Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training Activities in the Gulf of Alaska Study Area
Federal RegisterJan 4, 2023
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 218
[Docket No. 221219-0277]
RIN 0648-BK46
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training Activities in the Gulf of Alaska Study Area
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Final rule.
SUMMARY:
NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals incidental to the training activities conducted in the Gulf of Alaska (GOA) Study Area. The Navy's activities qualify as military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.
DATES:
Effective February 3, 2023 through February 2, 2030.
ADDRESSES:
A copy of the Navy's application, NMFS' proposed and final rules and subsequent LOAs for the existing regulations, and other supporting documents and documents cited herein may be obtained online at
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
In case of problems accessing these documents, please use the contact listed here (see
FOR FURTHER INFORMATION CONTACT
).
FOR FURTHER INFORMATION CONTACT:
Leah Davis, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose of Regulatory Action
These regulations, issued under the authority of the MMPA (16 U.S.C. 1361
et seq.
), provide the framework for authorizing the take of marine mammals incidental to the Navy's training activities (which qualify as military readiness activities) including the use of sonar and other transducers, and in-air detonations at or near the surface (within 10 m above the water surface) in the GOA Study Area. The GOA Study Area is comprised of three areas: the Temporary Maritime Activities Area (TMAA), a warning area, and the Western Maneuver Area (WMA) (see Figure 1). The TMAA and WMA are temporary areas established within the GOA for ships, submarines, and aircraft to conduct training activities. The warning area overlaps and extends slightly beyond the northern corner of the TMAA. The WMA is located south and west of the TMAA and provides additional surface, sub-surface, and airspace in which to maneuver in support of activities occurring within the TMAA. The use of sonar and other transducers, and explosives would not occur within the WMA.
NMFS received an application from the Navy requesting 7-year regulations and an authorization to incidentally take individuals of multiple species of marine mammals (Navy's rulemaking/LOA application or Navy's application). Take is anticipated to occur by Level A harassment and Level B harassment incidental to the Navy's training activities. No lethal take is anticipated or proposed for authorization.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for issuing this final rule and the subsequent LOAs. As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.
The 2004 NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The activity for which incidental take of marine mammals is being requested addressed here qualifies as a military readiness activity.
Summary of Major Provisions Within the Final Rule
The following is a summary of the primary provisions of this final rule regarding the Navy's activities. These provisions include, but are not limited to:
• The use of defined powerdown and shutdown zones (based on activity);
• Measures to reduce the likelihood of ship strikes;
• Activity limitations in certain areas and times that are biologically important (
e.g.,
for foraging or migration) for marine mammals;
• Implementation of a Notification and Reporting Plan (for dead or live stranded marine mammals); and
• Implementation of a robust monitoring plan to improve our understanding of the environmental effects resulting from the Navy training activities.
Additionally, the rule includes an adaptive management component that allows for timely modification of mitigation or monitoring measures based on new information, when appropriate.
Background
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of proposed authorization is provided to the public for review and the opportunity to submit comments.
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stocks and will not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence uses where relevant, including by Alaska Natives. Further, NMFS must prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses
(referred to in this rule as “mitigation measures”); and requirements pertaining to the monitoring and reporting of such takings. The MMPA defines “take” to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. The Analysis and Negligible Impact Determination section below discusses the definition of “negligible impact.”
The NDAA for Fiscal Year 2004 (2004 NDAA) (Pub. L. 108-136) amended section 101(a)(5) of the MMPA to remove the “small numbers” and “specified geographical region” provisions indicated above and amended the definition of “harassment” as applied to a “military readiness activity.” The definition of harassment for military readiness activities (Section 3(18)(B) of the MMPA) is (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B harassment). In addition, the 2004 NDAA amended the MMPA as it relates to military readiness activities such that the least practicable adverse impact analysis shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
More recently, Section 316 of the NDAA for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232), signed on August 13, 2018, amended the MMPA to allow incidental take rules for military readiness activities under section 101(a)(5)(A) to be issued for up to 7 years. Prior to this amendment, all incidental take rules under section 101(a)(5)(A) were limited to 5 years.
Summary and Background of Request
On October 9, 2020, NMFS received an adequate and complete application from the Navy requesting authorization for take of marine mammals, by Level A harassment and Level B harassment, incidental to training from the use of active sonar and other transducers and explosives (in-air, occurring at or above the water surface) in the TMAA over a 7-year period. On March 12, 2021, the Navy submitted an updated application that provided revisions to the Northern fur seal take estimate and incorporated additional best available science. In August 2021, the Navy communicated to NMFS that it was considering an expansion of the GOA Study Area and an expansion of the Portlock Bank Mitigation Area proposed in its previous applications. On February 2, 2022, the Navy submitted a second updated application that described the addition of the WMA to the GOA Study Area (which previously just consisted of the TMAA) and the replacement of the Portlock Bank Mitigation Area with the Continental Shelf and Slope Mitigation Area. The GOA Study Area supports opportunistic experimentation and testing activities when conducted as part of training activities and when considered to be consistent with the proposed training activities. These activities could occur as part of large-scale exercises or as independent events. Therefore, there is no separate discussion or analysis for testing activities that may occur as part of the proposed military readiness activities in the GOA Study Area.
On January 8, 2021 (86 FR 1483), we published a notice of receipt (NOR) of application in the
Federal Register
, requesting comments and information related to the Navy's request for 30 days. We received one comment on the NOR that was non-substantive in nature. On August 11, 2022, we published a notice of proposed rulemaking (87 FR 49656) and requested comments and information related to the Navy's request for 45 days. All substantive comments received during the NOR and the proposed rulemaking comment periods were considered in developing this final rule. Comments received on the proposed rule are addressed in this final rule in the Comments and Responses section.
The following types of training, which are classified as military readiness activities pursuant to the MMPA, as amended by the 2004 NDAA, will be covered under the regulations and LOA, if issued: Surface Warfare (detonations at or above the water surface) and Anti-Submarine Warfare (sonar and other transducers). The Navy is also conducting Air Warfare, Electronic Warfare, Naval Special Warfare, Strike Warfare, and Support Operations, but these activities do not involve sonar and other transducers, detonations at or above the water surface, or any other stressors that could result in the take of marine mammals. (See the 2022 GOA Final Supplemental Environmental Impact Statement (FSEIS)/Overseas Environmental Impact Statement (OEIS) (2022 GOA FSEIS/OEIS) for more detail on those activities.) The activities will not include in-water explosives, pile driving/removal, or use of air guns.
This is the third time NMFS has promulgated incidental take regulations pursuant to the MMPA relating to similar military readiness activities in the GOA, following regulations that were effective beginning May 4, 2011 (76 FR 25479; May 4, 2011) and April 26, 2017 (82 FR 19530; April 27, 2017). For this third round of rulemaking, the activities the Navy is planning to conduct are largely a continuation of ongoing activities conducted for more than a decade. While the specified activities have not changed, there are changes in the platforms and systems used in those activities, as well as changes in the bins (source classifications) used to analyze the activities. For example, two new sonar bins were added (MF12 and ASW1) and another bin was eliminated (HF6). This was due to changes in platforms and systems. Further, the Navy expanded the GOA Study Area to include the WMA, though the vast majority of the training activities will still occur only in the TMAA.
The Navy's mission is to organize, train, equip, and maintain combat-ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. This mission is mandated by Federal law (10 U.S.C. 8062), which requires the readiness of the naval forces of the United States. The Navy executes this responsibility by establishing and executing training programs, including at-sea training and exercises, and ensuring naval forces have access to the ranges, operating areas (OPAREA), and airspace needed to develop and maintain skills for conducting naval activities.
The Navy has conducted training activities in the TMAA portion of the GOA Study Area since the 1990s. Since the 1990s, the Department of Defense has conducted a major joint training exercise in Alaska and off the Alaskan coast that involves the Departments of the Navy, Army, Air Force, and Coast Guard participants reporting to a unified or joint commander who coordinates the activities. These activities are planned to demonstrate and evaluate the ability of the services to engage in a conflict and successfully carry out plans in response to a threat to national security. The Navy's planned activities for the period of these regulations would be a continuation of the types and level of training activities that have been ongoing for more than a decade.
The Navy's rulemaking/LOA application reflects the most up-to-date compilation of training activities deemed necessary by senior Navy leadership to accomplish military readiness requirements. The types and
numbers of activities included in the rule account for fluctuations in training in order to meet evolving or emergent military readiness requirements. These regulations cover training activities that will occur for a 7-year period beginning February 3, 2023.
Description of the Specified Activity
A detailed description of the specified activity was provided in our
Federal Register
notice of proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information. The Navy requested authorization to take marine mammals incidental to conducting training activities. The Navy has determined that acoustic and explosive (in-air, occurring at or above the water surface) stressors are most likely to result in impacts on marine mammals that could rise to the level of harassment, and NMFS concurs with this determination. Descriptions of these activities are provided in section 2 of the 2022 GOA FSEIS/OEIS (U.S. Department of the Navy, 2022) and in the Navy's rulemaking/LOA application (
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities
) and are summarized here.
Dates and Duration
Training activities will be conducted intermittently in the GOA Study Area over a maximum time period of up to 21 consecutive days annually from April to October to support a major joint training exercise in Alaska and off the Alaskan coast that involves the Departments of the Navy, Army, Air Force, and Coast Guard. The participants report to a unified or joint commander who coordinates the activities planned to demonstrate and evaluate the ability of the services to engage in a conflict and carry out plans in response to a threat to national security. The specified activities will occur over a maximum time period of up to 21 consecutive days each year during the 7-year period of validity of the regulations. The planned number of training activities are described in the Detailed Description of Proposed Activities section (Table 3).
Geographical Region
The GOA Study Area is entirely at sea and is comprised of the TMAA and a warning area in the Gulf of Alaska, and the WMA. The term “at-sea” refers to training activities in the Study Area (both the TMAA and WMA) that occur (1) on the ocean surface, (2) beneath the ocean surface, and (3) in the air above the ocean surface. Navy training activities occurring on or over the land outside the GOA Study Area are not included in this rule, and are covered under separate environmental documentation prepared by the U.S. Air Force and the U.S. Army. As depicted in Figure 1 of the proposed rule (87 FR 49656; August 11, 2022), the TMAA is a polygon roughly resembling a rectangle oriented from northwest to southeast, approximately 300 nmi (556 km) in length by 150 nmi (278 km) in width, located south of Montague Island and east of Kodiak Island. The GOA Study Area boundary was intentionally designed to avoid Endangered Species Act (ESA)-designated Steller sea lion critical habitat. The WMA is located south and west of the TMAA, and provides an additional 185,806 nmi
2
(637,297 km
2
) of surface, sub-surface, and airspace to support training activities occurring within the TMAA. The boundary of the WMA follows the bottom of the slope at the 4,000 m contour line, and was configured to avoid overlap and impacts to ESA-designated critical habitat, biologically important areas (BIAs), migration routes, and primary fishing grounds. The WMA provides additional airspace and sea space for aircraft and vessels to maneuver during training activities for increased training complexity. The TMAA and WMA are temporary areas established within the GOA for ships, submarines, and aircraft to conduct training activities. Additional detail can be found in Chapter 2 of the Navy's rulemaking/LOA application.
Primary Mission Areas
The Navy categorizes many of its training activities into functional warfare areas called primary mission areas. The Navy's planned activities for the GOA Study Area generally fall into the following six primary mission areas: Air Warfare; Surface Warfare; Anti-Submarine Warfare; Electronic Warfare; Naval Special Warfare; and Strike Warfare. Most activities conducted in the GOA are categorized under one of these primary mission areas; activities that do not fall within one of these areas are listed as “support operations” or “other training activities.” Each warfare community (aviation, surface, and subsurface) may train in some or all of these primary mission areas. A description of the sonar, munitions, targets, systems, and other materials used during training activities within these primary mission areas is provided in Appendix A (Navy Activities Descriptions) of the 2022 GOA FSEIS/OEIS.
The Navy describes and analyzes the effects of its training activities within the 2022 GOA FSEIS/OEIS. In its assessment, the Navy concluded that of the activities to be conducted within the GOA Study Area, sonar use and in-air explosives occurring at or above the water surface were the stressors resulting in impacts on marine mammals that could rise to the level of harassment as defined under the MMPA. (The Navy is not proposing to conduct any activities that use in-water or underwater explosives.) These activities are limited to the TMAA. No activities involving sonar use or explosives would occur in the WMA or the portion of the warning area that extends beyond the TMAA. Therefore, the Navy's rulemaking/LOA application provides the Navy's assessment of potential effects from sonar use and explosives occurring at or above the water surface in terms of the various warfare mission areas they are associated with. Those mission areas include the following:
• Surface Warfare (in-air detonations at or above the water surface);
1
and
1
Defined herein as being within 10 meters of the ocean surface.
• Anti-Submarine warfare (sonar and other transducers).
The Navy's activities in Air Warfare, Electronic Warfare, Naval Special Warfare, Strike Warfare, Support Operations, and Other Training Activities do not involve sonar and other transducers, detonations at or near the surface, or any other stressors that could result in harassment, serious injury, or mortality of marine mammals. Therefore, the activities in these warfare areas are not discussed further in this rule, but are analyzed fully in the 2022 GOA FSEIS/OEIS. Additional detail regarding the primary mission areas was provided in our
Federal Register
notice of proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information.
Overview of the Major Training Exercise Within the GOA Study Area
The training activities in the GOA Study Area are considered to be a major training exercise (MTE). An MTE, for purposes of this rulemaking, is comprised of several unit-level activities conducted by several units operating together, commanded and controlled by a single Commander, and potentially generating more than 100 hours of active sonar. These exercises typically employ an exercise scenario developed to train and evaluate the exercise participants in tactical and operational
tasks. In an MTE, most of the activities being directed and coordinated by the Commander in charge of the exercise are identical in nature to the activities conducted during individual, crew, and smaller unit-level training events. In a MTE, however, these disparate training tasks are conducted in concert, rather than in isolation. At most, only one MTE will occur in the GOA Study Area per year (over a maximum of 21 days).
Description of Stressors
The Navy uses a variety of sensors, platforms, weapons, and other devices, including ones used to ensure the safety of Sailors and Marines, to meet its mission. Training with these systems may introduce sound and energy into the environment. The following subsections describe the acoustic and explosive stressors for marine mammals and their habitat (including prey species) within the GOA Study Area. Because of the complexity of analyzing sound propagation in the ocean environment, the Navy relied on acoustic models in its environmental analyses and rulemaking/LOA application that considered sound source characteristics and varying ocean conditions across the GOA Study Area. Stressor/resource interactions that were determined to have de minimis or no impacts (
e.g.,
vessel noise, aircraft noise, weapons noise, and high-altitude (greater than 10 m above the water surface) explosions) were not carried forward for analysis in the Navy's rulemaking/LOA application. The Navy fully considered the possibility of vessel strike, conducted an analysis, and determined that requesting take of marine mammals by vessel strike was not warranted. Although the Navy did not request take for vessel strike, NMFS also fully analyzed the potential for vessel strike of marine mammals as part of this rulemaking. Therefore, this stressor is discussed in detail below. No Sinking Exercise (SINKEX) events are planned in the GOA Study Area for this rulemaking, nor is establishment and use of a Portable Undersea Tracking Range (PUTR) planned. NMFS reviewed the Navy's analysis and conclusions on de minimis and no-impact sources and finds them complete and supportable.
