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DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: Background The MMPA prohibits the ‘‘take’’ of National Oceanic and Atmospheric Purpose for Regulatory Action marine mammals, with certain Administration These regulations, issued under the exceptions. Sections 101(a)(5)(A) and authority of the MMPA (16 U.S.C. 1361 (D) of the MMPA (16 U.S.C. 1361 et 50 CFR Part 218 et seq.), establish a framework for seq.) direct the Secretary of Commerce [190731–0008] authorizing the take of marine mammals (as delegated to NMFS) to allow, upon incidental to the Navy’s use of RIN 0648–BI42 request, the incidental, but not SURTASS LFA sonar systems onboard intentional, taking of small numbers of U.S. Navy surveillance ships for training Takes of Marine Mammals Incidental to marine mammals by U.S. citizens who and testing activities (categorized as Specified Activities: Taking Marine engage in a specified activity (other than military readiness activities) conducted Mammals Incidental to U.S. Navy commercial fishing) within a specified under the authority of the Secretary of Surveillance Towed Array Sensor geographical region if certain findings the Navy in the western and central System Low Frequency Active Sonar are made and either regulations are North Pacific Ocean and eastern Indian Training and Testing in the Central and issued or, if the taking is limited to Ocean. Western North Pacific Ocean and harassment, an incidental harassment Eastern Indian Ocean NMFS received an application from authorization may be issued following the Navy requesting regulations and an notice and opportunity for public AGENCY: National Marine Fisheries associated letter of authorization (LOA) comment. Service (NMFS), National Oceanic and to take individuals of multiple species Authorization for incidental takings Atmospheric Administration (NOAA), and stocks of marine mammals (‘‘Navy’s shall be granted if NMFS finds that the Commerce. rulemaking/LOA application’’ or taking will have a negligible impact on ACTION: Final rule; notification of ‘‘Navy’s application’’) by Level B the species or stock(s) and will not have issuance of Letter of Authorization. harassment incidental to SURTASS LFA an unmitigable adverse impact on the sonar activities. Please see availability of the species or stock(s) for SUMMARY: NMFS, upon request from the ‘‘Background’’ below for definitions of taking for subsistence uses (where U.S. Navy (Navy) issues these harassment. This final rule establishes a relevant). Further, NMFS must prescribe regulations pursuant to the Marine framework under the authority of the the permissible methods of taking and Mammal Protection Act (MMPA) to MMPA (16 U.S.C. 1361 et seq.) to allow other means of effecting the least govern the taking of marine mammals for the authorization of take of marine practicable adverse impact on the incidental to the use of Surveillance mammals incidental to the Navy’s affected species or stocks and their Towed Array Sensor System Low specified activities. habitat, paying particular attention to Frequency Active (SURTASS LFA) Legal Authority for the Final Action rookeries, mating grounds, and areas of sonar systems onboard U.S. Navy similar significance, and on the surveillance ships for training and Section 101(a)(5)(A) of the MMPA (16 availability of such species or stocks for testing activities conducted under the U.S.C. 1371(a)(5)(A)) generally directs taking for certain subsistence uses authority of the Secretary of the Navy in the Secretary of Commerce to allow, (referred to in shorthand as the western and central North Pacific upon request, the incidental, but not ‘‘mitigation’’), and requirements Ocean and eastern Indian Ocean intentional taking of small numbers of pertaining to the monitoring and (SURTASS LFA sonar activities) marine mammals by U.S. citizens who reporting of such takings. beginning August 2019. These engage in a specified activity (other than The 2004 NDAA (Pub. L. 108–136) regulations, which allow for the commercial fishing) within a specified removed the ‘‘small numbers’’ and issuance of a Letter of Authorization geographical region for up to five years ‘‘specified geographical region’’ (LOA) for the incidental take of marine if, after notice and public comment, the limitations indicated above and mammals during the described activities agency makes certain findings and amended the definition of ‘‘harassment’’ and timeframes, prescribe the issues regulations that set forth as it applies to a ‘‘military readiness permissible methods of taking and other permissible methods of taking and other activity’’ to read as follows (Section means of effecting the least practicable means of effecting the least practicable 3(18)(B) of the MMPA): (i) Any act that adverse impact on marine mammal adverse impact (LPAI) on the affected injures or has the significant potential to species or stocks and their habitat, and species or stocks and their habitat, as injure a marine mammal or marine establish requirements pertaining to the well as monitoring and reporting mammal stock in the wild (Level A monitoring and reporting of such taking. requirements. Section 101(a)(5)(A) of Harassment); or (ii) Any act that DATES: Effective on August 12, 2019, the MMPA and the implementing disturbs or is likely to disturb a marine through August 11, 2026. regulations at 50 CFR part 216, subpart mammal or marine mammal stock in the ADDRESSES: A copy of the Navy’s I provide the legal basis for issuing this wild by causing disruption of natural application and supporting documents, final rule and any associated LOAs. As behavioral patterns, including, but not as well as a list of the references cited described in the Background section, limited to, migration, surfacing, nursing, in this document, may be obtained the MMPA has been amended in a breeding, feeding, or sheltering, to a online at: www.fisheries.noaa.gov/ number of ways when the specified point where such behavioral patterns national/marine-mammal-protection/ activity is a military readiness activity, are abandoned or significantly altered incidental-take-authorizations-military- including most recently in 2018 to (Level B Harassment). In addition, the readiness-activities. In case of problems extend the maximum authorization FY 2004 NDAA amended the MMPA as accessing these documents, please call period under section 101(a)(5)(A) from it relates to military readiness activities the contact listed below (see FOR five to seven years for Department of and the incidental take authorization FURTHER INFORMATION CONTACT). Defense military readiness activities. As (ITA) process such that ‘‘least FOR FURTHER INFORMATION CONTACT: directed by this legal authority, this practicable adverse impact’’ shall Wendy Piniak, Office of Protected final rule contains mitigation, include consideration of personnel Resources, NMFS, (301) 427–8401. monitoring, and reporting requirements. safety, practicality of implementation,

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and impact on the effectiveness of the defined above. The Navy requests 2017, the Deputy Secretary of Defense, military readiness activity. As authorization to take, by Level B after conferring with the Secretary of mentioned above, the NDAA for FY Harassment, individuals from 139 Commerce, determined that it was 2019 amended the MMPA to extend the stocks of 46 species of marine mammals necessary for the national defense to period of permitted incidental takings of (10 species of mysticete (baleen) whales, exempt all military readiness activities marine mammals covered by section 31 species of odontocete (toothed) that use SURTASS LFA sonar from 101(a)(5)(A) in the course of specified whales, and 5 species of pinnipeds compliance with the requirements of the military readiness activities from five to (seals and sea lions)). This rule also MMPA for a period of up to two years seven years. covers the authorization of take of beginning August 13, 2017, through The authorization of incidental taking animals from additional associated August 12, 2019, or until such time under section 101(a)(5)(A) requires stocks of marine mammals not listed when NMFS issues regulations and an promulgation of activity-specific here, should one or more of the stocks LOA under MMPA section 101(a)(5)(A) regulations following notice and identified in this rule be formally for military readiness activities opportunity for public comment. Under separated into multiple stocks, provided associated with the use of SURTASS NMFS’ implementing regulations for NMFS is able to confirm the necessary LFA sonar, whichever is earlier. During section 101(a)(5)(A), a Letter of findings for the newly identified stocks. the period of the National Defense Authorization (LOA) also is required to As discussed later in this document, Exemption (NDE) (available at http:// conduct activities pursuant to any incidental takes due to SURTASS LFA www.surtass-lfa-eis.com/wp-content/ activity-specific regulations (50 CFR sonar will be limited to Level B uploads/2018/01/SURTASS_LFA_NDE_ 216.106). harassment. No takes by Level A 10Aug17.pdf), all military readiness Summary of Request harassment are authorized, as Level A activities that involve the use of harassment is considered unlikely and SURTASS LFA sonar were required to On June 4, 2018, NMFS received a will be avoided through the comply with all mitigation, monitoring, request from the Navy for authorization implementation of the Navy’s mitigation and reporting measures set forth in the to take, by Level B harassment, 46 measures, as discussed below. NDE for SURTASS LFA sonar, which species of marine mammals incidental In previous SURTASS LFA sonar were based on the measures included in to the use of SURTASS LFA sonar rulemakings, NMFS authorized some NMFS’ prior (2012) final rule (77 FR onboard U.S. Navy surveillance ships Level A harassment takes in an 50290; August 20, 2012) and 2017 for training and testing activities abundance of caution even though Level proposed rule (82 FR 19460; April 27, (categorized as military readiness A harassment takes were not 2017). As a result of the NDE, NMFS did activities) conducted under the anticipated. However, to the knowledge not finalize its April 2017 proposed authority of the Secretary of the Navy in of the Navy and NMFS, no Level A rule. the western and central North Pacific harassment takes have resulted over the The NDE expires August 12, 2019. For Ocean and eastern Indian Ocean 17-year history of SURTASS LFA sonar this rulemaking, the Navy will continue beginning in August 2019 and extending activities. Additionally, the exposure to use SURTASS LFA sonar systems to August 2026. On July 13, 2018, NMFS criteria and thresholds for assessing onboard United States Naval Ship published a notice of receipt (NOR) of Level A harassment have been modified (USNS) surveillance ships for training the Navy’s application in the Federal since prior rules based on the best and testing activities conducted under Register (83 FR 32615), and requested available science. Under these new the authority of the Secretary of the comments and information related to metrics, the zone for potential injury is Navy within the western and central the Navy’s request. The review and substantially reduced. Therefore, due to North Pacific Ocean and eastern Indian comment period for the NOR ended on the small injury zones and the fact that Ocean. The operating features of the August 13, 2018. The Navy submitted a mitigation measures would ensure that LFA sonar will remain, and have revised application on November 13, marine mammals would not be exposed remained the same since the 2001 2018, that included a minor change to to received levels associated with SURTASS LFA FOEIS/EIS. The typical the mitigation measures provided in the injury, the Navy has not requested duty cycle of LFA sonar, based on June 2018 application. On March 1, authorization for Level A harassment historical SURTASS LFA sonar use, is 2019, NMFS published a notice of takes, and NMFS is not authorizing any 7.5 to 10 percent (DoN, 2007). The proposed rulemaking in the Federal takes by Level A harassment. maximum duty cycle remains the same Register (84 FR 7186), and requested NMFS published the first incidental at 20 percent. comments and information related to take rule for SURTASS LFA sonar, For this rulemaking, the Navy scoped the Navy’s request. The review and effective from August 2002 through the geographic extent of the area where comment period for the proposed rule August 2007, on July 16, 2002 (67 FR the specified activity will occur (Study ended on April 1, 2019. One comment 46712); the second rule, effective from Area) to better reflect the areas where received during the NOR comment August 2007 through August 2012, on the Navy anticipates conducting period was addressed in the Proposed August 21, 2007 (72 FR 46846); and the SURTASS LFA sonar training and Rule, and comments received during the third rule, effective from August 2012 testing activities. Whereas the previous proposed rulemaking comment period through August 2017, on August 20, authorizations included certain routine are addressed in this final rule. See 2012 (77 FR 50290). military operations among the scope of further details addressing comments In 2016, the Navy submitted an actions analyzed, the Navy also has received in the Comments and application for a fourth incidental take narrowed the scope of activities in the Responses section. regulation under the MMPA (DoN, current request for authorization to The Navy states, and NMFS concurs, 2016) for the taking of marine mammals training and testing activities only, due that these SURTASS LFA sonar by harassment incidental to the to various statutory and practical activities, classified as military deployment of up to four SURTASS considerations, as described in Chapter readiness activities, may incidentally LFA sonar systems from August 15, 1 of the 2019 SURTASS LFA FSEIS/ take marine mammals by exposing them 2017, through August 14, 2022. NMFS SOEIS, and discussed further below. to SURTASS LFA sonar at levels that published a proposed rule on April 27, The Navy will transmit a total of up constitute Level B harassment as 2017 (82 FR 19460). On August 10, to 496 LFA sonar transmission hours

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per year for its specified activity, as Living Marine Resources (LMR) to echolocation used by some marine described below (see Description of the program. The LMR program weighs the mammals to locate prey and navigate. Specified Activities section), pooled various Navy research needs against SURTASS LFA sonar systems are long- across all SURTASS LFA sonar- each other through a needs and range sensors that operate in the low- equipped vessels in the first four years solicitation process. The Navy has frequency (LF) band (i.e., 100–500 Hertz of the authorization, with an increase in submitted a needs statement to the LMR (Hz)). Because LF sound travels in usage to a total of up to 592 LFA advisory committee to research future seawater for greater distances than transmission hours in years five through data collection that would supplement higher frequency sound, the SURTASS seven. understanding of how SURTASS LFA LFA sonar system meets the need for improved detection and tracking of Changes From the Proposed to the Final sonar may affect marine resources, new-generation submarines at a longer Rule including mysticetes and beaked whales. range and maximizes the opportunity Since the proposed rule, based on for U.S. armed forces to safely react to, public comment and additional Description of the Specified Activities and defend against, potential submarine analysis, NMFS and the Navy have Overview threats while remaining a safe distance agreed to additional mitigation and beyond a submarine’s effective weapons The Navy’s primary mission is to monitoring measures that are expected range. Thus, the active acoustic organize, train, and equip combat-ready to reduce the likelihood and/or severity component in the SURTASS LFA sonar naval forces capable of accomplishing of adverse impacts on marine mammal is an important augmentation to the American strategic objectives, deterring species/stocks and their habitat and are Navy’s passive and tactical systems, as maritime aggression, and assuring practicable for implementation. its long-range detection capabilities can • freedom of navigation in ocean areas. In the proposed rule we presented effectively counter the threat to the 25 marine areas for further This mission is mandated by Federal Navy and national security interests consideration as marine mammal law in Section 8062 of Title 10 of the posed by quiet, diesel submarines. Offshore Biologically Important Areas United States Code, which directs the The Navy’s specified activities for (OBIAs) for SURTASS LFA sonar. After Secretary of the Navy to ensure the MMPA incidental take coverage is to considering public comments and readiness of the U.S. naval forces. continue employment of SURTASS LFA conducting additional analyses, 33 The Secretary of the Navy and the sonar systems onboard USNS marine areas were assessed as potential Chief of Navy Operations (CNO) have surveillance ships for training and OBIAs. Of these 33 marine areas, 17 established that anti-submarine warfare testing activities conducted under the were determined to qualify as OBIAs. (ASW) is a critical capability for authority of the Secretary of the Navy in All 17 of the areas were found to be achieving the Navy’s mission, and it the western and central Pacific Ocean practicable and were designated as 14 requires unfettered access to both the and eastern Indian Ocean, which is OBIAs (some OBIAs encompass several high seas and littoral environments to classified as a military readiness marine areas). All four of the OBIAs be prepared for all potential threats by activity, beginning August 13, 2019. The previously designated in the SURTASS maintaining ASW core competency. The use of the SURTASS LFA sonar system LFA sonar Study Area have been Navy is challenged by the increased will result in acoustic stimuli from the expanded spatially. difficulty in locating undersea threats generation of sound or pressure waves • The Navy will use no more than 25 solely by using passive acoustic in the water at or above levels that percent of the authorized amount technologies due to the advancement NMFS has determined would result in (transmission hours) of SURTASS LFA and use of quieting technologies in take of marine mammals under the sonar for training and testing within 10 diesel-electric and nuclear submarines. MMPA. This is the principal means of nautical miles (nmi) (18.5 kilometers At the same time, as the distance at marine mammal taking associated with (km)) of any single OBIA during any which submarine threats can be these military readiness activities. In year (no more than 124 hours in years detected decreases due to quieting addition to the use of active acoustic 1–4 and 148 hours in years 5–7) unless technologies, improvements in torpedo sources, the Navy’s activities include the following conditions are met: and missile design have extended the the movement of vessels. This final rule Should national security present a effective range of these weapons. also analyzes the potential effects of this requirement to conduct more than 25 One of the ways the Navy has aspect of the activities. NMFS does not percent of authorized hours of addressed the changing requirements for anticipate takes of marine mammals to SURTASS LFA sonar within 10 nmi ASW readiness was to develop result from ship strikes from any (18.5 km) of any single OBIA during any SURTASS LFA sonar, which is able to SURTASS LFA vessels because each year, naval units will obtain permission reliably detect quieter and harder-to- vessel moves at a relatively slow speed from the appropriate designated find submarines at long range before (10 to 12 knots (kt) while transiting), Command authority prior to these vessels can get within their especially when towing the SURTASS commencement of the activity. The effective weapons range to launch and LFA sonar systems (moving at 3 to Navy will provide NMFS with against their targets. SURTASS LFA 4 kt), and for a relatively short period notification as soon as is practicable and sonar systems have a passive of time. Combined with the use of include the information (e.g., sonar component (SURTASS), which is a mitigation measures as noted below, it hours) in its annual activity reports towed line array of hydrophones used to is likely that surveillance vessels will be submitted to NMFS. detect sound emitted or reflected from able to avoid any marine mammals. • The Navy has agreed to evaluate the submerged targets, and an active The Navy will restrict SURTASS LFA feasibility and appropriate methods to component (LFA), which is comprised sonar training and testing activities to collect new data to supplement the data of a set of acoustic transmitting the central and western North Pacific available on behavioral responses of elements. The active component detects Ocean and eastern Indian Ocean. The marine mammals to SURTASS LFA objects by creating a sound pulse, or Navy will not conduct training or sonar using newer methods and ‘‘ping’’ that is transmitted through the testing utilizing SURTASS LFA sonar technologies. These types of scientific water and reflects off the target, within the foreign territorial seas of inquiries fit within the scope the Navy’s returning in the form of an echo similar other nations and will maintain

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SURTASS LFA sonar received levels determine if supplementary analysis operating profile described above; below 180 decibels (dB) re: 1 mPa (root- would be required to cover the therefore, the number of hours mean-square (rms)) within 12 nmi (22 deployment of these new systems. As designated for each activity represents km) of any emerged land features or the new vessels and sonar system an estimate for planning purposes. components are developed and within 1 km of the seaward boundaries As noted above, this rulemaking of designated Offshore Biologically constructed, at-sea testing would would result in the fourth such Important Areas (OBIAs) during their eventually be necessary. The Navy regulation for the Navy’s SURTASS LFA effective periods (see Mitigation section anticipates that new vessels, or new/ below for OBIA details). In addition to updated sonar system components, sonar activities. The Navy is currently these geographic mitigation measures, would be ready for at-sea testing conducting the specified activities the Navy will implement procedural beginning in the fifth year of the time under an NDE that will expire on mitigation measures, including period covered by this final rule. August 12, 2019. Therefore, the Navy monitoring for the presence of marine Thus, the Navy’s activity analysis requested MMPA rulemaking and an mammals (including visual as well as included consideration of the sonar LOA for SURTASS LFA sonar training active and passive acoustic monitoring) hours associated with future testing of and testing activities effective beginning and implementing shutdown new or updated LFA sonar system August 13, 2019, to take marine procedures for marine mammals within components and new ocean surveillance mammals incidental to the SURTASS a mitigation zone around the LFA sonar vessels. This consideration resulted in LFA sonar activities for a seven year source (see Mitigation and Monitoring two scenarios of annual sonar transmit period. sections below for further details). hours: Years 1 to 4 will entail up to 496 hours total per year across all SURTASS SURTASS LFA Sonar Training and Dates and Duration LFA sonar vessels, while years 5 to 7 Testing Areas The specified activities may occur at will include an increase in LFA sonar transmit hours up to 592 hours across The geographic area of the SURTASS any time during the seven-year period of LFA sonar activities covered by these validity of the regulations (August 13, all vessels. The SURTASS LFA sonar regulations includes the western and 2019, through August 12, 2026). The central North Pacific Ocean and eastern Navy currently conducts SURTASS LFA transmission hours represent a Indian Ocean outside of the territorial sonar activities from four vessels. The distribution across six activities that seas of foreign nations (generally 12 nmi Navy is planning to add new vessels to include (with an approximate allocation of hours indicated): (22 km) from most foreign nations). its ocean surveillance fleet. As new • vessels are developed, the onboard LFA Contractor crew proficiency Figure 1 depicts the areas of SURTASS training (80 hours per year); and High Frequency Marine Mammal LFA sonar activities. In areas within 12 • Military crew (MILCREW) Monitoring sonar (HF/M3 sonar) nmi from any emergent land (coastal proficiency training (96 hours per year); exclusion areas) and in areas identified systems (discussed below) may need to • Participation in or support of naval as OBIAs, SURTASS LFA sonar training be updated, modified, or even re- exercises (96 hours per year); designed. Current indications are that • and testing would be conducted such Vessel and equipment maintenance that received levels of LFA sonar are future LFA sonar systems will have the (64 hours per year); m same operational characteristics and • Acoustic research testing (160 hours below 180 dB re: 1 Pa rms sound that updates and modifications are per year); and pressure level (SPL). This restriction focused toward miniaturizing the • New SURTASS LFA sonar system will be observed year-round for coastal system components to reduce the testing (96 hours per year; will occur in standoff zones and during known weight and handling of the systems. If years 5 to 7). periods of biological importance for system parameters are modified as a Each of these activities utilizes the OBIAs. result of these updates the Navy will SURTASS LFA sonar system within the BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C where the Navy anticipates conducting (shown in Figure 1 and listed in Table For this rulemaking, the Navy scoped SURTASS LFA sonar training and 1), with nominal modeling sites in each the geographic extent of its specified testing activities now through 2026. region, provide geographic context for activities to better reflect the areas Fifteen representative model areas the SURTASS LFA sonar activities.

TABLE 1—REPRESENTATIVE SURTASS LFA SONAR MODELING AREAS THAT THE NAVY MODELED FOR THE 2019 SURTASS LFA FSEIS/SOEIS AND THE NAVY’S MMPA RULEMAKING/LOA APPLICATION

Location (latitude/longitude of Modeled site center of modeling area) Notes

East of Japan ...... 38° N, 148° E. North Philippine Sea ...... 29° N, 136° E. West Philippine Sea ...... 22° N, 124° E. Offshore Guam ...... 11° N, 145° E ...... Navy Mariana Islands Testing and Training Area. Sea of Japan ...... 39° N, 132° E. East China Sea ...... 26° N, 125° E. South China Sea ...... 14° N, 114° E. Offshore Japan 25° to 40° N ...... 30° N, 165° E. Offshore Japan 10° to 25° N ...... 15° N, 165° E. Hawaii North ...... 25° N, 158° W ...... Navy Hawaii-Southern California Training and Testing Area. Hawaii South ...... 19.5° N, 158.5° W ...... Navy Hawaii-Southern California Training and Testing Area. Offshore Sri Lanka ...... 5° N, 85° E. Andaman Sea ...... 7.5° N, 96° E. Northwest of Australia ...... 18° S, 110° E. Northeast of Japan ...... 52° N, 163° E.

