, without regard to the
OBIA criteria. Using the best available
information, NMFS considered the
recommendations in the White Paper
under our interpretation of the LPAI
standard and determined the measures
(as well as smaller buffer distances)
were not warranted, as described in
those sections of this rule.
In reaching the conclusion that
NMFS’ record for the 2012 rule did not
establish the agency had satisfied the
LPAI standard, the Court determined
that NMFS failed to consider an
important aspect of the problem,
‘‘namely the underprotection that
accompanies making conclusive data an
indispensable component of OBIA
designation,’’ and that this ‘‘systematic
underprotection of marine mammals’’
requirements for good visibility and daylight. Those
specific measures would be appropriate under the
LPAI approach we set forth in this rule assuming
similar circumstances. The risks to individual
marine mammals from the ship shock tests were
potentially irreversible in terms of acute impacts to
fitness in light of the nature of the specified
activity, and the mitigation and monitoring
measures were deemed appropriate to achieve the
LPAI standard.
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cannot be consistent with the
requirement that mitigation measures
result in the ‘‘least practicable adverse
impact’’ on marine mammals.’’ Pritzker,
828 F.3d 1125 at 1140. While we have
corrected the identified deficiency by
evaluating the White Paper measures
independent of the OBIA criteria, we
disagree with the suggestion that the
prescribed mitigation is systematically
underprotective.
We emphasize that NMFS’ (and the
Navy’s) informational standards for
OBIAs and other mitigation measures,
while data-driven, do not require
scientific certainty or conclusive data.
This is illustrated by the fact that the
OBIA criteria and factors allow for
consideration of a variety of information
sources, including historic whaling
data, stranding data, sightings
information, and regional expertise, to
name a few examples of the data
considered. As more detailed in
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS, supporting documents
that are considered include peerreviewed articles; scientific committee
reports; cruise reports or transects;
personal communications or
unpublished reports; dissertations or
theses; books, government reports, or
NGO reports; and notes, abstracts, and
conference proceedings. In fact, NMFS
has designated OBIAs for areas based on
these types of information sources
(whaling data, stranding data,
unpublished reports, etc.). For example,
the evidence supporting the designation
of the Southern Bali OBIA (designated
in this rule) is largely from an
unpublished report of line-transect
surveys and the National Marine
Mammal Stranding Network of
Indonesia.
Thus, we disagree that we are failing
to take a sufficiently precautionary
approach. The Pacific Remote Islands
Marine National Monument (Wake/
Johnson/Palmyra atolls and Kingman
Reef Units, which are located in the
SURTASS LFA Study Area) was on the
OBIA Watchlist and was considered as
a candidate OBIA. NMFS and the Navy
reviewed all available data and no
specific important biological behaviors
of marine mammals have been
characterized in these waters. As such,
this marine area did not meet the
biological criteria required for
designation of an OBIA and was not
further considered currently as an
OBIA.
Comment 25: The Commission stated
its concern that although NMFS has
identified potential OBIAs it might
include in the final rule, it has neither
specified which ones it actually is
proposing to include nor provided any
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assessment of whether it believes
including specific areas that meet the
designation criteria would be
practicable. Rather, NMFS has only
requested public comment on whether
any of the potential areas satisfy the
OBIA criteria, after which time the Navy
and NMFS would, apparently without
any additional public input, evaluate
the practicability of those measures to
avoid or reduce impacts in those areas.
The Commission stated that NMFS’
approach effectively undermines the
ability of the Commission and others to
provide informed comments on that
portion of the proposed rule.
Response: In the Federal Register
notice of the proposed rule, we
described the process NMFS and the
Navy used to identify and evaluate
potential OBIAs and presented 25 areas
considered for potential designation as
new OBIAs for this rulemaking. We
presented the draft analysis for these
potential OBIAs using the identified
OBIA criteria and factors in a document
entitled Potential Marine Mammal
OBIAs for SURTASS LFA Sonar; Marine
Areas Under Consideration. Through
the proposed rule, the public had the
opportunity to comment on the OBIA
analysis and designation process
(including practicability) and potential
OBIAs (including recommending
additional OBIAs). As noted in response
to Comment 15, we disagree that the
ability to provide informed comments
was undermined, given the public was
provided a discrete, manageable list of
potential OBIAs supported by our
preliminary analysis, and that NMFS
was accepting and addressing input
regarding biological qualifications and
practicability. Further, as always, NMFS
will also consider entirely new
recommendations for OBIAs through the
adaptive management process, and will
do so utilizing the process and types of
information described in the proposed
rule.
Comment 26: NRDC et al.
recommended that NMFS reconsider the
guidelines for capturing biologically
important marine mammal habitat in
data-poor areas that its subject-matter
experts provided during the last LFA
authorization cycle (in the White Paper)
and that were addressed by the Ninth
Circuit. NRDC et al. stated that
information on cetacean distribution
and habitat use demonstrate that the
White Paper guidelines (as described in
their additional comments on OBIAs)
hold true in almost every case, with
important marine mammal habitat areas
occurring along continental shelf and
shelf edge waters (e.g., the multi-species
migratory route off western Australia),
around seamounts and island systems
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(e.g., the humpback whale feeding area
supported by the bathymetric and
oceanographic complexity of the
Commander Islands), and in other areas
of high productivity (e.g., the multispecies feeding area supported by the
North Pacific Transition Zone). NRDC et
al. recommend that NMFS reconsider
the White Paper guidelines.
Response: See response to Comment
23. NMFS carefully considered the
White Paper’s recommendations and we
present an evaluation of the White
Paper’s recommendations in the White
Paper Specific Recommendations
subsection of the Mitigation section.
Comment 27: NRDC et al.
recommended that NMFS consider
alternative habitat models and
(particularly in the Northwest Pacific)
additional line-transect data for
identifying areas of biological
importance. NRDC et al. stated that it is
prudent for NMFS to consider
alternative modeling approaches
capable of accounting for nonstandardized collection of survey data
and opportunistic sightings such as
those presented in Corkeron et al.
(2011), Lambert et al. (2014), and
Mannocci et al. (2015). NRDC et al.
noted that the IWC–POWER large-area
transect surveys conducted by Japan
over the last decade provide a basis for
empirically grounded modeling and
identification of high-density habitat for
most of the Navy’s Northwest Pacific
operations area. NRDC et al. note that
NMFS now has the data needed to
conduct a data-based analysis in this
region at least, satisfying its own criteria
for OBIA identification. NRDC et al.
recommended that NMFS should
consult the same subject-matter experts
it drew upon during the last
authorization cycle, who are the
agency’s experts in marine mammal
habitat modeling in the North Pacific.
Response: NMFS and the Navy are
aware of the active area of research in
developing habitat-based models that
extrapolate cetacean densities beyond
surveyed regions. For example, the
Navy and NMFS were reviewers of and
used the results of Mannocci et al.
(2017) for the U.S. Navy’s Atlantic Fleet
Training and Testing area NEPA
analyses and MMPA rulemaking. As
previously noted in the response to
Comment 3, it is possible that the
sighting results from the IWC–POWER
cruises could be used to extrapolate
density and abundance estimates
throughout the North Pacific in the
future, using the methods developed by
Mannocci et al. (2015) that were applied
to extrapolate density estimates in the
North Atlantic (Mannocci et al., 2017).
Cruise reports through 2017 are
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available online, with cruises
continuing for another few years. When
additional results are available, NMFS
and the Navy will consider use of these
methods to extrapolate density and
abundance estimates that could inform
identification of biologically important
areas through the Adaptive Management
process. Lambert et al. (2014) used the
simulated distribution of micronekton
from the Spatial Ecosystem And
Population Dynamics Model
(SEAPODYM) to predict the habitat of
three cetacean guilds in tropical waters.
While their results provide some
interesting insights into the use of
predicted prey maps in cetacean
distribution models, they are best used
to prioritize future research areas.
Corkeron et al. (2011) developed
statistical methods for using spatially
autocorrelated sighting results to
identify the Dhofar coast of Oman as an
important region for the Arabian Sea
DPS of humpback whales. However, the
Dhofar coast of Oman is outside of the
SURTASS LFA sonar Study Area and
Corkeren et al. (2011) state ‘‘Although it
is theoretically possible for us to project
model predictions into other areas, we
consider this inadvisable, as our basic
design was not to make inference about
the distribution of humpback whales
along the entire Oman coast.’’ Therefore,
though its statistical models could be
applied to sightings data within the
SURTASS LFA Study Area, the
humpback whale results are not
applicable. NMFS and the Navy will
continue to consider, discuss and
examine the utility of these models for
identifying important areas for marine
mammals in the SURTASS LFA sonar
Study Area.
Comment 28: NRDC et al.
recommended that NMFS and the Navy
communicate directly with researchers
in the Indian Ocean and Asia to identify
potential areas of biological importance,
including areas with high cetacean
abundance. NRDC et al. included a list
of contacts in their comment letter
(Appendix).
Response: NMFS and the Navy
acknowledge the importance of regional
input to identify and gather data for
areas of biological importance to marine
mammals for which information may
not be available in published literature.
To obtain the best available data for
each potential OBIA, NMFS and the
Navy conducted a deep and
comprehensive literature review. As
described in the response to Comment
24 the Navy and NMFS considered a
variety of information sources when
evaluating the potential of an area as an
OBIA (detailed in Appendix C of the
2019 SURTASS LFA FSEIS/SOEIS),
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including information gathered from
regional experts. NMFS and the Navy
contacted regional experts when
available information was not sufficient
to determine whether an area met the
OBIA criteria and factors. In these cases
NMFS and the Navy contacted regional
researchers known to be conducting
research or surveys in the area. The
Navy and NMFS contacted marine
mammal researchers in the Marianas
and Guam region to request copies of
their marine mammal sighting data to
gain an understanding about the areas
already identified via survey effort
where marine mammals may be
aggregating and conducting biologically
important behaviors. We also provided
the opportunity for regional researchers
to comment on the potential OBIAs and
the OBIA analysis, and to suggest
additional OBIAs for consideration
through the public comment process on
the proposed rule and the 2018
SURTASS LFA DSEIS/SOEIS. In
addition to using information gathered
from regional experts and presented in
reports with regional authors (for
example, through the IMMA and EBSA
designation process), as noted in
response to Comment 24 and detailed in
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS, we also used a variety of
supporting documents including peerreviewed articles; scientific committee
reports; cruise reports or transects;
personal communications or
unpublished reports; dissertations or
theses; books, government reports, or
NGO reports; and notes, abstracts, and
conference proceedings. At any rate,
NMFS and the Navy have considered
the best available science in the
development of this SURTASS LFA
sonar final rule. Given limited agency
resources, the limited likely value
added beyond our already extensive
research, and the fact that there is no
requirement that the agency
communicate directly with all experts
in a particular topic, we have not
contacted all of the individuals
recommended by NRDC.
In a related effort, NMFS and the
Navy have obligated funding to convene
a Working Group/Expert Elicitation
effort (beginning in 2020) to update
existing Biologically Important Areas
and identify new areas outside of the
U.S. Exclusive Economic Zone (EEZ).
As applicable, the results of this effort
would be considered through the
adaptive management provision of the
rule.
Comment 29: NRDC et al. expressed
concern that NMFS’ selection criteria
for OBIAs maintain an evidentiary
requirement that exceeds the
information available for most of the
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LFA operations area. See, e.g., 84 FR at
7234 (noting that ‘‘best source’’ of data
demonstrating high marine mammal
densities ‘‘is publicly-available, direct
measurements from survey data’’).
NRDC et al. stated that while NMFS’
criteria do allow for use of ‘‘other
available data or information,’’ they do
so only if ‘‘those data and information,
either alone or in combination with
limited direct data, are sufficient to
establish that at least one of the
biological criteria are present,’’ and that
it remains unclear from this description
what evidentiary standard will apply to
the consideration of OBIAs where direct
data are not available.
Response: NMFS does not require
‘‘conclusive data’’ 2 for imposing
conservation and management measures
for SURTASS LFA sonar, including—
though not only—in the case of OBIAs
(see response to Comment 24). As
another example of the incorporation of
data poor areas in mitigation measures,
the coastal standoff zone uniformly
applies not only in areas with
supporting data about marine mammals
(80 percent of the areas initially
identified for OBIA consideration in
2012 were within the 12 nmi (22 km)
coastal standoff) but also in areas that
could be fairly characterized as data
poor. In addition, shutdown protocols
will be in effect wherever SURTASS
LFA sonar activities occur, including in
areas where data are limited.
Comment 30: NRDC et al. stated that
as it did during the most recent
authorization cycle, NMFS proposes to
exclude from OBIA consideration all
marine mammals that do not exhibit
low-frequency specialization, excepting
sperm whales and elephant seals, and
that this position remains nonprecautionary and inappropriate. They
state that the Navy did not include
odontocetes in the LFA SRP which it
continues to take as the exclusive data
source for estimating impacts from the
LFA system, notwithstanding that
study’s age and limitations. NRDC et al.
noted that recent meta analyses of the
ocean noise literature indicates that,
taken as a whole, the odontocetes are
behaviorally reactive to predominantly
low-frequency sources of noise, in ways
that are consistent with a higher
potential for effects on vital rates, at
exposure levels that would put them
well outside the LFA shutdown zone
(Gomez et al., 2016; Bowles et al., 1994).
NRDC et al. goes on to state that
literature has also demonstrated that
some species, such as harbor porpoises
and beaked whales, are particularly
2 NRDC v. Pritzker, 828 F.3d 1125, 1140 (9th Cir.
2016).
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sensitive to a diversity of anthropogenic
sounds, including sounds of
predominantly low frequency; and
physiological research on finless
porpoise indicates that a heightened
sensitivity to lower-frequency sound
may be conserved across porpoise
species (Liu, 1985; Li et al., 2008). They
indicated that several studies have
reported harbor porpoise behavioral
responses to pile driving sounds
(Tougaard et al., 2009; Bailey et al.,
2010; Brandt et al., 2011; Dahne et al.,
2013; Parsons, 2017) and beaked whale
behavioral responses to commercial
shipping sounds and European LFAS
systems (between 1 and 2 kHz) (Aguilar
de Soto et al., 2006; Pirotta et al., 2012;
Miller et al., 2015; Sivle et al., 2015) and
that some of these responses occurred at
distances beyond 20 km (e.g., beyond
the 1 km safety zone in proposed
mitigation). NRDC et al. stated that
according to a recent paper on the
vulnerability of range-limited
populations to acoustic impacts, failure
to consider the effects of both noise
exposure and displacement of Cuvier’s
beaked whales from their habitat in this
region ‘‘could lead to more severe
biological consequences than ‘Level B
Harassment’’’ (Forney et al., 2017).
NRDC et al. state it is ‘‘improper to
exclude these acoustically sensitive
species from OBIA mitigation,’’ and that
the Navy and NMFS must take a
precautionary approach to harbor
porpoises and beaked whales, both in
analyzing impacts and in considering
habitat-based mitigation measures.
Response: One of the factors that the
Navy and NMFS consider in the
designation of OBIAs, established in the
2012 FSEIS/SOEIS (DoN, 2012) and
carried forward in the current OBIA
assessment process, is that the OBIA
protective measures pertain to those
species most likely to be affected by
exposure to LFA sonar transmissions,
namely LF sensitive species such as
baleen whales. Thus, the primary focus
of the OBIA mitigation measure is on LF
hearing specialist species. However, as
noted in the proposed rule, OBIAs have
been designated for non-LF hearing
specialists, such as elephant seals and
sperm whales, since the available
hearing data for these species indicate
an increased sensitivity to LF sound
(compared to most odontocetes and
pinnipeds). Therefore, contrary to the
comment’s assertion, NMFS did not
propose to exclude from OBIA
consideration all marine mammals that
do not exhibit low-frequency
specialization. The very fact that we
acknowledged that OBIAs could be
appropriate for sperm whales and
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elephant seals negates that assertion,
and nothing in the proposed rule
suggested that NMFS would not
consider other species with increased
sensitivity to LF sound, if data indicate
that it is appropriate. As described in
this rule, the hearing sensitivity of other
taxa (MF and HF cetaceans) is such that
their sensitivity to the LFA signal is
reduced by 40 to 50 dB, meaning that
source has to be much louder for the
animal to hear it, and therefore to
potentially be behaviorally harassed by
it. The Navy will implement a near-100
percent-effective mitigation measure for
minimizing impacts when marine
mammals are in close proximity to the
LFA sonar source (passive and active
acoustic and visual detection and
shutdown), and it also restricts
transmissions within the coastal
standoff range, which encompasses the
majority of biologically important
habitats.
NMFS and the Navy are aware of the
publications discussed by NRDC et al.
NMFS and the Navy have considered all
available data on potential impacts to
marine mammal species and stocks in
their analyses, not just the SURTASS
LFA sonar SRP. Very few studies (many
are described by the commenters) have
examined odontocete behavioral
responses to LF sounds. Those that have
been conducted largely focus on sounds
that include both the frequencies
produced by LFA sonar (100–500 Hz)
and also higher frequencies (greater than
500 Hz), or LFA sonar sounds at higher
frequencies than proposed by the Navy
(e.g., European LFA sonar between 1
and 2 kHz). For example, the sounds
produced by pile driving, seismic
surveys, and vessel movement are
broadband, low-frequency sounds (i.e.,
containing frequencies greater than 500
Hz), and pile driving and seismic survey
sounds are more impulsive in nature
than LFA sonar. Further, some of the
responses documented in the studies
cited are lower level behavioral
responses that would not necessarily
rise to the level of MMPA harassment.
It is true that the quantitative estimates
of takes for all marine mammals are
derived from the LFA risk continuum,
which is based on the behavioral
responses of LF hearing specialists
(baleen whales) collected with an actual
SURTASS LFA sonar source. As such,
these data are realistic contextually and
remain the best available for quantifying
the response of LF-sensitive marine
mammals to the SURTASS LFA sonar
source (see also response to Comment
9). Because the LFA risk continuum was
developed based on the responses of
marine mammal species with the most
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sensitive LF hearing, the LFA risk
continuum is conservative in that it is
anticipated to overestimate the
responses of other species that are less
sensitive to LF sounds.
Comment 31: NRDC et al. stated that
NMFS’ 2012 rule required the Navy to
advance research on the impacts of LFA
sonar on beaked whales and harbor
porpoises, first, by convening an
independent Scientific Advisory Group
to make research and monitoring
recommendations and, second, by either
promulgating a plan of action to
implement the Advisory Group’s
recommendations or submitting a
written response to NMFS explaining
why they are infeasible. NRDC et al.
requested a copy of any Scientific
Advisory Group and Executive
Oversight Group reports and
recommendations and asked that they
be made available to the public.
Response: The Navy completed an
assessment of the validity, need, and
recommendations for field research and/
or laboratory research on the potential
effects of SURTASS LFA sonar on
beaked whales and harbor porpoises in
a final report submitted to NMFS in July
2017, prior to the expiration of the 2012
MMPA rule. One research project was
funded to study the spatial overlap of
SURTASS LFA sonar activities with
harbor porpoise habitat to bound the
potential for impacts. Given the larger
overlap of SURTASS activities with
beaked whale populations (as compared
to harbor porpoises, which have very
little overlap with SURTASS activities)
and the relative lack of data regarding
beaked whale responses to LFA sonar,
the Navy has agreed to initiate a formal
feasibility study through the Living
Marine Resources program to assess the
value, practicality, and cost of designing
and conducting a controlled exposure
experiment to measure the effects of
LFA sonar on beaked whales (as well as
other marine mammals—see response to
Comment 10).
The 2013 Scientific Advisory Group
report on beaked whales and harbor
porpoises can be found at: https://
www.surtass-lfa-eis.com/downloads/.
While there is no Executive Oversight
Group report, the Executive Oversight
Group recommendations are
summarized in the 2017 report Beaked
Whale and Harbor Porpoise Monitoring
and Reporting Requirements which can
also be found at: https://www.surtass-lfaeis.com/downloads/.
Comment 32: NRDC et al.
recommended that in line with NMFS’
intent in previous authorizations, that
frequency specialization be considered
as one factor among several in
determining the relative importance of a
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potential OBIA. NRDC et al. noted that
the agency can then focus their
practicability analysis for odontocete
species on the most biologically
important habitat. NRDC et al. noted
that NMFS should give careful analysis
to areas of high marine mammal
biodiversity, which are also likely to be
areas of high marine biodiversity—
appropriate given the increasing
evidence of impacts of low-frequency
sound on non-marine mammal biota,
some of which is described in the
Proposed Rule, and that NMFS should
carefully analyze the practicability of
protecting areas, such as those off the
main Hawaiian Islands and around
certain Hawaiian seamounts (which are
important to beaked whales, among
other species), that are known to contain
small, resident odontocete populations.
Response: As described in response to
Comment 30, frequency specialization is
one factor NMFS and the Navy
considered when evaluating potential
OBIAs. The intent of OBIAs is to protect
those marine mammal species, such as
baleen whales, most likely to hear and
be affected by LFA sonar transmissions
and to provide these marine mammals
additional protections during periods
when they are conducting biologically
significant activities. However, OBIAs
have been evaluated and designated to
provide additional mitigation protection
for non-LF hearing specialists, such as
elephant seals and sperm whales, since
the available hearing data for these
species indicate an increased sensitivity
to LF sound (compared to most
odontocetes and pinnipeds). Regarding
the comment about areas of high marine
mammal diversity, NMFS has evaluated
all of the areas recommended by
commenters in the context of the LPAI
standard, including several areas of high
marine mammal diversity (e.g.,
Southeast Kamchatka OBIA) and our
analysis and findings are presented in
this rule and the SURTASS LFA FSEIS/
SOEIS. Specifically, NMFS designated
the Main Hawaiian Islands OBIA which,
although designated for the purposes of
further protecting humpback whales,
will also reduce the exposure of several
small resident populations of
odontocetes to SURTASS LFA sonar.
NMFS and the Navy will continue to
evaluate any new science as part of the
Adaptive Management process.
Comment 33: NRDC et al. noted that
several marine mammal species
occurring within the proposed
SURTASS LFA study area are
considered ‘‘data deficient’’ by the
International Union for Conservation of
Nature (IUCN), due to the eastern Indian
Ocean and, to a lesser extent, the
Northwestern Pacific regions being
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understudied. They stated that Parsons
(2016) recently suggested that such
species should be assumed
‘‘threatened,’’ as it is likely certain datadeficient species are, in fact,
‘‘vulnerable’’ or ‘‘endangered,’’ given
their low sightings rates and restricted
ranges. NRDC et al. recommended
NMFS and the Navy work with
researchers embedded within these
regions to help build our state of
knowledge on these species and identify
potential OBIAs. They stated that three
species of data-deficient cetaceans are
worth particular note: Omura’s whale
(Balaenoptera omurai) and
Deraniyagala’s beaked whale
(Mespolodon hotula) and Berardius
beaked whale, which have been recently
described in the northern Pacific Ocean.
Response: NMFS and the Navy are
aware of the active area of genetics
research used to identify new species.
Omura’s whales and Deraniyagala’s
beaked whales are considered in the
rule and SURTASS LFA FSEIS/SOEIS
impact analyses using the best available
data for those taxa. The new Berardius
beaked whale splits the black form of
Baird’s beaked whale into a new species
distinct from the gray form of the
Baird’s beaked whale, which will retain
the scientific name Berardius bairdii
(Morin et al., 2017). Therefore, although
this split into two species is not part of
the LFA impact analysis, the data on
Baird’s beaked whale encompasses both
forms, as has traditionally been
reported.
While no hearing data on these new
species are available, hearing in the
Omura’s whale is presumed, like other
baleen whales, to be within the range of
7 Hz to 22 kHz and they have been
recorded producing sounds from 15 to
50 Hz (Cerchio et al., 2015; Southall et
al., 2007). Very little is known about the
Deraniyagala’s beaked whale and
nothing specifically is known about
their hearing sensitivity. They are,
however, similar to other beaked whales
presumed to hear in the mid-frequency
range from 150 Hz to 160 kHz (NMFS,
2018). While their hearing range
overlaps partially with the frequency
bandwidth of SURTASS LFA sonar, it is
presumed that their bandwidth of best
hearing, like other beaked whales, is
well above the frequency range of
SURTASS LFA sonar. The intent of
OBIAs is to protect those marine
mammal species, such as baleen whales,
most likely to hear and be affected by
LFA sonar transmissions and to provide
them additional protections during
periods when they are conducting
biologically significant activities. Thus,
the primary focus of the OBIA
mitigation measure is on LF hearing
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40153
specialist species. Based on current
information, beaked whales are not
known to have increased sensitivity to
LF sounds; therefore, we do not believe
added protection afforded by an OBIA
(i.e., beyond that provided by the LFA
sonar mitigation zone, described in the
Mitigation section) is warranted. As
with other marine mammals, Navy will
re-evaluate if additional data become
available that demonstrate that these
animals are more sensitive to LF
sounds.
The proposal described in the Parsons
(2016) opinion paper has not been
adopted by the IUCN. As stated in the
IUCN Red List categories and criteria
(IUCN, 2012) definition: ‘‘A taxon is
Data Deficient when there is inadequate
information to make a direct, or
indirect, assessment of its risk of
extinction based on its distribution and/
or population status.’’ They go to say a
data deficient species may be well
studied, but appropriate data on
abundance and/or distribution are
lacking, and that ‘‘listing of taxa in this
category indicates that more information
is required and acknowledges the
possibility that future research will
show that threatened classification is
appropriate.’’ To be precautionary they
suggest, ‘‘it is important to make
positive use of whatever data are
available.’’ As described in response to
Comment 24, NMFS has compiled and
assessed the best available science, as
required, to support the findings made
here and does not plan to reach out to
additional regional experts.
OBIA Areas
Comment 34: NRDC et al. noted in
their comment regarding the designation
of OBIAs that as ESA Critical Habitat,
Important Marine Mammal Areas
(IMMAs), and Ecologically or
Biologically Significant Areas (EBSAs),
have all previously been identified
through a rigorous scientific process,
including opportunity for public
comment and peer review; as such,
these areas should be immediately
carried forward by the Navy for
geographic mitigation purposes.
Response: As noted in the Mitigation
section of this final rule, the 2019
SURTASS LFA FSEIS/SOEIS, and
previous documentation for SURTASS
LFA sonar, criteria for the designation of
OBIAs are specific to the purpose of
designating OBIAs for SURTASS LFA
sonar, which is geographic mitigation.
The purpose and criteria for designation
of ESA critical habitat, EBSAs, and
IMMAs may inform our consideration of
areas as potential OBIAs but are not per
se coincident with the criteria or
purpose of OBIAs for SURTASS LFA
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sonar. As such, all marine areas
considered as potential OBIAs must be
evaluated per the criteria developed for
SURTASS LFA sonar, including the
Navy’s practicability assessment,
regardless of the rigorous scientific
processes other agencies or
organizations may have undertaken for
their marine area designations.
Comment 35: NRDC et al. noted that
30 IMMAs were recently identified in
the Northeast Indian Ocean and South
East Asian Seas Region (IUCN Marine
Mammal Protected Areas Task Force
2019) and should be incorporated into
NMFS’ analysis for its Final Rule. They
also noted that 55 candidate IMMAs
were recently been identified in the
Western Indian Ocean and Arabian Seas
by regional experts and submitted for
additional independent peer review
(IMMA sub-regions ‘‘ii’’ and ‘‘vii’’ fall
within the LFA Study Area). They
recommended that these new IMMAs be
immediately taken into consideration by
NMFS and the Navy as potential OBIAs
upon their release.
Response: As recommended, NMFS
and the Navy assessed the 30 IMMAs
designated in the Northeast Indian
Ocean and South East Asian Seas
Regions. Details of this analysis and
which IMMAs met the OBIA
designation criteria are included in
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS. As part of the Adaptive
Management process for SURTASS LFA
sonar, NMFS and the Navy will
periodically assess any newly
designated IMMAs for their suitability
as OBIAs for SURTASS LFA sonar.
Comment 36: NRDC et al.
recommended the following for blue
whales:
A. Chagos Archipelago—NMFS
should ensure that the waters
encompassed by the no-take marine
protected area are included in a yearround OBIA to protect important habitat
for blue whales as well as other cetacean
species including sperm whales.
Response: The BIOT-Chagos Islands
Marine Protected Area (MPA) was an
area on the OBIA Watchlist because
when last assessed by NMFS and the
Navy, sufficient data were not available
to determine if marine mammals were
present and conducting biologically
important behaviors in the area. The
BIOT-Chagos Islands MPA was reevaluated to determine if more data
have become available; however, there
continues to be limited data describing
the presence of marine mammals in the
MPA, and even less data on whether
marine mammals are conducting
biologically important behaviors.
Accordingly, the BIOT-Chagos Islands
MPA will remain on the OBIA Watchlist
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and NMFS and the Navy will evaluate
the area as a potential OBIA through the
Adaptive Management Process if new
information becomes available.
B. Waters around Sri Lanka—NMFS
should advance the following areas for
year-round blue-whale mitigation areas:
(i) ‘‘Southern Coastal/Offshore Waters
between Galle and Yala National Park,’’
an area largely overlapping with OBIA
Offshore Sri Lanka but which affords
year-round protection to the submarine
canyons that support high numbers of
blue whales, and other marine
megafauna, throughout the year; (ii)
‘‘Trincomalee Canyon and Associated
Ecosystems’’ and (iii) ‘‘Coastal and
Offshore Area of the Gulf of Mannar
(OBIA Watchlist),’’ which also
encompasses the currently not
considered ‘‘Sri Lankan Side of Gulf of
Mannar’’ EBSA. NRDC et al. also
recommended that any waters not yet
included within the boundaries of the
new ‘‘South West to Eastern Sri Lanka
IMMA’’ also be advanced for year-round
protection.
Response: The Navy and NMFS
assessed areas (i) and (ii) mentioned in
this comment as potential OBIAs for the
blue (pygmy) whale. NMFS and the
Navy’s final assessment of these areas’
potential as OBIAs is described in
Chapter 5 and Appendix C of the 2019
SURTASS LFA FSEIS/SOEIS. We have
also noted in our assessment that
although most available data for these
two areas are for blue whales, data on
sperm whales have been reported and,
where applicable, we note the seasonal
period during which sperm whale as
well as blue whale important biological
activity occurs.
Although both the Gulf of Mannar
EBSA and IMMA ((iii) of this comment)
were defined principally for the dugong
and coastal dolphins, which occur in
nearshore or inshore coastal waters too
shallow for use of SURTASS LFA sonar,
because baleen and sperm whale
records from MPAs located within the
Gulf of Mannar EBSA and IMMA are
available, the NMFS and the Navy
further evaluated the Gulf of Mannar
region as a potential OBIA. The
available information and data do not
support the area’s biological importance
to blue whales, as only rare blue whale
records, from strandings, are available
for the Gulf of Mannar. Although not
designated as an OBIA for SURTASS
LFA sonar, the Gulf of Mannar has been
added to the OBIA Watchlist so that
data and information about the area will
continue to be monitored.
However, most available information
and data support the waters off southern
and eastern Sri Lanka as important
migrational and foraging areas for both
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pygmy blue and sperm whales, and both
these regions include physiographic
features and annual monsoonal
transport that support higher
productivity. NMFS and the Navy have
designated the waters off the entire
southern and eastern shore of Sri Lanka
to the Trincomalee Canyon region as an
OBIA for both blue (pygmy) and sperm
whales.
C. Southwest India and Western Sri
Lanka—NMFS should establish an
OBIA southwest of India and west of Sri
Lanka that reflects the boundaries of the
new ‘‘Gulf of Mannar and Palk Bay
IMMA’’ that includes the buffer
recommended for protection purposes.
Response: The available data and
information are not sufficient for the
area southwest and west of Sri Lanka to
warrant designation as an OBIA, as the
blue whale data for this area are very
sparse and do not support designation
of this area as biologically important to
blue whales. Anderson et al. (2012)
used ocean color data to develop a
hypothesis of blue (likely pygmy) whale
migration in the northern Indian Ocean.
Based on their hypothesis, Anderson et
al. (2012) predicted that blue whales
may occur in this area as they migrate
from the Arabian Sea to eastern Sri
Lanka/Bay of Bengal, but the authors
also note that ‘‘with only a single
offshore sighting from April (Table 1
and Fig. 4), this is one area where
additional survey work and/or satellite
tracking will be required to test our
predictions.’’
We conclude that the existing data are
insufficient to support designating the
proposed area as an OBIA for migration
or foraging of North Indian Ocean blue
whales. The proposed area southwest of
Sri Lanka in the Indian Ocean (3° to 12°
N, 74° to 80° E) has been added to the
OBIA Watchlist, and NMFS and the
Navy will evaluate the area as a
potential OBIA through the Adaptive
Management Process if new information
becomes available.
D. West of the Maldives (November
and April)—NMFS should establish an
OBIA west of the Maldives that reflects
the boundaries described in Anderson et
al (2012): 1°–6° N, 70.5°–72.5° E.
Response: Blue whales occur in the
area around the Maldives. However, the
purpose of OBIAs is to protect areas
with some demonstrated biological
importance to a marine mammal
species. According to Anderson et al.
(2012), the highest concentrations of
blue whales in this area occurred in
April, November, and December, with
strandings having been recorded from
December through February. These data
describe the average seasonal
occurrence of blue whales in these
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waters, but are not indicative of high
densities nor that biologically important
activity is occurring in these waters.
Occurrence in a marine area is not
sufficient to establish an area’s
importance to a species. The Navy and
NMFS examined all available data and
research on blue whale occurrence in
the waters adjacent to the Maldives to
determine if biologically important
activity of blue whales occurred in these
waters. As described in the final
assessment of the Maldives area as a
potential OBIA in Chapter 5 and
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS, there were no data to
support that blue whales conducted
biologically important activities in this
area. The area was not designated as an
OBIA but has been added to the OBIA
Watchlist, and NMFS and the Navy will
evaluate the area as a potential OBIA
through the Adaptive Management
Process if new information becomes
available.
E. Indonesia—Western Australia
migration route—
1. Citing satellite data from Double et
al. (2014), the commenter recommended
that NMFS/Navy should establish an
OBIA encompassing the continental
shelf along western Australia between
March through June and September
through December. Importantly, the
North West Cape/Ningaloo Reef region,
out to the continental shelf edge, needs
to be protected from at least April
through June. The Navy should also take
measures to avoid the continental shelf
edge off northwestern Australia between
May through July and September
through November, to protect whales
traveling along the migration route.
Response: The Navy and NMFS have
reviewed the Double et al. (2014) paper
cited herein. We agree that the
information cited on the migrational
area for blue whales was compelling
enough to warrant the Navy and NMFS
researching the area to obtain additional
information and data on the Western
Australia shelf and slope, since the
information pertains to a LF specialist
marine mammal and relates to one of
the key biological behaviors that define
the criteria for OBIAs. The Navy and
NMFS assessed the entire Western
Australia shelf and slope, including
Browse Basin and the nearby Savu Sea
area, as a potential OBIA for blue
(pygmy) and humpback whales. An
OBIA was designated for each species in
this region. The OBIA for the humpback
whale greatly expands the geographic
extent of OBIA 27, Camden Sound/
Kimberly Region in place during the
NDE.
2. An OBIA should be established to
protect Browse Basin (∼14° S between
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121° E and 124° E) year-round, in light
of its persistent upwelling and high
levels of cetacean diversity, including
foraging pygmy blue whales.
Response: The Navy and NMFS
designated an OBIA for migrating blue
(pygmy) whales and vastly expanded
the areal extent of the OBIA in place
during the NDE for humpback whales in
the waters off Western Australia
(Camden Sound/Kimberly Region, OBIA
27 during the NDE). The OBIA for the
blue whale encompasses Browse Basin
and the Savu Sea.
3. For similar reasons, an OBIA
should also be established bounding the
upwelling system along the southern
coasts of Java and the Sumbawa Islands,
Indonesia. A similar approach to that
employed by Anderson et al. (2012)
could be used to map the boundaries of
this region. The waters of the newly
designated ‘‘Savu Sea and Surrounding
Areas IMMA’’ and the associated buffer
recommended for protection should also
be included.
Response: Branch et al. (2007) suggest
the environmental factors ‘‘driving
biological enrichment and enhanced
blue whale foraging’’ and the regional
location of such factors, which have
been cited in this comment. The
upwelling information in Branch et al.
(2007) is based on Hendiarti et al.
(2004). Hendiarti et al. (2004) note that
the majority of the upwelling in the
southern Indonesian region occurs
seasonally off southeastern Java. It is
also difficult to discern from the data
presented in Hendiarti et al. (2004) how
much of the coastal upwelling would
occur within the coastal standoff range
of SURTASS LFA sonar, as much of the
higher productivity appears to take
place nearshore.
However, more importantly, while an
upwelling area has potential, at least
seasonally, as an important foraging area
for cetaceans, a species’ seasonal
occurrence as denoted by higher relative
abundance in that area would indicate
increased foraging during the period of
increased productivity. However, NMFS
and the Navy conducted a thorough
review of the best available data and no
data are available to support the
association of blue whales foraging in
this area in Indonesia. Therefore, this
area does not meet the criteria for
establishing an OBIA. The area has been
added to the OBIA Watchlist, and
NMFS and the Navy will evaluate the
area as a potential OBIA through the
Adaptive Management Process if new
information becomes available.
Comment 37: NRDC et al.
recommended that for humpback
whales:
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40155
A. Northern Arabian Sea—The
Arabian Sea DPS is a small, highly
isolated, resident population that
requires an OBIA encompassing all
waters north of 21°50′ N from the
western coast of India westward to the
boundary of the proposed SURTASS
LFA study area.
Response: The endangered Arabian
Sea DPS of humpback whales is
geographically, genetically, and
demographically isolated from all other
populations of humpback whales.
Research surveys over the past 30 years
have confirmed the continuous presence
of humpback whales in the shallow,
nearshore waters of the Arabian Sea off
Oman, which is not in the SURTASS
LFA sonar Study Area. Only a limited
and incidental number of humpback
whale sightings (13 recorded
humpbacks by the Marine Mammal
Conservation Network of India, with
records beginning in 1943), passive
acoustic detections, strandings, and one
tagging record have been reported from
the eastern Arabian Sea off Pakistan and
western India, with only the waters off
western India being located within the
SURTASS LFA sonar Study Area. Given
the small population size and the welldocumented concentration of this DPS
in the western Arabian Sea, the Navy
concluded, and NMFs agreed, that the
likelihood of humpback whales from the
Arabian Sea DPS being located in the
waters of the northwestern most part of
the Study Area was vanishingly small.
However, as part of the OBIA process
and upon the recommendation of public
comments on the 2018 SURTASS LFA
Draft SEIS/SOEIS and MMPA proposed
rule, NMFS and the Navy assessed all
available data and information on
humpback whales in the waters off
western India and the nearby
Lakshadweep Archipelago. See Area 32
of Appendix C of the 2019 SURTASS
LFA FSEIS/SOEIS for review of the
scientific literature available for this
region, which includes assessment of
three recommended OBIAs
encompassing the west and south coast
of India: One in the Northern Arabian
Sea (north of 21°50′ N from the western
coast of India westward to the boundary
of the SURTASS LFA study area); one
along the coast of west coast of India
from Konkan and Malabar out to 60 km
(32.4 nmi) from shore; and one along the
south coast of India from Muttom to
Kanyakumari out to include Wadge
Bank. Although several records indicate
that rare occurrences of humpback
whales from the Arabian Sea DPS have
been reported from the waters off
central and southern Western India,
these records are far too sparse to
suggest a regular occurrence of part of
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the Arabian Sea population of
humpbacks off western India. For this
reason, the Navy made the decision not
to include the Arabian Sea DPS of
humpback whales in the 2019
SURTASS LFA FSEIS/SOEIS nor in
associated documentation, including the
ESA Biological Evaluation for SURTASS
LFA sonar. However, due the potential
for important migrational activity of
humpbacks in these waters, the waters
of western and southern India were
added to the OBIA Watchlist and NMFS
and the Navy will evaluate the area as
a potential OBIA through the Adaptive
Management Process if new information
becomes available.
B. Maldives Archipelago—Given the
importance of this area for multiple
species, including Arabian Sea and
Southern Ocean humpback whales, and
Bryde’s whales, NMFS should establish
an OBIA encompassing the waters
within 30 nmi of the archipelago
baseline.
Response: Humpback whales and
Bryde’s whales occur in the area around
the Maldives. Again, however,
occurrence in a marine area is not
sufficient to establish its importance to
a species. The Navy and NMFS
examined all available data and research
on whale occurrence in the waters
adjacent to the Maldives to determine if
whales conduct biologically important
activities in these waters. As described
in the final assessment of the Maldives
area as a potential OBIA in Chapter 5
and Appendix C of the 2019 SURTASS
LFA FSEIS/SOEIS, there were no data to
support that whales conduct
biologically important activities in this
area. The area was not designated as an
OBIA; however, it has been added to the
OBIA Watchlist and NMFS and the
Navy will evaluate the area as a
potential OBIA through the Adaptive
Management Process if new information
becomes available.
C. Konkan and Malabar Coast—NMFS
should establish an OBIA to protect this
important habitat area for Arabian Sea
humpback whales, blue whales, and
Bryde’s whales (See Figure 2 for
proposed approximate boundaries).
Response: See response to Comment
37A above. NMFS and the Navy
assessed all available data and
information on humpback, blue, and
Bryde’s whales for the West and South
Coasts of India area (see Area 32 in
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS for review of the scientific
literature available for this region,
which includes assessment of three
recommended OBIAs encompassing the
west and south coast of India: One in
the Northern Arabian Sea (north of
north of 21°50′ N from the western coast
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of India westward to the boundary of
the SURTASS LFA study area); one
along the coast of west coast of India
from Konkan and Malabar out to 60 km
(32.4 nmi) from shore; and one along the
south coast of India from Muttom to
Kanyakumari out to include Wadge
Bank). There was no evidence that
biologically important activities are
conducted in this area. The area was not
designated as an OBIA, however it has
been added to the OBIA Watchlist and
NMFS and the Navy will evaluate the
area as a potential OBIA through the
Adaptive Management Process if new
information becomes available.
D. Muttom-Kanyakumari and Wadge
Bank, southern India—NMFS should
establish an OBIA to protect this
important foraging habitat area for
Arabian Sea humpback whales and
potentially other baleen whale species
(See Figure 3 for proposed approximate
boundaries).
Response: See response to Comment
37A above.
E. Northwestern Pacific Breeding
Areas—NMFS should afford protection
to: (i) The Okinawa/Philippines
humpback whale DPS by establishing an
OBIA encompassing waters less than
200 m deep—typical of humpback
whale wintering habitat—surrounding
the islands of Okinawa from January to
April and the islands of Ogasawara from
December to June. The commenters note
that Ogasawara is included on NMFS’
list of potential OBIAs (84 FR at Table
21, 7) and strongly recommend that this
area be carried forward for inclusion
and expanded to the 200 m depth
contour; and (ii) The newly designated
‘‘Babuyan Marine Corridor IMMA’’ and
buffer recommended for protection,
primarily identified as the only breeding
area for humpback whales in the
Philippines.
Response: The area around the islands
of Ogasawara was designated as an
OBIA for humpback whales from
December to May (this area was also
designated for sperm whales from June
to September). Although humpback
whales are observed in relatively
shallow waters of the Ogasawara and
Kazin Islands, humpbacks move
between the islands. Male humpback
whales are also observed in deeper more
offshore waters than are female
humpbacks with calves. Last, the
specific location where breeding and
calving occur in this area is unknown.
Given that lack of knowledge and to
accommodate the deeper water
movements of male humpbacks, the
OBIA boundary around the Ogasawara
and Kazin Islands was offset from the
coastal standoff zone by less than 4 nmi
(7.4 km). A straight-line corridor to
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accommodate migrating humpbacks that
are traveling between the Ogasawara
and Kazin Islands was also included.
The area surrounding the islands of
Okinawa was designated as part of the
Ryukyu-Philippines OBIA. As
recommended all areas of the Babuyan
Marine Corridor IMMA outside of the
coastal standoff zone were designated as
part of the Ryukyu-Philippines OBIA.
The Ryukyu-Philippines OBIA is
designated seasonally from January to
April (Okinawa) and late February to
April (Philippines). Based on the best
available information, the boundary for
the Ryukyu-Philippines OBIA was
derived by creating a buffer that was
offset from the coastal standoff range by
less than 2 nmi (3.7 km) around the
majority of the Ryukyu Islands and
Babuyan Islands, with straight lines
creating transit corridors between the
Ryukyu Islands, the eastern Taiwan
coast, and the Babuyan Islands off the
northern Philippines. The boundary off
eastern Taiwan was created as a straight
line less than 3 nmi (5.6 km) from the
Taiwanese coastal standoff range.
Although the Ryukyu Islands extend all
the way to Kyushu Island of the main
Japanese islands, since no records
indicate humpback whales are sighted
in these waters of the northern Ryukyu
Islands, the OBIA boundary extends
only as far north as Amami Island.
F. Northwestern Pacific Feeding
Areas—NMFS should establish: (i) An
OBIA extending from the east
Kamchatka coastline offshore to the
continental shelf break (encompassing
the ‘‘Watchlist’’ OBIA ‘‘Southeast
Kamchatka Coastal waters’’), from June
through September; and (ii) an OBIA
reflecting the boundaries of the
‘‘Commander Islands Shelf and Slope
EBSA,’’ which has not yet been
considered.
Response: The Commander Islands
Shelf and Slope EBSA was not included
for consideration as an OBIA, because
the area lies outside the SURTASS LFA
sonar Study Area, and as such, is not
eligible for consideration as an OBIA.
NMFS and the Navy considered the
Southeast Kamchatka Coastal Waters
(although it was not on the OBIA
Watchlist) and designated an OBIA off
southeastern Kamchatka. Further details
on the seasonal restrictions and areal
extent may be found in Appendix C of
the 2019 SURTASS LFA FSEIS/SOEIS.
Comment 38: NRDC et al.
recommended that for Bryde’s whales
NMFS designate a year-round OBIA
reflecting the boundaries of both the
‘‘Coastal Northern Bay of Bengal
IMMA’’ and the ‘‘Swatch-of-No-Ground
IMMA,’’ and their associated buffers
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designed to inform place-based
conservation measures.
Response: The Coastal Northern Bay
of Bengal IMMA was assessed but not
carried forward as a potential OBIA
because it is relevant to marine mammal
species known to only frequent inshore
waters (Irrawaddy, Indo-Pacific finless,
and Indo-Pacific humpback dolphins).
These species are not anticipated to be
impacted by SURTASS LFA sonar
training and testing activities. NMFS
and the Navy have designated the
Swatch-of-No-Ground (SoNG) OBIA.
The SoNG IMMA encompasses the
waters of the Head of the SoNG canyon
(MMPATF, 2019), which were not fully
encompassed in the existing OBIA 20.
The SoNG IMMA boundary fully
captures the foraging habitat where
Bryde’s whales have been identified
(Smith et al., 2008; WCS Bangladesh,
2014). The SoNG OBIA for this final
rule combines OBIA 20, Northern Bay of
Bengal and Head of SoNG OBIA (in
place during the NDE) and the SoNG
IMMA.
Comment 39: NRDC et al.
recommended that for gray whales,
NMFS establish an OBIA off eastern
Japan extending from the coast out to
the continental shelf edge from March
through May.
Response: In consideration of the
Convection Zone East of Honshu EBSA
for baleen whales, the Navy and NMFS
evaluated a migrational corridor just off
the coastal standoff range along eastern
Honshu island for the western gray
whale DPS. NMFS with Navy input
designated an OBIA in this area off
eastern Honshu for gray whale
migration. Additional details on the
areal extent and seasonal restrictions are
provided in Appendix C of the 2019
SURTASS LFA FSEIS/SOEIS.
Comment 40: NRDC et al.
recommended that for sei whales,
NMFS establish an OBIA that extends
from the Polar Front boundary
southwards towards the Kuroshio
Extension Front (i.e., approximately 45°
N to 35° N, 152° E to 170° E) to protect
foraging sei whales (i.e., the ‘‘Polar/
Kuroshio Extension Front’’ area that
NMFS identified in the proposed rule as
a potential OBIA). They stated that
protecting this highly productive
foraging area would have broad benefit
for a number of marine mammal
species, including sperm whales, other
odontocetes, and elephant seals.
Response: The Navy and NMFS
evaluated the Polar/Kuroshio Extension
Fronts region as recommended by the
commenter. Additionally, the Navy and
NMFS assessed the North Pacific
Transition Zone EBSA (which
encompasses these fronts) for its
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importance to the northern elephant
seal. Although it is true that the North
Pacific Transition Zone (NPTZ), Polar
Front, and Kuroshio Extension Front are
defined as oceanographic frontal zones
that are large spatially persistent
features, the physical, chemical, and
even biological features by which each
frontal zone is defined, including the
species associated with them, are
unique and not consistent across frontal
zones. It would, therefore, be
scientifically inappropriate to combine
the frontal areas into one large
combined area as suggested and
disregard the defining features of the
respective frontal zones and the data
associated with each. The Navy and
NMFS are aware of the suggested
correlation of oceanographic frontal
features with sei whale foraging and
reviewed the available information on
foraging areas for the North Pacific sei
whale population. However, data and
information are currently insufficient to
correlate specific oceanographic frontal
features or their boundaries in the
northwestern Pacific with biologically
important behavior of sei whales.
Although neither the Polar/Kuroshio
Extension Fronts nor NPTZ have been
designated as OBIAs, both marine areas
have been added to the OBIA Watchlist.
The Navy and NMFS will continue to
compile and evaluate data and
information on both areas and will
reassess them in the future through the
Adaptive Management process.
Comment 41: NRDC et al.
recommended that for sperm whales:
A. Waters off Sri Lanka—Similar to
blue whales, NMFS should advance the
following three areas currently being
considered by NMFS as year-round
mitigation areas for both blue and sperm
whales (and, in some cases, Bryde’s
whales): (i) ‘‘Southern Coastal/Offshore
Waters between Galle and Yala National
Park’’, (ii) ‘‘Trincomalee Canyon and
Associated Ecosystems’’, and (iii)
‘‘Coastal and Offshore Area of the Gulf
of Mannar’’ (OBIA Watchlist), which
also encompasses the currently not
considered ‘‘Sri Lankan Side of Gulf of
Mannar’’ EBSA.
Response: See response to Comment
36.
B. Lakshadweep Archipelago—NMFS
should consider designating an OBIA to
encompass the entirety of the
Lakshadweep Archipelago and the
waters therein.
Response: In assessing this area as a
potential OBIA, NMFS and the Navy
conducted a thorough review of the
available information on marine
mammal occurrence in the
Lakshadweep Archipelago. Very little
information is available on marine
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40157
mammal occurrence in the
Lakshadweep Archipelago, with very
few survey sightings of cetaceans or
stranding data. Because of this lack of
data there is no indication that this area
supports important biological activities
for marine mammals and, therefore, it
does not meet the biological criteria for
designation as an OBIA or otherwise
warrant inclusion as a mitigation area
pursuant to the LPAI standard. However
the Lakshadweep Archipelago has been
added to the OBIA Watchlist and NMFS
and the Navy will evaluate the area as
a potential OBIA through the Adaptive
Management Process if new information
becomes available.
C. Northwestern Pacific—To protect
foraging areas for sperm whales, NMFS
should utilize the boundaries of three
historic whaling grounds (i.e., Japan
Ground, Coast of Japan Ground, and
Japan-Bonin Island Ground) to delineate
OBIAs for sperm whales in the
Northwestern Pacific Ocean (following
the areas described in Ivashchenko et al.
(2014); Fig. 9). They noted that the
Japan Ground area is generally
consistent with that of the ‘‘Polar/
Kurioshio Extension Fronts’’ area that
NMFS is currently considering.
Response: NMFS and the Navy did
not consider the major areas of sperm
whale concentration outlined in
Ivashchenko et al. (2014) when
assessing the North Pacific Transition
Zone EBSA as we did not consider these
areas either singly or in combination to
be coincident with the boundary of the
North Pacific Transition Zone EBSA.
While the whaling data compiled by
Ivaschenko et al. (2014) provide
valuable information on the historical
extent of the North Pacific sperm whale
distribution, those locations cannot be
used without other supporting data to
create OBIAs reflective of areas where
sperm whales conduct important
biological activities. These areas of
historical concentrations provide no
insights into what important biological
activities are occurring in the areas.
Many cetacean species became
extirpated and never repopulated
heavily exploited commercial whaling
grounds, so basing current occurrences
for a species solely on whaling ground
data is not appropriate; those data
provide a historical perspective on
occurrence and distribution but cannot
be used as a current template of a
species’ occurrence. Accordingly, these
areas were not considered as potential
OBIAs.
Comment 42: NRDC et al.
recommended a year-round OBIA in the
waters of the Avacha Gulf to protect
important foraging habitat and
transitory corridor for killer whales.
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NRDC et al. noted that the small
population size and cumulative impacts
upon mammal-eating killer whales in
this area should be carefully considered
by NMFS and that neglecting to include
the best available science on the
population structure, ecotypes, and
abundance estimates of killer whales in
this region is a major oversight of the
proposed rule.
Response: NMFS and Navy are aware
of the importance of southeastern
Kamchatka and Avacha Gulf to resident
killer whales and have assessed the
wealth of survey data and information
on this population of odontocetes and
the importance of the area, particularly
Avacha Gulf, to this population.
However, the majority of Avacha Gulf,
including the core area where most
sightings of resident killer whales have
been recorded, lies within the coastal
standoff zone for SURTASS LFA sonar.
To be eligible as an OBIA, a marine area
must meet geographic criteria, one of
which is that the area must lie outside
the coastal standoff range for LFA sonar
(i.e., be more than 12 nmi (22 km) from
shore). Furthermore, OBIA designation
is designed to provide protection to
those marine mammal species most
likely to be impacted by LFA sonar,
which are the LF-sensitive species.
There is no evidence that killer whales
have increased sensitivity to LF sounds.
Therefore, we do not believe an OBIA
will add meaningful protection beyond
that provided by the LFA sonar
mitigation zone (described in the
Mitigation section). These factors render
this marine area ineligible for
consideration as an OBIA for SURTASS
LFA sonar. However, an OBIA in
southeastern Kamchatka waters outside
the coastal standoff range has been
designated for gray and right whales
that migrate and forage seasonally in
these waters. Thus, albeit not designated
specifically for resident killer whales in
this area, the OBIA will reduce the
exposure of some resident killer whales
to LFA sonar.
Comment 43: NRDC et al. stated a
more comprehensive evaluation of
important habitat for harbor porpoises
and beaked whales is needed, however
they recommended that NMFS establish
OBIAs in waters outside the coastal
exclusion zone that are contained
within the Biologically Important Areas
for Blainville’s and Cuvier’s beaked
whales, as well as for other small,
resident odontocete populations, around
the Main Hawaiian Islands, as defined
in Baird et al. (2015).
Response: One of the factors
considered for designation of OBIAs,
established in the 2012 rulemaking and
SURTASS LFA FSEIS/SOEIS and
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carried forward in the current OBIA
assessment process, is sensitivity to LF
sounds. The intent of OBIAs is to
protect those marine mammal species
most likely to hear and be affected by
LFA sonar transmissions and to provide
them with additional protections during
periods when they are conducting
biologically significant activities. Based
on current information, neither
Blainville’s nor Cuvier’s beaked whales
are known to have increased sensitivity
to LF sounds, therefore we do not
believe added protection afforded by an
OBIA (i.e., beyond that by the LFA sonar
mitigation zone described in the
Mitigation section) is warranted.
However, a large portion of the BIAs are
included in the Main Hawaiian Islands
OBIA designated for other species.
Comment 44: NRDC et al.
recommended that NMFS include
critical habitat that NMFS recently
designated, under the Endangered
Species Act, for the Main Hawaiian
Islands insular false killer whale.
Response: NMFS and the Navy
assessed the ESA-designated critical
habitat for the Main Hawaiian Insular
DPS of false killer whales as a potential
OBIA. However, there is no evidence
that false killer whales have increased
sensitivity to LF sounds. Therefore, we
do not believe an OBIA will afford more
protection than what is provided by the
LFA sonar mitigation zone (described in
the Mitigation section). False killer
whales hear underwater sounds in the
range of 1 to 115 kHz, with best hearing
at 17 kHz (Au, 1993; Johnson, 1967).
Nevertheless, a large portion of the ESA
critical habitat for the Main Hawaiian
Insular DPS of false killer whales is
included in the newly designated Main
Hawaiian Islands OBIA (November to
April), and per the CZMA consultation
with the State of Hawaii for SURTASS
LFA sonar, the Navy agreed not to
ensonify Hawaii state waters (out to 3
nmi) at levels above 145 dB re: 1 mPa
rms.
Comment 45: NRDC et al.
recommended that NMFS establish a
year-round OBIA at Cross Seamount,
which represents important foraging
habitat for a potentially rare or
evolutionarily distinct species of beaked
whale. They noted that such a
designation would have secondary
benefits for a variety of other odontocete
species foraging at Cross Seamount
seasonally between November and May.
Response: The Cross Seamount is
within the SURTASS LFA sonar Study
Area and is known for prey aggregations
that support beaked whale foraging, as
inferred by the detection of beaked
whale echolocation signals at night.
However, there is no supporting
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information or data to suggest that the
waters surrounding this seamount
support higher than average densities of
beaked whales and no small-resident
populations have been confirmed,
which would qualify as a biological
criterion for delineation of an OBIA in
the region. Additionally, based on
current information, beaked whales are
not known to have increased sensitivity
to LF sounds, therefore we do not
believe added protection afforded by an
OBIA (i.e., beyond that provided by the
LFA buffer zone, described in the
Mitigation section) is warranted to
protect beaked whales foraging in the
waters of Cross Seamount. However
through the adaptive management
process, NMFS and the Navy will
evaluate new information as it becomes
available.
Comment 46: The Commission noted
that 14 of the 25 potential OBIAs (as
described in Table 21 of the proposed
rule) meet the various low frequencysensitivity and biological importance
criteria and occur within the SURTASS
LFA sonar mission areas and, at least
partially, outside the coastal stand-off
range where SURTASS LFA sonar
activities already are restricted. The
Commission suggests these areas should
be designated as OBIAs. Additionally,
the Commission noted that Raja Ampat
and Northern Bird’s Head serve as
important habitat for migrating and/or
foraging Bryde’s and sperm whales and
the Main Hawaiian Archipelago serves
as important habitat for breeding and
calving humpback whales. In addition,
Peter the Great Bay serves as important
breeding habitat for spotted seals. All of
those species are sensitive to LF sound,
and portions of those potential OBIAs
meet the geographic criteria as well. The
Commission also notes that the Pacific
Remote Islands Marine National
Monument (MNM), including areas
around Wake and Johnston Atolls and a
small part of the northern end of
Kingman Reef/Palmyra Atoll, meet the
geographic criteria. Although marine
mammal data are limited, sperm whales
have been observed in the MNM and the
Navy noted that the MNM could serve
as potential critical habitat for some
threatened and endangered species (e.g.,
humpback whales). Baleen and sperm
whales are considered sensitive to lowfrequency sound. For these reasons, the
Commission recommended that NMFS
include these areas as OBIAs in the final
rule.
Response: Fourteen OBIAs were
designated. Of the 14 OBIAs presented
in Table 21 of the proposed rule, all but
the West of Maldives was designated as
an OBIA. The West of Maldives area
was not designated because there were
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no data to support that whales
conducted biologically important
activities in this area. The West of
Maldives area has been added to the
OBIA Watchlist (see response to
Comment 36). As recommended, an
OBIA has also been designated for the
Main Hawaiian Islands.
Raja Ampat and Northern Bird’s Head
was considered as a candidate OBIA.
However, none of the areas surveyed in
any of the best available data occur
within the SURTASS LFA sonar Study
Area. Since no data exist to support
important biological activities by marine
mammals being carried out in the part
of this marine area that lies within the
SURTASS LFA Study Area, this area
did not meet the biological criteria for
OBIA designation and was not
considered further as an OBIA. The area
has been added to the OBIA Watchlist,
and NMFS and the Navy will evaluate
the area as a potential OBIA through the
Adaptive Management Process if new
information becomes available.
Peter the Great Bay was considered as
a candidate OBIA. Only a small portion
of Peter the Great Bay lies outside the
coastal standoff zone and thus meets the
geographic criteria. While Peter the
Great Bay is an important seasonal
reproductive area for the spotted seal,
pupping activities are conducted in the
northern reaches of the bay, well within
the coastal standoff zone, and no
pupping or reproductive activity is
known to occur in the portion of the bay
outside the coastal standoff zone.
Further, based on currently available
information and data, the spotted seal is
not known to have increased sensitivity
to LF sound; the best hearing sensitivity
in-water of the spotted seal is between
2 and 72 kHz (Reichmuth et al., 2013;
Sills et al., 2014). Reichmuth et al.
(2016) found no TTS in trained spotted
seals exposed to LF impulsive sounds
that represented single seismic air gun
transmissions (which are different from
LFA sonar signals). As such, an OBIA is
not warranted. For these reasons, the
IMMA for Peter the Great Bay was not
further considered as an OBIA for
SURTASS LFA sonar.
The Pacific Remote Islands Marine
National Monument (Wake/Johnson/
Palmyra atolls and Kingman Reef Units
which are located in the SURTASS LFA
Study Area) was on the OBIA Watchlist
and was considered as a candidate
OBIA. NMFS and the Navy reviewed all
available data and no specific important
biological behaviors of marine mammals
have been characterized in these waters.
As such, this marine area did not meet
the biological criteria required for
designation of an OBIA and was not
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further considered currently as an
OBIA.
Practicability Analysis
Comment 47: NRDC et al. noted that
the Navy’s application distinguishes
among types of LFA activities, ranging
from ‘‘military crew (MILCREW)
proficiency training’’ to ‘‘vessel and
equipment maintenance.’’ NRDC et al.
stated that these categories suggest that
geographic mitigation could potentially
be implemented for a subset of activities
in the case that blanket geographic
mitigation is deemed impracticable—a
development that could, if rigorously
applied, substantially improve
mitigation and help NMFS and the Navy
meet their MMPA responsibilities. In its
practicability analysis for OBIAs, NRDC
et al. recommended that NMFS analyze
the practicability of mitigating each
individual category of activity and
implement mitigation measures to the
greatest extent practicable for each
category. NRDC et al. stated that such an
approach will serve to reduce potential
impact to marine mammals in an OBIA
even if not all Navy activities can
practicably be mitigated.
Response: The Navy and NMFS’ OBIA
assessment resulted in 14 candidate
OBIAs. These 14 candidate OBIAs
underwent Navy Fleet practicability
review and the Navy Fleet determined
that the designation of the 14 OBIAs in
the SURTASS LFA sonar Study Area for
the relevant effective periods would not
impede the effectiveness of SURTASS
LFA active sonar testing and training
activities, would be practical to
implement as a geographic mitigation
measure, and would not impact
personnel safety. As a result, all 14
candidate OBIAs were deemed
practicable and 14 new, marine
mammal OBIAs for SURTASS LFA
sonar have been designated (see the
Mitigation section and Table 21) and
apply to all SURTASS LFA sonar
training and testing activities. Therefore,
analysis of practicability for different
types of activities is not necessary.
Additionally, all of the activities
utilize the SURTASS LFA sonar system
within the same operating profile, such
that any single hour of SURTASS LFA
sonar transmissions is the same as all
others. The differentiation of activities
was merely for planning purposes, to
aid in determining the overall number
of transmission hours per year for
SURTASS LFA sonar training and
testing. It is not practicable to develop
geographic mitigation measures for each
activity.
Comment 48: NRDC et al.
recommended that NMFS, in
consultation with the Navy, establish
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40159
geographic alternatives for OBIAs that
raise practicability concerns for certain
categories of LFA activity. Given the
importance of site-selection in
minimizing environmental impacts, it is
conventional for agencies to analyze the
environmental effects of alternative sites
that meet the activity’s purpose and
need. They stated that doing so is
essential where, as here, protected
habitat is of ‘‘paramount importance’’.
Response: As previously noted in the
response to Comment 47, all 14
candidate OBIAs were deemed
practicable and 14 new marine mammal
OBIAs for SURTASS LFA sonar have
been designated (see the Mitigation
section and Table 21), therefore
geographic alternatives for OBIAs are
not necessary.
Comment 49: NRDC et al.
recommended where reasonable
alternative sites are not available,
NMFS, in consultation with the Navy,
consider other mitigation measures,
including procedural requirements (e.g.,
requiring Fleet-level approval for use),
substantive standards (e.g., allowing use
only when certain criteria are met), and
activity limits (e.g., limiting the number
of activities per annum or avoiding
biologically important periods such as
the blue whale foraging season), that
would protect vital habitat while
allowing continued use for training
purposes. They stated that the Navy, in
the ‘‘practicability criterion’’ it sets forth
in the DSEIS, commits to identifying for
NMFS the concerns that lead to its
determination that a particular OBIA is
not practicable, and discussing
‘‘whether modifications could be made
to the proposed OBIA to alleviate the
Navy’s practicability concerns.’’ (DSEIS
at 5–8). NRDC et al. recommended that
both agencies work to ensure that the
resulting analysis is rigorous and
searching, rather than a parroting of
Navy conclusions (citing Conservation
Council for Hawaii v. NMFS, 97
F.Supp.3d 1210, 1230 (D. Haw. 2015)).
Response: As previously noted in the
response to Comment 48, all 14
candidate OBIAs were deemed
practicable and 14 new marine mammal
OBIAs for SURTASS LFA sonar have
been designated (see the Mitigation
section and Table 21), so there is no
need to identify geographic alternative
sites for OBIAs. As described in the
Mitigation section, these OBIAs, in
combination with the existing
procedural mitigation effect the least
practicable adverse impact.
Comment 50: NRDC et al.
recommended to the extent that
additional operational mitigation is
impracticable, NMFS consider
compensatory mitigation to achieve the
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‘‘least practicable adverse impact’’
required under the MMPA. NRDC et al.
stated that compensatory mitigation is a
concept that is routinely employed in
implementation of the Endangered
Species Act, Clean Water Act, and other
environmental laws. The MMPA itself is
broad in its characterization of
mitigation, requiring the agency to
prescribe not only ‘‘permissible
methods of taking pursuant to [a
specified activity],’’ but also ‘‘other
means of effecting the least practicable
adverse impact’’ on affected marine
mammal species and populations and
on their habitat. 16 U.S.C.
1371(a)(5)(A)(II)(aa) (emphasis added).
NRDC et al. stated that the Ninth Circuit
opinion in Pritzker makes clear, this
requirement should be construed by the
agency as a ‘‘stringent standard.’’ 828
F.3d at 1129, 1133, 1135. NRDC et al.
recommended that NMFS consider
compensatory mitigation for the adverse
impacts of the permitted activity on
marine mammals and their habitat that
cannot be prevented or mitigated by
modifying SURTASS LFA operations.
Response: As previously noted in the
response to Comment 47, all 14
candidate OBIAs were deemed
practicable and 14 new, marine
mammal OBIAs for SURTASS LFA
sonar have been designated (see the
Mitigation section and Table 21),
therefore other mitigation measures for
these areas are not necessary. NMFS has
prescribed a robust comprehensive suite
of measures that are expected to reduce
the amount of Level A and Level B
harassment takes, as well as the severity
of any incurred impacts on the species
or stock and their habitat. Compensatory
mitigation is not required to be imposed
upon Federal agencies under the
MMPA. Importantly, the commenter did
not recommend any specific measure(s),
rendering it impossible to conduct any
meaningful evaluation of its
recommendation. Finally, many of the
methods of compensatory mitigation
that have proven successful in terrestrial
settings (purchasing or preserving land
with important habitat, improving
habitat through plantings, etc.) are not
applicable in a marine setting with such
far-ranging species. Thus, any presumed
conservation value from such an idea
would be purely speculative at this
time.
National Environmental Policy Act
(NEPA)
Comment 51: NRDC et al. stated that
NMFS cannot rely on the Navy’s EIS to
fulfill its obligations under NEPA
because it is unlawful. They stated that
the Navy’s DEIS serves only the Navy’s
interests, considering only the purpose
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18:45 Aug 12, 2019
Jkt 247001
and need of military readiness, thus
limiting the range of alternatives and
mitigation. They noted that the Navy’s
purpose and need is unrelated to NMFS’
statutory obligations under the MMPA.
Those obligations in this instance
involve prescribing regulations for the
incidental take of marine mammals that
effect the least practicable adverse
impact on such species or stock and its
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stock for
subsistence uses (16 U.S.C.
1371(a)(5)(A)(i)). While military
readiness effectiveness must be
considered, id. § 1371(a)(5)(ii), the
ultimate purpose of the MMPA is to
protect marine mammals, and NMFS is
charged with that duty. Thus, they
stated that NMFS has a distinct purpose
and need for its proposed regulations
that may dictate consideration of a
broader set of alternatives.
Response: The proposed action at
issue is the Navy’s proposal to conduct
SURTASS LFA sonar testing and
training activities in the SURTASS LFA
Study Area. NOAA’s NMFS is a
cooperating agency for that proposed
action, as it has jurisdiction by law and
special expertise over marine resources
impacted by the proposed action,
including marine mammals and
federally-listed threatened and
endangered species. Consistent with the
regulations published by the Council on
Environmental Quality (CEQ), it is
common and sound NEPA practice for
NOAA to adopt a lead agency’s NEPA
analysis when, after independent
review, NOAA determines the
document to be sufficient in accordance
with 40 CFR 1506.3. Specifically here,
NOAA must be satisfied that the Navy’s
EIS adequately addresses the impacts of
issuing the MMPA incidental take
authorization and that NOAA’s
comments and concerns have been
adequately addressed. There is no
requirement in CEQ regulations that
NMFS, as a cooperating agency, issue a
separate purpose and need statement in
order to ensure adequacy and
sufficiency for adoption. Nevertheless,
the Navy, in coordination with NMFS,
has clarified the statement of purpose
and need in the 2019 SURTASS LFA
FSEIS/SOEIS to more explicitly
acknowledge NMFS’ action of issuing
an MMPA incidental take authorization.
NMFS also clarified how its regulatory
role under the MMPA related to Navy’s
activities. NMFS’ early participation in
the NEPA process and role in shaping
and informing analyses using its special
expertise ensured that the analysis in
PO 00000
Frm 00030
Fmt 4701
Sfmt 4700
the 2019 SURTASS LFA FSEIS/SOEIS is
sufficient for purposes of NMFS’ own
NEPA obligations related to its issuance
of incidental take authorization under
the MMPA.
Regarding the alternatives, NMFS’
early involvement in the development
of the 2019 SURTASS LFA FSEIS/
SOEIS and role in evaluating the effects
of incidental take under the MMPA
ensured that the 2018 SURTASS LFA
DSEIS/SOEIS would include adequate
analysis of a reasonable range of
alternatives. The 2019 SURTASS LFA
FSEIS/SOEIS includes a No Action
Alternative specifically to address what
could happen if NMFS did not issue an
MMPA authorization. The other two
Alternatives address two action options
that the Navy could potentially pursue
while also meeting their mandated Title
10 training and testing responsibilities.
More importantly, these alternatives
fully analyze a comprehensive variety of
mitigation measures. This mitigation
analysis supported NMFS’ evaluation of
our options in potentially issuing an
MMPA authorization, which primarily
revolves around the appropriate
mitigation to prescribe. This approach
to evaluating a reasonable range of
alternatives is consistent with NMFS
policy and practice for issuing MMPA
incidental take authorizations. NOAA
has independently reviewed and
evaluated the SEIS, including the
purpose and need statement and range
of alternatives, and determined that the
2019 SURTASS LFA FSEIS/SOEIS fully
satisfies NMFS’ NEPA obligations
related to its decision to issue the
MMPA final rule and associated LOA,
and we have adopted it.
Description of Marine Mammals in the
Area of the Specified Activities
Forty-six species of marine mammals,
including 10 baleen whale (mysticete);
31 toothed whale (odontocete); and 5
seal/sea lion (pinniped) species that
represent 139 stocks (as currently
classified) have confirmed or possible
occurrence within potential SURTASS
LFA sonar activity areas in the central
and western North Pacific Ocean and
eastern Indian Ocean. Multiple stocks of
some species are affected, and
independent assessments are conducted
to make the necessary findings and
determinations for each of these.
There are 11 marine mammal species
under NMFS’ jurisdiction listed as
endangered or threatened under the
Endangered Species Act (ESA; 16 U.S.C.
1531 et seq.) with confirmed or possible
occurrence in the study area for
SURTASS LFA sonar training and
testing activities. Marine mammal
species under NMFS’ jurisdiction in the
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study area listed as endangered are:
North Pacific right whale (Eubalaena
japonica); gray whale (Eschrichtius
robustus); blue whale (Balaenoptera
musculus); fin whale (Balaenoptera
physalus); Western North Pacific
distinct population segment (DPS) of
humpback whale (Megaptera
novaeangliae); sei whale (Balaenoptera
borealis); sperm whale (Physeter
macrocephalus); Main Hawaiian Islands
Insular DPS of false killer whale
(Pseudorca crassidens); Western DPS of
the Steller sea lion (Eumetopias
jubatus); and Hawaiian monk seal
(Neomonachus schauinslandi). The
southern DPS of the spotted seal (Phoca
largha) is listed as threatened under the
ESA and is within the study area for
SURTASS LFA sonar activities. The
aforementioned threatened and
endangered marine mammal species
also are depleted under the MMPA.
Chinese river dolphins (Lipotes
vexillifer) do not have stocks designated
within the SURTASS LFA sonar study
area (see Potential SURTASS LFA Study
Area section). The distribution of the
Chinese river dolphin is limited to the
main channel of a river section between
the cities of Jingzhou and Jiangyin.
Based on the extremely rare occurrence
of these species in the Navy’s Study
Area and due to the coastal standoff
range (i.e., distance of 22 km (13 mi; 12
nmi) from land), take of Chinese river
dolphins is not considered a reasonable
likelihood; therefore, this species is not
addressed further in this document.
Similarly, the Taiwanese humpback
dolphin, a subspecies of the Indo-Pacific
humpback dolphin, is found only in a
small, narrow stretch of estuarine waters
off the western coast of Taiwan. Take of
this species is also not considered a
reasonable likelihood and this species is
not addressed further in this document.
Finally, the small population (<100
individuals) of Arabian Sea DPS of
humpback whales includes those
whales breeding and foraging in tropical
waters year-round along the coast of
Oman (Bettridge et al., 2015). Historical
records, sparse sightings and acoustic
recordings, and one satellite tagged
whale, along the coasts of Pakistan and
India indicate that the Arabian Sea DPS
range may also include these areas.
Based on the small population size and
the extremely rare occurrence of
humpback whales along the coasts of
Pakistan and India, take of the Arabian
Sea DPS of humpback whales is not
considered a reasonable likelihood;
therefore, this species is not addressed
further in this document.
None of the marine mammal species
which the U.S. Fish and Wildlife
40161
Service (USFWS) is responsible for
managing occur in geographic areas that
would overlap with the SURTASS LFA
sonar Study Area. Therefore, the Navy
has determined that SURTASS LFA
sonar activities would have no effect on
the endangered or threatened species or
the critical habitat of the ESA-listed
species under the jurisdiction of the
USFWS. These species are not
considered further in this notice.
To accurately assess the potential
effects of SURTASS LFA sonar
activities, the Navy modeled 15
representative sites in the SURTASS
LFA sonar activity area. Tables 2
through 16 (below) summarize the
abundance, status under the ESA, and
density estimates of the marine mammal
species and stocks that have confirmed
or possible occurrence within the 15
SURTASS LFA sonar modeling areas in
the central and western North Pacific
Ocean and eastern Indian Ocean.
Information on how the density and
abundance stock estimates were derived
for the selected mission sites is
described in Appendix D of the 2019
SURTASS FSEIS/SOEIS and references
for the abundances and densities
described are provided in Tables 2
through 16.
TABLE 2—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 1, EAST OF JAPAN
Stock name 1
Species
Density
(animals/Km 2)
Abundance source reference
Winter
Spring
Summer
WNP .....................
9,250
Tillman, 1977 ..........................
0.00001
0.00001
................
0.00001
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
WNP .....................
WNP OE ..............
WNP .....................
20,501
25,049
9,250
0.0006
0.0022
................
0.0006
0.0022
................
0.0006
0.0022
0.0002
0.0006
0.0022
0.0002
Humpback whale ....................
WNP stock and
DPS.
WNP .....................
NP ........................
WNP .....................
1,328
IWC, 2009 ..............................
Buckland et al., 1992 .............
Tillman, 1977; Mizroch et al.,
2009.
Bettridge et al., 2015 ..............
................
................
0.00036
0.00036
0.00001
0.00029
................
0.00001
0.00029
................
................
0.00029
0.0029
................
0.00029
0.0029
Common dolphin .....................
WNP .....................
3,286,163
0.0761
0.0761
0.0761
0.0761
Common bottlenose dolphin ...
100,281
0.0171
0.0171
0.0171
0.0171
Cuvier’s beaked whale ...........
WNP Northern Offshore.
WNP .....................
Dall’s porpoise (truei) ..............
WNP truei .............
178,157
False killer whale ....................
Ginkgo-toothed beaked whale
WNP .....................
NP ........................
16,668
22,799
Harbor porpoise ......................
WNP .....................
31,046
Hubbs beaked whale ..............
NP ........................
22,799
Best et al., 2001 .....................
Mizroch et al., 2015 ................
Miyashita 1986 and 1990;
Kasuya and Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Miyashita, 2007; Kasuya and
Perrin, 2017.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Hobbs and Waite, 2010; Allen
and Angliss, 2014.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Buckland et al., 1993 .............
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Miyashita, 1993 ......................
0.0097
0.00224
0.0128
922
7,000
5,688
90,725
Killer whale .............................
WNP .....................
12,256
Kogia spp. 4 .............................
WNP .....................
350,553
Pacific white-sided dolphin .....
NP ........................
931,000
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP .....................
WNP .....................
130,002
30,214
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
WNP .....................
WNP .....................
WNP Northern ......
143,374
5,002
20,884
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Frm 00031
Fmt 4701
0.0031
0.0031
0.0031
0.0031
0.0390
0.0520
................
0.0520
0.0036
0.0005
0.0036
0.0005
0.0036
0.0005
0.0036
0.0005
0.0190
0.0190
0.0190
0.0190
0.0005
0.0005
0.0005
0.0005
0.0001
0.0001
0.0001
0.0001
0.0031
0.0031
0.0031
0.0031
0.0082
0.0082
0.0082
0.0082
................
0.0021
................
0.0021
0.0259
0.0021
0.0259
0.0021
0.0097
0.00224
0.0128
0.0097
0.00224
0.0128
0.0097
0.00224
0.0128
Sfmt 4700
E:\FR\FM\13AUR2.SGM
Density source reference 2
ESA
status 3
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
Ohsumi, 1977 .........................
Buckland et al., 1992 .............
Tillman, 1977 ..........................
EN
Calambokidis et al., 2008;
LGL, 2008.
Unavail ....................................
Fulling et al., 2011 ..................
Kasuya, 1986 .........................
EN
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
NL
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Hobbs and Waite, 2010 .........
NL
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
NL
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Forney et al., 2015 .................
Miyashita, 1993 ......................
NL
Fall
Blue whale ..............................
North Pacific right whale .........
Sei whale ................................
Baird’s beaked whale .............
jspears on DSK3GMQ082PROD with RULES2
Abundance
13AUR2
NL
NL
EN
EN
EN
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
40162
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
TABLE 2—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 1, EAST OF JAPAN—Continued
Stock name 1
Species
Sperm whale ...........................
Spinner dolphin .......................
Abundance
NP ........................
WNP .....................
102,112
1,015,059
Stejneger’s beaked whale ......
WNP .....................
8,000
Striped dolphin ........................
WNP Northern Offshore.
WP .......................
497,725
Northern fur seal .....................
503,609
Density
(animals/Km 2)
Abundance source reference
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Kasuya, 1986 .........................
Miyashita, 1993; Kasuya and
Perrin, 2017.
Kuzin 2015; Gelatt et al.,
2015.