Acoustic stressors include acoustic signals emitted into the water for a specific purpose, such as sonar, other transducers (devices that convert energy from one form to another—in this case, into sound waves), incidental sources of broadband sound produced as a byproduct of vessel movement, aircraft transits, and use of weapons or other deployed objects. Explosives also produce broadband sound but are characterized separately from other acoustic sources due to their unique hazardous characteristics. Characteristics of each of these sound sources are described in the following sections.
In order to better organize and facilitate the analysis of approximately 300 sources of underwater sound used by the Navy, including sonar and other transducers and explosives, a series of source classifications, or source bins, were developed. The source classification bins do not include the broadband noise produced incidental to vessel movement, aircraft transits, and weapons firing. Noise produced from vessel movement, aircraft transits, and use of weapons or other deployed objects is not carried forward because those activities were found to have de minimis or no impacts, as described above.
The use of source classification bins provides the following benefits:
• Provides the ability for new sensors or munitions to be covered under existing authorizations, as long as those sources fall within the parameters of a “bin”;
• Improves efficiency of source utilization data collection and reporting requirements anticipated under the MMPA authorizations;
• Ensures a precautionary approach to all impact estimates, as all sources within a given class are modeled as the most impactful source (highest source level, longest duty cycle, or largest net explosive weight) within that bin;
• Allows analyses to be conducted in a more efficient manner, without any compromise of analytical results; and
• Provides a framework to support the reallocation of source usage (hours/explosives) between different source bins, as long as the total numbers of takes remain within the overall analyzed and authorized limits. This flexibility is required to support evolving Navy training and testing requirements, which are linked to real world events.
Sonar and Other Transducers
Active sonar and other transducers emit non-impulsive sound waves into the water to detect objects, navigate safely, and communicate. Passive sonars differ from active sound sources in that they do not emit acoustic signals; rather, they only receive acoustic information about the environment, or listen. In this rule, the terms sonar and other transducers will be used to indicate active sound sources unless otherwise specified.
The Navy employs a variety of sonars and other transducers to obtain and transmit information about the undersea environment. Some examples are mid-frequency hull-mounted sonars used to find and track enemy submarines; high-frequency small object detection sonars used to detect mines; high-frequency underwater modems used to transfer data over short ranges; and extremely high-frequency (greater than 200 kilohertz (kHz)) doppler sonars used for navigation, like those used on commercial and private vessels. The characteristics of these sonars and other transducers, such as source level, beam width, directivity, and frequency, depend on the purpose of the source. Higher frequencies can carry more information or provide more information about objects off which they reflect, but attenuate more rapidly. Lower frequencies attenuate less rapidly, so they may detect objects over a longer distance, but with less detail.
Additional detail regarding sound sources and platforms and categories of acoustic stressors was provided in our
Federal Register
notice of proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information.
Sonars and other transducers are grouped into classes that share an attribute, such as frequency range or purpose of use. As detailed below, classes are further sorted by bins based on the frequency or bandwidth; source level; and, when warranted, the application in which the source would be used. Unless stated otherwise, a reference distance of 1 meter (m) is used for sonar and other transducers.
• Frequency of the non-impulsive acoustic source:
○ Low-frequency sources operate below 1 kHz;
○ Mid-frequency sources operate at and above 1 kHz, up to and including 10 kHz;
○ High-frequency sources operate above 10 kHz, up to and including 100 kHz;
○ Very-high-frequency sources operate above 100 kHz but below 200 kHz;
• Sound pressure level of the non-impulsive source;
○ Greater than 160 decibels (dB) re 1 micro Pascal (µPa), but less than 180 dB re: 1 µPa;
○ Equal to 180 dB re: 1 µPa and up to 200 dB re: 1 µPa;
○ Greater than 200 dB re: 1 µPa;
• Application in which the source would be used:
○ Sources with similar functions that have similar characteristics, such as pulse length (duration of each pulse), beam pattern, and duty cycle.
The bins used for classifying active sonars and transducers that are quantitatively analyzed for use in the TMAA are shown in Table 1 below. While general parameters or source characteristics are shown in the table, the actual source parameters are classified. Acoustic source bins used in the planned activities will vary annually. The seven-year totals for the planned training activities take into account that annual variability.
Table 1—Sonar and Other Transducers Quantitatively Analyzed in the TMAA
For annual training activities
Source class category
Bin
Description
Units
Annual
7-Year total
Mid-Frequency (MF) Tactical and non-tactical sources that produce signals from 1 to 10 kHz
MF1
Hull-mounted surface ship sonars (
e.g.,
AN/SQS-53C and AN/SQS-60)
H
271
1,897
MF3
Hull-mounted submarine sonars (
e.g.,
AN/BQQ-10)
H
25
175
MF4
Helicopter-deployed dipping sonars (
e.g.,
AN/AQS-22)
H
27
189
MF5
Active acoustic sonobuoys
(
e.g.,
DICASS)
I
126
882
MF6
Active underwater sound signal devices (
e.g.,
MK 84)
I
14
98
MF11
Hull-mounted surface ship sonars with an active duty cycle greater than 80%
H
42
294
MF12
Towed array surface ship sonars with an active duty cycle greater than 80%
H
14
98
High-Frequency (HF) Tactical and non-tactical sources that produce signals greater than 10 kHz but less than 100 kHz
HF1
Hull-mounted submarine sonars
(
e.g.,
AN/BQQ-10)
H
12
84
Anti-Submarine Warfare (ASW) Tactical sources used during ASW training activities
ASW1
ASW2
MF systems operating above 200 dB
MF Multistatic Active Coherent sonobuoy (
e.g.,
AN/SSQ-125)
H
H
14
42
98
294
ASW3
MF towed active acoustic countermeasure systems
(e.g.,
AN/SLQ-25)
H
273
1,911
ASW4
MF expendable active acoustic device countermeasures (
e.g.,
MK3)
I
7
49
Notes:
H = hours, I = count (
e.g.,
number of individual pings or individual sonobuoys), DICASS = Directional Command Activated Sonobuoy System.
Explosives
This section describes the characteristics of explosions during naval training. The activities analyzed in the Navy's rulemaking/LOA application that use explosives are described in additional detail in Appendix A (
Navy Activity Descriptions
) of the 2022 GOA FSEIS/OEIS. Explanations of the terminology and metrics used when describing explosives in the Navy's rulemaking/LOA application are also in Appendix B (
Acoustic and Explosive Concepts
) of the 2022 GOA FSEIS/OEIS.
The near-instantaneous rise from ambient to an extremely high peak pressure is what makes an explosive shock wave potentially damaging. Farther from an explosive, the peak pressures decay and the explosive waves propagate as an impulsive, broadband sound. Several parameters influence the effect of an explosive: the weight of the explosive in the warhead, the type of explosive material, the boundaries and characteristics of the propagation medium, the detonation depth, and the depth of the receiver (
i.e.,
marine mammal). The net explosive weight, which is the explosive power of a charge expressed as the equivalent weight of trinitrotoluene (TNT), accounts for the first two parameters. The effects of these factors are explained in Appendix B (Acoustic and Explosive Concepts) of the 2022 GOA FSEIS/OEIS. The activities analyzed in the Navy's rulemaking/LOA application and this final rule that use explosives are described in further detail in Appendix A (Navy Activities Descriptions) of the 2022 GOA FSEIS/OEIS. Explanations of the terminology and metrics used when describing explosives are provided in Appendix B (Acoustic and Explosive Concepts) of the 2022 GOA FSEIS/OEIS.
Explosive detonations during training activities are from the use of explosive bombs and naval gun shells; however, no in-water explosive detonations are included as part of the training activities. For purposes of the analysis in this rule, detonations occurring in air at a height of 33 ft (10 m) or less above the water surface, and detonations occurring directly on the water surface, were modeled to detonate at a depth of 0.3 ft (0.1 m) below the water surface since there is currently no other identified methodology for modeling potential effects to marine mammals that are underwater as a result of detonations occurring in-air at or above the surface of the ocean (within 10 m above the surface). This conservative approach over-estimates the potential underwater impacts due to low-altitude and surface explosives by assuming that all explosive energy is released and remains under the water surface.
Explosive stressors resulting from the detonation of some munitions, such as missiles and gun rounds used in air-air and surface-air scenarios, occur at high altitude. The resulting sound energy from those detonations in air would not impact marine mammals. The explosive energy released by detonations in air has been well studied, and basic methods are available to estimate the explosive energy exposure with distance from the detonation (
e.g.,
U.S. Department of the Navy (1975)). In air, the propagation of impulsive noise from an explosion is highly influenced by atmospheric conditions, including temperature and wind. While basic estimation methods do not consider the unique environmental conditions that may be present on a given day, they do allow for approximation of explosive energy propagation under neutral atmospheric conditions. Explosions that occur during Air Warfare will typically be at a sufficient altitude that a large portion of the sound will refract upward due to cooling temperatures with increased altitude. Based on an understanding of the explosive energy released by detonations in air, detonations occurring in air at altitudes greater than 10 m above the surface of the ocean are not likely to result in acoustic impacts on marine mammals; therefore, these types of explosive activities will not be discussed further
in this document. (Note that most of these in-air detonations would occur at altitudes substantially greater than 10 m above the surface of the ocean, as described in further detail in section 3.0.4.2.2 (
Explosions in Air
) of the 2022 GOA FSEIS/OEIS.) Activities such as air-surface bombing or surface-surface gunnery scenarios may involve the use of explosive munitions that detonate upon impact with targets at or above the water surface (within 10 m above the surface). For these activities, acoustic effects modeling was undertaken as described below.
In order to organize and facilitate the analysis of explosives, explosive classification bins were developed. The use of explosive classification bins provides the same benefits as described for acoustic source classification bins discussed above and in Section 1.4.1 (Acoustic Stressors) of the Navy's rulemaking/LOA application.
The explosive bin types and the number of explosives detonating at or above the water surface in the TMAA are shown in Table 2.
Table 2—Explosive Sources Quantitatively Analyzed That Detonate at or Above the Water Surface in the TMAA
Explosives
(source class and net explosive weight
(NEW)) (lb.) *
Number of
explosives with the
specified activity
(annually)
Number of
explosives with the
specified activity
(7-year total)
E5 (>5-10 lb. NEW)
56
392
E9 (>100-250 lb. NEW)
64
448
E10 (>250-500 lb. NEW)
6
42
E12 (>650-1,000 lb. NEW)
2
14
* All of the E5, E9, E10, and E12 explosives would occur in-air, at or above the surface of the water, and would also occur offshore away from the continental shelf and slope beyond the 4,000-meter isobath.
Propagation of explosive pressure waves in water is highly dependent on environmental characteristics such as bathymetry, bottom type, water depth, temperature, and salinity, which affect how the pressure waves are reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher-frequency components of explosive broadband noise can propagate. Appendix B (
Acoustic and Explosive Concepts
) of the 2022 GOA FSEIS/OEIS explains the characteristics of explosive detonations and how the above factors affect the propagation of explosive energy in the water.
For in-air explosives detonating at or above the water surface, the model estimating acoustic impacts assumes that all acoustic energy from the detonation is underwater with no loss of sound or energy into the air. Important considerations must be factored into the analysis of results with these modeling assumptions, given that the peak pressure and sound from a detonation in air significantly decreases across the air-water interface as it is partially reflected by the water's surface and partially transmitted underwater, as detailed in the following paragraphs.
Detonation of an explosive in air creates a supersonic high-pressure shock wave that expands outward from the point of detonation (Kinney and Graham, 1985; Swisdak, 1975). The near-instantaneous rise from ambient to an extremely high peak pressure is what makes the explosive shock wave potentially injurious to an animal experiencing the rapid pressure change (U.S. Department of the Navy, 2017a). As the shock wave-front travels away from the point of detonation, it slows and begins to behave as an acoustic wave-front traveling at the speed of sound. Whereas a shock wave from a detonation in-air has an abrupt peak pressure, that same pressure disturbance when transmitted through the water surface results in an underwater pressure wave that begins and ends more gradually compared with the in-air shock wave, and diminishes with increasing depth and distance from the source (Bolghasi
et al.,
2017; Chapman and Godin, 2004; Cheng and Edwards, 2003; Moody, 2006; Richardson
et al.,
1995; Sawyers, 1968; Sohn
et al.,
2000; Swisdak, 1975; Waters and Glass, 1970; Woods
et al.,
2015). The propagation of the shock wave in-air and then transitioning underwater is very different from a detonation occurring deep underwater where there is little interaction with the surface. In the case of an underwater detonation occurring just below the surface, a portion of the energy from the detonation would be released into the air (referred to as surface blow off), and at greater depths a pulsating, air-filled cavitation bubble would form, collapse, and reform around the detonation point (Urick, 1983). The Navy's acoustic effects model for analyzing underwater impacts on marine species does not account for the loss of energy due to surface blow-off or cavitation at depth. Both of these phenomena would diminish the magnitude of the acoustic energy received by an animal under real-world conditions (U.S. Department of the Navy, 2018b).
To more completely analyze the results predicted by the Navy's acoustic effects model from detonations occurring in-air above the ocean surface, it is necessary to consider the transfer of energy across the air-water interface. Much of the scientific literature on the transferal of shock wave impulse across the air-water interface has focused on energy from sonic booms created by fast moving aircraft flying at low altitudes above the ocean (Chapman and Godin, 2004; Cheng and Edwards, 2003; Moody, 2006; Sawyers, 1968; Waters and Glass, 1970). The shock wave created by a sonic boom is similar to the propagation of a pressure wave generated by an explosion (although having a significantly slower rise in peak pressure) and investigations of sonic booms are somewhat informative. Waters and Glass (1970) were also investigating sonic booms, but their methodology involved actual in-air detonations. In those experiments, they detonated blasting caps elevated 30 ft (9 m) above the surface in a flooded quarry and measured the resulting pressure at and below the surface to determine the penetration of the shock wave across the air-water interface. Microphones above the water surface recorded the peak pressure in-air, and hydrophones at various shallow depths underwater recorded the unreflected remainder of the pressure wave after transition across the air-water interface. The peak pressure measurements were compared and the results supported the theoretical expectations for the penetration of a pressure wave from air into water,
including the predicted exponential decay of energy with distance from the source underwater. In effect, the air-water interface acted as a low-pass filter eliminating the high-frequency components of the shock wave. At incident angles greater than 14 degrees perpendicular to the surface, most of the shock wave from the detonation was reflected off the water surface, which is consistent with results from similar research (Cheng and Edwards, 2003; Moody, 2006; Yagla and Stiegler, 2003). Given that marine mammals spend, on average, up to 90 percent of their time underwater (Costa, 1993; Costa and Block, 2009), and the shock wave from a detonation is only a few milliseconds in duration, marine mammals are unlikely to be exposed in-air when surfaced.
Vessel Strike
NMFS also considered the chance that a vessel utilized in training activities could strike a marine mammal in the GOA Study Area, including both the TMAA and WMA portions of the Study Area. Vessel strikes have the potential to result in incidental take from serious injury and/or mortality. Vessel strikes are not specific to any particular training activity, but rather are a limited, sporadic, and incidental result of Navy vessel movement within a study area. NMFS' detailed analysis of the likelihood of vessel strike was provided in the “Potential Effects of Vessel Strike” section of our proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information. No additional information has been received since publication of the proposed rule that substantively changes the agency's analysis or conclusions. Therefore, the information and analysis included in the proposed rule supports NMFS' concurrence with the Navy's conclusion and our final determination that vessel strikes of marine mammals, and associated serious injury or mortality, are not likely to result from the Navy's activities included in this seven-year rule, and vessel strikes are not discussed further.