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Detailed Description of the Specified an area of one square meter (m2). The band (also between 100 and 500 Hz) Activities commonly used reference pressure level with the same duty cycle as described SURTASS LFA Sonar—SONAR is an in underwater acoustics is 1 mPa at 1 m, for LFA sonar. Similar to the active acronym for Sound Navigation and and the units for source level are component of the LFA sonar system, the Ranging, and its definition includes any decibels (dB) re: 1 mPa at 1 m). Because source level of an individual projector system (biological or mechanical) that of the physics involved in acoustic in the CLFA sonar array is uses underwater sound, or acoustics, for beamforming (i.e., a method of mapping approximately 215 dB re: 1 mPa or less. For the analysis in this rulemaking, detection, monitoring, and/or noise sources by differentiating sound NMFS will use the term LFA to refer to communications. Active sonar is the levels based upon the direction from both the LFA sonar system and/or the transmission of sound energy for the which they originate) and sound CLFA sonar system, unless otherwise purpose of sensing the environment by transmission loss processes, the SURTASS LFA sonar array cannot have specified. interpreting features of received signals. SURTASS Passive Component—The Active sonar detects objects by creating a sound pressure level (SPL) higher than the SPL of an individual projector. passive component of the SURTASS a sound pulse, or ‘‘ping’’ that is The SURTASS LFA sonar acoustic LFA sonar system consists of a transmitted through the water and transmission is an omnidirectional SURTASS Twin-line (TL–29A) reflects off the target, returning in the beam (a full 360 degrees (°)) in the horizontal line array mounted with form of an echo. Passive sonar detects horizontal plane. The LFA sonar system hydrophones. The Y-shaped array is the transmission of sound waves created also has a narrow vertical beam that the 1,000 ft (305 m) in length and has an by an object. vessel’s crew can steer above or below operational depth of 500 to 1,500 ft As mentioned previously, the the horizontal plane. The typical (152.4 to 457.2 m). SURTASS LFA sonar system is a long- SURTASS LFA sonar signal is not a High-Frequency Marine Mammal range, all-weather LF sonar (operating constant tone, but rather is a Monitoring Active Sonar (HF/M3)— between 100 and 500 Hertz (Hz)) system transmission of various signal types that Although technically not part of the that has both active and passive vary in frequency and duration SURTASS LFA sonar system, the Navy components. LFA, the active system (including continuous wave (CW) and will also use a high-frequency sonar component (which allows for the frequency-modulated (FM) signals). A system, called the HF/M3 sonar, to detection of an object that is not complete sequence of sound detect and locate marine mammals generating noise), is comprised of transmissions, also referred to by the within the SURTASS LFA sonar source elements (called projectors) Navy as a ‘‘ping’’ or a wavetrain, can be mitigation zone, as described in the suspended vertically on a cable beneath as short as six seconds (sec) or last as Mitigation and Monitoring sections. This the surveillance vessel. The projectors long as 100 sec, with an average length enhanced commercial fish-finding produce an active sound pulse by of 60 sec. Within each ping, the sonar, mounted at the top of the converting electrical energy to duration of any continuous frequency SURTASS LFA sonar vertical line array, mechanical energy by setting up sound transmission is no longer than 10 has a source level of 220 dB re: 1 mPa vibrations or pressure disturbances seconds and the time between pings is at 1 m with a frequency range of 30 to within the water to produce a ping. The typically from six to 15 minutes (min). 40 kilohertz (kHz). The duty cycle is Navy uses LFA as an augmentation to Based on the Navy’s historical operating variable, but is normally below three to the passive SURTASS operations when parameters, the average duty cycle (i.e., four percent and the maximum pulse passive system performance is the ratio of sound ‘‘on’’ time to total duration is 40 milliseconds (ms). The inadequate. SURTASS, the passive part time) for LFA sonar is normally 7.5 to HF/M3 sonar has four transducers with of the system, uses hydrophones (i.e., 10 percent and will not exceed a 8 degrees horizontal and 10 degrees underwater microphones) to detect maximum duty cycle of 20 percent. vertical beamwidths, which sweep a full sound emitted or reflected from Compact LFA Active Component—In 360 degrees in the horizontal plane submerged targets, such as submarines. addition to the LFA sonar system every 45 to 60 sec with a maximum The SURTASS hydrophones are currently deployed on the USNS range of approximately 1.2 mi (2 km). mounted on a horizontal line array that IMPECCABLE, the Navy developed a Vessel Specifications—The Navy is towed behind the surveillance vessel. compact LFA (CLFA) sonar system, currently deploys SURTASS LFA sonar The Navy processes and evaluates the which is now deployed on its three on four twin-hulled ocean surveillance returning signals or echoes, which are smaller surveillance vessels (i.e., the vessels that are 235 to 282 feet (ft) (72 usually below background or ambient USNS ABLE, EFFECTIVE, and to 86 m) in length, with twin-shafted sound level, to identify and classify VICTORIOUS). The operational diesel electric engines capable of potential underwater targets. characteristics of the active component providing 3,200 to 5,000 horsepower. LFA Active Component—The active for the CLFA sonar system are Each vessel has an observation area on component of the SURTASS LFA sonar comparable to the LFA sonar system the bridge that is more than 30 ft above system consists of up to 18 projectors and the potential impacts from the sea level from where lookouts will suspended beneath the surveillance CLFA sonar system will be similar to monitor for marine mammals whenever vessel in a vertical line array. The the effects from the LFA sonar system. SURTASS LFA sonar is transmitting. As SURTASS LFA sonar projectors The CLFA sonar system consists of stated previously, the Navy may transmit in the low-frequency band smaller projectors that weigh 142,000 develop and field additional SURTASS (between 100 and 500 Hz). The source lbs (64,410 kilograms (kg)), which is LFA equipped vessels, either to replace level of an individual projector in the 182,000 lbs (82,554 kg) less than the or complement the Navy’s current SURTASS LFA sonar array is weight of the LFA projectors on the SURTASS LFA capable fleet, and these approximately 215 dB re: 1 mPa at 1 m USNS IMPECCABLE. The CLFA sonar vessels may be in use beginning in the or less. Sound pressure is the sound system also consists of up to 18 fifth year of the time period covered by force per unit area and is usually projectors suspended beneath the this rulemaking. measured in micropascals (mPa), where surveillance vessel in a vertical line The operational speed of each vessel one Pascal (Pa) is the pressure resulting array, and the CLFA sonar system during sonar activities will be from a force of one newton exerted over projectors transmit in the low-frequency approximately 3.4 miles per hour (mph)

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(5.6 km per hour (km/hr); 3 kt) and each Impact Analysis the Offshore Sri Lanka, Andaman Sea, vessel’s cruising speed outside of sonar Northwestern Australia, and Northeast Density Estimates activities would be a maximum of of Japan (humpback whales only) approximately 11.5 to 14.9 mph (18.5 to Comment 1: The Marine Mammal modeling areas the specific data source 24.1 km/hr; 10 to 13 kt). During sonar Commission (hereafter ‘‘Commission’’) (e.g., Kaschner et al., 2006 or SMRU activities, the SURTASS LFA sonar expressed concerns regarding the Ltd., 2012) is also referenced. NMFS vessels will generally travel in straight density estimates used in Navy’s Global coordinated closely with the Navy in lines or in oval-shaped (i.e., racetrack) Marine Species Density Database the development of its incidental take patterns depending on the training or (Global NMSDD). The Commission and application, and agrees that the methods testing scenario. The Commission and Natural Resources the Navy has put forth described herein Defense Council (NRDC), The Humane to estimate densities are appropriate and Comments and Responses Society of the United States, and based on the best available science. Humane Society Legislative Fund Comment 2: The Commission and We published a notice of proposed (hereafter ‘‘NRDC et al.’’) recommended NRDC et al. recommended that NMFS rule in the Federal Register on March 1, that NMFS require the Navy to make specify whether and how uncertainty 2019 (84 FR 7186), with a 30-day available to the public the resulting was incorporated in abundance and comment period. During the 30-day products of the current version of the density estimates in the preamble to the comment period, we received eight total Global NMSDD, similar to the final rule and, if it was not, that NMFS comment letters. Of this total, one information provided in Department of require the Navy to incorporate submission was from another Federal the Navy (2017c), as soon as possible. measures of uncertainty inherent in the agency, one letter was from The Commission noted that they have underlying data (e.g., CV, standard organizations or individuals acting in an requested for several years that this deviations, standard errors) in those official capacity (e.g., non-governmental information be made available to the estimates and re-estimate the numbers organizations (NGOs)), and six public and are puzzled why neither the of takes accordingly in the final rule. submissions were from private citizens. Navy nor NMFS has provided it. The The Commission noted that for all of the NMFS has reviewed all public Commission asserted that without Navy’s Phase III activities since 2016, comments received on the proposed public access to such data, the process including for Hawaii-Southern rule and issuance of the LOA. All is not transparent and there is no basis California Training and Testing (HSTT), relevant comments and our responses to assert that either NMFS’ or the Navy’s the Navy has incorporated uncertainty are described below organized by major analyses are based on best available in the densities and the group size category. We provide no response to data. estimates that ultimately seed its animat specific comments that addressed Response: Currently, the NMSDD is modeling. It is unclear why the same species or statutes not relevant to our not publically available since approach was not taken for SURTASS proposed rule under section proprietary geospatial modeling data are LFA sonar, particularly since the action 101(a)(5)(A) of the MMPA (e.g., included in the database, for which the areas for HSTT and SURTASS LFA comments related to sea turtles). Navy has established proprietary data sonar overlap. sharing agreements. However, products Response: Information on uncertainty General Comments of the Navy’s database have been made (e.g., CV, standard deviations, standard available to the public, such as the U.S. The majority of the comments from errors, etc.) in species/stock population Navy Marine Species Density Database estimates for each modeling area is six private citizens expressed general Phase III for the Hawaii-Southern included when available in the 2019 opposition toward the Navy’s proposed California Training and Testing Study SURTASS LFA FSEIS/SOEIS (Chapter 3 training and testing activities, cited Area (DoN, 2017c). The citations for the and Appendix D). The population concern for marine mammals and the sighting surveys or other data upon estimates provided in the 2019 oceans, and requested that NMFS not which the densities were derived in the SURTASS LFA FSEIS/SOEIS (Chapter 3 issue the LOAs, but without providing NMSDD have been provided when and Appendix D) were used to model information relevant to NMFS’ appropriate, and information similar to estimated takes using the Acoustic decisions. NMFS appreciates the that presented in the U.S. Navy Marine Integration Model (AIM) (described in concerns expressed for marine life and Species Density Database Phase III for the Estimated Take of Marine Mammals resources. We reiterate that no mortality the Hawaii-Southern California Training section). The AIM is a Monte Carlo of marine mammals is anticipated, nor and Testing Study Area (DoN, 2017c) is based statistical model in which is any injury (Level A harassment) of provided in the 2019 SURTASS LFA multiple iterations of realistic marine mammals anticipated; therefore, FSEIS/SOEIS (Chapter 3 and Appendix predictions of acoustic source use as neither injuries nor mortality of marine D) for the 15 Representative Modeling well as animal distribution and mammals is authorized for the Areas in the SURTASS LFA sonar Study movement patterns (‘‘animats’’) are SURTASS LFA sonar activities. Area. Chapter 3, Section 3.4.3.3.3 conducted to provide statistical Moreover, the MMPA directs the describes the process and methods used predictions of estimated impacts from Secretary of Commerce (whose authority to derive marine mammal occurrence exposure to acoustic source has been delegated to NMFS) to allow, and population estimates (abundance transmissions. AIM does not include upon request, the incidental taking for and density) in the model areas. uncertainty in population estimates to a specified activity, provided that we Appendix D includes detailed predict estimated takes, however are able to make the required findings information on the available data and uncertainty in the horizontal and under section 101(a)(5)(A) and set forth abundance and density estimates by vertical movement patterns of marine regulations containing the required model area and species/stock and these mammals is incorporated through the prescriptions for mitigation, monitoring, references are also included in the Monte Carlo components of the AIM. At and reporting after notice and comment. marine mammal species, stocks (DPSs), each 30-sec timestep, the diving pattern, Therefore, these comments were not abundance, and density estimates by swim speed, and heading of each animat considered further. The remaining season summary table (Chapter 3, Table are re-sampled, resulting in movement comments are addressed below. 3–8). When the NMSDD is referenced in of each animat through the acoustic

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field. In the AIM, the modeled marine density models for data poor areas that review indicates that the proposed mammal animats were set to populate extrapolate cetacean densities beyond method is supportable. Here, the the simulation area with densities of surveyed regions. For example, the densities and modeling used reflect the 0.086, 0.17, or 0.34 animats/nmi2 (0.025, Navy and NMFS were reviewers of, and best available science and, further, 0.05, or 0.1 animats/km2). These used, the results of Mannocci et al. monitoring of SURTASS activities from densities are often higher than those (2017) in the U.S. Navy’s Atlantic Fleet the past 17 years of activities do not estimated in the marine environment (as Training and Testing (AFTT) Study suggest that these models have many species/stocks are rare in Area NEPA analysis and MMPA underestimated marine mammal modelled areas). This ‘‘over population’’ rulemaking. NMFS and the Navy will exposure. of the modeling environment ensures continue to discuss and examine the Comment 4: The Commission that the result of the simulation is not utility of these emerging models for recommended that, in the preamble to unduly influenced by the chance estimating densities of marine mammals the final rule, NMFS specify how placement of a few simulated marine in the SURTASS LFA sonar Study Area. density estimates were derived and mammals. To obtain final harassment It is possible that the sighting results what statistic (e.g., mean, median, estimates, the modeled results are from the IWC–POWER cruises could be maximum) was used when multiple normalized by the ratio of the modeled used to extrapolate density and sources are referenced in Tables 2–16 of animat density to the real-world marine abundance estimates throughout the the Federal Register notice and Table 3– mammal density estimate. This allows North Pacific in the future, using the 2 of the revised LOA application. Response: We have included the for greater statistical power without methods developed by Mannocci et al. density estimate and associated overestimating risk. Additional details (2015) that were applied to extrapolate on the methods used to calculate take reference or references for each species/ density estimates in the North Atlantic stock in each of the 15 Representative estimates are included in the Estimated (Mannocci et al., 2017). Cruise reports Take of Marine Mammals section. Modeling Areas in the SURTASS LFA through 2017 are available online, with sonar Study Area in Tables 2 through 16 NMFS considers these estimates cruises continuing for another few conservative as take estimates are based of this rule. Additional details on the years. When additional results are densities used for each species/stock in on the maximum potential impact to a available, NMFS and the Navy will species or stock across all model areas each modeling area are provided in the consider use of these methods to in which a SURTASS LFA sonar activity 2019 SURTASS LFA FSEIS/SOEIS extrapolate density and abundance may occur. Therefore, if an activity (Chapter 3, Table 3–8 and Appendix D). estimates that could inform mitigation occurs in a different model area than the In Chapter 3, Table 3–8 2019 SURTASS through Adaptive Management process, area where the maximum potential LFA FSEIS/SOEIS, multiple references or to inform analyses for future actions. impact was predicted, the actual are provided to reflect references used Lambert et al. (2014) used the simulated potential impact may be less than to support the population density distribution of micronekton from the estimated. Here, the densities and estimate and seasonality of occurrence. Spatial Ecosystem And Population modeling used reflect the best available In Tables 2–16 of this rule we have Dynamics Model (SEAPODYM) to science and, further, monitoring of included only the reference to the SURTASS activities from the past 17 predict the habitat of three cetacean density estimate. Appendix D of the years of activities do not suggest that guilds in tropical waters. While their 2019 SURTASS LFA FSEIS/SOEIS these models have underestimated results provide some interesting insights includes detailed descriptions and marine mammal exposure. into the use of predicted prey maps in references for each species/stock in each Comment 3: NRDC et al. cetacean distribution models, they are of the model areas that include how recommended that NMFS consider best used to prioritize future research each density estimate was derived. In alternative and potentially more areas. Corkeron et al. (2011) developed response to this comment the Navy has powerful modeling approaches that are statistical methods for using spatially also reviewed and revised the emerging to extrapolate cetacean autocorrelated sighting results to descriptions in Appendix D of the 2019 densities beyond surveyed regions identify the Dhofar coast of Oman as an SURTASS LFA FSEIS/SOEIS to increase (Corkeron et al., 2011; Lambert et al., important region for the Arabian Sea clarity. 2014; Mannocci et al., 2015) which are DPS of humpback whales. However, the Comment 5: With respect to estimated likely to be superior to the Kaschner et Dhofar coast of Oman is outside of the densities of cetaceans in Offshore Guam, al. (2006) model (and more consistent SURTASS LFA sonar Study Area and the Commission recommended that with the prior recommendations of Corkeren et al. state ‘‘Although it is NMFS use the densities stipulated in NMFS biologists) that the Navy has theoretically possible for us to project Department of the Navy (2018b) for blue relied on in the past. They model predictions into other areas, we whales, Bryde’s whales, fin whales, recommended that the Navy should consider this inadvisable, as our basic ginkgo-toothed beaked whales, and consult with NMFS experts on the design was not to make inference about Deraniyagala’s beaked whales rather utility of these models for estimating the distribution of humpback whales than the densities in Table 5 of the densities within the LFA Study Area. along the entire Oman coast.’’ Therefore, Federal Register notice and re-estimate They also recommended that NMFS though its statistical models could be the numbers of takes accordingly in the examine the data collected during the applied to sightings data within the final rule. International Whaling Commission’s SURTASS LFA Study Area, these Response: As recommended, we have Pacific Ocean Whale and Ecosystem humpback whale results are not revised the densities for blue whales, Research Programme (IWC–POWER) applicable. When considering how to Bryde’s whales, fin whales, ginkgo- 2010, 2013, 2014, 2015, and 2016 predict marine mammal densities across toothed beaked whales, and surveys with the view to developing large spatial scales using many varied Deraniyagala’s beaked whales to those improved marine mammal density datasets, there are often multiple presented in the U.S. Navy marine models for regions of the western and appropriate and effective ways that data species density database Phase III for central Pacific. can be modeled and extrapolated, and the Mariana Islands Training and Response: NMFS is aware of the NMFS does not prescribe any particular Testing Study Area (DoN, 2018b) and active area of research in developing model in these cases, as long as our have revised our estimated takes of

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these species/stocks in the Offshore (DoN, 2018), and pooled density delayed to avoid injurious exposure. Guam modeling area accordingly. estimates for species of the same genus Therefore, in incorporating mitigation, Comment 6: NRDC et al. if sufficient data were not available to AIM assumes no animats will be recommended that NMFS require the compute a density for individual exposed to SURTASS LFA sonar in the Navy to conduct baseline research in species or the species are difficult to LFA sonar mitigation zone. AIM records unsurveyed areas that it repeatedly distinguish at sea (e.g., Mesoplodon spp. the exposure history for each individual employs in LFA sonar operations, and Kogia spp.) to inform their analyses animat and the potential impact is prioritizing areas on the basis of in unsurveyed areas, which NMFS determined on an individual animal exposure frequency, environmental concurred represented the best available basis. The sound energy received by vulnerability, and research feasibility. science. each individual animat over the 24-hr Response: Per the Council on modeled period was calculated as sound Permanent Threshold Shift (PTS)/ Environmental Quality (CEQ) regulation exposure level (SEL) and the potential Temporary Threshold Shift (TTS) 40 CFR 1502.22, the Navy has indicated for that animal to experience PTS and Thresholds and Take Estimates plainly in the 2019 SURTASS LFA then TTS was considered using the FSEIS/SOEIS where data or information Comment 7: The Commission NMFS (2018) acoustic guidance are lacking to support Navy analyses recommended that NMFS (1) specify the thresholds. When mitigation is applied and how the Navy has resolved the numbers of model-estimated Level A in the modeling-analysis environment, issue of scarcity of data/information harassment (PTS) takes of marine estimations of PTS impacts were 0 for (i.e., surrogate data/information). The mammals in the absence of all marine mammal species in all model Navy is not required to conduct costly implementing mitigation measures and areas. baseline research, such as that any and all assumptions (including Therefore, the Navy did not request suggested, to obtain incomplete or within the animat modeling scenarios) and NMFS is not authorizing Level A unavailable data and information for that were made to reduce those takes to harassment take. As presented in the areas in which the Navy operates LFA zero in the preamble to the final rule Estimated Take of Marine Mammals sonar (CEQ Regulation 1502.22). and (2) authorize the model-estimated section, based on simple spherical Further, the ESA and MMPA only Level A harassment (PTS) takes rather spreading (i.e., transmission loss based require that a Federal agency consider than reducing them to zero in the final on 20 × log10 [range {m}]), all hearing the best available data, and do not rule. The Commission stated that groups except LF cetaceans would need require the agency generate the data specifics regarding the situations in to remain within 22 ft (7 m) for the itself. However, as noted in this rule, the which those takes were estimated to entire duration (60 sec) of an LFA sonar Navy does fund ongoing research and occur (i.e., distances to the source and ping to potentially experience PTS. LF conservation related to marine timeframe over which the exposure cetaceans would need to remain at the mammals. The Navy sponsors a occurred) should be delineated in the greatest distance from the transmitting significant portion of the U.S. research preamble to the final rule as well. LFA sonar, 135 ft (41 m) before on the effects of human-generated sound Response: The Navy quantitatively experiencing the onset of PTS. This on marine mammals (between assessed the potential for PTS and TTS distance is well within the LFA sonar approximately 25 to 30 million dollars resulting from exposure to SURTASS mitigation zone and a distance where per year on marine mammal research LFA sonar transmissions using NMFS’ visual, passive, and acoustic monitoring from the Navy’s three main programs: 2018 Acoustic Technical Guidance for can reliably detect small and large Office of Naval Research, Living Marine estimating impacts of PTS and TTS marine mammals 100 percent of the Resources Program, and the Fleet/ using AIM. In AIM the potential for PTS time and transmission can shut down SYSCOM monitoring programs), which is considered within the context of the before any injury can occur. NMFS has is crucial to the overall knowledge base mitigation and monitoring efforts that determined that the suite of mitigation on the potential for effects from would occur whenever SURTASS LFA monitoring efforts is highly effective at underwater anthropogenic noise on sonar is transmitting. Mitigation detecting marine mammals and marine mammals (82 FR 19460, 19516; monitoring is designed to detect marine avoiding Level A take and notes that April 27, 2017). See Office of Naval mammals before they are exposed to a there have been no reported or known Research (https://www.onr.navy.mil/) received level of 180 dB re: 1 mPa SPL. incidents of Level A harassment of any and Navy Living Marine Resources The probability of detection of a marine marine mammal in 17 years of program (https:// mammal by the HF/M3 system alone SURTASS LFA sonar activities. navysustainability.dodlive.mil/ within the LFA sonar mitigation zone Therefore, NMFS has determined that environment/lmr/) for examples of Navy approaches 100 percent over the course authorizing Level A harassment take is support research. The Navy also of multiple pings (see the 2001 not warranted. sponsors research to determine marine SURTASS LFA FOEIS/EIS, Subchapters Comment 8: The Commission mammal abundances and densities for 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar recommended that NMFS explain why all Navy ranges and other operational testing results as well as section 5.4.3 of TTS takes are greater than behavior areas (see Marine Species Monitoring the 2019 SURTASS LFA FSEIS/SOEIS takes for some species of mysticetes, or Program: https://www. for a summary of the effectiveness of the stocks of mysticetes within the same navymarinespeciesmonitoring.us/). As HF/M3 system). As described in the species, in the preamble to the final described in the Description of Marine Estimated Take of Marine Mammals rule. Mammals in the Area of the Specified section, with the implementation of the Response: The estimated Level B Activities section of the rule and three-part monitoring programs (visual, harassment takes presented in Chapter 4 Chapter 3 and Appendix D of the passive acoustic, and HF/M3 of the 2019 SURTASS LFA FSEIS/ SURTASS LFA FSEIS/SOEIS, the Navy monitoring, as discussed below), NMFS SOEIS are correct. Table 18 in this final used a combination of density estimates and the Navy do not expect that marine rule presents total Level B Harassment from a region with similar mammals would be injured by takes (including both behavioral oceanographic characteristics to that SURTASS LFA sonar because a marine disruption and TTS). In the vast model area, estimates derived from the mammal is likely to be detected and majority of mysticete species/stocks, Navy’s Marine Species Density Database active transmissions suspended or estimated takes by behavioral disruption

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are greater than estimated incidents of Response: The behavioral risk differently, are operated at different TTS; however, in a few cases the function is based on field measurements frequencies, and are only one predicted numbers of TTS are higher of behavioral responses of mysticetes component of any training activity — than the estimated takes by behavioral during the SURTASS LFA Sonar Low and for these reasons, the Navy and disruption. This is due to the way these Frequency Sound Scientific Research NMFS found it appropriate to apply the two impacts are assessed. The TTS Program (LFS SRP). SPE was developed thresholds and modeling utilized for the acoustic threshold level is based on by researchers in the LFS SRP to other active Navy sources. However, for cumulative SEL metric and a take account for received energy from all SURTASS, the results of the LFS SRP occurs when a marine mammal exposed LFA sonar transmissions that a modeled remain the best available data for the to sounds above the threshold level (a animal (‘‘animat’’) receives during a 24- purpose of predicting potential impacts step function where 0 is no take and 1 hr period of a SURTASS LFA sonar from exposure to SURTASS LFA sonar is a take for each individual). Behavioral mission. SPE was also designed to as they evaluated the behavioral response is calculated for each approximate the manner in which the responses of LF hearing specialists individual on a continuum from 0 to 1 effect of repeated exposures accumulate, conducting biologically important based on the marine mammals single as known from studies on humans behaviors to exposures of SURTASS ping equivalent (SPE) value. Therefore, (Kryter, 1985; Richardson et al., 1995; LFA sonar. NMFS and the Navy have many more marine mammals may be Ward, 1968). SPE accounts for the evaluated the science conducted with (and typically are) exposed at sound increased potential effect of repeated other sound sources (e.g., mid-frequency (SPE) levels with a very low risk for a exposures on animals by adding 5 x sonar, the European ‘‘low-frequency behavior response (less than 1). When log10 (number of pings) to each 1-dB active sonar’’ that operates at 1–2 and 6– these risk values are summed to received level (RL) increment (Kryter, 7 kHz) and no newer data change the calculate the estimated take due to 1985; Richardson et al., 1995; Ward, prediction of expected behavioral behavioral response, the result may be 1968). If an individual’s exposure responses. an estimate that is lower than the within a 24-hour period is dominated by Comment 10: The Commission estimate for TTS. In their response to a single loud pulse, the SPE will not be recommended that NMFS and the Navy comments in the SURTASS LFA FSEIS/ greater than the SPL (rms) of that single prioritize conducting a behavioral SOEIS, the Navy provides the following loud pulse. However, if there are two or response study (BRS) using updated example to illustrate: If the blue whale more pulses of the same amplitude, the BRS methods involving SURTASS LFA has a hypothetical population estimate calculated SPE will be greater than the sonar and mysticetes, other odontocetes of 10 individuals, one animal may SPL (rms) of a single pulse because the including sperm whales, and/or phocids experience TTS, five may have some SPE metric accounts for accumulation, under the monitoring requirements for percent risk of a behavioral response, and SPL does not. Therefore, the the final rule and ensure that the and four may not be impacted. calculated SPE is never lower than the behavior thresholds are able to be Estimating take, one animal is predicted SPL rms of the loudest pulse. updated accordingly before the next to experience TTS. The five animals in The SEL metric is used to determine rulemaking. the population have potential physiological effects (PTS and TTS) and Response: The Navy has agreed to behavioral response (risk values) of 0.5, the Navy’s rulemaking and LOA evaluate the feasibility and appropriate 0.2, 0.05, 0.04, and 0.01. When summed, application, as well as this final rule, methods to collect new data to this is 0.8 for the entire population. use the SEL metric to estimate these supplement the data available on Therefore, the risk of TTS (1 animal) is impacts as described in the NMFS’ 2018 behavioral responses of marine greater than the risk of behavioral Acoustic Technical Guidance. Research mammals to SURTASS LFA sonar using response (0.8 animal), but the number of indicates that behavioral responses are newer methods and technologies. These animals experiencing TTS (one) is less context specific and due to both types of scientific inquiries fit within than the number that have the potential received level and a suite of other the scope the Navy’s Living Marine to experience a behavioral response factors including behavioral context. All Resources (LMR) program. The LMR (five). other applicants use SPL thresholds for program weighs the various Navy assessing Level B harassment by research needs against each other Behavioral Harassment Thresholds and behavioral disruption, and the Navy through a needs and solicitation Take Estimates uses SPL based risk functions for all of process. The Navy has submitted a Comment 9: With respect to SPE as its other training and testing activities, needs statement to the LMR advisory the metric to estimate behavioral which utilize sound sources of shorter committee to research future data response, the Commission pulse lengths. Since SPE allows for a collection that would supplement recommended that NMFS use either (1) consideration of the duration of a signal understanding of how SURTASS LFA a metric (i.e., SPL or sound exposure and is always more conservative than sonar may affect marine resources, level (SEL)) and associated thresholds SPL rms values, it is equal to or more including mysticetes and beaked that are based on physics rather than conservative than an SPL based risk whales. SPE or (2) the behavioral response function and NMFS concurs with its use Comment 11: NRDC et al. noted that metrics and thresholds that the Navy with SURTASS LFA sonar. the proposed rule analysis relies currently uses for all other LF sonar Although the LFS SRP study is from entirely on the LFA Scientific Research sources based on Department of the the late 1990s, the source used was the Program (SRP) in establishing Navy (2017b) to estimate behavior takes most similar in source characteristics behavioral risk parameters for the for the final rule. NRDC et al. also stated and operating parameters to the SURTASS LFA system. They noted that that given the lack of any tenable SURTASS LFA sonar source, and most study took place twenty years ago and justification for maintaining an SPE closely matches the nature and context is inconsistent with more recent science approach, NMFS, and the Navy, should of the Navy’s current activity. on the behavioral response of marine use the more widely accepted, more Specifically, the multiple LF sources mammals to low-frequency underwater conservative SEL in determining the that may be used in the Navy’s major noise. They stated that reliance on the effect of multiple exposures on marine training exercises (such as AFTT and SRP to the exclusion of all other mammals. HSTT) include sources that are operated scientific literature on the impacts of