Winter
Spring
Summer
0.00123
................
0.00123
................
0.00123
0.00083
Density source reference 2
ESA
status 3
0.00123
0.00083
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
EN
NL
Fall
0.0005
0.0005
0.0005
0.0005
0.0111
0.0111
0.0111
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
NL
0.0111
0.368
0.158
................
................
Horimoto et al., 2016 ..............
NL
NL
1 NP = north Pacific; OE = Offshore Japan; WP = western Pacific; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
TABLE 3—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 2, NORTH PHILIPPINE SEA
Stock name 1
Species
Abundance
Density
(animals/Km 2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
Ohsumi, 1977 .........................
Buckland et al., 1992 .............
Tillman, 1977 ..........................
EN
Acebes et al., 2007; LGL,
2008.
Unavail ....................................
LGL, 2008; DoN, 2018 ...........
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Bradford et al., 2013 ..............
EN
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
NL
NL
NL
NL
NL
EN
NL
NL
Fall
Blue whale ..............................
WNP .....................
9,250
Tillman, 1977 ..........................
0.00001
0.00001
................
0.00001
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
WNP .....................
WNP OE ..............
WNP .....................
20,501
25,049
9,250
0.0006
0.0044
0.0002
0.0006
0.0044
0.0002
0.0006
0.0044
................
0.0006
0.0044
................
Humpback whale ....................
WNP and DPS .....
1,328
IWC, 2009 ..............................
Buckland et al., 1992 .............
Tillman, 1977; Mizroch et al.,
2009.
Bettridge et al., 2015 ..............
0.00089
0.00089
................
0.00089
North Pacific right whale .........
Omura’s whale ........................
Blainville’s beaked whale ........
WNP .....................
WNP .....................
WNP .....................
922
1,800
8,032
0.00001
0.00004
0.0005
0.00001
0.00004
0.0005
................
0.00004
0.0005
................
0.00004
0.0005
Common dolphin .....................
WNP .....................
3,286,163
0.0562
0.0562
0.0562
0.0562
Common bottlenose dolphin ...
Cuvier’s beaked whale ...........
Japanese Coastal
WNP .....................
3,516
90,725
0.0146
0.0054
0.0146
0.0054
0.0146
0.0054
0.0146
0.0054
False killer whale ....................
Fraser’s dolphin ......................
WNP .....................
WNP .....................
16,668
220,789
0.0029
0.0069
0.0029
0.0069
0.0029
0.0069
0.0029
0.0069
Ginkgo-toothed beaked whale
NP ........................
22,799
0.0005
0.0005
0.0005
0.0005
0.00009
0.00009
0.00009
0.00009
0.0031
0.0031
0.0031
0.0031
0.00025
0.00428
0.0119
0.00025
0.00428
0.0119
0.00025
0.00428
................
0.00025
0.00428
................
0.0137
0.0021
0.0137
0.0021
0.0137
0.0021
0.0137
0.0021
0.0106
0.00224
0.0153
0.00123
0.00083
0.0106
0.00224
0.0153
0.00123
0.00083
0.0106
0.00224
0.0153
0.00123
0.00083
0.0106
0.00224
0.0153
0.00123
0.00083
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
Fulling et al., 2011 ..................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Forney et al., 2015 .................
Miyashita, 1993 ......................
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
0.0329
0.0329
0.0329
0.0329
Miyashita, 1993 ......................
Killer whale .............................
WNP .....................
12,256
Kogia spp.4 .............................
WNP .....................
350,553
Longman’s beaked whale .......
Melon-headed whale ..............
Pacific white-sided dolphin .....
WNP .....................
WNP .....................
NP ........................
7,619
56,213
931,000
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP .....................
WNP .....................
130,002
30,214
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
WNP .....................
WNP .....................
WNP Southern .....
NP ........................
WNP .....................
143,374
5,002
31,396
102,112
1,015,059
Striped dolphin ........................
Japanese Coastal
19,631
Best et al., 2001 .....................
Oshsumi, 1980 .......................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Buckland et al., 1993 .............
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
NL
NL
EN
EN
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
1 NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
TABLE 4— ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 3, WEST PHILIPPINE SEA
Stock name 1
jspears on DSK3GMQ082PROD with RULES2
Species
Abundance
Density
(animals/Km 2)
Abundance source reference
Winter
Spring
Summer
Blue whale ..............................
WNP .....................
9,250
Tillman, 1997 ..........................
0.00001
0.00001
................
0.00001
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
WNP .....................
WNP OE ..............
WNP .....................
20,501
25,049
9,250
0.0006
0.0033
0.0002
0.0006
0.0033
0.0002
0.0006
0.0033
................
0.0006
0.0033
................
Humpback whale ....................
WNP and DPS .....
1,328
IWC, 2009 ..............................
Buckland et al., 1992 .............
Tillman, 1977; Mizroch et al.,
2009.
Bettridge et al., 2015 ..............
0.00089
0.00089
................
0.00089
VerDate Sep<11>2014
18:45 Aug 12, 2019
Jkt 247001
PO 00000
Frm 00032
Fmt 4701
Sfmt 4700
E:\FR\FM\13AUR2.SGM
Density source reference 2
ESA
status 3
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
Ohsumi, 1977 .........................
Buckland et al., 1992 .............
Tillman, 1977 ..........................
EN
Acebes et al., 2007; LGL,
2008.
EN
Fall
13AUR2
NL
NL
EN
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
40163
TABLE 4— ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 3, WEST PHILIPPINE SEA—Continued
Stock name 1
Species
Abundance
Omura’s whale ........................
Blainville‘s beaked whale ........
WNP .....................
WNP .....................
1,800
8,032
Common dolphin .....................
WNP .....................
3,286,163
Common bottlenose dolphin ...
Cuvier’s beaked whale ...........
WNP Southern
Offshore.
WNP .....................
90,725
Deraniyagala’s beaked whale
NP ........................
22,799
False killer whale ....................
Fraser’s dolphin ......................
WNP .....................
WNP .....................
16,668
220,789
40,769
Ginkgo-toothed beaked whale
NP ........................
22,799
Killer whale .............................
WNP .....................
12,256
Kogia spp.4 .............................
WNP .....................
350,553
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP
WNP
WNP
WNP
.....................
.....................
.....................
.....................
7,619
56,213
130,002
30,214
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
WNP .....................
WNP .....................
WNP Southern .....
NP ........................
WNP .....................
143,374
5,002
31,396
102,112
1,015,059
Striped dolphin ........................
WNP Southern
Offshore.
52,682
Density
(animals/Km 2)
Abundance source reference
Summer
Density source reference 2
ESA
status 3
LGL, 2008; DoN, 2018 ...........
Ferguson and Barlow, 2001;
2003.
Carretta et al., 2011 ...............
NL
NL
Winter
Spring
Fall
Oshsumi, 1980 .......................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
0.00004
0.0005
0.00004
0.0005
0.00004
0.0005
0.00004
0.0005
0.1158
0.1158
0.1158
0.1158
0.0146
0.0146
0.0146
0.0146
Miyashita, 1993 ......................
NL
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
0.0003
0.0003
0.0003
0.0003
NL
0.0005
0.0005
0.0005
0.0005
0.0029
0.0069
0.0029
0.0069
0.0029
0.0069
0.0029
0.0069
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Bradford et al., 2013 ..............
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
NL
NL
NL
NL
NL
EN
NL
NL
0.0005
0.0005
0.0005
0.0005
0.00009
0.00009
0.00009
0.00009
0.0017
0.0017
0.0017
0.0017
0.00025
0.00428
0.0137
0.0021
0.00025
0.00428
0.0137
0.0021
0.00025
0.00428
0.0137
0.0021
0.00025
0.00428
0.0137
0.0021
0.0106
0.00224
0.0076
0.00123
0.00083
0.0106
0.00224
0.0076
0.00123
0.00083
0.0106
0.00224
0.0076
0.00123
0.00083
0.0106
0.00224
0.0076
0.00123
0.00083
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
Fulling et al., 2011 ..................
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Forney et al., 2015 .................
Miyashita, 1993 ......................
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
0.0164
0.0164
0.0164
0.0164
Miyashita, 1993 ......................
NL
NL
NL
NL
NL
NL
NL
NL
NL
1 NP
= north Pacific; OE = Offshore Japan; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
TABLE 5—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 4, OFFSHORE GUAM
Stock name 1
jspears on DSK3GMQ082PROD with RULES2
Species
Abundance
Density
(animals/Km2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
Bradford et al., 2017 ..............
Fulling et al., 2011 ..................
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
EN
NL
NL
Acebes et al., 2007; LGL,
2008.
LGL, 2008; DoN, 2018 ...........
Fulling et al., 2011 ..................
Bradford et al., 2017 ..............
EN
Fall
Blue whale ..............................
Bryde’s whale .........................
Common minke whale ............
WNP .....................
WNP .....................
WNP ‘‘OE’’ ...........
9,250
20,501
25,049
Tillman, 1977 ..........................
IWC, 2009 ..............................
Buckland et al., 1992 .............
0.00005
0.0004
0.0003
0.00005
0.0004
0.0003
................
0.0004
0.0003
0.00005
0.0004
0.0003
Fin whale ................................
WNP .....................
9,250
0.00006
0.00006
................
0.00006
Humpback whale ....................
WNP and DPS .....
1,328
Tillman, 1977; Mizroch et al.,
2009.
Bettridge et al., 2015 ..............
0.00089
0.00089
................
0.00089
Omura’s whale ........................
Sei whale ................................
Blainville’s beaked whale ........
WNP .....................
NP ........................
WNP .....................
1,800
7,000
8,032
0.00004
0.00029
0.00086
0.00004
0.00029
0.00086
0.00004
................
0.00086
0.00004
0.00029
0.00086
Common bottlenose dolphin ...
0.00899
0.00899
0.00899
0.00899
Bradford et al., 2017 ..............
NL
Cuvier’s beaked whale ...........
WNP Southern
Offshore.
WNP .....................
Oshsumi, 1980 .......................
Mizroch et al., 2015 ................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
90,725
0.0003
0.0003
0.0003
0.0003
Bradford et al., 2017 ..............
NL
Deraniyagala’s beaked whale
NP ........................
22,799
0.00189
0.00189
0.00189
0.00189
Bradford et al., 2017 ..............
NL
Dwarf sperm whale .................
WNP .....................
350,553
0.00714
0.00714
0.00714
0.00714
Barlow, 2006 ..........................
NL
False killer whale ....................
Fraser’s dolphin ......................
Ginkgo-toothed beaked whale
WNP .....................
CNP ......................
NP ........................
16,668
16,992
22,799
0.00111
0.02104
0.00189
0.00111
0.02104
0.00189
0.00111
0.02104
0.00189
0.00111
0.02104
0.00189
Fulling et al., 2011 ..................
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
NL
NL
NL
Killer whale .............................
WNP .....................
12,256
0.00006
0.00006
0.00006
0.00006
Bradford et al., 2017 ..............
NL
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP
WNP
WNP
WNP
.....................
.....................
.....................
.....................
7,619
56,213
130,002
30,214
0.00311
0.00428
0.0226
0.00014
0.00311
0.00428
0.0226
0.00014
0.00311
0.00428
0.0226
0.00014
0.00311
0.00428
0.0226
0.00014
Bradford et al., 2017 ..............
Fulling et al., 2011 ..................
Fulling et al., 2011 .................
Fulling et al., 2011 ..................
NL
NL
NL
NL
Pygmy sperm whale ...............
WNP .....................
350,553
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
WNP .....................
WNP .....................
WNP Southern .....
NP ........................
WNP .....................
143,374
5,002
31,396
102,112
1,015,059
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Bradford et al., 2013 ..............
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
VerDate Sep<11>2014
18:45 Aug 12, 2019
Jkt 247001
40,769
PO 00000
Frm 00033
Fmt 4701
EN
NL
EN
NL
0.00291
0.00291
0.00291
0.00291
Barlow, 2006 ..........................
NL
0.00474
0.00185
0.00797
0.00123
0.00083
0.00474
0.00185
0.00797
0.00123
0.00083
0.00474
0.00185
0.00797
0.00123
0.00083
0.00474
0.00185
0.00797
0.00123
0.00083
Bradford et al., 2017 ..............
LGL, 2011 ...............................
Bradford et al., 2017 ..............
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
NL
NL
NL
EN
NL
Sfmt 4700
E:\FR\FM\13AUR2.SGM
13AUR2
40164
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
TABLE 5—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 4, OFFSHORE GUAM—Continued
Stock name 1
Species
Striped dolphin ........................
Abundance
WNP Southern
Offshore.
52,682
Density
(animals/Km2)
Abundance source reference
Mayashita, 1993; Kasuya and
Perrin, 2017.
Winter
Spring
0.00616
0.00616
Summer
0.00616
Density source reference 2
ESA
status 3
Fulling et al., 2011 .................
NL
Fall
0.00616
1 CNP = central north Pacific; NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 6—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 5, SEA OF JAPAN
Stock name 1
Species
Abundance
Density
(animals/Km2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
NL
Fall
Bryde’s whale .........................
WNP .....................
20,501
IWC, 2009 ..............................
0.0001
0.0001
0.0001
0.0001
Common minke whale ............
WNP JW Stock ....
2,611
Miyashita and Okamura, 2011
0.00016
0.00016
0.00016
0.00016
Fin whale ................................
WNP .....................
9,250
0.0009
................
0.0009
WNP .....................
WNP .....................
WNP Western
DPS.
WNP .....................
922
1,800
290
Tillman, 1977; Mizroch et al.,
2009.
Best et al., 2001 .....................
Oshsumi, 1980 .......................
Caretta et al., 2019 ................
0.0009
North Pacific right whale .........
Omura’s whale ........................
Western North Pacific gray
whale.
Baird’s beaked whale .............
0.00001
0.00004
0.00001
0.00001
0.00004
0.00001
................
0.00004
0.00001
................
0.00004
0.00001
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Unavail ....................................
LGL, 2008; DoN, 2018 ...........
Unavail ....................................
5,688
0.0003
0.0003
................
0.0003
Kasuya, 1986 .........................
NL
Common dolphin .....................
Common bottlenose dolphin ...
WNP .....................
IA ..........................
279,182
105,138
0.1158
0.00077
0.1158
0.00077
0.1158
0.00077
0.1158
0.00077
Carretta et al., 2011 ...............
LGL, 2011 ...............................
NL
NL
Cuvier’s beaked whale ...........
WNP .....................
90,725
0.0031
0.0031
0.0031
0.0031
SOJ dalli ...............
173,638
0.0520
0.0520
................
0.0520
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Hobbs and Waite, 2010 .........
NL
Dall’s porpoise ........................
False killer whale ....................
IA ..........................
9,777
Harbor porpoise ......................
WNP .....................
31,046
Killer whale .............................
WNP .....................
12,256
Kogia spp.5 .............................
WNP .....................
350,553
Pacific white-sided dolphin .....
NP ........................
931,000
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Sperm whale ...........................
Spinner dolphin .......................
IA ..........................
WNP .....................
NP ........................
WNP .....................
143,374
5,002
102,112
1,015,059
Stejneger’s beaked whale ......
WNP .....................
8,000
Northern fur seal .....................
WP .......................
503,609
Spotted seal ............................
Southern and DPS
6,284
Miyashita 1986 and 1990;
Kasuya and Perrin, 2017.
Carretta et al., 2011 ...............
Miyashita, 1986; Kishiro and
Kasuya 1993.
Ferguson and Barlow, 2001;
2003.
IWC, 2008 ..............................
Miyashita, 1986; Kishiro and
Kasuya 1993.
Hobbs and Waite, 2010;
Angliss and Allen, 2014.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Buckland et al., 1993 .............
NL
EN
EN
NL
EN 4
NL
0.0027
0.0027
0.0027
0.0027
0.0190
0.0190
................
0.0190
NL
0.00009
0.00009
0.00009
0.00009
LGL, 2011 ...............................
NL
0.0017
0.0017
0.0017
0.0017
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Forney et al., 2015 .................
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
NL
NL
0.0030
0.0030
................
................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Kasuya, 1986 .........................
0.0073
0.00224
0.00123
................
0.0073
0.00224
0.00123
................
0.0073
0.00224
0.00123
0.00083
0.0073
0.00224
0.00123
0.00083
NL
0.0005
0.0005
0.0005
0.0005
0.368
0.158
................
................
Ferguson and Barlow, 2001;
2003.
Horimoto et al., 2016 ..............
NL
Kuzin 2015; Gelatt et al.,
2015.
Trukhin 2019, Han et al.,
2010; Han et al., 2005, Yan
et al., 2018, Shibuya and
Kobayashi 2016.
0.00001
0.00001
0.00001
0.00001
Unavail ....................................
T
NL
NL
EN
NL
NL
1 IA
= Inshore Archipelago; JW = Sea of Japan (minke); NP = north Pacific; SOJ = Sea of Japan; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 Only the western Pacific population of gray whale is endangered under the ESA.
5 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
TABLE 7—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 6, EAST CHINA SEA
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
jspears on DSK3GMQ082PROD with RULES2
Winter
Bryde’s whale .........................
Common minke whale ............
ECS ......................
YS ........................
137
4,492
Fin whale ................................
ECS ......................
500
North Pacific right whale .........
Omura’s whale ........................
Western North Pacific gray
whale.
Blainville’s beaked whale ........
WNP .....................
WNP .....................
WNP and Western
DPS.
WNP .....................
922
1,800
290
8,032
Common dolphin .....................
Common bottlenose dolphin ...
WNP .....................
IA ..........................
279,182
105,138
VerDate Sep<11>2014
18:45 Aug 12, 2019
Jkt 247001
PO 00000
IWC, 1996 ..............................
Miyashita and Okamura,
2011; Hakamada and
Hatanaka, 2010.
Tillman, 1977; Mizroch et al.,
2009.
Best et al., 2001 .....................
Oshsumi, 1980 .......................
Carretta et al., 2019 ...............
Ferguson and Barlow, 2001;
2003.
Carretta et al., 2011 ...............
Miyashita, 1986; Kishiro and
Kasuya 1993.
Frm 00034
Fmt 4701
Spring
Summer
Density source reference 2
ESA
status 3
Fall
0.0003
0.0018
0.0003
0.0018
0.0003
0.0018
0.0003
0.0018
Bradford et al., 2013 ..............
Buckland et al., 1992 .............
NL
NL
0.0002
0.0002
0.0002
0.0002
Tillman, 1977 ..........................
EN
0.00001
0.00004
0.00001
0.00001
0.00004
0.00001
................
0.00004
................
................
0.00004
0.00001
Unavail ....................................
LGL, 2008 ...............................
Unavail ....................................
EN
NL
EN 4
0.0005
0.0005
0.0005
0.0005
0.1158
0.00077
0.1158
0.00077
0.1158
0.00077
Ferguson and Barlow, 2001;
2003.
Carretta et al., 2011 ...............
LGL, 2011 ...............................
NL
0.1158
0.00077
Sfmt 4700
E:\FR\FM\13AUR2.SGM
13AUR2
NL
NL
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
40165
TABLE 7—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 6, EAST CHINA SEA—Continued
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Cuvier’s beaked whale ...........
WNP .....................
90,725
False killer whale ....................
IA ..........................
9,777
Fraser’s dolphin ......................
WNP .....................
220,789
Ginkgo-toothed beaked whale
NP ........................
22,799
Killer whale .............................
WNP .....................
12,256
Kogia spp.5 .............................
WNP .....................
350,553
Longman’s beaked whale .......
Melon-headed whale ..............
Pacific white-sided dolphin .....
WNP .....................
WNP .....................
NP ........................
7,619
56,213
931,000
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP .....................
WNP .....................
130,002
30,214
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Sperm whale ...........................
Spinner dolphin .......................
IA ..........................
WNP .....................
NP ........................
WNP .....................
143,374
5,002
102,112
1,015,059
Spotted seal ............................
Southern and DPS
1,500
Ferguson and Barlow, 2001;
2003.
Miyashita, 1986; Kishiro and
Kasuya 1993.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Buckland et al., 1993 .............
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Han et al., 2005 in Yan et al.,
2018; Han et al., 2010.
Spring
Summer
Density source reference 2
ESA
status 3
Ferguson and Barlow, 2001;
2003.
Fulling et al., 2011 .................
NL
Fall
0.0003
0.0003
0.0003
0.0003
0.00111
0.00111
0.00111
0.00111
0.00694
0.00694
0.00694
0.00694
Bradford et al., 2013 ..............
NL
0.0005
0.0005
0.0005
0.0005
NL
0.00009
0.00009
0.00009
0.00009
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.0017
0.0017
0.0017
0.0017
NL
0.00025
0.00428
0.0028
0.00025
0.00428
0.0028
0.00025
0.00428
................
0.00025
0.00428
................
0.01374
0.00014
0.01374
0.00014
0.01374
0.00014
0.01374
0.00014
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
Fulling et al., 2011 ..................
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Fulling et al., 2011 ..................
0.0106
0.00224
0.00123
0.00083
0.0106
0.00224
0.00123
0.00083
0.0106
0.00224
0.00123
0.00083
0.0106
0.00224
0.00123
0.00083
Miyashita, 1993 ......................
Forney et al., 2015 .................
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
NL
NL
EN
NL
0.00001
0.00001
0.00001
0.00001
Unavail ....................................
T
NL
NL
NL
NL
NL
NL
NL
1 ECS
= East China Sea; IA = Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 Only the western Pacific population of gray whale is endangered under the ESA.
5 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
TABLE 8—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 7, SOUTH CHINA SEA
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
jspears on DSK3GMQ082PROD with RULES2
Winter
Bryde’s whale .........................
Common minke whale ............
WNP .....................
YS ........................
20,501
4,492
Fin whale ................................
Humpback whale ....................
WNP .....................
WNP and DPS .....
North Pacific right whale .........
Omura’s whale ........................
Western North Pacific gray
whale.
Blainville’s beaked whale ........
WNP .....................
WNP .....................
WNP and Western
DPS.
WNP .....................
Common dolphin .....................
Common bottlenose dolphin ...
WNP .....................
IA ..........................
279,182
105,138
Cuvier’s beaked whale ...........
WNP .....................
90,725
Deraniyagala’s beaked whale
NP ........................
22,799
False killer whale ....................
IA ..........................
9,777
Fraser’s dolphin ......................
WNP .....................
220,789
Ginkgo-toothed beaked whale
NP ........................
22,799
Spring
Summer
Density source reference 2
ESA
status 3
Fall
0.0006
0.0018
0.0006
0.0018
0.0006
0.0018
0.0006
0.0018
Ohsumi, 1977 .........................
Buckland et al., 1992 .............
NL
NL
9,250
1,328
IWC, 2009 ..............................
Miyashita and Okamura,
2011; Kakamada ad
Hatanaka 2010.
Tillman, 1977 ..........................
Bettridge et al., 2015 ..............
0.0002
0.00036
0.0002
0.00036
................
................
0.0002
0.00036
EN
EN
922
1,800
290
Best et al., 2001 .....................
Oshsumi, 1980 .......................
Carretta et al., 2019 ...............
0.00001
0.00004
0.00001
0.00001
0.00004
0.00001
................
0.00004
................
................
0.00004
0.00001
Tillman, 1977 ..........................
Calambokidis et al., 2008;
LGL, 2008.
Unavail ....................................
LGL, 2008; DoN, 2018 ...........
Unavail ....................................
8,032
Ferguson and Barlow, 2001;
2003.
Carretta et al., 2011 ...............
Miyashita, 1986; Kishiro and
Kasuya 1993.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1986; Kishiro and
Kasuya 1993.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
0.0005
0.0005
0.0005
0.0005
0.1158
0.00077
0.1158
0.00077
0.1158
0.00077
0.1158
0.00077
0.0003
0.0003
0.0003
0.0003
Killer whale .............................
WNP .....................
12,256
Kogia spp.5 .............................
WNP .....................
350,553
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP
WNP
WNP
WNP
.....................
.....................
.....................
.....................
7,619
56,213
130,002
30,214
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
IA ..........................
WNP .....................
WNP Southern .....
NP ........................
WNP .....................
143,374
5,002
31,396
102,112
1,015,059
Striped dolphin ........................
WNP Southern
Offshore.
52,682
EN
NL
EN 4
Ferguson and Barlow, 2001;
2003.
Carretta et al., 2011 ...............
LGL, 2011 ...............................
NL
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Fulling et al., 2011 .................
NL
NL
NL
0.0005
0.0005
0.0005
0.0005
0.00111
0.00111
0.00111
0.00111
0.00694
0.00694
0.00694
0.00694
Bradford et al., 2013 ..............
NL
0.0005
0.0005
0.0005
0.0005
NL
0.00009
0.00009
0.00009
0.00009
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.0017
0.0017
0.0017
0.0017
NL
0.00025
0.00428
0.01374
0.00014
0.00025
0.00428
0.01374
0.00014
0.00025
0.00428
0.01374
0.00014
0.00025
0.00428
0.01374
0.00014
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
Fulling et al., 2011 ..................
Miyashita, 1993 ......................
Fulling et al., 2011 ..................
NL
NL
NL
NL
0.0106
0.00224
0.00159
0.00123
0.00083
0.0106
0.00224
0.00159
0.00123
0.00083
0.0106
0.00224
0.00159
0.00123
0.00083
0.0106
0.00224
0.00159
0.00123
0.00083
Miyashita, 1993 ......................
Forney et al., 2015 .................
Fulling et al., 2011 ..................
Fulling et al., 2011 ..................
Barlow, 2006 ..........................
NL
NL
NL
EN
NL
0.00584
0.00584
0.00584
0.00584
LGL, 2011 ...............................
NL
1 IA
NL
NL
NL
= Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
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the western Pacific population of gray whale is endangered under the ESA.
and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.
5 Pygmy
TABLE 9—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 8, OFFSHORE JAPAN 25° TO 40° N
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
LGL, 2011 ...............................
Buckland et al., 1992 .............
Tillman, 1977 ..........................
EN
EN
Fall
Blue whale ..............................
WNP .....................
9,250
Tillman, 1977 ..........................
0.00001
0.00001
................
0.00001
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
WNP .....................
WNP ‘‘OE’’ ...........
WNP .....................
20,501
25,049
9,250
0.0003
0.0003
................
0.0003
0.0003
................
0.0003
0.0003
0.0001
0.0003
0.0003
0.0001
Humpback whale ....................
WNP and DPS .....
1,328
IWC, 2009 ..............................
Buckland et al., 1992 .............
Tillman, 1977; Mizroch et al.,
2009.
Bettridge et al., 2015 ..............
................
................
0.00036
0.00036
Sei whale ................................
Baird’s beaked whale .............
NP ........................
WNP .....................
7,000
5,688
................
0.0001
0.00029
0.0001
0.00029
0.0001
0.00029
0.0001
Blainville’s beaked whale ........
WNP .....................
8,032
0.0007
0.0007
0.0007
0.0007
LGL, 2011 ...............................
NL
Common dolphin .....................
WNP .....................
3,286,163
0.0863
0.0863
0.0863
0.0863
NL
Common bottlenose dolphin ...
WNP Northern Offshore.
WNP .....................
100,281
Dall’s porpoise ........................
WNP dalli .............
162,000
Dwarf sperm whale .................
WNP .....................
350,553
False killer whale ....................
Hubb’s beaked whale .............
WNP .....................
NP ........................
16,668
22,799
Killer whale .............................
WNP .....................
12,256
Longman’s beaked whale .......
Melon-headed whale ..............
Mesoplodon spp.4 ...................
WNP .....................
WNP .....................
WNP .....................
7,619
56,213
22,799
Northern right whale dolphin ..
Pacific white-sided dolphin .....
NP ........................
NP ........................
68,000
931,000
Mizroch et al., 2015 ................
Miyashita, 1986; Kasuya and
Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1991; Kasuya and
Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Buckland et al., 1993 .............
Buckland et al., 1993 .............
Calambokidis et al., 2008;
LGL, 2008.
Fulling et al., 2011 ..................
Kasuya, 1986 .........................
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP .....................
WNP .....................
130,002
30,214
Pygmy sperm whale ...............
WNP .....................
350,553
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
WNP .....................
WNP .....................
WNP Northern ......
NP ........................
WNP .....................
143,374
5,002
20,884
102,112
1,015,059
Stejneger’s beaked whale ......
WNP .....................
8,000
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Miyashita, 1993 ......................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Kasuya, 1986 .........................
Striped dolphin ........................
WNP Northern Offshore.
Hawaii ..................
WP .......................
497,725
Cuvier’s beaked whale ...........
Hawaiian monk seal ...............
Northern fur seal .....................
90,725
1,427
503,609
Miyashita, 1993; Kasuya and
Perrin, 2017.
NMFS, 2018 ...........................
Kuzin 2015; Gelatt et al.,
2015.
NL
NL
EN
EN
NL
0.00077
0.00077
0.00077
0.00077
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.00374
0.00374
0.00374
0.00374
LGL, 2011 ...............................
NL
0.0390
0.0520
................
0.0520
0.0043
0.0043
0.0043
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
NL
0.0043
0.0036
0.0005
0.0036
0.0005
0.0036
0.0005
0.0036
0.0005
NL
NL
0.00009
0.00009
0.00009
0.00009
Miyashita, 1993 ......................
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.00025
0.0027
0.0005
0.00025
0.0027
0.0005
0.00025
0.0027
0.0005
0.00025
0.0027
0.0005
NL
NL
NL
0.00001
0.0048
0.00001
0.0048
................
0.0048
0.00001
0.0048
0.0113
0.0001
0.0113
0.0001
0.0113
0.0001
0.0113
0.0001
LGL, 2011 ...............................
LGL, 2011 ...............................
Ferguson and Barlow, 2001;
2003.
Unavail ....................................
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
LGL, 2011 ...............................
0.0018
0.0018
0.0018
0.0018
LGL, 2011 ...............................
NL
0.0005
0.0019
0.0021
0.0022
0.0019
0.0005
0.0019
0.0021
0.0022
0.0019
0.0005
0.0019
0.0021
0.0022
0.0019
0.0005
0.0019
0.0021
0.0022
0.0019
LGL,
LGL,
LGL,
LGL,
LGL,
...............................
...............................
...............................
...............................
...............................
NL
NL
NL
EN
NL
0.0005
0.0005
0.0005
0.0005
NL
EN
NL
2011
2011
2011
2011
2011
0.0058
0.0058
0.0058
0.0058
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.00001
0.0123
0.00001
................
0.00001
................
0.00001
................
Unavail ....................................
Buckland et al., 1993 .............
NL
NL
NL
NL
NL
NL
NL
NL
1 NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific; WP = Western Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
4 No methods are available to distinguish between the species of Mesoplodon beaked whales in the WNP stocks (Blainville’s beaked whale (M. densirostris), Perrin’s beaked whale (M.
perrini), Lesser beaked whale (M. peruvianus), Stejneger’s beaked whale (M. stejnegeri), Gingko-toothed beaked whale (M. gingkodens), and Hubbs’ beaked whale (M. carlhubbsi)) when observed during at-sea surveys (Carretta et al., 2018). As reported in Ferguson and Barlow, 2001 and 2003, data on these species were pooled. These six species are managed as one unit.
TABLE 10—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 9, OFFSHORE JAPAN 10° TO 25° N
Stock name 1
jspears on DSK3GMQ082PROD with RULES2
Species
Abundance
Density
(animals/Km2)
Abundance source reference
Winter
Spring
Summer
Tillman, 1977; Caretta et al.,
2019.
0.00001
0.00001
................
0.00001
Density source reference 2
ESA
status 3
EN
Fall
Blue whale ..............................
WNP .....................
9,250
Bryde’s whale .........................
Fin whale ................................
Humpback whale ....................
WNP .....................
WNP .....................
WNP and DPS .....
20,501
9,250
1,328
IWC, 2009 ..............................
Tillman, 1977 ..........................
Bettridge et al., 2015 ..............
0.0003
0.00001
0.00036
0.0003
0.00001
0.00036
0.0003
................
................
0.0003
................
0.00036
Omura’s whale ........................
Sei whale ................................
Blainville’s beaked whale ........
WNP .....................
NP ........................
WNP .....................
1,800
7,000
8,032
0.00004
0.00029
0.0007
0.00004
................
0.0007
0.00004
................
0.0007
0.00004
0.00029
0.0007
Common bottlenose dolphin ...
WNP Southern
Offshore.
WNP .....................
Oshsumi, 1980 .......................
Mizroch et al., 2015 ................
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
LGL, 2011 ...............................
Unavail ....................................
Calambokidis et al., 2008;
LGL, 2008.
LGL, 2008; DoN, 2018 ...........
Fulling et al., 2011 ..................
LGL, 2011 ...............................
0.00077
0.00077
0.00077
0.00077
LGL, 2011 ...............................
NL
90,725
Ferguson and Barlow, 2001;
2003.
0.00374
0.00374
0.00374
0.00374
LGL, 2011 ...............................
NL
Cuvier’s beaked whale ...........
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TABLE 10—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 9, OFFSHORE JAPAN 10° TO 25° N—Continued
Stock name 1
Species
Abundance
Deraniyagala’s beaked whale
NP ........................
22,799
Dwarf sperm whale .................
WNP .....................
350,553
False killer whale ....................
Fraser’s dolphin ......................
Ginkgo-toothed beaked whale
WNP .....................
CNP ......................
NP ........................
16,668
16,992
22,799
Killer whale .............................
WNP .....................
12,256
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
Pygmy killer whale ..................
WNP
WNP
WNP
WNP
.....................
.....................
.....................
.....................
7,619
56,213
130,002
30,214
Pygmy sperm whale ...............
WNP .....................
350,553
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
WNP .....................
WNP .....................
WNP Southern .....
NP ........................
WNP .....................
143,374
5,002
31,396
102,112
1,015,059
Striped dolphin ........................
WNP Southern
Offshore.
52,682
Density
(animals/Km2)
Abundance source reference
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993 ......................
Bradford et al., 2013 ..............
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Bradford et al., 2017 ..............
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kanaji et al., 2018 ..................
Kato and Miyashita, 1998 ......
Ferguson and Barlow, 2001;
2003.
Miyashita, 1993; Kasuya and
Perrin, 2017.
Density source reference 2
ESA
status 3
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
NL
NL
NL
NL
0.00009
LGL, 2011 ...............................
LGL, 2011 ...............................
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
0.00025
0.00267
0.01132
0.00006
LGL,
LGL,
LGL,
LGL,
...............................
...............................
...............................
...............................
NL
NL
NL
NL
0.00176
0.00176
LGL, 2011 ...............................
NL
0.00046
0.00185
0.00211
0.00222
0.00187
0.00046
0.00185
0.00211
0.00222
0.00187
0.00046
0.00185
0.00211
0.00222
0.00187
LGL,
LGL,
LGL,
LGL,
LGL,
...............................
...............................
...............................
...............................
...............................
NL
NL
NL
EN
NL
0.00584
0.00584
0.00584
LGL, 2011 ...............................
NL
Winter
Spring
Summer
Fall
0.00093
0.00093
0.00093
0.00093
0.0043
0.0043
0.0043
0.0043
0.00057
0.00251
0.00093
0.00057
0.00251
0.00093
0.00057
0.00251
0.00093
0.00057
0.00251
0.00093
0.00009
0.00009
0.00009
0.00025
0.00267
0.01132
0.00006
0.00025
0.00267
0.01132
0.00006
0.00025
0.00267
0.01132
0.00006
0.00176
0.00176
0.00046
0.00185
0.00211
0.00222
0.00187
0.00584
2011
2011
2011
2011
2011
2011
2011
2011
2011
NL
NL
1 NP
= north Pacific; CNP = central north Pacific; WNP = western north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 11—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 10, NORTHERN HAWAII
Stock name 1
Species
Blue whale ..............................
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
Humpback whale ....................
Sei whale ................................
Blainville’s beaked whale ........
Common bottlenose dolphin ...
Cuvier’s beaked whale ...........
Dwarf sperm whale .................
False killer whale ....................
Fraser’s dolphin ......................
Killer whale .............................
Longman’s beaked whale .......
Melon-headed whale ..............
jspears on DSK3GMQ082PROD with RULES2
Pantropical spotted dolphin ....
Pygmy killer whale ..................
Pygmy sperm ..........................
Risso’s dolphin ........................
Rough-toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
Striped dolphin ........................
VerDate Sep<11>2014
Abundance
ESA
status 3
EN
NL
NL
EN
NL
0.00016
0.00086
0.00118
0.065
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Martin et al., 2015 ..................
Bradford et al., 2017 ..............
Mobley et al., 2001;
Calambokidis et al., 2008.
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Baird et al., 2009 ....................
0.017
0.017
Baird et al., 2009 ....................
NL
0.187
0.187
0.187
Baird et al., 2009 ....................
NL
0.028
0.028
0.028
Baird et al., 2009 ....................
NL
0.0003
0.00714
0.0006
0.0003
0.00714
0.0006
0.0003
0.00714
0.0006
0.0003
0.00714
0.0006
NL
NL
NL
0.0008
0.0008
0.0008
0.0008
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Forney et al., 2015; Bradford
et al., 2015.
Bradford et al., 2015 ..............
0.0006
0.0006
0.0006
0.0006
0.02104
0.00006
0.00311
0.002
0.1000
0.00369
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00224
0.00459
0.00158
0.00159
0.097
0.066
0.023
0.0070
0.0070
0.02104
0.00006
0.00311
0.0020
0.1000
0.00369
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00224
0.00459
0.00158
0.00159
0.097
0.066
0.023
0.0070
0.0070
0.02104
0.00006
0.00311
0.0020
0.1000
0.00369
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00224
0.00459
0.00158
0.00159
0.097
0.066
0.023
0.0070
0.0070
0.00385
0.00385
0.00385
Spring
Summer
Fall
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Buckland et al., 1992 .............
Bradford et al., 2017 ..............
Calambokidis et al., 2008;
Muto et al., 2019.
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Baird et al., 2009; Caretta et
al., 2014.
Baird et al., 2009; Caretta et
al., 2014.
Baird et al., 2009; Caretta et
al., 2014.
Baird et al., 2009; Caretta et
al., 2014.
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Bradford et al., 2014; 2015;
Caretta et al., 2019.
Bradford et al., 2018; Caretta
et al., 2019.
0.00005
0.000085
0.00423
0.00006
0.00529
0.00005
0.000085
0.00423
0.00006
0.00529
................
0.000085
................
................
................
0.00005
0.000085
0.00423
0.00006
0.00529
0.00016
0.00086
0.00118
0.065
0.00016
0.00086
0.00118
0.065
................
0.00086
0.00118
0.065
0.017
0.017
0.187
0.028
51,491
146
7,619
8,666
447
55,795
220
220
220
10,640
7,138
11,613
72,528
19,503
4,559
3,351
601
665
355
260
300
Bradford et al., 2014; 2015;
Caretta et al., 2019.
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Aschettino, 2010 .....................
Bradford et al., 2017 ..............
Courbis et al., 2014 ................
Courbis et al., 2014 ................
Courbis et al., 2014 ................
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Carretta et al., 2014 ...............
Carretta et al., 2019 ...............
Carretta et al., 2014 ...............
Carretta et al., 2014 ...............
Karczmarski et al., 2005 ........
61,201
Bradford et al., 2017 ..............
391
2,105
21,815
184
4 Islands ...............
191
Oahu ....................
743
Hawaii Island ........
128
Hawaii ..................
Hawaii ..................
Hawaii-Pelagic .....
723
17,519
1,540
Main Hawaiian Islands Insular
and DPS.
Northwest Hawaiian Islands.
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaiian Islands ..
Kohala Resident ...
Hawaii Pelagic .....
Hawaii Island ........
Oahu ....................
4 Islands ...............
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii Pelagic .....
Kauai/Niihau .........
Hawaii Island ........
Oahu/4 Islands .....
Kure/Midway Atoll
Pearl and Hermes
Reef.
Hawaii ..................
167
Jkt 247001
Density source reference 2
Winter
CNP ......................
Hawaii ..................
Hawaii ..................
Hawaii ..................
CNP and Hawaii
DPS.
Hawaii ..................
Hawaii ..................
Hawaii pelagic ......
Kauai/Niihau .........
18:45 Aug 12, 2019
Density
(animals/Km2)
Abundance source reference
133
1,751
25,049
154
10,103
617
PO 00000
Frm 00037
Fmt 4701
Sfmt 4700
E:\FR\FM\13AUR2.SGM
EN
NL
NL
NL
EN
0.02104
0.00006
0.00311
0.0020
0.1000
0.00369
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00224
0.00459
0.00158
0.00159
0.097
0.066
0.023
0.0070
0.0070
Forney et al., 2015; Bradford
et al., 2015.
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Aschettino, 2010 .....................
Aschettino, 2010 .....................
Forney et al., 2015 .................
Oleson et al., 2013 .................
Oleson et al., 2013 .................
Oleson et al., 2013 .................
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Forney et al., 2015 .................
Forney et al., 2015 .................
Forney et al., 2015 .................
Hill et al., 2011 .......................
Tyne et al., 2014 ....................
Hill et al., 2011 .......................
Barlow, 2006 ..........................
Barlow, 2006 ..........................
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
EN
NL
NL
NL
NL
NL
NL
0.00385
Forney et al., 2015 .................
NL
13AUR2
NL
40168
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
TABLE 11—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 10, NORTHERN HAWAII—Continued
Stock name 1
Species
Hawaiian monk seal ...............
Abundance
Hawaii ..................
1,427
Density
(animals/Km2)
Abundance source reference
NMFS, 2018 ...........................
Winter
Spring
0.00004
0.00004
Summer
0.00004
Density source reference 2
ESA
status 3
NMFS, 2018; DoN, 2018 ........
EN
Fall
0.00004
1 CNP
= central north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 12—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 11, SOUTHERN HAWAII
Stock name 1
Species
Abundance
Density
(animals/Km2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
EN
NL
NL
EN
NL
Fall
Blue whale ..............................
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
Humpback whale ....................
CNP ......................
Hawaii ..................
Hawaii ..................
Hawaii ..................
CNP/Hawaii DPS
133
798
25,049
154
10,103
Bradford et al., 2017 ..............
Bradford et al., 2013 ..............
Buckland et al., 1992 .............
Bradford et al., 2017 ..............
Calambokidis et al., 2008 .......
0.00005
0.00012
0.00423
0.00006
0.00631
0.00005
0.00012
0.00423
0.00006
0.00631
................
0.00012
................
................
................
0.00005
0.00012
0.00423
0.00006
0.00631
Sei whale ................................
Blainville’s beaked whale ........
Common bottlenose dolphin ...
Hawaii ..................
Hawaii ..................
Hawaii Pelagic .....
Oahu ....................
391
2,105
21,815
743
0.00016
0.00086
0.00126
0.187
0.00016
0.00086
0.00126
0.187
................
0.00086
0.00126
0.187
0.00016
0.00086
0.00126
0.187
4 Islands ...............
191
0.017
0.017
0.017
0.017
Baird et al., 2009 ....................
NL
Hawaii Island ........
128
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Baird et al., 2009; Carretta et
al., 2014.
Baird et al., 2009; Carretta et
al., 2014.
Baird et al., 2009; Carretta et
al., 2014.
Baird et al., 2009; Carretta et
al., 2014.
Bradford et al., 2017 ..............
Ferguson and Barlow, 2001;
2003.
Barlow, 2006 ..........................
Bradford et al., 2014; 2015 ....
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Martin et al., 2015 ..................
Bradford et al., 2017 ..............
Mobley et al., 2001;
Calambokidis et al., 2008.
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Baird et al., 2009 ....................
0.028
0.028
0.028
0.028
Baird et al., 2009 ....................
NL
Kauai/Niihau .........
184
Cuvier’s beaked whale ...........
Deraniyagala’s beaked whale
Hawaii ..................
NP ........................
723
22,799
Dwarf sperm whale .................
False killer whale ....................
Hawaii ..................
Hawaii-Pelagic .....
17,519
1,540
Main Hawaiian Island Insular and
DPS.
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaiian Islands ..
Kohala Resident ...
Hawaii Pelagic .....
Hawaii Island ........
Oahu ....................
4 Islands ...............
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii ..................
Hawaii Pelagic .....
Oahu/4-Islands .....
Hawaii Island ........
Kauai/Niihau .........
Hawaii ..................
Hawaii ..................
167
51,491
146
7,619
8,666
447
55,795
220
220
220
10,640
7,138
11,613
75,528
19,503
4,559
3,351
601
665
355
61,201
1,427
Fraser’s dolphin ......................
Killer whale .............................
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
Pygmy killer whale ..................
Pygmy sperm whale ...............
Risso’s dolphin ........................
Rough toothed dolphin ...........
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
Striped dolphin ........................
Hawaiian monk seal ...............
EN
NL
NL
NL
0.065
0.065
0.065
0.065
Baird et al., 2009 ....................
NL
0.0003
0.00093
0.0003
0.00093
0.0003
0.00093
0.0003
0.00093
NL
NL
0.00714
0.00086
0.00714
0.00086
0.00714
0.00086
0.00714
0.00086
Bradford et al., 2018; Carretta
et al., 2019.
0.0008
0.0008
0.0008
0.0008
Bradford et al., 2017 ..............
Ferguson and Barlow, 2001;
2003.
Barlow, 2006 ..........................
Forney et al., 2015; Bradford
et al., 2015.
Bradford et al., 2015 ..............
EN
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Aschettino, 2010 .....................
Bradford et al., 2017 ..............
Courbis et al., 2014 ................
Courbis et al., 2014 ................
Courbis et al., 2014 ................
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Carretta et al., 2014 ...............
Carretta et al., 2019 ...............
Carretta et al., 2014 ...............
Bradford et al., 2017 ..............
NMFS, 2018 ...........................
0.02104
0.00006
0.00311
0.0020
0.1000
0.00541
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00257
0.00549
0.00131
0.00348
0.023
0.066
0.097
0.00475
0.00004
0.02104
0.00006
0.00311
0.0020
0.1000
0.00541
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00257
0.00549
0.00131
0.00348
0.023
0.066
0.097
0.00475
0.00004
0.02104
0.00006
0.00311
0.0020
0.1000
0.00541
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00257
0.00549
0.00131
0.00348
0.023
0.066
0.097
0.00475
0.00004
0.02104
0.00006
0.00311
0.0020
0.1000
0.00541
0.061
0.072
0.061
0.00435
0.0029
0.00474
0.00257
0.00549
0.00131
0.00348
0.023
0.066
0.097
0.00475
0.00004
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Bradford et al., 2017 ..............
Aschettino, 2010 .....................
Aschettino, 2010 .....................
Forney et al., 2015 .................
Oleson et al., 2013 .................
Oleson et al., 2013 .................
Oleson et al., 2013 .................
Bradford et al., 2017 ..............
Barlow, 2006 ..........................
Bradford et al., 2017 ..............
Forney et al., 2015 .................
Forney et al., 2015 .................
Forney et al., 2015 .................
Forney et al., 2015 .................
Hill et al., 2011 .......................
Tyne et al., 2014 ....................
Hill et al., 2011 .......................
Forney et al., 2015 .................
NMFS, 2018, DoN, 2018 ........
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
EN
NL
NL
NL
NL
NL
EN
NL
NL
1 CNP = central north Pacific; NP = north Pacific.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 13—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 12, OFFSHORE SRI LANKA
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
jspears on DSK3GMQ082PROD with RULES2
Winter
Spring
Summer
Blue whale ..............................
NIND ....................
3,691
IWC, 2016 ..............................
0.00004
0.00004
0.00004
0.00004
Bryde’s whale .........................
NIND ....................
9,176
Wade and Gerrodette, 1993 ..
0.00041
0.00041
0.00041
0.00041
Common minke whale ............
Fin whale ................................
Omura’s whale ........................
IND .......................
IND .......................
NIND ....................
257,000
1,846
9,176
IWC, 2016 ..............................
IWC, 2016 ..............................
Wade and Gerrodette, 1993 ..
0.00001
0.00001
0.00041
0.00001
0.00001
0.00041
0.00001
0.00001
0.00041
0.00001
0.00001
0.00041
Sei whale ................................
Blainville’s beaked whale ........
Common dolphin .....................
Common bottlenose dolphin ...
NIND ....................
IND .......................
IND .......................
NIND ....................
9,176
16,867
1,819,982
785,585
Wade
Wade
Wade
Wade
0.00041
0.00105
0.00513
0.04839
0.00041
0.00105
0.00516
0.04829
0.00041
0.00105
0.00541
0.04725
0.00041
0.00105
0.00538
0.04740
VerDate Sep<11>2014
20:12 Aug 12, 2019
Jkt 247001
PO 00000
and
and
and
and
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Frm 00038
1993
1993
1993
1993
Fmt 4701
..
..
..
..
Sfmt 4700
E:\FR\FM\13AUR2.SGM
Density source reference 2
ESA
status 3
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
DoN, 2018 ..............................
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
EN
Fall
13AUR2
NL
NL
EN
NL
EN
NL
NL
NL
Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
40169
TABLE 13—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 12, OFFSHORE SRI LANKA—Continued
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Spring
Summer
Cuvier’s beaked whale ...........
Deraniyagala’s beaked whale
Dwarf sperm whale .................
NIND ....................
IND .......................
IND .......................
27,272
16,867
10,541
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.00506
0.00513
0.00005
0.00508
0.00516
0.00005
0.00505
0.00541
0.00005
0.00505
0.00538
0.00005
False killer whale ....................
IND .......................
144,188
Wade and Gerrodette, 1993 ..
0.00024
0.00024
0.00024
0.00024
Fraser’s dolphin ......................
IND .......................
151,554
Wade and Gerrodette, 1993 ..
0.00207
0.00207
0.00207
0.00207
Indo-Pacific bottlenose dolphin
Killer whale .............................
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
IND
IND
IND
IND
IND
.......................
.......................
.......................
.......................
.......................
7,850
12,593
16,867
64,600
736,575
Wade
Wade
Wade
Wade
Wade
..
..
..
..
..
0.00048
0.00697
0.00513
0.00921
0.00904
0.00048
0.00155
0.00516
0.00920
0.00904
0.00047
0.00693
0.00541
0.00937
0.00904
0.00047
0.00694
0.00538
0.00936
0.00904
Pygmy killer whale ..................
Pygmy sperm whale ...............
IND .......................
IND .......................
22,029
10,541
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.00138
0.00001
0.00137
0.00001
0.00152
0.00001
0.00153
0.00001
Risso’s dolphin ........................
Rough-toothed dolphin ...........
IND .......................
IND .......................
452,125
156,690
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.08641
0.00071
0.08651
0.00071
0.08435
0.00071
0.08466
0.00071
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
IND .......................
NIND ....................
IND .......................
268,751
24,446
634,108
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.03219
0.00129
0.00678
0.03228
0.00118
0.00678
0.03273
0.00126
0.00678
0.03279
0.00121
0.00678
Striped dolphin ........................
IND .......................
674,578
Wade and Gerrodette, 1993 ..
0.14601
0.14629
0.14780
0.14788
and
and
and
and
and
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
1993
1993
1993
1993
1993
Density source reference 2
ESA
status 3
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
NL
NL
NL
Fall
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
EN
NL
NL
1 IND
= Indian Ocean; NIND = northern Indian Ocean.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 14—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 13, ANDAMAN SEA
Stock name 1
jspears on DSK3GMQ082PROD with RULES2
Species
Blue whale ..............................
NIND ....................
Bryde’s whale .........................
Common minke whale ............
Fin whale ................................
Omura’s whale ........................
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Spring
0.00003
0.00003
Summer
3,691
IWC, 2016 ..............................
NIND ....................
9,176
Wade and Gerrodette, 1993 ..
0.00038
0.000036
0.00037
0.00037
IND .......................
IND .......................
NIND ....................
257,000
1,846
9,176
IWC, 2016 ..............................
IWC, 2016 ..............................
IWC, 2016 ..............................
................
0.00001
0.00038
0.00001
0.00001
0.00036
0.00968
................
0.00037
0.00001
0.00001
0.00037
Blainville’s beaked whale ........
Common bottlenose dolphin ...
Cuvier’s beaked whale ...........
Deraniyagala’s beaked whale
Dwarf sperm whale .................
IND .......................
NIND ....................
NIND ....................
IND .......................
IND .......................
16,867
785,585
27,272
16,867
10,541
Wade
Wade
Wade
Wade
Wade
..
..
..
..
..
0.00094
0.07578
0.00466
0.00094
0.00005
0.00089
0.07781
0.00482
0.00092
0.00006
0.00094
0.07261
0.00480
0.00097
0.00006
0.00099
0.07212
0.00473
0.00099
0.00005
False killer whale ....................
IND .......................
144,188
Wade and Gerrodette, 1993 ..
0.00023
0.00023
0.00024
0.00023
Fraser’s dolphin ......................
IND .......................
151,554
Wade and Gerrodette, 1993 ..
0.00176
0.00179
0.00180
0.00180
Ginkgo-toothed beaked whale
Indo-Pacific bottlenose dolphin
Killer whale .............................
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
IND
IND
IND
IND
IND
IND
.......................
.......................
.......................
.......................
.......................
.......................
16,867
7,850
12,593
16,867
64,600
736,575
Wade
Wade
Wade
Wade
Wade
Wade
..
..
..
..
..
..
0.00094
0.00076
0.00744
0.00444
0.00884
0.00868
0.00092
0.00078
0.00178
0.00429
0.00884
0.00841
0.00097
0.00073
0.00730
0.00459
0.00878
0.00829
0.00099
0.00072
0.00734
0.00440
0.00846
0.00873
Pygmy killer whale ..................
Pygmy sperm whale ...............
IND .......................
IND .......................
22,029
10,541
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.00121
0.00001
0.00113
0.00001
0.00125
0.00001
0.00131
0.00001
Risso’s dolphin ........................
Rough-toothed dolphin ...........
IND .......................
IND .......................
452,125
156,690
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.09197
0.00077
0.09215
0.00078
0.09173
0.00077
0.09366
0.00074
Short-finned pilot whale ..........
Sperm whale ...........................
Spinner dolphin .......................
IND .......................
NIND ....................
IND .......................
268,751
24,446
634,108
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.03354
0.00109
0.00736
0.03364
0.00099
0.00711
0.03543
0.00107
0.00701
0.03504
0.00105
0.00726
Striped dolphin ........................
IND .......................
674,578
Wade and Gerrodette, 1993 ..
0.14413
0.14174
0.14123
0.14402
and
and
and
and
and
and
and
and
and
and
and
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
1993
1993
1993
1993
1993
1993
1993
1993
1993
1993
1993
0.00003
Density source reference 2
ESA
status 3
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
EN
Fall
0.00003
1 IND
NL
NL
EN
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
EN
NL
NL
= Indian Ocean; NIND = northern Indian Ocean.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
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TABLE 15—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 14, NORTHWESTERN AUSTRALIA
Stock name 1
Species
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Antarctic minke whale .............
Blue whale/Pygmy blue whale
ANT ......................
SIND .....................
90,000
1,657
Bryde’s whale .........................
SIND .....................
13,854
Common minke whale ............
Fin whale ................................
IND .......................
SIND .....................
257,500
38,185
Humpback whale ....................
Omura’s whale ........................
Western Australia
stock and DPS.
SIND .....................
Sei whale ................................
Blainville’s beaked whale ........
Common bottlenose dolphin ...
Cuvier’s beaked whale ...........
Dwarf sperm whale .................
SIND .....................
IND .......................
WAU .....................
SH ........................
IND .......................
False killer whale ....................
Fraser’s dolphin ......................
Spring
Summer
Bannister et al., 1996 .............
Jenner et al., 2008; McCauley
and Jenner, 2010.
IWC, 1981 ..............................
................
................
0.00001
0.00003
0.00001
0.00003
0.00001
0.00003
0.00032
0.00032
0.00032
0.00032
................
0.00001
0.01227
0.00099
0.01929
0.00128
0.01947
0.00121
13,640
IWC, 2016 ..............................
Branch and Butterworth,
2001; Mori and Butterworth,
2006.
Bannister and Hedley, 2001 ...
................
0.00007
0.00007
0.00007
13,854
IWC, 1981 ..............................
0.00032
0.00032
0.00032
0.00032
13,854
16,867
3,000
76,500
10,541
IWC, 1981 ..............................
Wade and Gerrodette, 1993 ..
Preen et al., 1997 ..................
Dalebout et al., 2005 ..............
Wade and Gerrodette, 1993 ..
0.00001
0.00083
0.03630
0.00399
0.00004
0.00001
0.00083
0.03652
0.00406
0.00004
0.00001
0.00082
0.03459
0.00402
0.00004
0.00001
0.00083
0.03725
0.00405
0.00004
IND .......................
144,188
Wade and Gerrodette, 1993 ..
0.00020
0.00020
0.00019
0.00020
IND .......................
151,554
Wade and Gerrodette, 1993 ..
0.00145
0.00148
0.00149
0.00147
Killer whale .............................
Longman’s beaked whale .......
Melon-headed whale ..............
Pantropical spotted dolphin ....
IND
IND
IND
IND
.......................
.......................
.......................
.......................
12,593
16,867
64,600
736,575
Wade
Wade
Wade
Wade
..
..
..
..
0.00585
0.00393
0.00717
0.00727
0.00435
0.00393
0.00717
0.00727
0.00588
0.00403
0.00635
0.00715
0.00580
0.00412
0.00637
0.00746
Pygmy killer whale ..................
Risso’s dolphin ........................
Rough-toothed dolphin ...........
IND .......................
IND .......................
IND .......................
22,029
452,125
156,690
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
Wade and Gerrodette, 1993 ..
0.00100
0.07152
0.00059
0.00104
0.07214
0.00060
0.00101
0.06944
0.00059
0.00097
0.07173
0.00059
Short-finned pilot whale ..........
Southern bottlenose whale .....
Spade-toothed beaked whale
Sperm whale ...........................
Spinner dolphin .......................
IND .......................
IND .......................
IND .......................
SIND .....................
IND .......................
268,751
599,300
16,867
24,446
634,108
Wade
Wade
Wade
Wade
Wade
..
..
..
..
..
0.02698
0.00083
0.00083
0.00096
0.00561
0.02759
0.00083
0.00083
0.00087
0.00549
0.02689
0.00082
0.00082
0.00097
0.00568
0.02716
0.00083
0.00083
0.00092
0.00563
Striped dolphin ........................
IND .......................
674,578
Wade and Gerrodette, 1993 ..
0.12018
0.12041
0.11680
0.11727
and
and
and
and
and
and
and
and
and
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
Gerrodette,
1993
1993
1993
1993
1993
1993
1993
1993
1993
Density source reference 2
ESA
status 3
Unavail ....................................
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
NL
EN
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
Unavail ....................................
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
SMRU Ltd., 2012; DoN, 2018
Kaschner et al., 2006; DoN,
2018.
SMRU Ltd., 2012; DoN, 2018
NL
Fall
NL
NL
EN
NL
EN
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
NL
EN
NL
NL
1 ANT
= Antarctic; SIND = southern Indian Ocean; IND = Indian Ocean; SH = Southern Hemisphere; WAU = Western Australia.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
TABLE 16—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS
ASSOCIATED WITH MODEL AREA 15, NORTHEAST OF JAPAN
Stock name 1
jspears on DSK3GMQ082PROD with RULES2
Species
Abundance
Density
(animals/km2)
Abundance source reference
Winter
Spring
Summer
Density source reference 2
ESA
status 3
Tillman, 1997; Ferguson and
Barlow 2001; 2003; LGL,
2008.
Buckland et al., 1992 .............
Tillman, 1977 ..........................
Kaschner et al., 2006 in DoN,
2018.
Unavail ....................................
Fulling et al., 2011 ..................
Unavail ....................................
EN
Fall
Blue whale ..............................
WNP .....................
9,250
Tillman, 1977 ..........................
0.00001
0.00001
................
0.00001
Common minke whale ............
Fin whale ................................
Humpback whale ....................
WNP ‘‘OE’’ ...........
WNP .....................
WNP and DPS .....
25,049
9,250
1,328
Buckland et al., 1992 .............
Tillman, 1977 ..........................
Bettridge et al., 2015 ..............
0.0022
................
................
0.0022
0.0002
0.000498
0.0022
0.0002
0.000498
0.0022
0.0002
0.000498
North Pacific right whale .........
Sei whale ................................
Western North Pacific gray
whale.
Baird’s beaked whale .............
WNP .....................
NP ........................
Western and DPS
922
7,000
290
Best et al., 2001 .....................
Mizroch et al., 2015 ................
Caretta et al., 2019 ................
................
................
................
................
0.00029
................
0.00001
0.00029
0.00001
0.00001
................
0.00001
WNP .....................
5,688
0.0015
0.0029
0.0029
Kasuya, 1986 .........................
NL
WNP .....................
3,286,163
0.0863
0.0863
0.0863
0.0863
WNP .....................
90,725
0.0054
0.0054
0.0054
0.0054
Dall’s porpoise ........................
WNP dalli .............
162,000
0.0390
0.0520
0.0650
0.0520
Killer whale .............................
WNP .....................
12,256
0.0036
0.0036
0.0036
0.0036
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Springer et al., 2003 ...............
NL
Cuvier’s beaked whale ...........
Pacific white-sided dolphin .....
NP ........................
931,000
Miyashita 1986 and 1990,
Kasuya and Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Ferguson and Barlow, 2001;
2003.
Miyashita, 1991; Kasuya and
Perrin, 2017.
Ferguson and Barlow, 2001;
2003.
Buckland et al., 1993 .............
................
Common dolphin .....................
0.0048
0.0048
0.0048
0.0048
Sperm whale ...........................
Stejneger’s beaked whale ......
NP ........................
WNP .....................
102,112
8,000
Kato and Miyashita, 1998 ......
Kasuya, 1986 .........................
0.0017
0.0005
0.0022
0.0005
0.0022
0.0005
0.0022
0.0005
Northern fur seal .....................
Western Pacific ....
503,609
0.01378
0.01378
NP ........................
Alaska/Bering Sea
DPS.
West-Asian and
Western DPS.
365,000
461,625
Kuzin 2015; Gelatt et al.,
2015.
Lowry, 2016 ............................
Conn et al., 2014; Muto et al.,
2019.
Muto et al., 2019 ....................
0.00689
Ribbon seal .............................
Spotted seal ............................
0.0904
................
0.0904
0.2770
0.0452
0.1385
0.00001
0.00001
0.00001
Steller sea lion ........................
77,767
NL
EN
EN
EN
EN
EN
NL
NL
NL
EN
NL
0.01378
Ferguson and Barlow, 2001;
2003.
LGL, 2011 ...............................
Ferguson and Barlow, 2001;
2003.
Buckland et al., 1993 .............
NL
0.0452
................
Moreland et al., 2012 .............
Moreland et al., 2012 .............
NL
NL
0.00001
Unavail ....................................
EN
NL
1 IND = Indian Ocean; NP = northern Pacific; WNP = western north Pacific; OE = Offshore Japan.
2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low
probability of occurrence.
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jspears on DSK3GMQ082PROD with RULES2
3 ESA
40171
Status: EN = Endangered; T = Threatened; NL = Not Listed.
Stock abundance and density
estimates are derived from the best
available source documentation and
species or stock-specific information on
the marine mammals that could occur in
that area. The Navy developed the
abundance and density estimates by
first using estimates from line-transect
surveys that occurred in or near each of
the 15 model sites (e.g., Bradford et al.,
2017) and NMFS’ SARs. When density
estimates were not available from a
survey in the model area, the Navy
extrapolated density estimates from a
region with similar oceanographic
characteristics to that model area. For
example, the eastern tropical Pacific has
been extensively surveyed and provides
a comprehensive understanding of
marine mammals in temperate oceanic
waters (Ferguson and Barlow, 2001,
2003). Density estimates for some model
areas were also derived from the Navy’s
Marine Species Density Database (DoN,
2018). In addition, density estimates are
usually not available for rare marine
mammal species or for those that have
been newly defined (e.g., the
Deraniyagala’s beaked whale). For these
species, the lowest density estimate of
0.0001 animals/square kilometer (0.0001
animals/km2) was used in the take
analysis to reflect the low probability of
occurrence in a specific SURTASS LFA
sonar model area. Further, the Navy
pooled density estimates for species of
the same genus if sufficient data were
not available to compute a density for
individual species or the species are
difficult to distinguish at sea, which is
often the case for beaked whales (e.g.,
Mesoplodon spp.), as well as the pygmy
and dwarf sperm whales (Kogia spp.).
Density estimates are available for
species groups rather than the
individual species for Kogia spp. in
model areas 1, 2, 3, 5, 6, and 7 and for
Mesoplodon spp. in model area 8, and
the best available data (Ferguson and
Barlow, 2001 and 2003) are reported as
pooled data.
The Navy provides detailed
descriptions of the distribution,
abundance, diving behavior, life history,
and hearing vocalization information for
each affected marine mammal species
with confirmed or possible occurrence
within SURTASS LFA sonar study areas
in section 4 (pages 4–1 through 4–44) of
the application (available online at
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities) and Chapter 3 of
the 2019 SURTASS LFA FSEIS/SOEIS.
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18:45 Aug 12, 2019
Jkt 247001
Although not repeated in this
document, NMFS has reviewed these
data, determined them to be the best
available scientific information for this
rulemaking, and considers this
information part of the administrative
record for this action. Additional
information is available in NMFS’
Marine Mammal Stock Assessment
Reports, which may be viewed at
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessments.
There are no active Unusual Mortality
Events in the SURTASS LFA sonar
Study Area.
Potential Effects of the Specified
Activity on Marine Mammals and Their
Habitat
NMFS provided a brief primer on the
subjects of underwater sound, the
metrics used in the analysis of the
effects of underwater sound on marine
mammals, and marine mammal hearing
sensitivities and vocalizations in the
Brief Background on Sound, Marine
Mammal Hearing, and Vocalization
section of the proposed rule (84 FR
7186; March 1, 2019). Additionally,
NMFS provided a summary and
discussion of the potential effects of the
specified activities (e.g., use of acoustic
sources) on marine mammals and their
habitat in the proposed rule (84 FR
7186; March 1, 2019). In the Potential
Effects of Specified Activities on Marine
Mammals and Their Habitat section of
the proposed rule, NMFS provided a
description of the potential effects of
SURTASS LFA sonar training and
testing activities on marine mammals,
including a discussion of serious injury
or mortality, physical trauma, sensory
impairment (permanent and temporary
threshold shift and acoustic masking),
physiological responses (particular
stress responses), behavioral
disturbance, or habitat effects, as well as
the results from previous SURTASS
LFA sonar activities monitoring.
Therefore, we do not reprint this
information here but refer the reader to
that document, however, we provide an
overview of relevant new scientific
studies below. None of the newer
information highlighted here affects our
analysis in a manner that changes our
determinations under the MMPA from
the proposed rule.
New Pertinent Science Since
Publication of the Proposed Rule
Southall et al. (2019a) evaluated
Southall et al. (2007) and used updated
scientific information to propose revised
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noise exposure criteria to predict onset
of auditory effects in marine mammals
(i.e., PTS and TTS onset). Southall et al.
(2019a) note that the quantitative
processes described and the resulting
exposure criteria (i.e., thresholds and
auditory weighting functions) are
largely identical to those in Finneran
(2016) and NMFS (2016 and 2018).
However, they differ in that the Southall
et al. (2019a) exposure criteria are more
broadly applicable as they include all
marine mammal species (rather than
those only under NMFS jurisdiction) for
all noise exposures (both in air and
underwater for amphibious species),
and while the hearing group
compositions are identical, Southall et
al. (2019a) renamed the hearing groups.
Recent studies on the behavioral
responses of cetaceans to mid-frequency
sonar examine and continue to
demonstrate the importance of not only
sound source parameters, but exposure
context (e.g., behavioral state, presence
of other animals and social
relationships, prey abundance, distance
to source, presence of vessels,
environmental parameters, etc.) in
determining or predicting a behavioral
response. Wensveen et al. (2019)
examined the role of sound source
(simulated sonar pulses) distance and
received level in northern bottlenose
whales in an environment without
frequent sonar activity using multiscaled controlled exposure experiments.
They observed behavioral avoidance of
the sound source over a wide range of
distances (0.8–28 km) and estimated
avoidance thresholds ranging from
received SPLs of 117–126 dB re: 1 mPa.
The behavioral response characteristics
and avoidance thresholds were
comparable to those previously
observed in beaked whale studies;
however, Wensveen et al. (2019) did not
observe an effect of distance on
behavioral response and found that
onset and intensity of behavioral
response were better predicted by
received SPL. When conducting
controlled exposure experiments on
blue whales, Southall et al. (2019b)
observed that after exposure to
simulated and operational midfrequency active sonar, more than 50
percent of blue whales in deep-diving
states responded to the sonar, while no
behavioral response was observed in
shallow-feeding blue whales. The
behavioral responses they observed
were generally brief, of low to moderate
severity, and highly dependent on
exposure context (behavioral state,
source-to-whale horizontal range, and
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prey availability). Blue whale response
did not follow a simple exposureresponse model based on received
sound exposure level. In a review of the
potential impacts of sonar on beaked
whales, Bernaldo de Quiro´s et al. (2019)
suggested that the effect of midfrequency active sonar on beaked
whales varies among individuals or
populations, and that predisposing
conditions such as previous exposure to
sonar and individual health risk factors
may contribute to individual outcomes
(such as decompression sickness).
Estimated Take of Marine Mammals
This section indicates the numbers of
takes that NMFS is authorizing in its
LOA, which are based on the maximum
number of instances in which marine
mammals could be reasonably expected
to be taken, as described in detail below.
NMFS coordinated closely with the
Navy in the development of its
incidental take application, and agrees
that the methods the Navy has put forth
described herein to estimate take
(including the model, thresholds, and
density estimates), and the resulting
numbers estimated for authorization, are
appropriate and based on the best
available science.
Level B harassment is the only means
of take expected to result from these
activities. For military readiness
activities, the MMPA defines
‘‘harassment’’ as: (i) Any act that injures
or has the significant potential to injure
a marine mammal or marine mammal
stock in the wild (Level A Harassment);
or (ii) any act that disturbs or is likely
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of natural behavior 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). As described in the
Potential Effects of the Specified
Activity on Marine Mammals and their
Habitat section of the proposed rule (84
FR 7186, March 1, 2019), based on the
specified activities operational
parameters and mitigation, only Level B
Harassment is expected to occur and
therefore authorized. Based on the
nature of the activities and the
anticipated effectiveness of the
mitigation measures, take by Level A
Harassment, serious injury, or mortality
is neither anticipated nor authorized.
Generally speaking, for acoustic
impacts we estimate the amount and
type of harassment by considering: (1)
Acoustic thresholds above which NMFS
believes the best available science
indicates marine mammals will be taken
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by behavioral disruption or incur some
degree of temporary or permanent
hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day or event; (3)
the density or occurrence of marine
mammals within these ensonified areas;
and (4) the number of days of activities
or events. Below, we describe these
components in more detail, as well as
the model the Navy used to incorporate
these components to predict impacts,
and present the take estimates.
Density Estimates
To derive density estimates, direct
estimates from line-transect surveys that
occurred in or near each of the 15
modeled areas (described in the
Description of Marine Mammals in the
Area of the Specified Activities section
above) were utilized first (e.g., Bradford
et al., 2017). When density estimates
were not available from a survey in the
Study Area, density estimates from a
region with similar oceanographic
characteristics were extrapolated to the
operational area. Densities for some
model areas were also derived from the
Navy’s Marine Species Density Database
(DoN, 2018a). Last, density estimates are
usually not available for rare marine
mammal species or for those that have
been newly defined (e.g., Deraniyagala’s
beaked whale). For such species, a low
density estimate of 0.0001 animals per
square kilometer (animals/km2) was
used in the risk analysis to reflect the
low probability of occurrence in a
specific model area. Further, density
estimates are sometimes pooled for
species of the same genus if sufficient
data are not available to compute a
density for individual species or the
species are difficult to distinguish at
sea. This is often the case for beaked
whales (Mesoplodon spp) as well as the
pygmy and dwarf sperm whales (Kogia
spp), which is why densities were
pooled for these species in certain
model areas. Density estimates are
available for these species groups rather
than the individual species in model
areas 1, 2, 3, 5, 6, and 7 for Kogia spp,
and in model area 8 for Mesoplodon
spp. Density information is provided in
Tables 2 through 16 above, and is also
available in the Navy’s application
(Table 3–2, Pages 3–6 through 3–25) and
Chapter 3 and Appendix D of the 2019
SURTASS LFA FSEIS/SOEIS.
SURTASS LFA Sonar Behavioral
Response Function
To model potential behavioral
impacts to marine animals from
exposure to SURTASS LFA sonar
sound, the Navy has developed a
methodology to estimate the total
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exposure of modeled animals exposed
to multiple pings over an extended
period of time. NMFS concurs that this
model is appropriate and utilizes the
best available science, and adopted the
model for use in the analysis to support
these regulations. The Navy’s acoustic
model analyzes the following
components: (1) The LFA sonar source
modeled as a point source, with an
effective source level (SL) of
approximately 235 dB re: 1 mPa at 1 m
(SPL) (note: This was incorrectly stated
as 240 dB in the proposed rule); (2) a 60
second duration signal; and (3) a beam
pattern that is correct for the number
and spacing of the individual projectors
(source elements). This source model,
when combined with the threedimensional transmission loss (TL) field
generated by the Parabolic Equation (PE)
acoustic propagation model, defines the
received level (RL) (in SPL) sound field
surrounding the source for a 60-second
LFA sonar signal (i.e., the SPE metric
accounts for received level and
exposure from multiple pings). To
estimate the total exposure of animals
exposed to multiple pings, the Navy
models the RLs for each modeled
location and any computer-simulated
marine mammals (animats) within the
location, records the exposure history of
each animat, and generates a SPE value.
Thus, the Navy can model the
SURTASS LFA sound field, providing a
four-dimensional (position and time)
representation of a sound pressure field
within the marine environment and
estimates of an animal’s exposure to
sound over a period of 24 hours (hrs).
The Navy uses a behavioral response
function to estimate the number of
behavioral responses that would qualify
as behavioral Level B harassment under
the MMPA. NMFS determined that this
threshold is appropriate for SURTASS
LFA sonar and utilizes the best available
science and adopted this function for
use in the analysis for these regulations.
The behavioral response function is
described fully in Chapter 4 and
Appendix B of the 2019 SURTASS LFA
FSEIS/SOEIS.
A wide range of behavioral reactions
may qualify as Level B harassment
under the MMPA, including but not
limited to avoidance of the sound
source, temporary changes in
vocalizations or dive patterns,
temporary avoidance of an area, or
temporary disruption of feeding,
migrating, or reproductive behaviors.
The estimates calculated using the
behavioral response function do not
differentiate between the different types
of potential behavioral reactions, nor do
the estimates provide information
regarding the potential fitness or other
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biological consequences of the reactions
on the affected individuals.
The definition of Level B harassment
for military readiness activities
contemplates the disruption of
behavioral patterns to the point where
they are abandoned or significantly
altered. It is difficult to predict with
certainty, given existing data, when
exposures that are generally expected
are likely to result in significantly
altered or abandoned behavioral
patterns. Therefore, the Navy’s take
estimates capture a wider range of
impacts, including less significant
responses. Moreover, NMFS does not
assume that each instance of Level B
harassment modeled by the Navy will
have, or is likely to have, an adverse
impact on an individual’s fitness.
Rather, NMFS considers the available
scientific evidence to determine the
likely nature of the modeled behavioral
responses and the potential fitness
consequences for affected individuals in
its negligible impact evaluation.
Accordingly, we consider application of
this Level B harassment threshold as
identifying the maximum number of
instances in which marine mammals
could be reasonably expected to
experience a disruption in behavior
patterns to a point where they are
abandoned or significantly altered (i.e.,
Level B harassment). Because this is the
most appropriate method for estimating
Level B harassment given the best
available science and uncertainty on the
topic, it is these numbers of Level B
harassment by behavioral disturbance
that are analyzed in the Negligible
Impact Analysis and Determination
section and authorized.
Estimates of Potential Marine Mammal
Exposure
The Navy’s acoustic impact analysis
for marine mammals, which NMFS has
adopted for the purposes of these
regulations, represents an evolution that
builds upon the analysis and
methodology documented in previous
SURTASS LFA sonar NEPA efforts
(DoN, 2001; 2007; 2012; and 2017), and
includes updates of the most current
acoustic thresholds and methodology to
assess auditory impacts (NMFS, 2018).
A detailed discussion of the acoustic
impact analysis is provided in
Appendix B of the 2019 SURTASS LFA
FSEIS/SOEIS, but is summarized here.
Using the Acoustic Integration Model
(AIM), the Navy modeled 15
representative model areas in the central
and western North Pacific and eastern
Indian Oceans, representing the acoustic
regimes and marine mammal species
that may be encountered during
SURTASS LFA sonar training and
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testing activities. Modeling was
conducted for one 24-hour period in
each of the four seasons in each model
area. To predict acoustic exposure, the
LFA sonar ship was simulated traveling
in a triangular pattern at a speed of 4 kt
(7.4 kilometers per hour (kph), for eight
hours in each leg of the triangle. The
duration of the LFA sonar transmission
was modeled as 24 hrs, with a signal
duration of 60 seconds and a duty cycle
of 10 percent (i.e., the source
transmitted for 60 seconds every 10
minutes (min) for 24 hrs, which equates
to 2.4 active transmission hours and is
representative of average actual
transmission times based on the past 17
years of SURTASS LFA sonar activities).
The acoustic field around the LFA
sonar source was predicted by the Navy
standard parabolic equation propagation
model using the defined LFA sonar
operating parameters. Each marine
mammal species potentially occurring
in a model area in each season was
simulated by creating animats
(simulated animals) programmed with
behavioral values describing their dive
and movement patterns. AIM then
integrates the acoustic field created from
the underwater transmission of LFA
sonar with the three-dimensional (3D)
movement of marine mammals to
estimate their potential for sonar
exposure at each 30-second timestep
within the 24-hr modeling period. Thus,
the output of AIM is the time history of
exposure for each animat.
The Navy assesses the potential
impacts on marine mammals by
predicting the sound field that a given
marine mammal species/stock could be
exposed to over time in a potential
model area. This is a multi-part process
involving: (1) The ability to measure or
estimate an animal’s location in space
and time; (2) the ability to measure or
estimate the three-dimensional sound
field at these times and locations; (3) the
integration of these two data sets into
the acoustic impact model to estimate
the total acoustic exposure for each
animal in the modeled population; and
(4) the conversion of the resultant
cumulative exposures for a modeled
population into an estimate of the risk
of a potential injury (i.e., Level A
harassment (permanent threshold shift
(PTS)), temporary threshold shift (TTS),
or disruption of natural behavioral
patterns (i.e., a take estimate for Level B
harassment).
To estimate the potential impacts for
each marine mammal stock on an
annual basis, several calculation steps
are required. First, the potential impact
for one LFA sonar transmission hour is
calculated. Second, the number of LFA
sonar transmission hours that may occur
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40173
in each model area for each activity is
determined. The third step is to
determine the number of model areas in
which each stock may occur for each
activity, and the fourth step is to select
the maximum per-hour impact for each
stock that may occur in the model areas
for that activity. The final step is to
multiply the results of steps two, three,
and four to calculate the potential
annual impacts per activity, which are
then summed across the stocks for a
total potential impact for all individual
activities. The number of individual
marine mammals that may be taken over
the seven-year period of the proposed
SURTASS LFA sonar training and
testing activities was estimated by
multiplying the maximum number of
instances of exposure for each species/
stock calculated annually for each of the
two transmission scenarios (496
transmission hours in years 1–4 and 592
transmission hours in years 5–7), and
then adding these to calculate a total
estimate. For example, for the WNP blue
whale, four years of 496 transmission
hours (for years 1–4) resulted in 90
Level B harassment takes/year and three
years of 592 transmission hours (for
years 5–7) resulted in 123 Level B
harassment takes/year. Multiplying 90
takes/year by 4 years equals 360 Level
B harassment takes for the 496
transmission hour scenario, and
multiplying 123 takes/year by 3 years
equals 369 Level B harassment takes for
the 592 transmission hour scenario. The
final step is adding the totals for the two
transmission scenarios to arrive at a
total (360 + 369 = 729 Level B
harassment takes over the 7-year period
for WNP blue whales). For additional
detail on modeling and take estimation,
please refer to Chapter 6.6 (Quantitative
Impact Analysis for Marine Mammals)
of the Navy’s application and Appendix
B of the 2019 SURTASS LFA FSEIS/
SOEIS.