Detailed Description of Specified Activities
Planned Training Activities
The Navy's Operational Commands have identified activity levels that are needed in the GOA Study Area to ensure naval forces have sufficient training, maintenance, and new technology to meet Navy missions in the Gulf of Alaska. Training prepares Navy personnel to be proficient in safely operating and maintaining equipment, weapons, and systems to conduct assigned missions.
The Navy plans to conduct a single carrier strike group (CSG) exercise, which will last for a maximum of 21 consecutive days in a year. The CSG exercise is comprised of several individual training activities. Table 3 lists and describes those individual activities that may result in takes of marine mammals. The events listed will occur intermittently during the 21 days and could be simultaneous and in the same general area within the TMAA or could be independent and spatially separate from other ongoing activities. The table is organized according to primary mission areas and includes the activity name, associated stressor(s), description and duration of the activity, sound source bin, the areas where the activities are conducted in the GOA Study Area, the maximum number of events per year in the 21-day period, and the maximum number of events over 7 years. For further information regarding the primary platform used (
e.g.,
ship or aircraft type) see Appendix A (Navy Activities Descriptions) of the 2022 GOA FSEIS/OEIS.
Not all sound sources are used with each activity. The “Annual # of Events” column indicates the maximum number of times that activity could occur during any single year. The “7-Year # of Events” is the maximum number of times an activity would occur over the 7-year period of the regulations if the training occurred each year and at the maximum levels requested. The events listed will occur intermittently during the exercise over a maximum of 21 days. The maximum number of activities may not occur in some years, and historically, training has occurred only every other year. However, to conduct a conservative analysis, NMFS analyzed the maximum times these activities could occur over one year and 7 years. (Note the Navy proposes no low-frequency active sonar (LFAS) use for the activities in this rulemaking.)
Table 3—Training Activities Analyzed for the 7-Year Period in the GOA Study Area
Stressor category
Activity
Description
Source bin
Annual #
of events
7-Year #
of events
Surface Warfare
Explosive
Gunnery Exercise, Surface-to-Surface
(GUNEX-S-S)
Surface ship crews fire inert small-caliber, inert medium-caliber, or large-caliber explosive rounds at surface targets
E5
6
42
Explosive
Bombing Exercise
(Air-to-Surface)
(BOMBEX [A-S])
Fixed-wing aircraft conduct bombing exercises against stationary floating targets, towed targets, or maneuvering targets
E9, E10, E12
18
126
Anti-Submarine Warfare (ASW)
Acoustic
Tracking Exercise—Helicopter
(TRACKEX—Helo)
Helicopter crews search for, track, and detect submarines
MF4, MF5, MF6
22
154
Acoustic
Tracking Exercise—Maritime Patrol Aircraft
(TRACKEX—MPA)
Maritime patrol aircraft crews search for, track, and detect submarines
MF5, MF6, ASW2
13
91
Acoustic
Tracking Exercise—Ship
(TRACKEX—Ship)
Surface ship crews search for, track, and detect submarines
ASW1, ASW3, MF1, MF11, MF12
2
14
Acoustic
Tracking Exercise—Submarine
(TRACKEX—Sub)
Submarine crews search for, track, and detect submarines
ASW4, HF1, MF3
2
14
Notes:
S-S = Surface to Surface, A-S = Air to Surface.
Standard Operating Procedures
For training to be effective, personnel must be able to safely use their sensors and weapon systems as they are intended to be used in military missions and combat operations and to their optimum capabilities. Standard operating procedures applicable to training have been developed through
years of experience, and their primary purpose is to provide for safety (including public health and safety) and mission success. In many cases, there are benefits to natural and cultural resources resulting from standard operating procedures.
Because standard operating procedures are essential to safety and mission success, the Navy considers them to be part of the planned specified activities, and has included them in the environmental analysis in the 2022 GOA FSEIS/OEIS. Additional details on standard operating procedures were provided in our
Federal Register
notice of proposed rulemaking (87 FR 49656; August 11, 2022); please see that notice of proposed rulemaking or the Navy's application for more information.
Comments and Responses
We published the proposed rule in the
Federal Register
on August 11, 2022 (87 FR 49656), with a 45-day comment period. With that proposed rule, we requested public input on our analyses, our preliminary findings, and the proposed regulations, and requested that interested persons submit relevant information and comments. During the 45-day comment period, we received four comments. Of this total, one submission was from the Marine Mammal Commission (Commission), and the remaining comments were from a non-governmental organization (NGO) and private citizens. Additionally, 2 days after the public comment period ended, we received a comment letter from the Center for Biological Diversity (CBD).
NMFS has reviewed and considered all public comments received on the proposed rule and issuance of the LOA, including comments received from CBD after the public comment period ended. All substantive comments and our responses are described below. We organize our comment responses by major categories.
Impact Analysis and Thresholds
Comment 1:
The Commission strongly recommended that NMFS refrain from using cutoff distances in conjunction with the Bayesian behavioral response functions (BRFs) and re-estimate the numbers of marine mammal takes based solely on the Bayesian BRFs in the final rule, as the use of cutoff distances could be perceived as an attempt to reduce the numbers of takes (85 FR 72326; November 12, 2020). The Commission stated that as such, providing better-substantiated, alternative cut-off distances is unnecessary, as their use in conjunction with the Bayesian BRFs is redundant and potentially contradictory.
Response:
The consideration of proximity (cut-off distances) was part of the criteria developed in consultation between the Navy and NMFS, and is appropriate based on the best available science, which shows that marine mammal responses to sound vary based on both sound level and distance. Therefore, these cut-off distances were applied within the Navy's acoustic effects model. The derivation of the BRFs and associated cut-off distances is provided in the 2017 technical report titled “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III).” To account for non-applicable contextual factors, all available data on marine mammal reactions to actual Navy activities and other sound sources (or other large-scale activities such as seismic surveys when information on proximity to sonar sources was not available for a given species group) were reviewed to find the farthest distance to which significant behavioral reactions were observed. In applying the distance cut-offs in conjunction with the BRFs, these distances were rounded up to the nearest 5 or 10 km interval, and for moderate to large scale activities using multiple or louder sonar sources, these distances were greatly increased—doubled in most cases. The Navy's BRFs applied within these distances provide technically sound methods reflective of the best available science to estimate the impact and potential take for the actions analyzed within the 2022 GOA FSEIS/OEIS and included in this rule. NMFS has independently assessed the thresholds used by the Navy to identify Level B harassment by behavioral disturbance (referred to as “behavioral harassment thresholds” throughout the rest of the rule) and finds that they appropriately apply the best available science and it is not necessary to recalculate take estimates.
Comment 2:
The Commission recommended that NMFS explain why the constants and exponents for onset mortality and onset slight lung injury thresholds for the current phase of incidental take rulemaking for the Navy (Phase III) that consider lung compression with depth result in lower rather than higher absolute thresholds when animals occur at depths greater than 8 m in the preamble to the final rule.
Response:
The derivation of the explosive injury equations, including any assumptions, is provided in the 2017 technical report titled “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III).” The equations were modified for the current rulemaking period (Phase III) to fully incorporate the injury model in Goertner (1982), specifically to include lung compression with depth. NMFS independently reviewed and concurred with this approach.
The impulse mortality/injury equations are depth dependent, with thresholds increasing with depth due to increasing hydrostatic pressure in the model for both the previous 2015-2020 phase of rulemaking (Phase II) and Phase III. The underlying experimental data used in Phase II and Phase III remain the same, and two aspects of the Phase III revisions explain the relationships the commenter notes:
(1) The numeric coefficients in the equations are computed by inserting the Richmond
et al.
(1973) experimental data into the model equations. Because the Phase III model equation accounts for lung compression, the plugging of experimental exposure values into a different model results in different coefficients. The numeric coefficients are slightly larger in Phase III versus Phase II, resulting in a slightly greater threshold near the surface.
(2) The rate of increase for the Phase II thresholds with depth is greater than the rate of increase for Phase III thresholds with depth because the Phase III equations take into account the corresponding reduction in lung size with depth (making an animal more vulnerable to injury per the Goertner model), as the commenter notes.
Comment 3:
The Commission recommended that NMFS use onset mortality, onset slight lung injury, and onset gastrointestinal (GI) tract injury thresholds rather than the 50-percent thresholds to estimate both the numbers of marine mammal takes and the respective ranges to effect for explosives for the final rule. The Commission stated that the current approach is inconsistent with the manner in which the Navy estimated the numbers of takes for Permanent Threshold Shift (PTS), Temporary Threshold Shift (TTS), and behavior for explosive activities, as all of those takes have been and continue to be based on onset, not 50 percent values.
The Commission stated that in addition, the circumstances of the deaths of multiple common dolphins during one of the Navy's underwater detonation events in March 2011 (Danil and St. Leger, 2011) indicate that the Navy's mitigation measures are not fully effective, especially for explosive activities. Recently, Oedekoven and Thomas (2022) also confirmed the ineffectiveness of Navy lookouts to sight marine mammals at various distances
during mid-frequency active (MFA) sonar exercises.
If the Navy does not implement the Commission's recommendation, the Commission further recommended that NMFS (1) specify why it bases explosive thresholds for Level A harassment on onset PTS and Level B harassment on onset TTS and onset behavioral response, while the explosive thresholds for mortality and Level A harassment are based on the 50-percent criteria for mortality, slight lung injury, and GI tract injury, (2) provide scientific justification supporting the assumption that slight lung and GI tract injuries are less severe than PTS and thus the 50-percent rather than onset criteria are more appropriate for estimating Level A harassment for those types of injuries, and (3) justify why the number of estimated mortalities should be predicated on at least 50 percent rather than 1 percent of the animals dying, particularly given the ineffectiveness of lookouts.
Response:
For explosives, the type of data available are different from those available for hearing impairment, and this difference supports the use of different prediction methods. Nonetheless, as appropriate, and similar to take estimation methods for PTS, NMFS and the Navy have used a combination of exposure thresholds and consideration of mitigation to inform the take estimates. The Navy used the range to 1 percent risk of onset mortality and onset injury (also referred to as “onset” in the 2022 GOA FSEIS/OEIS) to inform the development of mitigation zones for explosives. Ranges to effect based on 1 percent risk criteria to onset injury and onset mortality were examined to ensure that explosive mitigation zones would encompass the range to any potential mortality or non-auditory injury, affording actual protection against these effects. In all cases, the mitigation zones for explosives extend beyond the range to 1 percent risk of onset non-auditory injury, even for a small animal (representative mass = 5 kg). Given the implementation and expected effectiveness of this mitigation, the application of the 50 percent threshold is appropriate for the purposes of estimating take in consideration of the required mitigation. Using the 1 percent onset non-auditory injury risk criteria to estimate take would result in an over-estimate of take, and would not afford extra protection to any animal. Specifically, calculating take based on marine mammal density within the area where an animal might be exposed above the 1 percent risk to onset injury and onset mortality criteria would over-predict effects because a subset of those exposures will not happen because of the reduction provided by the mitigation. The Navy, in coordination with NMFS, has determined that the 50 percent incidence of onset injury and onset mortality occurrence is a reasonable representation of a potential effect and appropriate for take estimation, given the mitigation requirements at the 1 percent onset injury and onset mortality threshold, and the area ensonified above this threshold would capture the appropriate reduced number of likely injuries.
While the approaches for evaluating non-auditory injury and mortality are based on different types of data and analyses from the evaluation of PTS and behavioral disturbance, and are not identical, NMFS disagrees with the commenter's assertion that the approaches are inconsistent, as both approaches consider a combination of thresholds and mitigation (where applicable) to inform take estimates. For the same reasons, it is not necessary for NMFS to “provide scientific justification supporting the assumption that slight lung and GI tract injuries are less severe than PTS,” as that assumption is not part of NMFS' rationale for the methods used. NMFS has explained in detail its justification for the number of estimated mortalities, which is based on both the 50 percent threshold and the mitigation applied at the one percent threshold. Further, we note that many years of Navy monitoring following explosive exercises has not detected evidence that any injury or mortality has resulted from Navy explosive exercises with the exception of one incident with dolphins in California, after which mitigation was adjusted to better account for explosives with delayed detonations (
i.e.,
zones for events with time-delayed firing were enlarged).
Furthermore, for these reasons, the methods used for estimating mortality and non-auditory injury are appropriate for estimating take, including determining the “significant potential” for non-auditory injury consistent with the statutory definition of Level A harassment for military readiness activities, within the limits of the best available science. Using the one percent threshold would be inappropriate and result in an overestimation of effects, whereas given the mitigation applied within this larger area, the 50 percent threshold results in an appropriate mechanism for estimating the significant potential for non-auditory injury.
While the Lookout Effectiveness Study suggests that detection of marine mammals is less certain than previously assumed, given the modeling results, this does not affect whether use of the 50 percent threshold is appropriate for calculating mortality from explosives. For explosives in bin E12, the bin with the largest net explosive weight (NEW; >650-1,000 lb.) planned for use by the Navy in the GOA Study Area, the average range to 50 percent non-auditory injury for all marine mammal hearing groups (Table 30) is 190 m. The range to 50 percent mortality risk for all marine mammal hearing groups (Table 31) for the same bin (E12) and the smallest (
i.e.,
the most susceptible to mortality) modeled animal size (10 kg), is 55 m. The range to one percent onset mortality for the same bin (E12) and the smallest modeled animal size (10 kg) is 73 m (with a minimum and maximum of 65 m and 80 m, respectively). Considering that zero takes by non-auditory injury were modeled without consideration of the planned mitigation measures, and with a zone almost 3.5 times larger than the 50 percent onset mortality zone for the highest NEW and most susceptible animal weight, mortality as a result of explosives is unlikely to occur, especially at larger distances than that which were modeled, regardless of lookout effectiveness. However, it is also important to note that the ranges to 50 percent and one percent onset mortality for E12 explosives are both significantly smaller than the mitigation zones reported on in the Lookout Effectiveness Study (200, 500 and 1,000 yards; Oedekoven and Thomas, 2022).
Comment 4:
The Commission continues to maintain that NMFS has not provided adequate justification for dismissing the possibility that single underwater detonations can cause a behavioral response, and, therefore, again recommended that it estimate and authorize behavior takes of marine mammals during all explosive activities, including those that involve single detonations consistent with in-air explosive events.
Response:
NMFS acknowledges the possibility that single underwater detonations can cause a behavioral response. The current take estimate framework allows for the consideration of animals exhibiting behavioral disturbance during single explosions as they are counted as “taken by Level B harassment” if they are exposed above the TTS threshold, which is 5 decibels (dB) higher than the behavioral harassment threshold. We acknowledge in our analysis that individuals exposed above the TTS threshold may also be harassed by behavioral disruption and those potential impacts are considered
in the negligible impact determination. Neither NMFS nor the Navy are aware of evidence to support the assertion that animals will have significant behavioral responses (
i.e.,
those that would rise to the level of a take) to temporally and spatially isolated explosions at received levels below the TTS threshold. However, if any such responses were to occur, they would be expected to be few and to result from exposure to the somewhat higher received levels bounded by the TTS thresholds and would thereby be accounted for in the take estimates. The derivation of the explosive injury criteria is provided in the 2017 technical report titled “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III).”