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low-frequency sound would be arbitrary applicable to the SURTASS LFA sonar even though exposure was at a lower RL and capricious. NRDC et al. noted that assessment and are aware of no basis to (88 to 110 dB re: 1 mPa), which the marine mammal science, including the invalidate the overall results of the SRP. authors noted was a novel sound source technology used to study behavioral As noted in the response to Comment that provided a compelling contextual response to underwater noise, has 10, the Navy will evaluate the feasibility probability for the observed effects. advanced significantly over the two and appropriate methods to collect new Gong et al. (2014) assessed the effects of decades since the SRP concluded. They data to supplement the data available on the OAWRS transmissions on calling stated that the tags used in the SRP were behavioral responses of marine rates on Georges Bank and determined Time-Depth Recorders, which, in mammals to SURTASS LFA sonar. constant vocalization rates of humpback rendering only depth profile, are Comment 12: NRDC et al. noted that whales, with a reduction occurring primitive by comparison with the Navy claims that the SRP remains before the OAWRS system began contemporary marine mammal tags, more relevant than the host of more transmitting. Risch et al. (2014) pointed which include accelerometers, recent investigations because it is the out that the results of Risch et al. (2012) magnetometers, and hydrophones. The only study of a tonal source operating at and Gong et al. (2014) are not newer tags provide far greater capacity frequencies below 500 Hz. The contradictory, but rather highlight the to track alterations in animal commenters noted that researchers in principal point of their original paper orientation, velocity, and noise the Stellwagen Bank National Marine that behavioral responses depend on production, and therefore to detect Sanctuary documented suppression in many contextual factors, including disruptions in marine mammal feeding humpback whale vocalization during range to source, RL above background and other behaviors. Additionally, they operations of an Ocean Acoustic noise level, novelty of signal, and noted that the SRP’s sample sizes were Waveguard Remote Sensing (OAWRS) differences in behavioral state. Further, small, focal species were limited, and system, a powerful low-frequency fish the authors did not state or imply that the LFA system was generally operated sensor operating at similar frequencies, the observed behaviors had long-term at less than full power. They noted that at distances of 200 km from the source effects on individual animals or new technologies and methods indicate (Risch et al. 2012). The Heard Island populations. The responses of whales to limitations of the Navy’s research. They Feasibility Test, which likewise the OAWRS system are consistent with cited studies that observed reductions in involved a tonal sound source operating the LFA behavioral response function, buzz rates in sperm whales and harbor below 500 Hz, reported complete as it estimates that behavioral changes porpoises that could not have been cessations in vocalizations of long- can occur at received levels lower than observed without newly available finned pilot whales and sperm whales 180 dB. Results from the Heard Island 2 technology (Miller et al., 2009; Pirotta et over a 4900 km area following Feasibility Test (Bowles et al., 1994) al., 2014). exposure (Bowles et al. 1994). They show that during the pre-experiment stated that these papers join a spate of baseline period, sperm whales were Response: As noted in the response to other studies documenting large-scale Comment 9, the data collected during detected 24 percent of the time and changes in baleen whale vocalizations short-finned pilot whales were detected the SURTASS LFA sonar LFS SRP and those of other species in response studies remain the best available data eight percent of the time. During night- to predominantly low-frequency time recordings during the baseline for predicting behavioral responses to anthropogenic noise (Nowacek et al., SURTASS LFA sonar. However, NMFS period, sperm whales were detected 2015) and that the best available science eight percent of the time and pilot and Navy also considered other relevant indicates that the Navy’s behavioral whales were detected zero percent of studies on the potential effects of LF response function for LFA, promulgated the time. Neither species was detected sound transmissions on marine by NMFS in the Proposed Rule, is non- during the low-frequency transmissions, mammals. None of these other studies conservative. contradict the conclusions of the LFS Response: We disagree that the LFA but both species were detected 36 h SRP (see the Potential Effects of the sonar behavioral response function is after transmissions ended. It is not Specified Activity on Marine Mammals non-conservative. Discussion of known whether sperm and pilot whales and their Habitat section in the additional studies on the behavioral were masked during the transmissions proposed rule and Chapter 4 of the 2019 responses of marine mammals to a or whether they ceased vocalizing. SURTASS LFA FSEIS/SOEIS for variety of sound sources are provided in Since sperm whales frequently become descriptions of studies). While we the Potential Effects of the Specified silent in the presence of anthropogenic acknowledge the age of the SURTASS Activity on Marine Mammals and their noise (Watkins and Schevill, 1975; sonar LFS SRP data, the age of these Habitat section in the proposed rule and Watkins et al., 1985), it is possible they data does not invalidate them, their Chapter 4 of the 2019 SURTASS LFA exhibited a behavioral response. contributions to science, nor the FSEIS/SOEIS. As discussed in the NMFS concurs with the use of the conclusions based upon those data. It is proposed rule, the potential for Navy’s behavioral response function true that the technology and techniques behavioral response to an anthropogenic and that it conservatively estimates available to gather marine animal data source is highly variable and context- Level B harassment takes. There is no have become increasingly diverse and specific. Also, as discussed in the indication that this method sophisticated over time and that LFS proposed rule, the recorded OAWRS underestimates take. While the entire SRP sample sizes were small. The produced a series of frequency- ensonified area cannot be monitored commenter points out the sorts of data modulated pulses and signal received (using visual or passive and active that may be gathered utilizing new levels. Risch et al. (2012) documented acoustic monitoring), marine mammal technologies and cites to the reduction in humpback whale observations during SURTASS LFA ‘‘limitations’’ of the SRP. NMFS vocalization concurrent with sonar activity and those predicted using acknowledges that newer methods may transmissions of the low-frequency annual activity level and location allow for additional data collection, OAWRS system at distances of 200 km indicate the Navy has never exceeded however, in the meanwhile, NMFS and (108 nmi) from the source. The OAWRS authorized take for SURTASS LFA the Navy have considered all of the source appears to have affected more sonar activities (with the first LOA for data, LFS SRP and otherwise, that are whales than Phase III of the LFS SRP, SURTASS LFA sonar activities

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beginning in August 2002). The applicable policies and interpretations separate the factors used to determine potential for behavioral response to an should be developed through a separate whether a potential impact on marine anthropogenic source is highly rulemaking (e.g., in amendments to 50 mammals or their habitat is adverse and dependent on context, including CFR 216.103 or 216.105) or policy whether possible mitigation measures characteristics of the sound signals and statement rather than in individual would be effective. their pattern of transmission, the incidental take authorizations and Response: The Commission environmental factors affecting sound recommended that NMFS pursue such a recommends NMFS consider applicable movement, and the behavioral state of rulemaking or publish a proposed factors in its least practicable adverse the animal during exposure. Further, policy for public review and comment. impact analysis in a specific manner. not every response of a marine mammal The Commission expressed concerns However, it did not provide any rises to the level of a take, and some of that some stakeholders may not be suggested criteria for determining its the responses cited by the commenter aware of or choose not to comment on recommended first step. would not necessarily do so (e.g., minor the proposed interpretation in this NMFS has clearly articulated the modifications in vocalizations of a context, because the particular agency’s interpretation of the LPAI duration shorter than exposure to the authorization may not otherwise be of standard and our evaluation framework signal). As previously noted, the interest to them (e.g., because the in the Mitigation section of this notice. SURTASS LFS SRP exposed LF activity is in a geographical location or Specifically, NMFS identified the specialist cetaceans engaged in concerns a type of activity not of adverse impacts that it is considering in biologically important behaviors to real- particular interest). the LPAI analysis and comprehensively world SURTASS LFA sonar Response: We appreciate the evaluated an extensive suite of measures transmissions; the SRP results remain Commission’s recommendation and that might be available to reduce those the best available science for assessing may consider the recommended impacts (some of which are adopted and potential impacts associated with approaches in the future. We note, some that are not) both in the context exposure to SURTASS LFA sonar. The however, that providing relevant of their expected ability to reduce SURTASS LFS SRP experiments explanations in a proposed incidental impacts to marine mammal species or exposed baleen whales to RLs ranging take rule is an effective and efficient stocks and their habitat, as well as their from 120 to about 155 dB re: 1 mPa rms way to provide information to the reader practicability (see Mitigation and SPL and detected only minor, short- and solicit focused input from the Negligible Impact Analysis and term behavioral responses. Short-term public, and ultimately affords the same Determination sections). In the behavioral responses do not necessarily opportunities for public comment as a Mitigation section, NMFS has explained constitute significant changes in stand-alone rulemaking would. NMFS in detail our interpretation of the least biologically important behaviors. The has provided similar explanations of the practicable adverse impact standard, the behavioral response function is also least practicable adverse impact rationale for our interpretation, and our conservative for non-LF specialists, as it standard in other recent section approach for implementing our was developed for species believed to be 101(a)(5)(A) rules, including: the final interpretation. The ability of a measure most sensitive to SURTASS LFA sonar. rules for U.S. Navy Training and Testing to reduce effects on marine mammals is Therefore, although the results of the Activities in the Atlantic Fleet Study entirely related to its ‘‘effectiveness’’ as risk function modeling are interpreted Area (83 FR 57076; November 14, 2018) a measure, whereas the effectiveness of such that they would constitute and the Hawaii-Southern California a measure is not connected to its practicability. NMFS’ interpretation of ‘‘significant disruptions to biologically Study Area (83 FR 66846; December 21, the LPAI standard is a reasonable important behaviors,’’ (i.e., causing 2018), as well as the proposed rule for interpretation that gives effect to the disruption of natural behavioral Geophysical Surveys Related to Oil and language in the statute and the patterns, including, but not limited to, Gas Activities in the Gulf of Mexico (83 underlying legislative intent. Congress migration, surfacing, nursing, breeding, FR 29212; June 22, 2018). Comment 14: The Commission stated intended the agencies administering feeding, or sheltering, to a point where that in its previous letters it section 101(a)(5)(A) to consider such patterns are abandoned or recommended that NMFS adopt a two- practicability when determining significantly altered) not all predicted step approach when applying the least appropriate mitigation, but we do not exposures would in fact rise to such a practicable adverse impact standard. believe the analysis must be conducted level, and the resulting risk function First, it should identify the criteria it in such a rigid sequential fashion. There modeling is conservative for all marine will use to determine whether adverse is a tension inherent in the phrase ‘‘least mammals. impacts on marine mammal species/ practicable adverse impact’’ in that Mitigation and Monitoring stocks or their habitat are anticipated. If ‘‘least [. . .] adverse impact’’ pulls in potential adverse impacts are identified, favor of one direction (i.e., expanding Least Practicable Adverse Impact the second step should be to determine mitigation) while ‘‘practicable’’ pulls in Determination whether measures designed to reduce favor of the other direction (i.e., limiting Comment 13: The Commission noted those impacts are available and mitigation), and weighing the relative that NMFS’ interpretation of the least practicable. The Commission expressed costs and benefits is, in our view, a practicable impact standard in various concern that, because NMFS’ criteria for more meaningful way to address and proposed rules has been an evolving applying the least practicable adverse resolve this tension. Contrary to the one, and it is unclear that any of those impact standard commingle elements Commission’s suggestion, there is no discussions, targeted to specific related to whether impacts are adverse formulaic way to do this. As we instances, should be considered to and whether potential mitigation explained in the discussion of the LPAI constitute a formal interpretation. measures are likely to be effective, standard above using a simple Rather, it is a shifting target that NMFS’ analysis is not as clear as it hypothetical example to illustrate the requires the Commission and other should be. The Commission therefore point, means of minimizing adverse stakeholders to comment repeatedly on recommended that NMFS rework its impacts at the species or stock level is the various permutations. The evaluation criteria for applying the least not a black and white proposition. Commission stated that such generally practicable adverse impact standard to Further, the standard is accomplished

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through mitigation imposed for changes with the MMPA ‘‘properly described a clear proposed process and individuals—yet the standard does not balance the equities associated with detailed set of factors that would be require that we minimize individual military readiness and maritime species used to identify OBIAs, both prior to the takes or impacts to the maximum extent protection’’). finalization of the rule, as well as practicable. Comment 15: The Commission stated adaptively throughout the course of the NMFS’ approach laid out in this that section 101(a)(5)(A)(i)(II)(aa) of the rule. Further, NMFS provided the rulemaking acknowledges that, even MMPA specifies that incidental take public with a carefully evaluated and when the negligible impact standard is regulations are to set forth permissible honed list (reduced from hundreds met, NMFS must still consider methods of taking pursuant to such considered, down to 25 presented) of mitigation under the LPAI standard. activity, and other means of effecting potential OBIAs that preliminarily met NMFS’ approach recognizes that the least practicable adverse impact on the biological criteria (in addition to the impacts to species or stocks of marine such species or stock and its habitat, four that were already established for mammals accrue through individuals paying particular attention to rookeries, the geographic areas included in the and, as such, allows for reducing mating grounds, and other areas of Study Area) to provide input on. NMFS impacts on individuals, but with a focus similar significance. The Commission systematically described these OBIA on measures designed to avoid or stated that in this case, NMFS has only candidates in the context of the OBIA minimize impacts on marine mammals identified in the most general sense the process and factors and indicated all of that are likely to increase the probability means it will use to effect the least the references from which the or severity of population level effects. practicable adverse impact—it will supporting information was obtained. The greater the likelihood that a identify and impose heightened The public was given adequate measure will contribute to reducing the protections in as yet unidentified information upon which to base input probability or severity of adverse OBIAs—and has provided no on this mitigation, as required by the impacts to a species or stock, the greater information to assess when and where APA. The fact that the practicability of the weight that measure is given when NMFS believes it would be practicable these areas for the Navy was not considered in combination with for the Navy to abide by those discussed in the proposed rule did not practicability to determine the exclusions. Only at the final rule stage prevent the public from providing appropriateness of a mitigation measure. would NMFS generate a list of the areas meaningful input on the information While the analysis we describe can be that meet the OBIA criteria, provide its and potential OBIAs presented. conducted for each measure, we read rationale for determining which areas the ‘‘means of effecting the LPAI’’ satisfy those criteria, and discuss Comment 16: The Commission noted standard as ultimately applying to the whether requiring the Navy to employ that the analysis provided in the totality of all required measures taken mitigation measures in and near those Federal Register notice seems to together. Accordingly, NMFS can take areas would be practicable. The conflate the species and habitat portions into account other measures that will be Commission stated that this approach is of the least practicable adverse impact implemented when considering the inconsistent with how NMFS has standard. NMFS discussed the benefit of additional measures. NMFS handled every previous rulemaking distinction between impacts on has weighed the relevant considerations involving the Navy’s activities, and individual marine mammals versus as explained in its fuller discussion of more importantly, is inconsistent with impacts on species and stocks in some LPAI. the requirements of the Administrative detail. However, that distinction is While the Ninth Circuit’s opinion in Procedure Act (APA), which requires irrelevant when considering adverse Pritzker (83 F.3d 1125 (9th Cir. 2016)) that NMFS give the public a meaningful impacts to important marine mammal did not directly address this question, opportunity to comment on what the habitat such as rookeries, mating the Court appeared to view NMFS’ agency is proposing. In this instance, grounds, and areas of similar conceptual approach of weighing the public is not being given a significance. All of these types of areas various considerations as an acceptable meaningful opportunity to comment on are important at the species or stock one. In response to our 2012 rule, where which OBIAs are appropriate to include level. Further, the Commission stated we described our approach as including in the final rule. Rather, commenters are that it believes all of the areas that meet ‘‘a careful balancing of the likely degree left to speculate on which OBIAs NMFS the OBIA designation criteria constitute to which the measure is expected to might select and to comment in a important habitat for purposes of minimize adverse impacts to marine vacuum as to whether those would be implementing section mammals with the likely effect of that practicable for the Navy to meet its 101(a)(5)(A)(i)(II)(aa) of the MMPA and measure on personnel safety, operational goals if some or all of the that mitigation measures to avoid or practicality of implementation, and OBIAs that meet the criteria are reduce adverse impacts to all of those impact on the effectiveness of military included in the final rule. The areas should be included in the final readiness activity,’’ the Court said ‘‘this Commission recommended that, in this rule unless such measures are not formulation makes sense so far as it is and other proposed rules, NMFS inform practicable. The Commission therefore stated,’’ Pritzker, 828 F.3d at 1135 the public what measures it is proposing recommended that, in the final rule, (emphasis added), though faulted NMFS to include in the final rule to satisfy the NMFS again require that the Navy for not meaningfully discussing how the requirements of section ensure that none of the areas designated measures it imposed would meet that 101(a)(5)(A)(i)(II)(aa) of the MMPA as OBIAs (or the 1 km buffer zones standard. The legislative history on the rather than leaving the public to around them) are subjected to SURTASS 2004 MMPA amendments for military speculate on all of the possibilities and LFA sonar received levels of 180 dB re readiness activities provides further the practicability of implementing them. 1 mPa or greater. Further, because the support, in that it shows Congress Response: NMFS disagrees with both proposed rule did not include any intended additional weighing for the Commission’s description of the information that indicates it would be military readiness impacts and placed lack of information that NMFS provided impracticable for the Navy to adhere to equal import on the military’s need to the public in the proposed rule and the such a limitation for any of the OBIAs conduct training activities. 2004 assertion that it was inconsistent with under consideration, the Commission U.S.C.C.A.N. at 1447 (stating that the the requirements of the APA. NMFS recommended that this mitigation

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measure apply to all areas the marine mammal food resources. Biological Importance to Cetaceans in Commission recommended be Accordingly, no additional mitigation Data-Poor Regions) guidelines to designated as OBIAs herein. If NMFS or for habitat beyond the geographic based establish OBIAs in data-poor regions. the Navy believes it would be measures identified to minimize NRDC et al. state that the proposed rule: impracticable to implement the impacts on the affected species or stocks ‘‘does so on the grounds [. . .] that identified measures in any of those while using/occurring in certain establishing OBIAs would not further areas, then NMFS should make that case preferred habitat (such as OBIAs), or the reduce fitness consequences (i.e., ‘the in a subsequent Federal Register notice coastal standoff range was warranted. potential for impacts on reproduction or and provide the public with an To the Commission’s last point, in survival’) in individual marine opportunity to comment on any consideration of input from the public mammals and thus would not reduce proposed exceptions before adopting and our final evaluation, NMFS the probability of population-level them. identified 17 areas (in the form of 14 harm. Id. at 7247. Yet this is an Response: NMFS disagrees with the OBIAs) as satisfying the necessary ostensibly higher bar than is articulated Commission’s assertion that NMFS biological and geographic qualifications by the agency in its section interpreting conflates the species and habitat for OBIA designation and the Navy the least practicable adverse impact portions of the LPAI standard. NMFS found that the implementation of all of standard, requiring actual reduction of recognizes the LPAI standard includes a these areas as OBIAs would be fitness impacts rather than reduced requirement to prescribe measures that practicable. Accordingly, all 14 OBIAs disruption of behavioral responses will effect the least practicable adverse are included in the final regulations. associated with fitness. Compare id. at impact on both the affected species or Comment 17: NRDC et al. expressed 7229 (listing factors having ‘greater stocks and their habitat. In our concern that NMFS, in its discussion of value’ for mitigation to include ‘limiting description of implementation of the the LPAI standard, has set forth an interruption of known feeding, standard, we state that reduction of interpretation that remains inconsistent breeding, mother/young, or resting habitat impacts is relevant, particularly with the plain language of the MMPA behaviors’). Putting aside the as it relates to rookeries, mating and with the Court’s ruling in Pritzker inconsistency with the statute, grounds, and areas of similar (83 F.3d 1125 (9th Cir. 2016)). NRDC et discussed above, our practical concern significance, and can include measures al. stated that the agency reserves its is that NMFS’ interpretation will be to reduce impacts of an activity on consideration of mitigation measures to used as a convenient legal defense—just known prey utilized in the area or those that ultimately ‘‘are likely to as it was in Pritzker—to prop up an reducing impacts on physical habitat. increase the probability or severity of insufficient analysis. NMFS should Our discussion of least practicable population-level effects’’ (84 FR 7228), ensure that it applies the ‘‘least adverse impact points out that because and that it appears to base this practicable adverse impact’’ standard in understanding on an imputation of habitat value is informed by marine a manner that reduces the impacts (e.g., population-level harm into the ‘‘least mammal presence and use, in some Level A and Level B harassment take) practicable adverse impact’’ standard, cases there may be overlap in measures that Congress intended to prohibit in and particularly into the standard’s for the species or stock and for use of adopting the MMPA.’’ habitat. Here we have identified time- reference to ‘‘such species or stock.’’ area restrictions based on a combination NRDC et al. stated that the Court in Response: NMFS’ interpretation and of factors that include higher densities NRDC v. Pritzker specifically rejected implementation of the LPAI standard is and observations of specific important this assumption when the agency not inconsistent with the statute or the behaviors of the animals themselves, but attempted to import it into the statute Pritzker decision, as described in the these also clearly reflect preferred via its existing regulations concerning Mitigation section of this rule (and not habitat. In addition to being delineated ‘‘negligible impact.’’ NRDC agreed with re-included here). We interpret the LPAI based on physical features that drive NMFS that the reduction of impacts to standard as having a species or stock- habitat function (e.g., bathymetric affected species or stocks ‘‘accrues level focus but believe the reduction of features, among others), the high through the application of mitigation impacts to those species or stocks densities and concentration of certain measures that limit impacts to accrues through the application of important behaviors (e.g., feeding) in individual animals’’ and, consistent mitigation measures that limit impacts these particular areas clearly indicates with this, ‘‘focuses on measures that are to individual animals. Accordingly, the presence of preferred habitat. Just designed to avoid or minimize impacts NMFS’ analysis focuses on measures because the OBIAs address both marine on individual marine mammals’’ that, in that are designed to avoid or minimize mammals and their habitat does not turn, ‘‘are likely to increase the risk of impacts on individual marine mammals mean that NMFS has conflated the two population-level effects’’ (citing to 84 that are likely to increase the probability pieces of the standard. The MMPA does FR 7228). They cite as an example that or severity of population-level effects. not specify that effects to habitat must the agency recognizes measures NMFS acknowledges that it is not a be mitigated in separate measures, and ‘‘limiting interruption of known feeding, mathematical formula; in evaluating a NMFS has clearly identified measures breeding, mother/young, or resting measure, consideration of its value and that provide for mitigation of impacts to behaviors’’ as having ‘‘greater value’’ for its practicability will necessarily both marine mammal ‘‘species or stocks mitigation. However, NRDC stated that involve exercise of the agency’s and their habitat,’’ as required by the NMFS’ formulation remains problematic professional judgment taking into statute. in practice. NRDC stated that in account the specified activity and other Further, this rulemaking evaluated the detaching itself from the MMPA’s ‘‘take contextual factors. NMFS’ rule fully effects of SURTASS LFA sonar activities provision,’’ it creates ‘‘vagueness that discusses its evaluation applying the on marine mammal habitat, specifically leaves the provision open to standard it sets forth. Moreover, there is including prey, and concluded that inconsistent, arbitrary application’’ and no inconsistency in the standard and marine mammal prey will not be that the proposed rule appears to the application in view of the full exposed to sustained duration and wander beyond the interpretation that discussion in this rule. The language intensity of sound levels that would NMFS sets down when it rejects the quoted in the comment cannot be result in significant adverse effects to White Paper (Identifying Areas of isolated from the context of the full