With the implementation of the threepart monitoring programs (visual,
passive acoustic, and HF/M3
monitoring, as discussed below), NMFS
and the Navy do not expect that marine
mammals would be injured by
SURTASS LFA sonar because a marine
mammal is likely to be detected and
active transmissions suspended or
delayed to avoid injurious exposure.
The probability of detection of a marine
mammal of any size by the HF/M3
system within the LFA sonar mitigation
zone approaches 100 percent over the
course of multiple pings (see the 2001
SURTASS LFA FOEIS/EIS, Subchapters
2.3.2.2 and 4.2.7.1 for the HF/M3 sonar
testing results as well as section 5.4.3 of
the 2019 SURTASS LFA FSEIS/SOEIS
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for a summary of the effectiveness of the
HF/M3 system). Quantitatively,
modeling output shows zero takes by
Level A harassment for all marine
mammal stocks in all representative
mission areas with mitigation applied.
All hearing groups of marine mammals
except LF cetaceans would need to be
within 22 ft (7 m) of the LFA sonar
source for an entire LFA transmission
(60 seconds), and a LF cetacean would
need to be within 135 ft (41 m) for an
entire LFA transmission to potentially
experience PTS. This is unlikely to
occur, especially given the mitigation
measures in place and the Navy’s
proven effectiveness at detecting marine
mammals well outside of this range so
that shut down measures would be
implemented well before marine
mammals would be within these ranges.
Again, NMFS notes that over the course
of the previous three rulemakings from
2002 to 2017, and during the Navy’s
training and testing activities during the
NDE from 2017 to the present, there
have been no reported or known
incidents of Level A harassment of any
marine mammal. This is because it
would be highly unlikely that a marine
mammal would remain close enough to
the vessel to experience Level A
harassment (see discussion in Threshold
Shift subsection of the Potential Effects
of the Specified Activity on Marine
Mammals and their Habitat section of
the proposed rulemaking 84 FR 7186,
7205–7206; March 1, 2019), in
combination with the Navy’s highly
effective detection of marine mammals
and shutting down SURTASS LFA
sonar prior to the animals entering the
Level A harassment zone. Therefore,
NMFS does not anticipate and does not
authorize any Level A harassment takes
for any marine mammal species or
stocks over the course of the seven-year
regulations.
The distances to the TTS thresholds
are less than 50 ft (15 m) for midfrequency (MF) and high-frequency (HF)
cetaceans and otariids; 216 ft (66 m) for
phocids; and 1,354 ft (413 m) for lowfrequency (LF) cetaceans if an animal
were to remain at those distances for an
entire LFA sonar signal (60 sec). While
it is likely that mitigation measures
would also avoid TTS, some small
subset of the animals may also
experience TTS if exposed for longer
periods of time at greater distances;
however, any of the TTS impacts would
be expected to be captured within the
estimate of Level B harassment takes by
behavioral disruption and separate
enumeration is not necessary or
appropriate. Any TTS incurred would
likely be of a low level and of short
duration because we do not expect
animals to be exposed for long durations
close to the source.
Of note, the estimated number of
Level B harassment takes does not
necessarily equate to the number of
individual animals the Navy expects to
harass (which is lower), but rather to the
instances of take (i.e., exposures above
the Level B harassment threshold) that
are anticipated to occur over the sevenyear period. Some individuals may
experience multiple instances of take
(meaning over multiple days) over the
course of the year, while some members
of a species or stock may not experience
take at all, which means that the
number of individuals taken is likely
somewhat smaller than the total
estimated takes. Generally speaking, the
higher the number of takes as compared
to the population abundance, the more
repeated takes of individuals are likely,
and the higher the actual percentage of
individuals in the population that are
likely taken at least once in a year.
However, because of the nature of the
SURTASS LFA activities (small number
of continuously moving vessels spread
over a very large area), there are likely
fewer repeated takes of the same
individuals than would be expected
from other more localized or stationary
activities.
More detailed information for each of
the steps to quantify take estimates, as
well as an illustrative example, are
provided in section 6.6 of the Navy’s
application (Quantitative Impact
Analysis for Marine Mammals). A more
thorough description of the impact
analysis is also provided in the 2019
SURTASS LFA FEIS/SOEIS, specifically
section 4.5.2.1.3, Marine Mammals
(Quantitative Impact Analysis for
Marine Mammals subsection) and
Appendix B (Marine Mammal Impact
Analysis). NMFS has reviewed this
information and has accepted the Navy
modeling procedure and results. The
total maximum potential impact on an
annual basis for years 1–4 and years 5–
7 as well as the total overall takes for the
seven-year period covered by this
rulemaking are presented in Table 17
below. These are considered
conservative estimates because they are
based on the maximum potential impact
to a species or stock across all model
areas in which an activity may occur.
Therefore, if an activity occurs in a
different model area than the area where
the maximum potential impact was
predicted, the actual potential impact
may be less than estimated. However,
since the Navy cannot forecast where a
specific activity may be conducted this
far in advance, this maximum estimate
provides the Navy with the flexibility to
conduct its training and testing
activities across all modeled areas
identified for each activity.
TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4
AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR
Maximum annual Level B
harassment, years 1–4
Stock 1
Species
Percen
species or
stock
Instances
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Antarctic minke whale .........
Blue whale ..........................
Bryde’s whale ......................
Common minke whale ........
VerDate Sep<11>2014
ANT ....................................
CNP ....................................
NIND ...................................
WNP ...................................
SIND ...................................
ECS ....................................
Hawaii .................................
WNP ...................................
NIND ...................................
SIND ...................................
Hawaii .................................
IND .....................................
WNP JW .............................
18:45 Aug 12, 2019
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0
3
0
90
1
14
5
378
8
7
572
1,271
3
Fmt 4701
Sfmt 4700
Maximum annual Level B
harassment, years 5–7
Instances
0.00
2.39
0.00
0.90
0 .07
10.28
0.62
1.94
0.07
0.05
2.30
0.43
0.12
E:\FR\FM\13AUR2.SGM
0
4
1
123
1
19
6
437
10
9
682
1,748
5
13AUR2
Percent
species or
stock
0.00
2.85
0.00
1.14
0.07
14.13
0.74
2.26
0.10
0.07
2.74
0.59
0.17
Total overall
Level B
harassment for
7-year period
0
24
3
729
7
113
38
2,823
62
55
4,334
10,328
27
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40175
TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4
AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued
Maximum annual Level B
harassment, years 1–4
Stock 1
Species
Percen
species or
stock
Instances
Fin whale .............................
Humpback whale ................
North Pacific right whale .....
Omura’s whale ....................
Sei whale ............................
Western North Pacific gray
whale.
Baird’s beaked whale ..........
Blainville’s beaked whale ....
Common bottlenose dolphin
Common dolphin .................
Cuvier’s beaked whale ........
Dall’s porpoise ....................
Deraniyagala’s beaked
whale.
Dwarf sperm whale .............
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False killer whale ................
Fraser’s dolphin ..................
Ginkgo-toothed beaked
whale.
Harbor porpoise ..................
VerDate Sep<11>2014
WNP OE .............................
YS .......................................
ECS ....................................
Hawaii .................................
IND .....................................
SIND ...................................
WNP ...................................
CNP stock and Hawaii DPS
WAU stock and DPS ..........
WNP stock and DPS ..........
WNP ...................................
NIND ...................................
SIND ...................................
WNP ...................................
Hawaii .................................
SIND ...................................
NP ......................................
NIND ...................................
WNP stock and Western
DPS.
WNP ...................................
Hawaii .................................
WNP ...................................
IND .....................................
4-Islands .............................
Hawaii Island ......................
Hawaii Pelagic ....................
IA ........................................
IND .....................................
Japanese Coastal ..............
Kauai/Niihau .......................
Oahu ...................................
WNP Northern Offshore .....
WNP Southern Offshore ....
WAU ...................................
IND .....................................
WNP ...................................
Hawaii .................................
IND .....................................
SH ......................................
WNP ...................................
SOJ dalli type .....................
WNP dalli ecotype ..............
WNP truei ecotype .............
IND .....................................
Maximum annual Level B
harassment, years 5–7
Percent
species or
stock
Instances
Total overall
Level B
harassment for
7-year period
2,127
189
9
3
0
22
2,558
487
1
3,103
89
8
5
14
19
0
3,172
4
0
8.59
4.20
1.80
2.30
0.00
0.05
27.55
4.85
0.00
233.84
9.57
0.07
0.04
0.81
4.78
0.00
45.37
0.04
0.00
2,404
250
12
4
0
30
3,455
611
1
4,266
122
10
7
16
22
0
4,361
5
1
9.71
5.57
2.47
2.74
0.00
0.07
37.23
6.10
0.00
321.49
13.15
0.10
0.05
0.95
5.70
0.00
62.37
0.05
0.20
15,720
1,506
72
24
0
178
20,597
3,781
7
25,210
722
62
41
104
142
0
25,771
31
3
2,747
35
269
47
5
0
95
104
1,128
1,686
13
38
581
2,726
635
52
203,871
22
231
77
6,946
614
22,056
487
158
48.26
1.83
3.30
0.27
2.48
0.00
0.41
0.11
0.14
47.94
7.16
5.17
0.57
6.63
21.16
0.00
12.24
3.03
0.85
0.11
7.78
0.36
13.62
0.28
0.92
3,777
47
311
65
6
0
114
140
1,551
1,789
16
46
799
3,063
873
72
275,079
26
317
106
8,980
845
30,327
670
217
66.36
2.40
3.82
0.37
2.96
0.00
0.49
0.15
0.20
50.86
8.55
6.17
0.78
7.45
29.09
0.00
16.08
3.62
1.17
0.15
10.04
0.49
18.72
0.39
1.27
22,319
281
2,009
383
38
0
722
836
9,165
12,111
100
290
4,721
20,093
5,159
424
1,640,721
166
1,875
626
54,724
4,991
179,205
3,958
1,283
342
655
3
486
58
252
12
1
1.41
3.72
0.05
0.14
3.72
2.59
0.01
0.41
412
782
4
635
69
341
16
1
1.69
4.44
0.07
0.18
4.44
3.51
0.00
0.49
2,620
4,966
24
3,849
439
2,031
96
7
NP ......................................
Hawaii .................................
IND .....................................
WNP ...................................
Hawaii Pelagic ....................
IA ........................................
IND .....................................
Main Hawaiian Islands Insular stock and DPS.
Northwestern Hawaiian Islands.
WNP ...................................
CNP ....................................
Hawaii .................................
IND .....................................
WNP ...................................
IND .....................................
0
0.00
0
0.00
0
1,350
546
1,944
93
2,287
12
8.15
3.24
3.79
0.05
1.16
0.07
1,596
686
2,320
128
2,559
16
9.63
4.06
4.52
0.07
1.29
0.10
10,188
4,242
14,736
756
16,825
96
NP ......................................
WNP ...................................
476
366
2.00
1.17
568
503
2.38
1.61
3,608
2,973
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TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4
AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued
Maximum annual Level B
harassment, years 1–4
Stock 1
Species
Percen
species or
stock
Instances
Hubbs’ beaked whale .........
Indo-Pacific bottlenose dolphin.
Killer whale ..........................
Kogia spp.2 .........................
Longman’s beaked whale ...
Melon-headed whale ...........
Mesoplodon spp.2 ...............
Northern right whale dolphin
Pacific white-sided dolphin
Pantropical spotted dolphin
Pygmy killer whale ..............
Pygmy sperm whale ...........
Risso’s dolphin ....................
Rough-toothed dolphin ........
Short-finned pilot whale ......
Southern bottlenose whale
Spade-toothed beaked
whale.
Sperm whale .......................
Spinner dolphin ...................
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Stejneger’s beaked whale ...
Striped dolphin ....................
Hawaiian monk seal ............
Northern fur seal .................
Ribbon seal .........................
Spotted seal ........................
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harassment, years 5–7
Percent
species or
stock
Instances
Total overall
Level B
harassment for
7-year period
NP ......................................
IND .....................................
26
11
0.11
0.14
36
16
0.15
0.20
212
92
Hawaii .................................
IND .....................................
WNP ...................................
WNP ...................................
Hawaii .................................
IND .....................................
WNP ...................................
Hawaiian Islands ................
IND .....................................
Kohala Resident .................
WNP ...................................
WNP ...................................
NP ......................................
NP ......................................
4-Islands .............................
Hawaii Island ......................
Hawaiian Pelagic ................
IND .....................................
Oahu ...................................
WNP ...................................
Hawaii .................................
IND .....................................
WNP ...................................
Hawaii .................................
IND .....................................
WNP ...................................
Hawaii .................................
IA ........................................
WNP ...................................
IND .....................................
Hawaii .................................
IND .....................................
WNP ...................................
Hawaii .................................
IND .....................................
WNP Northern Ecotype ......
WNP Southern Ecotype .....
IND .....................................
IND .....................................
6
397
10,470
1,317
739
325
471
181
402
9
1,605
10
0
9,530
32
23
297
311
23
5,105
393
60
901
266
0
203
414
1,045
4,347
4,621
213
41
1,439
396
1,526
525
5,683
22
16
4.41
3.15
85.37
0.31
5.01
1.92
6.14
2.07
0.64
0.41
2.87
0.05
0.00
1.05
14.40
10.26
0.55
0.05
10.54
3.95
3.72
0.27
2.87
3.72
0.00
0.07
3.58
0.70
3.07
1.01
0.28
0.00
28.74
2.00
0.59
2.52
18.03
0.00
0.09
8
546
14,387
1,494
882
447
574
216
552
11
1,823
14
0
12,890
38
27
355
428
28
5,883
469
82
1,035
318
0
265
494
1,374
4,914
6,354
254
57
1,732
473
2,098
721
6,303
31
22
5.26
4.33
117.31
0.35
11.59
2.64
7.50
2.47
0.88
0.49
3.27
0.07
0.00
1.41
17.18
12.25
0.66
0.07
12.58
4.53
4.44
0.37
3.30
4.44
0.00
0.09
4.28
0.92
3.47
1.39
0.33
0.00
34.56
2.38
0.81
3.47
19.99
0.00
0.12
48
3,226
85,041
9,750
5,602
2,641
3,606
1,372
3,264
69
11,889
82
0
76,790
242
173
2,253
2,528
176
38,069
2,979
486
6,709
2,018
0
1,607
3,138
8,302
32,130
37,546
1,614
335
10,952
3,003
12,398
4,263
41,641
181
130
Hawaii .................................
NIND ...................................
NP ......................................
SIND ...................................
Hawaii Island ......................
Hawaii Pelagic ....................
IND .....................................
Kauai/Niihau .......................
Kure/Midway Atoll ...............
Oahu/4-Islands ...................
Pearl and Hermes Reef .....
WNP ...................................
WNP ...................................
Hawaii .................................
IND .....................................
Japanese Coastal ..............
WNP Northern Offshore .....
WNP Southern Offshore ....
Hawaii .................................
Western Pacific ..................
NP ......................................
Alaska stock/Bering Sea
DPS.
106
33
1,429
16
1
192
240
83
0
20
0
574
201
269
5,059
3,366
267
3,282
10
8,475
15,705
80,722
2.34
0.14
1.28
0.07
0.19
5.72
0.05
13.85
0.00
2.88
0.00
0.00
2.49
0.41
0.75
17.18
0.07
6.28
0.69
1.71
4.30
17.53
126
46
1,855
22
1
229
330
99
0
24
0
721
276
321
6,957
3,571
367
3,729
13
11,653
21,595
110,993
2.80
0.20
1.68
0.10
0.22
6.82
0.07
16.53
0.00
6.66
0.00
0.00
3.42
0.49
1.03
18.23
0.10
7.13
0.91
2.35
5.92
24.10
802
270
11,281
130
7
1,455
1,950
629
0
152
0
4,459
1,632
2,039
41,107
24,177
2,169
24,315
79
68,859
127,605
655,867
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40177
TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4
AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued
Maximum annual Level B
harassment, years 1–4
Stock 1
Species
Percen
species or
stock
Instances
Steller sea lion ....................
Southern stock and DPS ...
Western/Asian stock, Western DPS.
0
2
Maximum annual Level B
harassment, years 5–7
Percent
species or
stock
Instances
0.00
0.00
1
3
0.04
0.00
Total overall
Level B
harassment for
7-year period
3
17
1 ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP =
Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia;
YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemisphere; DPS = distinct population segment.
2 Kogia spp: Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp in Modeled
Areas 1, 2, 3, 5, 6, and 7 (reported as pooled in Ferguson and Barlow, 2001 and 2003, and pooled). Mesoplodon spp: No methods are available
to distinguish between the species of Mesoplodon beaked whales in the WNP stocks (Blainville’s beaked whale (M. densirostris), Perrin’s beaked
whale (M. perrini), Lesser beaked whale (M. peruvianus), Stejneger’s beaked whale (M. stejnegeri), Gingko-toothed beaked whale (M.
gingkodens), and Hubbs’ beaked whale (M. carlhubbsi)) when observed during at-sea surveys (Carretta et al., 2018). As reported in Ferguson
and Barlow, 2001 and 2003, data on these species were pooled. These six species are managed as one unit.
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Mitigation
Under section 101(a)(5)(A) of the
MMPA, NMFS must set forth the
‘‘permissible methods of taking
pursuant to such activity, and other
means of effecting the least practicable
adverse impact on such species or stock
and its habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance, and on
the availability of such species or stock
for subsistence uses’’ (hereinafter
referred to as ‘‘LPAI’’ or ‘‘least
practicable adverse impact’’). NMFS
does not have a regulatory definition for
least practicable adverse impact. The
NDAA for FY 2004 amended the MMPA
as it relates to military readiness
activities and the incidental take
authorization process such that a
determination of least practicable
adverse impact shall include
consideration of personnel safety,
practicality of implementation, and
impact on the effectiveness of the
military readiness activity.
Least Practicable Adverse Impact
Standard
In Conservation Council for Hawaii v.
National Marine Fisheries Service, 97 F.
Supp.3d 1210, 1229 (D. Haw. 2015), the
Court stated that NMFS ‘‘[appear[s] to
think [it] satisfies] the statutory ‘least
practicable adverse impact’ requirement
with a ‘negligible impact’ finding.’’
More recently, expressing similar
concerns in a challenge to the 2012
SURTASS LFA sonar incidental take
rule (77 FR 50290; August 12, 2012), the
Ninth Circuit Court of Appeals in
Natural Resources Defense Council
(NRDC) v. Pritzker, 828 F.3d 1125, 1134
(9th Cir. 2016), stated, ‘‘[c]ompliance
with the ‘negligible impact’ requirement
does not mean there [is] compliance
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with the ‘least practicable adverse
impact’ standard.’’ As the Ninth Circuit
noted in its opinion, however, the Court
was interpreting the statute without the
benefit of NMFS’ formal interpretation.
We state here explicitly that NMFS is in
full agreement that the ‘‘negligible
impact’’ and ‘‘least practicable adverse
impact’’ requirements are distinct, even
though both statutory standards refer to
species and stocks. With that in mind,
we provide further explanation of our
interpretation of least practicable
adverse impact, and explain what
distinguishes it from the negligible
impact standard. This discussion is
consistent with, and expands upon,
previous rules we have issued, such as
the Navy Gulf of Alaska rule (82 FR
19530; April 27, 2017); the Navy
Atlantic Fleet Testing and Training rule
(83 FR 57076; November 14, 2018); and
the Navy Hawaii-Southern California
Training and Testing rule (83 FR 66846;
December 27, 2018).
Before NMFS can issue incidental
take regulations under section
101(a)(5)(A) of the MMPA, it must make
a finding that the total taking will have
a ‘‘negligible impact’’ on the affected
‘‘species or stocks’’ of marine mammals.
NMFS’ and USFWS’ implementing
regulations for section 101(a)(5) both
define ‘‘negligible impact’’ as an impact
resulting from the specified activity that
cannot be reasonably expected to, and is
not reasonably likely to, adversely affect
the species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103 and 50 CFR 18.27(c)).
Recruitment (i.e., reproduction) and
survival rates are used to determine
population growth rates 3 and, therefore
3A
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are considered in evaluating population
level impacts.
As we stated in the preamble to the
final rule for the incidental take
implementing regulations, not every
population-level impact violates the
negligible impact requirement. The
negligible impact standard does not
require a finding that the anticipated
take will have ‘‘no effect’’ on population
numbers or growth rates: ‘‘The statutory
standard does not require that the same
recovery rate be maintained, rather that
no significant effect on annual rates of
recruitment or survival occurs. [T]he
key factor is the significance of the level
of impact on rates of recruitment or
survival.’’ (54 FR 40338, 40341–42;
September 29, 1989).
While some level of impact on
population numbers or growth rates of
a species or stock may occur and still
satisfy the negligible impact
requirement—even without
consideration of mitigation—the least
practicable adverse impact provision
separately requires NMFS to prescribe
means of ‘‘effecting the least practicable
adverse impact on such species or stock
and its habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance,’’ 50
CFR 216.102(b), which are typically
identified as mitigation measures.4
The negligible impact and LPAI
standards in the MMPA both call for
evaluation at the level of the ‘‘species or
stock.’’ The MMPA does not define the
term ‘‘species.’’ However, MerriamWebster Dictionary defines ‘‘species’’ to
include ‘‘related organisms or
4 For purposes of this discussion, we omit
reference to the language in the standard for least
practicable adverse impact that says we also must
mitigate for subsistence impacts because they are
not at issue in this regulation.
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populations potentially capable of
interbreeding.’’ See www.merriamwebster.com/dictionary/species
(emphasis added). The MMPA defines
‘‘stock’’ as a group of marine mammals
of the same species or smaller taxa in a
common spatial arrangement that
interbreed when mature (16 U.S.C.
1362(11)). The definition of
‘‘population’’ is a group of interbreeding
organisms that represents the level of
organization at which speciation begins.
www.merriam-webster.com/dictionary/
population. The definition of
‘‘population’’ is strikingly similar to the
MMPA’s definition of ‘‘stock,’’ with
both involving groups of individuals
that belong to the same species and
located in a manner that allows for
interbreeding. In fact, the term ‘‘stock’’
in the MMPA is interchangeable with
the statutory term ‘‘population stock’’
(16 U.S.C. 1362(11)). Both the negligible
impact standard and the least
practicable adverse impact standard call
for evaluation at the level of the species
or stock, and the terms ‘‘species’’ and
‘‘stock’’ both relate to populations;
therefore, it is appropriate to view both
the negligible impact standard and the
least practicable adverse impact
standard as having a population-level
focus.
This interpretation is consistent with
Congress’s statutory findings for
enacting the MMPA, nearly all of which
are most applicable at the species or
stock (i.e., population) level. See 16
U.S.C. 1361 (finding that it is species
and population stocks that are or may be
in danger of extinction or depletion; that
it is species and population stocks that
should not diminish beyond being
significant functioning elements of their
ecosystems; and that it is species and
population stocks that should not be
permitted to diminish below their
optimum sustainable population level).
Annual rates of recruitment (i.e.,
reproduction) and survival are the key
biological metrics used in the evaluation
of population-level impacts, and
accordingly these same metrics are also
used in the evaluation of population
level impacts for the least practicable
adverse impact standard.
Recognizing this common focus of the
least practicable adverse impact and
negligible impact provisions on the
‘‘species or stock’’ does not mean we
conflate the two standards. Despite
some common statutory language, we
recognize the two provisions are
different and have different functions.
First, a negligible impact finding is
required before NMFS can issue an
incidental take authorization. Although
it is acceptable to use the mitigation
measures to reach a negligible impact
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finding (see 50 CFR 216.104(c)), no
amount of mitigation can enable NMFS
to issue an incidental take authorization
for an activity that still would not meet
the negligible impact standard.
Moreover, even where NMFS can reach
a negligible impact finding—which we
emphasize does allow for the possibility
of some ‘‘negligible’’ population-level
impact—the agency must still prescribe
measures that will affect the least
practicable amount of adverse impact
upon the affected species or stock.
Section 101(a)(5)(A)(i)(II) requires
NMFS to issue, in conjunction with its
authorization, binding—and
enforceable—restrictions (in the form of
regulations) setting forth how the
activity must be conducted, thus
ensuring the activity has the ‘‘least
practicable adverse impact’’ on the
affected species or stocks and their
habitat. In situations where mitigation is
specifically needed to reach a negligible
impact determination, section
101(a)(5)(A)(i)(II) also provides a
mechanism for ensuring compliance
with the ‘‘negligible impact’’
requirement. Finally, we reiterate that
the LPAI standard also requires
consideration of measures for marine
mammal habitat, with particular
attention to rookeries, mating grounds,
and other areas of similar significance,
and for subsistence impacts, whereas
the negligible impact standard is
concerned solely with conclusions
about the impact of an activity on
annual rates of recruitment and
survival.5
In NRDC v. Pritzker, the Court stated,
‘‘[t]he statute is properly read to mean
that even if population levels are not
threatened significantly, still the agency
must adopt mitigation measures aimed
at protecting marine mammals to the
greatest extent practicable in light of
military readiness needs.’’ Id. at 1134
(emphases added). This statement is
consistent with our understanding
stated above that even when the effects
of an action satisfy the negligible impact
standard (i.e., in the Court’s words,
‘‘population levels are not threatened
significantly’’), still the agency must
prescribe mitigation under the least
practicable adverse impact standard.
However, as the statute indicates, the
focus of both standards is ultimately the
impact on the affected ‘‘species or
stock,’’ and not solely focused on or
directed at the impact on individual
marine mammals.
5 Outside of the military readiness context,
mitigation may also be appropriate to ensure
compliance with the ‘‘small numbers’’ language in
MMPA sections 101(a)(5)(A) and (D).
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We have carefully reviewed and
considered the Ninth Circuit’s opinion
in NRDC v. Pritzker in its entirety.
While the Court’s reference to ‘‘marine
mammals’’ rather than ‘‘marine mammal
species or stocks’’ in the italicized
language above might be construed as a
holding that the least practicable
adverse impact standard applies at the
individual ‘‘marine mammal’’ level, i.e.,
that NMFS must require mitigation to
minimize impacts to each individual
marine mammal unless impracticable,
we believe such an interpretation
reflects an incomplete appreciation of
the Court’s holding. In our view, the
opinion as a whole turned on the
Court’s determination that NMFS had
not given separate and independent
meaning to the least practicable adverse
impact standard apart from the
negligible impact standard, and further,
that the Court’s use of the term ‘‘marine
mammals’’ was not addressing the
question of whether the standard
applies to individual animals as
opposed to the species or stock as a
whole. We recognize that while
consideration of mitigation can play a
role in a negligible impact
determination, consideration of
mitigation measures extends beyond
that analysis. In evaluating what
mitigation measures are appropriate,
NMFS considers the potential impacts
of the specified activities, the
availability of measures to minimize
those potential impacts, and the
practicability of implementing those
measures, as we describe below.
Implementation of Least Practicable
Adverse Impact Standard
Given the NRDC v. Pritzker decision,
we discuss here how we determine
whether a measure or set of measures
meets the ‘‘least practicable adverse
impact’’ standard. Our separate analysis
of whether the take anticipated to result
from Navy’s activities meets the
‘‘negligible impact’’ standard appears in
the Negligible Impact Analysis and
Determination section below.
Our evaluation of potential mitigation
measures includes consideration of two
primary factors:
(1) The manner in which, and the
degree to which, implementation of the
potential measure(s) is expected to
reduce adverse impacts to marine
mammal species or stocks, their habitat,
and their availability for subsistence
uses (where relevant). This analysis
considers such things as the nature of
the potential adverse impact (such as
likelihood, scope, and range), the
likelihood that the measure will be
effective if implemented, and the
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likelihood of successful
implementation; and
(2) The practicability of the measures
for applicant implementation.
Practicability of implementation may
consider such things as cost, impact on
activities, and, in the case of a military
readiness activity, specifically considers
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity. 16 U.S.C. 1371(a)(5)(A)(iii).
While the language of the least
practicable adverse impact standard
calls for minimizing impacts to affected
species or stocks and their habitats, we
recognize that the reduction of impacts
to those species or stocks accrues
through the application of mitigation
measures that limit impacts to
individual animals. Accordingly,
NMFS’ analysis focuses on mitigation
measures that are designed to avoid or
minimize impacts on individual marine
mammals that have the potential to
increase the probability or severity of
population-level effects.
While direct evidence of impacts to
species or stocks from a specified
activity is rarely available, and
additional study is still needed to
understand how specific disturbance
events affect the fitness of individuals of
certain species, there have been
improvements in understanding the
process by which disturbance effects are
translated to the population. With
recent scientific advancements (both
marine mammal energetic research and
the development of energetic
frameworks), the relative likelihood or
degree of impacts on species or stocks
may often be inferred given a detailed
understanding of the activity, the
environment, and the affected species or
stocks. This same information is used in
the development of mitigation measures
and helps us understand how mitigation
measures contribute to lessening effects
(or the risk thereof) to species or stocks.
We also acknowledge that there is
always the potential that new
information, or a new recommendation
that we had not previously considered,
becomes available and necessitates
reevaluation of mitigation measures
(which may be addressed through
adaptive management) to see if further
reductions of population impacts are
possible and practicable.
In the evaluation of specific measures,
the details of the specified activity will
necessarily inform each of the two
primary factors discussed above
(expected reduction of impacts and
practicability), and are carefully
considered to determine the types of
mitigation that are appropriate under
the least practicable adverse impact
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standard. Analysis of how a potential
mitigation measure may reduce adverse
impacts on a marine mammal stock or
species, consideration of personnel
safety, practicality of implementation,
and consideration of the impact on
effectiveness of military readiness
activities are not issues that can be
meaningfully evaluated through a yes/
no lens. The manner in which, and the
degree to which, implementation of a
measure is expected to reduce impacts,
as well as its practicability in terms of
these considerations, can vary widely.
For example, a time/area restriction
could be of very high value for reducing
the potential for, or severity of,
population-level impacts (e.g., avoiding
disturbance of feeding females in an
area of established biological
importance), or it could be of lower
value (e.g., decreased disturbance in an
area of high productivity but of less
firmly established biological
importance). Regarding practicability, a
measure might involve restrictions in an
area or time that impede the Navy’s
ability to certify a strike group (higher
impact on mission effectiveness), or it
could mean delaying a small in-port
training event by 30 minutes to avoid
exposure of a marine mammal to
injurious levels of sound (lower impact).
A responsible evaluation of ‘‘least
practicable adverse impact’’ will
consider the factors along these realistic
scales. Accordingly, the greater the
likelihood that a measure will
contribute to reducing the probability or
severity of adverse impacts to the
species or stock or their habitat, the
greater the weight that measure is given
when considered in combination with
practicability to determine the
appropriateness of the mitigation
measure, and vice versa. In the
evaluation of specific measures, the
details of the specified activity will
necessarily inform each of the two
primary factors discussed above
(expected reduction of impacts and
practicability), and will be carefully
considered to determine the types of
mitigation that are appropriate under
the least practicable adverse impact
standard. We discuss consideration of
these factors in greater detail below.
1. Reduction of adverse impacts to
marine mammal species or stocks and
their habitat.6
6 We recognize the least practicable adverse
impact standard requires consideration of measures
that will address minimizing impacts on the
availability of the species or stocks for subsistence
uses where relevant. Because subsistence uses are
not implicated for this action, we do not discuss
them. However, a similar framework would apply
for evaluating those measures, taking into account
the MMPA’s directive that we make a finding of no
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40179
The emphasis given to a measure’s
ability to reduce the impacts on a
species or stock considers the degree,
likelihood, and context of the
anticipated reduction of impacts to
individuals (and how many individuals)
as well as the status of the species or
stock.
The ultimate impact on any
individual from a disturbance event
(which informs the likelihood of
adverse species- or stock-level effects) is
dependent on the circumstances and
associated contextual factors, such as
duration of exposure to stressors.
Though any proposed mitigation needs
to be evaluated in the context of the
specific activity and the species or
stocks affected, measures with the
following types of effects have greater
value in reducing the likelihood or
severity of adverse species- or stocklevel impacts: Avoiding or minimizing
injury or mortality; limiting interruption
of known feeding, breeding, mother/
young, or resting behaviors; minimizing
the abandonment of important habitat
(temporally and spatially); minimizing
the number of individuals subjected to
these types of disruptions; and limiting
degradation of habitat. Mitigating these
types of effects is intended to reduce the
likelihood that the activity will result in
energetic or other types of impacts that
are more likely to result in reduced
reproductive success or survivorship. It
is also important to consider the degree
of impacts that are expected in the
absence of mitigation in order to assess
the added value of any potential
measures. Finally, because the least
practicable adverse impact standard
gives NMFS discretion to weigh a
variety of factors when determining
appropriate mitigation measures and
because the focus of the standard is on
reducing impacts at the species or stock
level, the least practicable adverse
impact standard does not compel
mitigation for every kind of take, or
every individual taken, if that mitigation
is unlikely to contribute meaningfully to
the reduction of adverse impacts on the
species or stock and its habitat, even
when practicable for implementation by
the applicant.
The status of the species or stock is
also relevant in evaluating the
appropriateness of potential mitigation
measures in the context of least
practicable adverse impact. The
following are examples of factors that
may (either alone, or in combination)
result in greater emphasis on the
importance of a mitigation measure in
unmitigable adverse impact on the availability of
the species or stocks for taking for subsistence, and
the relevant implementing regulations.
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reducing impacts on a species or stock:
The stock is known to be decreasing or
status is unknown, but believed to be
declining; the known annual mortality
(from any source) is approaching or
exceeding the potential biological
removal (PBR) level (as defined in 16
U.S.C. 1362(20)); the affected species or
stock is a small, resident population; or
the stock is involved in a UME or has
other known vulnerabilities, such as
recovering from an oil spill.
Habitat mitigation, particularly as it
relates to rookeries, mating grounds, and
areas of similar significance, is also
relevant to achieving the standard and
can include measures such as reducing
impacts of the activity on known prey
utilized in the activity area or reducing
impacts on physical habitat. As with
species- or stock-related mitigation, the
emphasis given to a measure’s ability to
reduce impacts on a species or stock’s
habitat considers the degree, likelihood,
and context of the anticipated reduction
of impacts to habitat. Because habitat
value is informed by marine mammal
presence and use, in some cases there
may be overlap in measures for the
species or stock and for use of habitat.
We consider available information
indicating the likelihood of any measure
to accomplish its objective. If evidence
shows that a measure has not typically
been effective nor successful, then
either that measure should be modified
or the potential value of the measure to
reduce effects should be lowered.
2. Practicability. Factors considered
may include cost, impact on activities,
and, in the case of a military readiness
activity, personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity (16 U.S.C. 1371(a)(5)(A)(iii)).
Mitigation Measures
As with other rulemakings for
SURTASS LFA sonar, our consideration
of mitigation under the LPAI standard
was conducted at scales that take into
account the entire rulemaking period
and geographic scope of potential areas
of SURTASS LFA sonar activities and
the types of impacts that could occur
under the rule. NMFS reviewed the
proposed activities and the proposed
mitigation measures as described in the
Navy’s application, and the measures
added by NMFS, to determine if they
would satisfy the standard of LPAI on
marine mammal species or stock(s) and
their habitat. Since the proposed rule 14
OBIAs have been designated and
additional mitigation has been added
that limits the number of hours of
SURTASS LFA sonar transmission
occurring around any single OBIA (see
below). As described below, and in the
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2019 SURTASS LFA FSEIS/SOEIS,
NMFS has determined that the
following mitigation measures would
satisfy the LPAI standard:
(1) 2,000-yd LFA sonar mitigation
zone—LFA sonar training and testing
transmissions will be suspended if the
Navy detects marine mammals within a
distance of 2,000 yds (1.8 km; 1.1 mi;
1.0 nmi) of the LFA sonar source, which
encompasses both the approximately 1km radial distance of the 180 dB re: 1
mPa rms received level mitigation zone
and an additional buffer, by any of the
following detection methods:
(a) Visual monitoring;
(b) Passive acoustic monitoring; and
(c) Active acoustic monitoring.
(2) Geographic restrictions—LFA
sonar training and testing will be
conducted such that:
(a) The received level of SURTASS
LFA sonar transmissions during training
and testing events will not exceed 180
dB re: 1 mPa rms within 1 km seaward
of any OBIA boundary, during the
indicated periods of biological
importance;
(b) no more than 25 percent of the
authorized amount (transmission hours)
of SURTASS LFA sonar for training and
testing will be used within 10 nmi (18.5
km) of any single OBIA during any year
(no more than 124 hours in years 1–4
and 148 hours in years 5–7) unless the
following conditions are met: Should
national security present a requirement
to conduct more than 25 percent of
authorized hours of SURTASS LFA
sonar within 10 nmi (18.5 km) of any
single OBIA during any year, naval
units will obtain permission from the
appropriate designated Command
authority prior to commencement of the
activity. The Navy will provide NMFS
with notification as soon as is
practicable and include the information
(e.g., sonar hours) in its annual activity
reports submitted to NMFS.
(c) the received level of SURTASS
LFA sonar transmissions will not
exceed 180 dB re: 1 mPa rms within the
Coastal Standoff Zone (22 km (12 nmi)
from any land);
(d) no activities with the SURTASS
LFA sonar system will occur within
territorial seas of foreign nations, which
are areas up to 12 nmi from shore,
depending on the distance that
individual nations claim; and
(e) no activities with the SURTASS
LFA sonar system will occur within the
waters of Penguin Bank, Hawaii
(defined as water depth of 600 ft (183
m)), and ensonification of Hawaii state
waters (out to 3 nmi) will not exceed
145 dB re: 1 mPa rms. This measure,
which is a result of an agreement
between the Navy and the State of
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Hawaii through its CZMA Program, was
correctly described in the 2018 Draft
SURTASS LFA SEIS/SOEIS and 2019
SURTASS LFA FSEIS/SOEIS. The
proposed rule incorrectly suggested that
Navy would not operate the SURTASS
LFA sonar system within Hawaii state
waters. The description of this measure
is corrected in this final rule.
Below, we discuss the mitigation
measures as agreed upon by the Navy
and NMFS. For additional details
regarding the Navy’s mitigation
measures, please also see Chapter 5 in
the 2019 SURTASS LFA FSEIS/SOEIS.
2,000-yard Mitigation Zone (ReEvaluation of the 180 dB re: 1 mPa rms
Zone)
The Navy requested, and NMFS
includes in this rule, a single, fixed
2,000-yard (yd) (0.99 nmi/1,829 m/1.83
km) mitigation zone rather than a
combined mitigation and buffer zone
(based on real-time propagation
modeling) of nominally 1.08 nmi (2 km),
which has been required in past rules.
This modification will standardize and
simplify Navy mitigation and
monitoring implementation and
includes consideration of updated
information on marine mammal injury
thresholds. The 180 dB re: 1 mPa rms
threshold for the onset of potential
injury has been used in the impact
assessment for SURTASS LFA sonar
since 2001, and the isopleth associated
with that threshold has also previously
informed the development of mitigation.
However, NMFS’ 2018 Revision to:
Technical Guidance for Assessing the
Effect of Anthropogenic Sound on
Marine Mammal Hearing (NMFS, 2018,
hereafter referred to as ‘‘NMFS’ 2018
Acoustic Technical Guidance’’) reflects
the current state of scientific knowledge
regarding the potential impacts of sound
on marine mammal hearing. It specifies
auditory weighted (SELcum) values for
the onset of PTS (onset of injury) based
on marine mammal hearing groups. The
NMFS 2018 Acoustic Technical
Guidance categorizes marine mammals
into five generalized hearing groups
with defined hearing ranges and
presents the auditory weighting
functions developed for each of these
hearing groups, reflecting the best
available data on hearing, impacts of
sound on hearing, and data on equal
latency.
When estimating the onset of injury
for non-impulsive sound sources (PTS),
NMFS’ 2018 Acoustic Technical
Guidance defines weighted thresholds
as cumulative sound exposure levels
(SELcum). The new thresholds and their
associated metric incorporate a duration
component, which means that they are
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not directly comparable to the previous
180 dB re: 1 mPa rms SPL threshold. To
determine what the SELcum for each
hearing group would be when exposed
to a 60-second (the nominal time of an
LFA sonar transmission, or one ping),
300 Hz (the center frequency in the
possible sonar transmission range of
100–500 Hz, single element source level
of 215 dB re: 1 mPa at 1 m) SURTASS
LFA sonar transmission, the appropriate
auditory weighting function must be
applied to account for each hearing
group’s sensitivity. Again, although
direct comparisons are difficult, when a
300 Hz, 60-second exposure is
considered, applying the auditory
weighting functions results in the
thresholds increasing by approximately
1.5; 46; 56; 15; and 20 dB for the LF,
MF, HF, phocid pinnipeds (underwater)
(PW), and otariid pinnipeds
(underwater) (OW) hearing groups,
respectively, above the baseline
threshold level (Table 18). Based on
simple spherical spreading (i.e.,
transmission loss based on 20 × log10
[range {m}]), all hearing groups except
LF cetaceans would need to remain
within 22 ft (7 m) for the duration of an
entire LFA sonar ping (60 seconds) to
potentially experience PTS. LF
cetaceans would need to remain at the
greatest distance from the transmitting
40181
LFA sonar before experiencing the onset
of injury, 135 ft (41 m) for this example.
Consequently, if mitigation is tied to
preventing the same type of impact
(PTS), the distance at which SURTASS
LFA sonar transmissions should be
mitigated for marine mammals would be
the distance associated with LF
cetaceans, as the mitigation range would
be the greatest for this hearing group.
Any mitigation measure developed for
LF cetaceans based on PTS onset would
be highly conservative for any other
marine mammals potentially exposed to
SURTASS LFA sonar transmissions.
TABLE 18—TTS AND PTS ONSET THRESHOLDS FOR NON-IMPULSIVE SOUNDS
Cumulative
sound
exposure
level threshold
for TTS 1
(dB)
Hearing group
Low-frequency cetaceans ..........................................................................................
Mid-frequency cetaceans ...........................................................................................
High-frequency cetaceans .........................................................................................
Phocid pinnipeds (PW) (Underwater) ........................................................................
Otariid pinnipeds (OW) (Underwater) ........................................................................
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1 Referenced
179
178
153
181
199
199
198
173
201
219
Cumulative
sound
exposure
level threshold
for PTS 1 with
weighting
function
applied at 300 Hz
(dB)
200.5
244
229
216
239
to 1 μPa2s; weighted according to appropriate auditory weighting function.
To calculate the SPL of these SELcum
thresholds it is necessary to account for
the weighting function, as previously
explained, and the duration of exposure
(10 x log (duration in sections)).
Applying the duration of a single ping
of SURTASS LFA sonar (60 sec) results
in 17.8 dB (i.e., (10 log (60)), which is
subtracted from the weighted SELcum
value of 200.5 dB for LF cetaceans (199
dB PTS onset threshold plus 1.5 dB
associated with LF cetacean weighting
function at 300 Hz), for an SPL of 182.7
dB re: 1 mPa rms. The distance to the
182.7 dB re: 1 mPa rms isopleth would
be slightly smaller than that associated
with the previously used 180 dB re: 1
mPa rms isopleth. To convert the SELcum
threshold to SPL for two pings of
SURTASS LFA sonar, one would need
to account for this increased duration of
exposure (10 x log (120 seconds)),
which results in 20.8 dB being
subtracted from the weighted SELcum
value of 200.5 dB for LF cetaceans, for
an SPL of 179.7 dB re: 1 mPa rms. The
resulting SPL for exposure of an LF
cetacean to two pings of SURTASS LFA
sonar (179.7 dB re: 1 mPa rms) is very
close to the 180 dB re: 1 mPa rms
received level, on which previous
mitigation measures were based. This
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Cumulative
sound
exposure
level threshold
for PTS 1
(dB)
18:45 Aug 12, 2019
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exposure scenario is unlikely, as a
marine mammal would have to remain
close, <200 ft (61 m), to the transmitting
LFA sonar array for an extended period,
approximately 20 minutes, to
experience two full pings (one ping
every 10 min). Although this is an
unlikely scenario, the Navy will retain
and NMFS will require a mitigation
zone that is basically equivalent to the
previous zone based on 180 re: 1 mPa
rms received level as the current
mitigation zone for SURTASS LFA
sonar training and testing activities in
this rule, as described below.
In previous rules, prior to
commencing and during SURTASS LFA
sonar training and testing transmissions,
the Navy determined (in real time) the
propagation of LFA sonar signals in the
ocean and the distance from the
SURTASS LFA sonar source to the 180
dB re: 1 mPa rms isopleth (See
Description of Real-Time SURTASS LFA
Sonar Sound Field Modeling section of
the application). The 180 dB re: 1 mPa
rms isopleth defined the extent of the
LFA sonar mitigation zone for marine
mammals around the surveillance
vessel. If a marine mammal entered the
LFA sonar mitigation zone (or the 1-km
buffer previously required by NMFS, as
described below), the Navy
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implemented a suspension of SURTASS
LFA sonar transmissions. This measure
was included in prior rules to reduce or
alleviate the likelihood that marine
mammals would be exposed to levels of
sound that may result in injury (PTS).
However, due to the updated criteria in
NMFS’ 2018 Acoustic Technical
Guidance, this 180 dB mitigation zone
would not only preclude PTS, but
almost all TTS and more severe
behavioral reactions as well. While not
an expansion of the mitigation, the best
available science indicates the
mitigation zone is more effective at
reducing PTS and TTS than previously
considered in prior authorizations for
SURTASS LFA sonar.
The Navy modeling of the sound field
in near-real time conditions provided
the information necessary to calculate
the mitigation zone for which delay or
suspension of LFA sonar transmissions
would occur. Acoustic model updates
were nominally made every 12 hrs, or
as meteorological or oceanographic
conditions changed. If a marine
mammal entered the calculated
threshold distance (plus its associated
buffer distance), the sonar operator
notified the senior military member in
charge, who would order the delay or
suspension of transmissions. If it were
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predicted that the SPL threshold
distances would change within the next
12-hr period, the senior military
member in charge would also be
notified in order to take the necessary
action to ensure that the sound field
criteria would not be exceeded.
As an added protective measure,
NMFS previously required the Navy to
include a ‘‘buffer zone’’ that extended
an additional 1 km (0.62 mi; 0.54 nm)
beyond the Navy’s proposed 180 dB re:
1 mPa rms isopleth LFA sonar mitigation
zone. This buffer typically coincides
with the full detection range of the HF/
M3 active sonar for mitigation
monitoring (approximately 2 to 2.5 km;
1.2 to 1.5 mi; 1.1 to 1.3 nmi). Thus,
implementation of this additional 1 km
buffer zone increases the shutdown
zone around the LFA sonar array and
vessel and, given the highly effective
monitoring capabilities (described
below), ensures that no marine
mammals will be exposed to an SPL
greater than approximately 174 dB re: 1
mPa rms. In past applications, the Navy
has noted that this additional mitigation
is practicable and the Navy has
implemented this measure in previous
authorizations. In addition, as noted
above for the 180 dB mitigation zone,
based on new scientific information and
updated criteria in NMFS’ 2018
Acoustic Technical Guidance, this
buffer mitigation is likely even more
effective at avoiding the likelihood of
PTS and reducing the degree of TTS
than previously known when analyzed
and employed in previous
authorizations. The proposed 2,000 yd
(1.83 km) single fixed mitigation zone
would cover virtually all of the previous
combined mitigation/buffer zone of
nominally 1.08 nmi (2 km), since the
difference between 2,000 yd and 2 km
is only about 187 yd (or 0.09 nmi (167
m)). Likewise, the difference in the
sound field of the combined mitigation/
buffer zone of 2,000 yd (1.83 km) versus
1.08 nmi (2,187 yd; 2 km) would also be
negligible. At 2,000 yd (1.83 km),
modeling shows that the received level
would be 174.75 dB while at 1.08 nmi
(2 km), the received level would be
173.98 dB, which is a difference of only
0.77 dB. This very small difference in
received level would not be perceptible
to a marine mammal.
In summary, Navy proposed, and
NMFS will require, a single, fixed,
combined mitigation/buffer zone for
SURTASS LFA sonar training and
testing activities to standardize and
simplify implementation of this
monitoring requirement using standard
Navy metrics (yards not meters). This
measure will be effective mitigation in
all acoustic environments, even in the
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rare event of a strong acoustic duct in
which the volume of water ensonified to
180 dB re: 1 mPa rms could exist at a
horizontal distance somewhat greater
than 0.54 nmi (1 km) (DoN, 2001). With
the mitigation zone of 2,000 yd (1.83
km), there is no potential for animals to
be exposed to received levels greater
than 180 dB re: 1 mPa rms, or levels
above the new injury (PTS) thresholds
identified in NMFS’ 2018 Acoustic
Technical Guidance, and, therefore,
marine mammals are protected from
both acoustic injury and more severe
occurrences of Level B harassment.
Visual Mitigation Monitoring
Visual monitoring will consist of
daytime observations for marine
mammals from the bridge of SURTASS
LFA sonar vessels by lookouts
(personnel trained in detecting and
identifying marine mammals). Navy
shipboard lookouts are highly qualified
and experienced observers of the marine
environment. Their operational duties
require that they report all objects
sighted on the water surface to the
senior military member in charge (e.g.,
trash, a periscope, marine mammals, sea
turtles) and all disturbances (e.g.,
surface disturbance, discoloration) that
may be indicative of a threat to the
vessel and its crew. The objective of
visual mitigation monitoring is to
maintain location, distance, and
movement information about marine
mammals observed to ensure that none
approach close enough to enter the
2,000-yd LFA mitigation/buffer zone.
Daylight is defined as 30 min before
sunrise until 30 min after sunset. Visual
monitoring will begin 30 min before
sunrise or 30 min before the Navy
deploys the SURTASS LFA sonar array.
Lookouts will continue to monitor the
area until 30 min after sunset or
continue to monitor for at least 15 min
after completion of the SURTASS LFA
sonar training and testing transmission.
The lookouts will maintain a topside
watch and marine mammal observation
log during daytime activities that
employ SURTASS LFA sonar in the
active mode. These trained monitoring
personnel maintain a topside watch and
scan the water’s surface around the
vessel systematically with standard
binoculars (7x) and with the naked eye.
If the lookout sights a possible marine
mammal, the lookout will use big-eye
binoculars (25x) to confirm the sighting
and potentially identify the marine
mammal species. Lookouts will enter
numbers and identification of marine
mammals sighted into the log, as well as
any unusual behavior. A designated
ship’s officer will monitor the conduct
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of the visual watches and periodically
review the log entries.
If a lookout observes a marine
mammal outside of the 2,000-yd LFA
sonar mitigation zone, the lookout will
notify the senior military member in
charge of the watch. The senior military
member in charge shall then notify the
HF/M3 active sonar operator to
determine the range and projected track
of the marine mammal. If the HF/M3
sonar operator or the lookout
determines that the marine mammal
will pass within the 2,000-yd LFA sonar
mitigation zone, the senior military
member in charge shall order the delay
or suspension of SURTASS LFA sonar
training and testing transmissions when
the animal enters the 2,000-yd LFA
sonar mitigation zone to prevent Level
A harassment as well as reduce the
potential for TTS and more severe
behavioral responses.
If a lookout observes a marine
mammal anywhere within the 2,000-yd
LFA mitigation/buffer zone (required by
NMFS), the senior military member in
charge will be notified so that the LFA
sonar training and testing transmissions
will be immediately shut down or
suspended. The lookout will enter his/
her observations about sighted marine
mammals into the log: date/time; vessel
name; geographic coordinates/position;
type and number of marine mammals
observed; assessment basis (i.e.,
observed injury or behavioral response);
bearing from vessel; whether activities
were delayed, suspended, or terminated;
and relevant narrative information.
Marine mammal biologists who are
qualified in conducting at-sea marine
mammal visual monitoring from surface
vessels will train and qualify designated
ship personnel to conduct at-sea visual
monitoring. This training may be
accomplished either in-person or via
video training.
Passive Acoustic Mitigation Monitoring
For the second of the three-part
mitigation monitoring measures, the
Navy will conduct passive acoustic
monitoring using the SURTASS towed
horizontal line array to detect vocalizing
marine mammals as an indicator of their
presence. This system serves to augment
the visual and active sonar detection
systems, and is deployed and operated
at all times in which the LFA sonar
system could be utilized. If a passive
acoustic technician detects a vocalizing
marine mammal that may be potentially
affected by LFA sonar prior to or during
transmissions, the technician will notify
the senior military member in charge
who will immediately alert the HF/M3
active sonar operators and the lookouts.
The senior military member in charge
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shall order the delay or suspension of
LFA sonar transmissions when the
animal enters the 2,000-yd LFA
mitigation/buffer zone as detected by
either the HF/M3 sonar operator or the
lookouts. The passive acoustic
technician will record all contacts of
marine mammals in a log.
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Active Acoustic Mitigation Monitoring
Active acoustic monitoring uses the
high-frequency marine mammal
monitoring (HF/M3) sonar to detect,
locate, and track marine mammals that
could pass close enough to the
SURTASS LFA sonar array to enter the
2,000-yd LFA sonar mitigation zone.
HF/M3 acoustic monitoring may be
used at all times of the day or night and
begins 30 min before the first LFA sonar
transmission of a given training or
testing activity is scheduled to
commence and continues until the Navy
terminates LFA sonar transmissions.
If the HF/M3 sonar operator detects a
marine mammal contact outside the
2,000-yd LFA sonar mitigation zone, the
HF/M3 sonar operator will determine
the range and projected track of the
marine mammal. If the operator
determines that the marine mammal
will pass within the 2,000-yd LFA sonar
mitigation zone, he/she will notify the
senior military member in charge. The
senior military member in charge will
then immediately order the delay or
suspension of LFA sonar training and
testing transmissions when the animal
is predicted to enter the 2,000-yd LFA
sonar mitigation zone.
If the HF/M3 sonar operator detects a
marine mammal within the 2,000-yd
LFA mitigation zone, he/she will notify
the senior military member in charge
who will immediately order the delay or
suspension of training and testing
transmissions. The HF/M3 sonar
operator will record all contacts of
marine mammals into the log.
Prior to full-power operations of the
HF/M3 active sonar during SURTASS
LFA sonar training and testing
activities, the Navy will ramp up the
HF/M3 sonar power level over a period
of 5 min from the source level of 180 dB
re 1 mPa at 1 m in 10-dB increments
until the HF/M3 system attains full
power (if required) to ensure that there
are no inadvertent exposures of marine
mammals to received levels greater than
180 dB re 1 mPa rms from the HF/M3
sonar. The Navy will not increase the
HF/M3 sonar source level if any of the
three monitoring methods detects a
marine mammal during ramp-up. Rampup of the HF/M3 active sonar may
continue once marine mammals are no
longer detected within the 2,000-yd LFA
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mitigation zone by any of the three
monitoring methods.
In situations where the HF/M3 sonar
system has been powered down for
more than 2 min during a training and
testing event, the Navy will ramp up the
HF/M3 sonar power level over a period
of 5 min from the source level of 180 dB
re: 1 mPa at 1 m in 10-dB increments
until the system attains full power.
NMFS’ Additional 1-km Buffer Zone
Around OBIAs
Similar to the previously-required 1km buffer around the LFA Sonar
Mitigation Zone, NMFS is requiring the
Navy to include a ‘‘buffer zone’’ that
extends an additional 1 km (0.62 mi;
0.54 nm) beyond the seaward boundary
of any OBIA (discussed in ‘‘Geographic
Restrictions’’ section immediately
below). The Navy has noted that this
additional mitigation is practicable and
has implemented this measure in
previous authorizations. In addition, as
noted above for the 180-dB mitigation
zone, based on new scientific
information and updated criteria in
NMFS’ 2018 Acoustic Technical
Guidance, this 1-km buffer mitigation is
more effective at avoiding PTS and
reducing TTS than previously known
when analyzed and employed in
previous authorizations.
Geographic Restrictions
As noted above, the Navy will
implement geographic restrictions for
SURTASS LFA sonar training and
testing activities that entail restricting
SURTASS LFA sonar activities within
these designated areas such that:
(a) The received level of SURTASS
LFA sonar transmissions during training
and testing events will not exceed 180
dB re: 1 mPa rms within 1 km seaward
of any OBIA boundary, during the
indicated periods of biological
importance.
(b) No more than 25 percent of the
authorized amount (transmission hours)
of SURTASS LFA sonar for training and
testing will be used within 10 nmi (18.5
km) of any single OBIA during any year
(no more than 124 hours in years 1–4
and 148 hours in years 5–7) unless the
following conditions are met: Should
national security present a requirement
to conduct more than 25 percent of
authorized hours of SURTASS LFA
sonar within 10 nmi (18.5 km) of any
single OBIA during any year, naval
units will obtain permission from the
appropriate designated Command
authority prior to commencement of the
activity. The Navy will provide NMFS
with notification as soon as is
practicable and include the information
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40183
(e.g., sonar hours) in its annual activity
reports submitted to NMFS.
(c) The received level of SURTASS
LFA sonar transmissions will not
exceed 180 dB re: 1 mPa rms within the
Coastal Standoff Zone (22 km (12 nmi)
from any land).
(d) No activities with the SURTASS
LFA sonar system will occur within
territorial seas of foreign nations, which
are areas up to 12 nmi from shore,
depending on the distance that
individual nations claim.
(e) No activities with the SURTASS
LFA sonar system will occur within the
waters of Penguin Bank, Hawaii
(defined as water depth of 600 ft (183
m)), and ensonification of Hawaii state
waters (out to 3 nmi) will not exceed
145 dB re: 1 mPa rms.
As with previous rulemakings for
SURTASS LFA sonar, this rulemaking
contains a consideration of geographic
restrictions, including OBIAs. However,
whereas the Navy previously considered
SURTASS LFA sonar activities
worldwide, it has narrowed the
geographic scope of its current
application to reflect only those areas of
the world’s oceans where the Navy
anticipates conducting covered
SURTASS LFA sonar activities (i.e.,
training and testing in the SURTASS
LFA Study Area in the central and
western North Pacific and eastern
Indian Oceans). Therefore,
consideration of geographical
restrictions is also limited to the
SURTASS LFA Study Area in the
central and western North Pacific and
eastern Indian Oceans.
Offshore Biologically Important Areas—
Background
Given the unique operational
characteristics of SURTASS LFA sonar,
Navy and NMFS developed the concept
of geographical restrictions for
SURTASS LFA sonar in the SURTASS
LFA Sonar FOEIS/EIS (DoN, 2001) to
include: Delineating a 12 nmi coastal
standoff zone where received levels
from SURTASS LFA sonar will not
exceed 180 dB re: 1 mPa rms, and
designating OBIAs, where warranted,
for areas beyond this coastal standoff
zone, wherein received levels will not
exceed 180 dB re: 1 mPa rms. The coastal
standoff zone and OBIAs are intended to
reduce the likelihood and/or degree of
impacts on affected marine mammal
species or stocks. As noted in the 2012
final rule (77 FR 50290; August 20,
2012), over 80 percent of the existing
and potential marine protected areas
reviewed were within 12 nmi from a
coastline, indicating the effectiveness of
the coastal standoff as one of the
primary mitigation measures for
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reducing potential impacts to marine
mammals. OBIAs expand upon this
protection by avoiding or minimizing
impacts in areas beyond the coastal
standoff zone where marine mammals
are known to engage in specific
behaviors that may lead to more severe
impacts if interrupted; known to
congregate in higher densities; and/or
known to have a limited range and
small abundance that creates more
vulnerability for the stock as a whole.
These criteria are important when
determining whether mitigation would
be likely to reduce the probability or
severity of effects to individuals that
would translate to minimization of
impacts at the population level under
the LPAI standard. Limiting LFA sonar
activities in these important areas is
expected to limit the likelihood and/or
degree of species or stock effects by
minimizing the chances that the activity
will result in detrimental energetic
effects to individuals (such as those that
could occur in known feeding areas) or
direct interference in breeding or
mother/young interactions (such as
those that could occur in reproductive
or nursing areas) that could result in
reductions in reproductive success or
survivorship.
Three OBIAs were identified in the
2001 SURTASS LFA FOEIS/EIS: 200 m
isobaths of the east coast of North
America; Costa Rica Dome; and
Antarctic Convergence Zone. In 2007,
the Navy published a supplemental
FEIS/FOEIS that designated six new
OBIAs in addition to the three OBIAs
that were designated in the 2001
SURTASS LFA FOEIS/FEIS. The criteria
for identifying OBIAs in the 2001 and
2007 rules were originally defined in
the 2001 SURTASS LFA Sonar FOEIS/
EIS (Subchapter 2.3.2.1) as areas of the
world’s oceans outside of the geographic
stand-off distance (greater than 22 km
(12 nmi)) from a coastline (including
islands) where marine animals of
concern (those animals listed under the
ESA and/or marine mammals) carry out
biologically important activities,
including migration, foraging, breeding,
and calving.
For the 2012 rule, the Deputy
Assistant Secretary of the Navy for
Environment (DASN(E)) determined
that the purpose of NEPA and Executive
Order 12114 would be furthered by the
preparation of an additional
supplemental analysis related to the
employment of SURTASS LFA sonar.
Accordingly, the DASN(E) directed that
an SEIS/SOEIS (among other things)
provide further analysis of potential
additional OBIAs in regions of the
world where the Navy intended to use
the SURTASS LFA sonar systems.
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In parallel, for the 2012 rule, NMFS,
with Navy input, developed a new
process and screening criteria for
determining an area’s eligibility to be
considered as an OBIA nominee for
marine mammals. Those screening
criteria were: (1) Areas with: (a) High
densities of marine mammals; or (b)
Known/defined critical habitat,
breeding/calving grounds, foraging
grounds, migration routes; or (c) Small,
distinct populations of marine mammals
with limited distributions; and (2) Areas
that are outside of the coastal standoff
distance and within potential
operational areas for SURTASS LFA
(i.e., greater than 22 km (13.6 mi; 12
nmi) from any shoreline and not in
polar regions).
For the 2012 SURTASS LFA FSEIS/
SOEIS and 2012 rule, NMFS also
developed and implemented a robust,
systematic screening process for
reviewing existing and potential marine
protected areas against the OBIA
criteria, based on the World Database on
Protected Areas (WDPA, 2009), Hoyt
(2005), and prior SURTASS LFA sonar
OBIAs. This process produced a
preliminary list of 403 OBIA nominees.
As noted above, and stated in the 2012
Final Rule (77 FR 50290; August 20,
2012), the vast majority of the areas
reviewed as potential OBIAs were
within 12 nmi from a coastline and
therefore already afforded protection
due to the coastal standoff zone,
indicating the effectiveness of the
coastal standoff zone as one of the
primary mitigation measures for
reducing potential impacts. The
remaining areas were broadly evaluated
under the OBIA criteria and, after
review, 73 potential OBIAs were
considered by the Navy and NMFS.
After the list of potential OBIAs was
developed based on information at a
broad scale, each of these areas was
evaluated at a finer scale to determine
whether they qualified for designation
as an OBIA. Further analysis of the
biological evidence and robustness of
the data for each of these
recommendations included ranking
them in categories using a numbering
system ranging from 0 to 4. Any of the
nominees that received a ranking of 2 or
higher were eligible for continued
consideration as an OBIA nominee. A
rank score of 2 for designation criteria
or for OBIA boundary considerations
indicated that the designation was
inferred from habitat suitability models
(non-peer reviewed), expert opinion,
regional expertise, or ‘‘gray literature’’
(inferred from analyses conducted for
purposes other than quantifying OBIA
criteria or boundary; see DoN (2012),
Section 4.5.2.1). Thus, even areas with
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somewhat limited data were eligible for
further consideration as an OBIA.
The systematic process described here
was developed in order to support an
orderly and manageable expert review
and to ensure some definable
information quality in the identification
of OBIAs. As a result of this process, 45
areas ranked a 2 or higher.
Although not part of the initial
screening criteria for the 2012
rulemaking, consideration of marine
mammal hearing frequency sensitivity
led NMFS to screen out areas that
qualified solely on the basis of their
importance for mid- or high-frequency
hearing specialists in past rulemakings.
This was due to the fact that the LFA
sound source is below the range of best
hearing sensitivity for MF and HF
odontocete hearing specialists. Using
the example of harbor porpoises, this
means that a sound with a frequency
less than 1 kHz would need to be
significantly louder (more than 50 dB
louder) than a sound in their area of best
sensitivity (around 100 kHz) in order for
them to hear it. Additionally, during the
1997 to 1998 SURTASS LFA Sonar Low
Frequency Sound Scientific Research
Program (LFS SRP), numerous
odontocete and pinniped species (i.e.,
MF and HF hearing specialists) were
sighted in the vicinity of the sound
exposure tests and showed no
immediately obvious responses or
changes in sighting rates as a function
of source conditions, which likely
produced received levels similar to
those that produced minor short-term
behavioral responses in the baleen
whales (i.e., LF hearing specialists).
NMFS reasoned that MF and HF
odontocete hearing specialists have
such reduced sensitivity to the LFA
sonar source that limiting ensonification
in OBIAs for those animals would not
afford protection beyond that which is
already achieved by implementing a
shutdown when any marine mammal
enters the LFA mitigation zone.
Therefore, consideration of marine
mammal frequency sensitivity led
NMFS to screen out areas that qualified
solely on the basis of their importance
for MF or HF specialists.
In addition to the considerations
above, NMFS reviewed Hoyt (2011),
which was an update and revision of
Hoyt’s 2005 earlier work, along with
areas recommended in public comments
received on the 2012 SURTASS LFA
DSEIS/SOEIS. As a result of this further
analysis, NMFS developed a list of
OBIAs, which were then further
considered in the context of
practicability.
In response to public comments on
the 2012 proposed rule, NMFS also
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reevaluated its preliminary decision not
to include areas that met the criteria for
sperm whales and pinnipeds (because
they were not considered LF
specialists), and ultimately determined
such areas would be appropriate for
OBIA designation where information
established by the criteria were met, and
in fact noted that one OBIA (Patagonia
Shelf) had already been identified for
elephant seals. While no OBIAs had
been identified for sperm whales, NMFS
committed to considering sperm whales
in future analyses should supporting
information become available.
As part of the 2017 SURTASS LFA
DSEIS/SOEIS, and as part of the 2017
rulemaking process, NMFS and Navy
continued their evaluation of OBIAs. As
a result of that work, NMFS and the
Navy revised boundaries and designated
seven more OBIAs, for a total of 29
OBIAs that were identified and made
part of the NDE, under which the Navy
is currently conducting SURTASS LFA
sonar activities. Two of these OBIAs
include protection for sperm whales
(OBIA #28, Perth Canyon; and OBIA
#29, Southwest Australia Canyons).
Since 2012, the Navy and NMFS have
maintained an ‘‘OBIA Watchlist’’ of
potential marine areas in the Study Area
for which information or data have not
been sufficient to designate as OBIAs,
and reviewed new literature to
determine if additional areas should be
added to the list of potential areas. As
part of the Adaptive Management
process (see Adaptive Management
section), the OBIA Watchlist is
periodically evaluated as additional
information becomes available to
determine if the new information
provides adequate support under one of
the OBIA biological criteria. NMFS
refers the reader to the 2019 SURTASS
LFA FSEIS/SOEIS, Chapter 5 and
Appendix C, for more detail on the
analysis of potential OBIAs. As part of
the ongoing Adaptive Management
process and in preparation for the 2019
SURTASS LFA FSEIS/SOEIS, NMFS
and Navy reviewed the OBIA Watchlist
and other new information to determine
the potential for additional OBIAs or
expansion of existing OBIAs within the
SURTASS LFA Study Area.
Offshore Biologically Important Areas—
Current Rulemaking
For the 2019 SURTASS LFA FSEIS/
SOEIS and this final rule, the following
biological criteria, geographic criteria,
and LF hearing sensitivity factors were
considered in the identification of
OBIAs:
Biological Criteria—As with other
biological criteria, critical habitat is
considered as one of the possible factors
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in the OBIA process, but designation as
critical habitat does not necessarily
comport with designation as an OBIA
due to differences in the intent of these
designations. Critical habitat is defined
and used in the ESA and includes
specific geographic areas that contain
features essential to the conservation of
an endangered or threatened species,
including areas that are not currently
occupied by the relevant species.
However, as stated above, the intent of
OBIA designation is to expand upon the
coastal standoff zone, and provide
protection from potential SURTASS
LFA sonar impacts by avoiding or
minimizing impacts in areas beyond the
coastal standoff zone where marine
mammals are known to engage in
specific behaviors that may lead to more
severe impacts if interrupted; known to
congregate in higher densities; and/or
known to have a limited range and
small abundance that creates more
vulnerability for the stock as a whole.
Therefore, at least one of the following
biological criteria must be met for a
marine area to be considered as a
marine mammal OBIA for SURTASS
LFA sonar. When direct data relevant to
one of the following are limited, other
available data and information may be
used if those data and information,
either alone or in combination with
limited direct data, are sufficient to
establish that at least one of the
biological criteria are present:
• Known Breeding/Calving or
Foraging Ground, or Mitigation Route—
an area representing a location of known
biologically important activities,
including defined breeding or calving
areas, foraging grounds, or migration
routes. Potential designation under this
criterion is indicative that these areas
are concentrated areas for at least one
biologically important activity.
‘‘Concentrated’’ means that more of the
animals are engaged in the particular
behavior at the location (and perhaps
time) than are typically engaged in that
behavior elsewhere.
• Small, Distinct Populations of
Marine Mammals with Limited
Distributions—geographic areas in
which small, distinct populations of
marine mammals occur and whose
distributional ranges are limited.
• High Densities—an area of high
density for one or more species of
marine mammal. High density areas are
those marine waters where the density,
within a definable area (and potentially
time), measurably and meaningfully
exceeds the average density of the
species or stock within the region. The
exact basis for the identification of high
density areas may differ across species/
stocks and regions/scales, depending on
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40185
the available information and should be
evaluated on a stock-by-stock basis,
although combining species or stocks
may be appropriate in some situations.
The best source for this type of
determination are publically-available,
direct measurements from survey data.
Geographic Criteria—For a marine
area to be eligible for consideration as
an OBIA for marine mammals, the area
must be located where training and
testing activities of SURTASS LFA
sonar would occur (i.e. in the Study
Area) and cannot be located within 12
nm (22 km) of any emergent land
including islands or island systems (i.e.,
must be outside of the coastal standoff
zone, which already receives the same
protection as OBIAs).
LF Hearing Sensitivity—The
frequencies produced by SURTASS LFA
sonar transmissions are well below the
frequency range of best hearing
sensitivity for most odontocetes and
pinnipeds based on the measured
hearing thresholds (Au and Hastings,
2008; Houser et al., 2008; Kastelein et
al., 2009; Mulsow and Reichmuth, 2010;
NMFS, 2018; Nedwell et al., 2004;
Richardson et al., 1995; Southall et al.,
2007; Southall et al., 2019). The intent
of OBIAs is to protect those marine
mammal species, such as baleen whales,
most likely to hear and be affected by
LFA sonar transmissions and to provide
them with additional protections during
periods when they are conducting
biologically significant activities. Thus,
the primary focus of the OBIA
mitigation measure is on LF hearing
specialist species. However, OBIAs have
been designated for non-LF hearing
specialists, such as elephant seals and
sperm whales, since the available
hearing data for these species indicate
an increased sensitivity to LF sound
(compared to most odontocetes and
pinnipeds).
The biological criteria considered in
the identification of OBIAs have
changed since the 2001 SURTASS LFA
FOEIS/EIS (and as continued in the
2007 SURTASS LFA SEIS) in two
respects. First, under the 2001
SURTASS LFA FOEIS/EIS, 2007
SURTASS LFA SEIS, and the 2007 final
rule, an area could be designated as an
OBIA only if it met a conjunctive test of
being an area where marine mammals
congregate (1) in high densities, and (2)
for a biologically important purpose.
The current scheme is more protective
because any one of the biological
criteria alone could be a sufficient basis
for designation as an OBIA if it also
meets the geographic criterion of falling
outside of 12 nmi (22 km) from any
coastline. Second, the current biological
criteria now include ‘‘small, distinct
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populations with limited distribution,’’
which also could, standing alone, be a
basis for designation.
The 2017 NDE for SURTASS LFA
sonar lists the 29 marine mammal
OBIAs and their effective periods as
geographic mitigation with which the
Navy must comply for SURTASS LFA
sonar activities. These OBIAs resulted
from analyses conducted as part of the
2017 SURTASS LFA SEIS/SOEIS and
application for rulemaking, and retained
existing OBIAs; revised/expanded
existing OBIAs; and added new OBIAs
to those defined as part of the 2012
SURTASS LFA sonar rule (also see the
2019 SURTASS LFA FSEIS/SOEIS,
Chapter 5, Section 5.3.6.2 and Appendix
C for more detail on OBIAs). Of these 29
OBIAs, four are located within the
current SURTASS LFA sonar Study
Area (OBIA 16, Penguin Bank, Hawaiian
Islands Humpback Whale NMS; OBIA
20, Northern Bay of Bengal and Head of
Swatch-of-No-Ground; OBIA 26,
Offshore Sri Lanka; and OBIA 27,
Camden Sound/Kimberly Region), as
indicated in Table 19, below.
TABLE 19—MARINE MAMMAL OBIAS OBSERVED FOR SURTASS LFA SONAR DURING THE NDE
Relevant
low-frequency
marine mammal
species
Location/water
body
Effectiveness
seasonal period
OBIA No.
Name of OBIA
16 ......................
Penguin Bank, Hawaiian Islands Humpback Whale
NMS.
Northern Bay of Bengal and
Head of Swatch-of-NoGround (SoNG).
Offshore Sri Lanka ................
North-Central Pacific Ocean
Humpback whale ..................
November through April, annually.
Bay of Bengal/Northern Indian Ocean.
Bryde’s whale ........................
Year-round.
North-Central Indian Ocean ..
Blue whale ............................
Camden Sound/Kimberly Region.
Southeast Indian Ocean;
northwestern Australia.
Humpback whale ..................
December through April, annually.
June through September, annually.
20 ......................
26 ......................
27 ......................
Since the 2017 SURTASS LFA SEIS/
SOEIS and NDE for SURTASS LFA
sonar, analysis and assessment of
marine areas as potential OBIAs has
continued. The Navy and NMFS have
conducted a comprehensive assessment
of the available scientific literature,
data, and information on potential
marine areas in the SURTASS LFA
Study Area to determine their potential
as OBIAs. Because this rulemaking and
the 2019 SURTASS LFA FSEIS/SOEIS
have a narrowed geographic scope for
SURTASS LFA sonar training and
testing activities, review of OBIAs was
similarly scoped to reflect only the
current Study Area. Navy and NMFS’
comprehensive assessment of marine
areas as potential OBIAs included
review of the OBIA Watchlist for areas
located within the Study Area as well as
a thorough review of the Important
Marine Mammal Areas (IMMAs),
Ecologically or Biologically Significant
Marine Areas (EBSAs), IUCN Green List
of Protected and Conserved Areas, as
well as marine areas recommended in
public comments on the 2019 SURTASS
LFA DSEIS/SOEIS (see Chapter 7 of the
2019 SURTASS LFA FSEIS/SOEIS) and
on our MMPA proposed rule (84 FR
7186; March 1, 2019). For this final rule,
we have applied the OBIA biological
criteria, geographic criteria, and hearing
sensitivity factor, as well as the
practicability criterion to the potential
OBIAs. A summary of the number and
types of marine areas assessed as
potential OBIAs for SURTASS LFA
sonar and their location relative to the
Study Area and coastal standoff range
(12 nmi) and relevancy for marine
mammals is provided in Table 20.
While we provide a summary of the
OBIA analysis here, we direct the reader
to Chapter 5 and Appendix C of the
2019 SURTASS LFA FSEIS/SOEIS for
the complete analysis of all considered
OBIA areas.
TABLE 20—NUMBER AND TYPES OF MARINE AREAS ASSESSED AS POTENTIAL OFFSHORE BIOLOGICALLY IMPORTANT
AREAS (OBIAS) FOR SURTASS LFA SONAR, AND THEIR LOCATION RELATIVE TO THE STUDY AREA AND COASTAL
STANDOFF RANGE (12 nmi) AND RELEVANCY TO MARINE MAMMALS
Total number
marine areas
Marine area region
Number of
marine areas
located
within study
area 1 for
SURTASS
LFA
sonar
Number of
marine areas
in LFA study
area
relevant to
marine
mammals
Number of
marine
mammal
areas
located in
study area
and outside 2
the coastal
standoff
range
Number of
marine areas
further
assessed
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OBIA Watchlist Areas
Western North Pacific Ocean ..............................................
Central Indian Ocean ...........................................................
3
1
3
1
3
1
3
1
3
0
Total OBIA Watchlist ....................................................
4
4
4
4
3
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40187
TABLE 20—NUMBER AND TYPES OF MARINE AREAS ASSESSED AS POTENTIAL OFFSHORE BIOLOGICALLY IMPORTANT
AREAS (OBIAS) FOR SURTASS LFA SONAR, AND THEIR LOCATION RELATIVE TO THE STUDY AREA AND COASTAL
STANDOFF RANGE (12 nmi) AND RELEVANCY TO MARINE MAMMALS—Continued
Total number
marine areas
Marine area region
Number of
marine areas
located
within study
area 1 for
SURTASS
LFA
sonar
Number of
marine areas
in LFA study
area
relevant to
marine
mammals
Number of
marine
mammal
areas
located in
study area
and outside 2
the coastal
standoff
range
Number of
marine areas
further
assessed
U.S. ESA Critical Habitat
Central North Pacific Ocean ................................................
2
2
2
2
2
UNEP Ecologically or Biologically Significant Areas (EBSAs)
Northeast Indian Ocean .......................................................
South and Western Indian Ocean .......................................
East Asian Seas ..................................................................
North Pacific Ocean .............................................................
Western South Pacific Ocean ..............................................
10
39
34
20
26
10
5
31
6
2
5
1
9
4
0
3
0
6
4
0
3
0
37
4
0
Total EBSAs .................................................................
129
54
19
13
14
IUCN WCPA–SSC Important Marine Mammal Areas (IMMAs)
Pacific Islands ......................................................................
Southeast Asian Seas and Northeast Indian Ocean ...........
15
30
3
20
3
20
2
9
2
8
Total IMMAs ..................................................................
45
23
23
11
10
0
0
0
IUCN Green List of Protected and Conserved Areas
Asian Pacific ........................................................................
11
0
Recommended in Public Comments on Draft SEIS/SOEIS and MMPA Proposed Rule 4
Western North Pacific Ocean ..............................................
Eastern Indian Ocean ..........................................................
41
52
40
52
40
52
21
27
21
27
Total Comment Recommendations ..............................
93
92
92
48
48
1 At
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least part of marine area located within study area for SURTASS LFA sonar.
2 At least part of the marine area is located outside the LFA coastal standoff range.
3 Even though the Ogasawara Islands EBSA is located within the coastal standoff range, due to its importance to the endangered humpback
whale DPS, this area was further considered.
4 The number of marine areas received in Public Comments includes the newly designated IMMAs (SE Asian Seas and NE Indian Ocean) as
well as duplicate marine areas, since some of the same marine areas were noted in comments received both for the 2018 SURTASS LFA
DSEIS/SOEIS and MMPA Proposed Rule. Additionally, some of the recommended marine areas were EBSAs for marine mammals. The duplicate marine areas have been removed from the total number of marine areas further assessed, but that total number includes marine areas that
are designated as IMMAs and EBSA.