Regarding the assertion in the Commission's letter that the approaches for assessing the impacts from a single underwater detonation and a single in-air detonation are inconsistent, we disagree. Both approaches/thresholds are based on the best available data. As noted above, we are unaware of data suggesting that marine mammals will respond to single underwater explosive detonation below the TTS threshold in a manner that would qualify as a take. Conversely, for single in-air events such as missile launch noise and sonic booms, there are extensive data supporting the application of the lower behavioral thresholds,
i.e.,
pinnipeds moving significant distances or flushing in response to these in-air levels of sounds.
Comment 5:
A commenter stated that the Navy must consider the risks of vessel noise on the species. Chronic stress in North Atlantic right whales is associated with exposure to low frequency noise from ship traffic. Specifically, “the adverse consequences of chronic stress often include long-term reductions in fertility and decreases in reproductive behavior; increased rates of miscarriages; increased vulnerability to diseases and parasites; muscle wasting; disruptions in carbohydrate metabolism; circulatory diseases; and permanent cognitive impairment” (Rolland
et al.,
2012). These findings have led researchers to conclude that “over the long term, chronic stress itself can reduce reproduction, negatively affect health, and even kill outright” (Rolland
et al.,
2007). North Pacific right whales likely suffer in the same ways.
Response:
NMFS did consider the risks of vessel noise on marine mammals. Navy vessels are designed to be quieter than civilian vessels, and the vessel noise associated with Navy activities is not expected to cause harassment of marine mammals (see the Potential Effects of Specified Activities on Marine Mammals and Their Habitat section in the proposed rule; 87 FR 49656; August 11, 2022). NMFS included an in-depth discussion of stress response in the
Physiological Stress
section of the proposed rule (87 FR 49656; August 11, 2022). There are currently neither adequate data nor mechanisms by which the impacts of stress from acoustic exposure can be reliably and independently quantified. However, stress effects that result from noise exposure likely often occur concurrently with behavioral harassment and many are likely captured and considered in the quantification of other takes by harassment that occur when individuals come within a certain distance of a sound source (behavioral harassment, PTS, and TTS).
Density Estimates
Comment 6:
The Commission recommended that NMFS (1) clarify how and for which species uncertainty was incorporated in the density estimates and whether and how uncertainty was incorporated in the group size estimates and specify the distribution(s) used and, (2) if uncertainty was not incorporated, re-estimate the numbers of marine mammal takes in the final rule based on the uncertainty inherent in the density estimates provided in Department of the Navy (2021) or the abundance estimates in the underlying references (NMFS stock assessment reports (SARs), Fritz
et al.
2016,
etc.
) and the group size estimates provided in Department of the Navy (2020a). Furthermore, if uncertainty is not incorporated in the group size estimates, the Commission recommends that NMFS specify why it did not do so.
Response:
Similar to other Navy Phase III training and testing impact analyses, uncertainty was incorporated in species density and group size estimates for those species with uncertainty values available, when distributing the animats in the Navy Acoustic Effects Model. Since 2016, the Navy Acoustics Effects Model has been refined; marine species density estimates have been updated; and NMFS has published new effects criteria, weighting functions, and thresholds for multiple species, that are incorporated into the model analysis. As discussed in the technical report titled “Quantifying Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and Analytical Approach for Phase III Training and Testing” (U.S. Department of the Navy, 2018), available at
www.goaeis.com,
marine mammal density data are provided as a 10x10 km grid where each cell has a mean density and standard error. In the Navy Acoustic Effects Model, species densities are distributed into simulation areas. Sixty distributions that vary based on the standard deviation of the density estimates are run per season for each species to account for statistical uncertainty in the density estimates.
Clarification on the incorporation of uncertainty in density estimates is provided in the Density Technical Report “U.S. Navy Marine Species Density Database Phase III for the Gulf of Alaska Temporary Maritime Activities Area,” as cited in the 2022 GOA FSEIS/OEIS and available at
www.goaeis.com.
Uncertainty in the density estimates was incorporated into the estimation of take for all species with appropriate measures of uncertainty available, which is most species.
Using a mean density estimate that incorporates appropriate measures of uncertainty, as was done for the species listed in the Commission's comment, is a commonly used and scientifically valid method of estimating a value (
i.e.,
a density in this context). There is equal probability of underestimating and overestimating takes even with a large coefficient of variation (CV) associated with a mean density estimate. Therefore, using the mean density and incorporating the CV into the distribution of animats in the Navy Acoustic Effects Model is reasonable and representative of species distribution in the GOA Study Area.
Regarding pinnipeds, NMFS and the Navy continue to seek appropriate methods for incorporating uncertainty into density estimates for pinnipeds, and by extension, into the Navy's estimates of exposures. As the Commission noted in its comment, of the six pinniped species for which the Navy calculates densities, only the northern fur seal incorporated a CV as a measure of uncertainty in the density estimate. The CV was provided in the SAR (Muto
et al.,
2020a) as a measure of uncertainty in the abundance of northern fur seals, and that abundance (620,660 northern fur seals) was the basis for the density calculation, making the CV directly applicable to the density estimate. Only limited data were available for calculating densities for California sea lions and ribbon seals in the GOA Study Area, as described in the Density Technical Report, and no estimate of uncertainty in either the abundance or the density was available or could be estimated. The SAR did not provide a CV or other measure of uncertainty in the abundance estimate
for northern elephant seals, so none was available for use in the density calculation. The SAR provided a standard error in the abundance estimates for the four harbor seal stocks (Muto
et al.,
2020a) as a measure of uncertainty in the abundance; however, those abundance estimates were combined as described in the Density Technical Report and used to calculate an abundance over the continental shelf—the only part of the harbor seal distribution within the GOA Study Area. The stock abundances were not direct inputs into the density calculations; therefore, it would not have been statistically correct to manipulate (
e.g.,
sum or average) four standard error values representing uncertainty in the separate abundance estimates to derive a standard error and apply it to a calculated continental shelf abundance. The abundance for Steller sea lions was taken from Fritz
et al.
(2016) Table 1A (pups) and Table 6 (non-pups for Eastern Gulf). The recommended formula of pup count × 3.5 was used to estimate the Central Gulf non-pup abundance. (Note that Table 6 only included the abundance for Rookery Cluster Area-9, a portion of the Central Gulf abundance.) No measure of uncertainty in the abundance is provided in either table (Fritz
et al.,
2016). The Navy intends to incorporate, and NMFS intends to consider, uncertainty in its density estimates for pinnipeds in the future, as data or statistically valid methodologies allow.
NMFS concurs with the Navy's use of uncertainty, where available, in the densities applied through their model and reiterates that the best available science was used and applied appropriately to estimate marine mammal take.
Comment 7:
The Commission stated that in its January 4, 2021 letter on the 2020 GOA Draft Supplemental Environmental Impact Statement (DSEIS)/OEIS, it recommended that the Navy request a small number of gray whale takes in its rulemaking/LOA application regardless of whether its model estimated zero takes. Density estimates are not available for gray whales in the TMAA, but the whales could occur there within the timeframe that the Navy's activities would occur (Department of the Navy, 2020b and 2021; Ferguson
et al.,
2015; Palacios
et al.,
2021). The Navy did not request any gray whale takes in its revised LOA application, but NMFS proposed to authorize four Level B harassment behavioral takes of the Eastern North Pacific (ENP) stock in the proposed rule (87 FR 49656; August 11, 2022) based on group size from Rone
et al.
(2017). The Commission supports that approach but is unsure why NMFS did not also propose to authorize takes of the Western North Pacific (WNP) stock of gray whales. Palacios
et al.
(2021) and Mate
et al.
(2015) have shown that gray whales tagged off eastern Russia have been tracked through the TMAA, similar to and in about equal proportion to ENP gray whales. Telemetry, photo-identification, and genetic studies have all shown movements and interchange between the WNP and ENP stocks of gray whales (Weller
et al.,
2012, Urbán
et al.,
2019, Lang
et al.,
2022). Therefore, the Commission recommends that NMFS include in the final rule four Level B harassment behavioral takes for the ENP and WNP stocks of gray whales, as well as its proposed Level B harassment behavioral takes for the WNP stock of humpback whales.
Response:
This final rule authorizes take of four Eastern North Pacific stock gray whales, as proposed. However, it does not authorize four takes of Western North Pacific gray whales as recommended by the Commission. As noted by the Commission, Palacios
et al.
(2021) and Mate
et al.
(2015) show that several gray whales tagged off of eastern Russia entered or came close to the TMAA. However, these occurrences were outside of the time period that the Navy plans to conduct its activity (April to October). Of the whales discussed in Palacios
et al.
(2021), one whale occurred in the TMAA on December 30 and 31, 2011, one whale occurred in the TMAA on March 29 and April 1, 2012, and later passed the TMAA approximately 600-700 km south of its boundary from December 26-31, 2011, and a third whale passed the TMAA approximately 300-400 km south of its boundary from January 22-25, 2011. Of the whales tagged by Mate
et al.
(2015), three whales occurred within the Gulf of Alaska; however, like those tagged by Palacios
et al.
(2021), these whales mainly occurred in the Gulf of Alaska outside of the Navy's planned training period of April to October. Three of the whales' transits between Sakhalin Island, Russia and the Eastern North Pacific occurred during the fall and winter. A return trip to Russia from Baja California, Mexico by one of the three whales took place from February to May 2012. While it is not completely clear, based on Figure 1 of Mate
et al.
(2015), it appears likely that the whale had crossed the Gulf of Alaska by April or in early April. While there are movements and interchange between the Eastern and Western North Pacific gray whales, as noted by the Commission, including migration of Western North Pacific gray whales through the Gulf of Alaska, as noted in Table 4 of the proposed rule (87 FR 49656, August 11, 2022), their occurrence in the TMAA is rare. Given the occurrence information described above and the very low population estimate of Western North Pacific gray whales (290 whales in comparison to 26,960 Eastern North Pacific gray whales), NMFS has not added take of Western North Pacific gray whales to this final rule.
Comment 8:
For Baird's beaked whales, the Navy used a presumed density of 0.0005 whales/km
2
from Waite (2003) based on a single sighting of four Baird's beaked whales. The Commission stated that this density estimate is of little value for reasons outlined in its January 4, 2021 letter commenting on the 2020 GOA DSEIS/OEIS. In addition, the Navy specified that six visual sightings and 32 acoustic detections of Baird's beaked whales occurred during the 2013 survey in the TMAA (Department of the Navy 2021). Rone
et al.
(2014) also noted that Baird's beaked whales often travel in large groups. The Navy further specified average group size as 8.08 for Baird's beaked whales, 2.04 for Cuvier's beaked whales, and 6 for Stejneger's beaked whales (see Table 26 in Department of the Navy, 2020a). As such, the Commission asserts that the density from Waite (2003) is a vast underestimate.
The Commission further states that Rone
et al.
(2014) documented the first fine-scale habitat use of a tagged Baird's beaked whale in the region. The tagged individual showed the importance of seamount habitat, remaining approximately nine days, presumably foraging, within a relatively small geographic range inside the TMAA, with approximately six of those days spent in the vicinity of a single seamount (Rone
et al.,
2014). The greatest density of Cuvier's beaked whales also was attributed to the seamount stratum based on Yack
et al.
(2015). At a minimum, the stratum-specific densities for Cuvier's beaked whales should have been used as surrogates for Baird's beaked whales, with the understanding that the Cuvier's beaked whale densities may still be an underestimate based on the larger group size of Baird's beaked whales. The Commission recommended that NMFS use the three stratum-specific densities of Cuvier's beaked whales as surrogates for Baird's beaked whales and re-estimate the numbers of takes accordingly for the final rule.
Response:
The Navy developed a hierarchical system, described in each
of the density technical reports, for identifying and selecting the best available density data. As described in Section 2.2.2 of the Density Technical Report for the GOA, the density value of a surrogate species can be used as a proxy value when species-specific density data are not available. A density estimate for Baird's beaked whale is available based on sighting data collected within the GOA; therefore, the use of density estimates for a surrogate species would not be consistent with the established hierarchy or the best scientific information available. NMFS and the Navy will update density estimates for Baird's beaked whale in the future if more recent survey data become available. Additionally, take estimates could be modified if other information supported it—however, no such information suggests that the estimated and authorized take are not appropriate, and 106 annual takes continues to represent the best available science.
Comment 9:
The Commission stated that the Navy indicated that it used data derived from Hobbs and Waite (2010) to characterize harbor porpoise density in various strata based on published depth distributions (Department of Navy, 2021). The Navy did not stipulate where those depth strata delineations originated or what density from Hobbs and Waite (2010) was used. Hobbs and Waite (2010) provided an uncorrected density of 0.062 porpoises/km
2
for GOA and a corrected abundance of 31,046 porpoises for the 158,733 km
2
area surveyed (see Table 2), which would result in a corrected density of 0.198 porpoises/km
2
. Both densities are greater than the 0.0473 porpoises/km
2
that Navy used for the GOA (Department of the Navy, 2021). If NMFS considers the data in Hobbs and Waite (2010) to be the best available science, the Commission recommends that NMFS use the corrected density of 0.198 porpoises/km
2
from Hobbs and Waite (2010) for the 100 to 200-m isobath stratum and re-estimate the numbers of takes accordingly for harbor porpoises in the final rule.
Response:
Hobbs and Waite (2010) estimated the abundance of the GOA harbor porpoise stock based on aerial surveys conducted in the summer of 1998. The surveys were conducted along transect lines that ran from shore (including inlets, straits, and sounds) out to the 1,000 m depth contour, and were concentrated in nearshore areas where harbor porpoise are known to occur. Once corrected for perception and availability bias, Hobbs and Waite (2010) estimated a total of 31,046 harbor porpoise in the GOA stock (
i.e.,
a density estimate of 0.1956 animal/km
2
based on a study region of 158,733 km
2
). Hobbs and Waite (2010) note that, despite the ranges of depth surveyed in the GOA, harbor porpoise were present primarily in waters less than 100 m in depth, which is consistent with aerial surveys off the U.S. West Coast where porpoise are mainly found in 20-60 m depth (Carretta
et al.,
2001). Based on these data, it was assumed 90 percent of the harbor porpoise are found in waters up to 100 m depth, 10 percent in waters from 100 from 200 m depth, and few in waters from 200 to 1,000 m depth.
Given their nearshore distribution, it would not be appropriate to use an overall harbor porpoise density estimate of 0.1956 animal/km
2
for analysis in the GOA TMAA; density estimates need to be derived specific to the depth ranges where they are known to occur. To derive density estimates, depth strata were identified consistent with Hobbs and Waite (2010) and are shown below for waters within the GOA TMAA (to be consistent with the survey coverage of Hobbs and Waite (2010), the areas included nearshore regions within inlets, straits, and sounds). The total area within the 1,000 m depth contour = 101,588.64 km
2
.