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discussion in the rule and then cited as be prudent. The Commission noted that that it roughly reflects the Navy’s proof of inconsistency. Specifically, to determination of effectiveness has been threshold for the onset of auditory support its assertion, NRDC points to based solely on what has been injury per NMFS guidance. NRDC et al. our rationale for not adopting the ‘‘observed’’ via the three monitoring stated that the 180 dB threshold fails to recommendations in the White Paper methods and some theoretical meaningfully protect marine mammals (discussed in detail in the Mitigation assumptions. True ‘‘effectiveness’’ from the behavioral impacts that the section). The comment mischaracterizes studies evaluate not only the animals agencies have repeatedly characterized our conclusions by suggesting our that are detected, but also those that are as the impacts of primary concern. They reasoning is based solely on the fact that missed. The Navy is conducting a noted that according to prior Navy the recommendations in the White lookout effectiveness study to assess the analysis, the 175–180 dB (rms) annulus Paper will not further reduce fitness effectiveness of visual monitoring. A has an average ‘‘take’’ risk of 91.5 consequences of individuals and thus similar study, including the assessment percent, the 170–175 dB (rms) annulus would not reduce population level of both passive and active acoustic a take risk of 80.5 percent, the 165–170 harm. This ignores the fuller discussion, monitoring, would provide a more dB (rms) annulus a risk of 61.5 percent, in which our assessment shows that the appropriate means than the Navy’s the 160–165 dB annulus a risk of 38.5 proposed mitigation would add little, if current approach for concluding that the percent (rms), the 155–160 dB annulus any, value for lowering the probability measures are 100 percent effective. a risk of 18 percent, and the 150–155 dB or severity of impacts to individual Response: The effectiveness of the annulus a risk on the order of 8–9 marine mammal fitness, but also that it HF/M3 sonar system to monitor and percent (see 2007 SEIS at 4–74). They is highly impracticable for the Navy. detect marine mammals has been stated that given the greater area Thus, the White Paper assessed. Details on this assessment and subsumed within the lower-decibel recommendations were not adopted the effectiveness of the HF/M3 system annuluses, the number of takes based on a straightforward application are provided in a technical report by occurring within even the 150 dB of the LPAI standard. Ellison and Stein (2001), the 2001 annulus can be high, despite the lower SURTASS LFA FOEIS/EIS (see relative risk. NRDC et al. stated that the Procedural Mitigation Effectiveness and subchapters 2.3.2.2 and 4.2.7.1 for the Recommendations geographic sound field operational HF/M3 sonar testing results), as well as constraints designed to eliminate LFA Comment 18: The Commission Chapter 4, Section 5.4.3 of the 2019 exposures out to at least 150 dB (rms) recommended that, in the final rule, SURTASS LFA FSEIS/SOEIS. The study are likely to be practicable for most, if NMFS require the Navy to (1) use a 30- qualitatively and quantitatively assessed not all, OBIAs, as the Navy already minute clearance time when a marine the HF/M3 system’s ability to detect avoids dive sites out to 145 dB (rms) mammal has not been observed to have marine mammals of various sizes with (DSEIS at 5–5), nominally requiring a left the mitigation zone, consistent with 170 hours of at-sea testing, including greater mitigation distance than a 150 other Navy activities and (2) conduct trials off the coast of San Diego with dB (rms) standoff would entail. They post-activity monitoring including trained bottlenose dolphins, as well as stated that the Navy’s broad claim of visual, passive acoustic, and active several developmental tests with impracticability for any mitigation acoustic monitoring for 30 rather than artificial targets (which allowed for threshold lower than 180 dB 15 minutes. examination of whether these methods Response: A 30-minute post exemplifies the non-rigorous potentially miss animals). The results rationalizing that the court in monitoring timeframe is more widely indicate a near 100 percent probability Conservation Council found used in other authorizations mainly due of detecting marine mammals before unconvincing and unsupportable under to the fact that marine mammal they enter the LFA mitigation zone. As the MMPA (See 97 F.Supp.3d at 1229– detections are largely reliant on visual noted by the commenter, the Navy 31). NRDC et al. stated that NMFS’ surveys and this time accounts for continues to assess the effectiveness of ‘‘practicability criterion’’ requires a site- marine mammals with longer-duration its mitigation measures. The results of specific discussion, with the Navy, of dives. In addition to visual and passive any new studies will be assessed any OBIA that the Navy initially acoustic monitoring, the HF/M3 (active through the Adaptive Management determines to be impracticable, to see if acoustic monitoring system) is used process. NMFS acknowledges the a modification of the OBIA can address with SURTASS LFA sonar activities. limitations associated with visual and Detection through active acoustics is passive acoustic monitoring, but the issue. They recommended that the typically not used with authorizations together with the near 100 percent Navy and NMFS presumptively adopt a for other activities. However, given the effectiveness of active acoustic 150 dB (rms) mitigation distance from near 100 percent effectiveness of the monitoring with the HF/M3 sonar each OBIA, except where geographically HF/M3 system with multiple pings (see system, NMFS has determined that specific, clearly stated operational needs response to Comment 7), in combination these mitigation monitoring measures make such a distance impracticable, in with the two other mitigation are highly effective. which case it should adopt the largest monitoring efforts (visual and passive Comment 20: NRDC et al. noted that practicable distance, to be determined acoustic monitoring), NMFS feels the proposed mitigation distance on a case-by-case basis according to the confident that any marine mammals resulting in sound pressure levels procedure set forth in the ‘‘practicability present in the mitigation zone would be within OBIAs and coastal exclusion criterion.’’ detected within the 15-minute zones not to exceed 180 dB re 1 mPa Response: After the development of timeframe. (rms) bears no relation to the Navy’s NMFS’ 2018 Acoustic Technical Comment 19: The Commission noted behavioral response function, even Guidance, NMFS and the Navy that it does not appear that the Navy has though the agencies have repeatedly reevaluated the use of 180 dB re: 1 mPa conducted a study to investigate the identified behavioral disruption as the rms as the basis for the LFA mitigation effectiveness of the suite of mitigation primary marine mammal impact of zone and concluded that 180 dB would measures currently being employed or concern from LFA sonar, or to any be retained as the mitigation basis (see proposed for SURTASS LFA sonar qualitative assessment of stress response the Mitigation section of this final rule activities and that such a study would or masking effects. NRDC et al. noted and Chapter 5, Section 5.2 of the 2019

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SURTASS LFA FSEIS/SOEIS for details B harassment) to LFA sonar of Technical Guidance was classified as a on this reevaluation). However, in individuals within OBIAs will be even Highly Influential Scientific Assessment consideration of updated PTS and TTS further limited, both in received level and, as such, underwent three thresholds, the 180 dB threshold for the and time. Specifically, the already independent peer reviews, at three OBIA and the coastal exclusion zone protective circumstances described for different stages in its development, boundaries is expected to preclude not OBIAs above will be in place up until including a follow-up to one of the peer only PTS at the outer perimeter of these an OBIA has been exposed to LFA sonar reviews, prior to its dissemination by areas, but also likely some instances of for 124–148 hours per year; beyond that NMFS. In addition, there were three TTS and more severe forms of Level B number of hours, the maximum separate public comment periods, harassment by behavioral disruption. received level an individual may be during which time we received and Moreover, the 180 dB threshold applies exposed to (when both the animal is at responded to similar comments on the at a distance 1 km from OBIA the edge and the vessel at its closest guidance (81 FR 51694; August 4, 2016), boundaries, further reducing exposure approach) would be substantially which we cross-reference here, and levels at the OBIA perimeters to reduced and, as described above, any more recent public and interagency approximately 174 dB. In addition, the marine mammals further within the review under Executive Order 13795. likelihood and severity of behavioral OBIA would be exposed to even lower This review process was scientifically harassment is further reduced within levels, and even lower when the vessel rigorous and ensured that the Guidance these important areas as maximum is not right at the edge. represents the best scientific data received levels in these areas are even Further, it is inappropriate to compare available. Furthermore, the recent peer- lower the farther an animal is from the the 145-dB zone around dive sites to the reviewed updated marine mammal perimeter and the farther the vessel is 180-dB zone around OBIAs, as they noise exposure criteria by Southall et al. from the edge. In other words, while an have different purposes and are subject (2019) provide identical PTS and TTS individual in the coastal exclusion zone to different requirements. Whereas the thresholds to those provided in NMFS’ might be exposed to levels as high as goal of the 145-dB zone around dive Acoustic Technical Guidance. 180 dB (174 dB if in an OBIA, given the sites is generally to avoid any impacts NMFS disagrees with any suggestion 1 km buffer) briefly if animal is at the to human divers and is in no way that the use of the Acoustic Technical edge and a SURTASS LFA vessel has associated with the requirements of the Guidance provides erroneous results. approached at the closest allowable MMPA, take of marine mammals is The use of the 180-dB rms threshold to distance from the edge—the majority of expected and authorized to occur, but as identify where PTS would occur is individuals within the area will always required by the MMPA, NMFS and the plainly outdated, as the best available be exposed to levels increasingly lower Navy have ensured that the extensive science indicates that rms SPL is not an than that (the farther they are from the suite of measures required will effect appropriate metric by which to gauge edge), plus the vast majority of the time the least practicable adverse impact. potential auditory injury (whereas the Comment 21: NRDC et al. stated that SURTASS LFA vessels will not be right scientific debate regarding thresholds the criteria NMFS adopted [NMFS’ at the edge. Therefore, while this for Level B harassment by behavioral Acoustic Technical Guidance], mitigation measure based on 180 dB disruption is not about the proper following the Navy, to estimate will not totally avoid all takes within metric but rather the proper level or temporary and permanent threshold OBIAs, it will meaningfully reduce both levels and how these may vary in shift in marine mammals are erroneous different contexts). the number and severity of takes within and non-conservative. They stated that Regarding the suggestion that the these important areas significantly by Wright (2015) identified several thresholds are non-conservative, ensuring that the majority of individual statistical and numerical faults in the multiple studies from humans, marine mammals within these areas are Navy’s approach, such as pseudo- terrestrial mammals, and marine exposed to lower levels with lower replication and inconsistent treatment mammals have demonstrated less TTS probabilities of being taken, and less of data that tend to bias the proposed from intermittent exposures compared severe responses if the take occurs. criteria towards an underestimation of to continuous exposures with the same Regarding the comments about effects. NRDC et al. stated that similar total energy because hearing is known to practicability, NMFS and the Navy have and additional issues were raised by a experience some recovery in between thoroughly evaluated the practicability dozen scientists during the public noise exposures, which means that the of all of the mitigation measures, comment period on the draft Acoustic effects of intermittent noise sources including the OBIAs and their Technical Guidance held by NMFS and such as tactical sonars are likely associated 180-dB zones, and in noted that at the root of the problem is overestimated. Marine mammal TTS consideration of public comments have the agencies’ broad extrapolation from a data have also shown that, for two added an additional measure to further small number of individual animals, exposures with equal energy, the longer minimize behavioral harassment within mostly bottlenose dolphins, without duration exposure tends to produce a OBIAs. Specifically, no more than 25 taking account of what Racca et al. larger amount of TTS. Most marine percent of the authorized amount of (2015) have succinctly characterized as mammal TTS data have been obtained SURTASS LFA sonar will be used for a ‘‘non-linear accumulation of using exposure durations of tens of training and testing within 10 nmi (18.5 uncertainty.’’ seconds up to an hour, much longer km) of any single OBIA during any year Response: NMFS disagrees with this than the durations of many tactical unless it is required for national characterization of the Acoustic sources (much less the continuous time security, permission is obtained from Technical Guidance and the associated that a marine mammal in the field the appropriate designated Command recommendation. The Acoustic would be exposed consecutively to authority prior to commencement of the Technical Guidance is a compilation, those levels), further suggesting that the activity, NMFS is notified as soon as is interpretation, and synthesis of the use of these TTS data are likely to practicable, and these sonar hours are scientific literature that provides the overestimate the effects of sonars with reported in annual activity reports. This best scientific information regarding the shorter duration signals. measure ensures that exposures (and effects of anthropogenic sound on Regarding the suggestion of pseudo- thereby probability and severity of Level marine mammals’ hearing. The replication and erroneous models, since

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marine mammal hearing and noise- extent based on applying mathematical Comment 23: NRDC et al. noted that induced hearing loss data are limited, functions to fit the existing TTS data. they have called on the Navy and NMFS both in the number of species and in the Comment 22: NRDC et al. stated the to adopt a more expansive, more number of individuals available, proposed rule gives little consideration biologically meaningful coastal attempts to minimize pseudo- to expanding the LFA coastal exclusion exclusion, particularly one that protects replication would further reduce these zone, assuming, based on its analysis in the continental shelf and slope with a already limited data sets. Specifically, prior environmental reviews, that its standoff from the shelf break. They with marine mammal behavioral standoff distance should remain 12 nmi noted that NMFS’ own subject-matter temporary threshold shift studies, from shore. The commenters stated that experts, in the White Paper, recommend behaviorally derived data are only this reliance on prior analyses is not that, absent specific data to the contrary, available for two mid-frequency supportable. ‘‘all continental shelf waters and waters cetacean species (bottlenose dolphin, Response: As described in the 100 km of the continental slope should beluga) and two phocids (in-water) Mitigation section, the Navy’s 2007 be designated as biologically important pinniped species (harbor seal and SURTASS LFA FSEIS/SOEIS evaluated habitat for marine mammals.’’ They northern elephant seal), with otariid (in- increasing the coastal standoff distance recommended that NMFS, in water) pinnipeds and high-frequency up to 46 km (25 nmi). Based on a six- consultation with the Navy, should step analysis process, its analysis cetaceans only having behaviorally- consider alternative coastal exclusion showed that increasing the coastal derived data from one species. areas. standoff range would decrease exposure Arguments from Wright (2015) Response: NMFS carefully considered to higher received levels for regarding pseudo-replication within the the White Paper’s recommendations and concentrations of marine animals TTS data are therefore largely irrelevant we present an evaluation of the White closest to shore, but would do so at the in a practical sense because there are so expense of increasing exposure levels Paper’s recommendation to restrict LFA few data points. Multiple data points for shelf break and pelagic species. This sonar transmissions from all continental were not included for the same result is due to the reduced overlap of shelf waters and waters 100 km seaward individual at a single frequency. If the exposure area with land leading to of continental slope in the White Paper multiple data points existed at one an increase in exposure area as the Specific Recommendations subsection frequency, the lowest TTS onset was sound source moves farther offshore. of the Mitigation section. As discussed always used. There is only a single There have been no changes to the best in this section, given the other frequency where TTS onset data exist available scientific information or other mitigation measures we are requiring, for two individuals of the same species: indications that the coastal standoff takes of marine mammals would be 3 kHz for dolphins. Their TTS distance should be increased since this limited to Level B harassment in the less (unweighted) onset values were 193 and analysis; therefore, there is no change in severe range of behavioral reactions and 2 194 dB re 1 mPa s. Thus, NMFS believes this mitigation measure from previous some TTS, as described above. that the current approach makes the best rulemakings. Nonetheless, it is also Consequently, the only additional use of the given data. Appropriate erroneous to say that the new rule gives anticipated value to restricting means of reducing pseudo-replication no consideration to further extending SURTASS LFA sonar activities in may be considered in the future, if more the coastal exclusion, given the continental shelf waters and waters 100 data become available. Many other extensive analysis of the White Paper km seaward of continental slope would comments from Wright (2015) and the (see Mitigation section and response to be some potential, though not certain or comments from Racca et al. (2015b) Comment 23 immediately below), significant, reduction in the number of appear to be erroneously based on the which included a recommendation for a less severe behavioral reactions in those idea that the shapes of the auditory larger coastal exclusion. As noted in the areas. In general, not all behavioral weighting functions and TTS/PTS 2012 final rule (77 FR 50290; August 20, responses rise to the level of a take and exposure thresholds are directly related 2012), over 80 percent of the existing not all harassment takes result in fitness to the audiograms; i.e., that changes to and potential marine protected areas consequences to individuals that have the composite audiograms would reviewed were within 12 nmi from a the potential to translate to population directly influence the TTS/PTS coastline, indicating the effectiveness of consequences to the species or stock. exposure functions (e.g., Wright (2015) the coastal standoff as one of the Given the anticipated impacts of describes weighting functions as primary mitigation measures for SURTASS LFA sonar, there is little to ‘‘effectively the mirror image of an reducing potential impacts to marine no likelihood that the impacts of the audiogram’’ (p. 2) and states, ‘‘The mammals. OBIAs expand upon this anticipated takes would accrue in a underlying goal was to estimate how protection by avoiding or minimizing manner that would impact a species or much a sound level needs to be above impacts in areas beyond the coastal stock even in the absence of any hearing threshold to induce TTS.’’ (p. standoff distance where marine additional mitigation. Considered with 3)). Both statements are incorrect and mammals are known to engage in the uncertain potential of this proposed suggest a fundamental specific behaviors that may lead to more recommendation to provide meaningful misunderstanding of the criteria/ severe impacts if interrupted; known to incremental reduction of risk or severity threshold derivation. This would congregate in higher densities; and/or of impacts to individual marine require a constant (frequency- known to have a limited range and mammals, NMFS concludes that this independent) relationship between small abundance that creates more recommendation would not reasonably hearing threshold and TTS onset that is vulnerability for the stock as a whole. be expected to provide a reduction in not reflected in the actual marine These criteria are important when the probability or degree of effects on mammal TTS data. Attempts to create a determining whether mitigation would any marine mammal species or stocks. ‘‘cautionary’’ outcome by artificially be likely to reduce the probability of Moreover, NMFS discusses why the lowering the composite audiogram effects to individuals that would measure would not be practicable for thresholds would not necessarily result translate to minimization of impacts at the Navy to implement. NMFS in lower TTS/PTS exposure levels, since the population level under the LPAI acknowledges that while these measures the exposure functions are to a large standard. could potentially reduce the numbers of

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takes of some individual marine standard, for this rulemaking NMFS assess measures in light of the LPAI mammals within a limited number of directly considered the White Paper standard. To fulfill that requirement, species, or could add some small degree recommendations (see discussion of the NMFS considers all measures that we of protection to preferred habitat or White Paper recommendation in the are reasonably aware of (e.g., from feeding behaviors in certain Mitigation section). We considered the recommendations or review of data) that circumstances, this limited and factors as instructed by the Court, have the potential to reduce impacts on uncertain benefit did not justify although we ultimately did not adopt marine mammal species or stocks, their adopting the White Paper’s the White Paper’s recommendations. habitat, or subsistence uses of those recommendations considering the NMFS’ interpretation of the Ninth stocks, regardless of whether those existing mitigation measures already Circuit’s opinion is based on the fact measures are characterized as implemented by the Navy and the high that neither the MMPA nor NMFS’ ‘‘precautionary’’ or address ‘‘data-poor’’ degree of impracticality for Navy implementing regulations include areas. Through the LPAI standard, implementation. references to, or requirements for, the NMFS considers ‘‘precautionary’’ precautionary approach, nor is there a recommendations such as those Offshore Biologically Important Areas clear, agreed-upon description of what contained in the White Paper. As (OBIAs) the precautionary approach is or would discussed below, the OBIA process OBIA Criteria/Evaluation Process entail in the context of the MMPA or specifically allows for consideration of any specific activity. Nevertheless, the areas that could be characterized as Comment 24: The Commission noted MMPA by nature is inherently relatively ‘‘data-poor’’ and we also that a lack of data or insufficient data protective, including the requirement to considered measures that provide for regarding marine mammal presence and mitigate to the lowest level practicable mitigation in data-poor areas under the abundance is not an adequate basis for (‘‘least’’ practicable adverse impacts, or LPAI standard (independent of the failing to adopt precautionary measures, ‘‘LPAI,’’ on species or stocks and their OBIA process, i.e., the White Paper). In especially when such data are not habitat).1 This requires that NMFS short, we believe the requirements of available for most of the world’s oceans. section 101(a)(5)(A), including the LPAI The Commission noted it made this 1 We are aware of statements we made in the standard, have been satisfied. point in its 2011 letter on a previous preamble for our 2001 incidental take regulations The Ninth Circuit’s Pritzker decision DSEIS and the U.S. Court of Appeals for for the Navy’s ship shock tests (66 FR 22450, 22453 faulted NMFS for not considering the the Ninth Circuit remanded the (May 4, 2001)), in which we evaluated the impact of underwater detonations that propagate shock White Paper mitigation SURTASS LFA sonar case on that basis. waves through a ship’s hull under deliberate and recommendations for ‘‘data-poor areas’’ The Commission stated that the Ninth controlled conditions to simulate near misses from against the OBIA standards NMFS had Circuit indicated that NMFS and the underwater explosions similar to those encountered set for the 2012 rule. We do not read the Navy should have considered whether a in combat. In that case, NMFS was authorizing up to four mortalities and six non-serious injuries of opinion as holding that the MMPA precautionary approach would give various species. During that rulemaking we compelled a change in the criteria and more protection to marine mammals, received a public comment stating that in the process for evaluating OBIAs. Again, and then whether that protection would absence of adequate data, NMFS and the Navy NMFS addressed the Court’s decision by impede military training to a degree that should apply the precautionary principle, ‘‘the fundamental elements of the principle being: the separately and independently makes such mitigation impracticable. existence of some indication of threat of harm; the evaluating the White Paper’s The Commission stated that it appears harm is serious or irreversible; scientific recommendations for benefits to the that NMFS is failing to take a uncertainty as to the nature or severity of the affected species or stocks and sufficiently precautionary approach, outcome; and an obligation on decision-makers.’’ Our response said: practicability, without regard to the particularly with respect to the Pacific The MMPA prohibits the taking of marine OBIA criteria. Using the best available Remote Island MNM. mammals unless exempted or permitted. Taking information, NMFS considered the Response: We acknowledge that the means to harass, hunt, capture, or kill, or attempt recommendations in the White Paper Ninth Circuit opinion stated that NMFS to harass, hunt, capture, or kill any marine under our interpretation of the LPAI ‘‘should have considered whether ‘the mammal. Therefore, NMFS believes that the precautionary principle is already at the core of the standard and determined the measures precautionary approach’ would give MMPA. However, because the MMPA authorizes (as well as smaller buffer distances) more protection to marine mammals, the taking of marine mammals under section were not warranted, as described in and then whether that protection would 101(a)(5), provided certain conditions and those sections of this rule. impede military training to a degree requirements are met, NMFS must prudently apply the Precautionary Principle through careful analysis In reaching the conclusion that making that mitigation not practicable.’’ of impacts and implementation of measures that NMFS’ record for the 2012 rule did not Pritzker, 828 F.3d at 1138. The Court will reduce impacts to marine mammals to the establish the agency had satisfied the went on to fault NMFS for not lowest level practicable. As described in this LPAI standard, the Court determined considering the White Paper’s document, NMFS believes that it and the Navy have applied the Precautionary Principle to the greatest that NMFS failed to consider an recommendations. Taken in the context extent possible for this action through an extensive important aspect of the problem, of the Court’s full discussion, however, aerial monitoring and mitigation program that will ‘‘namely the underprotection that we read the Ninth Circuit’s use of the protect marine mammals to the greatest extent accompanies making conclusive data an term ‘‘the precautionary approach’’ as practicable. The mitigation and monitoring program indispensable component of OBIA are discussed later in this document. In addition, specifically referring to the NMFS and the Navy have applied the precautionary designation,’’ and that this ‘‘systematic recommendations in the White Paper for principle by having the decision-making process in underprotection of marine mammals’’ designating OBIAs in ‘‘data-poor’’ the public forum through NEPA and notice and regions of the ocean (described therein comment rulemaking. requirements for good visibility and daylight. Those as a precautionary approach for Taken as a whole, we do not view that response specific measures would be appropriate under the as inconsistent with our current position. We agree LPAI approach we set forth in this rule assuming designating OBIAs), rather than a here that the MMPA is inherently protective. As for similar circumstances. The risks to individual broader mandate to adopt a the mitigation imposed for the ship shock trials, we marine mammals from the ship shock tests were ‘‘precautionary approach’’ in carrying said we conducted a careful analysis of impacts and potentially irreversible in terms of acute impacts to implementation of measures that will reduce fitness in light of the nature of the specified out the requirements of the statute. impacts to marine mammals to the lowest level activity, and the mitigation and monitoring In response to the Ninth Circuit’s practicable. This consisted of an extensive aerial measures were deemed appropriate to achieve the opinion and in the context of the LPAI monitoring program, delaying detonations, and LPAI standard.