Review of OBIA Watchlist Areas—The
OBIA Watchlist areas located within the
Study Area that were re-evaluated
include the British Indian Ocean
Territory-Chagos Islands Marine
Protected Area (MPA), the Pacific
Remote Islands (PRI) Marine National
Monument (MNM), Marianas Trench
MNM, and the Papaha¯naumokua¯kea
MNM. Only one unit of the Marianas
Trench MNM and only two units and a
very small strip of the northern part of
a third unit (Kingman Reef/Palmyra
Atoll) of the PRI MNM were within the
boundary of the Study Area (for a
detailed map see Appendix C of the
2019 SURTASS LFA FSEIS/SOEIS).
Thus, only those areas of the MNMs
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within the Study Area were further
assessed.
The British Indian Ocean TerritoryChagos Islands Marine MPA is a large
MPA, and includes areas outside of the
LFA coastal standoff range. All available
literature and information were
researched and reviewed; however, as
was the case when this area was
originally evaluated, very little
information is available on the presence
of marine mammals in the MPA (Dunne
et al., 2014) or whether marine
mammals conduct biologically
important activities in the MPA. Due to
the lack of supporting information and
data available to demonstrate that the
waters of this MPA are important
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biologically to any marine mammal
species, the Navy and NMFS did not
further consider the British Indian
Ocean Territory-Chagos MPA as a
possible OBIA but will retain the area
on the OBIA Watchlist.
Scientific information and data
indicate that marine mammals occur in
the waters of all the MNMs on the OBIA
Watchlist. Scientific data and
information on important biological
activities conducted by marine mammal
species were most available for the
Papaha¯naumokua¯kea MNM, where the
majority of the very small population of
the ESA-listed endangered Hawaiian
monk seal resides, reproduces, and
forages, and where critical habitat for
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this species has been designated out to
the 656-ft (200-m) isobath. Although
little information and data are readily
available on marine mammals in the
waters of the Marianas Trench MNM
Islands Unit or in the waters of Wake,
Johnson, Palmyra atolls or Kingman
Reef units of the PRI MNM, the Navy
and NMFS conducted a thorough review
of the available data for these areas. Due
to the lack of supporting information
and data available to demonstrate that
the waters of the PRI MNM in the Study
Area are important biologically to any
marine mammal species, the Navy and
NMFS did not further consider the PRI
MNM as a possible OBIA but will retain
the area on the OBIA Watchlist.
Sufficient information and data were
available to support designation of
OBIAs in the waters of the
Papaha¯naumokua¯kea MNM and the
Marianas Trench MNM (for a detailed
analysis of these areas see Appendix C
of the 2019 SURTASS LFA FSEIS/
SOEIS).
Review of Important Marine Mammal
Areas (IMMAs) as OBIAs—IMMAs are
defined by the Marine Mammal
Protected Areas Task Force (MMPATF),
which is comprised of partners from the
International Union for Conservation of
Nature (IUCN) World Commission on
Protected Areas (WCPA); IUCN Species
Survival Commission (SSC);
International Committee on Marine
Mammal Protected Areas (ICMMPA);
Tethys Research Institute; Whale and
Dolphin Conservation (WDC); Global
Ocean Biodiversity Initiative (GOBI),
and Water Evolution organizations.
These areas are defined as discrete
portions of habitat that are important to
one or more marine mammal species;
represent priority sites for marine
mammal conservation worldwide
without management implications; and
merit protection and monitoring. IMMA
selection criteria are designed to capture
aspects of the biology, ecology, and
population structure of marine
mammals, and a candidate IMMA need
only satisfy one of the following criteria
and/or sub-criteria to successfully
qualify for IMMA status: Criterion A—
Species or Population Vulnerability;
Criterion B—Distribution and
Abundance; Criterion C—Key Life
Activities; or Criterion D—Special
Attributes. To date, IMMAs have been
identified in the western and central
Pacific Ocean, Mediterranean Sea, and
the North East Indian Ocean and South
East Asian Seas (MMPATF, 2018; 2019).
IMMAs are divided into three
categories: IMMAs, candidate IMMAs,
and areas of interest. Only areas
designated as IMMAs were considered
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as possible OBIAs, as these areas have
met the IMMA selection criteria and
have complete supporting data and
information.
All areas designated as IMMAs
located in the Study Area were assessed
as potential OBIAs. Twenty-three
IMMAs are located in the study area for
SURTASS LFA sonar (see detailed maps
and summary assessment tables in
Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS). Of the 15 Pacific Islands
IMMAs, three are located within the
SURTASS LFA sonar Study Area in the
North Pacific Ocean: The Northwest
Hawaiian Islands, Main Hawaiian
Archipelago, and Southern Shelf
Waters/Slope Edge of Palau. However,
only the Northwest Hawaiian Islands
and Main Hawaiian Archipelago IMMAs
have some part of their area located
outside the coastal standoff zone for
SURTASS LFA sonar; the geographic
extent of the Palau IMMA is entirely
located within the coastal standoff range
for SURTASS LFA sonar and therefore
does not meet the geographic criteria for
consideration as an OBIA. Sufficient
information and data were available to
support designation of OBIAs in the
waters of the Northwestern Hawaiian
Islands and the Main Hawaiian
Archipelago IMMAs (for a detailed
analysis of these areas see Appendix C
of the 2019 SURTASS LFA FSEIS/
SOEIS).
Thirty IMMAs were designated in the
North East Indian Ocean and South East
Asian Seas (MMPATF, 2019) (see
detailed maps and summary assessment
tables in Appendix C of the 2019
SURTASS LFA FSEIS/SOEIS). Of these
30 IMMAs, 20 are located at least
partially within the SURTASS LFA
Study Area, with nine of these located
at least partially outside of the coastal
standoff zone. Additionally, one was
only relevant to inshore species. Eight of
the North East Indian Ocean and South
East Asian IMMAs were carried forward
for additional assessment as potential
OBIAs.
Review of Ecologically or Biologically
Significant Marine Areas (EBSAs) as
OBIAs—EBSAs are an effort of the
Convention on Biological Diversity
(Convention), which was initiated by
the United Nations Environment
Programme (UNEP). The Convention is
an international legal instrument for the
conservation and sustainable use of
biological diversity. EBSAs are defined
as special marine areas that serve
important purposes that ultimately
support the healthy functioning of
oceans and thus should have increased
protection and sustainable management.
Currently there are 278 EBSAs defined
worldwide, 129 of which are within the
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central or western North Pacific or
eastern Indian Oceans. Fifty-four of
these EBSAs are located in the
SURTASS LFA sonar Study Area (see
detailed maps and summary assessment
tables in Appendix C of the 2019
SURTASS LFA FSEIS/SOEIS). Nineteen
of these 54 EBSAs were pertinent to
marine mammals under NMFS’
jurisdiction, and only 14 of these areas
are located at least partially outside the
coastal standoff zone. One of these areas
was pertinent only to coastal/inshore
species of marine mammals and was not
carried forward. In addition, the
Ogasawara Islands EBSA was also
carried forward for additional review,
even though the EBSA is located
entirely within the coastal standoff zone
for SURTASS LFA sonar. In recognition
of the importance of the Ogasawara area
as a migrational waypoint and breeding/
calving area for the endangered WNP
DPS and stock of humpback whales, the
waters beyond the coastal standoff zone
of the Ogasawara Islands were assessed
to determine if an areal extent could be
defined in which the important
migrational or reproductive behavior of
humpback whales occurs and if data
were sufficient to support the
determination. Therefore, 14 EBSAs
were carried forward for additional
assessment as potential OBIAs.
Review of IUCN Green List of
Protected and Conserved Areas as
OBIAs—The IUCN Green List of
Protected and Conserved Areas has been
generated as part of an IUCN program
that aims to encourage, achieve, and
promote effective, equitable, and
successful protected areas with a
principal goal of increasing the number
of protected and conserved areas that
are effectively and equitably managed
and deliver conservation outcomes. The
basis of the IUCN Green List Programme
is the Green List Standard, which is a
set of components, criteria, and
indicators for successful protected area
conservation and international
benchmarks for quality to provide
improved performance and achievement
of conservation objectives (IUCN, 2018).
Eleven of the 25 Green List areas are
located within the SURTASS LFA sonar
Study Area, but all are terrestrial parks
or reserves, and none of the IUCN Green
List Protected or Conserved Areas
encompass any marine waters. For this
reason, no IUCN Green List areas were
further considered as potential OBIAs.
Review of Areas Recommended
Through Public Comment as OBIAs—In
addition to evaluation of OBIA
Watchlist areas, EBSAs, IMMAs, IUCN
Green List of Protected and Conserved
Areas (discussed above), and Critical
Habitat areas (discussed below), NMFS
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and the Navy evaluated areas that were
suggested as OBIAs in public comments
received on the 2018 SURTASS LFA
DSEIS/SOEIS and the proposed rule (84
FR 7186; March 1, 2019). Ninety-three
marine areas were recommended for
consideration as OBIAs during the
public comment periods. These areas
included 30 IMMAs for the Southeast
Asian Seas and Northeast Indian Ocean
designated in February 2019. Many of
the comments on the 2018 SURTASS
LFA DSEIS/SOEIS and the proposed
rule recommended the same marine
areas, so after duplicate areas were
removed, 69 marine areas remained
were assessed. Only one of the
recommended marine areas was not
located within the SURTASS LFA sonar
Study Area (Commander Islands). The
remaining 68 marine areas, including
the 30 newly designated IMMAs, were
assessed in the context of the criteria for
OBIAs. Of these 68 recommended
marine areas, 48 were carried forward
for assessment as potential OBIAs
(Table 20).
During the assessment, marine areas
were combined if they were designated
for the same geographic area (e.g., the
Gulf of Mannar where an EBSA and
IMMA have been designated) or if
different species of marine mammals
were designated in the same marine area
(e.g., humpback and sperm whales in
the Ogasawara region). This
combination of areas resulted in 33
marine areas being considered as
potential OBIAs (see Table 5–2 and
Appendix C in the 2019 SURTASS LFA
FSEIS/SOEIS). Of these 33, the Navy’s
and NMFS’ assessment resulted in 14
candidate OBIAs representing 17 of the
marine areas. Some OBIAs, such as the
blue and humpback whale OBIAs for
Western Australia, encompassed several
marine areas, which is why the number
of candidate OBIAs is smaller than the
number of marine areas represented.
The 14 candidate OBIAs (representing
17 areas) underwent Navy practicability
review. The Navy determined that these
OBIAs in the SURTASS LFA sonar
Study Area and the relevant seasonal
effectiveness periods would be
40189
practicable to implement. As a result, 14
new marine mammal OBIAs for
SURTASS LFA sonar have been
designated (Table 21) (see detailed maps
and supporting information for each
designated OBIA in Appendix C of the
2019 SURTASS LFA FSEIS/SOEIS). All
four of the OBIAs previously designated
in the SURTASS LFA Study Area (see
Table 19) have been expanded spatially.
Former OBIA 16, Penguin Bank, is now
part of the much larger Main Hawaiian
Islands OBIA, while OBIA 20, Northern
Bay of Bengal/Swatch-of-No-Ground
(SoNG) is now encompassed in the
SoNG OBIA, and the Offshore Sri Lanka,
OBIA #26, is now part of the more
encompassing Sri Lanka OBIA. Last,
OBIA #27, Kimberly-Camden Sound
was greatly expanded to become the
Western Australia (Humpback Whale)
OBIA. A list of the areas added to the
Watchlist can be found at https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyoperations-surveillance-towed-arraysensor-system-0.
TABLE 21—DESIGNATED MARINE MAMMAL OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS) IN THE SURTASS LFA
STUDY AREA
OBIA No.
OBIA name
Ocean area
Low-frequency marine
mammal species
1 .......................
2 .......................
Main Hawaiian Islands 1 ...
Northwestern Hawaiian Islands.
Mariana Islands ................
Ryukyu-Philippines ...........
Ogasawara Islands
(Sperm Whale).
Ogasawara-Kazin Islands
(Humpback Whale).
Honshu .............................
Southeast Kamchatka ......
Central North Pacific ........
Central North Pacific ........
Humpback whale ...................................
Humpback whale ...................................
November to April.
December to April.
Western North Pacific ......
Western North Pacific .......
Western North Pacific .......
Humpback whale ...................................
Humpback whale ...................................
Sperm whale ..........................................
February to April.
January to April.
June to September.
Western North Pacific ......
Humpback whale ...................................
December to May.
Western North Pacific ......
Western North Pacific ......
January to May.
June to September.
Gulf of Thailand ................
Western Australia (Blue
Whale).
Western Australia (Humpback Whale) 2.
Southern Bali ....................
Eastern Indian Ocean ......
Eastern Indian Ocean ......
Gray whale .............................................
Humpback, fin, Western North Pacific
gray, and North Pacific right whales.
Bryde’s whale .........................................
Blue (pygmy) whale ...............................
Eastern Indian Ocean ......
Humpback whale ...................................
May to December.
Eastern Indian Ocean ......
October to November.
Swatch-of-No-Ground
(SoNG) 3.
Sri Lanka 4 ........................
Northern Bay of Bengal ....
Bryde’s, sei, humpback, Omura’s, and
sperm whales.
Bryde’s whale .........................................
Eastern Indian Ocean ......
Blue (pygmy) and sperm whales ...........
October to April.
3 .......................
4 .......................
5 .......................
6 .......................
7 .......................
8 .......................
9 .......................
10 .....................
11 .....................
12 .....................
13 .....................
14 .....................
1 Expansion
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of
2 Expansion of
3 Expansion of
4 Expansion of
existing
existing
existing
existing
OBIA
OBIA
OBIA
OBIA
#16,
#27,
#20,
#26,
Above, we describe a comprehensive
process and set of criteria for identifying
OBIAs, which, when used in
conjunction with the limits on
SURTASS LFA sonar transmission
levels in and around them described
18:45 Aug 12, 2019
April to November.
May to November.
Year-round.
Penguin Bank.
Kimberly-Camden Sound.
Northern Bay of Bengal/SoNG.
Offshore Sri Lanka
Other Geographic Mitigation
Considerations
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period
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above, we expect to decrease the
likelihood and/or scale of impacts on
marine mammal species or stocks.
However, the inclusion of this focused
and systematic process and criteria for
designating OBIAs does not mean that
other mitigation, including specific
time/area restrictions, could not be
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considered in the context of the LPAI
standard. Below we address some other
factors that NMFS and the Navy
considered in the development of the
final rule.
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ESA-Designated Critical Habitat
Under section 7 of the ESA, all
Federal agencies must ensure that any
actions they authorize, fund, or carry
out are not likely to jeopardize the
continued existence of a listed species
or destroy or adversely modify its
designated critical habitat. ESAdesignated critical habitat is not
designated in foreign countries or any
other areas outside of U.S. jurisdiction.
Critical habitat within the U.S. EEZ
implicated by SURTASS LFA sonar
activities has been designated for two of
the relevant ESA-listed marine mammal
species, Hawaiian monk seals and the
Main Hawaiian Island (MHI) Insular
DPS of false killer whales. Effects to
ESA-designated critical habitat are
explicitly addressed through the section
7 consultation process under the ESA.
Notably, the ESA biological opinion for
the Navy’s SURTASS LFA sonar
activities and this MMPA rule
concludes that they are not likely to
adversely affect the relevant designated
critical habitat for those species.
Some of the characteristics of ESAdesignated critical habitat are also
germane to the identification of OBIAs
or other mitigation under this
rulemaking. However, critical habitat
also considers physical as well as
biological features and may also
consider areas that are currently
unoccupied by the species. Therefore,
not all critical habitat necessarily
qualifies as an OBIA or is appropriate as
a basis for other time/area restrictions
for SURTASS LFA sonar when
considering mitigation under the
MMPA. As it pertains to the potential
inclusion of these areas as OBIAs, we
note that neither of these two ESA-listed
species is a LF hearing specialist or
sensitive to SURTASS LFA sonar in a
manner that would otherwise justify
additional species-specific mitigation on
their behalf, given the existing
protections of the Navy’s three-part
detection and shutdown protocols and
coastal standoff zone.
Nearly all of the ESA-designated
critical habitat for the Hawaiian monk
seal lies within the coastal standoff
distance for SURTASS LFA sonar. A
small area of the monk seal’s critical
habitat at Penguin Bank extends beyond
the 22-km (12-nmi) coastal standoff
distance, which is part of the Main
Hawaiian Islands OBIA (designated in
this final rule). Per the CZMA
consultation with the State of Hawaii for
SURTASS LFA sonar, the Navy agreed
not to operate SURTASS LFA sonar in
the waters of Penguin Bank to the 600ft (183-m) isobath. In addition, the Navy
also agreed not to ensonify Hawaii state
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18:45 Aug 12, 2019
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waters at levels above 145 dB re: 1 mPa
rms. Main Hawaiian Islands and
Northwestern Hawaiian Islands OBIAs
(designated in this final rule), effective
from November to April and December
to April, respectively, encompass the
critical habitat for Hawaiian monk seal.
During this time, the received levels in
waters within 1 km of these OBIAs will
not exceed 180 dB re: 1 mPa (rms).
The ESA-designated critical habitat
for the MHI insular false killer whale
(MHI IFKW) DPS includes waters from
the 148- to 10,499-ft (45-to 3,200-m)
depth contours around the MHI from
Niihau east to Hawaii. MHI IFKWs are
island-associated whales that rely
entirely on the productive submerged
habitat of the main Hawaiian Islands to
support all of their life-history stages,
and their range is restricted to the shelf
and slope habitat around the MHI,
unlike pelagic false killer whales found
more in open oceans. Because of the
habitat characteristics that are important
components to the ecology of these
whales, NMFS identified a single
feature, island-associated marine
habitat, with four characteristics that
support this feature as essential to their
conservation. The four characteristics
include: (1) Adequate space for
movement and use within shelf and
slope habitat; (2) prey species of
sufficient quantity, quality, and
availability to support individual
growth, reproduction, and development,
as well as overall population growth; (3)
waters free of pollutants of a type and
amount harmful to MHI IFKWs; and (4)
sound levels that will not significantly
impair the whales’ use or occupancy.
Some Navy and other Federal agency
areas, such as the Pacific Missile Range
Facility offshore ranges, are excluded
from the critical habitat designation
(NOAA, 2018). In most areas of the
waters surrounding the MHI, the coastal
standoff range for SURTASS LFA (12
nmi (22 km)) is located closer to shore
than the seaward boundary of the
critical habitat for the MHI Insular DPS
of the false killer whale (i.e., some of the
critical habitat is beyond the coastal
standoff range). The Main Hawaiian
Islands OBIA (designated in this final
rule) encompasses some of the critical
habitat, but a portion of the critical
habitat lies beyond the OBIA. However,
as discussed above, part of the CZMA
stipulations for SURTASS LFA sonar
use in Hawaiian waters required the
Navy to agree not to use SURTASS LFA
sonar in the waters over Penguin Bank
to a water depth of 600 ft (183 m) and
to limit ensonification within Hawaii
state waters (out to 3 nmi) to 145 dB re:
1 mPa rms.
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Regarding prey availability (large
pelagic fish and squid) of sufficient
quantity, quality, and availability to
support individual growth,
reproduction, and development, as well
as overall population growth of false
killer whales, no mortality of marine
invertebrates is reasonably expected to
occur from exposure to LFA sonar
training and testing activities nor are
population level effects likely. Thus,
marine invertebrates such as squid
would not reasonably be adversely
affected by SURTASS LFA sonar
training and testing activities such that
their availability (or other prey
availability) would be diminished (also
refer to Chapter 3, section 3.4.2.1 of the
2019 SURTASS LFA FSEIS/SOEIS for a
discussion of why marine invertebrates
are not reasonably likely to be adversely
impacted by SURTASS LFA sonar
training and testing activities). Marine
fishes, however, may be affected by
exposure to LFA sonar transmissions,
but only if they are located within close
proximity (<0.54 nmi (<1 km)) to the
transmitting sonar source. The Navy’s
analysis indicates a minimal to
negligible potential for an individual
fish to experience non-auditory or
auditory effects or a stress response
from exposure to SURTASS LFA sonar
transmissions. A low potential exists for
minor, temporary behavioral responses
or masking effects to an individual fish
when LFA sonar is transmitting, but no
potential is estimated for fitness level
consequences to fish stocks. Since it is
highly unlikely that a significant
percentage of any prey stock would be
in sufficient proximity during LFA
sonar transmissions to experience such
effects, there is minimal potential for
LFA sonar to affect prey fish stocks.
Thus, no adverse effects are reasonably
expected on the quantity, quality, and
availability of prey fishes as the result
of exposure to SURTASS LFA sonar
training and testing activities.
Accordingly, SURTASS LFA sonar
training and testing activities would not
significantly impact the biological
characteristics of prey availability of the
MHI IFKW DPS’s designated critical
habitat.
Regarding the underwater sound
produced by SURTASS LFA sonar, it
would not be expected to ‘‘significantly
impair false killer whale’s use or
occupancy’’ due both to the small scale
of the activity (small number of vessels
operating across two ocean basins,
meaning that any individual marine
mammal would be expected to be
exposed for only a short amount of time)
and the frequency of the SURTASS
signal, which is not in the range of
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higher sensitivity for this species and
would not be expected to interfere with
their communication. Further, required
shutdowns are expected to minimize
false killer whale exposure to high
sound levels and the Navy’s
implementation of a coastal standoff
zone means that SURTASS LFA training
and testing is not occurring across much
of the critical habitat. No aspect of
SURTASS LFA sonar training and
testing activities would reasonably be
expected to impact the spatial use of
false killer whales. As a result, the use
of SURTASS LFA sonar for training and
testing activities in Hawaiian waters
would not reasonably be expected to
have any impact on the physical
characteristics of the false killer whale
critical habitat since neither the spatial
availability nor sound levels in the
continental shelf and slope habitat
would be significantly impacted. As
noted, NMFS is not recommending
additional geographic mitigation in this
area.
Both the Navy and NMFS Protected
Resources Permits and Conservation
Division consulted with NMFS
Protected Resources Interagency
Cooperation Division on effects on
critical habitat pursuant to section 7 of
the ESA.
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Coastal Standoff Zone
The Navy will restrict training and
testing activities utilizing SURTASS
LFA sonar within 22 km (14 mi; 12 nmi)
of any coastline, including islands, such
that the SURTASS LFA sonar-generated
sound field will not exceed a received
level of 180 dB re: 1 mPa rms at that
seaward distance. This measure is
intended to minimize both the severity
and scale of effects to marine mammals
and, by extension, marine mammal
species and stocks, by avoiding areas
where many biologically important
behaviors and higher densities of many
species that may be found in coastal
areas occur. In the past, some
commenters have recommended the
Navy implement a larger coastal
standoff zone than what we proposed.
We reiterate that as noted in 2012 final
rule (77 FR 50290; August 20, 2012),
approximately 80 percent of known and
potential marine protected areas are
within the 22 km (12 nmi) coastal
standoff zone, an indication of this
measure’s effectiveness, and it is
practicable. Additionally, this
restriction limits exposures of marine
mammals to high-level sounds in the
vicinity of geographical features that
have been associated with some
stranding events (i.e., enclosed bays,
narrow channels, etc.) attributed to
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activities other than SURTASS LFA
sonar.
The Navy’s 2007 SURTASS LFA
SEIS/SOEIS evaluated increasing the
coastal standoff distance up to 46 km
(25 nmi) and, based on a six-step
analysis process, determined that
increasing the coastal standoff range
would decrease exposure to higher
received levels for concentrations of
marine animals closest to shore, but
would do so at the expense of increasing
exposure levels for shelf break and
pelagic species. There have been no
changes to the best available
information or other indications that the
coastal standoff distance should be
increased, so there is no change in this
mitigation measure from previous
rulemakings. In addition, any areas
beyond the 12 nmi coastal standoff can
still be considered for mitigation, such
as through the OBIA process.
White Paper on ‘‘Identifying Areas of
Biological Importance to Cetaceans in
Data-Poor Regions’’
As described earlier, for the 2012
rulemaking, NMFS convened a panel of
subject matter experts (SMEs) to help
identify marine mammal OBIAs relevant
to the Navy’s use of SURTASS LFA
sonar. Separately, we consulted a NMFS
scientist, who was also on that same
SME panel, to help address a
recommendation in a public comment
that NMFS consider a global habitat
model (Kaschner et al., 2006) in the
development of OBIAs. In addition to
providing the requested input (which
essentially concluded that using the
Kaschner model was not advisable, for
several reasons), the NMFS scientist, in
conjunction with other NMFS scientists,
went further and provided some
guidance for alternate methods for
considering ‘‘data poor areas’’ and
drafted a paper entitled ‘‘Identifying
Areas of Biological Importance to
Cetaceans in Data-Poor Regions’’
(referred to in this notice as the ‘‘White
Paper’’). NMFS’ consideration of the
White Paper was discussed in the 9th
Circuit’s ruling on our 2012 final rule,
and as a consequence we provide here
some additional details and background
regarding our consideration of the White
Paper recommendations for this
rulemaking.
Kaschner et al. (2006) Recommendation
As requested, the White Paper authors
reviewed the Kaschner et al. (2006)
paper in the context of potential
mitigation for SURTASS LFA sonar. The
Kaschner et al. (2006) paper used
models based on a synthesis of ‘‘existing
and often general qualitative
observations about the spatial and
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temporal relationships between basic
environmental conditions and a given
species’ presence’’ to ‘‘develop a generic
quantitative approach to predict the
average annual geographic ranges’’ of
marine mammal species on a global
scale. Several environmental correlates
including depth, sea surface
temperature, distance to land, and mean
annual distance to ice edge were used
in the Kaschner effort. After evaluating
four case studies from the Kaschner et
al. (2006) study for predicting gray
whale, northern right whale dolphin,
North Atlantic right whale, and narwhal
distribution, the authors of the White
Paper concluded that ‘‘(t)he predictions
from the four case studies . . . included
errors of omission (exclusion of areas of
known habitat) and commission
(inclusion of areas that are not known
to be habitat) that could have important
implications if the model predictions
alone were used for decision making in
a conservation or management context.’’
Specifically, the White Paper
illustrated that the Kaschner et al. effort
omitted a considerable portion of
known gray whale habitat;
overestimated the range of suitable
habitat for northern right whale
dolphins off the U.S. West Coast (noting
that species-specific models based on
dedicated shipboard surveys more
correctly identified suitable habitat);
predicted habitat for North Atlantic
right whales in large areas where they
have never been recorded; and
predicted suitable habitat for narwhal
that did not correspond with their
known distribution. Noting that these
significant inaccuracies in the model
could result in either under-protection
or over-restrictiveness, the authors of
the White Paper did not recommend
basing the identification of biologically
important areas on this modeling.
NMFS concurred with this
recommendation and elected not to use
the Kaschner paper, or other similar
predictive envelope models as a basis
for identifying additional protective
areas in the 2012 SURTASS LFA sonar
incidental take rule.
Clarification of Concepts Raised in
White Paper
In NRDC v. Pritzker, referring to the
White Paper and its specific
recommendations that NMFS did not
adopt for identification of OBIAs, the
9th Circuit stated that NMFS, in its 2012
rule, ‘‘did not give adequate protection
to areas of the world’s oceans flagged by
its own experts as biologically
important, based on the present lack of
data sufficient to meet the Fisheries
Service’s (OBIA) designation criteria,
even though NMFS’ own experts
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acknowledged that (f)or much of the
world’s oceans, data on cetacean
distribution or density do not exist.’’
NRDC v. Pritzker, 828 F.3d at 1142.
Although the White Paper authors
utilized the term ‘‘biological
importance’’ in the title of the paper,
they clearly stated that ‘‘it must be
decided whether the list of OBIAs
should be comprehensive (based on a
‘precautionary approach’) or pure (based
on the ‘minimalist approach’),’’ and
explicitly declined to provide an
answer. Specifically, they indicated ‘‘it
must be decided whether to be
precautionary and possibly nominate
areas that are of marginal importance in
an attempt to minimize the chances of
overlooking biologically important
areas’’ or ‘‘minimize the chances of
nominating sites that are of marginal
biological importance and, therefore,
risk overlooking biologically important
areas.’’ Then, the authors suggested
three general recommendations for
decision making based upon a
precautionary approach if that is the
method selected by the decision maker,
as discussed further below.
However, the recommendations of the
White Paper present a dichotomous
‘‘precautionary versus nonprecautionary’’ choice, an interpretation
that fails to consider the context of the
requirements of the MMPA, the nature
of the anticipated effects of the action at
issue, and the other mitigation
measures. More appropriately, NMFS
has fully and independently considered
each of the White Paper’s three
recommendations in the context of the
MMPA’s LPAI standard, as described
below. In that analysis, we first note the
small scale of the anticipated effects of
the Navy’s request for authorization
(496–592 hours/year of SURTASS LFA
sonar spread across two ocean basins)
and the low magnitude and severity of
impacts expected to any individual
marine mammals (relatively short-term
exposures given the spatial scale of the
vessels’ movement), even in the absence
of mitigation, given the nature of the
activities. Then we note the robust
shutdown measures that utilize the
highly effective visual, passive acoustic,
and active acoustic detection methods
that are in place for all areas and times
to avoid marine mammal injury as well
as minimize TTS and more severe
behavioral responses, belying claims
that we treat data-poor areas as though
they are equivalent to zero-density areas
or areas of no biological importance.
Next, we discuss the coastal standoff
zone, which minimizes take of many
species with coastal habitat preferences.
We then examine the activity
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restrictions in OBIAs, which further
limit potentially more significant
impacts in areas that are known to be
biologically important to the species
that are more susceptible to the
SURTASS LFA sonar signal. Finally, we
discuss the limited and uncertain
additional protective value that the
White Paper recommendations would
be expected to provide for marine
mammal individuals, much less species
or stocks. After considering all of this
information, in addition to the
information provided by the Navy
indicating that further restricting
SURTASS LFA sonar training and
testing in the areas recommended in the
White Paper would be impracticable,
NMFS determined that the use of the
White Paper recommendations was not
appropriate.
White Paper Specific Recommendations
While the White Paper authors
essentially disqualified the specific
extrapolative predictive results of the
Kaschner model based on validating
them against known data, they
nevertheless recommended broader
protections based on fewer
environmental variables, to be used if
NMFS determined that a ‘‘precautionary
approach’’ was appropriate. Although
the current White Paper
recommendations are grounded in some
sound broad ecological principles,
basing mitigation on the ‘‘precautionary
approach’’ considered by the White
Paper authors suffers from some of the
same types of weaknesses as using the
Kaschner model or other
‘‘environmental envelope’’ approaches.
In the 2012 SURTASS LFA sonar rule,
NMFS evaluated the White Paper solely
through the lens of the OBIA process,
and determined that the
recommendations presented were not
appropriate for identification of OBIAs,
which may have limited fuller
consideration of the recommendation.
For this rulemaking, NMFS
independently examined the White
Paper’s specific recommendations in the
context of the LPAI standard to
determine whether following those
recommendations is warranted to
minimize the impacts from SURTASS
LFA sonar training and testing activities
on the affected marine mammal species
or stocks. This consideration was done
outside of the OBIA designation
process, and is consistent with the
consideration of the LPAI criteria
described above when determining
appropriateness of mitigation measures.
The White Paper recommended the
following general guidelines based on
ecological principles to identify areas of
biological importance for cetaceans:
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(1) Designation of all continental shelf
waters and waters 100 km seaward of
the continental slope as biologically
important habitat for marine mammals;
(2) Establishment of OBIAs within
100 km of all islands and seamounts
that rise within 500 m of the surface;
and
(3) Nomination of high productivity
regions that are not included in the
continental shelf, continental slope,
seamount, and island ecosystems above
as biologically important areas.
These recommendations were
evaluated (see below) in the context of
the proposed SURTASS LFA sonar
training and testing activities and the
mitigation measures proposed to be
implemented to minimize impacts on
the affected marine mammal species or
stocks from these activities.
To reiterate, NMFS has required
several mitigation measures for
SURTASS LFA training and testing
sonar activities that: (1) Minimize or
alleviate the likelihood of injury (PTS),
TTS, and more severe behavioral
responses (the 2,000-yd LFA mitigation/
buffer zone); (2) additionally minimize
or avoid behavioral impacts in known
important areas (which includes
important habitat) that would have a
higher potential to have negative
energetic effects or deleterious effects on
reproduction that could reduce the
likelihood of survival or reproductive
success (OBIAs); and (3) generally
lessen the total number of takes of many
species with coastal or shelf habitat
preferences (coastal standoff). The
nature and context of how LFA sonar is
used in training and testing activities
(small number of vessels operating in
open ocean areas and typically using
active sonar only sporadically) is such
that impacts to any individual are
expected to be limited primarily
because of the short duration of
exposure to any individual mammal. In
addition, as explained above, an animal
would need to be fairly close to the
source for the entire length of a
transmission (60 sec) to experience
injury, and exposures occur in open
water areas where animals can more
readily avoid the source and find
alternate habitat relatively easily. In
addition, highly effective mitigation
measures would be implemented that
further ensure impacts are limited to
lower-level responses with limited
potential to significantly alter natural
behavior patterns in ways that would
affect the fitness of individuals and by
extension the affected species or stocks.
SURTASS LFA sonar operates from
100 to 500 Hz. These frequencies are far
below the best hearing sensitivity for
MF and HF species. HF species have
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their best hearing between around 60
and 125 kHz, which means that a sound
at 500 Hz (and below) has to be at least
50 dB louder for HF species to hear it
as well as a sound in their best hearing
range. MF cetaceans have their best
hearing between around 40 and 80 kHz,
which means that at 500 Hz and below,
the sound has to be 40 dB louder, or
more, for this group to hear the sound
as well as a sound in their best hearing
range. In other words, these species
have to be much closer to a sound at the
frequency of SURTASS LFA sonar to
hear it, which means that generally they
have to be much closer to the SURTASS
sonar source for it to cause PTS, TTS,
or a behavioral response. Additionally,
during the 1997 to 1998 SURTASS LFA
Sonar LFS SRP, numerous odontocete
species (i.e., MF and HF hearing
specialists) and pinniped species were
sighted in the vicinity of the sound
exposure tests and showed no
immediately obvious responses or
changes in sighting rates as a function
of source conditions, which likely
produced received levels similar to
those that produced minor short-term
behavioral responses in the baleen
whales (i.e., LF hearing specialists).
As described in the 2012 rule, NMFS
believes that MF and HF odontocete
hearing specialists have such reduced
sensitivity to the LFA sonar source that
limiting ensonification in OBIAs for
those animals would not afford
meaningful protection beyond that
which is already incurred by
implementing a shutdown when any
marine mammal enters the 2,000-yd
LFA sonar mitigation zone. For the same
reason, our discussion of the White
Paper recommendations is limited to
low frequency sensitive species. We
note the White Paper’s
recommendations for mitigation in datapoor areas similarly were solely for
cetaceans.
As noted previously, in evaluating
mitigation for species or stocks and their
habitat, we consider the expected
benefits of the mitigation measures for
the species or stocks and their habitats
against the practicability of
implementation. This consideration
includes assessing the manner in which,
and the degree to which, the
implementation of the measure(s) is
expected to reduce impacts to marine
mammal species or stocks (including
through consideration of expected
reduced impacts on individuals), their
habitat, and their availability for
subsistence uses (where relevant). This
analysis will consider such things as the
nature of the proposed activity’s adverse
impact (likelihood, scope, range); the
likelihood that the measure will be
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effective if implemented; the likelihood
of successful implementation.
Practicability of implementing the
measure is also assessed and may
involve consideration of such things as
cost, impact on operations, and, in the
case of a military readiness activity,
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity (16 U.S.C. 1371(a)(5)(A)(ii)).
Taking into account the above
considerations, NMFS’ evaluation of the
White Paper’s recommendations is
described below:
Continental shelf waters and waters
100 km seaward of continental slope
Consideration of potential for
reduction of adverse impacts to marine
mammal species and stocks and their
habitat—The Navy already implements
a coastal standoff zone of 22 km (14 mi;
12 nmi), which includes large parts of
the continental shelf around the world,
includes parts of the slope in some
areas, and reduces potential takes of
many marine mammal species and
stocks with coastal habitat preferences.
In addition, under this rulemaking, the
Navy is not able to deploy and utilize
SURTASS LFA sonar for training and
testing within any foreign nations
territorial seas, which encompasses an
area up to 12 nmi (depending on the
distance each nation claims). The White
Paper provided little basis for the 100
km buffer seaward of the continental
slope and we have found no specific
literature to support such a broad buffer
in all areas. Therefore, in the context of
this evaluation, NMFS first considered
if there was evidence of the importance
of the continental slope itself, without
any consideration for a buffer.
In support of understanding the
additional value of expanding this
standoff to 100 km beyond the
continental slope margin, NMFS
assessed known marine mammal
density information for low frequency
hearing specialists from the U.S. East
(Roberts et al., 2016) and West coasts
and compared these densities to
bathymetry, specifically looking at areas
of high density compared to the
continental shelf and slopes on both
coasts (NOAA, 2009). This assessment
and comparison focused on the U.S.
East and West coasts as an example
because relatively more data is available
for these waters. The comparison
showed that mapped areas of highest
densities are not always related to the
slope or shelf. For example, while fin
whales in the eastern U.S. waters show
relatively higher densities on the
continental shelf and slope, relatively
higher densities of fin whales in western
U.S. waters are much farther out to sea
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40193
from the continental shelf or slope (well
beyond 100 km of the slope), and the
same was found for sperm whales. Some
mysticetes do show higher densities on
the continental shelf, and some have
higher densities along the continental
slope, which may also vary among
seasons (e.g., fin whales on the east
coast). Generally, density information
from the Atlantic showed some
enhanced densities along the slope, but
only for certain species in certain
seasons, and did not indicate
universally high densities along the
slope. There are many factors that
influence the spatial and temporal
distribution and abundance of
cetaceans, including environmental
variables such as physiochemical,
climatological, and geomorphological
variables operating on times scales
ranging from less than a day to
millennia; biotic variables, such as prey
distribution, competition among other
species, reproduction, and predation;
and anthropogenic factors, such as
historical hunting, pollution, ship
activity, etc. (Davis et al., 1998).
Humpback whales (especially around
Cape Hatteras) seem to show some
higher densities around the slope, but
also seaward of the slope, especially in
winter. However, the slope is closer to
the shore around Cape Hatteras than
most places along the eastern seaboard,
and while humpbacks may show higher
densities along the slope in this area,
the same cannot be said of humpbacks
further south (i.e., in Florida) where the
slope is much further offshore. Right
whales show higher densities closer to
shore along the Atlantic coast, while
sperm whales are farther out past the
slope on the Atlantic coast, as they are
deep divers. Density data from the
Pacific coast show higher densities of
blue whales on the shelf and slope,
while fin whales and sperm whales are
observed in waters beyond the
continental slope. Gray whales show
higher densities closer to shore along
the Pacific coast, while humpbacks
seem to be along the slope and beyond
in some places. Using the continental
United States densities of these lower
frequency sensitive species as examples
showed that densities are sometimes
higher within 100 km of the slope, but
are often higher elsewhere (off the
slope) and many of these high density
areas are highly seasonal.
As stated above, NMFS looked at
these areas because relatively more data
are available and, since comparisons in
these areas do not consistently show
strong correlation of high densities with
the continental slope, it is reasonable to
infer the same inconsistent relationship
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for other slope/shelf areas where there
are even fewer data. As discussed
below, there is no scientific basis for
NMFS to conclude that geographical
restrictions for these data-poor areas
would reduce adverse impacts to marine
mammal species or stocks or their
habitat. Therefore, restricting SURTASS
LFA sonar training and testing activities
within 100 km of the entire continental
shelf and slope is of questionable value
as a mitigation measure to avoid areas
of higher densities of marine mammal
species or stocks, and further, would
restrict these activities in large areas of
the open ocean that we know do not
harbor high densities of marine
mammals (especially when the 100-km
buffer is considered).
We said in the OBIA context that
although we are identifying ‘‘known’’
biologically important areas, other
biologically important areas have yet to
be identified, due to limited data.
However, it is important to realize that
much more research is conducted close
to shore, in the United States and
internationally, and typically areas
within 100 km of the slope are less
likely to be data-poor compared to other
areas. In areas where there is extensive
data on marine mammal density and use
(e.g., in the continental US EEZ), it may
be inappropriate to use broader
principles that could be helpful in
identifying protected areas in data-poor
areas. NOAA, Navy, other agencies, and
many independent researchers have
been conducting marine mammal
research throughout the U.S. EEZ (200
mi from shore) for decades. The
prevalence of research makes it less
likely that important areas closer to
shore have been overlooked.
NMFS acknowledges that large ocean
areas such as the continental shelf and
slope and seamounts may include
habitat features that could provide
important habitat for marine mammals
at certain times—as the White Paper
states, the higher primary productivity
in these areas could generally be
associated with higher densities of
marine mammals. However, exposures
to any individual animal are expected to
be short term and intermittent, since a
small number of ships would conduct
SURTASS LFA sonar training and
testing activities for up to 496 hours
(years 1–4) and 592 hours (years 5–7)
total for all ships combined annually. In
addition, shutdown measures would
avoid injury (PTS), most TTS, and
severe behavioral responses, and coastal
standoff zones and OBIAs would avoid
disturbances more likely to lead to
fitness impacts by further restricting
activities in these areas of known
biological importance for marine
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mammals. Therefore, the other
mitigation measures (which are
currently in effect) would already limit
most take of marine mammals to less
severe Level B harassment (e.g., short
periods of changes to swim speed or
calling patterns; alterations of dive
profiles, etc.). As a result, there is little
to no indication that there is a risk to
marine mammal species or stocks that
would be avoided or lessened if waters
100 km seaward of the continental slope
were subject to restrictions.
Of note, in many areas the waters of
the continental shelf/slope will be
afforded significant protection due to
the coastal standoff mitigation measure.
In addition, review of designated OBIAs
reveals that the majority include
continental shelf/slope areas and similar
coastal waters. The Navy will also
transmit no more than 25 percent of the
authorized amount (transmission hours)
of SURTASS LFA sonar for training and
testing activities within 10 nmi (18.5
km) of any single OBIA during any year
(no more than 124 hours in years 1–4
and 148 hours in years 5–7). Therefore,
to the extent that some portion of the
shelf/slope waters are important
habitats, many are afforded protection
due to the geographical restrictions
already in place (coastal standoff and
OBIAs), and NMFS has determined that
the best available information justifies
these measures under our evaluation
framework set forth above.
Given the proposed mitigation
measures, many of which are already in
place under the NDE and have been in
effect for many years under prior rules,
takes of marine mammals would be
limited to Level B harassment in the less
severe range of behavioral reactions and
some TTS, as described above.
Consequently, the only additional
anticipated value to restricting activities
in continental shelf waters and waters
100 km seaward of continental slope
would be some, though not a significant,
reduction in the number of these less
severe behavioral reactions in those
areas. As discussed above, in general,
not all behavioral responses rise to the
level of a take and not all harassment
takes result in fitness consequences to
individuals that have the potential to
translate to population consequences to
the species or stock. For example, the
energetic costs of short-term
intermittent exposures to SURTASS
LFA sonar (such as are expected here)
would be unlikely to affect the
reproductive success or survivorship of
individuals. This means there is little to
no likelihood that the impacts of the
anticipated takes would accrue in a
manner that would impact a species or
stock even in the absence of any
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additional mitigation. Therefore,
considered with the uncertain potential
of this proposed recommendation to
provide meaningful incremental
reduction of risk or severity of impacts
to individual marine mammals, NMFS
concludes that this recommendation
would not reasonably be expected to
provide a reduction in the probability or
degree of effects on any marine mammal
species or stocks.
In addition to the mitigation measures
in place for SURTASS LFA sonar that
would already provide protection for
continental shelf/slope waters, it is
important to note that there are
currently a total of four SURTASS LFA
sonar ships that would be training and
testing with up to a maximum of 496
transmission hours total, pooled across
all vessels, per year in years one through
four. While the Navy plans to add
additional vessels beginning in year 5,
the total transmission hours would be
capped at 592 hours total, regardless of
the number of vessels. It is not known,
nor does the Navy indicate in its plans,
whether activities of these existing or
proposed new vessels would be focused
in any specific area. It is likely, based
on past monitoring reports, that the
activities of the multiple vessels are
spatially separated and not concentrated
in a single area, and that they would not
necessarily overlap marine mammal
high-density areas for an extended
period of time. However, as noted, the
Navy will transmit no more than 25
percent of the authorized amount
(transmission hours) of SURTASS LFA
sonar for training and testing activities
within 10 nmi (18.5 km) of any single
OBIA during any year, which means no
more than 124 hours in years 1–4 and
148 hours in years 5–7.
Consideration of practicability for
restrictions in continental shelf waters
and waters 100 km seaward of
continental slope—NMFS and the Navy
evaluated the practicability of
implementation of the White Paper’s
recommended continental shelf, slope,
and 100-km seaward restriction. The
Navy has indicated, and NMFS concurs,
that additional continental shelf, slope,
and 100 km seaward restrictions beyond
the territorial waters of foreign nations
and the existing coastal standoff and
OBIAs would unacceptably impact the
Navy’s national security mission, as
large areas of the ocean would be
restricted where LFA sonar
transmissions are required for training
and testing proficiency in order for the
ships’ crews to understand how the
system operates in these varied
bathymetry conditions under future
operational scenarios.
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The submarine forces of several key
adversaries are rapidly growing in size,
capability, and geographic reach. Due to
advancements in quieting technologies
in diesel-electric and nuclear
submarines, undersea threats are
becoming increasingly difficult to locate
using traditional passive acoustic
technologies. Submarines from many
nations are now much more capable and
able to stay submerged for a longer
period of time than earlier vessels. For
both conventional diesel-electric and
nuclear submarines, quieting technology
has increased stealth and thus
operational effectiveness. These
technologies include air-independent
propulsion (AIP), hull coatings that
minimize echoes, sound isolation
mounts for machinery, and improved
propeller design. What once were
unique U.S. design capabilities are now
being employed in new submarine
projects and as upgrades to older
submarines throughout potential
adversaries’ navies. As this technology
has improved, the predominant sources
of ship noise (for example propeller
noise or other machinery noise) have
been reduced. Passive sonar involves
listening for sounds emitted by a
potentially hostile submarine in order to
detect, localize, and track it. As
submarines become quieter through
improved sound dampening technology
and innovative propeller design, the
usefulness of passive sonar systems has
greatly diminished. These submarines
have the ability to carry many different
weapons systems, including torpedoes,
long-range anti-ship cruise missiles,
anti-helicopter missiles, anti-ship
mines, and ballistic nuclear missiles.
These capabilities make submarines,
both nuclear and diesel-electric
powered, stealthy and flexible strategic
threats.
The destruction of U.S. Carrier Strike
Groups (CSGs) and Expeditionary Strike
Groups (ESGs) is a focal point in the
naval warfare doctrine of many
adversaries’ navies. The main threat that
a carrier strike group must defend
against is the undersea threat from
enemy submarines. A single dieselelectric submarine that is capable of
penetrating U.S. or multinational task
force defenses could cause catastrophic
damage to those forces, and jeopardize
the lives of thousands of sailors and
Marines onboard Navy ships. Even the
threat of the presence of a quiet diesel
submarine could effectively deny or
delay U.S. or coalition naval forces
access to vital operational areas. Longrange detection of threat submarines in
near-shore and open ocean
environments is critical for this effort.
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Adequate and effective training and
testing with SURTASS LFA sonar is
necessary to ensure crews can
operationally detect these quieter and
harder to-find foreign submarines at
greater distances. The Navy has
indicated that if large areas of the
continental shelf or slope were
restricted beyond what is in the 12nmi/
22km coastal standoff, the Navy would
not have the benefit of being able to
train and test in these challenging
environments. Coastal, shallow
environments are more acoustically
complex and the SURTASS LFA system
was designed to penetrate these
environments to find quiet assets that
may use these distinctive geographic
features to their advantage. Year-round
access to all of these areas of
challenging topography and bathymetry
is necessary so that crews learn how the
SURTASS LFA system will operate
amidst changing oceanographic
conditions, including seasonal
variations that occur in sound
propagation.
Because these assets are forward
deployed and can rapidly switch
between training and testing activities
and operational missions, there is
limited flexibility for these ships to
maneuver any substantial distance from
primary mission areas of responsibility.
Therefore, avoiding continental shelf
and slope waters plus a 100 km buffer
for training and testing activities would
constitute a significant deviation in
their staging requirements for other
missions. Thus, implementing this
mitigation measure would be highly
impracticable and would significantly
adversely affect the availability of these
assets to conduct their national security
mission. Additionally, due to the slow
speed at which these vessels transit (3
to 4 knots when towing SURTASS, 10–
12 knots without) it does not allow for
large scale movements on the orders of
100s of km proposed by the mitigation
scheme of the White Paper to avoid a
100 km buffer around continental shelf
and slope habitat.
Conclusion regarding restrictions in
continental shelf waters and waters 100
km seaward of continental slope—In
summary, restricting SURTASS LFA
sonar use in waters 100 km seaward
from the continental slope could
potentially reduce individual exposures
or behavioral responses for certain
species and potentially provide some
additional protection to individual
animals in preferred habitat in some
cases. However, density data indicate
that certain mysticetes and sperm
whales have higher densities in areas
other than the continental slope and
potential impacts from moving and
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focusing activities farther offshore
would shift from more coastal species or
stocks to more pelagic species or stocks,
making any reduction in impacts
uncertain. Further, limiting activities in
these large areas of uncertain value to
marine mammals when activities are
comparatively low (small number of
ships operating up to a maximum of 496
transmission hours total across all
vessels in years 1–4 and 592 total
transmission hours in years 5 and
beyond pooled across all vessels, spread
across several mission areas and over
the course of an entire year), given the
existing risks to the affected species and
stocks are already so low, would
provide little, if any, value for lowering
the probability or severity of impacts to
individual marine mammal fitness,
much less species or stocks, or their
habitat. Given the limited potential for
additional reduction of impacts to
marine mammal species beyond what
the existing mitigation measures
described in this rule provide, and the
high degree of impracticability
(significant impacts on training and
testing effectiveness and the availability
of these assets to support other national
security missions), NMFS has
determined that adopting this
recommendation is not warranted under
the LPAI standard.
Restrictions Within 100 km of All
Islands and Seamounts That Rise to
Within 500 m of the Surface
Consideration of potential reduction
of adverse impacts to marine mammal
species and stocks and their habitat—
Currently, waters surrounding all
islands are included in the coastal
standoff zone. As discussed previously,
this means that SURTASS LFA sonar
received levels would not exceed 180
dB re: 1 mPa within 22 km (12 nmi) from
the coastline. Also, SURTASS LFA
sonar will not be operated within
foreign territorial waters. Lastly, the
Navy has agreed not to utilize SURTASS
LFA sonar within the waters of Penguin
Bank (to a depth of 600 ft (183 m)), and
to limit ensonification of Hawaii state
waters (out to 3 nmi) to 145 dB re: 1 mPa
rms.
Regarding seamounts, Morato et al.
(2010) state that seamounts were found
to have higher species diversity within
30–40 km of the summit and tended to
aggregate some visitor species (Morato
et al., 2010). However, as stated by the
authors, the paper did not demonstrate
that this behavior can be generalized.
Further, the authors note that
associations with seamounts have been
described for some species of marine
mammals (Morato et al., 2008), mostly
on an individual seamount scale.
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Morato et al. (2008) examined
seamounts for their effect on aggregating
visitors and noted that seamounts may
act as feeding stations for some visitors,
but not all seamounts seem to be equally
important for these associations. While
Morato et al. (2008) only examined
seamounts in the Azores, the authors
noted that only seamounts shallower
than 400 m depth showed significant
aggregation effects. Their results
indicated that some marine predators
(common dolphin (Delphinus delphis)
and other non-marine mammal species
(such as fish and invertebrates) were
significantly more abundant in the
vicinity of some shallow-water
seamount summits; there was no
demonstrated seamount association for
bottlenose dolphins (Tursiops
truncatus), spotted dolphin (Stenella
frontalis), or sperm whales (Physeter
macrocephalus).
Along the northeastern U.S.
continental shelf, cetaceans tend to
frequent regions based on food
preferences (i.e., areas where preferred
prey aggregate), with picscivores (fisheating, e.g., humpback, fin, and minke
whales as well as bottlenose, Atlantic
white-sided, and common dolphins)
being most abundant over shallow
banks in the western Gulf of Maine and
mid-shelf east of Chesapeake Bay;
planktivores (plankton-eating, e.g., right,
blue, and sei whales) being most
abundant in the western Gulf of Maine
and over the western and southern
portions of Georges Bank; and
teuthivores (squid eaters, e.g., sperm
whales) most abundant at the shelf edge
(Fiedler, 2002). While there have been
observations of humpback whales
lingering at seamounts in the middle of
the North Pacific on the way to summer
feeding grounds in the Gulf of Alaska
(Mate et al., 2007), the purpose of these
occurrences is not clear, and it may be
that they are feeding, regrouping, or
simply using them for navigation
(Fiedler, 2002; Mate et al., 2007);
therefore, the role of the seamount
habitat is not clear. According to Pitcher
et al. (2007), there have been very few
observations of high phytoplankton
biomass (i.e., high primary production,
usually estimated from chlorophyll
concentrations) over seamounts. Where
such effects have been reported, all were
from seamounts with summits
shallower than 300 m, and the effects
were not persistent, lasting only a few
days at most. Therefore, it may be that
food sources for many baleen whales are
not concentrated in great enough
quantities for significant enough time
periods to serve as important feeding
areas. While some odontocete (toothed)
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whales have been suggested to utilize
seamount features for prey capture
(Pitcher et al., 2007), the authors
conclude that the available evidence
suggests that ‘‘unlike many other
members of seamount communities, the
vast majority of marine mammal species
are probably only loosely associated
with particular seamounts.’’ We note
here that marine mammals being
‘‘loosely associated’’ with seamounts, or
being observed lingering at certain
seamounts, does not necessarily suggest
a level of biological importance that
would support geographical restrictions
to avoid all seamounts, or even the
specific seamounts where these loose
aggregations occur. Further, as stated
above, the short term, intermittent
nature of the exposures to SURTASS
LFA sonar would be unlikely to impact
the fitness (via effects on reproduction
or survival) of any individuals,
especially given the existing/proposed
mitigation. Therefore, considered with
the uncertain potential of this proposed
measure to provide meaningful
additional reduction of impacts to
individual marine mammals, this
measure is not expected to provide a
reduction in the probability or degree of
effects on any marine mammal species
or stocks.
Consideration of practicability for
restrictions within 100 km of all islands
and seamounts that rise to within 500 m
of the surface—Please see the
discussion of practicability for the
White Paper recommendation above
(protection of continental slope and a
100 km buffer), which is also applicable
here. NMFS and the Navy evaluated the
practicability of implementation of the
White Paper’s recommendation
regarding island and seamounts that rise
to within 500 m of the sea surface. The
Navy has indicated, and NMFS concurs,
that restrictions within 100 km of all
islands and seamounts that rise to
within 500 m of the surface beyond the
existing coastal standoff and OBIAs
would unacceptably impact their
national security mission. Adequate and
effective training and testing with
SURTASS LFA is necessary to ensure
crews can operationally detect quieter
and harder to-find foreign submarines at
greater distances. The Navy has
indicated that if large areas of the
continental shelf or slope were
restricted beyond what is in the 12nmi/
22km coastal standoff, the Navy would
not have the benefit of being able to
train and test in these challenging
environments. Coastal, shallow
environments are more acoustically
complex and the SURTASS LFA system
was designed to penetrate these
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environments to find quiet assets that
may use these distinctive geographic
features to their advantage. Year-round
access to all of these areas of
challenging topography and bathymetry
is necessary so that crews learn how the
SURTASS LFA system will operate
amidst changing oceanographic
conditions, including seasonal
variations that occur in sound
propagation.
As discussed previously with respect
to a 100 km buffer around continental
shelf and slope habitat, similar
practicability concerns exist with
implementing a 100 km buffer around
all islands and seamounts. Because
these assets are forward deployed and
can rapidly switch between training and
testing activities and operational
missions, there is limited flexibility for
these ships to maneuver any substantial
distance from their primary mission
areas of responsibility. Since seamounts
and other areas of complex bathymetry
are important training/testing features
avoiding these areas would have
negative impacts on training and testing
preparedness and realism. Additionally,
avoiding island associated and sea
mount habitats by 100 km would
constitute a significant deviation in the
staging of these assets for other missions
and would significantly impacting their
potential for these vessels to conduct
operational missions. Lastly, due to the
slow speed at which these vessels
transit (3 to 4 kt when towing
SURTASS, 10–12 kt without) it does not
allow for large scale movements on the
orders of a 100 km proposed by the
mitigation scheme of the White Paper
without requiring extensive transmit
time on and off station that would
reduce training and testing
opportunities and the ability of these
assets to support other national security
missions required of them.
Conclusion regarding restrictions
within 100 km of all islands and
seamounts that rise to within 500 m of
the surface—In summary, while
restricting LFA sonar training and
testing in areas 100 km seaward from
islands and seamounts could potentially
reduce incidences of take within a
limited number of species in preferred
habitat in some cases (potential
feeding), available data indicate that
marine mammal associations within
these areas are limited and the benefits
would be at best limited and/or
ephemeral. Also, the habitat preferences
for these areas seem to be more
associated with mid and high frequency
species, which are less sensitive to LFA
sonar, thereby further lessening concern
for the potential effects of LFA sonar.
Limiting SURTASS LFA sonar training
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and testing activities in these large areas
when activities are already
comparatively low (small number of
ships operating up to a maximum of 496
transmission hours total across all
vessels in years 1–4 and 592 total
transmission hours in years 5 and
beyond pooled across all vessels, spread
across several mission areas and over
the course of an entire year) and the
existing risks to the affected species and
stocks are already so low, would
provide little, if any, value for lowering
the probability or severity of impacts to
individual marine mammal fitness,
much less species or stocks, or their
habitat. Given the limited potential for
additional reduction of impacts to a
small number of marine mammal
species and the high degree of
impracticability (serious impacts on
mission effectiveness), NMFS has
determined that adopting this
recommendation is not warranted under
the LPAI standard.
High Productivity Regions That Are Not
Included in the Continental Shelf,
Continental Slope, Seamount, and
Island Ecosystems
Consideration of potential for
reduction of adverse impacts to marine
mammal species and stocks and their
habitat—Regions of high productivity
have the potential to provide good
foraging habitat for some species of
marine mammals at certain times of the
year and could potentially correlate
with either higher densities and/or
feeding behaviors through parts of their
area. Productive areas of the ocean are
difficult to consistently define due to
interannual spatial and temporal
variability. High productivity areas have
ephemeral boundaries that are difficult
to define and do not always persist
interannually or within the same
defined region. While there is not one
definitive guide to the productive areas
of the oceans, NMFS and the Navy
examined these areas in the SURTASS
LFA sonar study area. For instance,
Huston and Wolverton (2009) show
areas of high/highest productivity that
are either (1) confined to high latitude
(polar) areas that are not in the
SURTASS LFA sonar Study Area, or (2)
very coastally and typically seasonally
associated with areas of high coastal
runoff (i.e., by river mouths), which are
already encompassed by the coastal
standoff range.
Areas of more moderate productivity
are typically very large, which means
that they are not concentrating high
densities or feeding areas throughout
their area. In fact, areas of moderate
productivity scored within the mean
and thus represent ‘‘average’’ habitat
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and would not necessarily be
biologically important. These
moderately productive habitats are
likely to provide ample alternative
opportunities for species to move into
and take advantage of areas should they
avoid the area around the SURTASS
LFA sonar vessel. Additionally, as noted
above, given the nature of SURTASS
LFA sonar activities and the other
mitigation for SURTASS LFA sonar, the
existing risk to marine mammal species
and stocks is low and is limited to less
severe Level B harassment.
Consideration of practicability for
restrictions for high productivity regions
that are not included in the continental
shelf, continental slope, seamount, and
island ecosystems—NMFS and the Navy
evaluated the practicability of
implementation of the White Paper’s
recommended restrictions on high
productivity areas. Please see the
discussion of practicability for the first
White Paper recommendation above
(continental slope plus buffer), which is
also applicable here. The Navy has
indicated, and NMFS concurs, that,
additional restrictions in high
productivity regions that are not
included in the continental shelf,
continental slope, seamount, and island
ecosystems beyond the existing coastal
standoff and OBIAs would unacceptably
impact its national security mission.
Because of the inconsistent and
ephemeral boundaries associated with
most high productivity regions, it would
be difficult to define geographic
restrictions that would not impinge
upon the long-range detection abilities
of the SURTASS LFA sonar system. The
mission of SURTASS LFA sonar is to
detect quieter and harder-to-find foreign
submarines at greater distances. The
Navy must train and test in open ocean
regions to track relevant targets at long
distances. If large areas of the ocean
were excluded from potential usage, the
Navy would not have the benefit of
being able to train and test at the long
ranges for which SURTASS LFA sonar
has been designed to function most
effectively. Further, because high
productivity areas are highly variable
and ephemeral, implementation would
not be operationally practicable for the
Navy.
Conclusion regarding restrictions in
high productivity regions that are not
included in the continental shelf,
continental slope, seamount, and island
ecosystems— Restricting use of
SURTASS LFA sonar training and
testing seasonally in high productivity
areas could potentially reduce take
numbers for certain species in preferred
or feeding habitat in some cases.
However, as noted above, the size of the
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primary productivity areas is such that
animals could likely easily access
adjacent high productivity areas should
they be temporarily diverted away from
a particular area due to a SURTASS LFA
sonar source. In addition, marine
mammals are not concentrated through
all, or even most, of these large areas for
all, or even most, of the time when
productivity is highest. Therefore, a
broad limitation of this nature would
likely unnecessarily limit LFA sonar
activities while providing only some
slight benefit to a limited number of
individuals, which would not rise to the
level of value to marine mammal
species or stocks. Limiting activities in
these large areas when activities are
already comparatively low (small
number of ships operating up to a
maximum of 496 transmission hours
total across all vessels in years 1–4 and
592 total transmission hours in years 5
and beyond pooled across all vessels,
spread across several mission areas and
over the course of an entire year), given
the existing risks to the affected species
and stocks are already so low, would
provide little, if any, value for lowering
the probability or severity of impacts to
individual marine mammal fitness,
much less species or stocks, or their
habitat. While we note that subjecting
entire ‘‘high productivity regions’’ to
geographical restrictions would provide
little value, we also reiterate that over
half of the existing OBIAs previously
identified are in areas categorized as
Class I (high productivity, >300 gC/m2yr) or Class II (moderate productivity,
150–300 gC/m2-yr) ecosystems, based
on SeaWiFS global primary productivity
(see response to NRDC comment 20, 77
FR 50290, 50304 (August 20, 2012)).
However, we also note that high
productivity/foraging was not
necessarily the qualifying criteria for all
of these OBIAs, and being classified as
a high productivity area does not
necessarily mean the area serves as a
biologically important area for marine
mammal foraging. Given the limited
potential for additional reduction of
impacts to marine mammal species and
the high degree of impracticability
(serious impacts on mission
effectiveness), NMFS has determined
that adopting this recommendation is
not warranted under the LPAI standard.
Overall Conclusion Regarding
Consideration of the White Paper
Recommendations
NMFS has considered the White
Paper recommendations and
acknowledges that some of them have
the potential to reduce the numbers of
take for some individual marine
mammals within a limited number of
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species, while in other cases, adopting
the White Paper’s guidelines could
potentially increase take of other
species. NMFS also acknowledges that
the White Paper’s recommendations
may add some small degree of
protection in preferred habitat or during
feeding behaviors in certain
circumstances. However, the potential
for impacts on reproduction or survival
of any individuals, much less accrual to
population level impacts, with the
existing mitigation is already very low.
As explained above, the minimal
training and testing impacts and the
anticipated, and demonstrated, success
of the significant mitigation measures
that the Navy is already implementing,
provide a large degree of protection and
limit takes to less severe Level B
harassment. Therefore, the highly
limited and uncertain likelihood that
the White Paper recommendations will
further reduce impacts on individual
marine mammal fitness, much less the
affected species or stocks, and their
habitat does not justify adopting the
recommendations, especially when
considered in light of the high degree of
impracticability for Navy
implementation.
Least Practicable Adverse Impact—
Conclusions
Based on our evaluation of the Navy’s
proposed mitigation measures as well as
other measures considered by NMFS or
recommended by the public, NMFS has
determined that the mitigation measures
required by this final rule provide the
means of effecting the least practicable
adverse impact on the affected species
or stock(s) of marine mammals and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, considering
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
The 2,000-yd LFA sonar mitigation
(shutdown) zone, based on detection of
marine mammals from the highly
effective three-part mitigation
monitoring efforts (visual, as well as
active and passive acoustic monitoring),
and geographic restrictions (coastal
standoff zone and OBIAs plus the 1-km
buffer as well as the limitation on
transmission hours near OBIAs except
when additional approval is obtained
from the Navy Command authority if
required for national security) will
enable the Navy to: (1) Avoid Level A
harassment of marine mammals; (2)
minimize the incidences of marine
mammals exposed to SURTASS LFA
sonar sound levels associated with TTS
and more severe behavioral effects
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under Level B harassment; and (3)
minimize marine mammal takes in areas
and during times of important behaviors
such as feeding, migrating, calving, or
breeding or in areas where small
resident populations reside or there is
high density, further minimizing the
likelihood of adverse impacts to species
or stocks.
The SURTASS LFA sonar signal is not
expected to cause mortality, serious
injury, or PTS, due to implementation of
the 2,000-yd LFA sonar mitigation zone,
which will ensure that no marine
mammals are exposed to an SPL greater
than about 174 dB re: 1 mPa rms. As
discussed above, a low-frequency
cetacean would need to remain within
41 meters (135 ft) for an entire LFA
sonar transmission (60 sec) to
potentially experience PTS and within
413 m (1,345 ft) for an entire LFA sonar
transmission (60 sec) to potentially
experience TTS, which would be
unlikely given typical avoidance
behaviors even in the absence of
mitigation. Therefore, in addition to
alleviating the likelihood of PTS, the
implementation of the 2,000-yd LFA
sonar shutdown zone mitigation
measure will minimize the number of
LF cetaceans likely exposed to LFA
sonar at levels associated with the onset
of TTS. The best information available
indicates that effects from SPLs less
than 180 dB re: 1 mPa rms will be
limited to short-term, Level B
harassment, and animals are expected to
return to behaviors shortly after
exposure.
Further, the implementation of OBIA
measures and the coastal standoff
allows the Navy to minimize or avoid
impacts in areas where behavioral
disturbance and other impacts would be
more likely to have negative energetic
effects, or deleterious effects on
reproduction, which could reduce the
likelihood of survival or reproductive
success (measures to avoid or lessen
exposures of marine mammals within
the coastal standoff zone and OBIAs);
and generally lessen the total number of
takes in areas of higher density for some
species (coastal standoff measures and
OBIAs). These measures, taken together,
constitute the means of effecting the
least practicable adverse impact on the
affected species and stocks in the
western and central North Pacific and
eastern Indian Oceans in the upcoming
seven-year LOA period. As described
above, we evaluated the potential
inclusion of additional measures (White
Paper recommendations, critical habitat,
etc.) before reaching this conclusion.
The 2019 SURTASS LFA FSEIS/
SOEIS evaluated the potential for
impacts to marine habitats (marine
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mammals and otherwise) from
SURTASS LFA sonar training and
testing activities including critical
habitat, essential fish habitat, marine
protected areas, and national marine
sanctuaries. SURTASS LFA sonar
training and testing activities involve
introduction of pressure and sound in
the water column but will not alter
physical habitat. Marine mammal prey
will not be exposed to sustained
duration and intensity of sound levels
that would be expected to result in
significant adverse effects to marine
mammal food resources. Habitat
impacts were considered within the
context of the addition of sound energy
to the marine environment while
SURTASS LFA sonar is transmitting,
which represents a vanishingly small
percentage of the overall annual
underwater acoustic energy budget that
would not affect the ambient noise
environment of marine habitats (refer to
Chapter 4, Sections 4.4 and 4.5 of the
2019 SURTASS LFA FSEIS/SOEIS).
Therefore, with regard to habitat, NMFS
has not identified any impacts to habitat
from SURTASS LFA sonar that persist
beyond the time and space that the
impacts to marine mammals themselves
and the water column could occur. Our
mitigation targeted to minimize impacts
to species or stocks while in particular
habitats (i.e., the coastal standoff and
OBIAs) will protect preferred habitat
during its use, and therefore is
contributing to the means of effecting
the LPAI on a species or stock and its
habitat. Therefore, the mitigation
measures that address areas that serve as
important habitat for marine mammals
in all or part of the year help effectuate
the LPAI on marine mammal species
and stocks and their habitat.
The Ninth Circuit’s Pritzker decision
faulted NMFS for considering the White
Paper mitigation recommendations for
‘‘data-poor areas’’ against the OBIA
standards NMFS had set for the 2012
rule. We do not read the opinion as
holding that the MMPA compelled a
change in the criteria and process for
evaluating OBIAs. NMFS addressed the
Court’s decision by separately and
independently evaluating the White
Paper’s recommendations for benefits to
the affected species or stocks and
practicability, without regard to the
OBIA criteria or process (see NMFS’
evaluation of the White Paper in this
rule). Using the best available
information, NMFS considered the
recommendations in the White Paper
under our interpretation of the LPAI
standard and determined the measures
(as well as a smaller buffer distance)
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were not warranted, as described in that
section.
In reaching the conclusion that
NMFS’ record for the 2012 rule did not
establish the agency had satisfied the
LPAI standard, the Court in Pritzker
determined that NMFS failed to
consider an important aspect of the
problem, ‘‘namely the underprotection
that accompanies making conclusive
data an indispensable component of
OBIA designation,’’ and that this
‘‘systematic underprotection of marine
mammals’’ cannot be consistent with
the requirement that mitigation
measures result in the ‘‘least practicable
adverse impact’’ on marine mammals.’’
Id. at 1140. While we have corrected the
identified deficiency by evaluating the
White Paper measures independent of
the OBIA process, we disagree with the
suggestion that our mitigation is
systematically underprotective.
We first emphasize that NMFS’ OBIA
informational standards (and other
mitigation measures), while data-driven,
do not require scientific certainty or
conclusive data. This is illustrated by
the fact that the OBIA screening criteria
allow for consideration of a variety of
information sources, including historic
whaling data, stranding data, sightings
information, and regional expertise, to
name a few examples of the ‘‘data’’
considered—and, in fact, the only areas
that were not considered were those
considered to have entirely inconclusive
data. As detailed further in Appendix D
of the 2012 SURTASS LFA SEIS/SOEIS,
supporting documents that are
considered include peer-reviewed
articles; scientific committee reports;
cruise reports and transects; personal
communications and unpublished
reports; dissertations and theses; books,
government reports, and nongovernmental organization reports; and
notes, abstracts, and conference
proceedings. The process set up for the
2012 rule carried forward areas for
consideration if they had sufficient
scientific support for the relevant
criterion based on a ranking of 2 or
higher on a scale developed for that
purpose, with zero being the lowest and
four the highest. Even areas that were
ranked ‘‘2’’ (‘‘Supporting information
derived from habitat suitability models
(non-peer reviewed), expert opinion,
regional expertise, or gray (non-peer
reviewed) literature, but requires more
justification’’) were deemed ‘‘eligible’’
for further consideration (77 FR 50290,
50299 (August 20, 2012)).
In fact, NMFS has previously
designated OBIAs for areas based on
these types of information sources. For
example, the Olympic Coast OBIA
(OBIA 21) had a ranking of 2 for
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foraging by humpback whales as
documented in one peer-reviewed
report (p.D–319, DoN 2012). Based on
the results of that study, the Olympic
Coast OBIA was reviewed and
designated. Other examples include the
Southwest Australia Canyons OBIA,
which considers past whaling data but
also more recent sighting and stranding
information; and the boundary for the
Eastern Gulf of Mexico OBIA, which
was drawn to ‘‘conservatively
encompass’’ waters where Bryde’s
whales may occur based on sightings
information (as opposed to scientific
validation of their occurrence). In
addition, even though most available
data are only available for inshore
waters (within the coastal standoff
zone), NMFS is designating OBIAs for
the Ogasawara Island region as part of
this rulemaking due to the importance
of the nearshore area for humpback
whales and sperm whales.
Thus, NMFS does not insist on an
‘‘unattainable’’ evidentiary standard of
‘‘conclusive data’’ 7 for imposing
conservation and management measures
for SURTASS LFA sonar, including
OBIAs. As another example, the coastal
standoff zone uniformly applies not
only in areas with supporting data about
marine mammals (80 percent of the
areas initially identified for OBIA
consideration were within the 12 nmi/
22 km coastal standoff) but also in areas
that could be fairly characterized as
‘‘data poor.’’
Finally, because the LPAI standard
authorizes NMFS to weigh a variety of
factors when evaluating appropriate
mitigation measures, it does not compel
mitigation for every kind of individual
take, even when practicable for
implementation by the applicant. Thus,
we do not evaluate measures strictly on
the basis of whether they will reduce
taking. The focus is on the relevant
contextual factors that more
meaningfully assess a measure’s value
in contributing to the standard of
minimizing impacts to the affected
species or stock and its habitat. It is also
relevant to consider a measure in the
context of the nature and extent of the
expected impacts of the specified
activity and the value of other
mitigation that will be implemented.
NMFS has evaluated the likely effects
of SURTASS LFA sonar training and
testing activities and has required
measures to minimize the impacts to the
affected species or stocks and their
habitat to achieve the LPAI. Consistent
with our interpretation of LPAI, the LFA
shutdown and coastal exclusion zone
7 NRDC v. Pritzker, 828 F.3d 1125, 1140 (9th Cir.
2016).
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40199
are practicable for the Navy and
effective in minimizing impacts on
marine mammals from activities that are
likely to increase the probability or
severity of population level effects—
wherever marine mammals occur, even
in areas where data are limited.
Therefore, as we have said, NMFS’
mitigation requirements are not based
on the premise that the ‘‘no data’’
scenario is equivalent to ‘‘zero
population density’’ or ‘‘no biological
importance.’’ 8 The LFA shutdown zone
will avoid or minimize auditory impacts
and more severe forms of Level B
harassment, wherever marine mammals
occur. The coastal exclusion zone will
reduce adverse impacts, specifically
higher numbers of take or take in areas
of preferred habitat for coastal species
that are present in higher numbers, or
through lessening the severity of
impacts by minimizing take of
individuals in shelf or slope areas
encompassed by the standoff, when that
habitat is preferred by some species
(again, when NMFS assessed areas that
met the OBIA biological criteria for the
2012 rule, 80 percent of the areas fell
within the 12 nmi coastal exclusion
zone, but the protection applies
anywhere in the coastal exclusion zone,
even in parts that are ‘‘data poor’’). In
addition, NMFS designated OBIAs,
where supporting information
sufficiently (and not necessarily
conclusively) demonstrated the areas
met the established criteria and they
were determined to be practicable,
which are expected to reduce the
likelihood of impacts that would
adversely affect reproduction or
survival.
We have assessed all
recommendations and the best available
science and are aware of no other
practicable measures that would further
reduce the probability of impacts to
species or stocks and their habitats. In
other words, the measures that NMFS
includes in this rule will effect the least
practicable adverse impact on the
affected species or stocks and their
habitats. As discussed in the Adaptive
Management section, NMFS will
systematically consider new
information and re-evaluate as
necessary if applicable new information
becomes available.
Monitoring
Section 101(a)(5)(A) of the MMPA
states that in order to issue an ITA for
an activity, NMFS must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ The MMPA implementing
8 White
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regulations at 50 CFR 216.104(a)(13)
indicate that requests for LOAs must
include the suggested means of
accomplishing the necessary monitoring
and reporting that will result in
increased knowledge of the species, the
level of taking, or impacts on
populations of marine mammals that are
expected to be present.
Monitoring measures prescribed by
NMFS should accomplish one or more
of the following general goals:
• An increase in our understanding of
how many marine mammals are likely
to be exposed to levels of LFA sonar that
we associate with specific adverse
effects, such as disruption of behavioral
patterns, TTS, or PTS;
• An increase in our understanding of
how individual marine mammals
respond (behaviorally or
physiologically) to LFA sonar (at
specific received levels or other stimuli
expected to result in take);
• An increase in our understanding of
how anticipated takes of individuals (in
different ways and to varying degrees)
may impact the population, species, or
stock (specifically through effects on
annual rates of recruitment or survival);
• An increase in knowledge of the
affected species;
• An increase in our understanding of
the effectiveness of certain mitigation
and monitoring measures;
• A better understanding and record
of the manner in which the authorized
entity complies with the incidental take
authorization; and
• An increase in the probability of
detecting marine mammals, both within
the mitigation zone (thus allowing for
more effective implementation of the
mitigation) and in general to better
achieve the above goals.
In addition to the real-time
monitoring associated with mitigation,
the Navy is engaging in exploring other
monitoring efforts described here:
Marine Mammal Monitoring (M3)
Program
Beginning in 1993, the Marine
Mammal Monitoring (M3) Program was
designed to assess the feasibility of
detecting and tracking marine
mammals. The M3 program uses the
Navy’s fixed and mobile passive
acoustic monitoring systems to monitor
the movements of some large cetaceans
(principally baleen whales), including
their migration and feeding patterns, by
tracking them through their
vocalizations. This Program has evolved
into a valuable tool by which the
acoustic activity levels of vocalizing
whales can be quantitatively
documented and trends of oceanic
ocean noise levels measured over
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ecologically meaningful ocean scales
and time periods under varying noise
conditions.
As part of the research and
monitoring component of the SURTASS
LFA sonar program, M3 data are
collected to:
• Document occurrence, distribution,
and behaviors of acoustically active
whale species over ocean basin and
decadal scales;
• Assess changes in marine mammal
activity levels under normal conditions
(e.g., weather, wind, time of year, or
time of day) relative to acoustic
conditions with varying levels of
anthropogenic noise (e.g., seismic
activities, naval sonar, shipping, or
fishing activities);
• Inform environmental assessments
of current and future anti-submarine
warfare systems; and
• Assemble a long-term database of
ocean ambient noise data to enable
scientifically-based evaluations of
potential influences on cetaceans or
other species.
Acoustic data collected and archived
by the M3 program allow program
analysts to statistically quantify how
cetacean acoustic behaviors are affected
by various factors, such as ocean basin
topographic features, hydrographic
conditions, seasonality, time, weather
conditions, and ambient noise
conditions. The compiled acoustic data
can be used to estimate the total number
of vocalizing whales per unit area as
well as document the seasonal or
localized movements of individual
animals. In addition, observations over
time can also show the interaction and
influence of noise sources on large
whale behavior.
At present, the M3 Program’s data are
classified, as are the data reports created
by M3 Program analysts, due to the
inclusion of sensitive national security
information. The Navy continues to
assess and analyze M3 Program data
collected from Navy passive acoustic
monitoring systems and is working
toward making some portion of that data
(after appropriate security reviews)
available to scientists with appropriate
clearances and ultimately to the public.
Additionally, data summaries are shared
with NMFS analysts with appropriate
clearances. There has been some
progress on addressing security
concerns and declassifying a report of
fin whale singing and swimming
behaviors (DoN, 2015; Clark et al.,
2019). In addition, the Navy has shared
information on detections of western
gray whale vocalizations with the IUCN
on possible wintering areas for this
species.
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Additional Ranked Monitoring Projects
Under Consideration
Due to research indicating that beaked
whales and harbor porpoises may be
particularly sensitive to a range of
underwater sound (Southall et al., 2007;
Tyack et al., 2011; Kastelein et al.,
2012), in the 2012 rule and LOAs for
these activities, NMFS included
conditions for increasing understanding
of the potential effects of SURTASS LFA
sonar on these taxa. The Navy convened
an independent Scientific Advisory
Group (SAG), composed of six scientists
affiliated with two universities, one
Federal agency (NMFS), and three
private research and consultancy firms,
to investigate and assess different types
of research and monitoring methods that
could increase the understanding of the
potential effects to beaked whales and
harbor porpoises from exposure to
SURTASS LFA sonar transmissions.