GOA TMAA depth distribution:
<100 m = 39,332.23 km
2
100-200 m = 42,020.44 km
2
200-1,000 m = 20,235.97 km
2
TOTAL = 101,588.64 km
2
Based on the Hobbs and Waite (2010) density estimate of 0.1956 animal/km
2
, approximately 19,871 harbor porpoise could occur within the TMAA. Based on these values, the following density estimates were calculated using the estimate of 19,871 harbor porpoises, the percentages noted above, and the area of each depth strata in the GOA TMAA.
GOA harbor porpoise density estimates:
<100 m = 0.4547 animals/km
2
100-200 m = 0.0473 animals/km
2
200-1,000 m = 0.00001 animals/km
2
Comment 10:
The Commission stated that the Navy used abundance estimates divided by given areas to estimate densities, and the areas used were again inconsistent among species. For Northern fur seal, the Commission recommended that NMFS (1) specify why the Navy chose to use the GOA Large Marine Ecosystem (LME) area rather than the U.S. Geological Service (USGS) GOA area, (2) use the most recent northern fur seal abundance estimate of 626,618 rather than 620,660, (3) determine whether the information in the text or in Table 10-2 in Department of the Navy (2021) is correct regarding the assumed delineations of juvenile northern fur seals by sex and re-estimate the abundances provided in Table 10-3 based on the most recent abundance estimate and the correct delineation assumptions, (4) apply to September and October the same assumptions that were made regarding juveniles of both sexes for August, and (5) re-estimate the densities in Table 10-4 and the numbers of takes of northern fur seals in the final rule.
Response:
We first note that take estimation is not an exact science. There are many inputs that go into an estimate of marine mammal exposure, and the data upon which those inputs are based come with varying levels of uncertainty and precision. Also, differences in life histories, behaviors, and distributions of stocks can support different decisions regarding methods in different situations. Further, there may be more than one acceptable method to estimate take in a particular situation. Accordingly, while the applicant bears the responsibility of providing by species or stock the estimated number and type of takes (see 50 CFR 216.104(a)(6)) and NMFS always ensures that an applicant's methods are technically supportable and reflect the best available science, NMFS does not prescribe any one method for estimating take (or calculating some of the specific take estimate components that the commenter is concerned about). NMFS reviewed the areas, abundances, and correction factors used by the Navy to estimate take for the GOA Study Area and concurs that they are appropriate. While some of the suggestions the commenter makes could provide alternate valid ways to conduct the analyses, these modifications are not required in order to have equally valid and supportable analyses. In addition, we note that (1) some of the specific recommendations that the commenter makes in this comment and others are largely minor in nature within the context of our analysis (
e.g.,
abundance estimate of 626,618 rather than 620,660) and (2) even where the recommendation is somewhat larger in scale, given the ranges of the majority of these stocks, the size of the stocks, and the number and nature of pinniped takes, recalculating the estimated take for any of these pinniped stocks using the commenter's recommended changes would not change NMFS' assessment of impacts on the rates of recruitment or survival of any of these stocks, or the negligible impact determinations. Below, and in subsequent comment responses, we address the commenter's issues in more detail.
The Navy adopted new methodologies and densities based on the best available science to improve the Navy's pinniped
density estimates in the GOA and Northwest Training and Testing (NWTT) Study Areas. NMFS has reviewed the Navy's analysis and choices in relation to these comments and concurs that they are technically sound and reflect the best available science. The same approach taken for the pinniped density estimates in the NWTT Study Area was applied to density estimates in the GOA Study Area, including the use of haulout factors, telemetry data, and age and sex class distinctions (as data permitted). One difference was the application of a growth rate used to calculate abundances for some pinniped species in the NWTT Study Area. Applying an annual growth rate for pinniped species in the GOA was determined to be unnecessary or inappropriate based on discussions with pinniped subject matter experts at the NMFS Alaska Fisheries Science Center's Marine Mammal Lab. As was done in the NWTT Study Area, the Navy estimated seasonal in-water abundances for each species and divided those abundances by an area representing the distribution of each pinniped species. It would have been inappropriate and less accurate to assume all pinniped species were distributed equally over the same area (
e.g.,
the GOA LME). For example, it would not have been representative of species occurrence to distribute harbor seals over the GOA LME to calculate density; however, the GOA LME was representative of the northern fur seal distribution.
The percentages of northern fur seals occurring in the GOA LME presented in Table 10-2 are consistent with the information presented in the text of the Density Technical Report (U.S. Department of the Navy, 2021). The percentages for January through March were not shown in Table 10-2 because the Navy only presented densities for the period relevant to the planned training in the GOA Study Area (April through October). The percentages for January through April (equivalent to the data in Table 10-2) are provided in the table below.
Table 4—Monthly Percentages of Age and Sex Classes of Northern Fur Seal in the Gulf of Alaska LME From January to April
Month
Eastern Pacific stock
Adult
females
(percent)
Adult
males
(percent)
Juvenile
females
(2 and 3
year olds;
percent)
Juvenile
males
(2 and 3
year old;
percent)
Yearlings*
(percent)
Pups
(percent)
California
stock
Pups
(percent)
January
20
25
35
25
10
10
50
February
20
20
20
20
10
10
50
March
25
25
25
10
15
15
50
April
15
15
35
10
15
15
50
* Assumes yearlings, which are not included in Zeppelin
et al.
(2019) and pups in the Eastern Pacific stock have the same month percentages through June.
As described in the text of the Density Technical Report, the average percentage from January through April is 29 percent for juvenile females and 16 percent for juvenile males. Those averages were used for May and June for females and males, respectively. The process for estimating juvenile abundances, as presented in Table 10-2, is described in the text of the Density Technical Report. For example, the abundance of juvenile females is calculated as:
Abundance = 620,660 × 0.085 × 0.35 = 18,456 juvenile female fur seals; where 8.5 percent is the class percentage of the stock (Density Technical Report Table 10-1, see footnote 2) and 35 percent is the portion of the class occurring in the Study Area in April (Table 10-2).
The estimates of monthly abundances, including for juveniles, were validated by pinniped scientists at the Alaska Fisheries Science Center's Marine Mammal Lab, several of whom are co-authors on the paper by Zeppelin
et al.
(2019). The paper does not provide occurrence data for September, and, as shown in Figure 4 of the paper, the abundance of juveniles in the GOA in October is at or near zero.
Comment 11:
The Commission stated that it is unclear why the Navy did not forward-project the abundance estimates of Western Distinct Population Segment (wDPS) Steller sea lions to at least 2021, as trend data are available in NMFS' 2019 SAR and remain the same through 2021 (Muto
et al.,
2022). They also request clarification as to why the Navy used Fritz
et al.
(2016) for the abundance estimates for western and eastern Steller sea lions. Those abundances were from surveys conducted in 2015 and have been updated by Sweeney
et al.
(2018 and 2019) as referenced in NMFS' 2019, 2020, and 2021 SARs. The Commission recommended that NMFS re-estimate (1) the Steller sea lion densities for the western DPS based on abundance data from Sweeney
et al.
(2018 and 2019) rather than Fritz
et al.
(2016) and forward-project the abundance estimates into 2022 using the trend data provided in NMFS' 2021 SAR, and (2) the number of Steller sea lion takes.
Response:
In the NWTT Study Area, the Navy used an annual growth rate to estimate densities for some pinniped species to account for abundance estimates reported in the SARs that were based on older survey data or when abundance estimates were no longer supported by the SAR. The intent of applying a growth rate was to estimate an abundance to the present time (
i.e.,
at the time densities were being calculated). Growth rates were not used to “forward project” abundance estimates into the future, but to bring estimates up to the present if a reliable growth rate was available and appropriate to use for the species and location. A similar process was considered for estimating densities in the GOA Study Area; however, the Navy, following discussions with pinniped scientists at the NMFS Alaska Fisheries Science Center's Marine Mammal Lab, determined that applying a growth rate (including the trend data provided in NMFS' 2021 SAR) would not be appropriate for pinniped species occurring in the GOA, because available abundance estimates were considered accurate and representative.
While the SARs do reference more recent surveys (Sweeney
et al.,
2018, 2019), there is no substantial difference in the relevant abundance data reported
by Sweeney
et al.
(2017, 2018, 2019) and Fritz
et al.
(2016). Sweeney
et al.
(2018) states that, “there were no—or limited—new data collected for the GOA regions in 2018.” Table 1 in Sweeney
et al.
(2018) shows that there were only two sites in the Central Gulf that were surveyed (and they were surveyed on a single day) and no sites in the Eastern Gulf that were surveyed. Figure 8 (pups) shows that the realized pup count is approximately the same as the pup count reported by Fritz
et al.
(2016) in Table 1. In both cases, the totals reported by Fritz
et al.
(2016) are higher. Given a lack of new data and that abundance estimates from both sources are similar, Sweeney
et al.
(2018) should not be considered a superior source of abundance data for Steller sea lions in the Eastern Gulf and Central Gulf regions. Sweeney
et al.
(2017) reports more extensive survey data for the Eastern Gulf and Central Gulf than Sweeney
et al.
(2018); however, Figure 7 of the 2017 paper shows that realized pup counts are similar to those reported by Sweeney
et al.
(2018) and lower than those provided by Fritz
et al.
(2016). Lastly, the data, analysis, and discussion presented by Fritz
et al.
(2016) are more comprehensive than the abbreviated information presented by Sweeney
et al.
(2017, 2018) and include information specific to each sub-region (
e.g.,
Central Gulf and Eastern Gulf) within the Western DPS. Given the similarity in abundances estimates, with the abundances in Fritz
et al.
(2016) more conservative for the Navy's analysis, no meaningful change in the density of Western DPS Steller sea lions would result from recalculating densities based on Sweeney
et al.
(2017, 2018, 2019).
A small area east of the 144° W longitude line, which defines the DPS boundary for Steller sea lions, overlapped with a conservatively sized area used by the Navy to delineate where species' densities were needed for modeling. The “density area” extended well beyond the TMAA and the Navy's area of potential effects; however, only densities inside the TMAA were reported in the Density Technical Report. The Navy estimated two seasonal densities for the Eastern DPS of Steller sea lions in the portion of the density area defined by the 144° W longitude line and the 500 m isobath (see table below).
Table 5—Seasonal Densities for Eastern DPS Steller Sea Lions
Eastern DPS
DPS area name
34,196
Abundance.
63 percent
May-August percent in-water (haulout factor).
75 percent
April, September-October percent in-water (haulout factor).
21,543
May-August in-water abundance.
25,647
April, September-October in-water abundance.
90,796
Area (km
2
)
0.2373
May-August density (animals/km
2
)
0.2825
April, September-October density (animals/km
2
)
The portion of the Eastern DPS that overlaps with the density area and is in waters less than 500 m is approximately 100 km north of the TMAA. The portion of the Eastern DPS (east of the 144° W longitude line) that overlaps with the TMAA is farther offshore and considerably deeper than 500 m and therefore has a zero density. Table 10-6 in the Density Technical Report specifically indicates densities are only provided inside the TMAA. Therefore, only a zero density for the Eastern DPS is reported in Table 10-6 for areas inside the TMAA. Additional text has been added to the Density Technical Report to explain this in greater detail. Prior to Navy analysis, NMFS reviewed and concurred with all densities used in the Density Technical Report.
Comment 12:
The Commission stated that in addition to the Navy's use of an inconsistent geographical area for elephant seals, the Navy used an outdated abundance estimate. The abundance estimate is from 12 years ago, and the Commission asserted that it should have been forward-projected to at least 2021 based on the growth rate included in NMFS' 2019 SAR. Since then, NMFS has updated its elephant seal abundance estimate to 187,386 and its annual growth rate to 3.1 percent based on Lowry
et al.
(2020; Carretta
et al.,
2022). The Commission recommended that NMFS (1) specify why the Navy chose to use the USGS GOA area rather than the GOA LME area to estimate elephant seal densities in the preamble to the final rule, (2) use the most recent abundance estimate of 187,386 rather than 179,000 and forward-project it into 2022 using the trend data provided in NMFS' 2021 SAR, and (3) re-estimate the number of elephant seal takes in the final rule.
Response:
It is not clear what the Commission means by “inconsistent geographic areas for elephant seals.” The USGS definition of the GOA represented the distribution information reported in Peterson
et al.
(2015) and Robinson
et al.
(2012), which were the primary sources used to define monthly elephant seal distributions, and was geographically more relevant to the TMAA than the GOA LME, which extends along the coast of southeast Alaska and British Columbia, Canada, far from the TMAA. Female northern elephant seals are primarily distributed throughout the eastern North Pacific following their post-breeding and post-molting migrations. The GOA LME does not adequately represent their distribution, which begins with northward migrations from the Channel Islands off California and is concentrated with highest densities centered near the boundary between the sub-Arctic and subtropical gyres, south of the GOA LME (Robinson
et al.,
2012). Male elephant seals tend to forage and transit over the shelf closer to shore than females; however, they primarily migrate from the Channel Islands through the GOA to the Aleutian Islands. Unlike northern fur seals, which use much of the GOA LME during migration and their non-breeding season, northern elephant seals occur outside of the GOA LME for a large portion of the year, making the GOA LME less relevant to their distribution and inadequate as an area representing their occurrence in a density calculation. Figure 1 in Peterson
et al.
(2015) illustrates how using the GOA LME as the density distribution area would be problematic. Telemetry data shows that some females migrated into the GOA LME off southeast Alaska and British Columbia, Canada following their post breeding (short) foraging trip; however, none of the tracks reached the GOA. Calculating densities in the southeast portion of the GOA LME was irrelevant to the Navy's analysis in the TMAA, and extrapolating densities from the southeast GOA LME into the TMAA would not have been accurate. The Navy searched for another geographic definition of the GOA that would encompass the entire TMAA but not extend as far south along the coast as the GOA LME. The USGS definition of the GOA met those requirements and allowed the Navy to more accurately estimate the proportion of elephant seals occurring in proximity to the TMAA based on the kernel density distribution data presented by Robinson
et al.
(2012). Based on these considerations, the Navy determined that the USGS definition of the GOA was more appropriate to use in calculating densities for northern elephant seals in the TMAA. NMFS reviewed and concurs with the Navy's determination. Please see Comment 10 for a response to the comment on the
use of different geographic areas for different species.
The Navy does not “forward project” abundances for any species, and NMFS concurs with this decision. A growth rate was applied to project an abundance to the present time (
i.e.,
at the time densities were being calculated) for selected species in the NWTT Study Area. A similar process was considered for species in the GOA Study Area; however, the Navy, following discussions with pinniped scientists at the Alaska Fisheries Science Center's Marine Mammal Lab, determined that applying a growth rate would not be appropriate for pinniped species occurring in the GOA Study Area, because available abundance estimates were considered accurate and representative. NMFS concurs with this decision. Elephant seal researchers at the University of California Santa Cruz reviewed the Navy's elephant seal density estimates and confirmed the estimates as reasonable. The Navy is aware that the elephant seal abundance estimate in the SAR is older, and the Navy will continue to seek updated information on elephant seal abundance.
Further, as explained in more detail in response to Comments 10 and 14, take estimation is not an exact science, and updating the density using the most recent northern elephant seal abundance estimate of 187,386 rather than 179,000 is not required in order to have an equally valid and supportable analysis. The change would be minor in nature within the context of our analysis, and recalculating the estimated take using the commenter's recommended changes would not change NMFS' assessment of impacts on the rates of recruitment or survival of any of these stocks, or the negligible impact determinations.