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cannot be consistent with the assessment of whether it believes (e.g., the humpback whale feeding area requirement that mitigation measures including specific areas that meet the supported by the bathymetric and result in the ‘‘least practicable adverse designation criteria would be oceanographic complexity of the impact’’ on marine mammals.’’ Pritzker, practicable. Rather, NMFS has only Commander Islands), and in other areas 828 F.3d 1125 at 1140. While we have requested public comment on whether of high productivity (e.g., the multi- corrected the identified deficiency by any of the potential areas satisfy the species feeding area supported by the evaluating the White Paper measures OBIA criteria, after which time the Navy North Pacific Transition Zone). NRDC et independent of the OBIA criteria, we and NMFS would, apparently without al. recommend that NMFS reconsider disagree with the suggestion that the any additional public input, evaluate the White Paper guidelines. prescribed mitigation is systematically the practicability of those measures to Response: See response to Comment underprotective. avoid or reduce impacts in those areas. 23. NMFS carefully considered the We emphasize that NMFS’ (and the The Commission stated that NMFS’ White Paper’s recommendations and we Navy’s) informational standards for approach effectively undermines the present an evaluation of the White OBIAs and other mitigation measures, ability of the Commission and others to Paper’s recommendations in the White while data-driven, do not require provide informed comments on that Paper Specific Recommendations scientific certainty or conclusive data. portion of the proposed rule. subsection of the Mitigation section. This is illustrated by the fact that the Response: In the Federal Register Comment 27: NRDC et al. OBIA criteria and factors allow for notice of the proposed rule, we recommended that NMFS consider consideration of a variety of information described the process NMFS and the alternative habitat models and sources, including historic whaling Navy used to identify and evaluate (particularly in the Northwest Pacific) data, stranding data, sightings potential OBIAs and presented 25 areas additional line-transect data for information, and regional expertise, to considered for potential designation as identifying areas of biological name a few examples of the data new OBIAs for this rulemaking. We importance. NRDC et al. stated that it is considered. As more detailed in presented the draft analysis for these prudent for NMFS to consider Appendix C of the 2019 SURTASS LFA potential OBIAs using the identified alternative modeling approaches FSEIS/SOEIS, supporting documents OBIA criteria and factors in a document capable of accounting for non- that are considered include peer- entitled Potential Marine Mammal standardized collection of survey data reviewed articles; scientific committee OBIAs for SURTASS LFA Sonar; Marine and opportunistic sightings such as reports; cruise reports or transects; Areas Under Consideration. Through those presented in Corkeron et al. personal communications or the proposed rule, the public had the (2011), Lambert et al. (2014), and unpublished reports; dissertations or opportunity to comment on the OBIA Mannocci et al. (2015). NRDC et al. theses; books, government reports, or analysis and designation process noted that the IWC–POWER large-area NGO reports; and notes, abstracts, and (including practicability) and potential transect surveys conducted by Japan conference proceedings. In fact, NMFS OBIAs (including recommending over the last decade provide a basis for has designated OBIAs for areas based on additional OBIAs). As noted in response empirically grounded modeling and these types of information sources to Comment 15, we disagree that the identification of high-density habitat for (whaling data, stranding data, ability to provide informed comments most of the Navy’s Northwest Pacific unpublished reports, etc.). For example, was undermined, given the public was operations area. NRDC et al. note that the evidence supporting the designation provided a discrete, manageable list of NMFS now has the data needed to of the Southern Bali OBIA (designated potential OBIAs supported by our conduct a data-based analysis in this in this rule) is largely from an preliminary analysis, and that NMFS region at least, satisfying its own criteria unpublished report of line-transect was accepting and addressing input for OBIA identification. NRDC et al. surveys and the National Marine regarding biological qualifications and recommended that NMFS should Mammal Stranding Network of practicability. Further, as always, NMFS consult the same subject-matter experts Indonesia. will also consider entirely new it drew upon during the last Thus, we disagree that we are failing recommendations for OBIAs through the authorization cycle, who are the to take a sufficiently precautionary adaptive management process, and will agency’s experts in marine mammal approach. The Pacific Remote Islands do so utilizing the process and types of habitat modeling in the North Pacific. Marine National Monument (Wake/ information described in the proposed Response: NMFS and the Navy are Johnson/Palmyra atolls and Kingman rule. aware of the active area of research in Reef Units, which are located in the Comment 26: NRDC et al. developing habitat-based models that SURTASS LFA Study Area) was on the recommended that NMFS reconsider the extrapolate cetacean densities beyond OBIA Watchlist and was considered as guidelines for capturing biologically surveyed regions. For example, the a candidate OBIA. NMFS and the Navy important marine mammal habitat in Navy and NMFS were reviewers of and reviewed all available data and no data-poor areas that its subject-matter used the results of Mannocci et al. specific important biological behaviors experts provided during the last LFA (2017) for the U.S. Navy’s Atlantic Fleet of marine mammals have been authorization cycle (in the White Paper) Training and Testing area NEPA characterized in these waters. As such, and that were addressed by the Ninth analyses and MMPA rulemaking. As this marine area did not meet the Circuit. NRDC et al. stated that previously noted in the response to biological criteria required for information on cetacean distribution Comment 3, it is possible that the designation of an OBIA and was not and habitat use demonstrate that the sighting results from the IWC–POWER further considered currently as an White Paper guidelines (as described in cruises could be used to extrapolate OBIA. their additional comments on OBIAs) density and abundance estimates Comment 25: The Commission stated hold true in almost every case, with throughout the North Pacific in the its concern that although NMFS has important marine mammal habitat areas future, using the methods developed by identified potential OBIAs it might occurring along continental shelf and Mannocci et al. (2015) that were applied include in the final rule, it has neither shelf edge waters (e.g., the multi-species to extrapolate density estimates in the specified which ones it actually is migratory route off western Australia), North Atlantic (Mannocci et al., 2017). proposing to include nor provided any around seamounts and island systems Cruise reports through 2017 are

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available online, with cruises including information gathered from LFA operations area. See, e.g., 84 FR at continuing for another few years. When regional experts. NMFS and the Navy 7234 (noting that ‘‘best source’’ of data additional results are available, NMFS contacted regional experts when demonstrating high marine mammal and the Navy will consider use of these available information was not sufficient densities ‘‘is publicly-available, direct methods to extrapolate density and to determine whether an area met the measurements from survey data’’). abundance estimates that could inform OBIA criteria and factors. In these cases NRDC et al. stated that while NMFS’ identification of biologically important NMFS and the Navy contacted regional criteria do allow for use of ‘‘other areas through the Adaptive Management researchers known to be conducting available data or information,’’ they do process. Lambert et al. (2014) used the research or surveys in the area. The so only if ‘‘those data and information, simulated distribution of micronekton Navy and NMFS contacted marine either alone or in combination with from the Spatial Ecosystem And mammal researchers in the Marianas limited direct data, are sufficient to Population Dynamics Model and Guam region to request copies of establish that at least one of the (SEAPODYM) to predict the habitat of their marine mammal sighting data to biological criteria are present,’’ and that three cetacean guilds in tropical waters. gain an understanding about the areas it remains unclear from this description While their results provide some already identified via survey effort what evidentiary standard will apply to interesting insights into the use of where marine mammals may be the consideration of OBIAs where direct predicted prey maps in cetacean aggregating and conducting biologically data are not available. distribution models, they are best used important behaviors. We also provided Response: NMFS does not require to prioritize future research areas. the opportunity for regional researchers ‘‘conclusive data’’ 2 for imposing Corkeron et al. (2011) developed to comment on the potential OBIAs and conservation and management measures statistical methods for using spatially the OBIA analysis, and to suggest for SURTASS LFA sonar, including— autocorrelated sighting results to additional OBIAs for consideration though not only—in the case of OBIAs identify the Dhofar coast of Oman as an through the public comment process on (see response to Comment 24). As important region for the Arabian Sea the proposed rule and the 2018 another example of the incorporation of DPS of humpback whales. However, the SURTASS LFA DSEIS/SOEIS. In data poor areas in mitigation measures, Dhofar coast of Oman is outside of the addition to using information gathered the coastal standoff zone uniformly SURTASS LFA sonar Study Area and from regional experts and presented in applies not only in areas with Corkeren et al. (2011) state ‘‘Although it reports with regional authors (for supporting data about marine mammals is theoretically possible for us to project example, through the IMMA and EBSA (80 percent of the areas initially model predictions into other areas, we designation process), as noted in identified for OBIA consideration in consider this inadvisable, as our basic response to Comment 24 and detailed in 2012 were within the 12 nmi (22 km) design was not to make inference about Appendix C of the 2019 SURTASS LFA coastal standoff) but also in areas that the distribution of humpback whales FSEIS/SOEIS, we also used a variety of could be fairly characterized as data along the entire Oman coast.’’ Therefore, supporting documents including peer- poor. In addition, shutdown protocols though its statistical models could be reviewed articles; scientific committee will be in effect wherever SURTASS applied to sightings data within the reports; cruise reports or transects; LFA sonar activities occur, including in SURTASS LFA Study Area, the personal communications or areas where data are limited. humpback whale results are not unpublished reports; dissertations or Comment 30: NRDC et al. stated that applicable. NMFS and the Navy will theses; books, government reports, or as it did during the most recent continue to consider, discuss and NGO reports; and notes, abstracts, and authorization cycle, NMFS proposes to examine the utility of these models for conference proceedings. At any rate, exclude from OBIA consideration all identifying important areas for marine NMFS and the Navy have considered marine mammals that do not exhibit mammals in the SURTASS LFA sonar the best available science in the low-frequency specialization, excepting Study Area. development of this SURTASS LFA sperm whales and elephant seals, and Comment 28: NRDC et al. sonar final rule. Given limited agency that this position remains non- recommended that NMFS and the Navy resources, the limited likely value precautionary and inappropriate. They communicate directly with researchers added beyond our already extensive state that the Navy did not include in the Indian Ocean and Asia to identify research, and the fact that there is no odontocetes in the LFA SRP which it potential areas of biological importance, requirement that the agency continues to take as the exclusive data including areas with high cetacean communicate directly with all experts source for estimating impacts from the abundance. NRDC et al. included a list in a particular topic, we have not LFA system, notwithstanding that of contacts in their comment letter contacted all of the individuals study’s age and limitations. NRDC et al. (Appendix). recommended by NRDC. noted that recent meta analyses of the Response: NMFS and the Navy In a related effort, NMFS and the ocean noise literature indicates that, acknowledge the importance of regional Navy have obligated funding to convene taken as a whole, the odontocetes are input to identify and gather data for a Working Group/Expert Elicitation behaviorally reactive to predominantly areas of biological importance to marine effort (beginning in 2020) to update low-frequency sources of noise, in ways mammals for which information may existing Biologically Important Areas that are consistent with a higher not be available in published literature. and identify new areas outside of the potential for effects on vital rates, at To obtain the best available data for U.S. Exclusive Economic Zone (EEZ). exposure levels that would put them each potential OBIA, NMFS and the As applicable, the results of this effort well outside the LFA shutdown zone Navy conducted a deep and would be considered through the (Gomez et al., 2016; Bowles et al., 1994). comprehensive literature review. As adaptive management provision of the NRDC et al. goes on to state that described in the response to Comment rule. literature has also demonstrated that 24 the Navy and NMFS considered a Comment 29: NRDC et al. expressed some species, such as harbor porpoises variety of information sources when concern that NMFS’ selection criteria and beaked whales, are particularly evaluating the potential of an area as an for OBIAs maintain an evidentiary OBIA (detailed in Appendix C of the requirement that exceeds the 2 NRDC v. Pritzker, 828 F.3d 1125, 1140 (9th Cir. 2019 SURTASS LFA FSEIS/SOEIS), information available for most of the 2016).

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sensitive to a diversity of anthropogenic elephant seals negates that assertion, sensitive LF hearing, the LFA risk sounds, including sounds of and nothing in the proposed rule continuum is conservative in that it is predominantly low frequency; and suggested that NMFS would not anticipated to overestimate the physiological research on finless consider other species with increased responses of other species that are less porpoise indicates that a heightened sensitivity to LF sound, if data indicate sensitive to LF sounds. sensitivity to lower-frequency sound that it is appropriate. As described in Comment 31: NRDC et al. stated that may be conserved across porpoise this rule, the hearing sensitivity of other NMFS’ 2012 rule required the Navy to species (Liu, 1985; Li et al., 2008). They taxa (MF and HF cetaceans) is such that advance research on the impacts of LFA indicated that several studies have their sensitivity to the LFA signal is sonar on beaked whales and harbor reported harbor porpoise behavioral reduced by 40 to 50 dB, meaning that porpoises, first, by convening an responses to pile driving sounds source has to be much louder for the independent Scientific Advisory Group (Tougaard et al., 2009; Bailey et al., animal to hear it, and therefore to to make research and monitoring 2010; Brandt et al., 2011; Dahne et al., potentially be behaviorally harassed by recommendations and, second, by either 2013; Parsons, 2017) and beaked whale it. The Navy will implement a near-100 promulgating a plan of action to behavioral responses to commercial percent-effective mitigation measure for implement the Advisory Group’s shipping sounds and European LFAS minimizing impacts when marine recommendations or submitting a systems (between 1 and 2 kHz) (Aguilar mammals are in close proximity to the written response to NMFS explaining de Soto et al., 2006; Pirotta et al., 2012; LFA sonar source (passive and active why they are infeasible. NRDC et al. Miller et al., 2015; Sivle et al., 2015) and acoustic and visual detection and requested a copy of any Scientific that some of these responses occurred at shutdown), and it also restricts Advisory Group and Executive distances beyond 20 km (e.g., beyond transmissions within the coastal Oversight Group reports and the 1 km safety zone in proposed standoff range, which encompasses the recommendations and asked that they mitigation). NRDC et al. stated that majority of biologically important be made available to the public. according to a recent paper on the habitats. Response: The Navy completed an vulnerability of range-limited assessment of the validity, need, and NMFS and the Navy are aware of the recommendations for field research and/ populations to acoustic impacts, failure publications discussed by NRDC et al. to consider the effects of both noise or laboratory research on the potential NMFS and the Navy have considered all effects of SURTASS LFA sonar on exposure and displacement of Cuvier’s available data on potential impacts to beaked whales from their habitat in this beaked whales and harbor porpoises in marine mammal species and stocks in a final report submitted to NMFS in July region ‘‘could lead to more severe their analyses, not just the SURTASS biological consequences than ‘Level B 2017, prior to the expiration of the 2012 LFA sonar SRP. Very few studies (many MMPA rule. One research project was Harassment’’’ (Forney et al., 2017). are described by the commenters) have funded to study the spatial overlap of NRDC et al. state it is ‘‘improper to examined odontocete behavioral SURTASS LFA sonar activities with exclude these acoustically sensitive responses to LF sounds. Those that have harbor porpoise habitat to bound the species from OBIA mitigation,’’ and that been conducted largely focus on sounds potential for impacts. Given the larger the Navy and NMFS must take a that include both the frequencies overlap of SURTASS activities with precautionary approach to harbor produced by LFA sonar (100–500 Hz) beaked whale populations (as compared porpoises and beaked whales, both in and also higher frequencies (greater than to harbor porpoises, which have very analyzing impacts and in considering 500 Hz), or LFA sonar sounds at higher little overlap with SURTASS activities) habitat-based mitigation measures. frequencies than proposed by the Navy and the relative lack of data regarding Response: One of the factors that the (e.g., European LFA sonar between 1 beaked whale responses to LFA sonar, Navy and NMFS consider in the and 2 kHz). For example, the sounds the Navy has agreed to initiate a formal designation of OBIAs, established in the produced by pile driving, seismic feasibility study through the Living 2012 FSEIS/SOEIS (DoN, 2012) and surveys, and vessel movement are Marine Resources program to assess the carried forward in the current OBIA broadband, low-frequency sounds (i.e., value, practicality, and cost of designing assessment process, is that the OBIA containing frequencies greater than 500 and conducting a controlled exposure protective measures pertain to those Hz), and pile driving and seismic survey experiment to measure the effects of species most likely to be affected by sounds are more impulsive in nature LFA sonar on beaked whales (as well as exposure to LFA sonar transmissions, than LFA sonar. Further, some of the other marine mammals—see response to namely LF sensitive species such as responses documented in the studies Comment 10). baleen whales. Thus, the primary focus cited are lower level behavioral The 2013 Scientific Advisory Group of the OBIA mitigation measure is on LF responses that would not necessarily report on beaked whales and harbor hearing specialist species. However, as rise to the level of MMPA harassment. porpoises can be found at: http:// noted in the proposed rule, OBIAs have It is true that the quantitative estimates www.surtass-lfa-eis.com/downloads/. been designated for non-LF hearing of takes for all marine mammals are While there is no Executive Oversight specialists, such as elephant seals and derived from the LFA risk continuum, Group report, the Executive Oversight sperm whales, since the available which is based on the behavioral Group recommendations are hearing data for these species indicate responses of LF hearing specialists summarized in the 2017 report Beaked an increased sensitivity to LF sound (baleen whales) collected with an actual Whale and Harbor Porpoise Monitoring (compared to most odontocetes and SURTASS LFA sonar source. As such, and Reporting Requirements which can pinnipeds). Therefore, contrary to the these data are realistic contextually and also be found at: http://www.surtass-lfa- comment’s assertion, NMFS did not remain the best available for quantifying eis.com/downloads/. propose to exclude from OBIA the response of LF-sensitive marine Comment 32: NRDC et al. consideration all marine mammals that mammals to the SURTASS LFA sonar recommended that in line with NMFS’ do not exhibit low-frequency source (see also response to Comment intent in previous authorizations, that specialization. The very fact that we 9). Because the LFA risk continuum was frequency specialization be considered acknowledged that OBIAs could be developed based on the responses of as one factor among several in appropriate for sperm whales and marine mammal species with the most determining the relative importance of a

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potential OBIA. NRDC et al. noted that understudied. They stated that Parsons specialist species. Based on current the agency can then focus their (2016) recently suggested that such information, beaked whales are not practicability analysis for odontocete species should be assumed known to have increased sensitivity to species on the most biologically ‘‘threatened,’’ as it is likely certain data- LF sounds; therefore, we do not believe important habitat. NRDC et al. noted deficient species are, in fact, added protection afforded by an OBIA that NMFS should give careful analysis ‘‘vulnerable’’ or ‘‘endangered,’’ given (i.e., beyond that provided by the LFA to areas of high marine mammal their low sightings rates and restricted sonar mitigation zone, described in the biodiversity, which are also likely to be ranges. NRDC et al. recommended Mitigation section) is warranted. As areas of high marine biodiversity— NMFS and the Navy work with with other marine mammals, Navy will appropriate given the increasing researchers embedded within these re-evaluate if additional data become evidence of impacts of low-frequency regions to help build our state of available that demonstrate that these sound on non-marine mammal biota, knowledge on these species and identify animals are more sensitive to LF some of which is described in the potential OBIAs. They stated that three sounds. Proposed Rule, and that NMFS should species of data-deficient cetaceans are The proposal described in the Parsons carefully analyze the practicability of worth particular note: Omura’s whale (2016) opinion paper has not been protecting areas, such as those off the (Balaenoptera omurai) and adopted by the IUCN. As stated in the main Hawaiian Islands and around Deraniyagala’s beaked whale IUCN Red List categories and criteria certain Hawaiian seamounts (which are (Mespolodon hotula) and Berardius (IUCN, 2012) definition: ‘‘A taxon is important to beaked whales, among beaked whale, which have been recently Data Deficient when there is inadequate other species), that are known to contain described in the northern Pacific Ocean. information to make a direct, or small, resident odontocete populations. Response: NMFS and the Navy are indirect, assessment of its risk of Response: As described in response to aware of the active area of genetics extinction based on its distribution and/ Comment 30, frequency specialization is research used to identify new species. or population status.’’ They go to say a one factor NMFS and the Navy Omura’s whales and Deraniyagala’s data deficient species may be well considered when evaluating potential beaked whales are considered in the studied, but appropriate data on OBIAs. The intent of OBIAs is to protect rule and SURTASS LFA FSEIS/SOEIS abundance and/or distribution are those marine mammal species, such as impact analyses using the best available lacking, and that ‘‘listing of taxa in this baleen whales, most likely to hear and data for those taxa. The new Berardius category indicates that more information be affected by LFA sonar transmissions beaked whale splits the black form of is required and acknowledges the and to provide these marine mammals Baird’s beaked whale into a new species possibility that future research will additional protections during periods distinct from the gray form of the show that threatened classification is when they are conducting biologically Baird’s beaked whale, which will retain appropriate.’’ To be precautionary they significant activities. However, OBIAs the scientific name Berardius bairdii suggest, ‘‘it is important to make have been evaluated and designated to (Morin et al., 2017). Therefore, although positive use of whatever data are provide additional mitigation protection this split into two species is not part of available.’’ As described in response to for non-LF hearing specialists, such as the LFA impact analysis, the data on Comment 24, NMFS has compiled and elephant seals and sperm whales, since Baird’s beaked whale encompasses both assessed the best available science, as the available hearing data for these forms, as has traditionally been required, to support the findings made species indicate an increased sensitivity reported. here and does not plan to reach out to to LF sound (compared to most While no hearing data on these new additional regional experts. odontocetes and pinnipeds). Regarding species are available, hearing in the OBIA Areas the comment about areas of high marine Omura’s whale is presumed, like other mammal diversity, NMFS has evaluated baleen whales, to be within the range of Comment 34: NRDC et al. noted in all of the areas recommended by 7 Hz to 22 kHz and they have been their comment regarding the designation commenters in the context of the LPAI recorded producing sounds from 15 to of OBIAs that as ESA Critical Habitat, standard, including several areas of high 50 Hz (Cerchio et al., 2015; Southall et Important Marine Mammal Areas marine mammal diversity (e.g., al., 2007). Very little is known about the (IMMAs), and Ecologically or Southeast Kamchatka OBIA) and our Deraniyagala’s beaked whale and Biologically Significant Areas (EBSAs), analysis and findings are presented in nothing specifically is known about have all previously been identified this rule and the SURTASS LFA FSEIS/ their hearing sensitivity. They are, through a rigorous scientific process, SOEIS. Specifically, NMFS designated however, similar to other beaked whales including opportunity for public the Main Hawaiian Islands OBIA which, presumed to hear in the mid-frequency comment and peer review; as such, although designated for the purposes of range from 150 Hz to 160 kHz (NMFS, these areas should be immediately further protecting humpback whales, 2018). While their hearing range carried forward by the Navy for will also reduce the exposure of several overlaps partially with the frequency geographic mitigation purposes. small resident populations of bandwidth of SURTASS LFA sonar, it is Response: As noted in the Mitigation odontocetes to SURTASS LFA sonar. presumed that their bandwidth of best section of this final rule, the 2019 NMFS and the Navy will continue to hearing, like other beaked whales, is SURTASS LFA FSEIS/SOEIS, and evaluate any new science as part of the well above the frequency range of previous documentation for SURTASS Adaptive Management process. SURTASS LFA sonar. The intent of LFA sonar, criteria for the designation of Comment 33: NRDC et al. noted that OBIAs is to protect those marine OBIAs are specific to the purpose of several marine mammal species mammal species, such as baleen whales, designating OBIAs for SURTASS LFA occurring within the proposed most likely to hear and be affected by sonar, which is geographic mitigation. SURTASS LFA study area are LFA sonar transmissions and to provide The purpose and criteria for designation considered ‘‘data deficient’’ by the them additional protections during of ESA critical habitat, EBSAs, and International Union for Conservation of periods when they are conducting IMMAs may inform our consideration of Nature (IUCN), due to the eastern Indian biologically significant activities. Thus, areas as potential OBIAs but are not per Ocean and, to a lesser extent, the the primary focus of the OBIA se coincident with the criteria or Northwestern Pacific regions being mitigation measure is on LF hearing purpose of OBIAs for SURTASS LFA

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sonar. As such, all marine areas and NMFS and the Navy will evaluate pygmy blue and sperm whales, and both considered as potential OBIAs must be the area as a potential OBIA through the these regions include physiographic evaluated per the criteria developed for Adaptive Management Process if new features and annual monsoonal SURTASS LFA sonar, including the information becomes available. transport that support higher Navy’s practicability assessment, B. Waters around Sri Lanka—NMFS productivity. NMFS and the Navy have regardless of the rigorous scientific should advance the following areas for designated the waters off the entire processes other agencies or year-round blue-whale mitigation areas: southern and eastern shore of Sri Lanka organizations may have undertaken for (i) ‘‘Southern Coastal/Offshore Waters to the Trincomalee Canyon region as an their marine area designations. between Galle and Yala National Park,’’ OBIA for both blue (pygmy) and sperm Comment 35: NRDC et al. noted that an area largely overlapping with OBIA whales. 30 IMMAs were recently identified in Offshore Sri Lanka but which affords C. Southwest India and Western Sri the Northeast Indian Ocean and South year-round protection to the submarine Lanka—NMFS should establish an East Asian Seas Region (IUCN Marine canyons that support high numbers of OBIA southwest of India and west of Sri Mammal Protected Areas Task Force blue whales, and other marine Lanka that reflects the boundaries of the 2019) and should be incorporated into megafauna, throughout the year; (ii) new ‘‘Gulf of Mannar and Palk Bay NMFS’ analysis for its Final Rule. They ‘‘Trincomalee Canyon and Associated IMMA’’ that includes the buffer also noted that 55 candidate IMMAs Ecosystems’’ and (iii) ‘‘Coastal and recommended for protection purposes. were recently been identified in the Offshore Area of the Gulf of Mannar Response: The available data and Western Indian Ocean and Arabian Seas (OBIA Watchlist),’’ which also information are not sufficient for the by regional experts and submitted for encompasses the currently not area southwest and west of Sri Lanka to additional independent peer review considered ‘‘Sri Lankan Side of Gulf of warrant designation as an OBIA, as the (IMMA sub-regions ‘‘ii’’ and ‘‘vii’’ fall Mannar’’ EBSA. NRDC et al. also blue whale data for this area are very within the LFA Study Area). They recommended that any waters not yet sparse and do not support designation recommended that these new IMMAs be included within the boundaries of the of this area as biologically important to immediately taken into consideration by new ‘‘South West to Eastern Sri Lanka blue whales. Anderson et al. (2012) NMFS and the Navy as potential OBIAs IMMA’’ also be advanced for year-round used ocean color data to develop a upon their release. protection. hypothesis of blue (likely pygmy) whale Response: As recommended, NMFS Response: The Navy and NMFS migration in the northern Indian Ocean. and the Navy assessed the 30 IMMAs assessed areas (i) and (ii) mentioned in Based on their hypothesis, Anderson et designated in the Northeast Indian this comment as potential OBIAs for the al. (2012) predicted that blue whales Ocean and South East Asian Seas blue (pygmy) whale. NMFS and the may occur in this area as they migrate Regions. Details of this analysis and Navy’s final assessment of these areas’ from the Arabian Sea to eastern Sri which IMMAs met the OBIA potential as OBIAs is described in Lanka/Bay of Bengal, but the authors designation criteria are included in Chapter 5 and Appendix C of the 2019 also note that ‘‘with only a single Appendix C of the 2019 SURTASS LFA SURTASS LFA FSEIS/SOEIS. We have offshore sighting from April (Table 1 FSEIS/SOEIS. As part of the Adaptive also noted in our assessment that and Fig. 4), this is one area where Management process for SURTASS LFA although most available data for these additional survey work and/or satellite sonar, NMFS and the Navy will two areas are for blue whales, data on tracking will be required to test our periodically assess any newly sperm whales have been reported and, predictions.’’ designated IMMAs for their suitability where applicable, we note the seasonal We conclude that the existing data are as OBIAs for SURTASS LFA sonar. period during which sperm whale as insufficient to support designating the Comment 36: NRDC et al. well as blue whale important biological proposed area as an OBIA for migration recommended the following for blue activity occurs. or foraging of North Indian Ocean blue whales: Although both the Gulf of Mannar whales. The proposed area southwest of A. Chagos Archipelago—NMFS EBSA and IMMA ((iii) of this comment) Sri Lanka in the Indian Ocean (3° to 12° should ensure that the waters were defined principally for the dugong N, 74° to 80° E) has been added to the encompassed by the no-take marine and coastal dolphins, which occur in OBIA Watchlist, and NMFS and the protected area are included in a year- nearshore or inshore coastal waters too Navy will evaluate the area as a round OBIA to protect important habitat shallow for use of SURTASS LFA sonar, potential OBIA through the Adaptive for blue whales as well as other cetacean because baleen and sperm whale Management Process if new information species including sperm whales. records from MPAs located within the becomes available. Response: The BIOT-Chagos Islands Gulf of Mannar EBSA and IMMA are D. West of the Maldives (November Marine Protected Area (MPA) was an available, the NMFS and the Navy and April)—NMFS should establish an area on the OBIA Watchlist because further evaluated the Gulf of Mannar OBIA west of the Maldives that reflects when last assessed by NMFS and the region as a potential OBIA. The the boundaries described in Anderson et Navy, sufficient data were not available available information and data do not al (2012): 1°–6° N, 70.5°–72.5° E. to determine if marine mammals were support the area’s biological importance Response: Blue whales occur in the present and conducting biologically to blue whales, as only rare blue whale area around the Maldives. However, the important behaviors in the area. The records, from strandings, are available purpose of OBIAs is to protect areas BIOT-Chagos Islands MPA was re- for the Gulf of Mannar. Although not with some demonstrated biological evaluated to determine if more data designated as an OBIA for SURTASS importance to a marine mammal have become available; however, there LFA sonar, the Gulf of Mannar has been species. According to Anderson et al. continues to be limited data describing added to the OBIA Watchlist so that (2012), the highest concentrations of the presence of marine mammals in the data and information about the area will blue whales in this area occurred in MPA, and even less data on whether continue to be monitored. April, November, and December, with marine mammals are conducting However, most available information strandings having been recorded from biologically important behaviors. and data support the waters off southern December through February. These data Accordingly, the BIOT-Chagos Islands and eastern Sri Lanka as important describe the average seasonal MPA will remain on the OBIA Watchlist migrational and foraging areas for both occurrence of blue whales in these