The SAG submitted a report (‘‘Potential
Effects of SURTASS LFA sonar on
Beaked Whales and Harbor Porpoises’’)
describing their monitoring and
research recommendations. This report
was submitted to the Executive
Oversight Group (EOG) for SURTASS
LFA sonar, which is comprised of
representatives from the U.S. Navy
(Chair, OPNAV N2/N6F24), Office of the
Deputy Assistant Secretary of the Navy
for the Environment, Office of Naval
Research, Navy Living Marine
Resources Program, and the NMFS
Office of Protected Resources (OPR)
Permits and Conservation Division. The
EOG met twice in 2014 to review and
further discuss the research
recommendations put forth by the SAG,
the feasibility of implementing any of
the research efforts, and existing
budgetary constraints. Representatives
from the Marine Mammal Commission
also attended EOG meetings as
observers. In addition to the SAG
recommendations, promising
suggestions for monitoring and research
were recommended for consideration by
the EOG. The EOG considered which
efforts would be most effective, given
existing budgetary constraints, and the
Navy has submitted the outcome of this
study to NMFS.
In summary, after consideration of the
SAG recommendations and the inputs
provided by the EOG, the research
monitoring studies were ranked as
follows. In addition to the topic, the
approximate cost of the research effort
is also listed. Those study topics which
the Navy has invested in since the EOG
recommendations are also indicated
below.
The category of research
recommendations that were ranked
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highest included those estimated to cost
less than $100,000.
1. Desktop study of potential overlap
of harbor porpoise habitat by SURTASS
LFA sonar transmissions. The Navy
funded this study and the report has
been submitted to NMFS. In summary
the report finds that, while harbor
porpoises could potentially be exposed
to SURTASS LFA sonar transmissions,
exposure is likely to occur at reduced
sound levels with limited potential for
behavioral responses. The full report is
available at https://www.surtass-lfaeis.com.
2. Review of existing high frequency
acoustic recording package (HARP) data
to determine spatiotemporal overlap
with SURTASS LFA missions. NMFS
consulted with scientists at NOAA’s
Pacific Islands Fisheries Science Center
about deployments in the western and
central North Pacific and Scripps
Institution of Oceanography about
deployments in the eastern North
Pacific. Since the EOG, BaumannPickering et al. (2014) presented the
results of over eleven cumulative years
of HARP deployments in the North
Pacific, which may overlap with
SURTASS LFA missions. It would be
fairly straightforward and require
minimal cost to determine the
spatiotemporal overlap of HARP
deployments and LFA missions. If it
was determined that overlap existed, the
cost for data analysis would depend on
the amount of overlap.
The second-highest ranked group of
recommendations consisted of studies
that are estimated to cost in the
$100,000–$500,000 range, but for which
methodologies exist and
implementation would extend existing
studies.
1. Targeted deployment of one HARP
sensor in the western North Pacific for
one year; approximate estimated cost of
$250,000. The objective of this study
would be to document beaked whale
vocal behavior before, during, and after
LFA sonar transmissions. Careful
consideration of lessons learned from
previous deployments would be needed
to increase the probability of a
successful project (i.e., BaumannPickering et al., 2014 and as described
in the reports of previous studies using
HARPs located at https://www.navy
marinespeciesmonitoring.us/).
2. Anatomical modeling of LF sound
reception by beaked whales;
approximate estimated cost of
$150,000–$200,000. Since the EOG
meetings in 2014, Cranford and Krysl
(2015) presented a synthetic audiogram
for a fin whale, predicted based
predominantly on bone conduction of
sound through the head to the ear.
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NMFS (2016) noted that the predicted
audiogram does not match the typical
U-shaped audiogram expected with
normal hearing in mammals in that
there is a ‘‘hump’’ at low frequencies
and shallow roll-off of sensitivity at
high frequencies. Given these
difficulties, additional funding would
be required to determine the source of
the abnormal results. The Navy is
continuing to invest in LF cetacean
audiogram development and recently
released a Broad Agency Announcement
in coordination with the Subcommittee
on Ocean Science and Technology—
Ocean Noise and Marine Life Task force
to make further investment in this area.
The final group of recommendations
are studies that require additional
methodological developments and/or
would cost greater than $500,000.
1. Controlled exposure estimates
(CEE) for beaked whales with an
appropriate LF source. There are many
complexities associated with this
recommendation, even more so
considering the results of the ongoing
mid-frequency sonar behavioral
response studies (BRS) demonstrating
the importance of real-world exposures
for characterizing behavioral responses.
It is possible that existing LF sources
already in use on Navy ranges could be
surrogates for SURTASS LFA sonar, but
such extrapolations would need to be
considered carefully. SURTASS LFA
sonar is currently authorized for use in
the western and central North Pacific
and Indian oceans, regions in which
controlled exposure experiments (CEEs)
have not been conducted, making
experiments with the LFA sonar system
itself particularly difficult. Given the
cost and complexities associated with
this recommendation, it was ranked as
a lower priority. This recommendation
should also be revisited with future
development of tagging technologies for
harbor porpoises.
2. LF behavioral audiograms for
harbor porpoise or LF auditory
brainstem response/auditory evoked
potential (ABR/AEP) audiograms for
beaked whales. Since the EOG
concluded, the Navy funded a study led
by Dr. James Finneran (https://
greenfleet.dodlive.mil/files/2017/05/
LMRFactSheet_Project9.pdf) to correlate
AEP measurements of hearing
sensitivity with perceived loudness
(Muslow et al., 2015). Part of this study
included attempts to extend the LF
range of AEP measurements, which may
be transferable to studies of hearing
sensitivity of harbor porpoise or beaked
whales. There are difficulties with the
transmission of LF sounds, in achieving
the required power with manageable
laboratory systems and creating a far-
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field sound field consistent across the
measurement experiment. The final
results of the study have not been
published yet, but the study found that
AEPs were only successful down to
frequencies of 10 kHz for bottlenose
dolphins (where 10 kHz is the upper
range of what is considered midfrequency) and 1 kHz for California sea
lions (the upper range of what is
considered low-frequency). In addition,
the correlation of equal latency contours
only applied over a limited frequency
range, providing limited benefit beyond
the frequency range of auditory
thresholds. Therefore, it is currently not
feasible to conduct ABR/AEPs at
frequencies within the range of
SURTASS LFA sonar (100 to 500 Hz).
Finally, the Navy funded audiograms
and TTS studies for harbor porpoise
across its entire frequency range
(Kastelein et al., 2017). This study
reported the hearing sensitivity of a sixyear-old female and a three-year-old
male harbor porpoise as measured by
using a standard psycho-acoustic
technique under low ambient noise
conditions. The porpoises’ hearing
thresholds for 13 narrow-band sweeps
with center frequencies between 0.125
and 150 kHz were established. The
range of most sensitive hearing (defined
as within 10 dB of maximum
sensitivity) was from 16 to 140 kHz.
Sensitivity declined sharply above 125
kHz. Hearing sensitivity in the low
frequencies 125 Hz to 1 kHz were 40–
80 dB above their maximum sensitivity.
The Navy has obtained a permit from
the NMFS marine mammal health and
stranding program to conduct an AEP
audiogram on a stranded beaked whale,
but to date none have stranded alive in
an area with staff suitable to conduct the
testing. The Navy will continue to seek
opportunities to conduct such research
should they arise.
The ranking of research and
monitoring recommendations has
helped inform Navy and NMFS decision
makers of the scientific priority,
feasibility, and cost of possible
experiments to increase understanding
of potential effects of SURTASS LFA
sonar on harbor porpoises and beaked
whales. Discussions among Navy
decision makers from OPNAV N2/
N974B/N45, Office of the Deputy
Assistant Secretary of the Navy for the
Environment, Office of Naval Research,
and Navy Living Marine Resources
Program will continue to leverage
research among various programs.
Ongoing discussions between Navy and
NMFS will continue to evaluate the
most efficient and cost-effective way
forward for Navy research and
environmental compliance monitoring
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efforts once the amount of funding
authorized is known.
Ambient Noise Data Monitoring
Several efforts (Federal and academic)
are underway to develop a
comprehensive ocean noise budget (i.e.,
an accounting of the relative
contributions of various underwater
sources to the ocean noise field) for the
world’s oceans that includes both
anthropogenic and natural sources of
noise. Ocean noise distribution and
noise budgets are used in marine
mammal masking studies, habitat
characterization, and marine animal
impact analyses.
The Navy will collect ambient noise
data when the SURTASS passive towed
horizontal line array is deployed.
However, because the collected ambient
noise data may also contain sensitive
acoustic information, the Navy classifies
the data, and thus does not make these
data publicly available. The Navy is
exploring the feasibility of declassifying
and archiving portions of the ambient
noise data for incorporation into
appropriate ocean noise budget efforts
after all related security concerns have
been resolved.
The Navy will evaluate the feasibility
and appropriate methods to collect new
data to supplement the data available on
behavioral responses of marine
mammals to SURTASS LFA sonar using
newer methods and technologies. These
types of scientific inquiries fit within
the scope the Navy’s Living Marine
Resources (LMR) program. The LMR
program weighs the various Navy
research needs against each other
through a needs and solicitation
process. The Navy has submitted a
needs statement to the LMR advisory
committee to research future data
collection that would supplement
understanding of how SURTASS LFA
sonar may affect marine resources,
including mysticetes and beaked
whales. The LMR program assesses
Navy data needs through an iterative
process in which each submitted need
is evaluated and ranked by an advisory
committee. Prior to implementing any
potential behavioral response study, the
feasibility must be evaluated and a
research plan must be developed. The
LMR process is the primary mechanism
which the Navy uses to solicit expert
assistance for marine resource
investigations.
Research
The Navy sponsors significant
research for marine living resources to
study the potential effects of its
activities on marine mammals. OPNAV
N974B provides a representative to the
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Navy’s Living Marine Resources
advisory board to provide input to
future research projects that may
address SURTASS LFA sonar needs.
The most recently available data are for
Fiscal Year 2015, in which the Navy
reported that it spent $35.9 million that
year on marine mammal research and
conservation (Marine Mammal
Commission, 2017). This ongoing
marine mammal research relates to
hearing and hearing sensitivity, auditory
effects, marine mammal monitoring and
detection, noise impacts, behavioral
responses, diving physiology and
physiological stress, and distribution.
The Navy sponsors a significant portion
of U.S. research on the effects of humangenerated underwater sound on marine
mammals and approximately 50 percent
of such research conducted worldwide.
These research projects may not be
specifically related to SURTASS LFA
sonar activities; however, they are
crucial to the overall knowledge base on
marine mammals and the potential
effects from underwater anthropogenic
noise. The Navy also sponsors research
to determine marine mammal
abundances and densities for all Navy
ranges and other operational areas. The
Navy notes that research and evaluation
is being carried out on various
monitoring and mitigation methods,
including passive acoustic monitoring,
and the results from this research could
be applicable to SURTASS LFA sonar
passive acoustic monitoring. The Navy
has also sponsored several workshops to
evaluate the current state of knowledge
and potential for future acoustic
monitoring of marine mammals. The
workshops bring together underwater
acoustic subject matter experts and
marine biologists from the Navy and
other research organizations to present
data and information on current
acoustic monitoring research efforts,
and to evaluate the potential for
incorporating similar technology and
methods on Navy instrumented ranges.
Reporting
In order to issue an ITA for an
activity, section 101(a)(5)(A) of the
MMPA states that NMFS must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ Effective reporting is critical
both to compliance and to ensuring that
the most value is obtained from the
required monitoring. There are several
different reporting requirements in these
regulations:
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Notification of the Discovery of a
Stranded Marine Mammal 9
The Navy will systematically observe
during SURTASS LFA sonar activities
for injured or disabled marine
mammals. In addition, the Navy will
monitor the principal marine mammal
stranding networks and other media to
correlate analysis of any whale mass
strandings that could potentially be
associated with SURTASS LFA sonar
activities.
Minimization of Harm to Live-Stranded
(or Milling) Marine Mammals
In the event of a live stranding (or
near-shore atypical milling) event,
NMFS will advise the Navy of the need
to implement shutdown procedures for
any use of SURTASS LFA sonar within
50 km (27 nmi) of the stranding.
Following this initial shutdown, NMFS
will communicate with the Navy to
determine if circumstances support any
modification of the shutdown zone. The
Navy may decline to implement all or
part of the shutdown if the holder of the
LOA, or his/her designee, determines
that it is necessary for national security.
Shutdown procedures for live stranding
or milling marine mammals include the
following:
• If at any time, the marine
mammal(s) die or are euthanized, or if
herding/intervention efforts that were
occurring are stopped, NMFS
(individuals specifically identified in
the Stranding Communication Protocol)
will immediately advise the Navy that
the shutdown around that animal(s)’
location is no longer needed;
• Otherwise, shutdown procedures
will remain in effect until NMFS
(individuals specifically identified in
the Stranding Communication Protocol)
determines and advises the Navy that all
live animals involved have left the area
(either of their own volition or following
an intervention); and
• If further observations of the marine
mammals indicate the potential for restranding, additional coordination with
the Navy may be required to determine
what measures are necessary to
minimize that likelihood (e.g.,
9 As defined in section 410 of the MMPA (16
U.S.C. 1421h), ‘‘stranding’’ means ‘‘an event in the
wild in which (A) a marine mammal is dead and
is (i) on a beach or shore of the United States, or
(ii) in waters under the jurisdiction of the United
States (including any navigable waters); or (B) a
marine mammal is alive and is (i) on a beach or
shore of the United States and unable to return to
the water; (ii) on a beach or shore of the United
States and, although able to return to the water, is
in need of apparent medical attention; or (iii) in the
waters under the jurisdiction of the United States
(including any navigable waters), but is unable to
return to its natural habitat under its own power or
without assistance.’’
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extending the shutdown or moving
operations farther away) and to
implement those measures as
appropriate.
Shutdown procedures are not related
to the investigation of the cause of the
stranding and their implementation is
not intended to imply that Navy activity
is the cause of the stranding. Rather,
shutdown procedures are intended to
protect marine mammals exhibiting
indicators of distress by minimizing
their exposure to possible additional
stressors, regardless of the factors that
contributed to the stranding.
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Navy Discovery of Any Stranded Marine
Mammal
In the event that Navy personnel
(uniformed military, civilian, or
contractors conducting Navy work)
associated with operating a T–AGOS
class vessel discover a live or dead
stranded marine mammal at sea, the
Navy shall report the incident to NMFS
(see communication protocols below) as
soon as is feasible. The Navy will
provide NMFS with:
• Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
• Species identification (if known) or
description of the marine mammal(s)
involved;
• Condition of the marine mammal(s)
(including carcass condition if the
marine mammal is dead);
• Observed behaviors of the marine
mammal(s), if alive;
• If available, photographs or video
footage of the marine mammal(s); and
• General circumstances under which
the marine mammal was discovered
(e.g., vessel transit).
Vessel Strike
In the event of a ship strike of a
marine mammal by any T–AGOS class
vessel, the Navy shall immediately
report, or as soon as security clearance
procedures and safety conditions allow,
the information above in Discovery of
Any Stranded Marine Mammal
subsection, to NMFS. As soon as
feasible, but no later than seven (7)
business days, the Navy shall
additionally report to NMFS, the:
• Vessel’s speed during and leading
up to the incident;
• Vessel’s course/heading and what
training or testing activity was being
conducted (if applicable);
• Status of all sound sources in use
(e.g., active sonar);
• Description of avoidance measures/
requirements that were in place at the
time of the strike and what additional
measures were taken, if any, to avoid
marine mammal strike;
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• Environmental conditions (e.g.,
wind speed and direction, Beaufort sea
state, cloud cover, visibility)
immediately preceding the marine
mammal strike;
• Estimated size and length of marine
mammal that was struck;
• Description of the behavior of the
marine mammal immediately preceding
and following the strike;
• If available, description of the
presence and behavior of any other
marine mammals immediately
preceding the strike;
• Estimated fate of the marine
mammal (e.g., dead, injured but alive,
injured and moving, blood or tissue
observed in the water, status unknown,
disappeared, etc.);
• To the extent practicable,
photographs or video footage of the
struck marine mammal(s); and
• Any relevant information
discovered during Navy’s investigation
of the ship strike.
Annual Report
The classified and unclassified annual
reports, which are due annually no later
than 90 days after the anniversary of the
effective date of the seven-year LOA,
will provide NMFS with a summary of
the prior year’s training and testing
transmission hours. Specifically, the
classified reports will include dates/
times of exercises, location of vessel,
mission operational area, marine
mammal observations, and records of
any delays or suspensions of activities.
Marine mammal observations will
include animal type and/or species,
number of animals sighted by species,
date and time of observations, type of
detection (visual, passive acoustic, HF/
M3 sonar), the animal’s bearing and
range from vessel, behavior, and
remarks/narrative (as necessary). The
classified reports will also include the
Navy’s analysis of take by Level B
harassment and estimates of the
percentage of marine mammal stocks
affected for the year by SURTASS LFA
sonar training and testing activities. The
Navy’s estimates of the percentage of
marine mammal stocks and number of
individual marine mammals affected by
exposure to SURTASS LFA sonar
transmissions will be derived using
acoustic impact modeling based on
operating locations, season of missions,
system characteristics, oceanographic
environmental conditions, and marine
mammal demographics.
Additionally, the annual report will
include: (1) Analysis of the effectiveness
of the mitigation measures with
recommendations for improvements
where applicable; (2) assessment of any
long-term effects from SURTASS LFA
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sonar activities; and (3) any discernible
or estimated cumulative impacts from
SURTASS LFA sonar training and
testing activities.
Comprehensive Report
The Navy will provide to NMFS and
the public a final comprehensive report
analyzing the impacts of SURTASS LFA
sonar training and testing activities on
marine mammal species and stocks.
This report will include an in-depth
analysis of all monitoring and Navyfunded research pertinent to SURTASS
LFA sonar activities conducted during
the seven-year period of this rule, a
scientific assessment of cumulative
impacts on marine mammal stocks, and
an analysis on the advancement of
alternative (passive) technologies as a
replacement for LFA sonar. This report
will be a key document for NMFS’
review and assessment of impacts for
any future rulemaking.
The Navy will respond to NMFS’
comments and requests for additional
information or clarification on the
annual or comprehensive reports. These
reports will be considered final after the
Navy has adequately addressed NMFS’
comments or provided the requested
information, or three months after the
submittal of the draft if NMFS does not
comment within the three-month time
period. NMFS will post the annual and
comprehensive reports online at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities.
Adaptive Management
Our understanding about marine
mammals and the potential effects of
SURTASS LFA sonar on marine
mammals is continually evolving.
Reflecting this, this final rule again
includes an adaptive management
framework. This allows the agencies to
consider new/revised peer-reviewed
and published scientific data and/or
other information from qualified and
recognized sources within academia,
industry, and government/nongovernment organizations to determine
(with input regarding practicability)
whether SURTASS LFA sonar
mitigation, monitoring, or reporting
measures should be modified (including
additions or deletions), and to make
such modification if new scientific data
indicate that they would be appropriate.
Under this final rule, substantial
modifications will be made only after a
30-day period of public review and
comment. Substantial modifications
include a change in training and testing
areas, or significant changes to
mitigation.
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As discussed in the Mitigation section
above, NMFS and Navy have refined the
adaptive management process for this
rule compared to previous rulemakings.
In the 2012 rule, NMFS and the Navy
annually considered how new
information, from anywhere in the
world, should be considered in an
adaptive management context—
including whether this new information
would support the identification of new
OBIAs or other mitigation measures.
Moving forward, new information will
still be considered annually, but only
for the purposes of OBIA identification
in the context of the areas covered by
this rule (i.e., the Study Area in the
western and central North Pacific and
eastern Indian Oceans in which
SURTASS LFA assets will train and
test).
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes alone is not enough information
on which to base an impact
determination. In addition to
considering the numbers of marine
mammals that might be taken through
mortality, serious injury, and Level A
harassment or Level B harassment
(although only Level B harassment is
considered for authorization under this
final rule), NMFS considers other
factors, such as the likely nature of any
responses (e.g., intensity and duration),
the context of any response (e.g., critical
reproductive time or location,
migration, etc.), as well as effects on
habitat, the status of the affected stocks,
and the likely effectiveness of the
mitigation. We also assess the number,
intensity, and context of estimated takes
by evaluating this information relative
to population status. Consistent with the
1989 preamble for NMFS’ implementing
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into these analyses via
their impacts on the environmental
baseline (e.g., as reflected in the
regulatory status of the species,
population size, and growth rate where
known, ongoing sources of humancaused mortality, or ambient noise
levels).
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To avoid repetition, the discussion of
our analyses applies to all the stocks
listed in Table 17 (including those for
which density and take estimates have
been pooled), because the anticipated
effects of the specified activities on
these different marine mammal stocks
are expected to be similar, given the
operational parameters of the activities.
While there are differences in the
hearing sensitivity of different groups,
these differences have been factored
into the analysis for auditory
impairment. However, the nature of
their behavioral responses is expected to
be similar for SURTASS LFA sonar,
especially given the context of their
short duration and open ocean
exposures. Additionally, with the
operational avoidance of areas (and
additional transmission hour limitations
year, no more than 124 hours in years
1–4 and 148 hours in years 5–7) that are
designated for specific biologically
important reasons and coastal standoff
zones, and the anticipated low-level
effects, there is no need to differentially
evaluate species or stocks based on
varying status. Where there is a notable
difference in the proportion of
authorized takes (as compared to
abundance) for two species, we
explicitly address it below.
The Navy has described its specified
activities based on best estimates of the
number of hours that the Navy will
conduct SURTASS LFA sonar training
and testing activities. The exact number
of transmission hours may vary from
year to year, but will not exceed the
annual total of 496 transmission hours
for all vessels in years 1–4 (currently
four vessels), or the annual total of 592
transmission hours for all vessels in
years 5–7 regardless of the number of
vessels in use (previous SURTASS LFA
sonar rulemakings evaluated and
authorized 432 transmission hours per
vessel per year).
As mentioned previously, NMFS
estimates that 46 species of marine
mammals representing 139 stocks could
be taken by Level B harassment over the
course of the seven-year period. For
reasons stated previously, no mortalities
or injuries are anticipated to occur as a
result of the Navy’s proposed SURTASS
LFA sonar training and testing
activities, and none are authorized by
NMFS. The Navy has operated
SURTASS LFA sonar under NMFS
regulations for the last 17 years without
any reports of serious injury or death.
The evidence to date, including recent
scientific reports, annual monitoring
reports, and 17 years of Navy experience
conducting SURTASS LFA sonar
activities, further supports the
conclusion that the potential for injury,
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and particularly serious injury, to occur
is minimal.
Regarding the potential for mortality,
as described previously, neither
acoustic impacts resulting in stranding
nor ship strikes are expected to result
from SURTASS LFA sonar training and
testing activities. There is no empirical
evidence of strandings or ship strikes of
marine mammals associated spatially or
temporally with the employment of
SURTASS LFA sonar. Moreover, the
sonar system acoustic characteristics
differ between LFA sonar and MF
sonars that have been associated with
strandings: LFA sonars use frequencies
from 100 to 500 Hz, with relatively long
signals (pulses, with average length of
60 sec), while MF sonars use
frequencies greater than 1,000 Hz, with
relatively short signals on the order of
1 sec. NMFS also makes a distinction
between the common features shared by
the stranding events associated with MF
sonar in Greece (1996), Bahamas (2000),
Madeira (2000), Canary Islands (2002),
Hanalei Bay (2004), and Spain (2006),
referenced in the Potential Effects of
Specified Activities on Marine
Mammals and Their Habitat section of
the proposed rule (84 FR 7186; March
1, 2019). These included operation of
MF sonar, deep water close to land
(such as offshore canyons), presence of
an acoustic waveguide (surface duct
conditions), and periodic sequences of
transient pulses (i.e., rapid onset and
decay times) generated at depths less
than 32.8 ft (10 m) by sound sources
moving at speeds of 2.6 m/s (5.1 knots)
or more during sonar operations
(D’Spain et al., 2006). None of these
factors are present in SURTASS LFA
sonar training and testing activities.
Regarding the potential for ship strike,
given the small number of vessels, low
densities of marine mammals in the area
of operation, mitigation, and slow ship
speeds, the potential of strike is so low
as to be discountable.
NMFS neither anticipates nor
authorizes Level A harassment of
marine mammals as a result of specified
activities. The mitigation measures
(including visual monitoring along with
active and passive acoustic monitoring,
which together have been shown to be
over 98 percent effective at detecting
marine mammals, approaching 100
percent for multiple HF/M3 pings of any
sized marine mammal), and
implementing a shutdown zone of 2,000
yds around the LFA sonar array and
vessel) would allow the Navy to avoid
exposing marine mammals to received
levels of SURTASS LFA sonar or HF/M3
sonar sound that would result in injury
(Level A harassment). Additionally, as
discussed in the Estimated Take of
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Marine Mammals section, TTS and
more severe behavioral reactions will
also be minimized due to mitigation
measures, so that the majority of takes
will be expected to be in the form of less
severe Level B harassment.
As noted above, the context of
exposures is important in evaluating the
ultimate impacts of Level B harassment
on individuals. In the case of SURTASS
LFA sonar, the approaching sound
source would be moving through the
open ocean at low speeds, so concerns
of noise exposure are somewhat lower
in this context compared to situations
where animals may not be as able to
avoid strong or rapidly approaching
sound sources. In addition, the duration
of the take is important; in the case of
SURTASS LFA sonar, the vessel
continues to move and any interruption
of behavior would be of relatively short
duration. Further, NMFS and the Navy
have imposed geographic restrictions
that minimize behavioral disruption in
times and areas where impacts would be
more likely to lead to effects on
individual fitness that could impact the
species or stock.
For SURTASS LFA sonar training and
testing activities, the Navy provided
information (Table 7–1 of the Navy’s
application) estimating incidental take
numbers and percentages of marine
mammal stocks that could potentially
occur due to SURTASS LFA sonar
training and testing activities based on
the 15 model areas in the central and
western North Pacific and eastern
Indian Oceans. Based on our evaluation,
incidental take from the specified
activities associated with SURTASS
LFA sonar training and testing activities
will most likely fall within the realm of
short-term and temporary, or ephemeral,
disruption of behavioral patterns (Level
B harassment), will not include Level A
harassment, and is not expected to
impact reproduction or survival of
individuals. NMFS bases this
assessment on a number of factors
(discussed in more detail in previous
sections) considered together:
(1) Geographic Restrictions—The
coastal standoff and OBIA geographic
restrictions on SURTASS LFA sonar
training and testing activities are
expected to minimize the likelihood of
disruption of marine mammals in areas
where important behavior patterns such
as migration, calving, breeding, feeding,
or sheltering occur, or in areas with
small resident populations or higher
densities of marine mammals. As a
result, the takes that occur are less likely
to result in energetic effects or
disturbances of other important
behaviors that would reduce
reproductive success or survivorship.
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(2) Low Frequency Sonar Scientific
Research Program (LFS SRP)—The Navy
designed the three-phase LFS SRP study
to assess the potential impacts of
SURTASS LFA sonar on the behavior of
low-frequency hearing specialists, those
species believed to be at (potentially)
greatest risk due to the presumed
overlap in hearing of these species and
the frequencies at which SURTASS LFA
sonar is operated. This field research
addressed three important behavioral
contexts for baleen whales: (1) Blue and
fin whales feeding in the southern
California Bight, (2) gray whales
migrating past the central California
coast, and (3) humpback whales
breeding off Hawaii. These experiments,
which exposed baleen whales to
received levels ranging from 120 to
approximately 155 dB re: 1 mPa,
confirmed that some portion of the total
number of whales exposed to LFA sonar
responded behaviorally by changing
their vocal activity, moving away from
the source vessel, or both, but the
responses were short-lived and animals
returned to their normal activities
within tens of minutes after initial
exposure. While some of the observed
responses would likely be considered
‘‘take’’ under the MMPA, these shortterm behavioral responses do not
necessarily constitute significant
changes in biologically important
behaviors, such as those that might be
expected to affect individual fitness. In
addition, these experiments illustrated
that the context of an exposure scenario
is important for determining the
probability, magnitude, and duration of
a response. This was shown by the fact
that migrating gray whales responded to
a sound source in the middle of their
migration route but showed no response
to the same sound source when it was
located father offshore, outside the
migratory corridor, even when the
source level was increased to maintain
the same received levels within the
migratory corridor.
Although the LFS SRP study is two
decades old, the collected behavioral
response data remain valid and highly
relevant because of the lack of
additional studies utilizing this specific
source, but also because the data show,
as reflected in newer studies with other
sound sources, that the context of an
exposure (novelty of the sound source,
distance from the sound source and
activity of the animals experiencing
exposure, and whether the source is
perceived as approaching or moving
away, etc.) is as important as, the source
level and frequency in terms of
assessing reactions (see the Behavioral
Response/Disturbance section of the
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Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
section in the proposed rule (84 FR
7186) for discussion of more recent
studies regarding context). Therefore,
take estimates for SURTASS LFA sonar
are likely conservative (though we
analyze them here nonetheless), and
takes that do occur will primarily be in
the form of lower levels of take by Level
B harassment.
(3) Efficacy of the Navy’s Three-Part
Mitigation Monitoring Program—
Review of Final Comprehensive and
Annual Reports, from August 2002
through December 2018, indicates that
the HF/M3 active sonar system has
proven to be the most effective of the
mitigation monitoring measures to
detect possible marine mammals in
proximity to the transmitting LFA sonar
array, and use of this system
substantially increases the probability of
detecting marine mammals within the
mitigation zone (and beyond), providing
a superior monitoring capability.
Because the HF/M3 active sonar is able
to monitor marine mammals out to an
effective range of 2 to 2.5 km (1.2 to 1.5
mi; 1.1 to 1.3 nmi) from the vessel, it is
unlikely that the SURTASS LFA sonar
operations would expose marine
mammals to an SPL greater than
approximately 174 dB re: 1 mPa rms.
The combination of visual, passive
acoustic, and active acoustic (HF/M3)
monitoring results in near 100 percent
probability of detection for a mediumsized (approximately 33 ft (10 m))
marine mammal swimming towards the
system before the animal enters the LFA
sonar mitigation zone (see Ellison and
Stein, 2001 and Chapter 5, section 5.4.3
of the 2019 SURTASS LFA FSEIS/
SOEIS for a summary of the
effectiveness of the HF/M3 monitoring
system). Lastly, as noted above, from the
commencement of SURTASS LFA sonar
use in 2002 through the present, neither
operation of LFA sonar, nor operation of
the T–AGOS vessels, has been
associated with any mass or individual
strandings of marine mammals. In
addition, required monitoring reports
indicate that there have been no
apparent marine mammal avoidance
reactions observed, and no observed
marine mammal exposures to sound
levels associated with Level A
harassment takes due to SURTASS LFA
sonar since its use began in 2002.
In examining the results of the
mitigation monitoring procedures over
the previous 17 years of SURTASS LFA
activities, NMFS has concluded that the
mitigation and monitoring measures for
triggering shutdowns of the LFA sonar
system have been implemented properly
and have successfully minimized the
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potential adverse effects of SURTASS
LFA sonar to marine mammals in the
LFA sonar mitigation zone around the
vessel. This conclusion is further
supported by documentation that no
known mortality or injury to marine
mammals has occurred over this period.
For reasons discussed in the Potential
Effects of the Specified Activity on
Marine Mammals and their Habitat
section (see the proposed rule (84 FR
7186)), NMFS anticipates that the effect
of masking will be limited and the
chances of an LFA sonar sound
overlapping whale calls at levels that
would interfere with their detection and
recognition will be extremely low.
NMFS does not expect any short- or
long-term effects to marine mammal
food resources from SURTASS LFA
sonar training and testing activities. It is
unlikely that the activities of the
SURTASS LFA sonar vessels
transmitting LFA sonar at any place in
the action area over the course of a year
would implicate all of the areas for a
given species or stock in any year. It is
anticipated that ample similar nearby
habitat areas are available for species/
stocks in the event that portions of
preferred areas are ensonified.
Implementation of the 2,000-yd LFA
sonar mitigation zone (shutdown zone)
would ensure that most marine mammal
takes are limited to lower-level Level B
harassment. Further, potential impacts
in areas of known or likely biological
importance for functions such as
feeding, reproduction, etc., effects are
mitigated by the coastal standoff zone
and OBIAs.
As noted above, because of the nature,
scale, and locations of SURTASS LFA
sonar training and testing, there is no
reason to expect meaningfully
differential impacts on any particular
species or stock that warrant additional
discussion. However, we include the
following to ensure understanding of
the two cases where the percentages of
stocks taken are notably higher
compared to other stocks. As also noted
previously, the modeling the Navy uses
allows for the enumeration of instances
of take—each representing an exposure
above the Level B harassment threshold
of a single marine mammal for some
amount of time (likely relatively short)
within a single day. The model does not
predict how many of these instances for
a given species or stock may occur as
multiple, or repeated, takes to a single
individual. Given the nature (small
number of ships and relatively few
hours across two ocean basins) and
location of the activity (beyond coastal
exclusion in open ocean, areas where
species/stocks are not concentrated as
much), as well as the relatively small
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percentages of take compared to
abundance for most stocks (the vast
majority below 10 percent, 12 stocks in
the 10–20 percent range, and a handful
ranging from 20–67 percent) and the fact
that takes of single stocks are expected
across multiple regions, we expect that
most individuals taken are taken only
once in a year with some small subset
taken perhaps a few times in the course
of a year. However, two stocks have
somewhat higher percentages that we
note here. When estimated instances of
take are compared to the estimated stock
abundances, the percentages are 117
and 321 for the Western North Pacific
stock of killer whales and the Western
North Pacific stock of humpback
whales, respectively. Acknowledging
the uncertainty surrounding abundance
estimates for the Navy’s action area, it
is still worth noting that these
percentages are notably higher than
others, and would suggest that some
number of individuals are expected to
be taken more than once. It indicates the
possibility that some individuals are
taken several times within a year, as the
percentage exceeds 100 percent. For
example, for the Western North Pacific
stock of humpback whales, the average
number of takes would be three or more
per individual. It is unlikely that takes
would be exactly evenly distributed
across all individuals, and it is therefore
more reasonable to assume that some
number of individuals would be taken
fewer than three times, while others
would be taken on more than three
days, and we assume up to twice this
(i.e., one individual could be taken on
six days) for the sake of analysis. Even
where one individual may be taken by
Level B harassment (in the form of
behavioral disturbance or a small degree
of TTS) on up to six days within a year,
given the nature of the activities, there
is no reason to expect that these takes
would be likely to occur on sequential
days or that this magnitude of exposure
within a year would be likely to result
in impacts on reproduction or survival,
especially given the implementation of
mitigation to reduce the severity of
impacts.
For the following summarized
reasons, pulling in the supporting
information both in this section and
previous sections, including material
not repeated from the proposed rule
because it was unchanged, NMFS finds
that the total authorized taking from
SURTASS LFA sonar training and
testing activities will have a negligible
impact on the affected species or stocks:
(1) The small number of SURTASS
LFA sonar systems that will be
operating in the Study Area (likely not
in close proximity to one another) and
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the low total number of hours of
operation planned across all vessels;
(2) The relatively low duty cycle,
short duration of training and testing
events, and offshore nature of the
SURTASS LFA sonar use;
(3) The fact that marine mammals in
unspecified migration corridors and
open ocean concentrations would be
adequately protected from exposure to
sound levels that would result in injury,
most TTS (and any accrued would be
expected to be of a small degree), and
more severe levels of behavioral
disruption by the historical
demonstrated effectiveness of the
Navy’s three-part monitoring program in
detecting marine mammals and
triggering shutdowns;
(4) Geographic restrictions requiring
the SURTASS LFA sonar sound field
not exceed 180 re: 1 mPa rms within 22
km of any shoreline, including islands,
or at a distance of one km from the
perimeter of an OBIA, as well as
limitations on amount of activity near
an OBIA absent additional approvals
through the Navy chain of command,
thereby further limiting the severity and
number of behavioral disturbances in
those areas; and
(5) The proven effectiveness of the
required three-part monitoring and
mitigation protocols.
In summary, based on the analysis
contained herein of the likely effects of
the specified activity on marine
mammals and their habitat, and taking
into consideration the implementation
of the proposed monitoring and
mitigation measures, the authorized
takes are not expected to adversely
affect any species or stock through
impacts on recruitment or survival.
Therefore, NMFS finds that the total
authorized marine mammal take from
the proposed activity will have a
negligible impact on all affected marine
mammal species or stocks.
Subsistence Harvest of Marine
Mammals
The Navy will not operate SURTASS
LFA sonar in Arctic waters nor in the
Gulf of Alaska, or off the Aleutian Island
chain where subsistence uses of marine
mammals protected under the MMPA
occur. Therefore, there are no relevant
subsistence uses of marine mammals
implicated by this action and there will
be no impact on subsistence hunting.
SURTASS LFA sonar will not cause
abandonment of any harvest/hunting
locations, displace any subsistence
users, or place physical barriers between
marine mammals and hunters. NMFS
has determined that the total taking
affecting species or stocks will not have
an unmitigable adverse impact on the
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Endangered Species Act
Eleven marine mammal species under
NMFS’ jurisdiction with confirmed or
possible occurrence in the central and
western North Pacific and eastern
Indian Oceans are listed as endangered
or threatened under the ESA: Blue
whale; fin whale; humpback whale
(Western North Pacific DPS); North
Pacific right whale; sei whale; gray
whale (Western North Pacific DPS);
sperm whale; false killer whale (Main
Hawaiian Islands Insular DPS); Steller
sea lion (western DPS); spotted seal
(Southern DPS); and Hawaiian monk
seal. ESA-designated critical habitat for
Hawaiian monk seals and Main
Hawaiian Island insular false killer
whales is also located in the Study Area.
The Navy consulted with NMFS
pursuant to section 7 of the ESA, and
NMFS also consulted internally on the
issuance of these regulations and LOA
under section 101(a)(5)(A) of the MMPA
for SURTASS LFA sonar training and
testing activities. NMFS issued a
Biological Opinion concluding that the
issuance of the rule and subsequent
LOA is not likely to jeopardize the
continued existence of the threatened
and endangered species under NMFS’
jurisdiction and is not likely to result in
the destruction or adverse modification
of critical habitat in the SURTASS LFA
Study Area. The Biological Opinion for
this action is available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
The USFWS is responsible for
regulating the take of the several marine
mammal species including the polar
bear, walrus, and dugong. The Navy has
determined that none of these species
occur in geographic areas that overlap
with SURTASS LFA sonar activities
and, therefore, that SURTASS LFA
sonar activities will have no effect on
the endangered or threatened species or
the critical habitat of ESA-listed species
under the jurisdiction of the USFWS.
Thus, no consultation with the USFWS
pursuant to Section 7 of the ESA
occurred.
National Marine Sanctuaries Act
Under section 304(d) of the National
Marine Sanctuaries Act (NMSA), federal
agencies are required to consult with
NOAA’s Office of National Marine
Sanctuaries (ONMS) on activities that
are likely to destroy, cause the loss of,
or injure any sanctuary resource, unless
it is determined that consultation is not
required. Based on NMFS’ assessment of
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its action of authorizing incidental take
through MMPA regulations and an LOA
for these Navy activities, NMFS
determined that consultation under the
NMSA is not required.
National Environmental Policy Act
To comply with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321 et seq.) and
NOAA Administrative Order (NAO)
216–6A, NMFS must evaluate our
proposed action (i.e., the promulgation
of regulations and issuance of the LOA)
and alternatives with respect to
potential impacts on the human
environment. NMFS participated as a
cooperating agency on the 2019
SURTASS LFA sonar Final
Supplemental Environmental Impact
Statement/Supplemental Overseas
Environmental Impact Statement
(SURTASS LFA FSEIS/SOEIS) which
was published on July 5, 2019 (84 FR
32168), and is available at https://
www.surtass-lfa-eis.com. In accordance
with 40 CFR 1506.3, NMFS
independently reviewed and evaluated
the 2019 SURTASS LFA FSEIS/SOEIS
and determined that it is adequate and
sufficient to meet our responsibilities
under NEPA for the issuance of this rule
and associated LOA, and adopted the
Navy’s SURTASS LFA FSEIS/SOEIS.
NMFS has prepared a separate Record of
Decision. NMFS’ Record of Decision for
adoption of the SURTASS LFA FSEIS/
SOEIS and issuance of this final rule
and subsequent LOAs can be found at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-militaryreadiness-activities.
Classification
This action does not contain any
collection of information requirements
for purposes of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501
et seq.).
The Office of Management and Budget
has determined that this final rule is not
significant for purposes of Executive
Order 12866.
Pursuant to the Regulatory Flexibility
Act (RFA), the Chief Counsel for
Regulation of the Department of
Commerce certified to the Chief Counsel
for Advocacy of the Small Business
Administration at the proposed rule
stage that this action will not have a
significant economic impact on a
substantial number of small entities.
The RFA requires a Federal agency to
prepare an analysis of a rule’s impact on
small entities whenever the agency is
required to publish a notice of proposed
rulemaking. However, a Federal agency
may certify, pursuant to 5 U.S.C. 605(b),
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Sfmt 4700
40207
that the action will not have a
significant economic impact on a
substantial number of small entities.
The Navy is the sole entity that will be
affected by this rulemaking and is not a
small governmental jurisdiction, small
organization, or small business, as
defined by the RFA. Any requirements
imposed by an LOA issued pursuant to
these regulations, and any monitoring or
reporting requirements imposed by
these regulations, will be applicable
only to the Navy. NMFS does not expect
the issuance of these regulations or the
associated LOA to result in any impacts
to small entities pursuant to the RFA.
Because this action will directly affect
the Navy and not a small entity, NMFS
concludes the action will not result in
a significant economic impact on a
substantial number of small entities. No
comments were received regarding this
certification. As a result, a regulatory
flexibility analysis is not required and
none has been prepared.
Waiver of Delay in Effective Date
NMFS has determined that there is
good cause under the Administrative
Procedure Act (5 U.S.C. 553(d)(3)) to
waive the 30-day delay in the effective
date of this final rule. No individual or
entity other than the Navy is affected by
the provisions of these regulations. The
Navy has informed NMFS that it
requests that this final rule take effect
on or by August 13, 2019, so as to not
cause a disruption in training and
testing activities when the NDE expires
on August 12, 2019. The Navy has a
compelling national security reason to
continue military readiness activities
without interruption to the SURTASS
LFA sonar activities. Suspension or
interruption of the Navy’s ability to
conduct those activities disrupts
adequate and realistic military
readiness, proper operations, and
suitability for combat essential to
national security. NMFS was unable to
accommodate the 30-day delay of the
effectiveness period due to the need for
more time to consider additional
mitigation measures and finalize NEPA
obligations. The waiver of the 30-day
delay of the effective date of the final
rule will ensure that the MMPA final
rule and LOA are in place by the time
the NDE expires. Any delay in finalizing
the rule would result in either: (1) A
suspension of planned naval training
and testing, which would disrupt vital
training and testing essential to national
security; or (2) absent another NDE, the
potential for unauthorized takes of
marine mammals by Navy (should the
Navy conduct training and testing
without an LOA). Moreover, the Navy is
ready to implement the rule
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Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations
immediately. For these reasons, NMFS
finds good cause to waive the 30-day
delay in the effective date. In addition,
the rule authorizes incidental take of
marine mammals that would otherwise
be prohibited under the statute.
Therefore, the rule is granting an
exception to the Navy and relieving
restrictions under the MMPA, which is
a separate basis for waiving the 30-day
effective date for the rule.
List of Subjects in 50 CFR Part 218
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: July 31, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
50 CFR part 218 is amended as follows:
PART 218–REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 218
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq.
■
2. Add subpart X to read as follows:
Subpart X—Taking and Importing of Marine
Mammals; U.S. Navy Surveillance Towed
Array Sensor System Low Frequency Active
(SURTASS LFA) Sonar Training and Testing
in the Central and Western North Pacific
and Eastern Indian Oceans
Sec.
218.230 Specified activity, level of taking,
and species/stocks.
218.231 Effective dates.
218.232 Permissible methods of taking.
218.233 Prohibitions.
218.234 Mitigation.
218.235 Requirements for monitoring.
218.236 Requirements for reporting.
218.237 Letter of Authorization.
218.238 Renewals and modifications of a
Letter of Authorization.
Subpart X—Taking and Importing of
Marine Mammals; U.S. Navy
Surveillance Towed Array Sensor
System Low Frequency Active
(SURTASS LFA) Sonar Training and
Testing in the Central and Western
North Pacific and Eastern Indian
Oceans
§ 218.230 Specified activity, level of taking,
and species/stocks.
Regulations in this subpart apply to
the U.S. Navy (Navy) for the taking of
marine mammals that occurs incidental
to the Navy’s SURTASS LFA sonar
training and testing activities under
authority of the Secretary of the Navy
within the central and western North
Pacific and eastern Indian Oceans
(SURTASS LFA Sonar Study Area)
(Table 1 to § 218.230).
TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR
PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES
Stock 1
Species
Antarctic minke whale ..............................................................................
Blue whale ................................................................................................
Bryde’s whale ...........................................................................................
Common minke whale ..............................................................................
Fin whale ..................................................................................................
Humpback whale ......................................................................................
North Pacific right whale ..........................................................................
Omura’s whale ..........................................................................................
Sei whale ..................................................................................................
jspears on DSK3GMQ082PROD with RULES2
Western North Pacific gray whale ............................................................
Baird’s beaked whale ...............................................................................
Blainville’s beaked whale .........................................................................
Common bottlenose dolphin .....................................................................
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Fmt 4701
ANT.
CNP.
NIND.
WNP.
SIND.
ECS.
Hawaii.
WNP.
NIND.
SIND.
Hawaii.
IND.
WNP JW.
WNP OE.
YS.
ECS.
Hawaii.
IND.
SIND.
WNP.
CNP stock and Hawaii DPS.
WAU stock and DPS.
WNP stock and DPS.
WNP.
NIND.
SIND.
WNP.
Hawaii.
SIND.
NP.
NIND.
WNP stock and Western DPS.
WNP.
Hawaii.
WNP.
IND.
4-Islands.
Hawaii Island.
Hawaii Pelagic.
IA.
IND.
Japanese Coastal.
Kauai/Niihau.
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40209
TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR
PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES—Continued
Stock 1
Species
Common dolphin ......................................................................................
Cuvier’s beaked whale .............................................................................
Dall’s porpoise ..........................................................................................
Deraniyagala’s beaked whale ..................................................................
Dwarf sperm whale ...................................................................................
False killer whale ......................................................................................
Fraser’s dolphin ........................................................................................
Ginkgo-toothed beaked whale ..................................................................
Harbor porpoise ........................................................................................
Hubbs’ beaked whale ...............................................................................
Indo-Pacific bottlenose dolphin ................................................................
Killer whale ...............................................................................................
Kogia spp. .................................................................................................
Longman’s beaked whale .........................................................................
Melon-headed whale ................................................................................
Mesoplodon spp. ......................................................................................
Northern right whale dolphin ....................................................................
Pacific white-sided dolphin .......................................................................
Pantropical spotted dolphin ......................................................................
Pygmy killer whale ....................................................................................
Pygmy sperm whale .................................................................................
jspears on DSK3GMQ082PROD with RULES2
Risso’s dolphin .........................................................................................
Rough-toothed dolphin .............................................................................
Short-finned pilot whale ............................................................................
Southern bottlenose whale .......................................................................
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Jkt 247001
PO 00000
Frm 00079
Fmt 4701
Oahu.
WNP Northern Offshore.
WNP Southern Offshore.
WAU.
IND.
WNP.
Hawaii.
IND.
SH.
WNP.
SOJ dalli type.
WNP dalli ecotype.
WNP truei ecotype.
IND.
NP.
Hawaii.
IND.
WNP.
Hawaii Pelagic.
IA.
IND.
Main Hawaiian Islands Insular stock and DPS.
Northwestern Hawaiian Islands.
WNP.
CNP.
Hawaii.
IND.
WNP.
IND.
NP.
WNP.
NP.
IND.
Hawaii.
IND.
WNP.
WNP.
Hawaii.
IND.
WNP.
Hawaiian Islands.
IND.
Kohala Resident.
WNP.
WNP.
NP.
NP.
4-Islands.
Hawaii Island.
Hawaiian Pelagic.
IND.
Oahu.
WNP.
Hawaii.
IND.
WNP.
Hawaii.
IND.
WNP.
Hawaii.
IA.
WNP.
IND.
Hawaii.
IND.
WNP.
Hawaii.
IND.
WNP Northern Ecotype.
WNP Southern Ecotype.
IND.
Sfmt 4700
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TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR
PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES—Continued
Stock 1
Species
Spade-toothed beaked whale ...................................................................
Sperm whale .............................................................................................
Spinner dolphin .........................................................................................
Stejneger’s beaked whale ........................................................................
Striped dolphin ..........................................................................................
Hawaiian monk seal .................................................................................
Northern fur seal .......................................................................................
Ribbon seal ...............................................................................................
Spotted seal ..............................................................................................
Steller sea lion ..........................................................................................
IND.
Hawaii.
NIND.
NP.
SIND.
Hawaii Island.
Hawaii Pelagic.
IND.
Kauai/Niihau.
Kure/Midway Atoll.
Oahu/4-Islands.
Pearl and Hermes Reef.
WNP.
WNP.
Hawaii.
IND.
Japanese Coastal.
WNP Northern Offshore.
WNP Southern Offshore.
Hawaii.
Western Pacific.
NP.
Alaska stock/Bering Sea DPS.
Southern stock and DPS.
Western/Asian stock and Western DPS.
1 ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP =
Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia;
YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemisphere; DPS = distinct population segment.
§ 218.231
Effective dates.
Regulations in this subpart are
effective from August 13, 2019, through
August 12, 2026.
§ 218.232
Permissible methods of taking.
Under a Letter or Letters of
Authorization (LOA) issued pursuant to
§§ 216.106 of this chapter and 218.237,
the Holder of the LOA (hereinafter
‘‘Navy’’) may incidentally, but not
intentionally, take marine mammals
within the area described in § 218.230
by Level B harassment associated with
SURTASS LFA sonar training and
testing provided the activity is in
compliance with all terms, conditions,
and requirements of the regulations in
this subpart and the applicable LOA.
jspears on DSK3GMQ082PROD with RULES2
§ 218.233
Prohibitions.
Notwithstanding takings
contemplated in § 218.230 and
authorized by a LOA issued under
§§ 216.106 of this chapter and 218.237,
no person in connection with the
activities described in § 218.230 may:
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or a LOA issued under
§§ 216.106 of this chapter and 218.237;
(b) Take any marine mammal not
specified in such LOAs;
(c) Take any marine mammal
specified in such LOAs in any manner
other than Level B harassment;
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Jkt 247001
(d) Take any marine mammal
specified in the LOA if NMFS makes a
determination that such taking is
having, or may have, more than a
negligible impact on the species or
stocks concerned; or
(e) Take a marine mammal specified
in the LOA if NMFS determines such
taking is having, or may have, an
unmitigable adverse impact on
availability of the species or stock for
taking for subsistence uses.
§ 218.234
Mitigation.
When conducting activities identified
in § 218.230, the mitigation measures
described in this section and in any
LOA issued under §§ 216.106 of this
chapter and 218.237 must be
implemented.
(a) Personnel training—lookouts. The
Navy will utilize one or more trained
marine biologists qualified in
conducting at-sea marine mammal
visual monitoring to conduct at-sea
marine mammal visual monitoring
training and qualify designated ship
personnel to conduct at-sea visual
monitoring. Training will ensure quick
and effective communication within the
command structure in order to facilitate
implementation of protective measures
if they detect marine mammals and may
be accomplished either in-person, or via
video training.
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Fmt 4701
Sfmt 4700
(b) General operating procedures. (1)
Prior to SURTASS LFA sonar activities,
the Navy will promulgate executive
guidance for the administration,
execution, and compliance with the
environmental regulations under these
regulations and LOA.
(2) The Navy must not transmit the
SURTASS LFA sonar signal at a
frequency greater than 500 Hz.
(c) 2,000-yard LFA sonar mitigation
zone; suspension and delay. If a marine
mammal is detected, through
monitoring required under § 218.235,
within or about to enter within 2,000
yards of the SURTASS LFA source (i.e.,
the LFA mitigation zone), the Navy
must immediately delay or suspend
SURTASS LFA sonar transmissions.
(d) Resumption of SURTASS LFA
sonar transmissions. (1) The Holder of
a LOA may not resume SURTASS LFA
sonar transmissions earlier than 15
minutes after:
(i) All marine mammals have left the
area of the 2,000-yard LFA sonar
mitigation zone; and
(ii) There is no further detection of
any marine mammal within the 2,000yard LFA sonar mitigation zone as
determined by the visual, passive
acoustic, and active acoustic high
frequency monitoring described in
§ 218.235.
(2) [Reserved]
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(e) Ramp-up procedures for the highfrequency marine mammal monitoring
(HF/M3) sonar required under
§ 218.235. (1) The Navy must ramp up
the HF/M3 sonar power level beginning
at a maximum source sound pressure
level of 180 dB: re 1 mPa at 1 meter in
10-dB increments to operating levels
over a period of no less than five
minutes:
(i) At least 30 minutes prior to any
SURTASS LFA sonar transmissions; and
(ii) Anytime after the HF/M3 source
has been powered down for more than
two minutes.
(2) The Navy must not increase the
HF/M3 sound pressure level once a
marine mammal is detected; ramp-up
may resume once marine mammals are
no longer detected.
(f) Geographic restrictions on the
SURTASS LFA sonar sound field. (1)
LFA sonar training and testing activities
must be conducted such that:
(i) The received level of SURTASS
LFA sonar transmissions will not
exceed 180 dB re: 1 mPa rms within 22
km (12 nmi) from any emergent land,
including offshore islands;
(ii) The received level of SURTASS
LFA sonar transmissions will not
exceed 180 dB re: 1 mPa rms at a
distance of 1 km (0.5 nmi) seaward of
the outer perimeter of any Offshore
Biologically Important Area (OBIA)
designated in the Study Area for
SURTASS LFA sonar in paragraph (f)(2)
of this section, or subsequently
identified through the Adaptive
Management process specified in
§ 218.241, during the period specified.
The boundaries and periods of such
OBIAs will be kept on file in NMFS’
Office of Protected Resources and on its
website at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-military-readinessactivities.
(iii) No more than 25 percent of the
authorized amount (transmission hours)
of SURTASS LFA sonar for training and
testing will be conducted within 10 nmi
(18.5 km) of any single OBIA during any
year (no more than 124 hours in years
1–4 and 148 hours in years 5–7) unless
the following conditions are met:
Should national security present a
requirement to conduct more than 25
percent of authorized hours of
SURTASS LFA sonar within 10 nmi
40211
(18.5 km) of any single OBIA during any
year, naval units will obtain permission
from the appropriate designated
Command authority prior to
commencement of the activity. The
Navy will provide NMFS with
notification as soon as is practicable and
include the information (e.g., sonar
hours) in its annual activity reports
submitted to NMFS.
(iv) No activities with the SURTASS
LFA system will occur within territorial
seas of foreign nations, which are areas
from 0 up to 12 nmi from shore,
depending on the distance that
individual nations claim; and
(v) No activities with the SURTASS
LFA sonar system will occur in the
waters of Penguin Bank, Hawaii
(defined as water depth of 600 ft (183
m)), and ensonification of Hawaii state
waters (out to 3 nmi) will not exceed
145 dB re: 1 mPa rms.
(2) Offshore Biologically Important
Areas (OBIAs) for marine mammals
(with specified periods) for SURTASS
LFA sonar training and testing activities
include the following (Table 1 to
paragraph (f)(2)):
jspears on DSK3GMQ082PROD with RULES2
TABLE 1 TO PARAGRAPH (f)(2)—OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS)
OBIA name
Ocean area
Main Hawaiian Islands ......................................................
Northwestern Hawaiian Islands ........................................
Mariana Islands ................................................................
Ryukyu-Philippines ...........................................................
Ogasawara Islands (Sperm Whale) .................................
Ogasawara-Kazin Islands (Humpback Whale) .................
Honshu ..............................................................................
Southeast Kamchatka .......................................................
Gulf of Thailand ................................................................
Western Australia (Blue Whale) .......................................
Western Australia (Humpback Whale) .............................
Southern Bali ....................................................................
Swatch-of-No-Ground (SoNG) ..........................................
Sri Lanka ...........................................................................
Central North Pacific .......................................................
Central North Pacific .......................................................
Western North Pacific .....................................................
Western North Pacific .....................................................
Western North Pacific .....................................................
Western North Pacific .....................................................
Western North Pacific .....................................................
Western North Pacific .....................................................
Eastern Indian Ocean .....................................................
Eastern Indian Ocean .....................................................
Eastern Indian Ocean .....................................................
Eastern Indian Ocean .....................................................
Northern Bay of Bengal ..................................................
Eastern Indian Ocean .....................................................
(g) Minimization of additional harm
to live-stranded (or milling) mammals.
The Navy must consult the Notification
and Reporting Plan, which sets out the
requirements for when live stranded
marine mammals are reported in the
Study Area. The Stranding and
Notification Plan is available at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyoperations-surveillance-towed-arraysensor-system-0.
§ 218.235
Requirements for monitoring.
(a) The Navy must:
(1) Conduct visual monitoring from
the ship’s bridge during all daylight
hours (30 minutes before sunrise until
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Jkt 247001
30 minutes after sunset). During training
and testing activities that employ
SURTASS LFA sonar in the active
mode, the SURTASS vessels must have
Lookouts to maintain a topside watch
with standard binoculars (7x) and with
the naked eye. If the lookout sights a
possible marine mammal, the lookout
will use big-eye binoculars (25x) to
confirm the sighting and potentially
identify the marine mammal species.
(2) Use the passive SURTASS sonar
component to detect vocalizing marine
mammals; and
(3) Use the HF/M3 sonar to locate and
track marine mammals in relation to the
SURTASS LFA sonar vessel and the
LFA mitigation zone, subject to the
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Effective seasonal period
November to April.
December to April.
February to April.
January to April.
June to September.
December to May.
January to May.
June to September.
April to November.
May to November.
May to December.
October to November.
Year-round.
October to April.
ramp-up requirements in § 216.234(e) of
this chapter.
(b) Monitoring under paragraph (a) of
this section must:
(1) Commence at least 30 minutes
before the first SURTASS LFA sonar
training and testing transmission;
(2) Continue between transmission
pings; and
(3) Continue either for at least 15
minutes after completion of the
SURTASS LFA sonar training and
testing transmission, or, if marine
mammals are exhibiting unusual
changes in behavioral patterns, until
behavior patterns return to normal or
conditions prevent continued
observations.
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(c) The Navy must designate qualified
on-site individuals to conduct the
mitigation, monitoring, and reporting
activities specified in these regulations
and LOA issued under §§ 216.106 of
this chapter and 218.237.
(d) The Navy must continue to assess
data from the Marine Mammal
Monitoring Program and work toward
making some portion of that data, after
appropriate security reviews, available
to scientists with appropriate
clearances. Any portions of the analyses
conducted by these scientists based on
these data that are determined to be
unclassified after appropriate security
reviews will be made publically
available.
(e) The Navy must collect ambient
noise data and will explore the
feasibility of declassifying and archiving
the ambient noise data for incorporation
into appropriate ocean noise budget
efforts.
(f) The Navy must conduct all
monitoring required under LOAs.
NMFS as described in this paragraph
(b).
(c) The Navy will continue to assess
the data collected by its undersea arrays
and work toward making some portion
of that data, after appropriate security
reviews, available to scientists with
appropriate clearances. Any portions of
the analyses conducted by these
scientists based on these data that are
determined to be unclassified after
appropriate security reviews will be
made publically available.
(d) The Navy must consult the
Notification and Reporting Plan, which
sets out notification, reporting, and
other requirements for when dead,
injured, or live stranded marine
mammals are reported in the Study
Area. The Stranding and Notification
Plan is available at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyoperations-surveillance-towed-arraysensor-system-0.
§ 218.237
jspears on DSK3GMQ082PROD with RULES2
§ 218.236
Requirements for reporting.
(a) The Navy must submit classified
and unclassified annual training and
testing activity reports to the Director,
Office of Protected Resources, NMFS, no
later than 90 days after the end of each
year covered by the LOA beginning on
the date of effectiveness of a LOA. Each
annual training and testing activity
report will include a summary of all
active-mode training and testing
activities completed during that year. At
a minimum, each classified training and
testing activity report must contain the
following information:
(1) Dates, times, and location of each
vessel during each training and testing
activity;
(2) Information on sonar
transmissions during each training and
testing activity;
(3) Results of the marine mammal
monitoring program specified in the
LOA; and
(4) Estimates of the percentages of
marine mammal species and stocks
affected (both for the year and
cumulatively for each successive year)
covered by the LOA.
(b) The seventh annual report must be
prepared as a final comprehensive
report, which will include information
for the final year as well as the prior six
years of activities under the rule. This
final comprehensive report must also
contain an unclassified analysis of new
passive sonar technologies and an
assessment of whether such a system is
feasible as an alternative to SURTASS
LFA sonar, and be submitted to the
Director, Office of Protected Resources,
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18:45 Aug 12, 2019
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Letter of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
Navy must apply for and obtain a Letter
of Authorization (LOA).
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the expiration date
of these regulations.
(c) If an LOA expires prior to the
expiration date of these regulations,
Navy may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA (excluding changes made pursuant
to the adaptive management provision
of § 218.239), the Navy must apply for
and obtain a modification of the LOA as
described in § 218.238.
(e) The LOA shall set forth:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact on the
species, its habitat, and on the
availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for monitoring and
reporting.
(f) Issuance of the LOA will be based
on a determination that the level of
taking will be consistent with the
findings made for the total taking
allowable under these regulations.
(g) Notice of issuance or denial of an
LOA will be published in the Federal
Register within thirty days of a
determination.
PO 00000
Frm 00082
Fmt 4701
Sfmt 4700
§ 218.238 Renewals and modifications of a
Letter of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 218.237 for the
activity identified in § 218.230 may be
renewed or modified upon request by
the applicant, provided that:
(1) The planned specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for the regulations in this
subpart (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section); and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous
LOA(s) were implemented.
(b) For LOA modification or renewal
requests by the Navy that include
changes to the activity or to the
mitigation, monitoring, or reporting
measures (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section) that do not change the findings
made for the regulations or that do not
result in more than a minor change in
the total estimated number of takes (or
distribution by species or stock or
years), NMFS may publish notification
of a planned LOA in the Federal
Register, including the associated
analysis of the change, and solicit
public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106
of this chapter and 218.237 may be
modified by NMFS under the following
circumstances:
(1) Adaptive management. After
consulting with the Navy regarding the
practicability of the modifications,
NMFS may modify (including adding or
removing measures) the existing
mitigation, monitoring, or reporting
measures if doing so creates a
reasonable likelihood of more
effectively accomplishing the goals of
the mitigation and monitoring.
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA include:
(A) Results from the Navy’s
monitoring from the previous year(s);
(B) Results from other marine
mammal and/or sound research or
studies; or
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent, or number not
authorized by the regulations in this
subpart or subsequent LOAs.
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS will publish a notice
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of planned LOA in the Federal Register
and solicit public comment.
(2) Emergencies. If NMFS determines
that an emergency exists that poses a
significant risk to the well-being of the
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species or stocks of marine mammals
specified in LOAs issued pursuant to
§§ 216.106 of this chapter and 218.237,
an LOA may be modified without prior
notice or opportunity for public
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comment. Notice would be published in
the Federal Register within thirty days
of the action.
[FR Doc. 2019–16695 Filed 8–12–19; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 84, Number 156 (Tuesday, August 13, 2019)]
[Rules and Regulations]
[Pages 40132-40213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16695]
[[Page 40131]]
Vol. 84
Tuesday,
No. 156
August 13, 2019
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 218
Takes of Marine Mammals Incidental to Specified Activities: Taking
Marine Mammals Incidental to U.S. Navy Surveillance Towed Array Sensor
System Low Frequency Active Sonar Training and Testing in the Central
and Western North Pacific Ocean and Eastern Indian Ocean; Rules
Federal Register / Vol. 84 , No. 156 / Tuesday, August 13, 2019 /
Rules and Regulations
[[Page 40132]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[190731-0008]
RIN 0648-BI42
Takes of Marine Mammals Incidental to Specified Activities:
Taking Marine Mammals Incidental to U.S. Navy Surveillance Towed Array
Sensor System Low Frequency Active Sonar Training and Testing in the
Central and Western North Pacific Ocean and Eastern Indian Ocean
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letter of
Authorization.
-----------------------------------------------------------------------
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 use of
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS
LFA) sonar systems onboard U.S. Navy surveillance ships for training
and testing activities conducted under the authority of the Secretary
of the Navy in the western and central North Pacific Ocean and eastern
Indian Ocean (SURTASS LFA sonar activities) beginning August 2019.
These regulations, which allow for the issuance of a Letter of
Authorization (LOA) for the incidental take of marine mammals during
the described activities and timeframes, prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat,
and establish requirements pertaining to the monitoring and reporting
of such taking.
DATES: Effective on August 12, 2019, through August 11, 2026.
ADDRESSES: A copy of the Navy's application and supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these documents, please call
the contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose for Regulatory Action
These regulations, issued under the authority of the MMPA (16
U.S.C. 1361 et seq.), establish a framework for authorizing the take of
marine mammals incidental to the Navy's use of SURTASS LFA sonar
systems onboard U.S. Navy surveillance ships for training and testing
activities (categorized as military readiness activities) conducted
under the authority of the Secretary of the Navy in the western and
central North Pacific Ocean and eastern Indian Ocean.
NMFS received an application from the Navy requesting regulations
and an associated letter of authorization (LOA) to take individuals of
multiple species and stocks of marine mammals (``Navy's rulemaking/LOA
application'' or ``Navy's application'') by Level B harassment
incidental to SURTASS LFA sonar activities. Please see ``Background''
below for definitions of harassment. This final rule establishes a
framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to
allow for the authorization of take of marine mammals incidental to the
Navy's specified activities.
Legal Authority for the Final Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A))
generally directs the Secretary of Commerce to allow, upon request, the
incidental, but not intentional taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region for up to
five years if, after notice and public comment, the agency makes
certain findings and issues regulations that set forth permissible
methods of taking and other means of effecting the least practicable
adverse impact (LPAI) on the affected species or stocks and their
habitat, 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 any associated LOAs. As described in the Background section, the
MMPA has been amended in a number of ways when the specified activity
is a military readiness activity, including most recently in 2018 to
extend the maximum authorization period under section 101(a)(5)(A) from
five to seven years for Department of Defense military readiness
activities. As directed by this legal authority, this final rule
contains mitigation, monitoring, and reporting requirements.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, an incidental
harassment authorization may be issued following notice and opportunity
for public comment.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''), and requirements pertaining to the monitoring and
reporting of such takings.
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 it applies to a ``military
readiness activity'' to read as follows (Section 3(18)(B) of the MMPA):
(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 FY 2004 NDAA amended the MMPA as it
relates to military readiness activities and the incidental take
authorization (ITA) process such that ``least practicable adverse
impact'' shall include consideration of personnel safety, practicality
of implementation,
[[Page 40133]]
and impact on the effectiveness of the military readiness activity. As
mentioned above, the NDAA for FY 2019 amended the MMPA to extend the
period of permitted incidental takings of marine mammals covered by
section 101(a)(5)(A) in the course of specified military readiness
activities from five to seven years.
The authorization of incidental taking under section 101(a)(5)(A)
requires promulgation of activity-specific regulations following notice
and opportunity for public comment. Under NMFS' implementing
regulations for section 101(a)(5)(A), a Letter of Authorization (LOA)
also is required to conduct activities pursuant to any activity-
specific regulations (50 CFR 216.106).
Summary of Request
On June 4, 2018, NMFS received a request from the Navy for
authorization to take, by Level B harassment, 46 species of marine
mammals incidental to the use of SURTASS LFA sonar onboard U.S. Navy
surveillance ships for training and testing activities (categorized as
military readiness activities) conducted under the authority of the
Secretary of the Navy in the western and central North Pacific Ocean
and eastern Indian Ocean beginning in August 2019 and extending to
August 2026. On July 13, 2018, NMFS published a notice of receipt (NOR)
of the Navy's application in the Federal Register (83 FR 32615), and
requested comments and information related to the Navy's request. The
review and comment period for the NOR ended on August 13, 2018. The
Navy submitted a revised application on November 13, 2018, that
included a minor change to the mitigation measures provided in the June
2018 application. On March 1, 2019, NMFS published a notice of proposed
rulemaking in the Federal Register (84 FR 7186), and requested comments
and information related to the Navy's request. The review and comment
period for the proposed rule ended on April 1, 2019. One comment
received during the NOR comment period was addressed in the Proposed
Rule, and comments received during the proposed rulemaking comment
period are addressed in this final rule. See further details addressing
comments received in the Comments and Responses section.
The Navy states, and NMFS concurs, that these SURTASS LFA sonar
activities, classified as military readiness activities, may
incidentally take marine mammals by exposing them to SURTASS LFA sonar
at levels that constitute Level B harassment as defined above. The Navy
requests authorization to take, by Level B Harassment, individuals from
139 stocks of 46 species of marine mammals (10 species of mysticete
(baleen) whales, 31 species of odontocete (toothed) whales, and 5
species of pinnipeds (seals and sea lions)). This rule also covers the
authorization of take of animals from additional associated stocks of
marine mammals not listed here, should one or more of the stocks
identified in this rule be formally separated into multiple stocks,
provided NMFS is able to confirm the necessary findings for the newly
identified stocks. As discussed later in this document, incidental
takes due to SURTASS LFA sonar will be limited to Level B harassment.
No takes by Level A harassment are authorized, as Level A harassment is
considered unlikely and will be avoided through the implementation of
the Navy's mitigation measures, as discussed below.
In previous SURTASS LFA sonar rulemakings, NMFS authorized some
Level A harassment takes in an abundance of caution even though Level A
harassment takes were not anticipated. However, to the knowledge of the
Navy and NMFS, no Level A harassment takes have resulted over the 17-
year history of SURTASS LFA sonar activities. Additionally, the
exposure criteria and thresholds for assessing Level A harassment have
been modified since prior rules based on the best available science.
Under these new metrics, the zone for potential injury is substantially
reduced. Therefore, due to the small injury zones and the fact that
mitigation measures would ensure that marine mammals would not be
exposed to received levels associated with injury, the Navy has not
requested authorization for Level A harassment takes, and NMFS is not
authorizing any takes by Level A harassment.
NMFS published the first incidental take rule for SURTASS LFA
sonar, effective from August 2002 through August 2007, on July 16, 2002
(67 FR 46712); the second rule, effective from August 2007 through
August 2012, on August 21, 2007 (72 FR 46846); and the third rule,
effective from August 2012 through August 2017, on August 20, 2012 (77
FR 50290).
In 2016, the Navy submitted an application for a fourth incidental
take regulation under the MMPA (DoN, 2016) for the taking of marine
mammals by harassment incidental to the deployment of up to four
SURTASS LFA sonar systems from August 15, 2017, through August 14,
2022. NMFS published a proposed rule on April 27, 2017 (82 FR 19460).
On August 10, 2017, the Deputy Secretary of Defense, after conferring
with the Secretary of Commerce, determined that it was necessary for
the national defense to exempt all military readiness activities that
use SURTASS LFA sonar from compliance with the requirements of the MMPA
for a period of up to two years beginning August 13, 2017, through
August 12, 2019, or until such time when NMFS issues regulations and an
LOA under MMPA section 101(a)(5)(A) for military readiness activities
associated with the use of SURTASS LFA sonar, whichever is earlier.
During the period of the National Defense Exemption (NDE) (available at
https://www.surtass-lfa-eis.com/wp-content/uploads/2018/01/SURTASS_LFA_NDE_10Aug17.pdf), all military readiness activities that
involve the use of SURTASS LFA sonar were required to comply with all
mitigation, monitoring, and reporting measures set forth in the NDE for
SURTASS LFA sonar, which were based on the measures included in NMFS'
prior (2012) final rule (77 FR 50290; August 20, 2012) and 2017
proposed rule (82 FR 19460; April 27, 2017). As a result of the NDE,
NMFS did not finalize its April 2017 proposed rule.
The NDE expires August 12, 2019. For this rulemaking, the Navy will
continue to use SURTASS LFA sonar systems onboard United States Naval
Ship (USNS) surveillance ships for training and testing activities
conducted under the authority of the Secretary of the Navy within the
western and central North Pacific Ocean and eastern Indian Ocean. The
operating features of the LFA sonar will remain, and have remained the
same since the 2001 SURTASS LFA FOEIS/EIS. The typical duty cycle of
LFA sonar, based on historical SURTASS LFA sonar use, is 7.5 to 10
percent (DoN, 2007). The maximum duty cycle remains the same at 20
percent.
For this rulemaking, the Navy scoped the geographic extent of the
area where the specified activity will occur (Study Area) to better
reflect the areas where the Navy anticipates conducting SURTASS LFA
sonar training and testing activities. Whereas the previous
authorizations included certain routine military operations among the
scope of actions analyzed, the Navy also has narrowed the scope of
activities in the current request for authorization to training and
testing activities only, due to various statutory and practical
considerations, as described in Chapter 1 of the 2019 SURTASS LFA
FSEIS/SOEIS, and discussed further below.
The Navy will transmit a total of up to 496 LFA sonar transmission
hours
[[Page 40134]]
per year for its specified activity, as described below (see
Description of the Specified Activities section), pooled across all
SURTASS LFA sonar-equipped vessels in the first four years of the
authorization, with an increase in usage to a total of up to 592 LFA
transmission hours in years five through seven.
Changes From the Proposed to the Final Rule
Since the proposed rule, based on public comment and additional
analysis, NMFS and the Navy have agreed to additional mitigation and
monitoring measures that are expected to reduce the likelihood and/or
severity of adverse impacts on marine mammal species/stocks and their
habitat and are practicable for implementation.
In the proposed rule we presented 25 marine areas for
further consideration as marine mammal Offshore Biologically Important
Areas (OBIAs) for SURTASS LFA sonar. After considering public comments
and conducting additional analyses, 33 marine areas were assessed as
potential OBIAs. Of these 33 marine areas, 17 were determined to
qualify as OBIAs. All 17 of the areas were found to be practicable and
were designated as 14 OBIAs (some OBIAs encompass several marine
areas). All four of the OBIAs previously designated in the SURTASS LFA
sonar Study Area have been expanded spatially.
The Navy will use no more than 25 percent of the
authorized amount (transmission hours) of SURTASS LFA sonar for
training and testing within 10 nautical miles (nmi) (18.5 kilometers
(km)) of any single OBIA during any year (no more than 124 hours in
years 1-4 and 148 hours in years 5-7) unless the following conditions
are met: Should national security present a requirement to conduct more
than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi
(18.5 km) of any single OBIA during any year, naval units will obtain
permission from the appropriate designated Command authority prior to
commencement of the activity. The Navy will provide NMFS with
notification as soon as is practicable and include the information
(e.g., sonar hours) in its annual activity reports submitted to NMFS.
The Navy has agreed to evaluate the feasibility and
appropriate methods to collect new data to supplement the data
available on behavioral responses of marine mammals to SURTASS LFA
sonar using newer methods and technologies. These types of scientific
inquiries fit within the scope the Navy's Living Marine Resources (LMR)
program. The LMR program weighs the various Navy research needs against
each other through a needs and solicitation process. The Navy has
submitted a needs statement to the LMR advisory committee to research
future data collection that would supplement understanding of how
SURTASS LFA sonar may affect marine resources, including mysticetes and
beaked whales.
Description of the Specified Activities
Overview
The Navy's primary mission is to organize, train, and equip combat-
ready naval forces capable of accomplishing American strategic
objectives, deterring maritime aggression, and assuring freedom of
navigation in ocean areas. This mission is mandated by Federal law in
Section 8062 of Title 10 of the United States Code, which directs the
Secretary of the Navy to ensure the readiness of the U.S. naval forces.
The Secretary of the Navy and the Chief of Navy Operations (CNO)
have established that anti-submarine warfare (ASW) is a critical
capability for achieving the Navy's mission, and it requires unfettered
access to both the high seas and littoral environments to be prepared
for all potential threats by maintaining ASW core competency. The Navy
is challenged by the increased difficulty in locating undersea threats
solely by using passive acoustic technologies due to the advancement
and use of quieting technologies in diesel-electric and nuclear
submarines. At the same time, as the distance at which submarine
threats can be detected decreases due to quieting technologies,
improvements in torpedo and missile design have extended the effective
range of these weapons.
One of the ways the Navy has addressed the changing requirements
for ASW readiness was to develop SURTASS LFA sonar, which is able to
reliably detect quieter and harder-to-find submarines at long range
before these vessels can get within their effective weapons range to
launch against their targets. SURTASS LFA sonar systems have a passive
component (SURTASS), which is a towed line array of hydrophones used to
detect sound emitted or reflected from submerged targets, and an active
component (LFA), which is comprised of a set of acoustic transmitting
elements. The active component detects objects by creating a sound
pulse, or ``ping'' that is transmitted through the water and reflects
off the target, returning in the form of an echo similar to
echolocation used by some marine mammals to locate prey and navigate.
SURTASS LFA sonar systems are long-range sensors that operate in the
low-frequency (LF) band (i.e., 100-500 Hertz (Hz)). Because LF sound
travels in seawater for greater distances than higher frequency sound,
the SURTASS LFA sonar system meets the need for improved detection and
tracking of new-generation submarines at a longer range and maximizes
the opportunity for U.S. armed forces to safely react to, and defend
against, potential submarine threats while remaining a safe distance
beyond a submarine's effective weapons range. Thus, the active acoustic
component in the SURTASS LFA sonar is an important augmentation to the
Navy's passive and tactical systems, as its long-range detection
capabilities can effectively counter the threat to the Navy and
national security interests posed by quiet, diesel submarines.
The Navy's specified activities for MMPA incidental take coverage
is to continue employment of SURTASS LFA sonar systems onboard USNS
surveillance ships for training and testing activities conducted under
the authority of the Secretary of the Navy in the western and central
Pacific Ocean and eastern Indian Ocean, which is classified as a
military readiness activity, beginning August 13, 2019. The use of the
SURTASS LFA sonar system will result in acoustic stimuli from the
generation of sound or pressure waves in the water at or above levels
that NMFS has determined would result in take of marine mammals under
the MMPA. This is the principal means of marine mammal taking
associated with these military readiness activities. In addition to the
use of active acoustic sources, the Navy's activities include the
movement of vessels. This final rule also analyzes the potential
effects of this aspect of the activities. NMFS does not anticipate
takes of marine mammals to result from ship strikes from any SURTASS
LFA vessels because each vessel moves at a relatively slow speed (10 to
12 knots (kt) while transiting), especially when towing the SURTASS and
LFA sonar systems (moving at 3 to 4 kt), and for a relatively short
period of time. Combined with the use of mitigation measures as noted
below, it is likely that surveillance vessels will be able to avoid any
marine mammals.
The Navy will restrict SURTASS LFA sonar training and testing
activities to the central and western North Pacific Ocean and eastern
Indian Ocean. The Navy will not conduct training or testing utilizing
SURTASS LFA sonar within the foreign territorial seas of other nations
and will maintain
[[Page 40135]]
SURTASS LFA sonar received levels below 180 decibels (dB) re: 1 [mu]Pa
(root-mean-square (rms)) within 12 nmi (22 km) of any emerged land
features or within 1 km of the seaward boundaries of designated
Offshore Biologically Important Areas (OBIAs) during their effective
periods (see Mitigation section below for OBIA details). In addition to
these geographic mitigation measures, the Navy will implement
procedural mitigation measures, including monitoring for the presence
of marine mammals (including visual as well as active and passive
acoustic monitoring) and implementing shutdown procedures for marine
mammals within a mitigation zone around the LFA sonar source (see
Mitigation and Monitoring sections below for further details).