Comment 13:
The Commission stated that for harbor seals, the Navy indicated that it derived the proportion of the total population estimates in Table 10-10 of Department of the Navy (2021) from data provided by model A in Table 2 of Hastings
et al.
(2012). While Hastings
et al.
(2012) provided survival estimates of various age classes for seals on Tugidak Island in Table 2, they did not provide relative age-class proportions for the population. The Navy also used abundance estimates from 2015-2018 for the four stocks. As for other pinniped species, those estimates should have been forward-projected to at least 2021 based on the trend data available in NMFS' 2019 SAR. In addition, the Navy did not provide references regarding its assumption that harbor seals would be in the water for 50 percent of the time from June through September and for 60 percent of the time in April, May, and October. Boveng
et al.
(2012) indicated that the proportion of seals hauled out in Cook Inlet peaked at 43 percent in June compared to 32 percent in October. Those haul-out proportions would equate to 57 percent of seals in the water in June and 68 percent of the seals in the water in October—both of which are greater than the Navy's assumptions. For simplicity, the Navy could have used 60 and 70 percent rather than 50 and 60 percent. The Commission recommended that NMFS (1) re-estimate the densities of harbor seals based on the abundance data forward-projected to 2022 using the trend data provided in NMFS' 2021 SAR and based on 60 percent of seals being in the water from June through September and 70 percent of the seals being in the water in April, May, and October as denoted in Boveng
et al.
(2012) and (2) re-estimate the number of harbor seal takes in the final rule.
Response:
The Navy calculated relative age class proportions for harbor seal using survival rates and assuming an annual increase of 1,234 harbor seals per year for the South Kodiak stock. The annual increase was based on the 8-year trend estimate from the SAR (Muto
et al.,
2019). Projections were made out to 35 years, and age class proportions were calculated based on the relative abundances in this hypothetical population after 35 years. This part of the process was not explained in detail in the Density Technical Report (November 2020), but the approach was reviewed by pinniped scientists at the Alaska Fisheries Science Center's Marine Mammal Lab and deemed a reasonable approach for determining relative proportions of each age class represented in the four relevant harbor seal stocks. Additional text was added to the March 2021 Density Technical Report to outline this process in more detail.
The abundances for the four stocks used in the density calculations are the abundances in the 2019 final SAR (Muto
et al.,
2020b) and were the most recent abundances available at the time the densities were derived. The abundance estimates were provided to the Navy by the Alaska Fisheries Science Center's Marine Mammal Lab in advance of being updated in the SAR. The Navy, following discussions with pinniped scientists at the Alaska Fisheries Science Center's Marine Mammal Lab, determined that applying a growth rate would not be appropriate for pinniped species occurring in the GOA Study Area because available abundance estimates are considered accurate and representative, and particularly in the case of harbor seals, very recent. NMFS reviewed and concurs with all densities used in the Density Technical Report.
The haulout factors used to estimate the number of harbor seals in the water were adapted from Withrow and Loughlin (1995), who estimated that harbor seals were hauled out 58 percent of the time (42 percent in water) during molting season (August-September) on Grand Island in southeast Alaska; Pitcher and McAllister (1981), who estimated seals were in the water 50 percent of the time during pupping season and 59 percent during molting season on Kodiak Island; and Withrow
et al.
(1999) in Withrow
et al.
(1999) who reported seals were hauled out 52 percent of the time (48 percent in water) at Pedersen and Aialik glaciers on the Kenai Peninsula. These references report haulout data from the GOA region and are consistent in their estimates. After reviewing Boveng
et al.
(2012), it appears that the haulout correction factor for October may be 20 percent not 32 percent, as noted in the comment and the abstract (see Table 4 in Boveng
et al.
(2012)). While similar haulout percentages have been reported for harbor seals elsewhere for late fall or winter (Withrow and Loughlin, 1995; Yochem
et al.,
1987), this proportion (
i.e.,
20 percent hauled out and 80 percent in the water) appears to be somewhat of an anomaly for the region based on the other studies cited above. Note that the Navy's proposed training activities would occur between April and October (not in late fall or winter) and have historically occurred in late spring or summer. For August, a timeframe more relevant to the Proposed Action, Boveng
et al.
(2012) qualify their results by noting that the number of seals hauled out in August (
i.e.,
35 percent) was expected to be higher, consistent with other survey results, and that the lower percentage was likely due to tags falling off during the molt in August, limiting available data and leading the authors to use mathematical functions to interpolate the August data and correct their abundance estimate (
i.e.,
effectively discounting their tag-based haulout data). They conceded that the approach outlined in the paper likely underestimates the proportion of seals hauled out in August (see page 31 of Boveng
et al.
(2012)) and that the proportion of seals hauled out during molting season is often higher than during pupping season. Taking this reasoning into consideration, estimating that 50 percent instead of 57 percent of
seals would be in the water for June through September (pupping and molting seasons) is a reasonable approximation and is consistent with the references cited above (Pitcher and McAllister, 1981). Lastly, J. London, one of the co-authors of Boveng
et al.
(2012), reviewed the Navy's density calculations for harbor seals in the GOA and concurred that the density estimates were appropriate for the Navy's model. The Navy has updated the Density Technical Report to better explain the sources for the haulout factors that were used in the analysis. NMFS has reviewed the Navy's analysis and choices in relation to this comment and concurs that they are technically sound and reflect the best available science.
Comment 14:
The Commission stated that rather than use the older abundance estimates that informed the densities in Department of the Navy (2021), NMFS correctly used abundance estimates from the most recent SARs, including the 2021 SARs (Carretta
et al.,
2022, Muto
et al.,
2022), in its negligible impact determination analysis (Tables 41-46 in the proposed rule; 87 FR 49656; August 11, 2022). NMFS specified in the preamble to the proposed rule that those 2021 SARs represent the best available science (85 FR 49666; August 11, 2022) and then used the associated abundances to inform its analysis. NMFS should not consider one abundance estimate the best available science for its density estimates (85 FR 49716; August 11, 2022) and another abundance estimate best available science for its negligible impact determination analysis for the same species (85 FR 49666; August 11, 2022). The Commission stated that this approach is inconsistent with the tack taken for other Navy rulemakings (
e.g.,
Atlantic Fleet Training and Testing (AFTT)). For its negligible impact determinations in the AFTT rulemaking, NMFS indicated that it compared the predicted takes to abundance estimates generated from the same underlying density estimate instead of certain SARs, which are not based on the same underlying data and would not be appropriate for the analysis (
e.g.,
Tables 72-77; 83 FR 57076 and 57214). It is clear that the more recent SAR data represent best available science, further supporting the need for NMFS to correct the various pinniped density estimates using those data. The Commission recommends that NMFS use the same species-specific abundance estimates to both derive the densities and inform its negligible impact determinations for the various pinniped species in the final rule.
Response:
NMFS referenced the latest abundance estimates for all species and stocks, as included in the 2021 final SARs, in its negligible impact determinations. NMFS recognizes that mathematically, it is most appropriate to compare a density/take estimate to an abundance estimate that is derived from the same data. However, in the instances in this rule where a density/take estimate calculated using an older abundance estimate was compared to a newer abundance estimate, the result is very similar as if the take estimate were compared to the same abundance estimate that the corresponding density was derived from. As described above in responses to Comments 10 through 13, older abundance estimates were used to derive some densities given that those data were the best available at the time, and it is impractical to update the densities each time a new abundance estimate is generated (which could be up to two times per year, as an estimate could potentially be updated in both a draft and final SAR each year). Further, neither take estimation nor negligible impact determinations is an exact science. While NMFS does reference the abundance estimates of the stocks in the negligible impact analyses, the comparison between the authorized take and abundance for a given stock is meant to provide a relative sense of where a larger portion of a species or stock is being taken by Navy activities, where there is a higher likelihood that the same individuals are being taken on multiple days, and where that number of days might be higher or sequential. This comparison between authorized take and the stock abundance is not used for making a small numbers determination for this authorization, as authorizations for military readiness activities do not require a small numbers determination. Therefore, referencing an abundance estimate in a negligible impact determination that is more recent than the abundance estimate used to derive a density would not have an impact on the determination unless there is a vast difference in the two abundance estimates, and that is not the case here.
Comment 15:
A commenter asserted that, as explained in the Commission's letter, many of NMFS' density and take estimates are inaccurate and underestimated. The Commission specifically recommended that NMFS clarify and “re-estimate the numbers of marine mammal takes.” The commenter asserted that NMFS' underestimates are apparent in regard to many of the seal, sea lion, and porpoise species because NMFS estimates that there will be zero takes for those species when all other active LOAs in the area estimate large numbers of takes for those species. Authorizing the take of even more marine mammals will have a non-negligible impact on the species or stocks under the MMPA because it will likely adversely affect the annual rates of recruitment or survival. Thus, NMFS should deny the Navy's LOA application.
Response:
NMFS' responses to Comments 6 through 13 address the Commission's density and take estimate recommendations. Regarding take of seals, sea lions, and porpoises, NMFS and the Navy carefully considered the potential for take of all marine mammal species that may occur in the GOA Study Area and the TMAA portion of the GOA Study Area (the portion of the GOA Study Area in which the use of sonar and other transducers and explosives at or near the surface (within 10 m above the water surface) will occur) in particular. Numerous species are not expected to occur in the TMAA, as described in the
Species Not Included in the Analysis
section of this final rule. While harbor porpoise, Steller sea lion, California sea lion, harbor seal, and ribbon seal could occur in the GOA Study Area, modeling indicates that take of these species is unlikely to result from the use of sonar and other transducers or explosives at or near the surface (within 10 m above the water surface).
Further, the comparison of the take estimate for the Navy's GOA training activities to take authorizations for other activities in Alaska is not appropriate given the differences in location among these activities and the likelihood of occurrence of various species at these project sites. The Navy's Gulf of Alaska activities are planned for the GOA Study Area, an offshore area in the Gulf of Alaska (see Figure 1 of the proposed rule; 87 FR 49656; August 11, 2022), while the projects that the commenter has referenced are occurring either at a location on the Alaska shoreline or in the Arctic Ocean. Given that occurrence of marine mammals at shoreline locations is site specific, and the distance of the Arctic Ocean from the GOA Study Area, it is incorrect to assume that occurrence of marine mammals would be similar at all project sites. For the reasons described above, including in the responses to Comments 6 through 13re, authorizing additional takes of marine mammals beyond that proposed for authorization in the proposed rule is not warranted, and the authorized takes will have a negligible impact on the relevant species and stocks as described in the Analysis and
Negligible Impact Determination section of this final rule.
Mitigation
Comment 16:
A commenter stated that when the Navy's activity occurs, utmost caution should be exercised in the whereabouts of marine mammals. The commenter further suggested that the Navy should reduce the amount of incidental take of marine mammals.
Response:
As discussed in the Mitigation Measures section of this final rule, and in Chapter 5 (Mitigation) of the 2022 GOA FSEIS/OEIS, the Navy will implement extensive mitigation to avoid or reduce potential impacts from the GOA activities on marine mammals. The mitigation measures would reduce the probability and/or severity of impacts expected to result from acute exposure to acoustic sources or explosives, ship strike, and impacts to marine mammal habitat. Specifically, the Navy would use a combination of delayed starts, powerdowns, and shutdowns to avoid mortality or serious injury, minimize the likelihood or severity of PTS or other injury, and reduce instances of TTS or more severe behavioral disruption caused by acoustic sources or explosives. The Navy would also implement two time/area restrictions that would reduce take of marine mammals in areas or at times where they are known to engage in important behaviors, such as foraging or migration, particularly for North Pacific right whales, humpback whales, and gray whales.
Comment 17:
A commenter stated that as part of the Navy's mitigation efforts, the Navy requires all bridge watch standers and other applicable personnel to complete Marine Species Awareness Training (MSAT) prior to standing watch or serving as a lookout. However, the commenter stated that absent is any mention of refresher training conducted prior to any major exercises such as the carrier strike group (CSG) exercise. The commenter states that given their experience as a former Surface Warfare Officer and Anti-Submarine Warfare Officer (ASWO), they know that MSAT training is generally required annually and that knowledge in this area among bridge watch standers and especially lookouts is low and quickly atrophies after training. The commenter states that while it would be unreasonable to suggest conducting training prior to every exercise, special consideration should be given to major CSG exercises. Major CSG exercises include multiple ships often testing various capabilities where the risk of taking marine mammals is elevated and can only properly be mitigated if the watch standers are freshly trained. Therefore, the commenter recommended MSAT training be reconducted and documented prior to any major CSG exercise.
Additionally, given the increased use of active sonar during major CSG exercises, the commenter recommended the Combat Acoustics Division, ASWO, and Surface Ship Anti-Submarine Warfare Specialist conduct Sonar Positional Reporting System training prior to any major CSG exercises. The commenter asserted that this will ensure that active sonar use is properly documented and can be later reviewed if a marine mammal is significantly injured to determine if active sonar was a likely cause.
Response:
The Navy routinely refines its training modules to improve sailor professional knowledge and skills. It also seeks and provides lessons learned to units periodically on all the environmental compliance tools (Protective Measures Assessment Protocol (PMAP), Sonar POsitional ReporTing System (SPORTS), Marine Species Awareness Training (MSAT)). The Navy requires Lookouts and other personnel to complete their assigned environmental compliance responsibilities (
e.g.,
mitigation, reporting requirements) before, during, and after training activities. MSAT was first developed in 2007 and has since undergone numerous updates to ensure that the content remains current. The MSAT product was approved by NMFS and most recently updated by the Navy in 2018. In 2014, the Navy developed a series of educational training modules, known as the Afloat Environmental Compliance Training program, to ensure Navy-wide compliance with environmental requirements. The Afloat Environmental Compliance Training program, including the updated MSAT, helps Navy personnel from the most junior Sailors to Commanding Officers gain a better understanding of their personal environmental compliance roles and responsibilities.
MSAT, PMAP, and SPORTS training are required for personnel both upon reporting aboard (
e.g.,
newly assigned to a command) and annually thereafter as per Navy policy. Additional MSAT may be required again within an annual period for special circumstance (
e.g.,
large crew transfers, regional ship strikes, as mandated by internal Navy exercise directions). In addition to the required use of PMAP to obtain the procedural and geographic mitigations prior to events in a CSG exercise, pre-exercise orders for exercises in the GOA and in other locations instruct review of MSAT at least once annually. Since each unit is on individual deployment and their own training schedule, additional training for individual units may occur as situations warrant (
e.g.,
bridge team rotation). There are multiple tools for ships' personnel to utilize in support of these procedural requirements, including whale identification wheels. Navy has recently published a revised Lookout Training Handbook (NAVEDTRA 12968-E) to assist in the training of lookout skills and species identification. NMFS and the Navy continue to look for ways to improve lookout effectiveness through the adaptive management process. However, NMFS does not find it appropriate to include a requirement to conduct additional MSAT or SPORTS training prior to an exercise.
Comment 18:
A commenter stated that one of the most effective means to protect marine mammals from noise and disturbance is to impose time and area restrictions. The agency should consider additional mitigation and time and area restrictions, including but not limited to the specific recommendations outlined in its letter.
Response:
NMFS agrees that time and area restrictions are an effective tool for minimizing impacts of an activity on marine mammals. NMFS addressed the commenter's specific recommendations for additional mitigation in its responses to Comments 19 through 25 and Comments 27, 28, and 30. Please see the Mitigation Measures section of this rule and Section 5.5 (Mitigation Measures Considered but Eliminated) of the 2022 GOA FSEIS/OEIS for a full discussion of additional mitigation measures that were considered.