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waters, but are not indicative of high 121° E and 124° E) year-round, in light A. Northern Arabian Sea—The densities nor that biologically important of its persistent upwelling and high Arabian Sea DPS is a small, highly activity is occurring in these waters. levels of cetacean diversity, including isolated, resident population that Occurrence in a marine area is not foraging pygmy blue whales. requires an OBIA encompassing all sufficient to establish an area’s Response: The Navy and NMFS waters north of 21°50′ N from the importance to a species. The Navy and designated an OBIA for migrating blue western coast of India westward to the NMFS examined all available data and (pygmy) whales and vastly expanded boundary of the proposed SURTASS research on blue whale occurrence in the areal extent of the OBIA in place LFA study area. the waters adjacent to the Maldives to during the NDE for humpback whales in Response: The endangered Arabian determine if biologically important the waters off Western Australia Sea DPS of humpback whales is activity of blue whales occurred in these (Camden Sound/Kimberly Region, OBIA geographically, genetically, and waters. As described in the final 27 during the NDE). The OBIA for the demographically isolated from all other assessment of the Maldives area as a blue whale encompasses Browse Basin populations of humpback whales. potential OBIA in Chapter 5 and and the Savu Sea. Research surveys over the past 30 years Appendix C of the 2019 SURTASS LFA 3. For similar reasons, an OBIA have confirmed the continuous presence FSEIS/SOEIS, there were no data to should also be established bounding the of humpback whales in the shallow, support that blue whales conducted upwelling system along the southern nearshore waters of the Arabian Sea off biologically important activities in this coasts of Java and the Sumbawa Islands, Oman, which is not in the SURTASS area. The area was not designated as an Indonesia. A similar approach to that LFA sonar Study Area. Only a limited OBIA but has been added to the OBIA employed by Anderson et al. (2012) and incidental number of humpback Watchlist, and NMFS and the Navy will could be used to map the boundaries of whale sightings (13 recorded evaluate the area as a potential OBIA this region. The waters of the newly humpbacks by the Marine Mammal through the Adaptive Management designated ‘‘Savu Sea and Surrounding Conservation Network of India, with Process if new information becomes Areas IMMA’’ and the associated buffer records beginning in 1943), passive available. recommended for protection should also acoustic detections, strandings, and one E. Indonesia—Western Australia be included. tagging record have been reported from the eastern Arabian Sea off Pakistan and migration route— Response: Branch et al. (2007) suggest 1. Citing satellite data from Double et western India, with only the waters off the environmental factors ‘‘driving al. (2014), the commenter recommended western India being located within the biological enrichment and enhanced that NMFS/Navy should establish an SURTASS LFA sonar Study Area. Given blue whale foraging’’ and the regional OBIA encompassing the continental the small population size and the well- location of such factors, which have shelf along western Australia between documented concentration of this DPS been cited in this comment. The March through June and September in the western Arabian Sea, the Navy upwelling information in Branch et al. through December. Importantly, the concluded, and NMFs agreed, that the (2007) is based on Hendiarti et al. North West Cape/Ningaloo Reef region, likelihood of humpback whales from the (2004). Hendiarti et al. (2004) note that out to the continental shelf edge, needs Arabian Sea DPS being located in the to be protected from at least April the majority of the upwelling in the waters of the northwestern most part of through June. The Navy should also take southern Indonesian region occurs the Study Area was vanishingly small. measures to avoid the continental shelf seasonally off southeastern Java. It is However, as part of the OBIA process edge off northwestern Australia between also difficult to discern from the data and upon the recommendation of public May through July and September presented in Hendiarti et al. (2004) how comments on the 2018 SURTASS LFA through November, to protect whales much of the coastal upwelling would Draft SEIS/SOEIS and MMPA proposed traveling along the migration route. occur within the coastal standoff range rule, NMFS and the Navy assessed all Response: The Navy and NMFS have of SURTASS LFA sonar, as much of the available data and information on reviewed the Double et al. (2014) paper higher productivity appears to take humpback whales in the waters off cited herein. We agree that the place nearshore. western India and the nearby information cited on the migrational However, more importantly, while an Lakshadweep Archipelago. See Area 32 area for blue whales was compelling upwelling area has potential, at least of Appendix C of the 2019 SURTASS enough to warrant the Navy and NMFS seasonally, as an important foraging area LFA FSEIS/SOEIS for review of the researching the area to obtain additional for cetaceans, a species’ seasonal scientific literature available for this information and data on the Western occurrence as denoted by higher relative region, which includes assessment of Australia shelf and slope, since the abundance in that area would indicate three recommended OBIAs information pertains to a LF specialist increased foraging during the period of encompassing the west and south coast marine mammal and relates to one of increased productivity. However, NMFS of India: One in the Northern Arabian the key biological behaviors that define and the Navy conducted a thorough Sea (north of 21°50′ N from the western the criteria for OBIAs. The Navy and review of the best available data and no coast of India westward to the boundary NMFS assessed the entire Western data are available to support the of the SURTASS LFA study area); one Australia shelf and slope, including association of blue whales foraging in along the coast of west coast of India Browse Basin and the nearby Savu Sea this area in Indonesia. Therefore, this from Konkan and Malabar out to 60 km area, as a potential OBIA for blue area does not meet the criteria for (32.4 nmi) from shore; and one along the (pygmy) and humpback whales. An establishing an OBIA. The area has been south coast of India from Muttom to OBIA was designated for each species in added to the OBIA Watchlist, and Kanyakumari out to include Wadge this region. The OBIA for the humpback NMFS and the Navy will evaluate the Bank. Although several records indicate whale greatly expands the geographic area as a potential OBIA through the that rare occurrences of humpback extent of OBIA 27, Camden Sound/ Adaptive Management Process if new whales from the Arabian Sea DPS have Kimberly Region in place during the information becomes available. been reported from the waters off NDE. Comment 37: NRDC et al. central and southern Western India, 2. An OBIA should be established to recommended that for humpback these records are far too sparse to protect Browse Basin (∼14° S between whales: suggest a regular occurrence of part of

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the Arabian Sea population of of India westward to the boundary of accommodate migrating humpbacks that humpbacks off western India. For this the SURTASS LFA study area); one are traveling between the Ogasawara reason, the Navy made the decision not along the coast of west coast of India and Kazin Islands was also included. to include the Arabian Sea DPS of from Konkan and Malabar out to 60 km The area surrounding the islands of humpback whales in the 2019 (32.4 nmi) from shore; and one along the Okinawa was designated as part of the SURTASS LFA FSEIS/SOEIS nor in south coast of India from Muttom to Ryukyu-Philippines OBIA. As associated documentation, including the Kanyakumari out to include Wadge recommended all areas of the Babuyan ESA Biological Evaluation for SURTASS Bank). There was no evidence that Marine Corridor IMMA outside of the LFA sonar. However, due the potential biologically important activities are coastal standoff zone were designated as for important migrational activity of conducted in this area. The area was not part of the Ryukyu-Philippines OBIA. humpbacks in these waters, the waters designated as an OBIA, however it has The Ryukyu-Philippines OBIA is of western and southern India were been added to the OBIA Watchlist and designated seasonally from January to added to the OBIA Watchlist and NMFS NMFS and the Navy will evaluate the April (Okinawa) and late February to and the Navy will evaluate the area as area as a potential OBIA through the April (Philippines). Based on the best a potential OBIA through the Adaptive Adaptive Management Process if new available information, the boundary for Management Process if new information information becomes available. the Ryukyu-Philippines OBIA was becomes available. D. Muttom-Kanyakumari and Wadge derived by creating a buffer that was B. Maldives Archipelago—Given the Bank, southern India—NMFS should offset from the coastal standoff range by importance of this area for multiple establish an OBIA to protect this less than 2 nmi (3.7 km) around the species, including Arabian Sea and important foraging habitat area for majority of the Ryukyu Islands and Southern Ocean humpback whales, and Arabian Sea humpback whales and Babuyan Islands, with straight lines Bryde’s whales, NMFS should establish potentially other baleen whale species creating transit corridors between the an OBIA encompassing the waters (See Figure 3 for proposed approximate Ryukyu Islands, the eastern Taiwan within 30 nmi of the archipelago boundaries). coast, and the Babuyan Islands off the baseline. Response: See response to Comment northern Philippines. The boundary off Response: Humpback whales and 37A above. eastern Taiwan was created as a straight E. Northwestern Pacific Breeding Bryde’s whales occur in the area around line less than 3 nmi (5.6 km) from the Areas—NMFS should afford protection the Maldives. Again, however, Taiwanese coastal standoff range. occurrence in a marine area is not to: (i) The Okinawa/Philippines Although the Ryukyu Islands extend all sufficient to establish its importance to humpback whale DPS by establishing an the way to Kyushu Island of the main a species. The Navy and NMFS OBIA encompassing waters less than Japanese islands, since no records examined all available data and research 200 m deep—typical of humpback indicate humpback whales are sighted on whale occurrence in the waters whale wintering habitat—surrounding in these waters of the northern Ryukyu adjacent to the Maldives to determine if the islands of Okinawa from January to Islands, the OBIA boundary extends whales conduct biologically important April and the islands of Ogasawara from only as far north as Amami Island. activities in these waters. As described December to June. The commenters note in the final assessment of the Maldives that Ogasawara is included on NMFS’ F. Northwestern Pacific Feeding area as a potential OBIA in Chapter 5 list of potential OBIAs (84 FR at Table Areas—NMFS should establish: (i) An and Appendix C of the 2019 SURTASS 21, 7) and strongly recommend that this OBIA extending from the east LFA FSEIS/SOEIS, there were no data to area be carried forward for inclusion Kamchatka coastline offshore to the support that whales conduct and expanded to the 200 m depth continental shelf break (encompassing biologically important activities in this contour; and (ii) The newly designated the ‘‘Watchlist’’ OBIA ‘‘Southeast area. The area was not designated as an ‘‘Babuyan Marine Corridor IMMA’’ and Kamchatka Coastal waters’’), from June OBIA; however, it has been added to the buffer recommended for protection, through September; and (ii) an OBIA OBIA Watchlist and NMFS and the primarily identified as the only breeding reflecting the boundaries of the Navy will evaluate the area as a area for humpback whales in the ‘‘Commander Islands Shelf and Slope potential OBIA through the Adaptive Philippines. EBSA,’’ which has not yet been Management Process if new information Response: The area around the islands considered. becomes available. of Ogasawara was designated as an Response: The Commander Islands C. Konkan and Malabar Coast—NMFS OBIA for humpback whales from Shelf and Slope EBSA was not included should establish an OBIA to protect this December to May (this area was also for consideration as an OBIA, because important habitat area for Arabian Sea designated for sperm whales from June the area lies outside the SURTASS LFA humpback whales, blue whales, and to September). Although humpback sonar Study Area, and as such, is not Bryde’s whales (See Figure 2 for whales are observed in relatively eligible for consideration as an OBIA. proposed approximate boundaries). shallow waters of the Ogasawara and NMFS and the Navy considered the Response: See response to Comment Kazin Islands, humpbacks move Southeast Kamchatka Coastal Waters 37A above. NMFS and the Navy between the islands. Male humpback (although it was not on the OBIA assessed all available data and whales are also observed in deeper more Watchlist) and designated an OBIA off information on humpback, blue, and offshore waters than are female southeastern Kamchatka. Further details Bryde’s whales for the West and South humpbacks with calves. Last, the on the seasonal restrictions and areal Coasts of India area (see Area 32 in specific location where breeding and extent may be found in Appendix C of Appendix C of the 2019 SURTASS LFA calving occur in this area is unknown. the 2019 SURTASS LFA FSEIS/SOEIS. FSEIS/SOEIS for review of the scientific Given that lack of knowledge and to Comment 38: NRDC et al. literature available for this region, accommodate the deeper water recommended that for Bryde’s whales which includes assessment of three movements of male humpbacks, the NMFS designate a year-round OBIA recommended OBIAs encompassing the OBIA boundary around the Ogasawara reflecting the boundaries of both the west and south coast of India: One in and Kazin Islands was offset from the ‘‘Coastal Northern Bay of Bengal the Northern Arabian Sea (north of coastal standoff zone by less than 4 nmi IMMA’’ and the ‘‘Swatch-of-No-Ground north of 21°50′ N from the western coast (7.4 km). A straight-line corridor to IMMA,’’ and their associated buffers

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designed to inform place-based importance to the northern elephant mammal occurrence in the conservation measures. seal. Although it is true that the North Lakshadweep Archipelago, with very Response: The Coastal Northern Bay Pacific Transition Zone (NPTZ), Polar few survey sightings of cetaceans or of Bengal IMMA was assessed but not Front, and Kuroshio Extension Front are stranding data. Because of this lack of carried forward as a potential OBIA defined as oceanographic frontal zones data there is no indication that this area because it is relevant to marine mammal that are large spatially persistent supports important biological activities species known to only frequent inshore features, the physical, chemical, and for marine mammals and, therefore, it waters (Irrawaddy, Indo-Pacific finless, even biological features by which each does not meet the biological criteria for and Indo-Pacific humpback dolphins). frontal zone is defined, including the designation as an OBIA or otherwise These species are not anticipated to be species associated with them, are warrant inclusion as a mitigation area impacted by SURTASS LFA sonar unique and not consistent across frontal pursuant to the LPAI standard. However training and testing activities. NMFS zones. It would, therefore, be the Lakshadweep Archipelago has been and the Navy have designated the scientifically inappropriate to combine added to the OBIA Watchlist and NMFS Swatch-of-No-Ground (SoNG) OBIA. the frontal areas into one large and the Navy will evaluate the area as The SoNG IMMA encompasses the combined area as suggested and a potential OBIA through the Adaptive waters of the Head of the SoNG canyon disregard the defining features of the Management Process if new information (MMPATF, 2019), which were not fully respective frontal zones and the data becomes available. encompassed in the existing OBIA 20. associated with each. The Navy and C. Northwestern Pacific—To protect The SoNG IMMA boundary fully NMFS are aware of the suggested foraging areas for sperm whales, NMFS captures the foraging habitat where correlation of oceanographic frontal should utilize the boundaries of three Bryde’s whales have been identified features with sei whale foraging and historic whaling grounds (i.e., Japan (Smith et al., 2008; WCS Bangladesh, reviewed the available information on Ground, Coast of Japan Ground, and 2014). The SoNG OBIA for this final foraging areas for the North Pacific sei Japan-Bonin Island Ground) to delineate rule combines OBIA 20, Northern Bay of whale population. However, data and OBIAs for sperm whales in the Bengal and Head of SoNG OBIA (in information are currently insufficient to Northwestern Pacific Ocean (following place during the NDE) and the SoNG correlate specific oceanographic frontal the areas described in Ivashchenko et al. IMMA. features or their boundaries in the (2014); Fig. 9). They noted that the Comment 39: NRDC et al. northwestern Pacific with biologically Japan Ground area is generally recommended that for gray whales, important behavior of sei whales. consistent with that of the ‘‘Polar/ NMFS establish an OBIA off eastern Although neither the Polar/Kuroshio Kurioshio Extension Fronts’’ area that Japan extending from the coast out to Extension Fronts nor NPTZ have been NMFS is currently considering. the continental shelf edge from March designated as OBIAs, both marine areas Response: NMFS and the Navy did through May. have been added to the OBIA Watchlist. not consider the major areas of sperm Response: In consideration of the The Navy and NMFS will continue to whale concentration outlined in Convection Zone East of Honshu EBSA compile and evaluate data and Ivashchenko et al. (2014) when for baleen whales, the Navy and NMFS information on both areas and will assessing the North Pacific Transition evaluated a migrational corridor just off reassess them in the future through the Zone EBSA as we did not consider these the coastal standoff range along eastern Adaptive Management process. areas either singly or in combination to Honshu island for the western gray Comment 41: NRDC et al. be coincident with the boundary of the whale DPS. NMFS with Navy input recommended that for sperm whales: North Pacific Transition Zone EBSA. designated an OBIA in this area off A. Waters off Sri Lanka—Similar to While the whaling data compiled by eastern Honshu for gray whale blue whales, NMFS should advance the Ivaschenko et al. (2014) provide migration. Additional details on the following three areas currently being valuable information on the historical areal extent and seasonal restrictions are considered by NMFS as year-round extent of the North Pacific sperm whale provided in Appendix C of the 2019 mitigation areas for both blue and sperm distribution, those locations cannot be SURTASS LFA FSEIS/SOEIS. whales (and, in some cases, Bryde’s used without other supporting data to Comment 40: NRDC et al. whales): (i) ‘‘Southern Coastal/Offshore create OBIAs reflective of areas where recommended that for sei whales, Waters between Galle and Yala National sperm whales conduct important NMFS establish an OBIA that extends Park’’, (ii) ‘‘Trincomalee Canyon and biological activities. These areas of from the Polar Front boundary Associated Ecosystems’’, and (iii) historical concentrations provide no southwards towards the Kuroshio ‘‘Coastal and Offshore Area of the Gulf insights into what important biological Extension Front (i.e., approximately 45° of Mannar’’ (OBIA Watchlist), which activities are occurring in the areas. N to 35° N, 152° E to 170° E) to protect also encompasses the currently not Many cetacean species became foraging sei whales (i.e., the ‘‘Polar/ considered ‘‘Sri Lankan Side of Gulf of extirpated and never repopulated Kuroshio Extension Front’’ area that Mannar’’ EBSA. heavily exploited commercial whaling NMFS identified in the proposed rule as Response: See response to Comment grounds, so basing current occurrences a potential OBIA). They stated that 36. for a species solely on whaling ground protecting this highly productive B. Lakshadweep Archipelago—NMFS data is not appropriate; those data foraging area would have broad benefit should consider designating an OBIA to provide a historical perspective on for a number of marine mammal encompass the entirety of the occurrence and distribution but cannot species, including sperm whales, other Lakshadweep Archipelago and the be used as a current template of a odontocetes, and elephant seals. waters therein. species’ occurrence. Accordingly, these Response: The Navy and NMFS Response: In assessing this area as a areas were not considered as potential evaluated the Polar/Kuroshio Extension potential OBIA, NMFS and the Navy OBIAs. Fronts region as recommended by the conducted a thorough review of the Comment 42: NRDC et al. commenter. Additionally, the Navy and available information on marine recommended a year-round OBIA in the NMFS assessed the North Pacific mammal occurrence in the waters of the Avacha Gulf to protect Transition Zone EBSA (which Lakshadweep Archipelago. Very little important foraging habitat and encompasses these fronts) for its information is available on marine transitory corridor for killer whales.

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NRDC et al. noted that the small carried forward in the current OBIA information or data to suggest that the population size and cumulative impacts assessment process, is sensitivity to LF waters surrounding this seamount upon mammal-eating killer whales in sounds. The intent of OBIAs is to support higher than average densities of this area should be carefully considered protect those marine mammal species beaked whales and no small-resident by NMFS and that neglecting to include most likely to hear and be affected by populations have been confirmed, the best available science on the LFA sonar transmissions and to provide which would qualify as a biological population structure, ecotypes, and them with additional protections during criterion for delineation of an OBIA in abundance estimates of killer whales in periods when they are conducting the region. Additionally, based on this region is a major oversight of the biologically significant activities. Based current information, beaked whales are proposed rule. on current information, neither not known to have increased sensitivity Response: NMFS and Navy are aware Blainville’s nor Cuvier’s beaked whales to LF sounds, therefore we do not of the importance of southeastern are known to have increased sensitivity believe added protection afforded by an Kamchatka and Avacha Gulf to resident to LF sounds, therefore we do not OBIA (i.e., beyond that provided by the killer whales and have assessed the believe added protection afforded by an LFA buffer zone, described in the wealth of survey data and information OBIA (i.e., beyond that by the LFA sonar Mitigation section) is warranted to on this population of odontocetes and mitigation zone described in the protect beaked whales foraging in the the importance of the area, particularly Mitigation section) is warranted. waters of Cross Seamount. However Avacha Gulf, to this population. However, a large portion of the BIAs are through the adaptive management However, the majority of Avacha Gulf, included in the Main Hawaiian Islands process, NMFS and the Navy will including the core area where most OBIA designated for other species. evaluate new information as it becomes sightings of resident killer whales have Comment 44: NRDC et al. available. been recorded, lies within the coastal recommended that NMFS include Comment 46: The Commission noted standoff zone for SURTASS LFA sonar. critical habitat that NMFS recently that 14 of the 25 potential OBIAs (as To be eligible as an OBIA, a marine area designated, under the Endangered described in Table 21 of the proposed must meet geographic criteria, one of Species Act, for the Main Hawaiian rule) meet the various low frequency- which is that the area must lie outside Islands insular false killer whale. sensitivity and biological importance the coastal standoff range for LFA sonar Response: NMFS and the Navy criteria and occur within the SURTASS (i.e., be more than 12 nmi (22 km) from assessed the ESA-designated critical LFA sonar mission areas and, at least shore). Furthermore, OBIA designation habitat for the Main Hawaiian Insular partially, outside the coastal stand-off is designed to provide protection to DPS of false killer whales as a potential range where SURTASS LFA sonar those marine mammal species most OBIA. However, there is no evidence activities already are restricted. The likely to be impacted by LFA sonar, that false killer whales have increased Commission suggests these areas should which are the LF-sensitive species. sensitivity to LF sounds. Therefore, we be designated as OBIAs. Additionally, There is no evidence that killer whales do not believe an OBIA will afford more the Commission noted that Raja Ampat have increased sensitivity to LF sounds. protection than what is provided by the and Northern Bird’s Head serve as Therefore, we do not believe an OBIA LFA sonar mitigation zone (described in important habitat for migrating and/or will add meaningful protection beyond the Mitigation section). False killer foraging Bryde’s and sperm whales and that provided by the LFA sonar whales hear underwater sounds in the the Main Hawaiian Archipelago serves mitigation zone (described in the range of 1 to 115 kHz, with best hearing as important habitat for breeding and Mitigation section). These factors render at 17 kHz (Au, 1993; Johnson, 1967). calving humpback whales. In addition, this marine area ineligible for Nevertheless, a large portion of the ESA Peter the Great Bay serves as important consideration as an OBIA for SURTASS critical habitat for the Main Hawaiian breeding habitat for spotted seals. All of LFA sonar. However, an OBIA in Insular DPS of false killer whales is those species are sensitive to LF sound, southeastern Kamchatka waters outside included in the newly designated Main and portions of those potential OBIAs the coastal standoff range has been Hawaiian Islands OBIA (November to meet the geographic criteria as well. The designated for gray and right whales April), and per the CZMA consultation Commission also notes that the Pacific that migrate and forage seasonally in with the State of Hawaii for SURTASS Remote Islands Marine National these waters. Thus, albeit not designated LFA sonar, the Navy agreed not to Monument (MNM), including areas specifically for resident killer whales in ensonify Hawaii state waters (out to 3 around Wake and Johnston Atolls and a this area, the OBIA will reduce the nmi) at levels above 145 dB re: 1 mPa small part of the northern end of exposure of some resident killer whales rms. Kingman Reef/Palmyra Atoll, meet the to LFA sonar. Comment 45: NRDC et al. geographic criteria. Although marine Comment 43: NRDC et al. stated a recommended that NMFS establish a mammal data are limited, sperm whales more comprehensive evaluation of year-round OBIA at Cross Seamount, have been observed in the MNM and the important habitat for harbor porpoises which represents important foraging Navy noted that the MNM could serve and beaked whales is needed, however habitat for a potentially rare or as potential critical habitat for some they recommended that NMFS establish evolutionarily distinct species of beaked threatened and endangered species (e.g., OBIAs in waters outside the coastal whale. They noted that such a humpback whales). Baleen and sperm exclusion zone that are contained designation would have secondary whales are considered sensitive to low- within the Biologically Important Areas benefits for a variety of other odontocete frequency sound. For these reasons, the for Blainville’s and Cuvier’s beaked species foraging at Cross Seamount Commission recommended that NMFS whales, as well as for other small, seasonally between November and May. include these areas as OBIAs in the final resident odontocete populations, around Response: The Cross Seamount is rule. the Main Hawaiian Islands, as defined within the SURTASS LFA sonar Study Response: Fourteen OBIAs were in Baird et al. (2015). Area and is known for prey aggregations designated. Of the 14 OBIAs presented Response: One of the factors that support beaked whale foraging, as in Table 21 of the proposed rule, all but considered for designation of OBIAs, inferred by the detection of beaked the West of Maldives was designated as established in the 2012 rulemaking and whale echolocation signals at night. an OBIA. The West of Maldives area SURTASS LFA FSEIS/SOEIS and However, there is no supporting was not designated because there were