Dates and Duration
The specified activities may occur at any time during the seven-
year period of validity of the regulations (August 13, 2019, through
August 12, 2026). The Navy currently conducts SURTASS LFA sonar
activities from four vessels. The Navy is planning to add new vessels
to its ocean surveillance fleet. As new vessels are developed, the
onboard LFA and High Frequency Marine Mammal Monitoring sonar (HF/M3
sonar) systems (discussed below) may need to be updated, modified, or
even re-designed. Current indications are that future LFA sonar systems
will have the same operational characteristics and that updates and
modifications are focused toward miniaturizing the system components to
reduce the weight and handling of the systems. If system parameters are
modified as a result of these updates the Navy will determine if
supplementary analysis would be required to cover the deployment of
these new systems. As the new vessels and sonar system components are
developed and constructed, at-sea testing would eventually be
necessary. The Navy anticipates that new vessels, or new/updated sonar
system components, would be ready for at-sea testing beginning in the
fifth year of the time period covered by this final rule.
Thus, the Navy's activity analysis included consideration of the
sonar hours associated with future testing of new or updated LFA sonar
system components and new ocean surveillance vessels. This
consideration resulted in two scenarios of annual sonar transmit hours:
Years 1 to 4 will entail up to 496 hours total per year across all
SURTASS LFA sonar vessels, while years 5 to 7 will include an increase
in LFA sonar transmit hours up to 592 hours across all vessels.
The SURTASS LFA sonar transmission hours represent a distribution
across six activities that include (with an approximate allocation of
hours indicated):
Contractor crew proficiency training (80 hours per year);
Military crew (MILCREW) proficiency training (96 hours per
year);
Participation in or support of naval exercises (96 hours
per year);
Vessel and equipment maintenance (64 hours per year);
Acoustic research testing (160 hours per year); and
New SURTASS LFA sonar system testing (96 hours per year;
will occur in years 5 to 7).
Each of these activities utilizes the SURTASS LFA sonar system
within the operating profile described above; therefore, the number of
hours designated for each activity represents an estimate for planning
purposes.
As noted above, this rulemaking would result in the fourth such
regulation for the Navy's SURTASS LFA sonar activities. The Navy is
currently conducting the specified activities under an NDE that will
expire on August 12, 2019. Therefore, the Navy requested MMPA
rulemaking and an LOA for SURTASS LFA sonar training and testing
activities effective beginning August 13, 2019, to take marine mammals
incidental to the SURTASS LFA sonar activities for a seven year period.
SURTASS LFA Sonar Training and Testing Areas
The geographic area of the SURTASS LFA sonar activities covered by
these regulations includes the western and central North Pacific Ocean
and eastern Indian Ocean outside of the territorial seas of foreign
nations (generally 12 nmi (22 km) from most foreign nations). Figure 1
depicts the areas of SURTASS LFA sonar activities. In areas within 12
nmi from any emergent land (coastal exclusion areas) and in areas
identified as OBIAs, SURTASS LFA sonar training and testing would be
conducted such that received levels of LFA sonar are below 180 dB re: 1
[mu]Pa rms sound pressure level (SPL). This restriction will be
observed year-round for coastal standoff zones and during known periods
of biological importance for OBIAs.
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TR13AU19.000
BILLING CODE 3510-22-C
For this rulemaking, the Navy scoped the geographic extent of its
specified activities to better reflect the areas where the Navy
anticipates conducting SURTASS LFA sonar training and testing
activities now through 2026. Fifteen representative model areas (shown
in Figure 1 and listed in Table 1), with nominal modeling sites in each
region, provide geographic context for the SURTASS LFA sonar
activities.
Table 1--Representative SURTASS LFA Sonar Modeling Areas That the Navy
Modeled for the 2019 SURTASS LFA FSEIS/SOEIS and the Navy's MMPA
Rulemaking/LOA Application
------------------------------------------------------------------------
Location
(latitude/
Modeled site longitude of Notes
center of
modeling area)
------------------------------------------------------------------------
East of Japan................. 38[deg] N,
148[deg] E.
North Philippine Sea.......... 29[deg] N,
136[deg] E.
West Philippine Sea........... 22[deg] N,
124[deg] E.
Offshore Guam................. 11[deg] N, Navy Mariana Islands
145[deg] E. Testing and Training
Area.
Sea of Japan.................. 39[deg] N,
132[deg] E.
East China Sea................ 26[deg] N,
125[deg] E.
South China Sea............... 14[deg] N,
114[deg] E.
Offshore Japan 25[deg] to 30[deg] N,
40[deg] N. 165[deg] E.
Offshore Japan 10[deg] to 15[deg] N,
25[deg] N. 165[deg] E.
Hawaii North.................. 25[deg] N, Navy Hawaii-Southern
158[deg] W. California Training
and Testing Area.
Hawaii South.................. 19.5[deg] N, Navy Hawaii-Southern
158.5[deg] W. California Training
and Testing Area.
Offshore Sri Lanka............ 5[deg] N, 85[deg]
E.
Andaman Sea................... 7.5[deg] N,
96[deg] E.
Northwest of Australia........ 18[deg] S,
110[deg] E.
Northeast of Japan............ 52[deg] N,
163[deg] E.
------------------------------------------------------------------------
[[Page 40137]]
Detailed Description of the Specified Activities
SURTASS LFA Sonar--SONAR is an acronym for Sound Navigation and
Ranging, and its definition includes any system (biological or
mechanical) that uses underwater sound, or acoustics, for detection,
monitoring, and/or communications. Active sonar is the transmission of
sound energy for the purpose of sensing the environment by interpreting
features of received signals. Active sonar detects objects by creating
a sound pulse, or ``ping'' that is transmitted through the water and
reflects off the target, returning in the form of an echo. Passive
sonar detects the transmission of sound waves created by an object.
As mentioned previously, the SURTASS LFA sonar system is a long-
range, all-weather LF sonar (operating between 100 and 500 Hertz (Hz))
system that has both active and passive components. LFA, the active
system component (which allows for the detection of an object that is
not generating noise), is comprised of source elements (called
projectors) suspended vertically on a cable beneath the surveillance
vessel. The projectors produce an active sound pulse by converting
electrical energy to mechanical energy by setting up vibrations or
pressure disturbances within the water to produce a ping. The Navy uses
LFA as an augmentation to the passive SURTASS operations when passive
system performance is inadequate. SURTASS, the passive part of the
system, uses hydrophones (i.e., underwater microphones) to detect sound
emitted or reflected from submerged targets, such as submarines. The
SURTASS hydrophones are mounted on a horizontal line array that is
towed behind the surveillance vessel. The Navy processes and evaluates
the returning signals or echoes, which are usually below background or
ambient sound level, to identify and classify potential underwater
targets.
LFA Active Component--The active component of the SURTASS LFA sonar
system consists of up to 18 projectors suspended beneath the
surveillance vessel in a vertical line array. The SURTASS LFA sonar
projectors transmit in the low-frequency band (between 100 and 500 Hz).
The source level of an individual projector in the SURTASS LFA sonar
array is approximately 215 dB re: 1 [mu]Pa at 1 m or less. Sound
pressure is the sound force per unit area and is usually measured in
micropascals ([mu]Pa), where one Pascal (Pa) is the pressure resulting
from a force of one newton exerted over an area of one square meter
(m\2\). The commonly used reference pressure level in underwater
acoustics is 1 [mu]Pa at 1 m, and the units for source level are
decibels (dB) re: 1 [mu]Pa at 1 m). Because of the physics involved in
acoustic beamforming (i.e., a method of mapping noise sources by
differentiating sound levels based upon the direction from which they
originate) and sound transmission loss processes, the SURTASS LFA sonar
array cannot have a sound pressure level (SPL) higher than the SPL of
an individual projector.
The SURTASS LFA sonar acoustic transmission is an omnidirectional
beam (a full 360 degrees ([deg])) in the horizontal plane. The LFA
sonar system also has a narrow vertical beam that the vessel's crew can
steer above or below the horizontal plane. The typical SURTASS LFA
sonar signal is not a constant tone, but rather is a transmission of
various signal types that vary in frequency and duration (including
continuous wave (CW) and frequency-modulated (FM) signals). A complete
sequence of sound transmissions, also referred to by the Navy as a
``ping'' or a wavetrain, can be as short as six seconds (sec) or last
as long as 100 sec, with an average length of 60 sec. Within each ping,
the duration of any continuous frequency sound transmission is no
longer than 10 seconds and the time between pings is typically from six
to 15 minutes (min). Based on the Navy's historical operating
parameters, the average duty cycle (i.e., the ratio of sound ``on''
time to total time) for LFA sonar is normally 7.5 to 10 percent and
will not exceed a maximum duty cycle of 20 percent.
Compact LFA Active Component--In addition to the LFA sonar system
currently deployed on the USNS IMPECCABLE, the Navy developed a compact
LFA (CLFA) sonar system, which is now deployed on its three smaller
surveillance vessels (i.e., the USNS ABLE, EFFECTIVE, and VICTORIOUS).
The operational characteristics of the active component for the CLFA
sonar system are comparable to the LFA sonar system and the potential
impacts from the CLFA sonar system will be similar to the effects from
the LFA sonar system. The CLFA sonar system consists of smaller
projectors that weigh 142,000 lbs (64,410 kilograms (kg)), which is
182,000 lbs (82,554 kg) less than the weight of the LFA projectors on
the USNS IMPECCABLE. The CLFA sonar system also consists of up to 18
projectors suspended beneath the surveillance vessel in a vertical line
array, and the CLFA sonar system projectors transmit in the low-
frequency band (also between 100 and 500 Hz) with the same duty cycle
as described for LFA sonar. Similar to the active component of the LFA
sonar system, the source level of an individual projector in the CLFA
sonar array is approximately 215 dB re: 1 [mu]Pa or less.
For the analysis in this rulemaking, NMFS will use the term LFA to
refer to both the LFA sonar system and/or the CLFA sonar system, unless
otherwise specified.
SURTASS Passive Component--The passive component of the SURTASS LFA
sonar system consists of a SURTASS Twin-line (TL-29A) horizontal line
array mounted with hydrophones. The Y-shaped array is 1,000 ft (305 m)
in length and has an operational depth of 500 to 1,500 ft (152.4 to
457.2 m).
High-Frequency Marine Mammal Monitoring Active Sonar (HF/M3)--
Although technically not part of the SURTASS LFA sonar system, the Navy
will also use a high-frequency sonar system, called the HF/M3 sonar, to
detect and locate marine mammals within the SURTASS LFA sonar
mitigation zone, as described in the Mitigation and Monitoring
sections. This enhanced commercial fish-finding sonar, mounted at the
top of the SURTASS LFA sonar vertical line array, has a source level of
220 dB re: 1 [mu]Pa at 1 m with a frequency range of 30 to 40 kilohertz
(kHz). The duty cycle is variable, but is normally below three to four
percent and the maximum pulse duration is 40 milliseconds (ms). The HF/
M3 sonar has four transducers with 8 degrees horizontal and 10 degrees
vertical beamwidths, which sweep a full 360 degrees in the horizontal
plane every 45 to 60 sec with a maximum range of approximately 1.2 mi
(2 km).
Vessel Specifications--The Navy currently deploys SURTASS LFA sonar
on four twin-hulled ocean surveillance vessels that are 235 to 282 feet
(ft) (72 to 86 m) in length, with twin-shafted diesel electric engines
capable of providing 3,200 to 5,000 horsepower. Each vessel has an
observation area on the bridge that is more than 30 ft above sea level
from where lookouts will monitor for marine mammals whenever SURTASS
LFA sonar is transmitting. As stated previously, the Navy may develop
and field additional SURTASS LFA equipped vessels, either to replace or
complement the Navy's current SURTASS LFA capable fleet, and these
vessels may be in use beginning in the fifth year of the time period
covered by this rulemaking.
The operational speed of each vessel during sonar activities will
be approximately 3.4 miles per hour (mph)
[[Page 40138]]
(5.6 km per hour (km/hr); 3 kt) and each vessel's cruising speed
outside of sonar activities would be a maximum of approximately 11.5 to
14.9 mph (18.5 to 24.1 km/hr; 10 to 13 kt). During sonar activities,
the SURTASS LFA sonar vessels will generally travel in straight lines
or in oval-shaped (i.e., racetrack) patterns depending on the training
or testing scenario.
Comments and Responses
We published a notice of proposed rule in the Federal Register on
March 1, 2019 (84 FR 7186), with a 30-day comment period. During the
30-day comment period, we received eight total comment letters. Of this
total, one submission was from another Federal agency, one letter was
from organizations or individuals acting in an official capacity (e.g.,
non-governmental organizations (NGOs)), and six submissions were from
private citizens. NMFS has reviewed all public comments received on the
proposed rule and issuance of the LOA. All relevant comments and our
responses are described below organized by major category. We provide
no response to specific comments that addressed species or statutes not
relevant to our proposed rule under section 101(a)(5)(A) of the MMPA
(e.g., comments related to sea turtles).
General Comments
The majority of the comments from six private citizens expressed
general opposition toward the Navy's proposed training and testing
activities, cited concern for marine mammals and the oceans, and
requested that NMFS not issue the LOAs, but without providing
information relevant to NMFS' decisions. NMFS appreciates the concerns
expressed for marine life and resources. We reiterate that no mortality
of marine mammals is anticipated, nor is any injury (Level A
harassment) of marine mammals anticipated; therefore, neither injuries
nor mortality of marine mammals is authorized for the SURTASS LFA sonar
activities. Moreover, the MMPA directs the Secretary of Commerce (whose
authority has been delegated to NMFS) to allow, upon request, the
incidental taking for a specified activity, provided that we are able
to make the required findings under section 101(a)(5)(A) and set forth
regulations containing the required prescriptions for mitigation,
monitoring, and reporting after notice and comment. Therefore, these
comments were not considered further. The remaining comments are
addressed below.
Impact Analysis
Density Estimates
Comment 1: The Marine Mammal Commission (hereafter ``Commission'')
expressed concerns regarding the density estimates used in Navy's
Global Marine Species Density Database (Global NMSDD). The Commission
and The Commission and Natural Resources Defense Council (NRDC), The
Humane Society of the United States, and Humane Society Legislative
Fund (hereafter ``NRDC et al.'') recommended that NMFS require the Navy
to make available to the public the resulting products of the current
version of the Global NMSDD, similar to the information provided in
Department of the Navy (2017c), as soon as possible. The Commission
noted that they have requested for several years that this information
be made available to the public and are puzzled why neither the Navy
nor NMFS has provided it. The Commission asserted that without public
access to such data, the process is not transparent and there is no
basis to assert that either NMFS' or the Navy's analyses are based on
best available data.
Response: Currently, the NMSDD is not publically available since
proprietary geospatial modeling data are included in the database, for
which the Navy has established proprietary data sharing agreements.
However, products of the Navy's database have been made available to
the public, such as the U.S. Navy Marine Species Density Database Phase
III for the Hawaii-Southern California Training and Testing Study Area
(DoN, 2017c). The citations for the sighting surveys or other data upon
which the densities were derived in the NMSDD have been provided when
appropriate, and information similar to that presented in the U.S. Navy
Marine Species Density Database Phase III for the Hawaii-Southern
California Training and Testing Study Area (DoN, 2017c) is provided in
the 2019 SURTASS LFA FSEIS/SOEIS (Chapter 3 and Appendix D) for the 15
Representative Modeling Areas in the SURTASS LFA sonar Study Area.
Chapter 3, Section 3.4.3.3.3 describes the process and methods used to
derive marine mammal occurrence and population estimates (abundance and
density) in the model areas. Appendix D includes detailed information
on the available data and abundance and density estimates by model area
and species/stock and these references are also included in the marine
mammal species, stocks (DPSs), abundance, and density estimates by
season summary table (Chapter 3, Table 3-8). When the NMSDD is
referenced in the Offshore Sri Lanka, Andaman Sea, Northwestern
Australia, and Northeast of Japan (humpback whales only) modeling areas
the specific data source (e.g., Kaschner et al., 2006 or SMRU Ltd.,
2012) is also referenced. NMFS coordinated closely with the Navy in the
development of its incidental take application, and agrees that the
methods the Navy has put forth described herein to estimate densities
are appropriate and based on the best available science.
Comment 2: The Commission and NRDC et al. recommended that NMFS
specify whether and how uncertainty was incorporated in abundance and
density estimates in the preamble to the final rule and, if it was not,
that NMFS require the Navy to incorporate measures of uncertainty
inherent in the underlying data (e.g., CV, standard deviations,
standard errors) in those estimates and re-estimate the numbers of
takes accordingly in the final rule. The Commission noted that for all
of the Navy's Phase III activities since 2016, including for Hawaii-
Southern California Training and Testing (HSTT), the Navy has
incorporated uncertainty in the densities and the group size estimates
that ultimately seed its animat modeling. It is unclear why the same
approach was not taken for SURTASS LFA sonar, particularly since the
action areas for HSTT and SURTASS LFA sonar overlap.
Response: Information on uncertainty (e.g., CV, standard
deviations, standard errors, etc.) in species/stock population
estimates for each modeling area is included when available in the 2019
SURTASS LFA FSEIS/SOEIS (Chapter 3 and Appendix D). The population
estimates provided in the 2019 SURTASS LFA FSEIS/SOEIS (Chapter 3 and
Appendix D) were used to model estimated takes using the Acoustic
Integration Model (AIM) (described in the Estimated Take of Marine
Mammals section). The AIM is a Monte Carlo based statistical model in
which multiple iterations of realistic predictions of acoustic source
use as well as animal distribution and movement patterns (``animats'')
are conducted to provide statistical predictions of estimated impacts
from exposure to acoustic source transmissions. AIM does not include
uncertainty in population estimates to predict estimated takes, however
uncertainty in the horizontal and vertical movement patterns of marine
mammals is incorporated through the Monte Carlo components of the AIM.
At each 30-sec timestep, the diving pattern, swim speed, and heading of
each animat are re-sampled, resulting in movement of each animat
through the acoustic
[[Page 40139]]
field. In the AIM, the modeled marine mammal animats were set to
populate the simulation area with densities of 0.086, 0.17, or 0.34
animats/nmi\2\ (0.025, 0.05, or 0.1 animats/km\2\). These densities are
often higher than those estimated in the marine environment (as many
species/stocks are rare in modelled areas). This ``over population'' of
the modeling environment ensures that the result of the simulation is
not unduly influenced by the chance placement of a few simulated marine
mammals. To obtain final harassment estimates, the modeled results are
normalized by the ratio of the modeled animat density to the real-world
marine mammal density estimate. This allows for greater statistical
power without overestimating risk. Additional details on the methods
used to calculate take estimates are included in the Estimated Take of
Marine Mammals section. NMFS considers these estimates conservative as
take estimates are based on the maximum potential impact to a species
or stock across all model areas in which a SURTASS LFA sonar activity
may occur. Therefore, if an activity occurs in a different model area
than the area where the maximum potential impact was predicted, the
actual potential impact may be less than estimated. Here, the densities
and modeling used reflect the best available science and, further,
monitoring of SURTASS activities from the past 17 years of activities
do not suggest that these models have underestimated marine mammal
exposure.
Comment 3: NRDC et al. recommended that NMFS consider alternative
and potentially more powerful modeling approaches that are emerging to
extrapolate cetacean densities beyond surveyed regions (Corkeron et
al., 2011; Lambert et al., 2014; Mannocci et al., 2015) which are
likely to be superior to the Kaschner et al. (2006) model (and more
consistent with the prior recommendations of NMFS biologists) that the
Navy has relied on in the past. They recommended that the Navy should
consult with NMFS experts on the utility of these models for estimating
densities within the LFA Study Area. They also recommended that NMFS
examine the data collected during the International Whaling
Commission's Pacific Ocean Whale and Ecosystem Research Programme (IWC-
POWER) 2010, 2013, 2014, 2015, and 2016 surveys with the view to
developing improved marine mammal density models for regions of the
western and central Pacific.
Response: NMFS is aware of the active area of research in
developing density models for data poor areas that extrapolate cetacean
densities beyond surveyed regions. For example, the Navy and NMFS were
reviewers of, and used, the results of Mannocci et al. (2017) in the
U.S. Navy's Atlantic Fleet Training and Testing (AFTT) Study Area NEPA
analysis and MMPA rulemaking. NMFS and the Navy will continue to
discuss and examine the utility of these emerging models for estimating
densities of marine mammals in the SURTASS LFA sonar Study Area. It is
possible that the sighting results from the IWC-POWER cruises could be
used to extrapolate density and abundance estimates throughout the
North Pacific in the future, using the methods developed by Mannocci et
al. (2015) that were applied to extrapolate density estimates in the
North Atlantic (Mannocci et al., 2017). Cruise reports through 2017 are
available online, with cruises continuing for another few years. When
additional results are available, NMFS and the Navy will consider use
of these methods to extrapolate density and abundance estimates that
could inform mitigation through Adaptive Management process, or to
inform analyses for future actions. Lambert et al. (2014) used the
simulated distribution of micronekton from the Spatial Ecosystem And
Population Dynamics Model (SEAPODYM) to predict the habitat of three
cetacean guilds in tropical waters. While their results provide some
interesting insights into the use of predicted prey maps in cetacean
distribution models, they are best used to prioritize future research
areas. Corkeron et al. (2011) developed statistical methods for using
spatially autocorrelated sighting results to identify the Dhofar coast
of Oman as an important region for the Arabian Sea DPS of humpback
whales. However, the Dhofar coast of Oman is outside of the SURTASS LFA
sonar Study Area and Corkeren et al. state ``Although it is
theoretically possible for us to project model predictions into other
areas, we consider this inadvisable, as our basic design was not to
make inference about the distribution of humpback whales along the
entire Oman coast.'' Therefore, though its statistical models could be
applied to sightings data within the SURTASS LFA Study Area, these
humpback whale results are not applicable. When considering how to
predict marine mammal densities across large spatial scales using many
varied datasets, there are often multiple appropriate and effective
ways that data can be modeled and extrapolated, and NMFS does not
prescribe any particular model in these cases, as long as our review
indicates that the proposed method is supportable. Here, the densities
and modeling used reflect the best available science and, further,
monitoring of SURTASS activities from the past 17 years of activities
do not suggest that these models have underestimated marine mammal
exposure.
Comment 4: The Commission recommended that, in the preamble to the
final rule, NMFS specify how density estimates were derived and what
statistic (e.g., mean, median, maximum) was used when multiple sources
are referenced in Tables 2-16 of the Federal Register notice and Table
3-2 of the revised LOA application.
Response: We have included the density estimate and associated
reference or references for each species/stock in each of the 15
Representative Modeling Areas in the SURTASS LFA sonar Study Area in
Tables 2 through 16 of this rule. Additional details on the densities
used for each species/stock in each modeling area are provided in the
2019 SURTASS LFA FSEIS/SOEIS (Chapter 3, Table 3-8 and Appendix D). In
Chapter 3, Table 3-8 2019 SURTASS LFA FSEIS/SOEIS, multiple references
are provided to reflect references used to support the population
density estimate and seasonality of occurrence. In Tables 2-16 of this
rule we have included only the reference to the density estimate.
Appendix D of the 2019 SURTASS LFA FSEIS/SOEIS includes detailed
descriptions and references for each species/stock in each of the model
areas that include how each density estimate was derived. In response
to this comment the Navy has also reviewed and revised the descriptions
in Appendix D of the 2019 SURTASS LFA FSEIS/SOEIS to increase clarity.
Comment 5: With respect to estimated densities of cetaceans in
Offshore Guam, the Commission recommended that NMFS use the densities
stipulated in Department of the Navy (2018b) for blue whales, Bryde's
whales, fin whales, ginkgo-toothed beaked whales, and Deraniyagala's
beaked whales rather than the densities in Table 5 of the Federal
Register notice and re-estimate the numbers of takes accordingly in the
final rule.
Response: As recommended, we have revised the densities for blue
whales, Bryde's whales, fin whales, ginkgo-toothed beaked whales, and
Deraniyagala's beaked whales to those presented in the U.S. Navy marine
species density database Phase III for the Mariana Islands Training and
Testing Study Area (DoN, 2018b) and have revised our estimated takes of
[[Page 40140]]
these species/stocks in the Offshore Guam modeling area accordingly.
Comment 6: NRDC et al. recommended that NMFS require the Navy to
conduct baseline research in unsurveyed areas that it repeatedly
employs in LFA sonar operations, prioritizing areas on the basis of
exposure frequency, environmental vulnerability, and research
feasibility.
Response: Per the Council on Environmental Quality (CEQ) regulation
40 CFR 1502.22, the Navy has indicated plainly in the 2019 SURTASS LFA
FSEIS/SOEIS where data or information are lacking to support Navy
analyses and how the Navy has resolved the issue of scarcity of data/
information (i.e., surrogate data/information). The Navy is not
required to conduct costly baseline research, such as that suggested,
to obtain incomplete or unavailable data and information for areas in
which the Navy operates LFA sonar (CEQ Regulation 1502.22). Further,
the ESA and MMPA only require that a Federal agency consider the best
available data, and do not require the agency generate the data itself.
However, as noted in this rule, the Navy does fund ongoing research and
conservation related to marine mammals. The Navy sponsors a significant
portion of the U.S. research on the effects of human-generated sound on
marine mammals (between approximately 25 to 30 million dollars per year
on marine mammal research from the Navy's three main programs: Office
of Naval Research, Living Marine Resources Program, and the Fleet/
SYSCOM monitoring programs), which is crucial to the overall knowledge
base on the potential for effects from underwater anthropogenic noise
on marine mammals (82 FR 19460, 19516; April 27, 2017). See Office of
Naval Research (https://www.onr.navy.mil/) and Navy Living Marine
Resources program (https://navysustainability.dodlive.mil/environment/lmr/) for examples of Navy support research. The Navy also sponsors
research to determine marine mammal abundances and densities for all
Navy ranges and other operational areas (see Marine Species Monitoring
Program: https://www.navymarinespeciesmonitoring.us/). As described in
the Description of Marine Mammals in the Area of the Specified
Activities section of the rule and Chapter 3 and Appendix D of the
SURTASS LFA FSEIS/SOEIS, the Navy used a combination of density
estimates from a region with similar oceanographic characteristics to
that model area, estimates derived from the Navy's Marine Species
Density Database (DoN, 2018), and pooled density estimates for species
of the same genus if sufficient data were not available to compute a
density for individual species or the species are difficult to
distinguish at sea (e.g., Mesoplodon spp. and Kogia spp.) to inform
their analyses in unsurveyed areas, which NMFS concurred represented
the best available science.
Permanent Threshold Shift (PTS)/Temporary Threshold Shift (TTS)
Thresholds and Take Estimates
Comment 7: The Commission recommended that NMFS (1) specify the
numbers of model-estimated Level A harassment (PTS) takes of marine
mammals in the absence of implementing mitigation measures and any and
all assumptions (including within the animat modeling scenarios) that
were made to reduce those takes to zero in the preamble to the final
rule and (2) authorize the model-estimated Level A harassment (PTS)
takes rather than reducing them to zero in the final rule. The
Commission stated that specifics regarding the situations in which
those takes were estimated to occur (i.e., distances to the source and
timeframe over which the exposure occurred) should be delineated in the
preamble to the final rule as well.
Response: The Navy quantitatively assessed the potential for PTS
and TTS resulting from exposure to SURTASS LFA sonar transmissions
using NMFS' 2018 Acoustic Technical Guidance for estimating impacts of
PTS and TTS using AIM. In AIM the potential for PTS is considered
within the context of the mitigation and monitoring efforts that would
occur whenever SURTASS LFA sonar is transmitting. Mitigation monitoring
is designed to detect marine mammals before they are exposed to a
received level of 180 dB re: 1 [mu]Pa SPL. The probability of detection
of a marine mammal by the HF/M3 system alone within the LFA sonar
mitigation zone approaches 100 percent over the course of multiple
pings (see the 2001 SURTASS LFA FOEIS/EIS, Subchapters 2.3.2.2 and
4.2.7.1 for the HF/M3 sonar testing results as well as section 5.4.3 of
the 2019 SURTASS LFA FSEIS/SOEIS for a summary of the effectiveness of
the HF/M3 system). As described in the Estimated Take of Marine Mammals
section, with the implementation of the three-part monitoring programs
(visual, passive acoustic, and HF/M3 monitoring, as discussed below),
NMFS and the Navy do not expect that marine mammals would be injured by
SURTASS LFA sonar because a marine mammal is likely to be detected and
active transmissions suspended or delayed to avoid injurious exposure.
Therefore, in incorporating mitigation, AIM assumes no animats will be
exposed to SURTASS LFA sonar in the LFA sonar mitigation zone. AIM
records the exposure history for each individual animat and the
potential impact is determined on an individual animal basis. The sound
energy received by each individual animat over the 24-hr modeled period
was calculated as sound exposure level (SEL) and the potential for that
animal to experience PTS and then TTS was considered using the NMFS
(2018) acoustic guidance thresholds. When mitigation is applied in the
modeling-analysis environment, estimations of PTS impacts were 0 for
all marine mammal species in all model areas.
Therefore, the Navy did not request and NMFS is not authorizing
Level A harassment take. As presented in the Estimated Take of Marine
Mammals section, based on simple spherical spreading (i.e.,
transmission loss based on 20 x log10 [range {m{time} ]), all hearing
groups except LF cetaceans would need to remain within 22 ft (7 m) for
the entire duration (60 sec) of an LFA sonar ping to potentially
experience PTS. LF cetaceans would need to remain at the greatest
distance from the transmitting LFA sonar, 135 ft (41 m) before
experiencing the onset of PTS. This distance is well within the LFA
sonar mitigation zone and a distance where visual, passive, and
acoustic monitoring can reliably detect small and large marine mammals
100 percent of the time and transmission can shut down before any
injury can occur. NMFS has determined that the suite of mitigation
monitoring efforts is highly effective at detecting marine mammals and
avoiding Level A take and notes that there have been no reported or
known incidents of Level A harassment of any marine mammal in 17 years
of SURTASS LFA sonar activities. Therefore, NMFS has determined that
authorizing Level A harassment take is not warranted.
Comment 8: The Commission recommended that NMFS explain why TTS
takes are greater than behavior takes for some species of mysticetes,
or stocks of mysticetes within the same species, in the preamble to the
final rule.
Response: The estimated Level B harassment takes presented in
Chapter 4 of the 2019 SURTASS LFA FSEIS/SOEIS are correct. Table 18 in
this final rule presents total Level B Harassment takes (including both
behavioral disruption and TTS). In the vast majority of mysticete
species/stocks, estimated takes by behavioral disruption
[[Page 40141]]
are greater than estimated incidents of TTS; however, in a few cases
the predicted numbers of TTS are higher than the estimated takes by
behavioral disruption. This is due to the way these two impacts are
assessed. The TTS acoustic threshold level is based on cumulative SEL
metric and a take occurs when a marine mammal exposed to sounds above
the threshold level (a step function where 0 is no take and 1 is a take
for each individual). Behavioral response is calculated for each
individual on a continuum from 0 to 1 based on the marine mammals
single ping equivalent (SPE) value. Therefore, many more marine mammals
may be (and typically are) exposed at sound (SPE) levels with a very
low risk for a behavior response (less than 1). When these risk values
are summed to calculate the estimated take due to behavioral response,
the result may be an estimate that is lower than the estimate for TTS.
In their response to comments in the SURTASS LFA FSEIS/SOEIS, the Navy
provides the following example to illustrate: If the blue whale has a
hypothetical population estimate of 10 individuals, one animal may
experience TTS, five may have some percent risk of a behavioral
response, and four may not be impacted. Estimating take, one animal is
predicted to experience TTS. The five animals in the population have
potential behavioral response (risk values) of 0.5, 0.2, 0.05, 0.04,
and 0.01. When summed, this is 0.8 for the entire population.
Therefore, the risk of TTS (1 animal) is greater than the risk of
behavioral response (0.8 animal), but the number of animals
experiencing TTS (one) is less than the number that have the potential
to experience a behavioral response (five).
Behavioral Harassment Thresholds and Take Estimates
Comment 9: With respect to SPE as the metric to estimate behavioral
response, the Commission recommended that NMFS use either (1) a metric
(i.e., SPL or sound exposure level (SEL)) and associated thresholds
that are based on physics rather than SPE or (2) the behavioral
response metrics and thresholds that the Navy currently uses for all
other LF sonar sources based on Department of the Navy (2017b) to
estimate behavior takes for the final rule. NRDC et al. also stated
that given the lack of any tenable justification for maintaining an SPE
approach, NMFS, and the Navy, should use the more widely accepted, more
conservative SEL in determining the effect of multiple exposures on
marine mammals.
Response: The behavioral risk function is based on field
measurements of behavioral responses of mysticetes during the SURTASS
LFA Sonar Low Frequency Sound Scientific Research Program (LFS SRP).
SPE was developed by researchers in the LFS SRP to account for received
energy from all LFA sonar transmissions that a modeled animal
(``animat'') receives during a 24-hr period of a SURTASS LFA sonar
mission. SPE was also designed to approximate the manner in which the
effect of repeated exposures accumulate, as known from studies on
humans (Kryter, 1985; Richardson et al., 1995; Ward, 1968). SPE
accounts for the increased potential effect of repeated exposures on
animals by adding 5 x log10 (number of pings) to each 1-dB received
level (RL) increment (Kryter, 1985; Richardson et al., 1995; Ward,
1968). If an individual's exposure within a 24-hour period is dominated
by a single loud pulse, the SPE will not be greater than the SPL (rms)
of that single loud pulse. However, if there are two or more pulses of
the same amplitude, the calculated SPE will be greater than the SPL
(rms) of a single pulse because the SPE metric accounts for
accumulation, and SPL does not. Therefore, the calculated SPE is never
lower than the SPL rms of the loudest pulse.
The SEL metric is used to determine physiological effects (PTS and
TTS) and the Navy's rulemaking and LOA application, as well as this
final rule, use the SEL metric to estimate these impacts as described
in the NMFS' 2018 Acoustic Technical Guidance. Research indicates that
behavioral responses are context specific and due to both received
level and a suite of other factors including behavioral context. All
other applicants use SPL thresholds for assessing Level B harassment by
behavioral disruption, and the Navy uses SPL based risk functions for
all of its other training and testing activities, which utilize sound
sources of shorter pulse lengths. Since SPE allows for a consideration
of the duration of a signal and is always more conservative than SPL
rms values, it is equal to or more conservative than an SPL based risk
function and NMFS concurs with its use with SURTASS LFA sonar.
Although the LFS SRP study is from the late 1990s, the source used
was the most similar in source characteristics and operating parameters
to the SURTASS LFA sonar source, and most closely matches the nature
and context of the Navy's current activity. Specifically, the multiple
LF sources that may be used in the Navy's major training exercises
(such as AFTT and HSTT) include sources that are operated differently,
are operated at different frequencies, and are only one component of
any training activity -- and for these reasons, the Navy and NMFS found
it appropriate to apply the thresholds and modeling utilized for the
other active Navy sources. However, for SURTASS, the results of the LFS
SRP remain the best available data for the purpose of predicting
potential impacts from exposure to SURTASS LFA sonar as they evaluated
the behavioral responses of LF hearing specialists conducting
biologically important behaviors to exposures of SURTASS LFA sonar.
NMFS and the Navy have evaluated the science conducted with other sound
sources (e.g., mid-frequency sonar, the European ``low-frequency active
sonar'' that operates at 1-2 and 6-7 kHz) and no newer data change the
prediction of expected behavioral responses.
Comment 10: The Commission recommended that NMFS and the Navy
prioritize conducting a behavioral response study (BRS) using updated
BRS methods involving SURTASS LFA sonar and mysticetes, other
odontocetes including sperm whales, and/or phocids under the monitoring
requirements for the final rule and ensure that the behavior thresholds
are able to be updated accordingly before the next rulemaking.
Response: The Navy has agreed to evaluate the feasibility and
appropriate methods to collect new data to supplement the data
available on behavioral responses of marine mammals to SURTASS LFA
sonar using newer methods and technologies. These types of scientific
inquiries fit within the scope the Navy's Living Marine Resources (LMR)
program. The LMR program weighs the various Navy research needs against
each other through a needs and solicitation process. The Navy has
submitted a needs statement to the LMR advisory committee to research
future data collection that would supplement understanding of how
SURTASS LFA sonar may affect marine resources, including mysticetes and
beaked whales.
Comment 11: NRDC et al. noted that the proposed rule analysis
relies entirely on the LFA Scientific Research Program (SRP) in
establishing behavioral risk parameters for the SURTASS LFA system.
They noted that study took place twenty years ago and is inconsistent
with more recent science on the behavioral response of marine mammals
to low-frequency underwater noise. They stated that reliance on the SRP
to the exclusion of all other scientific literature on the impacts of
[[Page 40142]]
low-frequency sound would be arbitrary and capricious. NRDC et al.
noted that marine mammal science, including the technology used to
study behavioral response to underwater noise, has advanced
significantly over the two decades since the SRP concluded. They stated
that the tags used in the SRP were Time-Depth Recorders, which, in
rendering only depth profile, are primitive by comparison with
contemporary marine mammal tags, which include accelerometers,
magnetometers, and hydrophones. The newer tags provide far greater
capacity to track alterations in animal orientation, velocity, and
noise production, and therefore to detect disruptions in marine mammal
feeding and other behaviors. Additionally, they noted that the SRP's
sample sizes were small, focal species were limited, and the LFA system
was generally operated at less than full power. They noted that new
technologies and methods indicate limitations of the Navy's research.
They cited studies that observed reductions in buzz rates in sperm
whales and harbor porpoises that could not have been observed without
newly available technology (Miller et al., 2009; Pirotta et al., 2014).
Response: As noted in the response to Comment 9, the data collected
during the SURTASS LFA sonar LFS SRP studies remain the best available
data for predicting behavioral responses to SURTASS LFA sonar. However,
NMFS and Navy also considered other relevant studies on the potential
effects of LF sound transmissions on marine mammals. None of these
other studies contradict the conclusions of the LFS SRP (see the
Potential Effects of the Specified Activity on Marine Mammals and their
Habitat section in the proposed rule and Chapter 4 of the 2019 SURTASS
LFA FSEIS/SOEIS for descriptions of studies). While we acknowledge the
age of the SURTASS sonar LFS SRP data, the age of these data does not
invalidate them, their contributions to science, nor the conclusions
based upon those data. It is true that the technology and techniques
available to gather marine animal data have become increasingly diverse
and sophisticated over time and that LFS SRP sample sizes were small.
The commenter points out the sorts of data that may be gathered
utilizing new technologies and cites to the ``limitations'' of the SRP.
NMFS acknowledges that newer methods may allow for additional data
collection, however, in the meanwhile, NMFS and the Navy have
considered all of the data, LFS SRP and otherwise, that are applicable
to the SURTASS LFA sonar assessment and are aware of no basis to
invalidate the overall results of the SRP. As noted in the response to
Comment 10, the Navy will evaluate the feasibility and appropriate
methods to collect new data to supplement the data available on
behavioral responses of marine mammals to SURTASS LFA sonar.
Comment 12: NRDC et al. noted that the Navy claims that the SRP
remains more relevant than the host of more recent investigations
because it is the only study of a tonal source operating at frequencies
below 500 Hz. The commenters noted that researchers in the Stellwagen
Bank National Marine Sanctuary documented suppression in humpback whale
vocalization during operations of an Ocean Acoustic Waveguard Remote
Sensing (OAWRS) system, a powerful low-frequency fish sensor operating
at similar frequencies, at distances of 200 km from the source (Risch
et al. 2012). The Heard Island Feasibility Test, which likewise
involved a tonal sound source operating below 500 Hz, reported complete
cessations in vocalizations of long-finned pilot whales and sperm
whales over a 4900 km\2\ area following exposure (Bowles et al. 1994).
They stated that these papers join a spate of other studies documenting
large-scale changes in baleen whale vocalizations and those of other
species in response to predominantly low-frequency anthropogenic noise
(Nowacek et al., 2015) and that the best available science indicates
that the Navy's behavioral response function for LFA, promulgated by
NMFS in the Proposed Rule, is non-conservative.
Response: We disagree that the LFA sonar behavioral response
function is non-conservative. Discussion of additional studies on the
behavioral responses of marine mammals to a variety of sound sources
are provided in the Potential Effects of the Specified Activity on
Marine Mammals and their Habitat section in the proposed rule and
Chapter 4 of the 2019 SURTASS LFA FSEIS/SOEIS. As discussed in the
proposed rule, the potential for behavioral response to an
anthropogenic source is highly variable and context-specific. Also, as
discussed in the proposed rule, the recorded OAWRS produced a series of
frequency-modulated pulses and signal received levels. Risch et al.
(2012) documented reduction in humpback whale vocalization concurrent
with transmissions of the low-frequency OAWRS system at distances of
200 km (108 nmi) from the source. The OAWRS source appears to have
affected more whales than Phase III of the LFS SRP, even though
exposure was at a lower RL (88 to 110 dB re: 1 [mu]Pa), which the
authors noted was a novel sound source that provided a compelling
contextual probability for the observed effects. Gong et al. (2014)
assessed the effects of the OAWRS transmissions on calling rates on
Georges Bank and determined constant vocalization rates of humpback
whales, with a reduction occurring before the OAWRS system began
transmitting. Risch et al. (2014) pointed out that the results of Risch
et al. (2012) and Gong et al. (2014) are not contradictory, but rather
highlight the principal point of their original paper that behavioral
responses depend on many contextual factors, including range to source,
RL above background noise level, novelty of signal, and differences in
behavioral state. Further, the authors did not state or imply that the
observed behaviors had long-term effects on individual animals or
populations. The responses of whales to the OAWRS system are consistent
with the LFA behavioral response function, as it estimates that
behavioral changes can occur at received levels lower than 180 dB.
Results from the Heard Island Feasibility Test (Bowles et al., 1994)
show that during the pre-experiment baseline period, sperm whales were
detected 24 percent of the time and short-finned pilot whales were
detected eight percent of the time. During night-time recordings during
the baseline period, sperm whales were detected eight percent of the
time and pilot whales were detected zero percent of the time. Neither
species was detected during the low-frequency transmissions, but both
species were detected 36 h after transmissions ended. It is not known
whether sperm and pilot whales were masked during the transmissions or
whether they ceased vocalizing. Since sperm whales frequently become
silent in the presence of anthropogenic noise (Watkins and Schevill,
1975; Watkins et al., 1985), it is possible they exhibited a behavioral
response.
NMFS concurs with the use of the Navy's behavioral response
function and that it conservatively estimates Level B harassment takes.
There is no indication that this method underestimates take. While the
entire ensonified area cannot be monitored (using visual or passive and
active acoustic monitoring), marine mammal observations during SURTASS
LFA sonar activity and those predicted using annual activity level and
location indicate the Navy has never exceeded authorized take for
SURTASS LFA sonar activities (with the first LOA for SURTASS LFA sonar
activities
[[Page 40143]]
beginning in August 2002). The potential for behavioral response to an
anthropogenic source is highly dependent on context, including
characteristics of the sound signals and their pattern of transmission,
the environmental factors affecting sound movement, and the behavioral
state of the animal during exposure. Further, not every response of a
marine mammal rises to the level of a take, and some of the responses
cited by the commenter would not necessarily do so (e.g., minor
modifications in vocalizations of a duration shorter than exposure to
the signal). As previously noted, the SURTASS LFS SRP exposed LF
specialist cetaceans engaged in biologically important behaviors to
real-world SURTASS LFA sonar transmissions; the SRP results remain the
best available science for assessing potential impacts associated with
exposure to SURTASS LFA sonar. The SURTASS LFS SRP experiments exposed
baleen whales to RLs ranging from 120 to about 155 dB re: 1 [micro]Pa
rms SPL and detected only minor, short-term behavioral responses.
Short-term behavioral responses do not necessarily constitute
significant changes in biologically important behaviors. The behavioral
response function is also conservative for non-LF specialists, as it
was developed for species believed to be most sensitive to SURTASS LFA
sonar. Therefore, although the results of the risk function modeling
are interpreted such that they would constitute ``significant
disruptions to biologically important behaviors,'' (i.e., causing
disruption of natural behavioral patterns, including, but not limited
to, migration, surfacing, nursing, breeding, feeding, or sheltering, to
a point where such patterns are abandoned or significantly altered) not
all predicted exposures would in fact rise to such a level, and the
resulting risk function modeling is conservative for all marine
mammals.
Mitigation and Monitoring
Least Practicable Adverse Impact Determination
Comment 13: The Commission noted that NMFS' interpretation of the
least practicable impact standard in various proposed rules has been an
evolving one, and it is unclear that any of those discussions, targeted
to specific instances, should be considered to constitute a formal
interpretation. Rather, it is a shifting target that requires the
Commission and other stakeholders to comment repeatedly on the various
permutations. The Commission stated that such generally applicable
policies and interpretations should be developed through a separate
rulemaking (e.g., in amendments to 50 CFR 216.103 or 216.105) or policy
statement rather than in individual incidental take authorizations and
recommended that NMFS pursue such a rulemaking or publish a proposed
policy for public review and comment. The Commission expressed concerns
that some stakeholders may not be aware of or choose not to comment on
the proposed interpretation in this context, because the particular
authorization may not otherwise be of interest to them (e.g., because
the activity is in a geographical location or concerns a type of
activity not of particular interest).
Response: We appreciate the Commission's recommendation and may
consider the recommended approaches in the future. We note, however,
that providing relevant explanations in a proposed incidental take rule
is an effective and efficient way to provide information to the reader
and solicit focused input from the public, and ultimately affords the
same opportunities for public comment as a stand-alone rulemaking
would. NMFS has provided similar explanations of the least practicable
adverse impact standard in other recent section 101(a)(5)(A) rules,
including: the final rules for U.S. Navy Training and Testing
Activities in the Atlantic Fleet Study Area (83 FR 57076; November 14,
2018) and the Hawaii-Southern California Study Area (83 FR 66846;
December 21, 2018), as well as the proposed rule for Geophysical
Surveys Related to Oil and Gas Activities in the Gulf of Mexico (83 FR
29212; June 22, 2018).
Comment 14: The Commission stated that in its previous letters it
recommended that NMFS adopt a two-step approach when applying the least
practicable adverse impact standard. First, it should identify the
criteria it will use to determine whether adverse impacts on marine
mammal species/stocks or their habitat are anticipated. If potential
adverse impacts are identified, the second step should be to determine
whether measures designed to reduce those impacts are available and
practicable. The Commission expressed concern that, because NMFS'
criteria for applying the least practicable adverse impact standard
commingle elements related to whether impacts are adverse and whether
potential mitigation measures are likely to be effective, NMFS'
analysis is not as clear as it should be. The Commission therefore
recommended that NMFS 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.
Response: The Commission recommends NMFS consider applicable
factors in its least practicable adverse impact analysis in a specific
manner. However, it did not provide any suggested criteria for
determining its recommended first step.
NMFS has clearly articulated the agency's interpretation of the
LPAI standard and our evaluation framework in the Mitigation section of
this notice. Specifically, NMFS identified the adverse impacts that it
is considering in the LPAI analysis and comprehensively evaluated an
extensive suite of measures that might be available to reduce those
impacts (some of which are adopted and some that are not) both in the
context of their expected ability to reduce impacts to marine mammal
species or stocks and their habitat, as well as their practicability
(see Mitigation and Negligible Impact Analysis and Determination
sections). In the Mitigation section, NMFS has explained in detail our
interpretation of the least practicable adverse impact standard, the
rationale for our interpretation, and our approach for implementing our
interpretation. The ability of a measure to reduce effects on marine
mammals is entirely related to its ``effectiveness'' as a measure,
whereas the effectiveness of a measure is not connected to its
practicability. NMFS' interpretation of the LPAI standard is a
reasonable interpretation that gives effect to the language in the
statute and the underlying legislative intent. Congress intended the
agencies administering section 101(a)(5)(A) to consider practicability
when determining appropriate mitigation, but we do not believe the
analysis must be conducted in such a rigid sequential fashion. There is
a tension inherent in the phrase ``least practicable adverse impact''
in that ``least [. . .] adverse impact'' pulls in favor of one
direction (i.e., expanding mitigation) while ``practicable'' pulls in
favor of the other direction (i.e., limiting mitigation), and weighing
the relative costs and benefits is, in our view, a more meaningful way
to address and resolve this tension. Contrary to the Commission's
suggestion, there is no formulaic way to do this. As we explained in
the discussion of the LPAI standard above using a simple hypothetical
example to illustrate the point, means of minimizing adverse impacts at
the species or stock level is not a black and white proposition.
Further, the standard is accomplished
[[Page 40144]]
through mitigation imposed for individuals--yet the standard does not
require that we minimize individual takes or impacts to the maximum
extent practicable.
NMFS' approach laid out in this rulemaking acknowledges that, even
when the negligible impact standard is met, NMFS must still consider
mitigation under the LPAI standard. NMFS' approach recognizes that
impacts to species or stocks of marine mammals accrue through
individuals and, as such, allows for reducing impacts on individuals,
but with a focus on measures designed to avoid or minimize impacts on
marine mammals that are likely to increase the probability or severity
of population level effects. The greater the likelihood that a measure
will contribute to reducing the probability or severity of adverse
impacts to a species or stock, the greater the weight that measure is
given when considered in combination with practicability to determine
the appropriateness of a mitigation measure. While the analysis we
describe can be conducted for each measure, we read the ``means of
effecting the LPAI'' standard as ultimately applying to the totality of
all required measures taken together. Accordingly, NMFS can take into
account other measures that will be implemented when considering the
benefit of additional measures. NMFS has weighed the relevant
considerations as explained in its fuller discussion of LPAI.
While the Ninth Circuit's opinion in Pritzker (83 F.3d 1125 (9th
Cir. 2016)) did not directly address this question, the Court appeared
to view NMFS' conceptual approach of weighing various considerations as
an acceptable one. In response to our 2012 rule, where we described our
approach as including ``a careful balancing of the likely degree to
which the measure is expected to minimize adverse impacts to marine
mammals with the likely effect of that measure on personnel safety,
practicality of implementation, and impact on the effectiveness of
military readiness activity,'' the Court said ``this formulation makes
sense so far as it is stated,'' Pritzker, 828 F.3d at 1135 (emphasis
added), though faulted NMFS for not meaningfully discussing how the
measures it imposed would meet that standard. The legislative history
on the 2004 MMPA amendments for military readiness activities provides
further support, in that it shows Congress intended additional weighing
for military readiness impacts and placed equal import on the
military's need to conduct training activities. 2004 U.S.C.C.A.N. at
1447 (stating that the changes with the MMPA ``properly balance the
equities associated with military readiness and maritime species
protection'').
Comment 15: The Commission stated that section
101(a)(5)(A)(i)(II)(aa) of the MMPA specifies that incidental take
regulations are to set forth permissible methods of taking pursuant to
such activity, and other means of effecting the least practicable
adverse impact on such species or stock and its habitat, paying
particular attention to rookeries, mating grounds, and other areas of
similar significance. The Commission stated that in this case, NMFS has
only identified in the most general sense the means it will use to
effect the least practicable adverse impact--it will identify and
impose heightened protections in as yet unidentified OBIAs--and has
provided no information to assess when and where NMFS believes it would
be practicable for the Navy to abide by those exclusions. Only at the
final rule stage would NMFS generate a list of the areas that meet the
OBIA criteria, provide its rationale for determining which areas
satisfy those criteria, and discuss whether requiring the Navy to
employ mitigation measures in and near those areas would be
practicable. The Commission stated that this approach is inconsistent
with how NMFS has handled every previous rulemaking involving the
Navy's activities, and more importantly, is inconsistent with the
requirements of the Administrative Procedure Act (APA), which requires
that NMFS give the public a meaningful opportunity to comment on what
the agency is proposing. In this instance, the public is not being
given a meaningful opportunity to comment on which OBIAs are
appropriate to include in the final rule. Rather, commenters are left
to speculate on which OBIAs NMFS might select and to comment in a
vacuum as to whether those would be practicable for the Navy to meet
its operational goals if some or all of the OBIAs that meet the
criteria are included in the final rule. The Commission recommended
that, in this and other proposed rules, NMFS inform the public what
measures it is proposing to include in the final rule to satisfy the
requirements of section 101(a)(5)(A)(i)(II)(aa) of the MMPA rather than
leaving the public to speculate on all of the possibilities and the
practicability of implementing them.
Response: NMFS disagrees with both the Commission's description of
the lack of information that NMFS provided the public in the proposed
rule and the assertion that it was inconsistent with the requirements
of the APA. NMFS described a clear proposed process and detailed set of
factors that would be used to identify OBIAs, both prior to the
finalization of the rule, as well as adaptively throughout the course
of the rule. Further, NMFS provided the public with a carefully
evaluated and honed list (reduced from hundreds considered, down to 25
presented) of potential OBIAs that preliminarily met the biological
criteria (in addition to the four that were already established for the
geographic areas included in the Study Area) to provide input on. NMFS
systematically described these OBIA candidates in the context of the
OBIA process and factors and indicated all of the references from which
the supporting information was obtained. The public was given adequate
information upon which to base input on this mitigation, as required by
the APA. The fact that the practicability of these areas for the Navy
was not discussed in the proposed rule did not prevent the public from
providing meaningful input on the information and potential OBIAs
presented.
Comment 16: The Commission noted that the analysis provided in the
Federal Register notice seems to conflate the species and habitat
portions of the least practicable adverse impact standard. NMFS
discussed the distinction between impacts on individual marine mammals
versus impacts on species and stocks in some detail. However, that
distinction is irrelevant when considering adverse impacts to important
marine mammal habitat such as rookeries, mating grounds, and areas of
similar significance. All of these types of areas are important at the
species or stock level. Further, the Commission stated that it believes
all of the areas that meet the OBIA designation criteria constitute
important habitat for purposes of implementing section
101(a)(5)(A)(i)(II)(aa) of the MMPA and that mitigation measures to
avoid or reduce adverse impacts to all of those areas should be
included in the final rule unless such measures are not practicable.
The Commission therefore recommended that, in the final rule, NMFS
again require that the Navy ensure that none of the areas designated as
OBIAs (or the 1 km buffer zones around them) are subjected to SURTASS
LFA sonar received levels of 180 dB re 1 [mu]Pa or greater. Further,
because the proposed rule did not include any information that
indicates it would be impracticable for the Navy to adhere to such a
limitation for any of the OBIAs under consideration, the Commission
recommended that this mitigation
[[Page 40145]]
measure apply to all areas the Commission recommended be designated as
OBIAs herein. If NMFS or the Navy believes it would be impracticable to
implement the identified measures in any of those areas, then NMFS
should make that case in a subsequent Federal Register notice and
provide the public with an opportunity to comment on any proposed
exceptions before adopting them.
Response: NMFS disagrees with the Commission's assertion that NMFS
conflates the species and habitat portions of the LPAI standard. NMFS
recognizes the LPAI standard includes a requirement to prescribe
measures that will effect the least practicable adverse impact on both
the affected species or stocks and their habitat. In our description of
implementation of the standard, we state that reduction of habitat
impacts is relevant, particularly as it relates to rookeries, mating
grounds, and areas of similar significance, and can include measures to
reduce impacts of an activity on known prey utilized in the area or
reducing impacts on physical habitat. Our discussion of least
practicable adverse impact points out that because habitat value is
informed by marine mammal presence and use, in some cases there may be
overlap in measures for the species or stock and for use of habitat.
Here we have identified time-area restrictions based on a combination
of factors that include higher densities and observations of specific
important behaviors of the animals themselves, but these also clearly
reflect preferred habitat. In addition to being delineated based on
physical features that drive habitat function (e.g., bathymetric
features, among others), the high densities and concentration of
certain important behaviors (e.g., feeding) in these particular areas
clearly indicates the presence of preferred habitat. Just because the
OBIAs address both marine mammals and their habitat does not mean that
NMFS has conflated the two pieces of the standard. The MMPA does not
specify that effects to habitat must be mitigated in separate measures,
and NMFS has clearly identified measures that provide for mitigation of
impacts to both marine mammal ``species or stocks and their habitat,''
as required by the statute.
Further, this rulemaking evaluated the effects of SURTASS LFA sonar
activities on marine mammal habitat, specifically including prey, and
concluded that marine mammal prey will not be exposed to sustained
duration and intensity of sound levels that would result in significant
adverse effects to marine mammal food resources. Accordingly, no
additional mitigation for habitat beyond the geographic based measures
identified to minimize impacts on the affected species or stocks while
using/occurring in certain preferred habitat (such as OBIAs), or the
coastal standoff range was warranted.
To the Commission's last point, in consideration of input from the
public and our final evaluation, NMFS identified 17 areas (in the form
of 14 OBIAs) as satisfying the necessary biological and geographic
qualifications for OBIA designation and the Navy found that the
implementation of all of these areas as OBIAs would be practicable.
Accordingly, all 14 OBIAs are included in the final regulations.
Comment 17: NRDC et al. expressed concern that NMFS, in its
discussion of the LPAI standard, has set forth an interpretation that
remains inconsistent with the plain language of the MMPA and with the
Court's ruling in Pritzker (83 F.3d 1125 (9th Cir. 2016)). NRDC et al.
stated that the agency reserves its consideration of mitigation
measures to those that ultimately ``are likely to increase the
probability or severity of population-level effects'' (84 FR 7228), and
that it appears to base this understanding on an imputation of
population-level harm into the ``least practicable adverse impact''
standard, and particularly into the standard's reference to ``such
species or stock.'' NRDC et al. stated that the Court in NRDC v.
Pritzker specifically rejected this assumption when the agency
attempted to import it into the statute via its existing regulations
concerning ``negligible impact.'' NRDC agreed with NMFS that the
reduction of impacts to affected species or stocks ``accrues through
the application of mitigation measures that limit impacts to individual
animals'' and, consistent with this, ``focuses on measures that are
designed to avoid or minimize impacts on individual marine mammals''
that, in turn, ``are likely to increase the risk of population-level
effects'' (citing to 84 FR 7228). They cite as an example that the
agency recognizes measures ``limiting interruption of known feeding,
breeding, mother/young, or resting behaviors'' as having ``greater
value'' for mitigation. However, NRDC stated that NMFS' formulation
remains problematic in practice. NRDC stated that in detaching itself
from the MMPA's ``take provision,'' it creates ``vagueness that leaves
the provision open to inconsistent, arbitrary application'' and that
the proposed rule appears to wander beyond the interpretation that NMFS
sets down when it rejects the White Paper (Identifying Areas of
Biological Importance to Cetaceans in Data-Poor Regions) guidelines to
establish OBIAs in data-poor regions. NRDC et al. state that the
proposed rule: ``does so on the grounds [. . .] that establishing OBIAs
would not further reduce fitness consequences (i.e., `the potential for
impacts on reproduction or survival') in individual marine mammals and
thus would not reduce the probability of population-level harm. Id. at
7247. Yet this is an ostensibly higher bar than is articulated by the
agency in its section interpreting the least practicable adverse impact
standard, requiring actual reduction of fitness impacts rather than
reduced disruption of behavioral responses associated with fitness.
Compare id. at 7229 (listing factors having `greater value' for
mitigation to include `limiting interruption of known feeding,
breeding, mother/young, or resting behaviors'). Putting aside the
inconsistency with the statute, discussed above, our practical concern
is that NMFS' interpretation will be used as a convenient legal
defense--just as it was in Pritzker--to prop up an insufficient
analysis. NMFS should ensure that it applies the ``least practicable
adverse impact'' standard in a manner that reduces the impacts (e.g.,
Level A and Level B harassment take) that Congress intended to prohibit
in adopting the MMPA.''
Response: NMFS' interpretation and implementation of the LPAI
standard is not inconsistent with the statute or the Pritzker decision,
as described in the Mitigation section of this rule (and not re-
included here). We interpret the LPAI standard as having a species or
stock-level focus but believe the reduction of impacts to those species
or stocks accrues through the application of mitigation measures that
limit impacts to individual animals. Accordingly, NMFS' analysis
focuses on measures that are designed to avoid or minimize impacts on
individual marine mammals that are likely to increase the probability
or severity of population-level effects. NMFS acknowledges that it is
not a mathematical formula; in evaluating a measure, consideration of
its value and its practicability will necessarily involve exercise of
the agency's professional judgment taking into account the specified
activity and other contextual factors. NMFS' rule fully discusses its
evaluation applying the standard it sets forth. Moreover, there is no
inconsistency in the standard and the application in view of the full
discussion in this rule. The language quoted in the comment cannot be
isolated from the context of the full
[[Page 40146]]
discussion in the rule and then cited as proof of inconsistency.
Specifically, to support its assertion, NRDC points to our rationale
for not adopting the recommendations in the White Paper (discussed in
detail in the Mitigation section). The comment mischaracterizes our
conclusions by suggesting our reasoning is based solely on the fact
that the recommendations in the White Paper will not further reduce
fitness consequences of individuals and thus would not reduce
population level harm. This ignores the fuller discussion, in which our
assessment shows that the proposed mitigation would add little, if any,
value for lowering the probability or severity of impacts to individual
marine mammal fitness, but also that it is highly impracticable for the
Navy. Thus, the White Paper recommendations were not adopted based on a
straightforward application of the LPAI standard.
Procedural Mitigation Effectiveness and Recommendations
Comment 18: The Commission recommended that, in the final rule,
NMFS require the Navy to (1) use a 30-minute clearance time when a
marine mammal has not been observed to have left the mitigation zone,
consistent with other Navy activities and (2) conduct post-activity
monitoring including visual, passive acoustic, and active acoustic
monitoring for 30 rather than 15 minutes.
Response: A 30-minute post monitoring timeframe is more widely used
in other authorizations mainly due to the fact that marine mammal
detections are largely reliant on visual surveys and this time accounts
for marine mammals with longer-duration dives. In addition to visual
and passive acoustic monitoring, the HF/M3 (active acoustic monitoring
system) is used with SURTASS LFA sonar activities. Detection through
active acoustics is typically not used with authorizations for other
activities. However, given the near 100 percent effectiveness of the
HF/M3 system with multiple pings (see response to Comment 7), in
combination with the two other mitigation monitoring efforts (visual
and passive acoustic monitoring), NMFS feels confident that any marine
mammals present in the mitigation zone would be detected within the 15-
minute timeframe.
Comment 19: The Commission noted that it does not appear that the
Navy has conducted a study to investigate the effectiveness of the
suite of mitigation measures currently being employed or proposed for
SURTASS LFA sonar activities and that such a study would be prudent.
The Commission noted that determination of effectiveness has been based
solely on what has been ``observed'' via the three monitoring methods
and some theoretical assumptions. True ``effectiveness'' studies
evaluate not only the animals that are detected, but also those that
are missed. The Navy is conducting a lookout effectiveness study to
assess the effectiveness of visual monitoring. A similar study,
including the assessment of both passive and active acoustic
monitoring, would provide a more appropriate means than the Navy's
current approach for concluding that the measures are 100 percent
effective.
Response: The effectiveness of the HF/M3 sonar system to monitor
and detect marine mammals has been assessed. Details on this assessment
and the effectiveness of the HF/M3 system are provided in a technical
report by Ellison and Stein (2001), the 2001 SURTASS LFA FOEIS/EIS (see
subchapters 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar testing results),
as well as Chapter 4, Section 5.4.3 of the 2019 SURTASS LFA FSEIS/
SOEIS. The study qualitatively and quantitatively assessed the HF/M3
system's ability to detect marine mammals of various sizes with 170
hours of at-sea testing, including trials off the coast of San Diego
with trained bottlenose dolphins, as well as several developmental
tests with artificial targets (which allowed for examination of whether
these methods potentially miss animals). The results indicate a near
100 percent probability of detecting marine mammals before they enter
the LFA mitigation zone. As noted by the commenter, the Navy continues
to assess the effectiveness of its mitigation measures. The results of
any new studies will be assessed through the Adaptive Management
process. NMFS acknowledges the limitations associated with visual and
passive acoustic monitoring, but together with the near 100 percent
effectiveness of active acoustic monitoring with the HF/M3 sonar
system, NMFS has determined that these mitigation monitoring measures
are highly effective.
Comment 20: NRDC et al. noted that the proposed mitigation distance
resulting in sound pressure levels within OBIAs and coastal exclusion
zones not to exceed 180 dB re 1 [mu]Pa (rms) bears no relation to the
Navy's behavioral response function, even though the agencies have
repeatedly identified behavioral disruption as the primary marine
mammal impact of concern from LFA sonar, or to any qualitative
assessment of stress response or masking effects. NRDC et al. noted
that it roughly reflects the Navy's threshold for the onset of auditory
injury per NMFS guidance. NRDC et al. stated that the 180 dB threshold
fails to meaningfully protect marine mammals from the behavioral
impacts that the agencies have repeatedly characterized as the impacts
of primary concern. They noted that according to prior Navy analysis,
the 175-180 dB (rms) annulus has an average ``take'' risk of 91.5
percent, the 170-175 dB (rms) annulus a take risk of 80.5 percent, the
165-170 dB (rms) annulus a risk of 61.5 percent, the 160-165 dB annulus
a risk of 38.5 percent (rms), the 155-160 dB annulus a risk of 18
percent, and the 150-155 dB annulus a risk on the order of 8-9 percent
(see 2007 SEIS at 4-74). They stated that given the greater area
subsumed within the lower-decibel annuluses, the number of takes
occurring within even the 150 dB annulus can be high, despite the lower
relative risk. NRDC et al. stated that the geographic sound field
operational constraints designed to eliminate LFA exposures out to at
least 150 dB (rms) are likely to be practicable for most, if not all,
OBIAs, as the Navy already avoids dive sites out to 145 dB (rms) (DSEIS
at 5-5), nominally requiring a greater mitigation distance than a 150
dB (rms) standoff would entail. They stated that the Navy's broad claim
of impracticability for any mitigation threshold lower than 180 dB
exemplifies the non-rigorous rationalizing that the court in
Conservation Council found unconvincing and unsupportable under the
MMPA (See 97 F.Supp.3d at 1229-31). NRDC et al. stated that NMFS'
``practicability criterion'' requires a site-specific discussion, with
the Navy, of any OBIA that the Navy initially determines to be
impracticable, to see if a modification of the OBIA can address the
issue. They recommended that the Navy and NMFS presumptively adopt a
150 dB (rms) mitigation distance from each OBIA, except where
geographically specific, clearly stated operational needs make such a
distance impracticable, in which case it should adopt the largest
practicable distance, to be determined on a case-by-case basis
according to the procedure set forth in the ``practicability
criterion.''
Response: After the development of NMFS' 2018 Acoustic Technical
Guidance, NMFS and the Navy reevaluated the use of 180 dB re: 1 [mu]Pa
rms as the basis for the LFA mitigation zone and concluded that 180 dB
would be retained as the mitigation basis (see the Mitigation section
of this final rule and Chapter 5, Section 5.2 of the 2019
[[Page 40147]]
SURTASS LFA FSEIS/SOEIS for details on this reevaluation). However, in
consideration of updated PTS and TTS thresholds, the 180 dB threshold
for the OBIA and the coastal exclusion zone boundaries is expected to
preclude not only PTS at the outer perimeter of these areas, but also
likely some instances of TTS and more severe forms of Level B
harassment by behavioral disruption. Moreover, the 180 dB threshold
applies at a distance 1 km from OBIA boundaries, further reducing
exposure levels at the OBIA perimeters to approximately 174 dB. In
addition, the likelihood and severity of behavioral harassment is
further reduced within these important areas as maximum received levels
in these areas are even lower the farther an animal is from the
perimeter and the farther the vessel is from the edge. In other words,
while an individual in the coastal exclusion zone might be exposed to
levels as high as 180 dB (174 dB if in an OBIA, given the 1 km buffer)
briefly if animal is at the edge and a SURTASS LFA vessel has
approached at the closest allowable distance from the edge--the
majority of individuals within the area will always be exposed to
levels increasingly lower than that (the farther they are from the
edge), plus the vast majority of the time SURTASS LFA vessels will not
be right at the edge. Therefore, while this mitigation measure based on
180 dB will not totally avoid all takes within OBIAs, it will
meaningfully reduce both the number and severity of takes within these
important areas significantly by ensuring that the majority of
individual marine mammals within these areas are exposed to lower
levels with lower probabilities of being taken, and less severe
responses if the take occurs.
Regarding the comments about practicability, NMFS and the Navy have
thoroughly evaluated the practicability of all of the mitigation
measures, including the OBIAs and their associated 180-dB zones, and in
consideration of public comments have added an additional measure to
further minimize behavioral harassment within OBIAs. Specifically, no
more than 25 percent of the authorized amount of SURTASS LFA sonar will
be used for training and testing within 10 nmi (18.5 km) of any single
OBIA during any year unless it is required for national security,
permission is obtained from the appropriate designated Command
authority prior to commencement of the activity, NMFS is notified as
soon as is practicable, and these sonar hours are reported in annual
activity reports. This measure ensures that exposures (and thereby
probability and severity of Level B harassment) to LFA sonar of
individuals within OBIAs will be even further limited, both in received
level and time. Specifically, the already protective circumstances
described for OBIAs above will be in place up until an OBIA has been
exposed to LFA sonar for 124-148 hours per year; beyond that number of
hours, the maximum received level an individual may be exposed to (when
both the animal is at the edge and the vessel at its closest approach)
would be substantially reduced and, as described above, any marine
mammals further within the OBIA would be exposed to even lower levels,
and even lower when the vessel is not right at the edge.
Further, it is inappropriate to compare the 145-dB zone around dive
sites to the 180-dB zone around OBIAs, as they have different purposes
and are subject to different requirements. Whereas the goal of the 145-
dB zone around dive sites is generally to avoid any impacts to human
divers and is in no way associated with the requirements of the MMPA,
take of marine mammals is expected and authorized to occur, but as
required by the MMPA, NMFS and the Navy have ensured that the extensive
suite of measures required will effect the least practicable adverse
impact.
Comment 21: NRDC et al. stated that the criteria NMFS adopted
[NMFS' Acoustic Technical Guidance], following the Navy, to estimate
temporary and permanent threshold shift in marine mammals are erroneous
and non-conservative. They stated that Wright (2015) identified several
statistical and numerical faults in the Navy's approach, such as
pseudo-replication and inconsistent treatment of data that tend to bias
the proposed criteria towards an underestimation of effects. NRDC et
al. stated that similar and additional issues were raised by a dozen
scientists during the public comment period on the draft Acoustic
Technical Guidance held by NMFS and noted that at the root of the
problem is the agencies' broad extrapolation from a small number of
individual animals, mostly bottlenose dolphins, without taking account
of what Racca et al. (2015) have succinctly characterized as a ``non-
linear accumulation of uncertainty.''
Response: NMFS disagrees with this characterization of the Acoustic
Technical Guidance and the associated recommendation. The Acoustic
Technical Guidance is a compilation, interpretation, and synthesis of
the scientific literature that provides the best scientific information
regarding the effects of anthropogenic sound on marine mammals'
hearing. The Technical Guidance was classified as a Highly Influential
Scientific Assessment and, as such, underwent three independent peer
reviews, at three different stages in its development, including a
follow-up to one of the peer reviews, prior to its dissemination by
NMFS. In addition, there were three separate public comment periods,
during which time we received and responded to similar comments on the
guidance (81 FR 51694; August 4, 2016), which we cross-reference here,
and more recent public and interagency review under Executive Order
13795. This review process was scientifically rigorous and ensured that
the Guidance represents the best scientific data available.
Furthermore, the recent peer-reviewed updated marine mammal noise
exposure criteria by Southall et al. (2019) provide identical PTS and
TTS thresholds to those provided in NMFS' Acoustic Technical Guidance.
NMFS disagrees with any suggestion that the use of the Acoustic
Technical Guidance provides erroneous results. The use of the 180-dB
rms threshold to identify where PTS would occur is plainly outdated, as
the best available science indicates that rms SPL is not an appropriate
metric by which to gauge potential auditory injury (whereas the
scientific debate regarding thresholds for Level B harassment by
behavioral disruption is not about the proper metric but rather the
proper level or levels and how these may vary in different contexts).
Regarding the suggestion that the thresholds are non-conservative,
multiple studies from humans, terrestrial mammals, and marine mammals
have demonstrated less TTS from intermittent exposures compared to
continuous exposures with the same total energy because hearing is
known to experience some recovery in between noise exposures, which
means that the effects of intermittent noise sources such as tactical
sonars are likely overestimated. Marine mammal TTS data have also shown
that, for two exposures with equal energy, the longer duration exposure
tends to produce a larger amount of TTS. Most marine mammal TTS data
have been obtained using exposure durations of tens of seconds up to an
hour, much longer than the durations of many tactical sources (much
less the continuous time that a marine mammal in the field would be
exposed consecutively to those levels), further suggesting that the use
of these TTS data are likely to overestimate the effects of sonars with
shorter duration signals.
Regarding the suggestion of pseudo-replication and erroneous
models, since
[[Page 40148]]
marine mammal hearing and noise-induced hearing loss data are limited,
both in the number of species and in the number of individuals
available, attempts to minimize pseudo-replication would further reduce
these already limited data sets. Specifically, with marine mammal
behavioral temporary threshold shift studies, behaviorally derived data
are only available for two mid-frequency cetacean species (bottlenose
dolphin, beluga) and two phocids (in-water) pinniped species (harbor
seal and northern elephant seal), with otariid (in-water) pinnipeds and
high-frequency cetaceans only having behaviorally-derived data from one
species. Arguments from Wright (2015) regarding pseudo-replication
within the TTS data are therefore largely irrelevant in a practical
sense because there are so few data points. Multiple data points were
not included for the same individual at a single frequency. If multiple
data points existed at one frequency, the lowest TTS onset was always
used. There is only a single frequency where TTS onset data exist for
two individuals of the same species: 3 kHz for dolphins. Their TTS
(unweighted) onset values were 193 and 194 dB re 1 [mu]Pa\2\s. Thus,
NMFS believes that the current approach makes the best use of the given
data. Appropriate means of reducing pseudo-replication may be
considered in the future, if more data become available. Many other
comments from Wright (2015) and the comments from Racca et al. (2015b)
appear to be erroneously based on the idea that the shapes of the
auditory weighting functions and TTS/PTS exposure thresholds are
directly related to the audiograms; i.e., that changes to the composite
audiograms would directly influence the TTS/PTS exposure functions
(e.g., Wright (2015) describes weighting functions as ``effectively the
mirror image of an audiogram'' (p. 2) and states, ``The underlying goal
was to estimate how much a sound level needs to be above hearing
threshold to induce TTS.'' (p. 3)). Both statements are incorrect and
suggest a fundamental misunderstanding of the criteria/threshold
derivation. This would require a constant (frequency-independent)
relationship between hearing threshold and TTS onset that is not
reflected in the actual marine mammal TTS data. Attempts to create a
``cautionary'' outcome by artificially lowering the composite audiogram
thresholds would not necessarily result in lower TTS/PTS exposure
levels, since the exposure functions are to a large extent based on
applying mathematical functions to fit the existing TTS data.
Comment 22: NRDC et al. stated the proposed rule gives little
consideration to expanding the LFA coastal exclusion zone, assuming,
based on its analysis in prior environmental reviews, that its standoff
distance should remain 12 nmi from shore. The commenters stated that
this reliance on prior analyses is not supportable.
Response: As described in the Mitigation section, the Navy's 2007
SURTASS LFA FSEIS/SOEIS evaluated increasing the coastal standoff
distance up to 46 km (25 nmi). Based on a six-step analysis process,
its analysis showed that increasing the coastal standoff range would
decrease exposure to higher received levels for concentrations of
marine animals closest to shore, but would do so at the expense of
increasing exposure levels for shelf break and pelagic species. This
result is due to the reduced overlap of the exposure area with land
leading to an increase in exposure area as the sound source moves
farther offshore. There have been no changes to the best available
scientific information or other indications that the coastal standoff
distance should be increased since this analysis; therefore, there is
no change in this mitigation measure from previous rulemakings.
Nonetheless, it is also erroneous to say that the new rule gives no
consideration to further extending the coastal exclusion, given the
extensive analysis of the White Paper (see Mitigation section and
response to Comment 23 immediately below), which included a
recommendation for a larger coastal exclusion. As noted in the 2012
final rule (77 FR 50290; August 20, 2012), over 80 percent of the
existing and potential marine protected areas reviewed were within 12
nmi from a coastline, indicating the effectiveness of the coastal
standoff as one of the primary mitigation measures for reducing
potential impacts to marine mammals. OBIAs expand upon this protection
by avoiding or minimizing impacts in areas beyond the coastal standoff
distance where marine mammals are known to engage in specific behaviors
that may lead to more severe impacts if interrupted; known to
congregate in higher densities; and/or known to have a limited range
and small abundance that creates more vulnerability for the stock as a
whole. These criteria are important when determining whether mitigation
would be likely to reduce the probability of effects to individuals
that would translate to minimization of impacts at the population level
under the LPAI standard.
Comment 23: NRDC et al. noted that they have called on the Navy and
NMFS to adopt a more expansive, more biologically meaningful coastal
exclusion, particularly one that protects the continental shelf and
slope with a standoff from the shelf break. They noted that NMFS' own
subject-matter experts, in the White Paper, recommend that, absent
specific data to the contrary, ``all continental shelf waters and
waters 100 km of the continental slope should be designated as
biologically important habitat for marine mammals.'' They recommended
that NMFS, in consultation with the Navy, should consider alternative
coastal exclusion areas.
Response: NMFS carefully considered the White Paper's
recommendations and we present an evaluation of the White Paper's
recommendation to restrict LFA sonar transmissions from all continental
shelf waters and waters 100 km seaward of continental slope in the
White Paper Specific Recommendations subsection of the Mitigation
section. As discussed in this section, given the other mitigation
measures we are requiring, takes of marine mammals would be limited to
Level B harassment in the less severe range of behavioral reactions and
some TTS, as described above. Consequently, the only additional
anticipated value to restricting SURTASS LFA sonar activities in
continental shelf waters and waters 100 km seaward of continental slope
would be some potential, though not certain or significant, reduction
in the number of less severe behavioral reactions in those areas. In
general, not all behavioral responses rise to the level of a take and
not all harassment takes result in fitness consequences to individuals
that have the potential to translate to population consequences to the
species or stock. Given the anticipated impacts of SURTASS LFA sonar,
there is little to no likelihood that the impacts of the anticipated
takes would accrue in a manner that would impact a species or stock
even in the absence of any additional mitigation. Considered with the
uncertain potential of this proposed recommendation to provide
meaningful incremental reduction of risk or severity of impacts to
individual marine mammals, NMFS concludes that this recommendation
would not reasonably be expected to provide a reduction in the
probability or degree of effects on any marine mammal species or
stocks. Moreover, NMFS discusses why the measure would not be
practicable for the Navy to implement. NMFS acknowledges that while
these measures could potentially reduce the numbers of
[[Page 40149]]
takes of some individual marine mammals within a limited number of
species, or could add some small degree of protection to preferred
habitat or feeding behaviors in certain circumstances, this limited and
uncertain benefit did not justify adopting the White Paper's
recommendations considering the existing mitigation measures already
implemented by the Navy and the high degree of impracticality for Navy
implementation.
Offshore Biologically Important Areas (OBIAs)
OBIA Criteria/Evaluation Process
Comment 24: The Commission noted that a lack of data or
insufficient data regarding marine mammal presence and abundance is not
an adequate basis for failing to adopt precautionary measures,
especially when such data are not available for most of the world's
oceans. The Commission noted it made this point in its 2011 letter on a
previous DSEIS and the U.S. Court of Appeals for the Ninth Circuit
remanded the SURTASS LFA sonar case on that basis. The Commission
stated that the Ninth Circuit indicated that NMFS and the Navy should
have considered whether a precautionary approach would give more
protection to marine mammals, and then whether that protection would
impede military training to a degree that makes such mitigation
impracticable. The Commission stated that it appears that NMFS is
failing to take a sufficiently precautionary approach, particularly
with respect to the Pacific Remote Island MNM.
Response: We acknowledge that the Ninth Circuit opinion stated that
NMFS ``should have considered whether `the precautionary approach'
would give more protection to marine mammals, and then whether that
protection would impede military training to a degree making that
mitigation not practicable.'' Pritzker, 828 F.3d at 1138. The Court
went on to fault NMFS for not considering the White Paper's
recommendations. Taken in the context of the Court's full discussion,
however, we read the Ninth Circuit's use of the term ``the
precautionary approach'' as specifically referring to the
recommendations in the White Paper for designating OBIAs in ``data-
poor'' regions of the ocean (described therein as a precautionary
approach for designating OBIAs), rather than a broader mandate to adopt
a ``precautionary approach'' in carrying out the requirements of the
statute.