Comment 19:
A commenter recommended extending the mitigation areas to include a buffer zone to protect the biologically sensitive areas from received levels that are above the take threshold.
Response:
The mitigation areas included in the final rule and described in Chapter 5 (Mitigation) of the 2022 GOA FSEIS/OEIS represent the maximum mitigation within mitigation areas and the maximum size of mitigation areas that are practicable for the Navy to implement under their specified activity. Implementing additional mitigation (
e.g.,
buffer zones that would extend the size of the mitigation areas) beyond what is included in the final rule is impracticable due to implications for safety, sustainability, and the Navy's ability to continue meeting its mission requirements. However, this Phase III rule includes a new mitigation area, the Continental Shelf and Slope Mitigation Area. Navy personnel will not detonate
explosives below 10,000 ft altitude (including at the water surface) during training at all times in the Continental Shelf and Slope Mitigation Area (including in the portion that overlaps the North Pacific Right Whale Mitigation Area). Previously, the Navy's restriction on explosives applied seasonally within the North Pacific Right Whale Mitigation Area and within the Portlock Bank Mitigation Area. With the development of the Continental Shelf and Slope Mitigation Area, that restriction now applies across the entire continental shelf and slope out to the 4,000 m depth contour within the TMAA. Mitigation in the Continental Shelf and Slope Mitigation Area was initially designed to avoid or reduce potential impacts on fishery resources for Alaska Natives. However, the area includes highly productive waters where marine mammals (including humpback whales (Lagerquist
et al.,
2008) and North Pacific right whales) feed and overlaps with a small portion of the North Pacific right whale feeding BIA off of Kodiak Island. Additionally, the Continental Shelf and Slope Mitigation Area overlaps with a very small portion of the humpback whale critical habitat Unit 5, on the western side of the TMAA, and a small portion of humpback whale critical habitat Unit 8 on the north side of the TMAA. The Continental Shelf and Slope Mitigation Area also overlaps with a very small portion of the gray whale migration BIA. The remainder of the designated critical habitat and BIAs are located beyond the boundaries of the GOA Study Area. While the overlap of the mitigation area with critical habitat and feeding and migratory BIAs is limited, mitigation in the Continental Shelf and Slope Mitigation Area may reduce the probability, number, and/or severity of takes of humpback whales, North Pacific right whales, and gray whales in this important area (noting that the Navy's Acoustic Effects Model estimated zero takes for gray whales, though NMFS has conservatively authorized four takes by Level B harassment). Additionally, mitigation in this area will likely reduce the number and severity of potential impacts to marine mammals in general, by reducing the likelihood that feeding is interrupted, delayed, or precluded for some limited amount of time.
When practicable, NMFS sometimes recommends the inclusion of buffers around areas specifically delineated to contain certain important habitat or high densities of certain species, to allow for further reduced effects on specifically identified features/species. However, buffers are not always considered necessary or appropriate in combination with more generalized and inclusive measures, such as coastal offsets or other areas that are intended to broadly contain important features for a multitude of species. In the case of this rulemaking, NMFS and the Navy have included two protective areas that will reduce impacts on multiple species and habitats and, as described above, limitations in additional areas is not practicable.
Comment 20:
A commenter recommended prohibiting active sonar in the Portlock Bank Mitigation Area.
Response:
Increasing the geographic mitigation requirements pertaining to the use of active sonar in the TMAA, either by adding a sonar restriction to Portlock Bank or expanding the size of the North Pacific Right Whale Mitigation Area is not practicable, for the reasons detailed in Section 5.5.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS, which NMFS has reviewed and concurs with. However, mitigation for explosives was included in the 2020 GOA DSEIS/OEIS in a “Portlock Bank Mitigation Area,” and this area has since been expanded into the Continental Shelf and Slope Mitigation Area. (Please see the
Mitigation Areas
section of this final rule and Section 5.4 (Geographic Mitigation to be Implemented) of the 2022 GOA FSEIS/OEIS for additional details about the requirements in this area and the ecological benefits.)
Comment 21:
A commenter recommended moving the GOA Study Area activities to the fall, after September, which the commenter stated would avoid fishing seasons as well as primary whale feeding months. Alternatively, the Navy should adopt geographic mitigation shoreward of the continental shelf between June and September because that portion of the TMAA is near the biologically important feeding areas for North Pacific right whales, fin whale, humpback whales, and gray whales during those months.
Response:
As described in Section 5.4.3 (Operational Assessment) of the 2022 GOA FSEIS/OEIS, it would not be practical to shift the months of the Proposed Action due to impacts on safety, sustainability, and mission requirements. The exercise, Northern Edge, is a U.S. Indo-Pacific Command (USINDOPACOM) sponsored exercise, led by Headquarters Pacific Air Forces. The joint service training exercise typically occurs every other year during odd number years for approximately a two-week period. The Navy has participated in this or its predecessor exercises for decades, and although naval warships and planes play a vital role in Northern Edge, the Navy does not determine the specific dates for conducting each exercise. USINDOPACOM determines exercise dates based on a number of factors, including weather conditions, safety of personnel and equipment, effectiveness of training, availability of forces, deployment schedules, maintenance periods, other exercise schedules within the Pacific region, and important environmental considerations. Although the Navy is unable to further restrict the months when training could be conducted in the GOA Study Area, the Navy is required to implement geographic mitigation in the North Pacific Right Whale Mitigation Area and the Continental Shelf and Slope Mitigation Area.
Mitigation within the North Pacific Right Whale Mitigation Area is primarily designed to avoid or further reduce potential impacts to North Pacific right whales within important feeding habitat. The mitigation area fully encompasses the portion of the BIA identified by Ferguson
et al.
(2015) for North Pacific right whale feeding that overlaps the GOA Study Area (overlap between the GOA Study Area and the BIA occurs in the TMAA only) (see Figure 2 of the proposed rule; 87 FR 49656; August 11, 2022). North Pacific right whales are thought to occur in the highest densities in the BIA from June to September. The Navy will not use surface ship hull-mounted MF1 mid-frequency active sonar in the mitigation area from June 1 to September 30, as was also required in the Phase II (2017-2022) rule (82 FR 19530; April 26, 2017). The North Pacific Right Whale Mitigation Area is fully within the boundary of the Continental Shelf and Slope Mitigation Area, discussed below. Therefore, the mitigation requirements in that area also apply to the North Pacific Right Whale Mitigation Area. While the potential occurrence of North Pacific right whales in the GOA Study Area is expected to be rare due to the species' small population size, these mitigation requirements would help further avoid or further reduce the potential for impacts to occur within North Pacific right whale feeding habitat, thus likely reducing the number of takes of North Pacific right whales, as well as the severity of any disturbances by reducing the likelihood that feeding is interrupted, delayed, or precluded for some limited amount of time.
Additionally, the North Pacific Right Whale Mitigation Area overlaps with a small portion of the humpback whale critical habitat Unit 5, in the southwest
corner of the TMAA. While the overlap of the two areas is limited, mitigation in the North Pacific Right Whale Mitigation Area may reduce the number and/or severity of takes of humpback whales in this important area.
The mitigation in this area would also help avoid or reduce potential impacts on fish and invertebrates that inhabit the mitigation area and which marine mammals prey upon. As described in Section 5.4.1.5 (Fisheries Habitats) of the 2022 GOA FSEIS/OEIS, the productive waters off Kodiak Island support a strong trophic system from plankton, invertebrates, small fish, and higher-level predators, including large fish and marine mammals.
As described in further detail in response to Comment 19, the Continental Shelf and Slope Mitigation Area is expected to reduce the probability, number, and/or severity of takes of humpback whales, North Pacific right whales, and gray whales in this important area (noting that no takes are predicted for gray whales). Additionally, mitigation in this area will likely reduce the number and severity of potential impacts to marine mammals in general, by reducing the likelihood that feeding is interrupted, delayed, or precluded for some limited amount of time.
Comment 22:
A commenter recommended capping the maximum level of activities conducted each year.
Response:
The commenters offer no rationale for why a cap is needed and nor do they suggest what an appropriate cap might be. The Navy is responsible under Title 10 of the U.S. Code for conducting the needed amount of testing and training to maintain military readiness, which is what they have proposed and NMFS has analyzed. Further, the MMPA states that NMFS shall issue MMPA authorizations if the necessary findings can be made, as they have been here. Importantly, as described in the
Mitigation Areas
section, the Navy will limit activities (active sonar, explosive use,
etc.
) to varying degrees in two areas that are important to sensitive species or for important behaviors in order to minimize impacts that are more likely to lead to adverse effects on rates of recruitment or survival.
Comment 23:
A commenter recommended increasing the exclusion zone because some animals are sensitive to sonar at low levels of exposure.
Response:
The commenter does not suggest what an appropriate exclusion zone size would be. The Navy, in coordination with NMFS, customized its mitigation zone sizes and mitigation requirements for each applicable training activity category or stressor. Each mitigation zone represents the largest area that (1) Lookouts can reasonably be expected to observe during typical activity conditions (
i.e.,
most environmentally protective) and (2) the Navy can implement the mitigation without impacting safety or the ability to meet mission requirements. The current exclusion zones represent the maximum distance practicable for the Navy to implement during training within the TMAA, as described in Chapter 5 of the FSEIS/OEIS and, further, they encompass the area in which any marine mammal would be expected to potentially be injured. The active sonar mitigation zones also extend beyond the average ranges to temporary threshold shift for otariids and into a portion of the average ranges to temporary threshold shift for all other marine mammal hearing groups; therefore, mitigation would help avoid or reduce the potential for some exposure to higher levels of temporary threshold shift. This final rule includes procedural mitigation and mitigation areas to further avoid or reduce potential impacts from active sonar on marine mammals in areas where important behaviors such as feeding and migration occur.
Comment 24:
A commenter recommended imposing a 10-knot ship speed in Mitigation Areas to reduce the likelihood of vessel strikes.
Response:
Generally speaking, it is impracticable (because of impacts to mission effectiveness) to further reduce ship speeds for Navy activities, and, moreover, given the maneuverability of Navy ships at higher speeds and the presence of Lookouts, any further reduction in speed would be unlikely to reduce the already extremely low probability of a ship strike (which is not authorized, nor expected to occur in the GOA Study Area). The Navy is unable to impose a 10-knot ship speed limit because it would not be practical to implement and would not allow the Navy to continue meeting its training requirements due to diminished realism of training exercises, as detailed in Section 5.3.4.1 (Vessel Movement) of the 2022 GOA FSEIS/OEIS. The Navy requires flexibility to use variable ship speeds for training, operational, safety, and engineering qualification requirements. Navy ships typically use the lowest speed practical given mission needs. NMFS has reviewed the Navy's analysis of additional restrictions and the impacts they would have on military readiness and concurs with the Navy's assessment that they are impracticable.
The main driver for ship speed reduction is reducing the possibility and severity of ship strikes to large whales. However, even given the wide ranges of speeds from slow to fast that Navy ships have used in training in the GOA Study Area, there have been no documented vessel strikes of marine mammals by the Navy.
As discussed in the 2016 GOA FSEIS/OEIS Section 5.1.2 (Vessel Safety), Navy standard operating procedures require that ships operated by or for the Navy have personnel assigned to stand watch at all times, day and night, when moving through the water (
i.e.,
when the vessel is underway). A primary duty of watch personnel is to ensure safety of the ship, which includes the requirement to detect and report all objects and disturbances sighted in the water that may be indicative of a threat to the ship and its crew, such as debris, a periscope, surfaced submarine, or surface disturbance. Per safety requirements, watch personnel also report any marine mammals sighted that have the potential to be in the direct path of the ship, as a standard collision avoidance procedure. As described in Section 5.3.4.1 (
Vessel Movement
) of the 2022 GOA FSEIS/OEIS, Navy vessels are also required to operate in accordance with applicable navigation rules. Applicable rules include the Inland Navigation Rules (33 CFR part 83) and International Regulations for Preventing Collisions at Sea (72 Collision Regulations), which were formalized in the Convention on the International Regulations for Preventing Collisions at Sea, 1972. These rules require that vessels proceed at a safe speed so proper and effective action can be taken to avoid collision and so vessels can be stopped within a distance appropriate to the prevailing circumstances and conditions. In addition to standard operating procedures, the Navy implements mitigation to avoid vessel strikes, which includes requiring vessels to maneuver to maintain at least 500 yd distance from whales, and 200 yd or 100 yd distance away from other marine mammals (except those intentionally swimming alongside or choosing to swim alongside vessels, such as for bow-riding or wake-riding). Additionally, please see the Potential Effects of Vessel Strike section of the proposed rule (87 FR 49656; August 11, 2022) for discussion regarding the differences between Navy ships and commercial ships which make Navy ships less likely to affect marine mammals.
When developing Phase III mitigation measures, the Navy analyzed the potential for implementing additional types of mitigation, such as vessel speed restrictions within the GOA Study Area.
The Navy determined that based on how the training activities will be conducted within the GOA Study Area, vessel speed restrictions would be incompatible with practicability criteria for safety, sustainability, and training missions, as described in Chapter 5 (Mitigation), Section 5.3.4.1 (Vessel Movement) of the 2022 GOA FSEIS/OEIS. However, this rule includes mitigation to further reduce the already low potential for vessel strike as described in the Mitigation Measures section of this final rule and in Chapter 5 of the 2022 GOA FSEIS/OEIS. Occurrences of large whales may be higher over the continental shelf and slope relative to other areas of the TMAA. The Navy would issue pre-event awareness messages to alert ships and aircraft participating in training activities within the TMAA to the possible presence of concentrations of large whales on the continental shelf and slope. Large whale species in the TMAA include, but are not limited to, fin whale, blue whale, humpback whale, gray whale, North Pacific right whale, sei whale, and sperm whale. To maintain safety of navigation and to avoid interactions with these species, the Navy will instruct vessels to remain vigilant to the presence of large whales that may be vulnerable to vessel strikes or potential impacts from training activities. Additionally, ships and aircraft will use the information from the awareness messages to assist their visual observation of applicable mitigation zones during training activities and to aid in the implementation of procedural mitigation.
Comment 25:
A commenter recommended that NMFS add mitigation for other marine mammal stressors such as dipping sonar and contaminants.
Response:
The Navy implements mitigation for active sonar, including dipping sonar, as outlined in Table 34 of this rule, and in Section 5.3.2.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS. Expanding active sonar mitigation requirements would be impractical for the reasons detailed in Section 5.5.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS, which NMFS has reviewed and concurs with. As described in Section 3.8.3.3 (Secondary Stressors) of the 2022 GOA FSEIS/OEIS, potential impacts of secondary stressors (including contaminants), were determined to be discountable, negligible, or insignificant, and not expected to result in the take of any mammal; therefore, mitigation for contaminants is not warranted.
Least Practicable Adverse Impact Determination
Comment 26:
The Commission recommended that NMFS—
• clearly separate its application of the least practicable adverse impact requirement from its negligible impact determination;
• adopt a clear decision-making framework that recognizes the species and stock component and the marine mammal habitat component of the least practicable adverse impact provision and always consider whether there are potentially adverse impacts on marine mammal habitat and whether it is practicable to minimize them;
• 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;
• address these concerns by adopting a simple, two-step analysis that more closely tracks the statutory provisions being implemented and, if NMFS is using some other legal standard to implement the least practicable adverse impact requirements, provide a clear and concise description of that standard and explain why it believes it to be “sufficient” to meet the statutory legal requirements; and
• adopt general regulations to govern the process and set forth the basic steps and criteria that apply across least practicable adverse impact determinations.