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no data to support that whales further considered currently as an geographic alternatives for OBIAs that conducted biologically important OBIA. raise practicability concerns for certain activities in this area. The West of categories of LFA activity. Given the Practicability Analysis Maldives area has been added to the importance of site-selection in OBIA Watchlist (see response to Comment 47: NRDC et al. noted that minimizing environmental impacts, it is Comment 36). As recommended, an the Navy’s application distinguishes conventional for agencies to analyze the OBIA has also been designated for the among types of LFA activities, ranging environmental effects of alternative sites Main Hawaiian Islands. from ‘‘military crew (MILCREW) that meet the activity’s purpose and Raja Ampat and Northern Bird’s Head proficiency training’’ to ‘‘vessel and need. They stated that doing so is was considered as a candidate OBIA. equipment maintenance.’’ NRDC et al. essential where, as here, protected However, none of the areas surveyed in stated that these categories suggest that habitat is of ‘‘paramount importance’’. any of the best available data occur geographic mitigation could potentially Response: As previously noted in the within the SURTASS LFA sonar Study be implemented for a subset of activities response to Comment 47, all 14 Area. Since no data exist to support in the case that blanket geographic candidate OBIAs were deemed important biological activities by marine mitigation is deemed impracticable—a practicable and 14 new marine mammal mammals being carried out in the part development that could, if rigorously OBIAs for SURTASS LFA sonar have of this marine area that lies within the applied, substantially improve been designated (see the Mitigation SURTASS LFA Study Area, this area mitigation and help NMFS and the Navy section and Table 21), therefore did not meet the biological criteria for meet their MMPA responsibilities. In its geographic alternatives for OBIAs are OBIA designation and was not practicability analysis for OBIAs, NRDC not necessary. considered further as an OBIA. The area et al. recommended that NMFS analyze Comment 49: NRDC et al. the practicability of mitigating each has been added to the OBIA Watchlist, recommended where reasonable individual category of activity and and NMFS and the Navy will evaluate alternative sites are not available, implement mitigation measures to the the area as a potential OBIA through the NMFS, in consultation with the Navy, greatest extent practicable for each consider other mitigation measures, Adaptive Management Process if new category. NRDC et al. stated that such an including procedural requirements (e.g., information becomes available. approach will serve to reduce potential requiring Fleet-level approval for use), Peter the Great Bay was considered as impact to marine mammals in an OBIA substantive standards (e.g., allowing use a candidate OBIA. Only a small portion even if not all Navy activities can only when certain criteria are met), and of Peter the Great Bay lies outside the practicably be mitigated. activity limits (e.g., limiting the number coastal standoff zone and thus meets the Response: The Navy and NMFS’ OBIA of activities per annum or avoiding geographic criteria. While Peter the assessment resulted in 14 candidate biologically important periods such as Great Bay is an important seasonal OBIAs. These 14 candidate OBIAs the blue whale foraging season), that reproductive area for the spotted seal, underwent Navy Fleet practicability would protect vital habitat while pupping activities are conducted in the review and the Navy Fleet determined allowing continued use for training northern reaches of the bay, well within that the designation of the 14 OBIAs in purposes. They stated that the Navy, in the coastal standoff zone, and no the SURTASS LFA sonar Study Area for the ‘‘practicability criterion’’ it sets forth pupping or reproductive activity is the relevant effective periods would not in the DSEIS, commits to identifying for known to occur in the portion of the bay impede the effectiveness of SURTASS NMFS the concerns that lead to its outside the coastal standoff zone. LFA active sonar testing and training determination that a particular OBIA is Further, based on currently available activities, would be practical to not practicable, and discussing information and data, the spotted seal is implement as a geographic mitigation ‘‘whether modifications could be made not known to have increased sensitivity measure, and would not impact to the proposed OBIA to alleviate the to LF sound; the best hearing sensitivity personnel safety. As a result, all 14 Navy’s practicability concerns.’’ (DSEIS in-water of the spotted seal is between candidate OBIAs were deemed at 5–8). NRDC et al. recommended that 2 and 72 kHz (Reichmuth et al., 2013; practicable and 14 new, marine both agencies work to ensure that the Sills et al., 2014). Reichmuth et al. mammal OBIAs for SURTASS LFA resulting analysis is rigorous and (2016) found no TTS in trained spotted sonar have been designated (see the searching, rather than a parroting of seals exposed to LF impulsive sounds Mitigation section and Table 21) and Navy conclusions (citing Conservation that represented single seismic air gun apply to all SURTASS LFA sonar Council for Hawaii v. NMFS, 97 transmissions (which are different from training and testing activities. Therefore, F.Supp.3d 1210, 1230 (D. Haw. 2015)). LFA sonar signals). As such, an OBIA is analysis of practicability for different Response: As previously noted in the not warranted. For these reasons, the types of activities is not necessary. response to Comment 48, all 14 IMMA for Peter the Great Bay was not Additionally, all of the activities candidate OBIAs were deemed further considered as an OBIA for utilize the SURTASS LFA sonar system practicable and 14 new marine mammal SURTASS LFA sonar. within the same operating profile, such OBIAs for SURTASS LFA sonar have The Pacific Remote Islands Marine that any single hour of SURTASS LFA been designated (see the Mitigation National Monument (Wake/Johnson/ sonar transmissions is the same as all section and Table 21), so there is no Palmyra atolls and Kingman Reef Units others. The differentiation of activities need to identify geographic alternative which are located in the SURTASS LFA was merely for planning purposes, to sites for OBIAs. As described in the Study Area) was on the OBIA Watchlist aid in determining the overall number Mitigation section, these OBIAs, in and was considered as a candidate of transmission hours per year for combination with the existing OBIA. NMFS and the Navy reviewed all SURTASS LFA sonar training and procedural mitigation effect the least available data and no specific important testing. It is not practicable to develop practicable adverse impact. biological behaviors of marine mammals geographic mitigation measures for each Comment 50: NRDC et al. have been characterized in these waters. activity. recommended to the extent that As such, this marine area did not meet Comment 48: NRDC et al. additional operational mitigation is the biological criteria required for recommended that NMFS, in impracticable, NMFS consider designation of an OBIA and was not consultation with the Navy, establish compensatory mitigation to achieve the

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‘‘least practicable adverse impact’’ and need of military readiness, thus the 2019 SURTASS LFA FSEIS/SOEIS is required under the MMPA. NRDC et al. limiting the range of alternatives and sufficient for purposes of NMFS’ own stated that compensatory mitigation is a mitigation. They noted that the Navy’s NEPA obligations related to its issuance concept that is routinely employed in purpose and need is unrelated to NMFS’ of incidental take authorization under implementation of the Endangered statutory obligations under the MMPA. the MMPA. Species Act, Clean Water Act, and other Those obligations in this instance Regarding the alternatives, NMFS’ environmental laws. The MMPA itself is involve prescribing regulations for the early involvement in the development broad in its characterization of incidental take of marine mammals that of the 2019 SURTASS LFA FSEIS/ mitigation, requiring the agency to effect the least practicable adverse SOEIS and role in evaluating the effects prescribe not only ‘‘permissible impact on such species or stock and its of incidental take under the MMPA methods of taking pursuant to [a habitat, paying particular attention to ensured that the 2018 SURTASS LFA specified activity],’’ but also ‘‘other rookeries, mating grounds, and areas of DSEIS/SOEIS would include adequate means of effecting the least practicable similar significance, and on the analysis of a reasonable range of adverse impact’’ on affected marine availability of such species or stock for alternatives. The 2019 SURTASS LFA mammal species and populations and subsistence uses (16 U.S.C. FSEIS/SOEIS includes a No Action on their habitat. 16 U.S.C. 1371(a)(5)(A)(i)). While military Alternative specifically to address what 1371(a)(5)(A)(II)(aa) (emphasis added). readiness effectiveness must be could happen if NMFS did not issue an NRDC et al. stated that the Ninth Circuit considered, id. § 1371(a)(5)(ii), the MMPA authorization. The other two opinion in Pritzker makes clear, this ultimate purpose of the MMPA is to Alternatives address two action options requirement should be construed by the protect marine mammals, and NMFS is that the Navy could potentially pursue agency as a ‘‘stringent standard.’’ 828 charged with that duty. Thus, they while also meeting their mandated Title F.3d at 1129, 1133, 1135. NRDC et al. stated that NMFS has a distinct purpose 10 training and testing responsibilities. recommended that NMFS consider and need for its proposed regulations More importantly, these alternatives compensatory mitigation for the adverse that may dictate consideration of a fully analyze a comprehensive variety of impacts of the permitted activity on broader set of alternatives. mitigation measures. This mitigation analysis supported NMFS’ evaluation of marine mammals and their habitat that Response: The proposed action at cannot be prevented or mitigated by our options in potentially issuing an issue is the Navy’s proposal to conduct modifying SURTASS LFA operations. MMPA authorization, which primarily SURTASS LFA sonar testing and Response: As previously noted in the revolves around the appropriate response to Comment 47, all 14 training activities in the SURTASS LFA mitigation to prescribe. This approach candidate OBIAs were deemed Study Area. NOAA’s NMFS is a to evaluating a reasonable range of practicable and 14 new, marine cooperating agency for that proposed alternatives is consistent with NMFS mammal OBIAs for SURTASS LFA action, as it has jurisdiction by law and policy and practice for issuing MMPA sonar have been designated (see the special expertise over marine resources incidental take authorizations. NOAA Mitigation section and Table 21), impacted by the proposed action, has independently reviewed and therefore other mitigation measures for including marine mammals and evaluated the SEIS, including the these areas are not necessary. NMFS has federally-listed threatened and purpose and need statement and range prescribed a robust comprehensive suite endangered species. Consistent with the of alternatives, and determined that the of measures that are expected to reduce regulations published by the Council on 2019 SURTASS LFA FSEIS/SOEIS fully the amount of Level A and Level B Environmental Quality (CEQ), it is satisfies NMFS’ NEPA obligations harassment takes, as well as the severity common and sound NEPA practice for related to its decision to issue the of any incurred impacts on the species NOAA to adopt a lead agency’s NEPA MMPA final rule and associated LOA, or stock and their habitat. Compensatory analysis when, after independent and we have adopted it. mitigation is not required to be imposed review, NOAA determines the Description of Marine Mammals in the upon Federal agencies under the document to be sufficient in accordance Area of the Specified Activities MMPA. Importantly, the commenter did with 40 CFR 1506.3. Specifically here, not recommend any specific measure(s), NOAA must be satisfied that the Navy’s Forty-six species of marine mammals, rendering it impossible to conduct any EIS adequately addresses the impacts of including 10 baleen whale (mysticete); meaningful evaluation of its issuing the MMPA incidental take 31 toothed whale (odontocete); and 5 recommendation. Finally, many of the authorization and that NOAA’s seal/sea lion (pinniped) species that methods of compensatory mitigation comments and concerns have been represent 139 stocks (as currently that have proven successful in terrestrial adequately addressed. There is no classified) have confirmed or possible settings (purchasing or preserving land requirement in CEQ regulations that occurrence within potential SURTASS with important habitat, improving NMFS, as a cooperating agency, issue a LFA sonar activity areas in the central habitat through plantings, etc.) are not separate purpose and need statement in and western North Pacific Ocean and applicable in a marine setting with such order to ensure adequacy and eastern Indian Ocean. Multiple stocks of far-ranging species. Thus, any presumed sufficiency for adoption. Nevertheless, some species are affected, and conservation value from such an idea the Navy, in coordination with NMFS, independent assessments are conducted would be purely speculative at this has clarified the statement of purpose to make the necessary findings and time. and need in the 2019 SURTASS LFA determinations for each of these. FSEIS/SOEIS to more explicitly There are 11 marine mammal species National Environmental Policy Act acknowledge NMFS’ action of issuing under NMFS’ jurisdiction listed as (NEPA) an MMPA incidental take authorization. endangered or threatened under the Comment 51: NRDC et al. stated that NMFS also clarified how its regulatory Endangered Species Act (ESA; 16 U.S.C. NMFS cannot rely on the Navy’s EIS to role under the MMPA related to Navy’s 1531 et seq.) with confirmed or possible fulfill its obligations under NEPA activities. NMFS’ early participation in occurrence in the study area for because it is unlawful. They stated that the NEPA process and role in shaping SURTASS LFA sonar training and the Navy’s DEIS serves only the Navy’s and informing analyses using its special testing activities. Marine mammal interests, considering only the purpose expertise ensured that the analysis in species under NMFS’ jurisdiction in the

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study area listed as endangered are: range (i.e., distance of 22 km (13 mi; 12 Service (USFWS) is responsible for North Pacific right whale (Eubalaena nmi) from land), take of Chinese river managing occur in geographic areas that japonica); gray whale (Eschrichtius dolphins is not considered a reasonable would overlap with the SURTASS LFA robustus); blue whale (Balaenoptera likelihood; therefore, this species is not sonar Study Area. Therefore, the Navy musculus); fin whale (Balaenoptera addressed further in this document. has determined that SURTASS LFA physalus); Western North Pacific Similarly, the Taiwanese humpback sonar activities would have no effect on distinct population segment (DPS) of dolphin, a subspecies of the Indo-Pacific the endangered or threatened species or humpback whale (Megaptera humpback dolphin, is found only in a the critical habitat of the ESA-listed novaeangliae); sei whale (Balaenoptera small, narrow stretch of estuarine waters species under the jurisdiction of the borealis); sperm whale (Physeter off the western coast of Taiwan. Take of USFWS. These species are not macrocephalus); Main Hawaiian Islands this species is also not considered a considered further in this notice. Insular DPS of false killer whale reasonable likelihood and this species is (Pseudorca crassidens); Western DPS of not addressed further in this document. To accurately assess the potential the Steller sea lion (Eumetopias Finally, the small population (<100 effects of SURTASS LFA sonar jubatus); and Hawaiian monk seal individuals) of Arabian Sea DPS of activities, the Navy modeled 15 (Neomonachus schauinslandi). The humpback whales includes those representative sites in the SURTASS southern DPS of the spotted seal (Phoca whales breeding and foraging in tropical LFA sonar activity area. Tables 2 largha) is listed as threatened under the waters year-round along the coast of through 16 (below) summarize the ESA and is within the study area for Oman (Bettridge et al., 2015). Historical abundance, status under the ESA, and SURTASS LFA sonar activities. The records, sparse sightings and acoustic density estimates of the marine mammal aforementioned threatened and recordings, and one satellite tagged species and stocks that have confirmed endangered marine mammal species whale, along the coasts of Pakistan and or possible occurrence within the 15 also are depleted under the MMPA. India indicate that the Arabian Sea DPS SURTASS LFA sonar modeling areas in Chinese river dolphins (Lipotes range may also include these areas. the central and western North Pacific vexillifer) do not have stocks designated Based on the small population size and Ocean and eastern Indian Ocean. within the SURTASS LFA sonar study the extremely rare occurrence of Information on how the density and area (see Potential SURTASS LFA Study humpback whales along the coasts of abundance stock estimates were derived Area section). The distribution of the Pakistan and India, take of the Arabian Chinese river dolphin is limited to the Sea DPS of humpback whales is not for the selected mission sites is main channel of a river section between considered a reasonable likelihood; described in Appendix D of the 2019 the cities of Jingzhou and Jiangyin. therefore, this species is not addressed SURTASS FSEIS/SOEIS and references Based on the extremely rare occurrence further in this document. for the abundances and densities of these species in the Navy’s Study None of the marine mammal species described are provided in Tables 2 Area and due to the coastal standoff which the U.S. Fish and Wildlife through 16. TABLE 2—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 1, EAST OF JAPAN

Density (animals/Km 2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN Barlow 2001; 2003; LGL, 2008. Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977...... NL Common minke whale ...... WNP OE ...... 25,049 Buckland et al., 1992 ...... 0.0022 0.0022 0.0022 0.0022 Buckland et al., 1992 ...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., ...... 0.0002 0.0002 Tillman, 1977...... EN 2009. Humpback whale ...... WNP stock and 1,328 Bettridge et al., 2015 ...... 0.00036 0.00036 Calambokidis et al., 2008; EN DPS. LGL, 2008. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 ...... Unavail ...... EN Sei whale ...... NP ...... 7,000 Mizroch et al., 2015 ...... 0.00029 0.00029 0.00029 0.00029 Fulling et al., 2011 ...... EN Baird’s beaked whale ...... WNP ...... 5,688 Miyashita 1986 and 1990; ...... 0.0029 0.0029 Kasuya, 1986...... NL Kasuya and Perrin, 2017. Common dolphin ...... WNP ...... 3,286,163 Ferguson and Barlow, 2001; 0.0761 0.0761 0.0761 0.0761 Ferguson and Barlow, 2001; NL 2003. 2003. Common bottlenose dolphin ... WNP Northern Off- 100,281 Miyashita, 1993; Kasuya and 0.0171 0.0171 0.0171 0.0171 Miyashita, 1993...... NL shore. Perrin, 2017. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0031 0.0031 0.0031 0.0031 Ferguson and Barlow, 2001; NL 2003. 2003. Dall’s porpoise (truei) ...... WNP truei ...... 178,157 Miyashita, 2007; Kasuya and 0.0390 0.0520 ...... 0.0520 Ferguson and Barlow, 2001; NL Perrin, 2017. 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.0036 0.0036 0.0036 0.0036 Miyashita, 1993...... NL Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Harbor porpoise ...... WNP ...... 31,046 Hobbs and Waite, 2010; Allen 0.0190 0.0190 0.0190 0.0190 Hobbs and Waite, 2010 ...... NL and Angliss, 2014. Hubbs beaked whale ...... NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.0001 0.0001 0.0001 0.0001 LGL, 2011...... NL 2003. Kogia spp. 4 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0031 0.0031 0.0031 0.0031 Ferguson and Barlow, 2001; NL 2003. 2003. Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0082 0.0082 0.0082 0.0082 Ferguson and Barlow, 2001; NL 2003. Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.0259 0.0259 Miyashita, 1993...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.0021 0.0021 0.0021 0.0021 Ferguson and Barlow, 2001; NL 2003. 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.0097 0.0097 0.0097 0.0097 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Short-finned pilot whale ...... WNP Northern ...... 20,884 Miyashita, 1993 ...... 0.0128 0.0128 0.0128 0.0128 Miyashita, 1993 ...... NL

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TABLE 2—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 1, EAST OF JAPAN—Continued

Density (animals/Km 2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; ...... 0.00083 0.00083 Barlow, 2006...... NL 2003. Stejneger’s beaked whale ...... WNP ...... 8,000 Kasuya, 1986 ...... 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. Striped dolphin ...... WNP Northern Off- 497,725 Miyashita, 1993; Kasuya and 0.0111 0.0111 0.0111 0.0111 Miyashita, 1993...... NL shore. Perrin, 2017. Northern fur seal ...... WP ...... 503,609 Kuzin 2015; Gelatt et al., 0.368 0.158 ...... Horimoto et al., 2016 ...... NL 2015. 1 NP = north Pacific; OE = Offshore Japan; WP = western Pacific; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 3—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 2, NORTH PHILIPPINE SEA

Density (animals/Km 2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN Barlow 2001; 2003; LGL, 2008. Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977...... NL Common minke whale ...... WNP OE ...... 25,049 Buckland et al., 1992 ...... 0.0044 0.0044 0.0044 0.0044 Buckland et al., 1992 ...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., 0.0002 0.0002 ...... Tillman, 1977...... EN 2009. Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00089 0.00089 ...... 0.00089 Acebes et al., 2007; LGL, EN 2008. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 ...... Unavail ...... EN Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Common dolphin ...... WNP ...... 3,286,163 Ferguson and Barlow, 2001; 0.0562 0.0562 0.0562 0.0562 Ferguson and Barlow, 2001; NL 2003. 2003. Common bottlenose dolphin ... Japanese Coastal 3,516 Kanaji et al., 2018 ...... 0.0146 0.0146 0.0146 0.0146 Miyashita, 1993...... NL Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0054 0.0054 0.0054 0.0054 Ferguson and Barlow, 2001; NL 2003. 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.0029 0.0029 0.0029 0.0029 Miyashita, 1993...... NL Fraser’s dolphin ...... WNP ...... 220,789 Ferguson and Barlow, 2001; 0.0069 0.0069 0.0069 0.0069 Bradford et al., 2013 ...... NL 2003. Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Kogia spp.4 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0031 0.0031 0.0031 0.0031 Ferguson and Barlow, 2001; NL 2003. 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00428 0.00428 0.00428 0.00428 Fulling et al., 2011 ...... NL Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0119 0.0119 ...... Ferguson and Barlow, 2001; NL 2003. Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.0137 0.0137 0.0137 0.0137 Miyashita, 1993...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.0021 0.0021 0.0021 0.0021 Ferguson and Barlow, 2001; NL 2003. 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Short-finned pilot whale ...... WNP Southern ..... 31,396 Kanaji et al., 2018 ...... 0.0153 0.0153 0.0153 0.0153 Miyashita, 1993...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00083 0.00083 0.00083 0.00083 Barlow, 2006...... NL 2003. Striped dolphin ...... Japanese Coastal 19,631 Miyashita, 1993; Kasuya and 0.0329 0.0329 0.0329 0.0329 Miyashita, 1993...... NL Perrin, 2017. 1 NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 4— ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 3, WEST PHILIPPINE SEA

Density (animals/Km 2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1997 ...... 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN Barlow 2001; 2003; LGL, 2008. Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977...... NL Common minke whale ...... WNP OE ...... 25,049 Buckland et al., 1992 ...... 0.0033 0.0033 0.0033 0.0033 Buckland et al., 1992 ...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., 0.0002 0.0002 ...... Tillman, 1977...... EN 2009. Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00089 0.00089 ...... 0.00089 Acebes et al., 2007; LGL, EN 2008.

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TABLE 4— ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 3, WEST PHILIPPINE SEA—Continued

Density (animals/Km 2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Blainville‘s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Common dolphin ...... WNP ...... 3,286,163 Ferguson and Barlow, 2001; 0.1158 0.1158 0.1158 0.1158 Carretta et al., 2011 ...... NL 2003. Common bottlenose dolphin ... WNP Southern 40,769 Kanaji et al., 2018 ...... 0.0146 0.0146 0.0146 0.0146 Miyashita, 1993...... NL Offshore. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0003 0.0003 0.0003 0.0003 Ferguson and Barlow, 2001; NL 2003. 2003. Deraniyagala’s beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.0029 0.0029 0.0029 0.0029 Miyashita, 1993...... NL Fraser’s dolphin ...... WNP ...... 220,789 Ferguson and Barlow, 2001; 0.0069 0.0069 0.0069 0.0069 Bradford et al., 2013 ...... NL 2003. Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Kogia spp.4 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0017 0.0017 0.0017 0.0017 Ferguson and Barlow, 2001; NL 2003. 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00428 0.00428 0.00428 0.00428 Fulling et al., 2011 ...... NL Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.0137 0.0137 0.0137 0.0137 Miyashita, 1993...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.0021 0.0021 0.0021 0.0021 Ferguson and Barlow, 2001; NL 2003. 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Short-finned pilot whale ...... WNP Southern ..... 31,396 Kanaji et al., 2018 ...... 0.0076 0.0076 0.0076 0.0076 Miyashita, 1993...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00083 0.00083 0.00083 0.00083 Barlow, 2006...... NL 2003. Striped dolphin ...... WNP Southern 52,682 Miyashita, 1993; Kasuya and 0.0164 0.0164 0.0164 0.0164 Miyashita, 1993...... NL Offshore. Perrin, 2017. 1 NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 5—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 4, OFFSHORE GUAM

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00005 0.00005 ...... 0.00005 Bradford et al., 2017 ...... EN Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0004 0.0004 0.0004 0.0004 Fulling et al., 2011 ...... NL Common minke whale ...... WNP ‘‘OE’’ ...... 25,049 Buckland et al., 1992 ...... 0.0003 0.0003 0.0003 0.0003 Ferguson and Barlow, 2001; NL 2003. Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., 0.00006 0.00006 ...... 0.00006 Bradford et al., 2017 ...... EN 2009. Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00089 0.00089 ...... 0.00089 Acebes et al., 2007; LGL, EN 2008. Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Sei whale ...... NP ...... 7,000 Mizroch et al., 2015 ...... 0.00029 0.00029 ...... 0.00029 Fulling et al., 2011 ...... EN Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.00086 0.00086 0.00086 0.00086 Bradford et al., 2017 ...... NL 2003. Common bottlenose dolphin ... WNP Southern 40,769 Kanaji et al., 2018 ...... 0.00899 0.00899 0.00899 0.00899 Bradford et al., 2017 ...... NL Offshore. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0003 0.0003 0.0003 0.0003 Bradford et al., 2017 ...... NL 2003. Deraniyagala’s beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.00189 0.00189 0.00189 0.00189 Bradford et al., 2017 ...... NL 2003. Dwarf sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.00714 0.00714 0.00714 0.00714 Barlow, 2006...... NL 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.00111 0.00111 0.00111 0.00111 Fulling et al., 2011 ...... NL Fraser’s dolphin ...... CNP ...... 16,992 Bradford et al., 2013 ...... 0.02104 0.02104 0.02104 0.02104 Bradford et al., 2017 ...... NL Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.00189 0.00189 0.00189 0.00189 Bradford et al., 2017 ...... NL 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00006 0.00006 0.00006 0.00006 Bradford et al., 2017 ...... NL 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00311 0.00311 0.00311 0.00311 Bradford et al., 2017 ...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00428 0.00428 0.00428 0.00428 Fulling et al., 2011 ...... NL Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.0226 0.0226 0.0226 0.0226 Fulling et al., 2011 ...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.00014 0.00014 0.00014 0.00014 Fulling et al., 2011 ...... NL 2003. Pygmy sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.00291 0.00291 0.00291 0.00291 Barlow, 2006...... NL 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.00474 0.00474 0.00474 0.00474 Bradford et al., 2017 ...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00185 0.00185 0.00185 0.00185 LGL, 2011...... NL Short-finned pilot whale ...... WNP Southern ..... 31,396 Kanaji et al., 2018 ...... 0.00797 0.00797 0.00797 0.00797 Bradford et al., 2017 ...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00083 0.00083 0.00083 0.00083 Barlow, 2006...... NL 2003.