In response to the Ninth Circuit's opinion and in the context of
the LPAI standard, for this rulemaking NMFS directly considered the
White Paper recommendations (see discussion of the White Paper
recommendation in the Mitigation section). We considered the factors as
instructed by the Court, although we ultimately did not adopt the White
Paper's recommendations.
NMFS' interpretation of the Ninth Circuit's opinion is based on the
fact that neither the MMPA nor NMFS' implementing regulations include
references to, or requirements for, the precautionary approach, nor is
there a clear, agreed-upon description of what the precautionary
approach is or would entail in the context of the MMPA or any specific
activity. Nevertheless, the MMPA by nature is inherently protective,
including the requirement to mitigate to the lowest level practicable
(``least'' practicable adverse impacts, or ``LPAI,'' on species or
stocks and their habitat).\1\ This requires that NMFS assess measures
in light of the LPAI standard. To fulfill that requirement, NMFS
considers all measures that we are reasonably aware of (e.g., from
recommendations or review of data) that have the potential to reduce
impacts on marine mammal species or stocks, their habitat, or
subsistence uses of those stocks, regardless of whether those measures
are characterized as ``precautionary'' or address ``data-poor'' areas.
Through the LPAI standard, NMFS considers ``precautionary''
recommendations such as those contained in the White Paper. As
discussed below, the OBIA process specifically allows for consideration
of areas that could be characterized as relatively ``data-poor'' and we
also considered measures that provide for mitigation in data-poor areas
under the LPAI standard (independent of the OBIA process, i.e., the
White Paper). In short, we believe the requirements of section
101(a)(5)(A), including the LPAI standard, have been satisfied.
---------------------------------------------------------------------------
\1\ We are aware of statements we made in the preamble for our
2001 incidental take regulations for the Navy's ship shock tests (66
FR 22450, 22453 (May 4, 2001)), in which we evaluated the impact of
underwater detonations that propagate shock waves through a ship's
hull under deliberate and controlled conditions to simulate near
misses from underwater explosions similar to those encountered in
combat. In that case, NMFS was authorizing up to four mortalities
and six non-serious injuries of various species. During that
rulemaking we received a public comment stating that in the absence
of adequate data, NMFS and the Navy should apply the precautionary
principle, ``the fundamental elements of the principle being: the
existence of some indication of threat of harm; the harm is serious
or irreversible; scientific uncertainty as to the nature or severity
of the outcome; and an obligation on decision-makers.'' Our response
said:
The MMPA prohibits the taking of marine mammals unless exempted
or permitted. Taking means to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.
Therefore, NMFS believes that the precautionary principle is already
at the core of the MMPA. However, because the MMPA authorizes the
taking of marine mammals under section 101(a)(5), provided certain
conditions and requirements are met, NMFS must prudently apply the
Precautionary Principle through careful analysis of impacts and
implementation of measures that will reduce impacts to marine
mammals to the lowest level practicable. As described in this
document, NMFS believes that it and the Navy have applied the
Precautionary Principle to the greatest extent possible for this
action through an extensive aerial monitoring and mitigation program
that will protect marine mammals to the greatest extent practicable.
The mitigation and monitoring program are discussed later in this
document. In addition, NMFS and the Navy have applied the
precautionary principle by having the decision-making process in the
public forum through NEPA and notice and comment rulemaking.
Taken as a whole, we do not view that response as inconsistent
with our current position. We agree here that the MMPA is inherently
protective. As for the mitigation imposed for the ship shock trials,
we said we conducted a careful analysis of impacts and
implementation of measures that will reduce impacts to marine
mammals to the lowest level practicable. This consisted of an
extensive aerial monitoring program, delaying detonations, and
requirements for good visibility and daylight. Those specific
measures would be appropriate under the LPAI approach we set forth
in this rule assuming similar circumstances. The risks to individual
marine mammals from the ship shock tests were potentially
irreversible in terms of acute impacts to fitness in light of the
nature of the specified activity, and the mitigation and monitoring
measures were deemed appropriate to achieve the LPAI standard.
---------------------------------------------------------------------------
The Ninth Circuit's Pritzker decision faulted NMFS for not
considering the White Paper mitigation recommendations for ``data-poor
areas'' against the OBIA standards NMFS had set for the 2012 rule. We
do not read the opinion as holding that the MMPA compelled a change in
the criteria and process for evaluating OBIAs. Again, NMFS addressed
the Court's decision by separately and independently evaluating the
White Paper's recommendations for benefits to the affected species or
stocks and practicability, without regard to the OBIA criteria. Using
the best available information, NMFS considered the recommendations in
the White Paper under our interpretation of the LPAI standard and
determined the measures (as well as smaller buffer distances) were not
warranted, as described in those sections of this rule.
In reaching the conclusion that NMFS' record for the 2012 rule did
not establish the agency had satisfied the LPAI standard, the Court
determined that NMFS failed to consider an important aspect of the
problem, ``namely the underprotection that accompanies making
conclusive data an indispensable component of OBIA designation,'' and
that this ``systematic underprotection of marine mammals''
[[Page 40150]]
cannot be consistent with the requirement that mitigation measures
result in the ``least practicable adverse impact'' on marine mammals.''
Pritzker, 828 F.3d 1125 at 1140. While we have corrected the identified
deficiency by evaluating the White Paper measures independent of the
OBIA criteria, we disagree with the suggestion that the prescribed
mitigation is systematically underprotective.
We emphasize that NMFS' (and the Navy's) informational standards
for OBIAs and other mitigation measures, while data-driven, do not
require scientific certainty or conclusive data. This is illustrated by
the fact that the OBIA criteria and factors allow for consideration of
a variety of information sources, including historic whaling data,
stranding data, sightings information, and regional expertise, to name
a few examples of the data considered. As more detailed in Appendix C
of the 2019 SURTASS LFA FSEIS/SOEIS, supporting documents that are
considered include peer-reviewed articles; scientific committee
reports; cruise reports or transects; personal communications or
unpublished reports; dissertations or theses; books, government
reports, or NGO reports; and notes, abstracts, and conference
proceedings. In fact, NMFS has designated OBIAs for areas based on
these types of information sources (whaling data, stranding data,
unpublished reports, etc.). For example, the evidence supporting the
designation of the Southern Bali OBIA (designated in this rule) is
largely from an unpublished report of line-transect surveys and the
National Marine Mammal Stranding Network of Indonesia.
Thus, we disagree that we are failing to take a sufficiently
precautionary approach. The Pacific Remote Islands Marine National
Monument (Wake/Johnson/Palmyra atolls and Kingman Reef Units, which are
located in the SURTASS LFA Study Area) was on the OBIA Watchlist and
was considered as a candidate OBIA. NMFS and the Navy reviewed all
available data and no specific important biological behaviors of marine
mammals have been characterized in these waters. As such, this marine
area did not meet the biological criteria required for designation of
an OBIA and was not further considered currently as an OBIA.
Comment 25: The Commission stated its concern that although NMFS
has identified potential OBIAs it might include in the final rule, it
has neither specified which ones it actually is proposing to include
nor provided any assessment of whether it believes including specific
areas that meet the designation criteria would be practicable. Rather,
NMFS has only requested public comment on whether any of the potential
areas satisfy the OBIA criteria, after which time the Navy and NMFS
would, apparently without any additional public input, evaluate the
practicability of those measures to avoid or reduce impacts in those
areas. The Commission stated that NMFS' approach effectively undermines
the ability of the Commission and others to provide informed comments
on that portion of the proposed rule.
Response: In the Federal Register notice of the proposed rule, we
described the process NMFS and the Navy used to identify and evaluate
potential OBIAs and presented 25 areas considered for potential
designation as new OBIAs for this rulemaking. We presented the draft
analysis for these potential OBIAs using the identified OBIA criteria
and factors in a document entitled Potential Marine Mammal OBIAs for
SURTASS LFA Sonar; Marine Areas Under Consideration. Through the
proposed rule, the public had the opportunity to comment on the OBIA
analysis and designation process (including practicability) and
potential OBIAs (including recommending additional OBIAs). As noted in
response to Comment 15, we disagree that the ability to provide
informed comments was undermined, given the public was provided a
discrete, manageable list of potential OBIAs supported by our
preliminary analysis, and that NMFS was accepting and addressing input
regarding biological qualifications and practicability. Further, as
always, NMFS will also consider entirely new recommendations for OBIAs
through the adaptive management process, and will do so utilizing the
process and types of information described in the proposed rule.
Comment 26: NRDC et al. recommended that NMFS reconsider the
guidelines for capturing biologically important marine mammal habitat
in data-poor areas that its subject-matter experts provided during the
last LFA authorization cycle (in the White Paper) and that were
addressed by the Ninth Circuit. NRDC et al. stated that information on
cetacean distribution and habitat use demonstrate that the White Paper
guidelines (as described in their additional comments on OBIAs) hold
true in almost every case, with important marine mammal habitat areas
occurring along continental shelf and shelf edge waters (e.g., the
multi-species migratory route off western Australia), around seamounts
and island systems (e.g., the humpback whale feeding area supported by
the bathymetric and oceanographic complexity of the Commander Islands),
and in other areas of high productivity (e.g., the multi-species
feeding area supported by the North Pacific Transition Zone). NRDC et
al. recommend that NMFS reconsider the White Paper guidelines.
Response: See response to Comment 23. NMFS carefully considered the
White Paper's recommendations and we present an evaluation of the White
Paper's recommendations in the White Paper Specific Recommendations
subsection of the Mitigation section.
Comment 27: NRDC et al. recommended that NMFS consider alternative
habitat models and (particularly in the Northwest Pacific) additional
line-transect data for identifying areas of biological importance. NRDC
et al. stated that it is prudent for NMFS to consider alternative
modeling approaches capable of accounting for non-standardized
collection of survey data and opportunistic sightings such as those
presented in Corkeron et al. (2011), Lambert et al. (2014), and
Mannocci et al. (2015). NRDC et al. noted that the IWC-POWER large-area
transect surveys conducted by Japan over the last decade provide a
basis for empirically grounded modeling and identification of high-
density habitat for most of the Navy's Northwest Pacific operations
area. NRDC et al. note that NMFS now has the data needed to conduct a
data-based analysis in this region at least, satisfying its own
criteria for OBIA identification. NRDC et al. recommended that NMFS
should consult the same subject-matter experts it drew upon during the
last authorization cycle, who are the agency's experts in marine mammal
habitat modeling in the North Pacific.
Response: NMFS and the Navy are aware of the active area of
research in developing habitat-based models that extrapolate cetacean
densities beyond surveyed regions. For example, the Navy and NMFS were
reviewers of and used the results of Mannocci et al. (2017) for the
U.S. Navy's Atlantic Fleet Training and Testing area NEPA analyses and
MMPA rulemaking. As previously noted in the response to Comment 3, it
is possible that the sighting results from the IWC-POWER cruises could
be used to extrapolate density and abundance estimates throughout the
North Pacific in the future, using the methods developed by Mannocci et
al. (2015) that were applied to extrapolate density estimates in the
North Atlantic (Mannocci et al., 2017). Cruise reports through 2017 are
[[Page 40151]]
available online, with cruises continuing for another few years. When
additional results are available, NMFS and the Navy will consider use
of these methods to extrapolate density and abundance estimates that
could inform identification of biologically important areas through the
Adaptive Management process. Lambert et al. (2014) used the simulated
distribution of micronekton from the Spatial Ecosystem And Population
Dynamics Model (SEAPODYM) to predict the habitat of three cetacean
guilds in tropical waters. While their results provide some interesting
insights into the use of predicted prey maps in cetacean distribution
models, they are best used to prioritize future research areas.
Corkeron et al. (2011) developed statistical methods for using
spatially autocorrelated sighting results to identify the Dhofar coast
of Oman as an important region for the Arabian Sea DPS of humpback
whales. However, the Dhofar coast of Oman is outside of the SURTASS LFA
sonar Study Area and Corkeren et al. (2011) state ``Although it is
theoretically possible for us to project model predictions into other
areas, we consider this inadvisable, as our basic design was not to
make inference about the distribution of humpback whales along the
entire Oman coast.'' Therefore, though its statistical models could be
applied to sightings data within the SURTASS LFA Study Area, the
humpback whale results are not applicable. NMFS and the Navy will
continue to consider, discuss and examine the utility of these models
for identifying important areas for marine mammals in the SURTASS LFA
sonar Study Area.
Comment 28: NRDC et al. recommended that NMFS and the Navy
communicate directly with researchers in the Indian Ocean and Asia to
identify potential areas of biological importance, including areas with
high cetacean abundance. NRDC et al. included a list of contacts in
their comment letter (Appendix).
Response: NMFS and the Navy acknowledge the importance of regional
input to identify and gather data for areas of biological importance to
marine mammals for which information may not be available in published
literature. To obtain the best available data for each potential OBIA,
NMFS and the Navy conducted a deep and comprehensive literature review.
As described in the response to Comment 24 the Navy and NMFS considered
a variety of information sources when evaluating the potential of an
area as an OBIA (detailed in Appendix C of the 2019 SURTASS LFA FSEIS/
SOEIS), including information gathered from regional experts. NMFS and
the Navy contacted regional experts when available information was not
sufficient to determine whether an area met the OBIA criteria and
factors. In these cases NMFS and the Navy contacted regional
researchers known to be conducting research or surveys in the area. The
Navy and NMFS contacted marine mammal researchers in the Marianas and
Guam region to request copies of their marine mammal sighting data to
gain an understanding about the areas already identified via survey
effort where marine mammals may be aggregating and conducting
biologically important behaviors. We also provided the opportunity for
regional researchers to comment on the potential OBIAs and the OBIA
analysis, and to suggest additional OBIAs for consideration through the
public comment process on the proposed rule and the 2018 SURTASS LFA
DSEIS/SOEIS. In addition to using information gathered from regional
experts and presented in reports with regional authors (for example,
through the IMMA and EBSA designation process), as noted in response to
Comment 24 and detailed in Appendix C of the 2019 SURTASS LFA FSEIS/
SOEIS, we also used a variety of supporting documents including peer-
reviewed articles; scientific committee reports; cruise reports or
transects; personal communications or unpublished reports;
dissertations or theses; books, government reports, or NGO reports; and
notes, abstracts, and conference proceedings. At any rate, NMFS and the
Navy have considered the best available science in the development of
this SURTASS LFA sonar final rule. Given limited agency resources, the
limited likely value added beyond our already extensive research, and
the fact that there is no requirement that the agency communicate
directly with all experts in a particular topic, we have not contacted
all of the individuals recommended by NRDC.
In a related effort, NMFS and the Navy have obligated funding to
convene a Working Group/Expert Elicitation effort (beginning in 2020)
to update existing Biologically Important Areas and identify new areas
outside of the U.S. Exclusive Economic Zone (EEZ). As applicable, the
results of this effort would be considered through the adaptive
management provision of the rule.
Comment 29: NRDC et al. expressed concern that NMFS' selection
criteria for OBIAs maintain an evidentiary requirement that exceeds the
information available for most of the LFA operations area. See, e.g.,
84 FR at 7234 (noting that ``best source'' of data demonstrating high
marine mammal densities ``is publicly-available, direct measurements
from survey data''). NRDC et al. stated that while NMFS' criteria do
allow for use of ``other available data or information,'' they do so
only if ``those data and information, either alone or in combination
with limited direct data, are sufficient to establish that at least one
of the biological criteria are present,'' and that it remains unclear
from this description what evidentiary standard will apply to the
consideration of OBIAs where direct data are not available.
Response: NMFS does not require ``conclusive data'' \2\ for
imposing conservation and management measures for SURTASS LFA sonar,
including--though not only--in the case of OBIAs (see response to
Comment 24). As another example of the incorporation of data poor areas
in mitigation measures, the coastal standoff zone uniformly applies not
only in areas with supporting data about marine mammals (80 percent of
the areas initially identified for OBIA consideration in 2012 were
within the 12 nmi (22 km) coastal standoff) but also in areas that
could be fairly characterized as data poor. In addition, shutdown
protocols will be in effect wherever SURTASS LFA sonar activities
occur, including in areas where data are limited.
---------------------------------------------------------------------------
\2\ NRDC v. Pritzker, 828 F.3d 1125, 1140 (9th Cir. 2016).
---------------------------------------------------------------------------
Comment 30: NRDC et al. stated that as it did during the most
recent authorization cycle, NMFS proposes to exclude from OBIA
consideration all marine mammals that do not exhibit low-frequency
specialization, excepting sperm whales and elephant seals, and that
this position remains non-precautionary and inappropriate. They state
that the Navy did not include odontocetes in the LFA SRP which it
continues to take as the exclusive data source for estimating impacts
from the LFA system, notwithstanding that study's age and limitations.
NRDC et al. noted that recent meta analyses of the ocean noise
literature indicates that, taken as a whole, the odontocetes are
behaviorally reactive to predominantly low-frequency sources of noise,
in ways that are consistent with a higher potential for effects on
vital rates, at exposure levels that would put them well outside the
LFA shutdown zone (Gomez et al., 2016; Bowles et al., 1994).
NRDC et al. goes on to state that literature has also demonstrated
that some species, such as harbor porpoises and beaked whales, are
particularly
[[Page 40152]]
sensitive to a diversity of anthropogenic sounds, including sounds of
predominantly low frequency; and physiological research on finless
porpoise indicates that a heightened sensitivity to lower-frequency
sound may be conserved across porpoise species (Liu, 1985; Li et al.,
2008). They indicated that several studies have reported harbor
porpoise behavioral responses to pile driving sounds (Tougaard et al.,
2009; Bailey et al., 2010; Brandt et al., 2011; Dahne et al., 2013;
Parsons, 2017) and beaked whale behavioral responses to commercial
shipping sounds and European LFAS systems (between 1 and 2 kHz)
(Aguilar de Soto et al., 2006; Pirotta et al., 2012; Miller et al.,
2015; Sivle et al., 2015) and that some of these responses occurred at
distances beyond 20 km (e.g., beyond the 1 km safety zone in proposed
mitigation). NRDC et al. stated that according to a recent paper on the
vulnerability of range-limited populations to acoustic impacts, failure
to consider the effects of both noise exposure and displacement of
Cuvier's beaked whales from their habitat in this region ``could lead
to more severe biological consequences than `Level B Harassment'''
(Forney et al., 2017). NRDC et al. state it is ``improper to exclude
these acoustically sensitive species from OBIA mitigation,'' and that
the Navy and NMFS must take a precautionary approach to harbor
porpoises and beaked whales, both in analyzing impacts and in
considering habitat-based mitigation measures.
Response: One of the factors that the Navy and NMFS consider in the
designation of OBIAs, established in the 2012 FSEIS/SOEIS (DoN, 2012)
and carried forward in the current OBIA assessment process, is that the
OBIA protective measures pertain to those species most likely to be
affected by exposure to LFA sonar transmissions, namely LF sensitive
species such as baleen whales. Thus, the primary focus of the OBIA
mitigation measure is on LF hearing specialist species. However, as
noted in the proposed rule, OBIAs have been designated for non-LF
hearing specialists, such as elephant seals and sperm whales, since the
available hearing data for these species indicate an increased
sensitivity to LF sound (compared to most odontocetes and pinnipeds).
Therefore, contrary to the comment's assertion, NMFS did not propose to
exclude from OBIA consideration all marine mammals that do not exhibit
low-frequency specialization. The very fact that we acknowledged that
OBIAs could be appropriate for sperm whales and elephant seals negates
that assertion, and nothing in the proposed rule suggested that NMFS
would not consider other species with increased sensitivity to LF
sound, if data indicate that it is appropriate. As described in this
rule, the hearing sensitivity of other taxa (MF and HF cetaceans) is
such that their sensitivity to the LFA signal is reduced by 40 to 50
dB, meaning that source has to be much louder for the animal to hear
it, and therefore to potentially be behaviorally harassed by it. The
Navy will implement a near-100 percent-effective mitigation measure for
minimizing impacts when marine mammals are in close proximity to the
LFA sonar source (passive and active acoustic and visual detection and
shutdown), and it also restricts transmissions within the coastal
standoff range, which encompasses the majority of biologically
important habitats.
NMFS and the Navy are aware of the publications discussed by NRDC
et al. NMFS and the Navy have considered all available data on
potential impacts to marine mammal species and stocks in their
analyses, not just the SURTASS LFA sonar SRP. Very few studies (many
are described by the commenters) have examined odontocete behavioral
responses to LF sounds. Those that have been conducted largely focus on
sounds that include both the frequencies produced by LFA sonar (100-500
Hz) and also higher frequencies (greater than 500 Hz), or LFA sonar
sounds at higher frequencies than proposed by the Navy (e.g., European
LFA sonar between 1 and 2 kHz). For example, the sounds produced by
pile driving, seismic surveys, and vessel movement are broadband, low-
frequency sounds (i.e., containing frequencies greater than 500 Hz),
and pile driving and seismic survey sounds are more impulsive in nature
than LFA sonar. Further, some of the responses documented in the
studies cited are lower level behavioral responses that would not
necessarily rise to the level of MMPA harassment. It is true that the
quantitative estimates of takes for all marine mammals are derived from
the LFA risk continuum, which is based on the behavioral responses of
LF hearing specialists (baleen whales) collected with an actual SURTASS
LFA sonar source. As such, these data are realistic contextually and
remain the best available for quantifying the response of LF-sensitive
marine mammals to the SURTASS LFA sonar source (see also response to
Comment 9). Because the LFA risk continuum was developed based on the
responses of marine mammal species with the most sensitive LF hearing,
the LFA risk continuum is conservative in that it is anticipated to
overestimate the responses of other species that are less sensitive to
LF sounds.
Comment 31: NRDC et al. stated that NMFS' 2012 rule required the
Navy to advance research on the impacts of LFA sonar on beaked whales
and harbor porpoises, first, by convening an independent Scientific
Advisory Group to make research and monitoring recommendations and,
second, by either promulgating a plan of action to implement the
Advisory Group's recommendations or submitting a written response to
NMFS explaining why they are infeasible. NRDC et al. requested a copy
of any Scientific Advisory Group and Executive Oversight Group reports
and recommendations and asked that they be made available to the
public.
Response: The Navy completed an assessment of the validity, need,
and recommendations for field research and/or laboratory research on
the potential effects of SURTASS LFA sonar on beaked whales and harbor
porpoises in a final report submitted to NMFS in July 2017, prior to
the expiration of the 2012 MMPA rule. One research project was funded
to study the spatial overlap of SURTASS LFA sonar activities with
harbor porpoise habitat to bound the potential for impacts. Given the
larger overlap of SURTASS activities with beaked whale populations (as
compared to harbor porpoises, which have very little overlap with
SURTASS activities) and the relative lack of data regarding beaked
whale responses to LFA sonar, the Navy has agreed to initiate a formal
feasibility study through the Living Marine Resources program to assess
the value, practicality, and cost of designing and conducting a
controlled exposure experiment to measure the effects of LFA sonar on
beaked whales (as well as other marine mammals--see response to Comment
10).
The 2013 Scientific Advisory Group report on beaked whales and
harbor porpoises can be found at: https://www.surtass-lfa-eis.com/downloads/. While there is no Executive Oversight Group report, the
Executive Oversight Group recommendations are summarized in the 2017
report Beaked Whale and Harbor Porpoise Monitoring and Reporting
Requirements which can also be found at: https://www.surtass-lfa-eis.com/downloads/.
Comment 32: NRDC et al. recommended that in line with NMFS' intent
in previous authorizations, that frequency specialization be considered
as one factor among several in determining the relative importance of a
[[Page 40153]]
potential OBIA. NRDC et al. noted that the agency can then focus their
practicability analysis for odontocete species on the most biologically
important habitat. NRDC et al. noted that NMFS should give careful
analysis to areas of high marine mammal biodiversity, which are also
likely to be areas of high marine biodiversity--appropriate given the
increasing evidence of impacts of low-frequency sound on non-marine
mammal biota, some of which is described in the Proposed Rule, and that
NMFS should carefully analyze the practicability of protecting areas,
such as those off the main Hawaiian Islands and around certain Hawaiian
seamounts (which are important to beaked whales, among other species),
that are known to contain small, resident odontocete populations.
Response: As described in response to Comment 30, frequency
specialization is one factor NMFS and the Navy considered when
evaluating potential OBIAs. The intent of OBIAs is to protect those
marine mammal species, such as baleen whales, most likely to hear and
be affected by LFA sonar transmissions and to provide these marine
mammals additional protections during periods when they are conducting
biologically significant activities. However, OBIAs have been evaluated
and designated to provide additional mitigation protection for non-LF
hearing specialists, such as elephant seals and sperm whales, since the
available hearing data for these species indicate an increased
sensitivity to LF sound (compared to most odontocetes and pinnipeds).
Regarding the comment about areas of high marine mammal diversity, NMFS
has evaluated all of the areas recommended by commenters in the context
of the LPAI standard, including several areas of high marine mammal
diversity (e.g., Southeast Kamchatka OBIA) and our analysis and
findings are presented in this rule and the SURTASS LFA FSEIS/SOEIS.
Specifically, NMFS designated the Main Hawaiian Islands OBIA which,
although designated for the purposes of further protecting humpback
whales, will also reduce the exposure of several small resident
populations of odontocetes to SURTASS LFA sonar. NMFS and the Navy will
continue to evaluate any new science as part of the Adaptive Management
process.
Comment 33: NRDC et al. noted that several marine mammal species
occurring within the proposed SURTASS LFA study area are considered
``data deficient'' by the International Union for Conservation of
Nature (IUCN), due to the eastern Indian Ocean and, to a lesser extent,
the Northwestern Pacific regions being understudied. They stated that
Parsons (2016) recently suggested that such species should be assumed
``threatened,'' as it is likely certain data-deficient species are, in
fact, ``vulnerable'' or ``endangered,'' given their low sightings rates
and restricted ranges. NRDC et al. recommended NMFS and the Navy work
with researchers embedded within these regions to help build our state
of knowledge on these species and identify potential OBIAs. They stated
that three species of data-deficient cetaceans are worth particular
note: Omura's whale (Balaenoptera omurai) and Deraniyagala's beaked
whale (Mespolodon hotula) and Berardius beaked whale, which have been
recently described in the northern Pacific Ocean.
Response: NMFS and the Navy are aware of the active area of
genetics research used to identify new species. Omura's whales and
Deraniyagala's beaked whales are considered in the rule and SURTASS LFA
FSEIS/SOEIS impact analyses using the best available data for those
taxa. The new Berardius beaked whale splits the black form of Baird's
beaked whale into a new species distinct from the gray form of the
Baird's beaked whale, which will retain the scientific name Berardius
bairdii (Morin et al., 2017). Therefore, although this split into two
species is not part of the LFA impact analysis, the data on Baird's
beaked whale encompasses both forms, as has traditionally been
reported.
While no hearing data on these new species are available, hearing
in the Omura's whale is presumed, like other baleen whales, to be
within the range of 7 Hz to 22 kHz and they have been recorded
producing sounds from 15 to 50 Hz (Cerchio et al., 2015; Southall et
al., 2007). Very little is known about the Deraniyagala's beaked whale
and nothing specifically is known about their hearing sensitivity. They
are, however, similar to other beaked whales presumed to hear in the
mid-frequency range from 150 Hz to 160 kHz (NMFS, 2018). While their
hearing range overlaps partially with the frequency bandwidth of
SURTASS LFA sonar, it is presumed that their bandwidth of best hearing,
like other beaked whales, is well above the frequency range of SURTASS
LFA sonar. The intent of OBIAs is to protect those marine mammal
species, such as baleen whales, most likely to hear and be affected by
LFA sonar transmissions and to provide them additional protections
during periods when they are conducting biologically significant
activities. Thus, the primary focus of the OBIA mitigation measure is
on LF hearing specialist species. Based on current information, beaked
whales are not known to have increased sensitivity to LF sounds;
therefore, we do not believe added protection afforded by an OBIA
(i.e., beyond that provided by the LFA sonar mitigation zone, described
in the Mitigation section) is warranted. As with other marine mammals,
Navy will re-evaluate if additional data become available that
demonstrate that these animals are more sensitive to LF sounds.
The proposal described in the Parsons (2016) opinion paper has not
been adopted by the IUCN. As stated in the IUCN Red List categories and
criteria (IUCN, 2012) definition: ``A taxon is Data Deficient when
there is inadequate information to make a direct, or indirect,
assessment of its risk of extinction based on its distribution and/or
population status.'' They go to say a data deficient species may be
well studied, but appropriate data on abundance and/or distribution are
lacking, and that ``listing of taxa in this category indicates that
more information is required and acknowledges the possibility that
future research will show that threatened classification is
appropriate.'' To be precautionary they suggest, ``it is important to
make positive use of whatever data are available.'' As described in
response to Comment 24, NMFS has compiled and assessed the best
available science, as required, to support the findings made here and
does not plan to reach out to additional regional experts.
OBIA Areas
Comment 34: NRDC et al. noted in their comment regarding the
designation of OBIAs that as ESA Critical Habitat, Important Marine
Mammal Areas (IMMAs), and Ecologically or Biologically Significant
Areas (EBSAs), have all previously been identified through a rigorous
scientific process, including opportunity for public comment and peer
review; as such, these areas should be immediately carried forward by
the Navy for geographic mitigation purposes.
Response: As noted in the Mitigation section of this final rule,
the 2019 SURTASS LFA FSEIS/SOEIS, and previous documentation for
SURTASS LFA sonar, criteria for the designation of OBIAs are specific
to the purpose of designating OBIAs for SURTASS LFA sonar, which is
geographic mitigation. The purpose and criteria for designation of ESA
critical habitat, EBSAs, and IMMAs may inform our consideration of
areas as potential OBIAs but are not per se coincident with the
criteria or purpose of OBIAs for SURTASS LFA
[[Page 40154]]
sonar. As such, all marine areas considered as potential OBIAs must be
evaluated per the criteria developed for SURTASS LFA sonar, including
the Navy's practicability assessment, regardless of the rigorous
scientific processes other agencies or organizations may have
undertaken for their marine area designations.
Comment 35: NRDC et al. noted that 30 IMMAs were recently
identified in the Northeast Indian Ocean and South East Asian Seas
Region (IUCN Marine Mammal Protected Areas Task Force 2019) and should
be incorporated into NMFS' analysis for its Final Rule. They also noted
that 55 candidate IMMAs were recently been identified in the Western
Indian Ocean and Arabian Seas by regional experts and submitted for
additional independent peer review (IMMA sub-regions ``ii'' and ``vii''
fall within the LFA Study Area). They recommended that these new IMMAs
be immediately taken into consideration by NMFS and the Navy as
potential OBIAs upon their release.
Response: As recommended, NMFS and the Navy assessed the 30 IMMAs
designated in the Northeast Indian Ocean and South East Asian Seas
Regions. Details of this analysis and which IMMAs met the OBIA
designation criteria are included in Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS. As part of the Adaptive Management process for SURTASS LFA
sonar, NMFS and the Navy will periodically assess any newly designated
IMMAs for their suitability as OBIAs for SURTASS LFA sonar.
Comment 36: NRDC et al. recommended the following for blue whales:
A. Chagos Archipelago--NMFS should ensure that the waters
encompassed by the no-take marine protected area are included in a
year-round OBIA to protect important habitat for blue whales as well as
other cetacean species including sperm whales.
Response: The BIOT-Chagos Islands Marine Protected Area (MPA) was
an area on the OBIA Watchlist because when last assessed by NMFS and
the Navy, sufficient data were not available to determine if marine
mammals were present and conducting biologically important behaviors in
the area. The BIOT-Chagos Islands MPA was re-evaluated to determine if
more data have become available; however, there continues to be limited
data describing the presence of marine mammals in the MPA, and even
less data on whether marine mammals are conducting biologically
important behaviors. Accordingly, the BIOT-Chagos Islands MPA will
remain on the OBIA Watchlist and NMFS and the Navy will evaluate the
area as a potential OBIA through the Adaptive Management Process if new
information becomes available.
B. Waters around Sri Lanka--NMFS should advance the following areas
for year-round blue-whale mitigation areas: (i) ``Southern Coastal/
Offshore Waters between Galle and Yala National Park,'' an area largely
overlapping with OBIA Offshore Sri Lanka but which affords year-round
protection to the submarine canyons that support high numbers of blue
whales, and other marine megafauna, throughout the year; (ii)
``Trincomalee Canyon and Associated Ecosystems'' and (iii) ``Coastal
and Offshore Area of the Gulf of Mannar (OBIA Watchlist),'' which also
encompasses the currently not considered ``Sri Lankan Side of Gulf of
Mannar'' EBSA. NRDC et al. also recommended that any waters not yet
included within the boundaries of the new ``South West to Eastern Sri
Lanka IMMA'' also be advanced for year-round protection.
Response: The Navy and NMFS assessed areas (i) and (ii) mentioned
in this comment as potential OBIAs for the blue (pygmy) whale. NMFS and
the Navy's final assessment of these areas' potential as OBIAs is
described in Chapter 5 and Appendix C of the 2019 SURTASS LFA FSEIS/
SOEIS. We have also noted in our assessment that although most
available data for these two areas are for blue whales, data on sperm
whales have been reported and, where applicable, we note the seasonal
period during which sperm whale as well as blue whale important
biological activity occurs.
Although both the Gulf of Mannar EBSA and IMMA ((iii) of this
comment) were defined principally for the dugong and coastal dolphins,
which occur in nearshore or inshore coastal waters too shallow for use
of SURTASS LFA sonar, because baleen and sperm whale records from MPAs
located within the Gulf of Mannar EBSA and IMMA are available, the NMFS
and the Navy further evaluated the Gulf of Mannar region as a potential
OBIA. The available information and data do not support the area's
biological importance to blue whales, as only rare blue whale records,
from strandings, are available for the Gulf of Mannar. Although not
designated as an OBIA for SURTASS LFA sonar, the Gulf of Mannar has
been added to the OBIA Watchlist so that data and information about the
area will continue to be monitored.
However, most available information and data support the waters off
southern and eastern Sri Lanka as important migrational and foraging
areas for both pygmy blue and sperm whales, and both these regions
include physiographic features and annual monsoonal transport that
support higher productivity. NMFS and the Navy have designated the
waters off the entire southern and eastern shore of Sri Lanka to the
Trincomalee Canyon region as an OBIA for both blue (pygmy) and sperm
whales.
C. Southwest India and Western Sri Lanka--NMFS should establish an
OBIA southwest of India and west of Sri Lanka that reflects the
boundaries of the new ``Gulf of Mannar and Palk Bay IMMA'' that
includes the buffer recommended for protection purposes.
Response: The available data and information are not sufficient for
the area southwest and west of Sri Lanka to warrant designation as an
OBIA, as the blue whale data for this area are very sparse and do not
support designation of this area as biologically important to blue
whales. Anderson et al. (2012) used ocean color data to develop a
hypothesis of blue (likely pygmy) whale migration in the northern
Indian Ocean. Based on their hypothesis, Anderson et al. (2012)
predicted that blue whales may occur in this area as they migrate from
the Arabian Sea to eastern Sri Lanka/Bay of Bengal, but the authors
also note that ``with only a single offshore sighting from April (Table
1 and Fig. 4), this is one area where additional survey work and/or
satellite tracking will be required to test our predictions.''
We conclude that the existing data are insufficient to support
designating the proposed area as an OBIA for migration or foraging of
North Indian Ocean blue whales. The proposed area southwest of Sri
Lanka in the Indian Ocean (3[deg] to 12[deg] N, 74[deg] to 80[deg] E)
has been added to the OBIA Watchlist, and NMFS and the Navy will
evaluate the area as a potential OBIA through the Adaptive Management
Process if new information becomes available.
D. West of the Maldives (November and April)--NMFS should establish
an OBIA west of the Maldives that reflects the boundaries described in
Anderson et al (2012): 1[deg]-6[deg] N, 70.5[deg]-72.5[deg] E.
Response: Blue whales occur in the area around the Maldives.
However, the purpose of OBIAs is to protect areas with some
demonstrated biological importance to a marine mammal species.
According to Anderson et al. (2012), the highest concentrations of blue
whales in this area occurred in April, November, and December, with
strandings having been recorded from December through February. These
data describe the average seasonal occurrence of blue whales in these
[[Page 40155]]
waters, but are not indicative of high densities nor that biologically
important activity is occurring in these waters. Occurrence in a marine
area is not sufficient to establish an area's importance to a species.
The Navy and NMFS examined all available data and research on blue
whale occurrence in the waters adjacent to the Maldives to determine if
biologically important activity of blue whales occurred in these
waters. As described in the final assessment of the Maldives area as a
potential OBIA in Chapter 5 and Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS, there were no data to support that blue whales conducted
biologically important activities in this area. The area was not
designated as an OBIA but has been added to the OBIA Watchlist, and
NMFS and the Navy will evaluate the area as a potential OBIA through
the Adaptive Management Process if new information becomes available.
E. Indonesia--Western Australia migration route--
1. Citing satellite data from Double et al. (2014), the commenter
recommended that NMFS/Navy should establish an OBIA encompassing the
continental shelf along western Australia between March through June
and September through December. Importantly, the North West Cape/
Ningaloo Reef region, out to the continental shelf edge, needs to be
protected from at least April through June. The Navy should also take
measures to avoid the continental shelf edge off northwestern Australia
between May through July and September through November, to protect
whales traveling along the migration route.
Response: The Navy and NMFS have reviewed the Double et al. (2014)
paper cited herein. We agree that the information cited on the
migrational area for blue whales was compelling enough to warrant the
Navy and NMFS researching the area to obtain additional information and
data on the Western Australia shelf and slope, since the information
pertains to a LF specialist marine mammal and relates to one of the key
biological behaviors that define the criteria for OBIAs. The Navy and
NMFS assessed the entire Western Australia shelf and slope, including
Browse Basin and the nearby Savu Sea area, as a potential OBIA for blue
(pygmy) and humpback whales. An OBIA was designated for each species in
this region. The OBIA for the humpback whale greatly expands the
geographic extent of OBIA 27, Camden Sound/Kimberly Region in place
during the NDE.
2. An OBIA should be established to protect Browse Basin (~14[deg]
S between 121[deg] E and 124[deg] E) year-round, in light of its
persistent upwelling and high levels of cetacean diversity, including
foraging pygmy blue whales.
Response: The Navy and NMFS designated an OBIA for migrating blue
(pygmy) whales and vastly expanded the areal extent of the OBIA in
place during the NDE for humpback whales in the waters off Western
Australia (Camden Sound/Kimberly Region, OBIA 27 during the NDE). The
OBIA for the blue whale encompasses Browse Basin and the Savu Sea.
3. For similar reasons, an OBIA should also be established bounding
the upwelling system along the southern coasts of Java and the Sumbawa
Islands, Indonesia. A similar approach to that employed by Anderson et
al. (2012) could be used to map the boundaries of this region. The
waters of the newly designated ``Savu Sea and Surrounding Areas IMMA''
and the associated buffer recommended for protection should also be
included.
Response: Branch et al. (2007) suggest the environmental factors
``driving biological enrichment and enhanced blue whale foraging'' and
the regional location of such factors, which have been cited in this
comment. The upwelling information in Branch et al. (2007) is based on
Hendiarti et al. (2004). Hendiarti et al. (2004) note that the majority
of the upwelling in the southern Indonesian region occurs seasonally
off southeastern Java. It is also difficult to discern from the data
presented in Hendiarti et al. (2004) how much of the coastal upwelling
would occur within the coastal standoff range of SURTASS LFA sonar, as
much of the higher productivity appears to take place nearshore.
However, more importantly, while an upwelling area has potential,
at least seasonally, as an important foraging area for cetaceans, a
species' seasonal occurrence as denoted by higher relative abundance in
that area would indicate increased foraging during the period of
increased productivity. However, NMFS and the Navy conducted a thorough
review of the best available data and no data are available to support
the association of blue whales foraging in this area in Indonesia.
Therefore, this area does not meet the criteria for establishing an
OBIA. The area has been added to the OBIA Watchlist, and NMFS and the
Navy will evaluate the area as a potential OBIA through the Adaptive
Management Process if new information becomes available.
Comment 37: NRDC et al. recommended that for humpback whales:
A. Northern Arabian Sea--The Arabian Sea DPS is a small, highly
isolated, resident population that requires an OBIA encompassing all
waters north of 21[deg]50' N from the western coast of India westward
to the boundary of the proposed SURTASS LFA study area.
Response: The endangered Arabian Sea DPS of humpback whales is
geographically, genetically, and demographically isolated from all
other populations of humpback whales. Research surveys over the past 30
years have confirmed the continuous presence of humpback whales in the
shallow, nearshore waters of the Arabian Sea off Oman, which is not in
the SURTASS LFA sonar Study Area. Only a limited and incidental number
of humpback whale sightings (13 recorded humpbacks by the Marine Mammal
Conservation Network of India, with records beginning in 1943), passive
acoustic detections, strandings, and one tagging record have been
reported from the eastern Arabian Sea off Pakistan and western India,
with only the waters off western India being located within the SURTASS
LFA sonar Study Area. Given the small population size and the well-
documented concentration of this DPS in the western Arabian Sea, the
Navy concluded, and NMFs agreed, that the likelihood of humpback whales
from the Arabian Sea DPS being located in the waters of the
northwestern most part of the Study Area was vanishingly small.
However, as part of the OBIA process and upon the recommendation of
public comments on the 2018 SURTASS LFA Draft SEIS/SOEIS and MMPA
proposed rule, NMFS and the Navy assessed all available data and
information on humpback whales in the waters off western India and the
nearby Lakshadweep Archipelago. See Area 32 of Appendix C of the 2019
SURTASS LFA FSEIS/SOEIS for review of the scientific literature
available for this region, which includes assessment of three
recommended OBIAs encompassing the west and south coast of India: One
in the Northern Arabian Sea (north of 21[deg]50' N from the western
coast of India westward to the boundary of the SURTASS LFA study area);
one along the coast of west coast of India from Konkan and Malabar out
to 60 km (32.4 nmi) from shore; and one along the south coast of India
from Muttom to Kanyakumari out to include Wadge Bank. Although several
records indicate that rare occurrences of humpback whales from the
Arabian Sea DPS have been reported from the waters off central and
southern Western India, these records are far too sparse to suggest a
regular occurrence of part of
[[Page 40156]]
the Arabian Sea population of humpbacks off western India. For this
reason, the Navy made the decision not to include the Arabian Sea DPS
of humpback whales in the 2019 SURTASS LFA FSEIS/SOEIS nor in
associated documentation, including the ESA Biological Evaluation for
SURTASS LFA sonar. However, due the potential for important migrational
activity of humpbacks in these waters, the waters of western and
southern India were added to the OBIA Watchlist and NMFS and the Navy
will evaluate the area as a potential OBIA through the Adaptive
Management Process if new information becomes available.
B. Maldives Archipelago--Given the importance of this area for
multiple species, including Arabian Sea and Southern Ocean humpback
whales, and Bryde's whales, NMFS should establish an OBIA encompassing
the waters within 30 nmi of the archipelago baseline.
Response: Humpback whales and Bryde's whales occur in the area
around the Maldives. Again, however, occurrence in a marine area is not
sufficient to establish its importance to a species. The Navy and NMFS
examined all available data and research on whale occurrence in the
waters adjacent to the Maldives to determine if whales conduct
biologically important activities in these waters. As described in the
final assessment of the Maldives area as a potential OBIA in Chapter 5
and Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS, there were no data
to support that whales conduct biologically important activities in
this area. The area was not designated as an OBIA; however, it has been
added to the OBIA Watchlist and NMFS and the Navy will evaluate the
area as a potential OBIA through the Adaptive Management Process if new
information becomes available.
C. Konkan and Malabar Coast--NMFS should establish an OBIA to
protect this important habitat area for Arabian Sea humpback whales,
blue whales, and Bryde's whales (See Figure 2 for proposed approximate
boundaries).
Response: See response to Comment 37A above. NMFS and the Navy
assessed all available data and information on humpback, blue, and
Bryde's whales for the West and South Coasts of India area (see Area 32
in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS for review of the
scientific literature available for this region, which includes
assessment of three recommended OBIAs encompassing the west and south
coast of India: One in the Northern Arabian Sea (north of north of
21[deg]50' N from the western coast of India westward to the boundary
of the SURTASS LFA study area); one along the coast of west coast of
India from Konkan and Malabar out to 60 km (32.4 nmi) from shore; and
one along the south coast of India from Muttom to Kanyakumari out to
include Wadge Bank). There was no evidence that biologically important
activities are conducted in this area. The area was not designated as
an OBIA, however it has been added to the OBIA Watchlist and NMFS and
the Navy will evaluate the area as a potential OBIA through the
Adaptive Management Process if new information becomes available.
D. Muttom-Kanyakumari and Wadge Bank, southern India--NMFS should
establish an OBIA to protect this important foraging habitat area for
Arabian Sea humpback whales and potentially other baleen whale species
(See Figure 3 for proposed approximate boundaries).
Response: See response to Comment 37A above.
E. Northwestern Pacific Breeding Areas--NMFS should afford
protection to: (i) The Okinawa/Philippines humpback whale DPS by
establishing an OBIA encompassing waters less than 200 m deep--typical
of humpback whale wintering habitat--surrounding the islands of Okinawa
from January to April and the islands of Ogasawara from December to
June. The commenters note that Ogasawara is included on NMFS' list of
potential OBIAs (84 FR at Table 21, 7) and strongly recommend that this
area be carried forward for inclusion and expanded to the 200 m depth
contour; and (ii) The newly designated ``Babuyan Marine Corridor IMMA''
and buffer recommended for protection, primarily identified as the only
breeding area for humpback whales in the Philippines.
Response: The area around the islands of Ogasawara was designated
as an OBIA for humpback whales from December to May (this area was also
designated for sperm whales from June to September). Although humpback
whales are observed in relatively shallow waters of the Ogasawara and
Kazin Islands, humpbacks move between the islands. Male humpback whales
are also observed in deeper more offshore waters than are female
humpbacks with calves. Last, the specific location where breeding and
calving occur in this area is unknown. Given that lack of knowledge and
to accommodate the deeper water movements of male humpbacks, the OBIA
boundary around the Ogasawara and Kazin Islands was offset from the
coastal standoff zone by less than 4 nmi (7.4 km). A straight-line
corridor to accommodate migrating humpbacks that are traveling between
the Ogasawara and Kazin Islands was also included.
The area surrounding the islands of Okinawa was designated as part
of the Ryukyu-Philippines OBIA. As recommended all areas of the Babuyan
Marine Corridor IMMA outside of the coastal standoff zone were
designated as part of the Ryukyu-Philippines OBIA. The Ryukyu-
Philippines OBIA is designated seasonally from January to April
(Okinawa) and late February to April (Philippines). Based on the best
available information, the boundary for the Ryukyu-Philippines OBIA was
derived by creating a buffer that was offset from the coastal standoff
range by less than 2 nmi (3.7 km) around the majority of the Ryukyu
Islands and Babuyan Islands, with straight lines creating transit
corridors between the Ryukyu Islands, the eastern Taiwan coast, and the
Babuyan Islands off the northern Philippines. The boundary off eastern
Taiwan was created as a straight line less than 3 nmi (5.6 km) from the
Taiwanese coastal standoff range. Although the Ryukyu Islands extend
all the way to Kyushu Island of the main Japanese islands, since no
records indicate humpback whales are sighted in these waters of the
northern Ryukyu Islands, the OBIA boundary extends only as far north as
Amami Island.
F. Northwestern Pacific Feeding Areas--NMFS should establish: (i)
An OBIA extending from the east Kamchatka coastline offshore to the
continental shelf break (encompassing the ``Watchlist'' OBIA
``Southeast Kamchatka Coastal waters''), from June through September;
and (ii) an OBIA reflecting the boundaries of the ``Commander Islands
Shelf and Slope EBSA,'' which has not yet been considered.
Response: The Commander Islands Shelf and Slope EBSA was not
included for consideration as an OBIA, because the area lies outside
the SURTASS LFA sonar Study Area, and as such, is not eligible for
consideration as an OBIA.
NMFS and the Navy considered the Southeast Kamchatka Coastal Waters
(although it was not on the OBIA Watchlist) and designated an OBIA off
southeastern Kamchatka. Further details on the seasonal restrictions
and areal extent may be found in Appendix C of the 2019 SURTASS LFA
FSEIS/SOEIS.
Comment 38: NRDC et al. recommended that for Bryde's whales NMFS
designate a year-round OBIA reflecting the boundaries of both the
``Coastal Northern Bay of Bengal IMMA'' and the ``Swatch-of-No-Ground
IMMA,'' and their associated buffers
[[Page 40157]]
designed to inform place-based conservation measures.
Response: The Coastal Northern Bay of Bengal IMMA was assessed but
not carried forward as a potential OBIA because it is relevant to
marine mammal species known to only frequent inshore waters (Irrawaddy,
Indo-Pacific finless, and Indo-Pacific humpback dolphins). These
species are not anticipated to be impacted by SURTASS LFA sonar
training and testing activities. NMFS and the Navy have designated the
Swatch-of-No-Ground (SoNG) OBIA. The SoNG IMMA encompasses the waters
of the Head of the SoNG canyon (MMPATF, 2019), which were not fully
encompassed in the existing OBIA 20. The SoNG IMMA boundary fully
captures the foraging habitat where Bryde's whales have been identified
(Smith et al., 2008; WCS Bangladesh, 2014). The SoNG OBIA for this
final rule combines OBIA 20, Northern Bay of Bengal and Head of SoNG
OBIA (in place during the NDE) and the SoNG IMMA.
Comment 39: NRDC et al. recommended that for gray whales, NMFS
establish an OBIA off eastern Japan extending from the coast out to the
continental shelf edge from March through May.
Response: In consideration of the Convection Zone East of Honshu
EBSA for baleen whales, the Navy and NMFS evaluated a migrational
corridor just off the coastal standoff range along eastern Honshu
island for the western gray whale DPS. NMFS with Navy input designated
an OBIA in this area off eastern Honshu for gray whale migration.
Additional details on the areal extent and seasonal restrictions are
provided in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS.
Comment 40: NRDC et al. recommended that for sei whales, NMFS
establish an OBIA that extends from the Polar Front boundary southwards
towards the Kuroshio Extension Front (i.e., approximately 45[deg] N to
35[deg] N, 152[deg] E to 170[deg] E) to protect foraging sei whales
(i.e., the ``Polar/Kuroshio Extension Front'' area that NMFS identified
in the proposed rule as a potential OBIA). They stated that protecting
this highly productive foraging area would have broad benefit for a
number of marine mammal species, including sperm whales, other
odontocetes, and elephant seals.
Response: The Navy and NMFS evaluated the Polar/Kuroshio Extension
Fronts region as recommended by the commenter. Additionally, the Navy
and NMFS assessed the North Pacific Transition Zone EBSA (which
encompasses these fronts) for its importance to the northern elephant
seal. Although it is true that the North Pacific Transition Zone
(NPTZ), Polar Front, and Kuroshio Extension Front are defined as
oceanographic frontal zones that are large spatially persistent
features, the physical, chemical, and even biological features by which
each frontal zone is defined, including the species associated with
them, are unique and not consistent across frontal zones. It would,
therefore, be scientifically inappropriate to combine the frontal areas
into one large combined area as suggested and disregard the defining
features of the respective frontal zones and the data associated with
each. The Navy and NMFS are aware of the suggested correlation of
oceanographic frontal features with sei whale foraging and reviewed the
available information on foraging areas for the North Pacific sei whale
population. However, data and information are currently insufficient to
correlate specific oceanographic frontal features or their boundaries
in the northwestern Pacific with biologically important behavior of sei
whales. Although neither the Polar/Kuroshio Extension Fronts nor NPTZ
have been designated as OBIAs, both marine areas have been added to the
OBIA Watchlist. The Navy and NMFS will continue to compile and evaluate
data and information on both areas and will reassess them in the future
through the Adaptive Management process.
Comment 41: NRDC et al. recommended that for sperm whales:
A. Waters off Sri Lanka--Similar to blue whales, NMFS should
advance the following three areas currently being considered by NMFS as
year-round mitigation areas for both blue and sperm whales (and, in
some cases, Bryde's whales): (i) ``Southern Coastal/Offshore Waters
between Galle and Yala National Park'', (ii) ``Trincomalee Canyon and
Associated Ecosystems'', and (iii) ``Coastal and Offshore Area of the
Gulf of Mannar'' (OBIA Watchlist), which also encompasses the currently
not considered ``Sri Lankan Side of Gulf of Mannar'' EBSA.
Response: See response to Comment 36.
B. Lakshadweep Archipelago--NMFS should consider designating an
OBIA to encompass the entirety of the Lakshadweep Archipelago and the
waters therein.
Response: In assessing this area as a potential OBIA, NMFS and the
Navy conducted a thorough review of the available information on marine
mammal occurrence in the Lakshadweep Archipelago. Very little
information is available on marine mammal occurrence in the Lakshadweep
Archipelago, with very few survey sightings of cetaceans or stranding
data. Because of this lack of data there is no indication that this
area supports important biological activities for marine mammals and,
therefore, it does not meet the biological criteria for designation as
an OBIA or otherwise warrant inclusion as a mitigation area pursuant to
the LPAI standard. However the Lakshadweep Archipelago has been added
to the OBIA Watchlist and NMFS and the Navy will evaluate the area as a
potential OBIA through the Adaptive Management Process if new
information becomes available.
C. Northwestern Pacific--To protect foraging areas for sperm
whales, NMFS should utilize the boundaries of three historic whaling
grounds (i.e., Japan Ground, Coast of Japan Ground, and Japan-Bonin
Island Ground) to delineate OBIAs for sperm whales in the Northwestern
Pacific Ocean (following the areas described in Ivashchenko et al.
(2014); Fig. 9). They noted that the Japan Ground area is generally
consistent with that of the ``Polar/Kurioshio Extension Fronts'' area
that NMFS is currently considering.
Response: NMFS and the Navy did not consider the major areas of
sperm whale concentration outlined in Ivashchenko et al. (2014) when
assessing the North Pacific Transition Zone EBSA as we did not consider
these areas either singly or in combination to be coincident with the
boundary of the North Pacific Transition Zone EBSA. While the whaling
data compiled by Ivaschenko et al. (2014) provide valuable information
on the historical extent of the North Pacific sperm whale distribution,
those locations cannot be used without other supporting data to create
OBIAs reflective of areas where sperm whales conduct important
biological activities. These areas of historical concentrations provide
no insights into what important biological activities are occurring in
the areas. Many cetacean species became extirpated and never
repopulated heavily exploited commercial whaling grounds, so basing
current occurrences for a species solely on whaling ground data is not
appropriate; those data provide a historical perspective on occurrence
and distribution but cannot be used as a current template of a species'
occurrence. Accordingly, these areas were not considered as potential
OBIAs.
Comment 42: NRDC et al. recommended a year-round OBIA in the waters
of the Avacha Gulf to protect important foraging habitat and transitory
corridor for killer whales.
[[Page 40158]]
NRDC et al. noted that the small population size and cumulative impacts
upon mammal-eating killer whales in this area should be carefully
considered by NMFS and that neglecting to include the best available
science on the population structure, ecotypes, and abundance estimates
of killer whales in this region is a major oversight of the proposed
rule.
Response: NMFS and Navy are aware of the importance of southeastern
Kamchatka and Avacha Gulf to resident killer whales and have assessed
the wealth of survey data and information on this population of
odontocetes and the importance of the area, particularly Avacha Gulf,
to this population. However, the majority of Avacha Gulf, including the
core area where most sightings of resident killer whales have been
recorded, lies within the coastal standoff zone for SURTASS LFA sonar.
To be eligible as an OBIA, a marine area must meet geographic criteria,
one of which is that the area must lie outside the coastal standoff
range for LFA sonar (i.e., be more than 12 nmi (22 km) from shore).
Furthermore, OBIA designation is designed to provide protection to
those marine mammal species most likely to be impacted by LFA sonar,
which are the LF-sensitive species. There is no evidence that killer
whales have increased sensitivity to LF sounds. Therefore, we do not
believe an OBIA will add meaningful protection beyond that provided by
the LFA sonar mitigation zone (described in the Mitigation section).
These factors render this marine area ineligible for consideration as
an OBIA for SURTASS LFA sonar. However, an OBIA in southeastern
Kamchatka waters outside the coastal standoff range has been designated
for gray and right whales that migrate and forage seasonally in these
waters. Thus, albeit not designated specifically for resident killer
whales in this area, the OBIA will reduce the exposure of some resident
killer whales to LFA sonar.
Comment 43: NRDC et al. stated a more comprehensive evaluation of
important habitat for harbor porpoises and beaked whales is needed,
however they recommended that NMFS establish OBIAs in waters outside
the coastal exclusion zone that are contained within the Biologically
Important Areas for Blainville's and Cuvier's beaked whales, as well as
for other small, resident odontocete populations, around the Main
Hawaiian Islands, as defined in Baird et al. (2015).
Response: One of the factors considered for designation of OBIAs,
established in the 2012 rulemaking and SURTASS LFA FSEIS/SOEIS and
carried forward in the current OBIA assessment process, is sensitivity
to LF sounds. The intent of OBIAs is to protect those marine mammal
species most likely to hear and be affected by LFA sonar transmissions
and to provide them with additional protections during periods when
they are conducting biologically significant activities. Based on
current information, neither Blainville's nor Cuvier's beaked whales
are known to have increased sensitivity to LF sounds, therefore we do
not believe added protection afforded by an OBIA (i.e., beyond that by
the LFA sonar mitigation zone described in the Mitigation section) is
warranted. However, a large portion of the BIAs are included in the
Main Hawaiian Islands OBIA designated for other species.
Comment 44: NRDC et al. recommended that NMFS include critical
habitat that NMFS recently designated, under the Endangered Species
Act, for the Main Hawaiian Islands insular false killer whale.
Response: NMFS and the Navy assessed the ESA-designated critical
habitat for the Main Hawaiian Insular DPS of false killer whales as a
potential OBIA. However, there is no evidence that false killer whales
have increased sensitivity to LF sounds. Therefore, we do not believe
an OBIA will afford more protection than what is provided by the LFA
sonar mitigation zone (described in the Mitigation section). False
killer whales hear underwater sounds in the range of 1 to 115 kHz, with
best hearing at 17 kHz (Au, 1993; Johnson, 1967). Nevertheless, a large
portion of the ESA critical habitat for the Main Hawaiian Insular DPS
of false killer whales is included in the newly designated Main
Hawaiian Islands OBIA (November to April), and per the CZMA
consultation with the State of Hawaii for SURTASS LFA sonar, the Navy
agreed not to ensonify Hawaii state waters (out to 3 nmi) at levels
above 145 dB re: 1 [mu]Pa rms.
Comment 45: NRDC et al. recommended that NMFS establish a year-
round OBIA at Cross Seamount, which represents important foraging
habitat for a potentially rare or evolutionarily distinct species of
beaked whale. They noted that such a designation would have secondary
benefits for a variety of other odontocete species foraging at Cross
Seamount seasonally between November and May.
Response: The Cross Seamount is within the SURTASS LFA sonar Study
Area and is known for prey aggregations that support beaked whale
foraging, as inferred by the detection of beaked whale echolocation
signals at night. However, there is no supporting information or data
to suggest that the waters surrounding this seamount support higher
than average densities of beaked whales and no small-resident
populations have been confirmed, which would qualify as a biological
criterion for delineation of an OBIA in the region. Additionally, based
on current information, beaked whales are not known to have increased
sensitivity to LF sounds, therefore we do not believe added protection
afforded by an OBIA (i.e., beyond that provided by the LFA buffer zone,
described in the Mitigation section) is warranted to protect beaked
whales foraging in the waters of Cross Seamount. However through the
adaptive management process, NMFS and the Navy will evaluate new
information as it becomes available.
Comment 46: The Commission noted that 14 of the 25 potential OBIAs
(as described in Table 21 of the proposed rule) meet the various low
frequency-sensitivity and biological importance criteria and occur
within the SURTASS LFA sonar mission areas and, at least partially,
outside the coastal stand-off range where SURTASS LFA sonar activities
already are restricted. The Commission suggests these areas should be
designated as OBIAs. Additionally, the Commission noted that Raja Ampat
and Northern Bird's Head serve as important habitat for migrating and/
or foraging Bryde's and sperm whales and the Main Hawaiian Archipelago
serves as important habitat for breeding and calving humpback whales.
In addition, Peter the Great Bay serves as important breeding habitat
for spotted seals. All of those species are sensitive to LF sound, and
portions of those potential OBIAs meet the geographic criteria as well.
The Commission also notes that the Pacific Remote Islands Marine
National Monument (MNM), including areas around Wake and Johnston
Atolls and a small part of the northern end of Kingman Reef/Palmyra
Atoll, meet the geographic criteria. Although marine mammal data are
limited, sperm whales have been observed in the MNM and the Navy noted
that the MNM could serve as potential critical habitat for some
threatened and endangered species (e.g., humpback whales). Baleen and
sperm whales are considered sensitive to low-frequency sound. For these
reasons, the Commission recommended that NMFS include these areas as
OBIAs in the final rule.
Response: Fourteen OBIAs were designated. Of the 14 OBIAs presented
in Table 21 of the proposed rule, all but the West of Maldives was
designated as an OBIA. The West of Maldives area was not designated
because there were
[[Page 40159]]
no data to support that whales conducted biologically important
activities in this area. The West of Maldives area has been added to
the OBIA Watchlist (see response to Comment 36). As recommended, an
OBIA has also been designated for the Main Hawaiian Islands.
Raja Ampat and Northern Bird's Head was considered as a candidate
OBIA. However, none of the areas surveyed in any of the best available
data occur within the SURTASS LFA sonar Study Area. Since no data exist
to support important biological activities by marine mammals being
carried out in the part of this marine area that lies within the
SURTASS LFA Study Area, this area did not meet the biological criteria
for OBIA designation and was not considered further as an OBIA. The
area has been added to the OBIA Watchlist, and NMFS and the Navy will
evaluate the area as a potential OBIA through the Adaptive Management
Process if new information becomes available.
Peter the Great Bay was considered as a candidate OBIA. Only a
small portion of Peter the Great Bay lies outside the coastal standoff
zone and thus meets the geographic criteria. While Peter the Great Bay
is an important seasonal reproductive area for the spotted seal,
pupping activities are conducted in the northern reaches of the bay,
well within the coastal standoff zone, and no pupping or reproductive
activity is known to occur in the portion of the bay outside the
coastal standoff zone. Further, based on currently available
information and data, the spotted seal is not known to have increased
sensitivity to LF sound; the best hearing sensitivity in-water of the
spotted seal is between 2 and 72 kHz (Reichmuth et al., 2013; Sills et
al., 2014). Reichmuth et al. (2016) found no TTS in trained spotted
seals exposed to LF impulsive sounds that represented single seismic
air gun transmissions (which are different from LFA sonar signals). As
such, an OBIA is not warranted. For these reasons, the IMMA for Peter
the Great Bay was not further considered as an OBIA for SURTASS LFA
sonar.
The Pacific Remote Islands Marine National Monument (Wake/Johnson/
Palmyra atolls and Kingman Reef Units which are located in the SURTASS
LFA Study Area) was on the OBIA Watchlist and was considered as a
candidate OBIA. NMFS and the Navy reviewed all available data and no
specific important biological behaviors of marine mammals have been
characterized in these waters. As such, this marine area did not meet
the biological criteria required for designation of an OBIA and was not
further considered currently as an OBIA.
Practicability Analysis
Comment 47: NRDC et al. noted that the Navy's application
distinguishes among types of LFA activities, ranging from ``military
crew (MILCREW) proficiency training'' to ``vessel and equipment
maintenance.'' NRDC et al. stated that these categories suggest that
geographic mitigation could potentially be implemented for a subset of
activities in the case that blanket geographic mitigation is deemed
impracticable--a development that could, if rigorously applied,
substantially improve mitigation and help NMFS and the Navy meet their
MMPA responsibilities. In its practicability analysis for OBIAs, NRDC
et al. recommended that NMFS analyze the practicability of mitigating
each individual category of activity and implement mitigation measures
to the greatest extent practicable for each category. NRDC et al.
stated that such an approach will serve to reduce potential impact to
marine mammals in an OBIA even if not all Navy activities can
practicably be mitigated.
Response: The Navy and NMFS' OBIA assessment resulted in 14
candidate OBIAs. These 14 candidate OBIAs underwent Navy Fleet
practicability review and the Navy Fleet determined that the
designation of the 14 OBIAs in the SURTASS LFA sonar Study Area for the
relevant effective periods would not impede the effectiveness of
SURTASS LFA active sonar testing and training activities, would be
practical to implement as a geographic mitigation measure, and would
not impact personnel safety. As a result, all 14 candidate OBIAs were
deemed practicable and 14 new, marine mammal OBIAs for SURTASS LFA
sonar have been designated (see the Mitigation section and Table 21)
and apply to all SURTASS LFA sonar training and testing activities.
Therefore, analysis of practicability for different types of activities
is not necessary.
Additionally, all of the activities utilize the SURTASS LFA sonar
system within the same operating profile, such that any single hour of
SURTASS LFA sonar transmissions is the same as all others. The
differentiation of activities was merely for planning purposes, to aid
in determining the overall number of transmission hours per year for
SURTASS LFA sonar training and testing. It is not practicable to
develop geographic mitigation measures for each activity.
Comment 48: NRDC et al. recommended that NMFS, in consultation with
the Navy, establish geographic alternatives for OBIAs that raise
practicability concerns for certain categories of LFA activity. Given
the importance of site-selection in minimizing environmental impacts,
it is conventional for agencies to analyze the environmental effects of
alternative sites that meet the activity's purpose and need. They
stated that doing so is essential where, as here, protected habitat is
of ``paramount importance''.
Response: As previously noted in the response to Comment 47, all 14
candidate OBIAs were deemed practicable and 14 new marine mammal OBIAs
for SURTASS LFA sonar have been designated (see the Mitigation section
and Table 21), therefore geographic alternatives for OBIAs are not
necessary.
Comment 49: NRDC et al. recommended where reasonable alternative
sites are not available, NMFS, in consultation with the Navy, consider
other mitigation measures, including procedural requirements (e.g.,
requiring Fleet-level approval for use), substantive standards (e.g.,
allowing use only when certain criteria are met), and activity limits
(e.g., limiting the number of activities per annum or avoiding
biologically important periods such as the blue whale foraging season),
that would protect vital habitat while allowing continued use for
training purposes. They stated that the Navy, in the ``practicability
criterion'' it sets forth in the DSEIS, commits to identifying for NMFS
the concerns that lead to its determination that a particular OBIA is
not practicable, and discussing ``whether modifications could be made
to the proposed OBIA to alleviate the Navy's practicability concerns.''
(DSEIS at 5-8). NRDC et al. recommended that both agencies work to
ensure that the resulting analysis is rigorous and searching, rather
than a parroting of Navy conclusions (citing Conservation Council for
Hawaii v. NMFS, 97 F.Supp.3d 1210, 1230 (D. Haw. 2015)).
Response: As previously noted in the response to Comment 48, all 14
candidate OBIAs were deemed practicable and 14 new marine mammal OBIAs
for SURTASS LFA sonar have been designated (see the Mitigation section
and Table 21), so there is no need to identify geographic alternative
sites for OBIAs. As described in the Mitigation section, these OBIAs,
in combination with the existing procedural mitigation effect the least
practicable adverse impact.
Comment 50: NRDC et al. recommended to the extent that additional
operational mitigation is impracticable, NMFS consider compensatory
mitigation to achieve the
[[Page 40160]]
``least practicable adverse impact'' required under the MMPA. NRDC et
al. stated that compensatory mitigation is a concept that is routinely
employed in implementation of the Endangered Species Act, Clean Water
Act, and other environmental laws. The MMPA itself is broad in its
characterization of mitigation, requiring the agency to prescribe not
only ``permissible methods of taking pursuant to [a specified
activity],'' but also ``other means of effecting the least practicable
adverse impact'' on affected marine mammal species and populations and
on their habitat. 16 U.S.C. 1371(a)(5)(A)(II)(aa) (emphasis added).
NRDC et al. stated that the Ninth Circuit opinion in Pritzker makes
clear, this requirement should be construed by the agency as a
``stringent standard.'' 828 F.3d at 1129, 1133, 1135. NRDC et al.
recommended that NMFS consider compensatory mitigation for the adverse
impacts of the permitted activity on marine mammals and their habitat
that cannot be prevented or mitigated by modifying SURTASS LFA
operations.
Response: As previously noted in the response to Comment 47, all 14
candidate OBIAs were deemed practicable and 14 new, marine mammal OBIAs
for SURTASS LFA sonar have been designated (see the Mitigation section
and Table 21), therefore other mitigation measures for these areas are
not necessary. NMFS has prescribed a robust comprehensive suite of
measures that are expected to reduce the amount of Level A and Level B
harassment takes, as well as the severity of any incurred impacts on
the species or stock and their habitat. Compensatory mitigation is not
required to be imposed upon Federal agencies under the MMPA.
Importantly, the commenter did not recommend any specific measure(s),
rendering it impossible to conduct any meaningful evaluation of its
recommendation. Finally, many of the methods of compensatory mitigation
that have proven successful in terrestrial settings (purchasing or
preserving land with important habitat, improving habitat through
plantings, etc.) are not applicable in a marine setting with such far-
ranging species. Thus, any presumed conservation value from such an
idea would be purely speculative at this time.
National Environmental Policy Act (NEPA)
Comment 51: NRDC et al. stated that NMFS cannot rely on the Navy's
EIS to fulfill its obligations under NEPA because it is unlawful. They
stated that the Navy's DEIS serves only the Navy's interests,
considering only the purpose and need of military readiness, thus
limiting the range of alternatives and mitigation. They noted that the
Navy's purpose and need is unrelated to NMFS' statutory obligations
under the MMPA. Those obligations in this instance involve prescribing
regulations for the incidental take of marine mammals that effect the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)(i)). While
military readiness effectiveness must be considered, id. Sec.
1371(a)(5)(ii), the ultimate purpose of the MMPA is to protect marine
mammals, and NMFS is charged with that duty. Thus, they stated that
NMFS has a distinct purpose and need for its proposed regulations that
may dictate consideration of a broader set of alternatives.
Response: The proposed action at issue is the Navy's proposal to
conduct SURTASS LFA sonar testing and training activities in the
SURTASS LFA Study Area. NOAA's NMFS is a cooperating agency for that
proposed action, as it has jurisdiction by law and special expertise
over marine resources impacted by the proposed action, including marine
mammals and federally-listed threatened and endangered species.
Consistent with the regulations published by the Council on
Environmental Quality (CEQ), it is common and sound NEPA practice for
NOAA to adopt a lead agency's NEPA analysis when, after independent
review, NOAA determines the document to be sufficient in accordance
with 40 CFR 1506.3. Specifically here, NOAA must be satisfied that the
Navy's EIS adequately addresses the impacts of issuing the MMPA
incidental take authorization and that NOAA's comments and concerns
have been adequately addressed. There is no requirement in CEQ
regulations that NMFS, as a cooperating agency, issue a separate
purpose and need statement in order to ensure adequacy and sufficiency
for adoption. Nevertheless, the Navy, in coordination with NMFS, has
clarified the statement of purpose and need in the 2019 SURTASS LFA
FSEIS/SOEIS to more explicitly acknowledge NMFS' action of issuing an
MMPA incidental take authorization. NMFS also clarified how its
regulatory role under the MMPA related to Navy's activities. NMFS'
early participation in the NEPA process and role in shaping and
informing analyses using its special expertise ensured that the
analysis in the 2019 SURTASS LFA FSEIS/SOEIS is sufficient for purposes
of NMFS' own NEPA obligations related to its issuance of incidental
take authorization under the MMPA.
Regarding the alternatives, NMFS' early involvement in the
development of the 2019 SURTASS LFA FSEIS/SOEIS and role in evaluating
the effects of incidental take under the MMPA ensured that the 2018
SURTASS LFA DSEIS/SOEIS would include adequate analysis of a reasonable
range of alternatives. The 2019 SURTASS LFA FSEIS/SOEIS includes a No
Action Alternative specifically to address what could happen if NMFS
did not issue an MMPA authorization. The other two Alternatives address
two action options that the Navy could potentially pursue while also
meeting their mandated Title 10 training and testing responsibilities.
More importantly, these alternatives fully analyze a comprehensive
variety of mitigation measures. This mitigation analysis supported
NMFS' evaluation of our options in potentially issuing an MMPA
authorization, which primarily revolves around the appropriate
mitigation to prescribe. This approach to evaluating a reasonable range
of alternatives is consistent with NMFS policy and practice for issuing
MMPA incidental take authorizations. NOAA has independently reviewed
and evaluated the SEIS, including the purpose and need statement and
range of alternatives, and determined that the 2019 SURTASS LFA FSEIS/
SOEIS fully satisfies NMFS' NEPA obligations related to its decision to
issue the MMPA final rule and associated LOA, and we have adopted it.
Description of Marine Mammals in the Area of the Specified Activities
Forty-six species of marine mammals, including 10 baleen whale
(mysticete); 31 toothed whale (odontocete); and 5 seal/sea lion
(pinniped) species that represent 139 stocks (as currently classified)
have confirmed or possible occurrence within potential SURTASS LFA
sonar activity areas in the central and western North Pacific Ocean and
eastern Indian Ocean. Multiple stocks of some species are affected, and
independent assessments are conducted to make the necessary findings
and determinations for each of these.
There are 11 marine mammal species under NMFS' jurisdiction listed
as endangered or threatened under the Endangered Species Act (ESA; 16
U.S.C. 1531 et seq.) with confirmed or possible occurrence in the study
area for SURTASS LFA sonar training and testing activities. Marine
mammal species under NMFS' jurisdiction in the
[[Page 40161]]
study area listed as endangered are: North Pacific right whale
(Eubalaena japonica); gray whale (Eschrichtius robustus); blue whale
(Balaenoptera musculus); fin whale (Balaenoptera physalus); Western
North Pacific distinct population segment (DPS) of humpback whale
(Megaptera novaeangliae); sei whale (Balaenoptera borealis); sperm
whale (Physeter macrocephalus); Main Hawaiian Islands Insular DPS of
false killer whale (Pseudorca crassidens); Western DPS of the Steller
sea lion (Eumetopias jubatus); and Hawaiian monk seal (Neomonachus
schauinslandi). The southern DPS of the spotted seal (Phoca largha) is
listed as threatened under the ESA and is within the study area for
SURTASS LFA sonar activities. The aforementioned threatened and
endangered marine mammal species also are depleted under the MMPA.
Chinese river dolphins (Lipotes vexillifer) do not have stocks
designated within the SURTASS LFA sonar study area (see Potential
SURTASS LFA Study Area section). The distribution of the Chinese river
dolphin is limited to the main channel of a river section between the
cities of Jingzhou and Jiangyin. Based on the extremely rare occurrence
of these species in the Navy's Study Area and due to the coastal
standoff range (i.e., distance of 22 km (13 mi; 12 nmi) from land),
take of Chinese river dolphins is not considered a reasonable
likelihood; therefore, this species is not addressed further in this
document. Similarly, the Taiwanese humpback dolphin, a subspecies of
the Indo-Pacific humpback dolphin, is found only in a small, narrow
stretch of estuarine waters off the western coast of Taiwan. Take of
this species is also not considered a reasonable likelihood and this
species is not addressed further in this document. Finally, the small
population (<100 individuals) of Arabian Sea DPS of humpback whales
includes those whales breeding and foraging in tropical waters year-
round along the coast of Oman (Bettridge et al., 2015). Historical
records, sparse sightings and acoustic recordings, and one satellite
tagged whale, along the coasts of Pakistan and India indicate that the
Arabian Sea DPS range may also include these areas. Based on the small
population size and the extremely rare occurrence of humpback whales
along the coasts of Pakistan and India, take of the Arabian Sea DPS of
humpback whales is not considered a reasonable likelihood; therefore,
this species is not addressed further in this document.
None of the marine mammal species which the U.S. Fish and Wildlife
Service (USFWS) is responsible for managing occur in geographic areas
that would overlap with the SURTASS LFA sonar Study Area. Therefore,
the Navy has determined that SURTASS LFA sonar activities would have no
effect on the endangered or threatened species or the critical habitat
of the ESA-listed species under the jurisdiction of the USFWS. These
species are not considered further in this notice.
To accurately assess the potential effects of SURTASS LFA sonar
activities, the Navy modeled 15 representative sites in the SURTASS LFA
sonar activity area. Tables 2 through 16 (below) summarize the
abundance, status under the ESA, and density estimates of the marine
mammal species and stocks that have confirmed or possible occurrence
within the 15 SURTASS LFA sonar modeling areas in the central and
western North Pacific Ocean and eastern Indian Ocean. Information on
how the density and abundance stock estimates were derived for the
selected mission sites is described in Appendix D of the 2019 SURTASS
FSEIS/SOEIS and references for the abundances and densities described
are provided in Tables 2 through 16.
Table 2--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 1, East of Japan
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km \2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977... 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Ferguson and
Barlow 2001;
2003; LGL, 2008.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977.... NL
Common minke whale............ WNP OE.......... 25,049 Buckland et al., 0.0022 0.0022 0.0022 0.0022 Buckland et al., NL
1992. 1992.
Fin whale..................... WNP............. 9,250 Tillman, 1977; ......... ......... 0.0002 0.0002 Tillman, 1977... EN
Mizroch et al.,
2009.
Humpback whale................ WNP stock and 1,328 Bettridge et ......... ......... 0.00036 0.00036 Calambokidis et EN
DPS. al., 2015. al., 2008; LGL,
2008.
North Pacific right whale..... WNP............. 922 Best et al., 0.00001 0.00001 ......... ......... Unavail......... EN
2001.
Sei whale..................... NP.............. 7,000 Mizroch et al., 0.00029 0.00029 0.00029 0.00029 Fulling et al., EN
2015. 2011.
Baird's beaked whale.......... WNP............. 5,688 Miyashita 1986 ......... ......... 0.0029 0.0029 Kasuya, 1986.... NL
and 1990;
Kasuya and
Perrin, 2017.
Common dolphin................ WNP............. 3,286,163 Ferguson and 0.0761 0.0761 0.0761 0.0761 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common bottlenose dolphin..... WNP Northern 100,281 Miyashita, 1993; 0.0171 0.0171 0.0171 0.0171 Miyashita, 1993. NL
Offshore. Kasuya and
Perrin, 2017.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0031 0.0031 0.0031 0.0031 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Dall's porpoise (truei)....... WNP truei....... 178,157 Miyashita, 2007; 0.0390 0.0520 ......... 0.0520 Ferguson and NL
Kasuya and Barlow, 2001;
Perrin, 2017. 2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.0036 0.0036 0.0036 0.0036 Miyashita, 1993. NL
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Harbor porpoise............... WNP............. 31,046 Hobbs and Waite, 0.0190 0.0190 0.0190 0.0190 Hobbs and Waite, NL
2010; Allen and 2010.
Angliss, 2014.
Hubbs beaked whale............ NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.0001 0.0001 0.0001 0.0001 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp. \4\................ WNP............. 350,553 Ferguson and 0.0031 0.0031 0.0031 0.0031 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0082 0.0082 0.0082 0.0082 Ferguson and NL
1993. Barlow, 2001;
2003.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., ......... ......... 0.0259 0.0259 Miyashita, 1993. NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.0021 0.0021 0.0021 0.0021 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.0097 0.0097 0.0097 0.0097 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Short-finned pilot whale...... WNP Northern.... 20,884 Miyashita, 1993. 0.0128 0.0128 0.0128 0.0128 Miyashita, 1993. NL
[[Page 40162]]
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and ......... ......... 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Stejneger's beaked whale...... WNP............. 8,000 Kasuya, 1986.... 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001;
2003.
Striped dolphin............... WNP Northern 497,725 Miyashita, 1993; 0.0111 0.0111 0.0111 0.0111 Miyashita, 1993. NL
Offshore. Kasuya and
Perrin, 2017.