Response:
NMFS has made clear in this and other rules that the agency separates its application of the least practicable adverse impact requirement in the Mitigation Measures section from its negligible impact analyses and determinations for each species or stock in a separate section. Further, NMFS has made this separation clear in practice for years by requiring mitigation measures to reduce impacts to marine mammal species and stocks and their habitat for all projects, even those for which the anticipated take would clearly have a negligible impact, even in the absence of mitigation.
In the Mitigation Measures section of this rule, NMFS has explained in detail our interpretation of the least practicable adverse impact standard, the rationale for our interpretation, and how we implement the standard. The method the agency is using addresses all of the necessary components of the standard and produces effective mitigation measures that result in the least practicable adverse impact on both the species or stocks and their habitat. The commenter has failed to illustrate why NMFS' approach is inadequate or why the commenter's proposed approach would be better, and we therefore decline to accept the recommendation.
Also, in the Mitigation Measures section, NMFS has explained in detail our interpretation and application of the least practicable adverse impact standard. The commenter has recommended an alternate way of interpreting and implementing the least practicable adverse impact standard, in which NMFS would consider the effectiveness of a measure in our evaluation of its practicability. The commenter erroneously asserts that NMFS currently considers the effectiveness of a measure in a determination of whether the potential effects of an activity are adverse, but the commenter has misunderstood NMFS' application of the standard—rather, NMFS appropriately considers the effectiveness of a measure in the evaluation of the degree to which a measure will reduce adverse impacts on marine mammal species or stocks and their habitat, as a less effective measure will less successfully reduce these impacts on marine mammals. Further, the commenter has not provided information that shows that their proposed approach would more successfully evaluate mitigation under the least practicable adverse impact standard, and we decline to accept it.
Further, NMFS disagrees with the commenter's assertion that analysis of the rule's mitigation measures under the least practicable adverse impact standard remains unclear or that the suggested shortcomings exist. The commenter provides no rationale as to why the two-step process they describe is better than the process that NMFS uses to evaluate the least practicable adverse impact that is described in the rule, and therefore we decline to accept the recommendation.
Regarding the assertion that the standard shifts on a case-by-case basis, the commenter misunderstands the agency's process. Neither the least practicable adverse impact standard nor NMFS' process for evaluating it shifts on a case-by-case basis. Rather, as the commenter suggests should be the case, the evaluation itself is case-specific to the proposed activity, the predicted impacts, and the mitigation under consideration.
Regarding the recommendation to adopt general regulations, we appreciate the recommendation and may consider the recommended approach in the future. However, providing directly relevant explanations of programmatic
approaches or interpretations related to the incidental take provisions of the MMPA in a proposed incidental take authorization is an effective and efficient way to provide information to and solicit focused input from the public. Further, this approach affords the same opportunities for public comment as a stand-alone rulemaking would.
Monitoring
Comment 27:
A commenter recommended that NMFS improve detection of marine mammals with restrictions on low-visibility activities and alternative detection such as thermal or acoustic methods.
Response:
As described in Section 5.5.1 (Active Sonar) of the 2022 GOA FSEIS/OEIS, which NMFS has reviewed and concurs with, although the majority of sonar use occurs during the day, the Navy has a nighttime training requirement for some active sonar systems. Training in both good visibility (
e.g.,
daylight, favorable weather conditions) and low visibility (
e.g.,
nighttime, inclement weather conditions) is vital because environmental differences between day and night and varying weather conditions affect sound propagation and the detection capabilities of sonar. After sunset and prior to sunrise, Lookouts and other Navy watch personnel employ night visual search techniques, which could include the use of night vision devices. The Navy requires flexibility in the timing of its use of active sonar and explosives in order to meet individual training schedules. In June and July, there are approximately 19 hours of daylight per day in the GOA; therefore, there are naturally fewer hours of available nighttime to be used for sonar training. Due to the already limited timeframe of when the Proposed Action can occur in the GOA Study Area based on weather conditions (April through October), time-of-day restrictions on the use of active sonar would prevent the Navy from successfully completing its mission requirements within the necessary timeframes. As described in Section 5.5.4 (Thermal Detection Systems and Unmanned Aerial Vehicles) of the 2022 GOA FSEIS/OEIS, thermal detection systems have not been sufficiently studied in terms of their effectiveness and compatibility with Navy military readiness activities. The Navy plans to continue researching thermal detection systems and will provide information to NMFS about the status and findings of Navy-funded thermal detection studies and any associated practicality assessments at the annual adaptive management meetings described in the Adaptive Management section of this rule. Please see NMFS' response to Comment 28 regarding passive acoustic monitoring.
Comment 28:
The Commission asserted that Navy lookouts have been determined to be ineffective, therefore passive and/or active acoustic monitoring must be used to supplement visual monitoring, especially for activities that could injure or kill marine mammals. The Commission recommended that NMFS require the Navy to use passive (
i.e.,
DIFAR and other types of passive sonobuoys, operational hydrophones) and active acoustic (
i.e.,
tactical sonars that are in use during the actual activity and active sonobuoys or other sources similar to fish-finding sonars) monitoring, whenever practicable, to supplement visual monitoring during the implementation of its mitigation measures for all activities that could cause injury or mortality. The Commission stated that at a minimum, sonobuoys deployed (
e.g.,
see Binder
et al.
(2021)) and active sources and hydrophones used during an activity should be monitored for marine mammals—ideally, the Navy should develop and refine new technologies to supplement its visual monitoring, similar to the Department of National Defence in Canada (Binder
et al.,
2021, Thomson and Binder, 2021). The Commission stated that if NMFS does not adopt this recommendation, it recommends that NMFS justify (1) how it concluded that the Navy's mitigation measures based on visual monitoring do not need to be supplemented for those activities involving injury when Oedekoven and Thomas (2022) have determined that Navy lookouts are ineffective at sighting numerous types of marine mammals at various distances and for those activities involving mortality when marine mammals have been killed previously and (2) how visual monitoring is sufficient for effecting the least practicable adverse impact on the numerous marine mammal species and stocks.
In a related comment, a commenter recommended installing passive acoustic monitoring in the TMAA to inform mariners about the presence of marine mammals.
Response:
While we acknowledge that the Lookout Effectiveness Study suggests that detection of marine mammals is less certain than previously assumed at certain distances, we disagree with the assertion that the Lookouts have been shown to be wholly ineffective. Lookouts remain an important component of the Navy's mitigation strategy, especially as it relates to minimizing exposure to the more harmful impacts that may occur within closer proximity to the source, where Lookouts are most effective. Further, as described below, NMFS and the Navy are also considering, through the adaptive management process, whether there are additional measures that would be practicable to implement that would improve effectiveness of Lookouts, such as enhanced personnel training.
The Navy does employ passive acoustic devices (
e.g.,
remote acoustic sensors, expendable sonobuoys, passive acoustic sensors on submarines) to supplement visual monitoring when practicable to do so (
i.e.,
when assets that have passive acoustic monitoring capabilities are already participating in the activity) as discussed in Section 5.2.1 (Procedural Mitigation Development) and Section 5.3 (Procedural Mitigation to be Implemented) of the 2022 GOA FSEIS/OEIS. We note that sonobuoys have a narrow band that does not overlap with the vocalizations of all marine mammals, and there is no bearing or distance on detections based on the number (
e.g.,
one or two) and type of devices typically used; therefore it is not typically possible to use these to implement mitigation shutdown procedures. As discussed in Section 5.5.3 (Active and Passive Acoustic Monitoring Devices) of the 2022 GOA FSEIS/OEIS, which NMFS reviewed and concurs accurately assesses the practicability of utilizing additional passive or active acoustic systems for mitigation monitoring, there are significant manpower and logistical constraints that make constructing and maintaining additional passive acoustic monitoring systems or platforms for each training and testing activity, or instrumented ranges, impracticable. The Navy's existing passive acoustic monitoring devices (
e.g.,
sonobuoys) are designed, maintained, and allocated to specific training units or testing programs for specific mission-essential purposes. Reallocating these assets to different training units or testing programs for the purpose of monitoring for marine mammals would prevent the Navy from using its equipment for its intended mission-essential purpose. Additionally, diverting platforms that have passive acoustic monitoring capability would impact their ability to meet their Title 10 requirements (see Section 1.4, Purpose of and Need for Proposed Military Readiness Training Activities, of the 2022 GOA FSEIS/OEIS) and reduce the service life of those systems.
Furthermore, adding a passive acoustic monitoring capability to additional explosive activities (either by adding a passive acoustic monitoring device to a platform already participating in the activity, or by adding an additional platform to the activity) for mitigation is not practical. For example, all platforms participating in an explosive bombing exercise (
e.g.,
firing aircraft, safety aircraft) must focus on situational awareness of the activity area and continuous coordination between multiple training components for safety and mission success. Therefore, it is impractical for participating platforms to divert their attention to non-mission essential tasks, such as deploying sonobuoys and monitoring for acoustic detections during the event (
e.g.,
setting up a computer station). The Navy does not have available manpower or resources to allocate additional aircraft for the purpose of deploying, monitoring, and retrieving passive acoustic monitoring equipment during a bombing exercise.
As noted in the comment, the Navy conducted a Lookout Effectiveness Study in association with the University of St. Andrews for several years to assess the ability of shipboard Lookouts to observe marine mammals while conducting hull-mounted sonar training activities at sea. The University of St. Andrews' report was provided to NMFS on April 1, 2022 as required by a Term and Condition in the Endangered Species Act (ESA) Incidental Take Statements for the Biological Opinions associated with NMFS' 2020 final rule for Navy training and testing activities in the NWTT and Mariana Islands Training and Testing (MITT) Study Areas. The Lookout Effectiveness Study is available at
https://www.navymarinespeciesmonitoring.us.
Overall, the report provides NMFS and the Navy with valuable contextual information, but requires some level of interpretation with regard to the numerical results. For instance, the study's statistical model assumed that Navy ships moved in a straight line at a set speed for the duration of the field trials, and that animals could not move in a direction perpendicular to a ship. Violation of this model assumption would underestimate Lookout effectiveness for some data points. The Navy and NMFS determined that the Lookout Effectiveness Study results would not alter the acoustic effects quantitative analysis of potential impacts on marine mammals from the specified activities, and that the acoustic effects quantitative analyses included in the 2022 GOA FSEIS/OEIS and in the GOA proposed rule (87 FR 49656; August 11, 2022) did not underestimate the number or extent of marine mammal takes due to the conservative approach already taken by the Navy in its quantitative analysis process. NMFS and the Navy are currently working to determine how and to what extent the Study's results should be incorporated into future environmental analyses. The Navy and NMFS are also considering, through the adaptive management process, whether there are additional measures that would be practicable to implement that would improve effectiveness of Lookouts, such as enhanced personnel training.
Regarding how NMFS concluded that the Navy's mitigation measures based on visual monitoring do not need to be supplemented for those activities involving injury considering Oedekoven and Thomas (2022), NMFS implemented the least practicable adverse impact standard as described in the
Implementation of Least Practicable Adverse Impact Standard
section of the proposed rule and in this final rule. As stated in the
Take Request
section of the proposed rule (87 FR 49656; August 11, 2022) and the
Take Estimation
section of this final rule, for training activities in the GOA Study Area, no mortality or non-auditory injury is anticipated, even without consideration of planned mitigation measures. For the reasons described above in this response, including cost, impact on the specified activities, practicality of implementation, and impact on the effectiveness of the military readiness activity, the Commission's recommendations are not practicable. Therefore, absent additional available techniques for mitigation monitoring, the procedural mitigation and mitigation areas described in this final rule are sufficient for effecting the least practicable adverse impact on the numerous marine mammal species and stocks.
Other Comments
Comment 29:
The Commission noted that the Navy recently published the 2022 GOA FSEIS/OEIS for conducting the proposed training activities in GOA (87 FR 54214; September 2, 2022) and requested any comments by October 3, 2022. The public comment period for NMFS' proposed rule closed September 26, 2022 (87 FR 49656; August 11, 2022). The Commission stated it is unclear whether and how any changes to the proposed rule would inform the 2022 GOA FSEIS/OEIS, as it has already been drafted and determinations apparently already made. Under the Administrative Procedure Act (APA), an agency is expected to provide a full and sufficient rationale supporting its action at the time any statutory decision is made. That rationale is comprised in part by the agency's responses to public comments, which in this case were included in Appendix G81 of the 2022 GOA FSEIS/OEIS. Since NMFS was a cooperating agency on the 2020 GOA DSEIS/OEIS and indicated that it plans to adopt the FSEIS that will underpin the final rule (87 FR 49757; August 11, 2022), it can be perceived as though decisions have been made preemptively for the various statutory determinations. Such practice runs counter to the requirements of the APA and undermines the intent of the public process.
Response:
This rulemaking process provided notice and opportunity for the pubic to comment prior to final decision-making by NMFS on both the 2022 GOA FSEIS/OEIS and this MMPA rule. In the proposed rule (87 FR 49656; August 11, 2022), NMFS stated its plan to adopt the GOA SEIS/OEIS for the GOA Study Area provided our independent evaluation of the document found that it included adequate information analyzing the effects on the human environment of issuing regulations and an LOA under the MMPA. We further stated in the proposed rule that we would review all comments prior to concluding our National Environmental Policy Act (NEPA) process and making a final decision on the MMPA rulemaking and request for a LOA, which we have since done.
Neither NMFS nor the Navy signed a Record of Decision (the decision document through which NMFS adopted the 2022 GOA FSEIS/OEIS) until the comments received in both the NEPA and MMPA processes were considered. During this rulemaking process, had comments been received on the proposed rule that warranted changes or additional analysis in the NEPA process, NMFS and the Navy would have addressed these comments through each agency's Record of Decision, or otherwise amended the analysis to address the issues raised by any such comments.
Comment 30:
A commenter stated that NMFS should consult with Alaska Native communities and add mitigation for environmental justice impacts.
Response:
NMFS invited Alaska Native federally-recognized Tribes in the Gulf of Alaska region to a presentation and opportunity to discuss the proposed rule. A member from one Tribe attended, and indicated that the Tribe would likely submit a letter with recommendations for consideration in
the final rule. Further, the Navy has consulted and will continue to consult with Alaska Native Tribes through government-to-government consultations (see Appendix E (Agency Correspondence) of the 2022 GOA FSEIS/OEIS). One Tribe provided recommendations to the Navy as part of the GOA FSEIS/OEIS process, which NMFS reviewed and considered in preparing its proposed rule (87 FR 49656; August 11, 2022).
It is unclear what the commenter means by “add mitigation for environmental justice impacts,” and the commenter did not provide sufficient information in order to incorporate such a recommendation. However, the Portlock Bank Mitigation Area that was included in the 2020 Draft SEIS/OEIS was developed for the purpose of reducing potential impacts on fishery resources in a location important to Alaska Native Tribes. That mitigation area was expanded, as included in NMFS' proposed rule (87 FR 49656; August 11, 2022), this final rule,
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