Northern fur seal............. WP.............. 503,609 Kuzin 2015; 0.368 0.158 ......... ......... Horimoto et al., NL
Gelatt et al., 2016.
2015.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NP = north Pacific; OE = Offshore Japan; WP = western Pacific; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 3--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 2, North Philippine Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km \2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977... 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Ferguson and
Barlow 2001;
2003; LGL, 2008.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977.... NL
Common minke whale............ WNP OE.......... 25,049 Buckland et al., 0.0044 0.0044 0.0044 0.0044 Buckland et al., NL
1992. 1992.
Fin whale..................... WNP............. 9,250 Tillman, 1977; 0.0002 0.0002 ......... ......... Tillman, 1977... EN
Mizroch et al.,
2009.
Humpback whale................ WNP and DPS..... 1,328 Bettridge et 0.00089 0.00089 ......... 0.00089 Acebes et al., EN
al., 2015. 2007; LGL, 2008.
North Pacific right whale..... WNP............. 922 Best et al., 0.00001 0.00001 ......... ......... Unavail......... EN
2001.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common dolphin................ WNP............. 3,286,163 Ferguson and 0.0562 0.0562 0.0562 0.0562 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common bottlenose dolphin..... Japanese Coastal 3,516 Kanaji et al., 0.0146 0.0146 0.0146 0.0146 Miyashita, 1993. NL
2018.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0054 0.0054 0.0054 0.0054 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.0029 0.0029 0.0029 0.0029 Miyashita, 1993. NL
Fraser's dolphin.............. WNP............. 220,789 Ferguson and 0.0069 0.0069 0.0069 0.0069 Bradford et al., NL
Barlow, 2001; 2013.
2003.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp.\4\................. WNP............. 350,553 Ferguson and 0.0031 0.0031 0.0031 0.0031 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00428 0.00428 0.00428 0.00428 Fulling et al., NL
2018. 2011.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0119 0.0119 ......... ......... Ferguson and NL
1993. Barlow, 2001;
2003.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.0137 0.0137 0.0137 0.0137 Miyashita, 1993. NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.0021 0.0021 0.0021 0.0021 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Short-finned pilot whale...... WNP Southern.... 31,396 Kanaji et al., 0.0153 0.0153 0.0153 0.0153 Miyashita, 1993. NL
2018.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00083 0.00083 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Striped dolphin............... Japanese Coastal 19,631 Miyashita, 1993; 0.0329 0.0329 0.0329 0.0329 Miyashita, 1993. NL
Kasuya and
Perrin, 2017.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 4-- Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated with Model Area 3, West Philippine Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km \2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1997... 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Ferguson and
Barlow 2001;
2003; LGL, 2008.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977.... NL
Common minke whale............ WNP OE.......... 25,049 Buckland et al., 0.0033 0.0033 0.0033 0.0033 Buckland et al., NL
1992. 1992.
Fin whale..................... WNP............. 9,250 Tillman, 1977; 0.0002 0.0002 ......... ......... Tillman, 1977... EN
Mizroch et al.,
2009.
Humpback whale................ WNP and DPS..... 1,328 Bettridge et 0.00089 0.00089 ......... 0.00089 Acebes et al., EN
al., 2015. 2007; LGL, 2008.
[[Page 40163]]
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Blainville`s beaked whale..... WNP............. 8,032 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common dolphin................ WNP............. 3,286,163 Ferguson and 0.1158 0.1158 0.1158 0.1158 Carretta et al., NL
Barlow, 2001; 2011.
2003.
Common bottlenose dolphin..... WNP Southern 40,769 Kanaji et al., 0.0146 0.0146 0.0146 0.0146 Miyashita, 1993. NL
Offshore. 2018.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0003 0.0003 0.0003 0.0003 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Deraniyagala's beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.0029 0.0029 0.0029 0.0029 Miyashita, 1993. NL
Fraser's dolphin.............. WNP............. 220,789 Ferguson and 0.0069 0.0069 0.0069 0.0069 Bradford et al., NL
Barlow, 2001; 2013.
2003.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp.\4\................. WNP............. 350,553 Ferguson and 0.0017 0.0017 0.0017 0.0017 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00428 0.00428 0.00428 0.00428 Fulling et al., NL
2018. 2011.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.0137 0.0137 0.0137 0.0137 Miyashita, 1993. NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.0021 0.0021 0.0021 0.0021 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Short-finned pilot whale...... WNP Southern.... 31,396 Kanaji et al., 0.0076 0.0076 0.0076 0.0076 Miyashita, 1993. NL
2018.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00083 0.00083 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Striped dolphin............... WNP Southern 52,682 Miyashita, 1993; 0.0164 0.0164 0.0164 0.0164 Miyashita, 1993. NL
Offshore. Kasuya and
Perrin, 2017.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 5--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 4, Offshore Guam
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977... 0.00005 0.00005 ......... 0.00005 Bradford et al., EN
2017.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0004 0.0004 0.0004 0.0004 Fulling et al., NL
2011.
Common minke whale............ WNP ``OE''...... 25,049 Buckland et al., 0.0003 0.0003 0.0003 0.0003 Ferguson and NL
1992. Barlow, 2001;
2003.
Fin whale..................... WNP............. 9,250 Tillman, 1977; 0.00006 0.00006 ......... 0.00006 Bradford et al., EN
Mizroch et al., 2017.
2009.
Humpback whale................ WNP and DPS..... 1,328 Bettridge et 0.00089 0.00089 ......... 0.00089 Acebes et al., EN
al., 2015. 2007; LGL, 2008.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Sei whale..................... NP.............. 7,000 Mizroch et al., 0.00029 0.00029 ......... 0.00029 Fulling et al., EN
2015. 2011.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.00086 0.00086 0.00086 0.00086 Bradford et al., NL
Barlow, 2001; 2017.
2003.
Common bottlenose dolphin..... WNP Southern 40,769 Kanaji et al., 0.00899 0.00899 0.00899 0.00899 Bradford et al., NL
Offshore. 2018. 2017.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0003 0.0003 0.0003 0.0003 Bradford et al., NL
Barlow, 2001; 2017.
2003.
Deraniyagala's beaked whale... NP.............. 22,799 Ferguson and 0.00189 0.00189 0.00189 0.00189 Bradford et al., NL
Barlow, 2001; 2017.
2003.
Dwarf sperm whale............. WNP............. 350,553 Ferguson and 0.00714 0.00714 0.00714 0.00714 Barlow, 2006.... NL
Barlow, 2001;
2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.00111 0.00111 0.00111 0.00111 Fulling et al., NL
2011.
Fraser's dolphin.............. CNP............. 16,992 Bradford et al., 0.02104 0.02104 0.02104 0.02104 Bradford et al., NL
2013. 2017.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.00189 0.00189 0.00189 0.00189 Bradford et al., NL
Barlow, 2001; 2017.
2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00006 0.00006 0.00006 0.00006 Bradford et al., NL
Barlow, 2001; 2017.
2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00311 0.00311 0.00311 0.00311 Bradford et al., NL
2017. 2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00428 0.00428 0.00428 0.00428 Fulling et al., NL
2018. 2011.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.0226 0.0226 0.0226 0.0226 Fulling et al., NL
2018. 2011.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.00014 0.00014 0.00014 0.00014 Fulling et al., NL
Barlow, 2001; 2011.
2003.
Pygmy sperm whale............. WNP............. 350,553 Ferguson and 0.00291 0.00291 0.00291 0.00291 Barlow, 2006.... NL
Barlow, 2001;
2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.00474 0.00474 0.00474 0.00474 Bradford et al., NL
2018. 2017.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00185 0.00185 0.00185 0.00185 LGL, 2011....... NL
2018.
Short-finned pilot whale...... WNP Southern.... 31,396 Kanaji et al., 0.00797 0.00797 0.00797 0.00797 Bradford et al., NL
2018. 2017.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00083 0.00083 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
[[Page 40164]]
Striped dolphin............... WNP Southern 52,682 Mayashita, 1993; 0.00616 0.00616 0.00616 0.00616 Fulling et al., NL
Offshore. Kasuya and 2011.
Perrin, 2017.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CNP = central north Pacific; NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 6--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 5, Sea of Japan
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0001 0.0001 0.0001 0.0001 Ferguson and NL
Barlow, 2001;
2003.
Common minke whale............ WNP JW Stock.... 2,611 Miyashita and 0.00016 0.00016 0.00016 0.00016 Ferguson and NL
Okamura, 2011. Barlow, 2001;
2003.
Fin whale..................... WNP............. 9,250 Tillman, 1977; 0.0009 0.0009 ......... 0.0009 Ferguson and EN
Mizroch et al., Barlow, 2001;
2009. 2003.
North Pacific right whale..... WNP............. 922 Best et al., 0.00001 0.00001 ......... ......... Unavail......... EN
2001.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Western North Pacific gray WNP Western DPS. 290 Caretta et al., 0.00001 0.00001 0.00001 0.00001 Unavail......... EN \4\
whale. 2019.
Baird's beaked whale.......... WNP............. 5,688 Miyashita 1986 0.0003 0.0003 ......... 0.0003 Kasuya, 1986.... NL
and 1990;
Kasuya and
Perrin, 2017.
Common dolphin................ WNP............. 279,182 Carretta et al., 0.1158 0.1158 0.1158 0.1158 Carretta et al., NL
2011. 2011.
Common bottlenose dolphin..... IA.............. 105,138 Miyashita, 1986; 0.00077 0.00077 0.00077 0.00077 LGL, 2011....... NL
Kishiro and
Kasuya 1993.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0031 0.0031 0.0031 0.0031 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Dall's porpoise............... SOJ dalli....... 173,638 IWC, 2008....... 0.0520 0.0520 ......... 0.0520 Ferguson and NL
Barlow, 2001;
2003.
False killer whale............ IA.............. 9,777 Miyashita, 1986; 0.0027 0.0027 0.0027 0.0027 Ferguson and NL
Kishiro and Barlow, 2001;
Kasuya 1993. 2003.
Harbor porpoise............... WNP............. 31,046 Hobbs and Waite, 0.0190 0.0190 ......... 0.0190 Hobbs and Waite, NL
2010; Angliss 2010.
and Allen, 2014.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp.\5\................. WNP............. 350,553 Ferguson and 0.0017 0.0017 0.0017 0.0017 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0030 0.0030 ......... ......... Ferguson and NL
1993. Barlow, 2001;
2003.
Risso's dolphin............... IA.............. 143,374 Kanaji et al., 0.0073 0.0073 0.0073 0.0073 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and ......... ......... 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Stejneger's beaked whale...... WNP............. 8,000 Kasuya, 1986.... 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001;
2003.
Northern fur seal............. WP.............. 503,609 Kuzin 2015; 0.368 0.158 ......... ......... Horimoto et al., NL
Gelatt et al., 2016.
2015.
Spotted seal.................. Southern and DPS 6,284 Trukhin 2019, 0.00001 0.00001 0.00001 0.00001 Unavail......... T
Han et al.,
2010; Han et
al., 2005, Yan
et al., 2018,
Shibuya and
Kobayashi 2016.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ IA = Inshore Archipelago; JW = Sea of Japan (minke); NP = north Pacific; SOJ = Sea of Japan; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ Only the western Pacific population of gray whale is endangered under the ESA.
\5\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 7--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 6, East China Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bryde's whale................. ECS............. 137 IWC, 1996....... 0.0003 0.0003 0.0003 0.0003 Bradford et al., NL
2013.
Common minke whale............ YS.............. 4,492 Miyashita and 0.0018 0.0018 0.0018 0.0018 Buckland et al., NL
Okamura, 2011; 1992.
Hakamada and
Hatanaka, 2010.
Fin whale..................... ECS............. 500 Tillman, 1977; 0.0002 0.0002 0.0002 0.0002 Tillman, 1977... EN
Mizroch et al.,
2009.
North Pacific right whale..... WNP............. 922 Best et al., 0.00001 0.00001 ......... ......... Unavail......... EN
2001.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008....... NL
Western North Pacific gray WNP and Western 290 Carretta et al., 0.00001 0.00001 ......... 0.00001 Unavail......... EN \4\
whale. DPS. 2019.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common dolphin................ WNP............. 279,182 Carretta et al., 0.1158 0.1158 0.1158 0.1158 Carretta et al., NL
2011. 2011.
Common bottlenose dolphin..... IA.............. 105,138 Miyashita, 1986; 0.00077 0.00077 0.00077 0.00077 LGL, 2011....... NL
Kishiro and
Kasuya 1993.
[[Page 40165]]
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0003 0.0003 0.0003 0.0003 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
False killer whale............ IA.............. 9,777 Miyashita, 1986; 0.00111 0.00111 0.00111 0.00111 Fulling et al., NL
Kishiro and 2011.
Kasuya 1993.
Fraser's dolphin.............. WNP............. 220,789 Ferguson and 0.00694 0.00694 0.00694 0.00694 Bradford et al., NL
Barlow, 2001; 2013.
2003.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp.\5\................. WNP............. 350,553 Ferguson and 0.0017 0.0017 0.0017 0.0017 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00428 0.00428 0.00428 0.00428 Fulling et al., NL
2018. 2011.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0028 0.0028 ......... ......... Ferguson and NL
1993. Barlow, 2001;
2003.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.01374 0.01374 0.01374 0.01374 Miyashita, 1993. NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.00014 0.00014 0.00014 0.00014 Fulling et al., NL
Barlow, 2001; 2011.
2003.
Risso's dolphin............... IA.............. 143,374 Kanaji et al., 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00083 0.00083 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Spotted seal.................. Southern and DPS 1,500 Han et al., 2005 0.00001 0.00001 0.00001 0.00001 Unavail......... T
in Yan et al.,
2018; Han et
al., 2010.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ECS = East China Sea; IA = Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ Only the western Pacific population of gray whale is endangered under the ESA.
\5\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 8--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 7, South China Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977.... NL
Common minke whale............ YS.............. 4,492 Miyashita and 0.0018 0.0018 0.0018 0.0018 Buckland et al., NL
Okamura, 2011; 1992.
Kakamada ad
Hatanaka 2010.
Fin whale..................... WNP............. 9,250 Tillman, 1977... 0.0002 0.0002 ......... 0.0002 Tillman, 1977... EN
Humpback whale................ WNP and DPS..... 1,328 Bettridge et 0.00036 0.00036 ......... 0.00036 Calambokidis et EN
al., 2015. al., 2008; LGL,
2008.
North Pacific right whale..... WNP............. 922 Best et al., 0.00001 0.00001 ......... ......... Unavail......... EN
2001.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Western North Pacific gray WNP and Western 290 Carretta et al., 0.00001 0.00001 ......... 0.00001 Unavail......... EN \4\
whale. DPS. 2019.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common dolphin................ WNP............. 279,182 Carretta et al., 0.1158 0.1158 0.1158 0.1158 Carretta et al., NL
2011. 2011.
Common bottlenose dolphin..... IA.............. 105,138 Miyashita, 1986; 0.00077 0.00077 0.00077 0.00077 LGL, 2011....... NL
Kishiro and
Kasuya 1993.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0003 0.0003 0.0003 0.0003 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Deraniyagala's beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
False killer whale............ IA.............. 9,777 Miyashita, 1986; 0.00111 0.00111 0.00111 0.00111 Fulling et al., NL
Kishiro and 2011.
Kasuya 1993.
Fraser's dolphin.............. WNP............. 220,789 Ferguson and 0.00694 0.00694 0.00694 0.00694 Bradford et al., NL
Barlow, 2001; 2013.
2003.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Kogia spp.\5\................. WNP............. 350,553 Ferguson and 0.0017 0.0017 0.0017 0.0017 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00428 0.00428 0.00428 0.00428 Fulling et al., NL
2018. 2011.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.01374 0.01374 0.01374 0.01374 Miyashita, 1993. NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.00014 0.00014 0.00014 0.00014 Fulling et al., NL
Barlow, 2001; 2011.
2003.
Risso's dolphin............... IA.............. 143,374 Kanaji et al., 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993. NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2018. 2015.
Short-finned pilot whale...... WNP Southern.... 31,396 Kanaji et al., 0.00159 0.00159 0.00159 0.00159 Fulling et al., NL
2018. 2011.
Sperm whale................... NP.............. 102,112 Kato and 0.00123 0.00123 0.00123 0.00123 Fulling et al., EN
Miyashita, 1998. 2011.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00083 0.00083 0.00083 0.00083 Barlow, 2006.... NL
Barlow, 2001;
2003.
Striped dolphin............... WNP Southern 52,682 Miyashita, 1993; 0.00584 0.00584 0.00584 0.00584 LGL, 2011....... NL
Offshore. Kasuya and
Perrin, 2017.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ IA = Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
[[Page 40166]]
\4\ Only the western Pacific population of gray whale is endangered under the ESA.
\5\ Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and
Barlow, 2001 and 2003.
Table 9--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 8, Offshore Japan 25[deg]
to 40[deg] N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977... 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Ferguson and
Barlow 2001;
2003; LGL, 2008.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0003 0.0003 0.0003 0.0003 LGL, 2011....... NL
Common minke whale............ WNP ``OE''...... 25,049 Buckland et al., 0.0003 0.0003 0.0003 0.0003 Buckland et al., NL
1992. 1992.
Fin whale..................... WNP............. 9,250 Tillman, 1977; ......... ......... 0.0001 0.0001 Tillman, 1977... EN
Mizroch et al.,
2009.
Humpback whale................ WNP and DPS..... 1,328 Bettridge et ......... ......... 0.00036 0.00036 Calambokidis et EN
al., 2015. al., 2008; LGL,
2008.
Sei whale..................... NP.............. 7,000 Mizroch et al., ......... 0.00029 0.00029 0.00029 Fulling et al., EN
2015. 2011.
Baird's beaked whale.......... WNP............. 5,688 Miyashita, 1986; 0.0001 0.0001 0.0001 0.0001 Kasuya, 1986.... NL
Kasuya and
Perrin, 2017.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.0007 0.0007 0.0007 0.0007 LGL, 2011....... NL
Barlow, 2001;
2003.
Common dolphin................ WNP............. 3,286,163 Ferguson and 0.0863 0.0863 0.0863 0.0863 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Common bottlenose dolphin..... WNP Northern 100,281 Miyashita, 1993; 0.00077 0.00077 0.00077 0.00077 LGL, 2011....... NL
Offshore. Kasuya and
Perrin, 2017.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.00374 0.00374 0.00374 0.00374 LGL, 2011....... NL
Barlow, 2001;
2003.
Dall's porpoise............... WNP dalli....... 162,000 Miyashita, 1991; 0.0390 0.0520 ......... 0.0520 Ferguson and NL
Kasuya and Barlow, 2001;
Perrin, 2017. 2003.
Dwarf sperm whale............. WNP............. 350,553 Ferguson and 0.0043 0.0043 0.0043 0.0043 LGL, 2011....... NL
Barlow, 2001;
2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.0036 0.0036 0.0036 0.0036 Miyashita, 1993. NL
Hubb's beaked whale........... NP.............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.0027 0.0027 0.0027 0.0027 LGL, 2011....... NL
2018.
Mesoplodon spp.\4\............ WNP............. 22,799 Ferguson and 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Northern right whale dolphin.. NP.............. 68,000 Buckland et al., 0.00001 0.00001 ......... 0.00001 Unavail......... NL
1993.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0048 0.0048 0.0048 0.0048 Ferguson and NL
1993. Barlow, 2001;
2003.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.0113 0.0113 0.0113 0.0113 LGL, 2011....... NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.0001 0.0001 0.0001 0.0001 LGL, 2011....... NL
Barlow, 2001;
2003.
Pygmy sperm whale............. WNP............. 350,553 Ferguson and 0.0018 0.0018 0.0018 0.0018 LGL, 2011....... NL
Barlow, 2001;
2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.0005 0.0005 0.0005 0.0005 LGL, 2011....... NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.0019 0.0019 0.0019 0.0019 LGL, 2011....... NL
2018.
Short-finned pilot whale...... WNP Northern.... 20,884 Miyashita, 1993. 0.0021 0.0021 0.0021 0.0021 LGL, 2011....... NL
Sperm whale................... NP.............. 102,112 Kato and 0.0022 0.0022 0.0022 0.0022 LGL, 2011....... EN
Miyashita, 1998.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.0019 0.0019 0.0019 0.0019 LGL, 2011....... NL
Barlow, 2001;
2003.
Stejneger's beaked whale...... WNP............. 8,000 Kasuya, 1986.... 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001;
2003.
Striped dolphin............... WNP Northern 497,725 Miyashita, 1993; 0.0058 0.0058 0.0058 0.0058 LGL, 2011....... NL
Offshore. Kasuya and
Perrin, 2017.
Hawaiian monk seal............ Hawaii.......... 1,427 NMFS, 2018...... 0.00001 0.00001 0.00001 0.00001 Unavail......... EN
Northern fur seal............. WP.............. 503,609 Kuzin 2015; 0.0123 ......... ......... ......... Buckland et al., NL
Gelatt et al., 1993.
2015.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific; WP = Western Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
\4\ No methods are available to distinguish between the species of Mesoplodon beaked whales in the WNP stocks (Blainville's beaked whale (M.
densirostris), Perrin's beaked whale (M. perrini), Lesser beaked whale (M. peruvianus), Stejneger's beaked whale (M. stejnegeri), Gingko-toothed
beaked whale (M. gingkodens), and Hubbs' beaked whale (M. carlhubbsi)) when observed during at-sea surveys (Carretta et al., 2018). As reported in
Ferguson and Barlow, 2001 and 2003, data on these species were pooled. These six species are managed as one unit.
Table 10--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 9, Offshore Japan 10[deg]
to 25[deg] N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977; 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Caretta et al., Ferguson and
2019. Barlow 2001;
2003; LGL, 2008.
Bryde's whale................. WNP............. 20,501 IWC, 2009....... 0.0003 0.0003 0.0003 0.0003 LGL, 2011....... NL
Fin whale..................... WNP............. 9,250 Tillman, 1977... 0.00001 0.00001 ......... ......... Unavail......... EN
Humpback whale................ WNP and DPS..... 1,328 Bettridge et 0.00036 0.00036 ......... 0.00036 Calambokidis et EN
al., 2015. al., 2008; LGL,
2008.
Omura's whale................. WNP............. 1,800 Oshsumi, 1980... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, NL
2018.
Sei whale..................... NP.............. 7,000 Mizroch et al., 0.00029 ......... ......... 0.00029 Fulling et al., EN
2015. 2011.
Blainville's beaked whale..... WNP............. 8,032 Ferguson and 0.0007 0.0007 0.0007 0.0007 LGL, 2011....... NL
Barlow, 2001;
2003.
Common bottlenose dolphin..... WNP Southern 40,769 Kanaji et al., 0.00077 0.00077 0.00077 0.00077 LGL, 2011....... NL
Offshore. 2018.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.00374 0.00374 0.00374 0.00374 LGL, 2011....... NL
Barlow, 2001;
2003.
[[Page 40167]]
Deraniyagala's beaked whale... NP.............. 22,799 Ferguson and 0.00093 0.00093 0.00093 0.00093 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Dwarf sperm whale............. WNP............. 350,553 Ferguson and 0.0043 0.0043 0.0043 0.0043 LGL, 2011....... NL
Barlow, 2001;
2003.
False killer whale............ WNP............. 16,668 Miyashita, 1993. 0.00057 0.00057 0.00057 0.00057 LGL, 2011....... NL
Fraser's dolphin.............. CNP............. 16,992 Bradford et al., 0.00251 0.00251 0.00251 0.00251 LGL, 2011....... NL
2013.
Ginkgo-toothed beaked whale... NP.............. 22,799 Ferguson and 0.00093 0.00093 0.00093 0.00093 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.00009 0.00009 0.00009 0.00009 LGL, 2011....... NL
Barlow, 2001;
2003.
Longman's beaked whale........ WNP............. 7,619 Bradford et al., 0.00025 0.00025 0.00025 0.00025 LGL, 2011....... NL
2017.
Melon-headed whale............ WNP............. 56,213 Kanaji et al., 0.00267 0.00267 0.00267 0.00267 LGL, 2011....... NL
2018.
Pantropical spotted dolphin... WNP............. 130,002 Kanaji et al., 0.01132 0.01132 0.01132 0.01132 LGL, 2011....... NL
2018.
Pygmy killer whale............ WNP............. 30,214 Ferguson and 0.00006 0.00006 0.00006 0.00006 LGL, 2011....... NL
Barlow, 2001;
2003.
Pygmy sperm whale............. WNP............. 350,553 Ferguson and 0.00176 0.00176 0.00176 0.00176 LGL, 2011....... NL
Barlow, 2001;
2003.
Risso's dolphin............... WNP............. 143,374 Kanaji et al., 0.00046 0.00046 0.00046 0.00046 LGL, 2011....... NL
2018.
Rough-toothed dolphin......... WNP............. 5,002 Kanaji et al., 0.00185 0.00185 0.00185 0.00185 LGL, 2011....... NL
2018.
Short-finned pilot whale...... WNP Southern.... 31,396 Kanaji et al., 0.00211 0.00211 0.00211 0.00211 LGL, 2011....... NL
2018.
Sperm whale................... NP.............. 102,112 Kato and 0.00222 0.00222 0.00222 0.00222 LGL, 2011....... EN
Miyashita, 1998.
Spinner dolphin............... WNP............. 1,015,059 Ferguson and 0.00187 0.00187 0.00187 0.00187 LGL, 2011....... NL
Barlow, 2001;
2003.
Striped dolphin............... WNP Southern 52,682 Miyashita, 1993; 0.00584 0.00584 0.00584 0.00584 LGL, 2011....... NL
Offshore. Kasuya and
Perrin, 2017.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NP = north Pacific; CNP = central north Pacific; WNP = western north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 11--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 10, Northern Hawaii
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... CNP............. 133 Bradford et al., 0.00005 0.00005 ......... 0.00005 Bradford et al., EN
2017. 2017.
Bryde's whale................. Hawaii.......... 1,751 Bradford et al., 0.000085 0.000085 0.000085 0.000085 Forney et al., NL
2017. 2015.
Common minke whale............ Hawaii.......... 25,049 Buckland et al., 0.00423 0.00423 ......... 0.00423 Martin et al., NL
1992. 2015.
Fin whale..................... Hawaii.......... 154 Bradford et al., 0.00006 0.00006 ......... 0.00006 Bradford et al., EN
2017. 2017.
Humpback whale................ CNP and Hawaii 10,103 Calambokidis et 0.00529 0.00529 ......... 0.00529 Mobley et al., NL
DPS. al., 2008; Muto 2001;
et al., 2019. Calambokidis et
al., 2008.
Sei whale..................... Hawaii.......... 391 Bradford et al., 0.00016 0.00016 ......... 0.00016 Bradford et al., EN
2017. 2017.
Blainville's beaked whale..... Hawaii.......... 2,105 Bradford et al., 0.00086 0.00086 0.00086 0.00086 Bradford et al., NL
2017. 2017.
Common bottlenose dolphin..... Hawaii pelagic.. 21,815 Bradford et al., 0.00118 0.00118 0.00118 0.00118 Forney et al., NL
2017. 2015.
Kauai/Niihau.... 184 Baird et al., 0.065 0.065 0.065 0.065 Baird et al., NL
2009; Caretta 2009.
et al., 2014.
4 Islands....... 191 Baird et al., 0.017 0.017 0.017 0.017 Baird et al., NL
2009; Caretta 2009.
et al., 2014.
Oahu............ 743 Baird et al., 0.187 0.187 0.187 0.187 Baird et al., NL
2009; Caretta 2009.
et al., 2014.
Hawaii Island... 128 Baird et al., 0.028 0.028 0.028 0.028 Baird et al., NL
2009; Caretta 2009.
et al., 2014.
Cuvier's beaked whale......... Hawaii.......... 723 Bradford et al., 0.0003 0.0003 0.0003 0.0003 Bradford et al., NL
2017. 2017.
Dwarf sperm whale............. Hawaii.......... 17,519 Barlow, 2006.... 0.00714 0.00714 0.00714 0.00714 Barlow, 2006.... NL
False killer whale............ Hawaii-Pelagic.. 1,540 Bradford et al., 0.0006 0.0006 0.0006 0.0006 Forney et al., NL
2014; 2015; 2015; Bradford
Caretta et al., et al., 2015.
2019.
Main Hawaiian 167 Bradford et al., 0.0008 0.0008 0.0008 0.0008 Bradford et al., EN
Islands Insular 2018; Caretta 2015.
and DPS. et al., 2019.
Northwest 617 Bradford et al., 0.0006 0.0006 0.0006 0.0006 Forney et al., NL
Hawaiian 2014; 2015; 2015; Bradford
Islands. Caretta et al., et al., 2015.
2019.
Fraser's dolphin.............. Hawaii.......... 51,491 Bradford et al., 0.02104 0.02104 0.02104 0.02104 Bradford et al., NL
2017. 2017.
Killer whale.................. Hawaii.......... 146 Bradford et al., 0.00006 0.00006 0.00006 0.00006 Bradford et al., NL
2017. 2017.
Longman's beaked whale........ Hawaii.......... 7,619 Bradford et al., 0.00311 0.00311 0.00311 0.00311 Bradford et al., NL
2017. 2017.
Melon-headed whale............ Hawaiian Islands 8,666 Bradford et al., 0.002 0.0020 0.0020 0.0020 Aschettino, 2010 NL
2017.
Kohala Resident. 447 Aschettino, 2010 0.1000 0.1000 0.1000 0.1000 Aschettino, 2010 NL
Pantropical spotted dolphin... Hawaii Pelagic.. 55,795 Bradford et al., 0.00369 0.00369 0.00369 0.00369 Forney et al., NL
2017. 2015.
Hawaii Island... 220 Courbis et al., 0.061 0.061 0.061 0.061 Oleson et al., NL
2014. 2013.
Oahu............ 220 Courbis et al., 0.072 0.072 0.072 0.072 Oleson et al., NL
2014. 2013.
4 Islands....... 220 Courbis et al., 0.061 0.061 0.061 0.061 Oleson et al., NL
2014. 2013.
Pygmy killer whale............ Hawaii.......... 10,640 Bradford et al., 0.00435 0.00435 0.00435 0.00435 Bradford et al., NL
2017. 2017.
Pygmy sperm................... Hawaii.......... 7,138 Barlow, 2006.... 0.0029 0.0029 0.0029 0.0029 Barlow, 2006.... NL
Risso's dolphin............... Hawaii.......... 11,613 Bradford et al., 0.00474 0.00474 0.00474 0.00474 Bradford et al., NL
2017. 2017.
Rough-toothed dolphin......... Hawaii.......... 72,528 Bradford et al., 0.00224 0.00224 0.00224 0.00224 Forney et al., NL
2017. 2015.
Short-finned pilot whale...... Hawaii.......... 19,503 Bradford et al., 0.00459 0.00459 0.00459 0.00459 Forney et al., NL
2017. 2015.
Sperm whale................... Hawaii.......... 4,559 Bradford et al., 0.00158 0.00158 0.00158 0.00158 Forney et al., EN
2017. 2015.
Spinner dolphin............... Hawaii Pelagic.. 3,351 Barlow, 2006.... 0.00159 0.00159 0.00159 0.00159 Forney et al., NL
2015.
Kauai/Niihau.... 601 Carretta et al., 0.097 0.097 0.097 0.097 Hill et al., NL
2014. 2011.
Hawaii Island... 665 Carretta et al., 0.066 0.066 0.066 0.066 Tyne et al., NL
2019. 2014.
Oahu/4 Islands.. 355 Carretta et al., 0.023 0.023 0.023 0.023 Hill et al., NL
2014. 2011.
Kure/Midway 260 Carretta et al., 0.0070 0.0070 0.0070 0.0070 Barlow, 2006.... NL
Atoll. 2014.
Pearl and Hermes 300 Karczmarski et 0.0070 0.0070 0.0070 0.0070 Barlow, 2006.... NL
Reef. al., 2005.
Striped dolphin............... Hawaii.......... 61,201 Bradford et al., 0.00385 0.00385 0.00385 0.00385 Forney et al., NL
2017. 2015.
[[Page 40168]]
Hawaiian monk seal............ Hawaii.......... 1,427 NMFS, 2018...... 0.00004 0.00004 0.00004 0.00004 NMFS, 2018; DoN, EN
2018.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CNP = central north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 12--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 11, Southern Hawaii
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/Km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... CNP............. 133 Bradford et al., 0.00005 0.00005 ......... 0.00005 Bradford et al., EN
2017. 2017.
Bryde's whale................. Hawaii.......... 798 Bradford et al., 0.00012 0.00012 0.00012 0.00012 Forney et al., NL
2013. 2015.
Common minke whale............ Hawaii.......... 25,049 Buckland et al., 0.00423 0.00423 ......... 0.00423 Martin et al., NL
1992. 2015.
Fin whale..................... Hawaii.......... 154 Bradford et al., 0.00006 0.00006 ......... 0.00006 Bradford et al., EN
2017. 2017.
Humpback whale................ CNP/Hawaii DPS.. 10,103 Calambokidis et 0.00631 0.00631 ......... 0.00631 Mobley et al., NL
al., 2008. 2001;
Calambokidis et
al., 2008.
Sei whale..................... Hawaii.......... 391 Bradford et al., 0.00016 0.00016 ......... 0.00016 Bradford et al., EN
2017. 2017.
Blainville's beaked whale..... Hawaii.......... 2,105 Bradford et al., 0.00086 0.00086 0.00086 0.00086 Bradford et al., NL
2017. 2017.
Common bottlenose dolphin..... Hawaii Pelagic.. 21,815 Bradford et al., 0.00126 0.00126 0.00126 0.00126 Forney et al., NL
2017. 2015.
Oahu............ 743 Baird et al., 0.187 0.187 0.187 0.187 Baird et al., NL
2009; Carretta 2009.
et al., 2014.
4 Islands....... 191 Baird et al., 0.017 0.017 0.017 0.017 Baird et al., NL
2009; Carretta 2009.
et al., 2014.
Hawaii Island... 128 Baird et al., 0.028 0.028 0.028 0.028 Baird et al., NL
2009; Carretta 2009.
et al., 2014.
Kauai/Niihau.... 184 Baird et al., 0.065 0.065 0.065 0.065 Baird et al., NL
2009; Carretta 2009.
et al., 2014.
Cuvier's beaked whale......... Hawaii.......... 723 Bradford et al., 0.0003 0.0003 0.0003 0.0003 Bradford et al., NL
2017. 2017.
Deraniyagala's beaked whale... NP.............. 22,799 Ferguson and 0.00093 0.00093 0.00093 0.00093 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Dwarf sperm whale............. Hawaii.......... 17,519 Barlow, 2006.... 0.00714 0.00714 0.00714 0.00714 Barlow, 2006.... NL
False killer whale............ Hawaii-Pelagic.. 1,540 Bradford et al., 0.00086 0.00086 0.00086 0.00086 Forney et al., NL
2014; 2015. 2015; Bradford
et al., 2015.
Main Hawaiian 167 Bradford et al., 0.0008 0.0008 0.0008 0.0008 Bradford et al., EN
Island Insular 2018; Carretta 2015.
and DPS. et al., 2019.
Fraser's dolphin.............. Hawaii.......... 51,491 Bradford et al., 0.02104 0.02104 0.02104 0.02104 Bradford et al., NL
2017. 2017.
Killer whale.................. Hawaii.......... 146 Bradford et al., 0.00006 0.00006 0.00006 0.00006 Bradford et al., NL
2017. 2017.
Longman's beaked whale........ Hawaii.......... 7,619 Bradford et al., 0.00311 0.00311 0.00311 0.00311 Bradford et al., NL
2017. 2017.
Melon-headed whale............ Hawaiian Islands 8,666 Bradford et al., 0.0020 0.0020 0.0020 0.0020 Aschettino, 2010 NL
2017.
Kohala Resident. 447 Aschettino, 2010 0.1000 0.1000 0.1000 0.1000 Aschettino, 2010 NL
Pantropical spotted dolphin... Hawaii Pelagic.. 55,795 Bradford et al., 0.00541 0.00541 0.00541 0.00541 Forney et al., NL
2017. 2015.
Hawaii Island... 220 Courbis et al., 0.061 0.061 0.061 0.061 Oleson et al., NL
2014. 2013.
Oahu............ 220 Courbis et al., 0.072 0.072 0.072 0.072 Oleson et al., NL
2014. 2013.
4 Islands....... 220 Courbis et al., 0.061 0.061 0.061 0.061 Oleson et al., NL
2014. 2013.
Pygmy killer whale............ Hawaii.......... 10,640 Bradford et al., 0.00435 0.00435 0.00435 0.00435 Bradford et al., NL
2017. 2017.
Pygmy sperm whale............. Hawaii.......... 7,138 Barlow, 2006.... 0.0029 0.0029 0.0029 0.0029 Barlow, 2006.... NL
Risso's dolphin............... Hawaii.......... 11,613 Bradford et al., 0.00474 0.00474 0.00474 0.00474 Bradford et al., NL
2017. 2017.
Rough toothed dolphin......... Hawaii.......... 75,528 Bradford et al., 0.00257 0.00257 0.00257 0.00257 Forney et al., NL
2017. 2015.
Short-finned pilot whale...... Hawaii.......... 19,503 Bradford et al., 0.00549 0.00549 0.00549 0.00549 Forney et al., NL
2017. 2015.
Sperm whale................... Hawaii.......... 4,559 Bradford et al., 0.00131 0.00131 0.00131 0.00131 Forney et al., EN
2017. 2015.
Spinner dolphin............... Hawaii Pelagic.. 3,351 Barlow, 2006.... 0.00348 0.00348 0.00348 0.00348 Forney et al., NL
2015.
Oahu/4-Islands.. 601 Carretta et al., 0.023 0.023 0.023 0.023 Hill et al., NL
2014. 2011.
Hawaii Island... 665 Carretta et al., 0.066 0.066 0.066 0.066 Tyne et al., NL
2019. 2014.
Kauai/Niihau.... 355 Carretta et al., 0.097 0.097 0.097 0.097 Hill et al., NL
2014. 2011.
Striped dolphin............... Hawaii.......... 61,201 Bradford et al., 0.00475 0.00475 0.00475 0.00475 Forney et al., NL
2017. 2015.
Hawaiian monk seal............ Hawaii.......... 1,427 NMFS, 2018...... 0.00004 0.00004 0.00004 0.00004 NMFS, 2018, DoN, EN
2018.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CNP = central north Pacific; NP = north Pacific.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 13--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 12, Offshore Sri Lanka
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... NIND............ 3,691 IWC, 2016....... 0.00004 0.00004 0.00004 0.00004 Kaschner et al., EN
2006; DoN, 2018.
Bryde's whale................. NIND............ 9,176 Wade and 0.00041 0.00041 0.00041 0.00041 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Common minke whale............ IND............. 257,000 IWC, 2016....... 0.00001 0.00001 0.00001 0.00001 SMRU Ltd., 2012; NL
DoN, 2018.
Fin whale..................... IND............. 1,846 IWC, 2016....... 0.00001 0.00001 0.00001 0.00001 DoN, 2018....... EN
Omura's whale................. NIND............ 9,176 Wade and 0.00041 0.00041 0.00041 0.00041 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Sei whale..................... NIND............ 9,176 Wade and 0.00041 0.00041 0.00041 0.00041 SMRU Ltd., 2012; EN
Gerrodette, DoN, 2018.
1993.
Blainville's beaked whale..... IND............. 16,867 Wade and 0.00105 0.00105 0.00105 0.00105 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Common dolphin................ IND............. 1,819,982 Wade and 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Common bottlenose dolphin..... NIND............ 785,585 Wade and 0.04839 0.04829 0.04725 0.04740 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
[[Page 40169]]
Cuvier's beaked whale......... NIND............ 27,272 Wade and 0.00506 0.00508 0.00505 0.00505 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Deraniyagala's beaked whale... IND............. 16,867 Wade and 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Dwarf sperm whale............. IND............. 10,541 Wade and 0.00005 0.00005 0.00005 0.00005 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
False killer whale............ IND............. 144,188 Wade and 0.00024 0.00024 0.00024 0.00024 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Fraser's dolphin.............. IND............. 151,554 Wade and 0.00207 0.00207 0.00207 0.00207 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Indo-Pacific bottlenose IND............. 7,850 Wade and 0.00048 0.00048 0.00047 0.00047 SMRU Ltd., 2012; NL
dolphin. Gerrodette, DoN, 2018.
1993.
Killer whale.................. IND............. 12,593 Wade and 0.00697 0.00155 0.00693 0.00694 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Longman's beaked whale........ IND............. 16,867 Wade and 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Melon-headed whale............ IND............. 64,600 Wade and 0.00921 0.00920 0.00937 0.00936 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Pantropical spotted dolphin... IND............. 736,575 Wade and 0.00904 0.00904 0.00904 0.00904 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Pygmy killer whale............ IND............. 22,029 Wade and 0.00138 0.00137 0.00152 0.00153 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Pygmy sperm whale............. IND............. 10,541 Wade and 0.00001 0.00001 0.00001 0.00001 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Risso's dolphin............... IND............. 452,125 Wade and 0.08641 0.08651 0.08435 0.08466 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Rough-toothed dolphin......... IND............. 156,690 Wade and 0.00071 0.00071 0.00071 0.00071 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Short-finned pilot whale...... IND............. 268,751 Wade and 0.03219 0.03228 0.03273 0.03279 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Sperm whale................... NIND............ 24,446 Wade and 0.00129 0.00118 0.00126 0.00121 SMRU Ltd., 2012; EN
Gerrodette, DoN, 2018.
1993.
Spinner dolphin............... IND............. 634,108 Wade and 0.00678 0.00678 0.00678 0.00678 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Striped dolphin............... IND............. 674,578 Wade and 0.14601 0.14629 0.14780 0.14788 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ IND = Indian Ocean; NIND = northern Indian Ocean.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 14--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 13, Andaman Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... NIND............ 3,691 IWC, 2016....... 0.00003 0.00003 0.00003 0.00003 Kaschner et al., EN
2006; DoN, 2018.
Bryde's whale................. NIND............ 9,176 Wade and 0.00038 0.000036 0.00037 0.00037 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Common minke whale............ IND............. 257,000 IWC, 2016....... ......... 0.00001 0.00968 0.00001 SMRU Ltd., 2012; NL
DoN, 2018.
Fin whale..................... IND............. 1,846 IWC, 2016....... 0.00001 0.00001 ......... 0.00001 SMRU Ltd., 2012; EN
DoN, 2018.
Omura's whale................. NIND............ 9,176 IWC, 2016....... 0.00038 0.00036 0.00037 0.00037 Kaschner et al., NL
2006; DoN, 2018.
Blainville's beaked whale..... IND............. 16,867 Wade and 0.00094 0.00089 0.00094 0.00099 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Common bottlenose dolphin..... NIND............ 785,585 Wade and 0.07578 0.07781 0.07261 0.07212 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Cuvier's beaked whale......... NIND............ 27,272 Wade and 0.00466 0.00482 0.00480 0.00473 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Deraniyagala's beaked whale... IND............. 16,867 Wade and 0.00094 0.00092 0.00097 0.00099 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Dwarf sperm whale............. IND............. 10,541 Wade and 0.00005 0.00006 0.00006 0.00005 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
False killer whale............ IND............. 144,188 Wade and 0.00023 0.00023 0.00024 0.00023 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Fraser's dolphin.............. IND............. 151,554 Wade and 0.00176 0.00179 0.00180 0.00180 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Ginkgo-toothed beaked whale... IND............. 16,867 Wade and 0.00094 0.00092 0.00097 0.00099 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Indo-Pacific bottlenose IND............. 7,850 Wade and 0.00076 0.00078 0.00073 0.00072 SMRU Ltd., 2012; NL
dolphin. Gerrodette, DoN, 2018.
1993.
Killer whale.................. IND............. 12,593 Wade and 0.00744 0.00178 0.00730 0.00734 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Longman's beaked whale........ IND............. 16,867 Wade and 0.00444 0.00429 0.00459 0.00440 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Melon-headed whale............ IND............. 64,600 Wade and 0.00884 0.00884 0.00878 0.00846 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Pantropical spotted dolphin... IND............. 736,575 Wade and 0.00868 0.00841 0.00829 0.00873 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Pygmy killer whale............ IND............. 22,029 Wade and 0.00121 0.00113 0.00125 0.00131 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Pygmy sperm whale............. IND............. 10,541 Wade and 0.00001 0.00001 0.00001 0.00001 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Risso's dolphin............... IND............. 452,125 Wade and 0.09197 0.09215 0.09173 0.09366 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Rough-toothed dolphin......... IND............. 156,690 Wade and 0.00077 0.00078 0.00077 0.00074 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Short-finned pilot whale...... IND............. 268,751 Wade and 0.03354 0.03364 0.03543 0.03504 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Sperm whale................... NIND............ 24,446 Wade and 0.00109 0.00099 0.00107 0.00105 SMRU Ltd., 2012; EN
Gerrodette, DoN, 2018.
1993.
Spinner dolphin............... IND............. 634,108 Wade and 0.00736 0.00711 0.00701 0.00726 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Striped dolphin............... IND............. 674,578 Wade and 0.14413 0.14174 0.14123 0.14402 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ IND = Indian Ocean; NIND = northern Indian Ocean.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
[[Page 40170]]
Table 15--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 14, Northwestern
Australia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antarctic minke whale......... ANT............. 90,000 Bannister et ......... 0.00001 0.00001 0.00001 Unavail......... NL
al., 1996.
Blue whale/Pygmy blue whale... SIND............ 1,657 Jenner et al., ......... 0.00003 0.00003 0.00003 Kaschner et al., EN
2008; McCauley 2006; DoN, 2018.
and Jenner,
2010.
Bryde's whale................. SIND............ 13,854 IWC, 1981....... 0.00032 0.00032 0.00032 0.00032 Kaschner et al., NL
2006; DoN, 2018.
Common minke whale............ IND............. 257,500 IWC, 2016....... ......... 0.01227 0.01929 0.01947 SMRU Ltd., 2012; NL
DoN, 2018.
Fin whale..................... SIND............ 38,185 Branch and 0.00001 0.00099 0.00128 0.00121 SMRU Ltd., 2012; EN
Butterworth, DoN, 2018.
2001; Mori and
Butterworth,
2006.
Humpback whale................ Western 13,640 Bannister and ......... 0.00007 0.00007 0.00007 Kaschner et al., NL
Australia stock Hedley, 2001. 2006; DoN, 2018.
and DPS.
Omura's whale................. SIND............ 13,854 IWC, 1981....... 0.00032 0.00032 0.00032 0.00032 Kaschner et al., NL
2006; DoN, 2018.
Sei whale..................... SIND............ 13,854 IWC, 1981....... 0.00001 0.00001 0.00001 0.00001 Unavail......... EN
Blainville's beaked whale..... IND............. 16,867 Wade and 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Common bottlenose dolphin..... WAU............. 3,000 Preen et al., 0.03630 0.03652 0.03459 0.03725 SMRU Ltd., 2012; NL
1997. DoN, 2018.
Cuvier's beaked whale......... SH.............. 76,500 Dalebout et al., 0.00399 0.00406 0.00402 0.00405 SMRU Ltd., 2012; NL
2005. DoN, 2018.
Dwarf sperm whale............. IND............. 10,541 Wade and 0.00004 0.00004 0.00004 0.00004 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
False killer whale............ IND............. 144,188 Wade and 0.00020 0.00020 0.00019 0.00020 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Fraser's dolphin.............. IND............. 151,554 Wade and 0.00145 0.00148 0.00149 0.00147 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Killer whale.................. IND............. 12,593 Wade and 0.00585 0.00435 0.00588 0.00580 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Longman's beaked whale........ IND............. 16,867 Wade and 0.00393 0.00393 0.00403 0.00412 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Melon-headed whale............ IND............. 64,600 Wade and 0.00717 0.00717 0.00635 0.00637 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Pantropical spotted dolphin... IND............. 736,575 Wade and 0.00727 0.00727 0.00715 0.00746 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Pygmy killer whale............ IND............. 22,029 Wade and 0.00100 0.00104 0.00101 0.00097 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Risso's dolphin............... IND............. 452,125 Wade and 0.07152 0.07214 0.06944 0.07173 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Rough-toothed dolphin......... IND............. 156,690 Wade and 0.00059 0.00060 0.00059 0.00059 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Short-finned pilot whale...... IND............. 268,751 Wade and 0.02698 0.02759 0.02689 0.02716 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Southern bottlenose whale..... IND............. 599,300 Wade and 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Spade-toothed beaked whale.... IND............. 16,867 Wade and 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
Sperm whale................... SIND............ 24,446 Wade and 0.00096 0.00087 0.00097 0.00092 SMRU Ltd., 2012; EN
Gerrodette, DoN, 2018.
1993.
Spinner dolphin............... IND............. 634,108 Wade and 0.00561 0.00549 0.00568 0.00563 Kaschner et al., NL
Gerrodette, 2006; DoN, 2018.
1993.
Striped dolphin............... IND............. 674,578 Wade and 0.12018 0.12041 0.11680 0.11727 SMRU Ltd., 2012; NL
Gerrodette, DoN, 2018.
1993.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ANT = Antarctic; SIND = southern Indian Ocean; IND = Indian Ocean; SH = Southern Hemisphere; WAU = Western Australia.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Table 16--Abundance and Density Estimates for the Marine Mammal Species, Species Groups, and Stocks Associated With Model Area 15, Northeast of Japan
--------------------------------------------------------------------------------------------------------------------------------------------------------
Density (animals/km\2\) ESA
Species Stock name \1\ Abundance Abundance source -------------------------------------------- Density source status
reference Winter Spring Summer Fall reference \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.................... WNP............. 9,250 Tillman, 1977... 0.00001 0.00001 ......... 0.00001 Tillman, 1997; EN
Ferguson and
Barlow 2001;
2003; LGL, 2008.
Common minke whale............ WNP ``OE''...... 25,049 Buckland et al., 0.0022 0.0022 0.0022 0.0022 Buckland et al., NL
1992. 1992.
Fin whale..................... WNP............. 9,250 Tillman, 1977... ......... 0.0002 0.0002 0.0002 Tillman, 1977... EN
Humpback whale................ WNP and DPS..... 1,328 Bettridge et ......... 0.000498 0.000498 0.000498 Kaschner et al., EN
al., 2015. 2006 in DoN,
2018.
North Pacific right whale..... WNP............. 922 Best et al., ......... ......... 0.00001 0.00001 Unavail......... EN
2001.
Sei whale..................... NP.............. 7,000 Mizroch et al., ......... 0.00029 0.00029 ......... Fulling et al., EN
2015. 2011.
Western North Pacific gray Western and DPS. 290 Caretta et al., ......... ......... 0.00001 0.00001 Unavail......... EN
whale. 2019.
Baird's beaked whale.......... WNP............. 5,688 Miyashita 1986 ......... 0.0015 0.0029 0.0029 Kasuya, 1986.... NL
and 1990,
Kasuya and
Perrin, 2017.
Common dolphin................ WNP............. 3,286,163 Ferguson and 0.0863 0.0863 0.0863 0.0863 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Cuvier's beaked whale......... WNP............. 90,725 Ferguson and 0.0054 0.0054 0.0054 0.0054 Ferguson and NL
Barlow, 2001; Barlow, 2001;
2003. 2003.
Dall's porpoise............... WNP dalli....... 162,000 Miyashita, 1991; 0.0390 0.0520 0.0650 0.0520 Ferguson and NL
Kasuya and Barlow, 2001;
Perrin, 2017. 2003.
Killer whale.................. WNP............. 12,256 Ferguson and 0.0036 0.0036 0.0036 0.0036 Springer et al., NL
Barlow, 2001; 2003.
2003.
Pacific white-sided dolphin... NP.............. 931,000 Buckland et al., 0.0048 0.0048 0.0048 0.0048 Ferguson and NL
1993. Barlow, 2001;
2003.
Sperm whale................... NP.............. 102,112 Kato and 0.0017 0.0022 0.0022 0.0022 LGL, 2011....... EN
Miyashita, 1998.
Stejneger's beaked whale...... WNP............. 8,000 Kasuya, 1986.... 0.0005 0.0005 0.0005 0.0005 Ferguson and NL
Barlow, 2001;
2003.
Northern fur seal............. Western Pacific. 503,609 Kuzin 2015; 0.00689 0.01378 0.01378 0.01378 Buckland et al., NL
Gelatt et al., 1993.
2015.
Ribbon seal................... NP.............. 365,000 Lowry, 2016..... 0.0904 0.0904 0.0452 0.0452 Moreland et al., NL
2012.
Spotted seal.................. Alaska/Bering 461,625 Conn et al., ......... 0.2770 0.1385 ......... Moreland et al., NL
Sea DPS. 2014; Muto et 2012.
al., 2019.
Steller sea lion.............. West-Asian and 77,767 Muto et al., 0.00001 0.00001 0.00001 0.00001 Unavail......... EN
Western DPS. 2019.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ IND = Indian Ocean; NP = northern Pacific; WNP = western north Pacific; OE = Offshore Japan.
\2\ Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km\2\ was used
in the take analysis to reflect the low probability of occurrence.
[[Page 40171]]
\3\ ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.
Stock abundance and density estimates are derived from the best
available source documentation and species or stock-specific
information on the marine mammals that could occur in that area. The
Navy developed the abundance and density estimates by first using
estimates from line-transect surveys that occurred in or near each of
the 15 model sites (e.g., Bradford et al., 2017) and NMFS' SARs. When
density estimates were not available from a survey in the model area,
the Navy extrapolated density estimates from a region with similar
oceanographic characteristics to that model area. For example, the
eastern tropical Pacific has been extensively surveyed and provides a
comprehensive understanding of marine mammals in temperate oceanic
waters (Ferguson and Barlow, 2001, 2003). Density estimates for some
model areas were also derived from the Navy's Marine Species Density
Database (DoN, 2018). In addition, density estimates are usually not
available for rare marine mammal species or for those that have been
newly defined (e.g., the Deraniyagala's beaked whale). For these
species, the lowest density estimate of 0.0001 animals/square kilometer
(0.0001 animals/km\2\) was used in the take analysis to reflect the low
probability of occurrence in a specific SURTASS LFA sonar model area.
Further, the Navy pooled density estimates for species of the same
genus if sufficient data were not available to compute a density for
individual species or the species are difficult to distinguish at sea,
which is often the case for beaked whales (e.g., Mesoplodon spp.), as
well as the pygmy and dwarf sperm whales (Kogia spp.). Density
estimates are available for species groups rather than the individual
species for Kogia spp. in model areas 1, 2, 3, 5, 6, and 7 and for
Mesoplodon spp. in model area 8, and the best available data (Ferguson
and Barlow, 2001 and 2003) are reported as pooled data.
The Navy provides detailed descriptions of the distribution,
abundance, diving behavior, life history, and hearing vocalization
information for each affected marine mammal species with confirmed or
possible occurrence within SURTASS LFA sonar study areas in section 4
(pages 4-1 through 4-44) of the application (available online at
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities) and
Chapter 3 of the 2019 SURTASS LFA FSEIS/SOEIS.
Although not repeated in this document, NMFS has reviewed these
data, determined them to be the best available scientific information
for this rulemaking, and considers this information part of the
administrative record for this action. Additional information is
available in NMFS' Marine Mammal Stock Assessment Reports, which may be
viewed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. There are no active Unusual
Mortality Events in the SURTASS LFA sonar Study Area.
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
NMFS provided a brief primer on the subjects of underwater sound,
the metrics used in the analysis of the effects of underwater sound on
marine mammals, and marine mammal hearing sensitivities and
vocalizations in the Brief Background on Sound, Marine Mammal Hearing,
and Vocalization section of the proposed rule (84 FR 7186; March 1,
2019). Additionally, NMFS provided a summary and discussion of the
potential effects of the specified activities (e.g., use of acoustic
sources) on marine mammals and their habitat in the proposed rule (84
FR 7186; March 1, 2019). In the Potential Effects of Specified
Activities on Marine Mammals and Their Habitat section of the proposed
rule, NMFS provided a description of the potential effects of SURTASS
LFA sonar training and testing activities on marine mammals, including
a discussion of serious injury or mortality, physical trauma, sensory
impairment (permanent and temporary threshold shift and acoustic
masking), physiological responses (particular stress responses),
behavioral disturbance, or habitat effects, as well as the results from
previous SURTASS LFA sonar activities monitoring. Therefore, we do not
reprint this information here but refer the reader to that document,
however, we provide an overview of relevant new scientific studies
below. None of the newer information highlighted here affects our
analysis in a manner that changes our determinations under the MMPA
from the proposed rule.
New Pertinent Science Since Publication of the Proposed Rule
Southall et al. (2019a) evaluated Southall et al. (2007) and used
updated scientific information to propose revised noise exposure
criteria to predict onset of auditory effects in marine mammals (i.e.,
PTS and TTS onset). Southall et al. (2019a) note that the quantitative
processes described and the resulting exposure criteria (i.e.,
thresholds and auditory weighting functions) are largely identical to
those in Finneran (2016) and NMFS (2016 and 2018). However, they differ
in that the Southall et al. (2019a) exposure criteria are more broadly
applicable as they include all marine mammal species (rather than those
only under NMFS jurisdiction) for all noise exposures (both in air and
underwater for amphibious species), and while the hearing group
compositions are identical, Southall et al. (2019a) renamed the hearing
groups.
Recent studies on the behavioral responses of cetaceans to mid-
frequency sonar examine and continue to demonstrate the importance of
not only sound source parameters, but exposure context (e.g.,
behavioral state, presence of other animals and social relationships,
prey abundance, distance to source, presence of vessels, environmental
parameters, etc.) in determining or predicting a behavioral response.
Wensveen et al. (2019) examined the role of sound source (simulated
sonar pulses) distance and received level in northern bottlenose whales
in an environment without frequent sonar activity using multi-scaled
controlled exposure experiments. They observed behavioral avoidance of
the sound source over a wide range of distances (0.8-28 km) and
estimated avoidance thresholds ranging from received SPLs of 117-126 dB
re: 1 [micro]Pa. The behavioral response characteristics and avoidance
thresholds were comparable to those previously observed in beaked whale
studies; however, Wensveen et al. (2019) did not observe an effect of
distance on behavioral response and found that onset and intensity of
behavioral response were better predicted by received SPL. When
conducting controlled exposure experiments on blue whales, Southall et
al. (2019b) observed that after exposure to simulated and operational
mid-frequency active sonar, more than 50 percent of blue whales in
deep-diving states responded to the sonar, while no behavioral response
was observed in shallow-feeding blue whales. The behavioral responses
they observed were generally brief, of low to moderate severity, and
highly dependent on exposure context (behavioral state, source-to-whale
horizontal range, and
[[Page 40172]]
prey availability). Blue whale response did not follow a simple
exposure-response model based on received sound exposure level. In a
review of the potential impacts of sonar on beaked whales, Bernaldo de
Quir[oacute]s et al. (2019) suggested that the effect of mid-frequency
active sonar on beaked whales varies among individuals or populations,
and that predisposing conditions such as previous exposure to sonar and
individual health risk factors may contribute to individual outcomes
(such as decompression sickness).
Estimated Take of Marine Mammals
This section indicates the numbers of takes that NMFS is
authorizing in its LOA, which are based on the maximum number of
instances in which marine mammals could be reasonably expected to be
taken, as described in detail below. NMFS coordinated closely with the
Navy in the development of its incidental take application, and agrees
that the methods the Navy has put forth described herein to estimate
take (including the model, thresholds, and density estimates), and the
resulting numbers estimated for authorization, are appropriate and
based on the best available science.
Level B harassment is the only means of take expected to result
from these activities. For military readiness activities, the MMPA
defines ``harassment'' as: (i) Any act that injures or has the
significant potential to injure a marine mammal or marine mammal stock
in the wild (Level A Harassment); or (ii) any act that disturbs or is
likely to disturb a marine mammal or marine mammal stock in the wild by
causing disruption of natural behavior 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). As described in the
Potential Effects of the Specified Activity on Marine Mammals and their
Habitat section of the proposed rule (84 FR 7186, March 1, 2019), based
on the specified activities operational parameters and mitigation, only
Level B Harassment is expected to occur and therefore authorized. Based
on the nature of the activities and the anticipated effectiveness of
the mitigation measures, take by Level A Harassment, serious injury, or
mortality is neither anticipated nor authorized.
Generally speaking, for acoustic impacts we estimate the amount and
type of harassment by considering: (1) Acoustic thresholds above which
NMFS believes the best available science indicates marine mammals will
be taken by behavioral disruption or incur some degree of temporary or
permanent hearing impairment; (2) the area or volume of water that will
be ensonified above these levels in a day or event; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) the
number of days of activities or events. Below, we describe these
components in more detail, as well as the model the Navy used to
incorporate these components to predict impacts, and present the take
estimates.
Density Estimates
To derive density estimates, direct estimates from line-transect
surveys that occurred in or near each of the 15 modeled areas
(described in the Description of Marine Mammals in the Area of the
Specified Activities section above) were utilized first (e.g., Bradford
et al., 2017). When density estimates were not available from a survey
in the Study Area, density estimates from a region with similar
oceanographic characteristics were extrapolated to the operational
area. Densities for some model areas were also derived from the Navy's
Marine Species Density Database (DoN, 2018a). Last, density estimates
are usually not available for rare marine mammal species or for those
that have been newly defined (e.g., Deraniyagala's beaked whale). For
such species, a low density estimate of 0.0001 animals per square
kilometer (animals/km\2\) was used in the risk analysis to reflect the
low probability of occurrence in a specific model area. Further,
density estimates are sometimes pooled for species of the same genus if
sufficient data are not available to compute a density for individual
species or the species are difficult to distinguish at sea. This is
often the case for beaked whales (Mesoplodon spp) as well as the pygmy
and dwarf sperm whales (Kogia spp), which is why densities were pooled
for these species in certain model areas. Density estimates are
available for these species groups rather than the individual species
in model areas 1, 2, 3, 5, 6, and 7 for Kogia spp, and in model area 8
for Mesoplodon spp. Density information is provided in Tables 2 through
16 above, and is also available in the Navy's application (Table 3-2,
Pages 3-6 through 3-25) and Chapter 3 and Appendix D of the 2019
SURTASS LFA FSEIS/SOEIS.
SURTASS LFA Sonar Behavioral Response Function
To model potential behavioral impacts to marine animals from
exposure to SURTASS LFA sonar sound, the Navy has developed a
methodology to estimate the total exposure of modeled animals exposed
to multiple pings over an extended period of time. NMFS concurs that
this model is appropriate and utilizes the best available science, and
adopted the model for use in the analysis to support these regulations.
The Navy's acoustic model analyzes the following components: (1) The
LFA sonar source modeled as a point source, with an effective source
level (SL) of approximately 235 dB re: 1 [mu]Pa at 1 m (SPL) (note:
This was incorrectly stated as 240 dB in the proposed rule); (2) a 60
second duration signal; and (3) a beam pattern that is correct for the
number and spacing of the individual projectors (source elements). This
source model, when combined with the three-dimensional transmission
loss (TL) field generated by the Parabolic Equation (PE) acoustic
propagation model, defines the received level (RL) (in SPL) sound field
surrounding the source for a 60-second LFA sonar signal (i.e., the SPE
metric accounts for received level and exposure from multiple pings).
To estimate the total exposure of animals exposed to multiple pings,
the Navy models the RLs for each modeled location and any computer-
simulated marine mammals (animats) within the location, records the
exposure history of each animat, and generates a SPE value. Thus, the
Navy can model the SURTASS LFA sound field, providing a four-
dimensional (position and time) representation of a sound pressure
field within the marine environment and estimates of an animal's
exposure to sound over a period of 24 hours (hrs).
The Navy uses a behavioral response function to estimate the number
of behavioral responses that would qualify as behavioral Level B
harassment under the MMPA. NMFS determined that this threshold is
appropriate for SURTASS LFA sonar and utilizes the best available
science and adopted this function for use in the analysis for these
regulations. The behavioral response function is described fully in
Chapter 4 and Appendix B of the 2019 SURTASS LFA FSEIS/SOEIS.
A wide range of behavioral reactions may qualify as Level B
harassment under the MMPA, including but not limited to avoidance of
the sound source, temporary changes in vocalizations or dive patterns,
temporary avoidance of an area, or temporary disruption of feeding,
migrating, or reproductive behaviors. The estimates calculated using
the behavioral response function do not differentiate between the
different types of potential behavioral reactions, nor do the estimates
provide information regarding the potential fitness or other
[[Page 40173]]
biological consequences of the reactions on the affected individuals.
The definition of Level B harassment for military readiness
activities contemplates the disruption of behavioral patterns to the
point where they are abandoned or significantly altered. It is
difficult to predict with certainty, given existing data, when
exposures that are generally expected are likely to result in
significantly altered or abandoned behavioral patterns. Therefore, the
Navy's take estimates capture a wider range of impacts, including less
significant responses. Moreover, NMFS does not assume that each
instance of Level B harassment modeled by the Navy will have, or is
likely to have, an adverse impact on an individual's fitness. Rather,
NMFS considers the available scientific evidence to determine the
likely nature of the modeled behavioral responses and the potential
fitness consequences for affected individuals in its negligible impact
evaluation. Accordingly, we consider application of this Level B
harassment threshold as identifying the maximum number of instances in
which marine mammals could be reasonably expected to experience a
disruption in behavior patterns to a point where they are abandoned or
significantly altered (i.e., Level B harassment). Because this is the
most appropriate method for estimating Level B harassment given the
best available science and uncertainty on the topic, it is these
numbers of Level B harassment by behavioral disturbance that are
analyzed in the Negligible Impact Analysis and Determination section
and authorized.
Estimates of Potential Marine Mammal Exposure
The Navy's acoustic impact analysis for marine mammals, which NMFS
has adopted for the purposes of these regulations, represents an
evolution that builds upon the analysis and methodology documented in
previous SURTASS LFA sonar NEPA efforts (DoN, 2001; 2007; 2012; and
2017), and includes updates of the most current acoustic thresholds and
methodology to assess auditory impacts (NMFS, 2018). A detailed
discussion of the acoustic impact analysis is provided in Appendix B of
the 2019 SURTASS LFA FSEIS/SOEIS, but is summarized here.
Using the Acoustic Integration Model (AIM), the Navy modeled 15
representative model areas in the central and western North Pacific and
eastern Indian Oceans, representing the acoustic regimes and marine
mammal species that may be encountered during SURTASS LFA sonar
training and testing activities. Modeling was conducted for one 24-hour
period in each of the four seasons in each model area. To predict
acoustic exposure, the LFA sonar ship was simulated traveling in a
triangular pattern at a speed of 4 kt (7.4 kilometers per hour (kph),
for eight hours in each leg of the triangle. The duration of the LFA
sonar transmission was modeled as 24 hrs, with a signal duration of 60
seconds and a duty cycle of 10 percent (i.e., the source transmitted
for 60 seconds every 10 minutes (min) for 24 hrs, which equates to 2.4
active transmission hours and is representative of average actual
transmission times based on the past 17 years of SURTASS LFA sonar
activities).
The acoustic field around the LFA sonar source was predicted by the
Navy standard parabolic equation propagation model using the defined
LFA sonar operating parameters. Each marine mammal species potentially
occurring in a model area in each season was simulated by creating
animats (simulated animals) programmed with behavioral values
describing their dive and movement patterns. AIM then integrates the
acoustic field created from the underwater transmission of LFA sonar
with the three-dimensional (3D) movement of marine mammals to estimate
their potential for sonar exposure at each 30-second timestep within
the 24-hr modeling period. Thus, the output of AIM is the time history
of exposure for each animat.
The Navy assesses the potential impacts on marine mammals by
predicting the sound field that a given marine mammal species/stock
could be exposed to over time in a potential model area. This is a
multi-part process involving: (1) The ability to measure or estimate an
animal's location in space and time; (2) the ability to measure or
estimate the three-dimensional sound field at these times and
locations; (3) the integration of these two data sets into the acoustic
impact model to estimate the total acoustic exposure for each animal in
the modeled population; and (4) the conversion of the resultant
cumulative exposures for a modeled population into an estimate of the
risk of a potential injury (i.e., Level A harassment (permanent
threshold shift (PTS)), temporary threshold shift (TTS), or disruption
of natural behavioral patterns (i.e., a take estimate for Level B
harassment).
To estimate the potential impacts for each marine mammal stock on
an annual basis, several calculation steps are required. First, the
potential impact for one LFA sonar transmission hour is calculated.
Second, the number of LFA sonar transmission hours that may occur in
each model area for each activity is determined. The third step is to
determine the number of model areas in which each stock may occur for
each activity, and the fourth step is to select the maximum per-hour
impact for each stock that may occur in the model areas for that
activity. The final step is to multiply the results of steps two,
three, and four to calculate the potential annual impacts per activity,
which are then summed across the stocks for a total potential impact
for all individual activities. The number of individual marine mammals
that may be taken over the seven-year period of the proposed SURTASS
LFA sonar training and testing activities was estimated by multiplying
the maximum number of instances of exposure for each species/stock
calculated annually for each of the two transmission scenarios (496
transmission hours in years 1-4 and 592 transmission hours in years 5-
7), and then adding these to calculate a total estimate. For example,
for the WNP blue whale, four years of 496 transmission hours (for years
1-4) resulted in 90 Level B harassment takes/year and three years of
592 transmission hours (for years 5-7) resulted in 123 Level B
harassment takes/year. Multiplying 90 takes/year by 4 years equals 360
Level B harassment takes for the 496 transmission hour scenario, and
multiplying 123 takes/year by 3 years equals 369 Level B harassment
takes for the 592 transmission hour scenario. The final step is adding
the totals for the two transmission scenarios to arrive at a total (360
+ 369 = 729 Level B harassment takes over the 7-year period for WNP
blue whales). For additional detail on modeling and take estimation,
please refer to Chapter 6.6 (Quantitative Impact Analysis for Marine
Mammals) of the Navy's application and Appendix B of the 2019 SURTASS
LFA FSEIS/SOEIS.
With the implementation of the three-part monitoring programs
(visual, passive acoustic, and HF/M3 monitoring, as discussed below),
NMFS and the Navy do not expect that marine mammals would be injured by
SURTASS LFA sonar because a marine mammal is likely to be detected and
active transmissions suspended or delayed to avoid injurious exposure.
The probability of detection of a marine mammal of any size by the HF/
M3 system within the LFA sonar mitigation zone approaches 100 percent
over the course of multiple pings (see the 2001 SURTASS LFA FOEIS/EIS,
Subchapters 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar testing results as
well as section 5.4.3 of the 2019 SURTASS LFA FSEIS/SOEIS
[[Page 40174]]
for a summary of the effectiveness of the HF/M3 system).
Quantitatively, modeling output shows zero takes by Level A harassment
for all marine mammal stocks in all representative mission areas with
mitigation applied. All hearing groups of marine mammals except LF
cetaceans would need to be within 22 ft (7 m) of the LFA sonar source
for an entire LFA transmission (60 seconds), and a LF cetacean would
need to be within 135 ft (41 m) for an entire LFA transmission to
potentially experience PTS. This is unlikely to occur, especially given
the mitigation measures in place and the Navy's proven effectiveness at
detecting marine mammals well outside of this range so that shut down
measures would be implemented well before marine mammals would be
within these ranges. Again, NMFS notes that over the course of the
previous three rulemakings from 2002 to 2017, and during the Navy's
training and testing activities during the NDE from 2017 to the
present, there have been no reported or known incidents of Level A
harassment of any marine mammal. This is because it would be highly
unlikely that a marine mammal would remain close enough to the vessel
to experience Level A harassment (see discussion in Threshold Shift
subsection of the Potential Effects of the Specified Activity on Marine
Mammals and their Habitat section of the proposed rulemaking 84 FR
7186, 7205-7206; March 1, 2019), in combination with the Navy's highly
effective detection of marine mammals and shutting down SURTASS LFA
sonar prior to the animals entering the Level A harassment zone.
Therefore, NMFS does not anticipate and does not authorize any Level A
harassment takes for any marine mammal species or stocks over the
course of the seven-year regulations.
The distances to the TTS thresholds are less than 50 ft (15 m) for
mid-frequency (MF) and high-frequency (HF) cetaceans and otariids; 216
ft (66 m) for phocids; and 1,354 ft (413 m) for low-frequency (LF)
cetaceans if an animal were to remain at those distances for an entire
LFA sonar signal (60 sec). While it is likely that mitigation measures
would also avoid TTS, some small subset of the animals may also
experience TTS if exposed for longer periods of time at greater
distances; however, any of the TTS impacts would be expected to be
captured within the estimate of Level B harassment takes by behavioral
disruption and separate enumeration is not necessary or appropriate.
Any TTS incurred would likely be of a low level and of short duration
because we do not expect animals to be exposed for long durations close
to the source.
Of note, the estimated number of Level B harassment takes does not
necessarily equate to the number of individual animals the Navy expects
to harass (which is lower), but rather to the instances of take (i.e.,
exposures above the Level B harassment threshold) that are anticipated
to occur over the seven-year period. Some individuals may experience
multiple instances of take (meaning over multiple days) over the course
of the year, while some members of a species or stock may not
experience take at all, which means that the number of individuals
taken is likely somewhat smaller than the total estimated takes.
Generally speaking, the higher the number of takes as compared to the
population abundance, the more repeated takes of individuals are
likely, and the higher the actual percentage of individuals in the
population that are likely taken at least once in a year. However,
because of the nature of the SURTASS LFA activities (small number of
continuously moving vessels spread over a very large area), there are
likely fewer repeated takes of the same individuals than would be
expected from other more localized or stationary activities.
More detailed information for each of the steps to quantify take
estimates, as well as an illustrative example, are provided in section
6.6 of the Navy's application (Quantitative Impact Analysis for Marine
Mammals). A more thorough description of the impact analysis is also
provided in the 2019 SURTASS LFA FEIS/SOEIS, specifically section
4.5.2.1.3, Marine Mammals (Quantitative Impact Analysis for Marine
Mammals subsection) and Appendix B (Marine Mammal Impact Analysis).
NMFS has reviewed this information and has accepted the Navy modeling
procedure and results. The total maximum potential impact on an annual
basis for years 1-4 and years 5-7 as well as the total overall takes
for the seven-year period covered by this rulemaking are presented in
Table 17 below. These are considered conservative estimates because
they are based on the maximum potential impact to a species or stock
across all model areas in which an activity may occur. Therefore, if an
activity occurs in a different model area than the area where the
maximum potential impact was predicted, the actual potential impact may
be less than estimated. However, since the Navy cannot forecast where a
specific activity may be conducted this far in advance, this maximum
estimate provides the Navy with the flexibility to conduct its training
and testing activities across all modeled areas identified for each
activity.
Table 17--Maximum Total Annual MMPA Level B Harassment Proposed for Authorization for Years 1-4 and 5-7, and Total for the Seven-Year Period of the
Final Rule by SURTASS LFA Sonar
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum annual Level B Maximum annual Level B
harassment, years 1-4 harassment, years 5-7 Total overall
---------------------------------------------------------------- Level B
Species Stock \1\ Percent harassment for
Instances Percen species Instances species or 7-year period
or stock stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antarctic minke whale..................... ANT......................... 0 0.00 0 0.00 0
Blue whale................................ CNP......................... 3 2.39 4 2.85 24
NIND........................ 0 0.00 1 0.00 3
WNP......................... 90 0.90 123 1.14 729
SIND........................ 1 0 .07 1 0.07 7
Bryde's whale............................. ECS......................... 14 10.28 19 14.13 113
Hawaii...................... 5 0.62 6 0.74 38
WNP......................... 378 1.94 437 2.26 2,823
NIND........................ 8 0.07 10 0.10 62
SIND........................ 7 0.05 9 0.07 55
Common minke whale........................ Hawaii...................... 572 2.30 682 2.74 4,334
IND......................... 1,271 0.43 1,748 0.59 10,328
WNP JW...................... 3 0.12 5 0.17 27
[[Page 40175]]
WNP OE...................... 2,127 8.59 2,404 9.71 15,720
YS.......................... 189 4.20 250 5.57 1,506
Fin whale................................. ECS......................... 9 1.80 12 2.47 72
Hawaii...................... 3 2.30 4 2.74 24
IND......................... 0 0.00 0 0.00 0
SIND........................ 22 0.05 30 0.07 178
WNP......................... 2,558 27.55 3,455 37.23 20,597
Humpback whale............................ CNP stock and Hawaii DPS.... 487 4.85 611 6.10 3,781
WAU stock and DPS........... 1 0.00 1 0.00 7
WNP stock and DPS........... 3,103 233.84 4,266 321.49 25,210
North Pacific right whale................. WNP......................... 89 9.57 122 13.15 722
Omura's whale............................. NIND........................ 8 0.07 10 0.10 62
SIND........................ 5 0.04 7 0.05 41
WNP......................... 14 0.81 16 0.95 104
Sei whale................................. Hawaii...................... 19 4.78 22 5.70 142
SIND........................ 0 0.00 0 0.00 0
NP.......................... 3,172 45.37 4,361 62.37 25,771
NIND........................ 4 0.04 5 0.05 31
Western North Pacific gray whale.......... WNP stock and Western DPS... 0 0.00 1 0.20 3
Baird's beaked whale...................... WNP......................... 2,747 48.26 3,777 66.36 22,319
Blainville's beaked whale................. Hawaii...................... 35 1.83 47 2.40 281
WNP......................... 269 3.30 311 3.82 2,009
IND......................... 47 0.27 65 0.37 383
Common bottlenose dolphin................. 4-Islands................... 5 2.48 6 2.96 38
Hawaii Island............... 0 0.00 0 0.00 0
Hawaii Pelagic.............. 95 0.41 114 0.49 722
IA.......................... 104 0.11 140 0.15 836
IND......................... 1,128 0.14 1,551 0.20 9,165
Japanese Coastal............ 1,686 47.94 1,789 50.86 12,111
Kauai/Niihau................ 13 7.16 16 8.55 100
Oahu........................ 38 5.17 46 6.17 290
WNP Northern Offshore....... 581 0.57 799 0.78 4,721
WNP Southern Offshore....... 2,726 6.63 3,063 7.45 20,093
WAU......................... 635 21.16 873 29.09 5,159
Common dolphin............................ IND......................... 52 0.00 72 0.00 424
WNP......................... 203,871 12.24 275,079 16.08 1,640,721
Cuvier's beaked whale..................... Hawaii...................... 22 3.03 26 3.62 166
IND......................... 231 0.85 317 1.17 1,875
SH.......................... 77 0.11 106 0.15 626
WNP......................... 6,946 7.78 8,980 10.04 54,724
Dall's porpoise........................... SOJ dalli type.............. 614 0.36 845 0.49 4,991
WNP dalli ecotype........... 22,056 13.62 30,327 18.72 179,205
WNP truei ecotype........... 487 0.28 670 0.39 3,958
Deraniyagala's beaked whale............... IND......................... 158 0.92 217 1.27 1,283
NP.......................... 342 1.41 412 1.69 2,620
Dwarf sperm whale......................... Hawaii...................... 655 3.72 782 4.44 4,966
IND......................... 3 0.05 4 0.07 24
WNP......................... 486 0.14 635 0.18 3,849
False killer whale........................ Hawaii Pelagic.............. 58 3.72 69 4.44 439
IA.......................... 252 2.59 341 3.51 2,031
IND......................... 12 0.01 16 0.00 96
Main Hawaiian Islands 1 0.41 1 0.49 7
Insular stock and DPS.
Northwestern Hawaiian 0 0.00 0 0.00 0
Islands.
WNP......................... 1,350 8.15 1,596 9.63 10,188
Fraser's dolphin.......................... CNP......................... 546 3.24 686 4.06 4,242
Hawaii...................... 1,944 3.79 2,320 4.52 14,736
IND......................... 93 0.05 128 0.07 756
WNP......................... 2,287 1.16 2,559 1.29 16,825
Ginkgo-toothed beaked whale............... IND......................... 12 0.07 16 0.10 96
NP.......................... 476 2.00 568 2.38 3,608
Harbor porpoise.............