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TABLE 5—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 4, OFFSHORE GUAM—Continued

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Striped dolphin ...... WNP Southern 52,682 Mayashita, 1993; Kasuya and 0.00616 0.00616 0.00616 0.00616 Fulling et al., 2011 ...... NL Offshore. Perrin, 2017. 1 CNP = central north Pacific; NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 6—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 5, SEA OF JAPAN

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0001 0.0001 0.0001 0.0001 Ferguson and Barlow, 2001; NL 2003. Common minke whale ...... WNP JW Stock .... 2,611 Miyashita and Okamura, 2011 0.00016 0.00016 0.00016 0.00016 Ferguson and Barlow, 2001; NL 2003. Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., 0.0009 0.0009 ...... 0.0009 Ferguson and Barlow, 2001; EN 2009. 2003. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 ...... Unavail ...... EN Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Western North Pacific gray WNP Western 290 Caretta et al., 2019 ...... 0.00001 0.00001 0.00001 0.00001 Unavail...... EN 4 whale. DPS. Baird’s beaked whale ...... WNP ...... 5,688 Miyashita 1986 and 1990; 0.0003 0.0003 ...... 0.0003 Kasuya, 1986...... NL Kasuya and Perrin, 2017. Common dolphin ...... WNP ...... 279,182 Carretta et al., 2011 ...... 0.1158 0.1158 0.1158 0.1158 Carretta et al., 2011 ...... NL Common bottlenose dolphin ... IA ...... 105,138 Miyashita, 1986; Kishiro and 0.00077 0.00077 0.00077 0.00077 LGL, 2011...... NL Kasuya 1993. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0031 0.0031 0.0031 0.0031 Ferguson and Barlow, 2001; NL 2003. 2003. Dall’s porpoise ...... SOJ dalli ...... 173,638 IWC, 2008 ...... 0.0520 0.0520 ...... 0.0520 Ferguson and Barlow, 2001; NL 2003. False killer whale ...... IA ...... 9,777 Miyashita, 1986; Kishiro and 0.0027 0.0027 0.0027 0.0027 Ferguson and Barlow, 2001; NL Kasuya 1993. 2003. Harbor porpoise ...... WNP ...... 31,046 Hobbs and Waite, 2010; 0.0190 0.0190 ...... 0.0190 Hobbs and Waite, 2010 ...... NL Angliss and Allen, 2014. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Kogia spp.5 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0017 0.0017 0.0017 0.0017 Ferguson and Barlow, 2001; NL 2003. 2003. Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0030 0.0030 ...... Ferguson and Barlow, 2001; NL 2003. Risso’s dolphin ...... IA ...... 143,374 Kanaji et al., 2018 ...... 0.0073 0.0073 0.0073 0.0073 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; ...... 0.00083 0.00083 Barlow, 2006...... NL 2003. Stejneger’s beaked whale ...... WNP ...... 8,000 Kasuya, 1986 ...... 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. Northern fur seal ...... WP ...... 503,609 Kuzin 2015; Gelatt et al., 0.368 0.158 ...... Horimoto et al., 2016 ...... NL 2015. Spotted seal ...... Southern and DPS 6,284 Trukhin 2019, Han et al., 0.00001 0.00001 0.00001 0.00001 Unavail...... T 2010; Han et al., 2005, Yan et al., 2018, Shibuya and Kobayashi 2016. 1 IA = Inshore Archipelago; JW = Sea of Japan (minke); NP = north Pacific; SOJ = Sea of Japan; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 Only the western Pacific population of gray whale is endangered under the ESA. 5 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 7—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 6, EAST CHINA SEA

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Bryde’s whale ...... ECS ...... 137 IWC, 1996 ...... 0.0003 0.0003 0.0003 0.0003 Bradford et al., 2013 ...... NL Common minke whale ...... YS ...... 4,492 Miyashita and Okamura, 0.0018 0.0018 0.0018 0.0018 Buckland et al., 1992 ...... NL 2011; Hakamada and Hatanaka, 2010. Fin whale ...... ECS ...... 500 Tillman, 1977; Mizroch et al., 0.0002 0.0002 0.0002 0.0002 Tillman, 1977...... EN 2009. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 ...... Unavail ...... EN Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008...... NL Western North Pacific gray WNP and Western 290 Carretta et al., 2019 ...... 0.00001 0.00001 ...... 0.00001 Unavail...... EN 4 whale. DPS. Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Common dolphin ...... WNP ...... 279,182 Carretta et al., 2011 ...... 0.1158 0.1158 0.1158 0.1158 Carretta et al., 2011 ...... NL Common bottlenose dolphin ... IA ...... 105,138 Miyashita, 1986; Kishiro and 0.00077 0.00077 0.00077 0.00077 LGL, 2011...... NL Kasuya 1993.

VerDate Sep<11>2014 18:45 Aug 12, 2019 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\13AUR2.SGM 13AUR2 jspears on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations 40165

TABLE 7—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 6, EAST CHINA SEA—Continued

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0003 0.0003 0.0003 0.0003 Ferguson and Barlow, 2001; NL 2003. 2003. False killer whale ...... IA ...... 9,777 Miyashita, 1986; Kishiro and 0.00111 0.00111 0.00111 0.00111 Fulling et al., 2011 ...... NL Kasuya 1993. Fraser’s dolphin ...... WNP ...... 220,789 Ferguson and Barlow, 2001; 0.00694 0.00694 0.00694 0.00694 Bradford et al., 2013 ...... NL 2003. Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Kogia spp.5 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0017 0.0017 0.0017 0.0017 Ferguson and Barlow, 2001; NL 2003. 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00428 0.00428 0.00428 0.00428 Fulling et al., 2011 ...... NL Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0028 0.0028 ...... Ferguson and Barlow, 2001; NL 2003. Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.01374 0.01374 0.01374 0.01374 Miyashita, 1993...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.00014 0.00014 0.00014 0.00014 Fulling et al., 2011 ...... NL 2003. Risso’s dolphin ...... IA ...... 143,374 Kanaji et al., 2018 ...... 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00083 0.00083 0.00083 0.00083 Barlow, 2006...... NL 2003. Spotted seal ...... Southern and DPS 1,500 Han et al., 2005 in Yan et al., 0.00001 0.00001 0.00001 0.00001 Unavail...... T 2018; Han et al., 2010. 1 ECS = East China Sea; IA = Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 Only the western Pacific population of gray whale is endangered under the ESA. 5 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 8—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 7, SOUTH CHINA SEA

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0006 0.0006 0.0006 0.0006 Ohsumi, 1977...... NL Common minke whale ...... YS ...... 4,492 Miyashita and Okamura, 0.0018 0.0018 0.0018 0.0018 Buckland et al., 1992 ...... NL 2011; Kakamada ad Hatanaka 2010. Fin whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.0002 0.0002 ...... 0.0002 Tillman, 1977...... EN Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00036 0.00036 ...... 0.00036 Calambokidis et al., 2008; EN LGL, 2008. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 ...... Unavail ...... EN Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Western North Pacific gray WNP and Western 290 Carretta et al., 2019 ...... 0.00001 0.00001 ...... 0.00001 Unavail...... EN 4 whale. DPS. Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Common dolphin ...... WNP ...... 279,182 Carretta et al., 2011 ...... 0.1158 0.1158 0.1158 0.1158 Carretta et al., 2011 ...... NL Common bottlenose dolphin ... IA ...... 105,138 Miyashita, 1986; Kishiro and 0.00077 0.00077 0.00077 0.00077 LGL, 2011...... NL Kasuya 1993. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0003 0.0003 0.0003 0.0003 Ferguson and Barlow, 2001; NL 2003. 2003. Deraniyagala’s beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. False killer whale ...... IA ...... 9,777 Miyashita, 1986; Kishiro and 0.00111 0.00111 0.00111 0.00111 Fulling et al., 2011 ...... NL Kasuya 1993. Fraser’s dolphin ...... WNP ...... 220,789 Ferguson and Barlow, 2001; 0.00694 0.00694 0.00694 0.00694 Bradford et al., 2013 ...... NL 2003. Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Kogia spp.5 ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0017 0.0017 0.0017 0.0017 Ferguson and Barlow, 2001; NL 2003. 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00428 0.00428 0.00428 0.00428 Fulling et al., 2011 ...... NL Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.01374 0.01374 0.01374 0.01374 Miyashita, 1993...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.00014 0.00014 0.00014 0.00014 Fulling et al., 2011 ...... NL 2003. Risso’s dolphin ...... IA ...... 143,374 Kanaji et al., 2018 ...... 0.0106 0.0106 0.0106 0.0106 Miyashita, 1993...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Short-finned pilot whale ...... WNP Southern ..... 31,396 Kanaji et al., 2018 ...... 0.00159 0.00159 0.00159 0.00159 Fulling et al., 2011 ...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00123 0.00123 0.00123 0.00123 Fulling et al., 2011 ...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00083 0.00083 0.00083 0.00083 Barlow, 2006...... NL 2003. Striped dolphin ...... WNP Southern 52,682 Miyashita, 1993; Kasuya and 0.00584 0.00584 0.00584 0.00584 LGL, 2011...... NL Offshore. Perrin, 2017. 1 IA = Inshore Archipelago; NP = north Pacific; WNP = western north Pacific; YS = Yellow Sea. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

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4 Only the western Pacific population of gray whale is endangered under the ESA. 5 Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp as reported in Ferguson and Barlow, 2001 and 2003.

TABLE 9—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 8, OFFSHORE JAPAN 25° TO 40° N

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN Barlow 2001; 2003; LGL, 2008. Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0003 0.0003 0.0003 0.0003 LGL, 2011...... NL Common minke whale ...... WNP ‘‘OE’’ ...... 25,049 Buckland et al., 1992 ...... 0.0003 0.0003 0.0003 0.0003 Buckland et al., 1992 ...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977; Mizroch et al., ...... 0.0001 0.0001 Tillman, 1977...... EN 2009. Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00036 0.00036 Calambokidis et al., 2008; EN LGL, 2008. Sei whale ...... NP ...... 7,000 Mizroch et al., 2015 ...... 0.00029 0.00029 0.00029 Fulling et al., 2011 ...... EN Baird’s beaked whale ...... WNP ...... 5,688 Miyashita, 1986; Kasuya and 0.0001 0.0001 0.0001 0.0001 Kasuya, 1986...... NL Perrin, 2017. Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0007 0.0007 0.0007 0.0007 LGL, 2011...... NL 2003. Common dolphin ...... WNP ...... 3,286,163 Ferguson and Barlow, 2001; 0.0863 0.0863 0.0863 0.0863 Ferguson and Barlow, 2001; NL 2003. 2003. Common bottlenose dolphin ... WNP Northern Off- 100,281 Miyashita, 1993; Kasuya and 0.00077 0.00077 0.00077 0.00077 LGL, 2011...... NL shore. Perrin, 2017. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.00374 0.00374 0.00374 0.00374 LGL, 2011...... NL 2003. Dall’s porpoise ...... WNP dalli ...... 162,000 Miyashita, 1991; Kasuya and 0.0390 0.0520 ...... 0.0520 Ferguson and Barlow, 2001; NL Perrin, 2017. 2003. Dwarf sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0043 0.0043 0.0043 0.0043 LGL, 2011...... NL 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.0036 0.0036 0.0036 0.0036 Miyashita, 1993...... NL Hubb’s beaked whale ...... NP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.0027 0.0027 0.0027 0.0027 LGL, 2011...... NL Mesoplodon spp.4 ...... WNP ...... 22,799 Ferguson and Barlow, 2001; 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. 2003. Northern right whale dolphin .. NP ...... 68,000 Buckland et al., 1993 ...... 0.00001 0.00001 ...... 0.00001 Unavail...... NL Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0048 0.0048 0.0048 0.0048 Ferguson and Barlow, 2001; NL 2003. Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.0113 0.0113 0.0113 0.0113 LGL, 2011...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.0001 0.0001 0.0001 0.0001 LGL, 2011...... NL 2003. Pygmy sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0018 0.0018 0.0018 0.0018 LGL, 2011...... NL 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.0005 0.0005 0.0005 0.0005 LGL, 2011...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.0019 0.0019 0.0019 0.0019 LGL, 2011...... NL Short-finned pilot whale ...... WNP Northern ...... 20,884 Miyashita, 1993 ...... 0.0021 0.0021 0.0021 0.0021 LGL, 2011 ...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.0022 0.0022 0.0022 0.0022 LGL, 2011...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.0019 0.0019 0.0019 0.0019 LGL, 2011...... NL 2003. Stejneger’s beaked whale ...... WNP ...... 8,000 Kasuya, 1986 ...... 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. Striped dolphin ...... WNP Northern Off- 497,725 Miyashita, 1993; Kasuya and 0.0058 0.0058 0.0058 0.0058 LGL, 2011...... NL shore. Perrin, 2017. Hawaiian monk seal ...... Hawaii ...... 1,427 NMFS, 2018 ...... 0.00001 0.00001 0.00001 0.00001 Unavail ...... EN Northern fur seal ...... WP ...... 503,609 Kuzin 2015; Gelatt et al., 0.0123 ...... Buckland et al., 1993 ...... NL 2015. 1 NP = north Pacific; OE = Offshore Japan; WNP = western north Pacific; WP = Western Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed. 4 No methods are available to distinguish between the species of Mesoplodon beaked whales in the WNP stocks (Blainville’s beaked whale (M. densirostris), Perrin’s beaked whale (M. perrini), Lesser beaked whale (M. peruvianus), Stejneger’s beaked whale (M. stejnegeri), Gingko-toothed beaked whale (M. gingkodens), and Hubbs’ beaked whale (M. carlhubbsi)) when ob- served during at-sea surveys (Carretta et al., 2018). As reported in Ferguson and Barlow, 2001 and 2003, data on these species were pooled. These six species are managed as one unit.

TABLE 10—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 9, OFFSHORE JAPAN 10° TO 25° N

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977; Caretta et al., 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN 2019. Barlow 2001; 2003; LGL, 2008. Bryde’s whale ...... WNP ...... 20,501 IWC, 2009 ...... 0.0003 0.0003 0.0003 0.0003 LGL, 2011...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00001 0.00001 ...... Unavail ...... EN Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.00036 0.00036 ...... 0.00036 Calambokidis et al., 2008; EN LGL, 2008. Omura’s whale ...... WNP ...... 1,800 Oshsumi, 1980 ...... 0.00004 0.00004 0.00004 0.00004 LGL, 2008; DoN, 2018 ...... NL Sei whale ...... NP ...... 7,000 Mizroch et al., 2015 ...... 0.00029 ...... 0.00029 Fulling et al., 2011 ...... EN Blainville’s beaked whale ...... WNP ...... 8,032 Ferguson and Barlow, 2001; 0.0007 0.0007 0.0007 0.0007 LGL, 2011...... NL 2003. Common bottlenose dolphin ... WNP Southern 40,769 Kanaji et al., 2018 ...... 0.00077 0.00077 0.00077 0.00077 LGL, 2011...... NL Offshore. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.00374 0.00374 0.00374 0.00374 LGL, 2011...... NL 2003.

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TABLE 10—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 9, OFFSHORE JAPAN 10° TO 25° N—Continued

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Deraniyagala’s beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.00093 0.00093 0.00093 0.00093 Ferguson and Barlow, 2001; NL 2003. 2003. Dwarf sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.0043 0.0043 0.0043 0.0043 LGL, 2011...... NL 2003. False killer whale ...... WNP ...... 16,668 Miyashita, 1993 ...... 0.00057 0.00057 0.00057 0.00057 LGL, 2011...... NL Fraser’s dolphin ...... CNP ...... 16,992 Bradford et al., 2013 ...... 0.00251 0.00251 0.00251 0.00251 LGL, 2011...... NL Ginkgo-toothed beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.00093 0.00093 0.00093 0.00093 Ferguson and Barlow, 2001; NL 2003. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.00009 0.00009 0.00009 0.00009 LGL, 2011...... NL 2003. Longman’s beaked whale ...... WNP ...... 7,619 Bradford et al., 2017 ...... 0.00025 0.00025 0.00025 0.00025 LGL, 2011...... NL Melon-headed whale ...... WNP ...... 56,213 Kanaji et al., 2018 ...... 0.00267 0.00267 0.00267 0.00267 LGL, 2011...... NL Pantropical spotted dolphin .... WNP ...... 130,002 Kanaji et al., 2018 ...... 0.01132 0.01132 0.01132 0.01132 LGL, 2011...... NL Pygmy killer whale ...... WNP ...... 30,214 Ferguson and Barlow, 2001; 0.00006 0.00006 0.00006 0.00006 LGL, 2011...... NL 2003. Pygmy sperm whale ...... WNP ...... 350,553 Ferguson and Barlow, 2001; 0.00176 0.00176 0.00176 0.00176 LGL, 2011...... NL 2003. Risso’s dolphin ...... WNP ...... 143,374 Kanaji et al., 2018 ...... 0.00046 0.00046 0.00046 0.00046 LGL, 2011...... NL Rough-toothed dolphin ...... WNP ...... 5,002 Kanaji et al., 2018 ...... 0.00185 0.00185 0.00185 0.00185 LGL, 2011...... NL Short-finned pilot whale ...... WNP Southern ..... 31,396 Kanaji et al., 2018 ...... 0.00211 0.00211 0.00211 0.00211 LGL, 2011...... NL Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.00222 0.00222 0.00222 0.00222 LGL, 2011...... EN Spinner dolphin ...... WNP ...... 1,015,059 Ferguson and Barlow, 2001; 0.00187 0.00187 0.00187 0.00187 LGL, 2011...... NL 2003. Striped dolphin ...... WNP Southern 52,682 Miyashita, 1993; Kasuya and 0.00584 0.00584 0.00584 0.00584 LGL, 2011...... NL Offshore. Perrin, 2017. 1 NP = north Pacific; CNP = central north Pacific; WNP = western north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 11—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 10, NORTHERN HAWAII

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... CNP ...... 133 Bradford et al., 2017 ...... 0.00005 0.00005 ...... 0.00005 Bradford et al., 2017 ...... EN Bryde’s whale ...... Hawaii ...... 1,751 Bradford et al., 2017 ...... 0.000085 0.000085 0.000085 0.000085 Forney et al., 2015 ...... NL Common minke whale ...... Hawaii ...... 25,049 Buckland et al., 1992 ...... 0.00423 0.00423 ...... 0.00423 Martin et al., 2015 ...... NL Fin whale ...... Hawaii ...... 154 Bradford et al., 2017 ...... 0.00006 0.00006 ...... 0.00006 Bradford et al., 2017 ...... EN Humpback whale ...... CNP and Hawaii 10,103 Calambokidis et al., 2008; 0.00529 0.00529 ...... 0.00529 Mobley et al., 2001; NL DPS. Muto et al., 2019. Calambokidis et al., 2008. Sei whale ...... Hawaii ...... 391 Bradford et al., 2017 ...... 0.00016 0.00016 ...... 0.00016 Bradford et al., 2017 ...... EN Blainville’s beaked whale ...... Hawaii ...... 2,105 Bradford et al., 2017 ...... 0.00086 0.00086 0.00086 0.00086 Bradford et al., 2017 ...... NL Common bottlenose dolphin ... Hawaii pelagic ...... 21,815 Bradford et al., 2017 ...... 0.00118 0.00118 0.00118 0.00118 Forney et al., 2015 ...... NL Kauai/Niihau ...... 184 Baird et al., 2009; Caretta et 0.065 0.065 0.065 0.065 Baird et al., 2009 ...... NL al., 2014. 4 Islands ...... 191 Baird et al., 2009; Caretta et 0.017 0.017 0.017 0.017 Baird et al., 2009 ...... NL al., 2014. Oahu ...... 743 Baird et al., 2009; Caretta et 0.187 0.187 0.187 0.187 Baird et al., 2009 ...... NL al., 2014. Hawaii Island ...... 128 Baird et al., 2009; Caretta et 0.028 0.028 0.028 0.028 Baird et al., 2009 ...... NL al., 2014. Cuvier’s beaked whale ...... Hawaii ...... 723 Bradford et al., 2017 ...... 0.0003 0.0003 0.0003 0.0003 Bradford et al., 2017 ...... NL Dwarf sperm whale ...... Hawaii ...... 17,519 Barlow, 2006 ...... 0.00714 0.00714 0.00714 0.00714 Barlow, 2006...... NL False killer whale ...... Hawaii-Pelagic ..... 1,540 Bradford et al., 2014; 2015; 0.0006 0.0006 0.0006 0.0006 Forney et al., 2015; Bradford NL Caretta et al., 2019. et al., 2015. Main Hawaiian Is- 167 Bradford et al., 2018; Caretta 0.0008 0.0008 0.0008 0.0008 Bradford et al., 2015 ...... EN lands Insular et al., 2019. and DPS. Northwest Hawai- 617 Bradford et al., 2014; 2015; 0.0006 0.0006 0.0006 0.0006 Forney et al., 2015; Bradford NL ian Islands. Caretta et al., 2019. et al., 2015. Fraser’s dolphin ...... Hawaii ...... 51,491 Bradford et al., 2017 ...... 0.02104 0.02104 0.02104 0.02104 Bradford et al., 2017 ...... NL Killer whale ...... Hawaii ...... 146 Bradford et al., 2017 ...... 0.00006 0.00006 0.00006 0.00006 Bradford et al., 2017 ...... NL Longman’s beaked whale ...... Hawaii ...... 7,619 Bradford et al., 2017 ...... 0.00311 0.00311 0.00311 0.00311 Bradford et al., 2017 ...... NL Melon-headed whale ...... Hawaiian Islands .. 8,666 Bradford et al., 2017 ...... 0.002 0.0020 0.0020 0.0020 Aschettino, 2010...... NL Kohala Resident ... 447 Aschettino, 2010 ...... 0.1000 0.1000 0.1000 0.1000 Aschettino, 2010 ...... NL Pantropical spotted dolphin .... Hawaii Pelagic ..... 55,795 Bradford et al., 2017 ...... 0.00369 0.00369 0.00369 0.00369 Forney et al., 2015 ...... NL Hawaii Island ...... 220 Courbis et al., 2014 ...... 0.061 0.061 0.061 0.061 Oleson et al., 2013 ...... NL Oahu ...... 220 Courbis et al., 2014 ...... 0.072 0.072 0.072 0.072 Oleson et al., 2013 ...... NL 4 Islands ...... 220 Courbis et al., 2014 ...... 0.061 0.061 0.061 0.061 Oleson et al., 2013 ...... NL Pygmy killer whale ...... Hawaii ...... 10,640 Bradford et al., 2017 ...... 0.00435 0.00435 0.00435 0.00435 Bradford et al., 2017 ...... NL Pygmy sperm ...... Hawaii ...... 7,138 Barlow, 2006 ...... 0.0029 0.0029 0.0029 0.0029 Barlow, 2006...... NL Risso’s dolphin ...... Hawaii ...... 11,613 Bradford et al., 2017 ...... 0.00474 0.00474 0.00474 0.00474 Bradford et al., 2017 ...... NL Rough-toothed dolphin ...... Hawaii ...... 72,528 Bradford et al., 2017 ...... 0.00224 0.00224 0.00224 0.00224 Forney et al., 2015 ...... NL Short-finned pilot whale ...... Hawaii ...... 19,503 Bradford et al., 2017 ...... 0.00459 0.00459 0.00459 0.00459 Forney et al., 2015 ...... NL Sperm whale ...... Hawaii ...... 4,559 Bradford et al., 2017 ...... 0.00158 0.00158 0.00158 0.00158 Forney et al., 2015 ...... EN Spinner dolphin ...... Hawaii Pelagic ..... 3,351 Barlow, 2006 ...... 0.00159 0.00159 0.00159 0.00159 Forney et al., 2015 ...... NL Kauai/Niihau ...... 601 Carretta et al., 2014 ...... 0.097 0.097 0.097 0.097 Hill et al., 2011 ...... NL Hawaii Island ...... 665 Carretta et al., 2019 ...... 0.066 0.066 0.066 0.066 Tyne et al., 2014 ...... NL Oahu/4 Islands ..... 355 Carretta et al., 2014 ...... 0.023 0.023 0.023 0.023 Hill et al., 2011 ...... NL Kure/Midway Atoll 260 Carretta et al., 2014 ...... 0.0070 0.0070 0.0070 0.0070 Barlow, 2006...... NL Pearl and Hermes 300 Karczmarski et al., 2005 ...... 0.0070 0.0070 0.0070 0.0070 Barlow, 2006...... NL Reef. Striped dolphin ...... Hawaii ...... 61,201 Bradford et al., 2017 ...... 0.00385 0.00385 0.00385 0.00385 Forney et al., 2015 ...... NL

VerDate Sep<11>2014 18:45 Aug 12, 2019 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\13AUR2.SGM 13AUR2 jspears on DSK3GMQ082PROD with RULES2 40168 Federal Register / Vol. 84, No. 156 / Tuesday, August 13, 2019 / Rules and Regulations

TABLE 11—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 10, NORTHERN HAWAII—Continued

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Hawaiian monk seal ...... Hawaii ...... 1,427 NMFS, 2018 ...... 0.00004 0.00004 0.00004 0.00004 NMFS, 2018; DoN, 2018 ...... EN 1 CNP = central north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 12—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 11, SOUTHERN HAWAII

Density (animals/Km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... CNP ...... 133 Bradford et al., 2017 ...... 0.00005 0.00005 ...... 0.00005 Bradford et al., 2017 ...... EN Bryde’s whale ...... Hawaii ...... 798 Bradford et al., 2013 ...... 0.00012 0.00012 0.00012 0.00012 Forney et al., 2015 ...... NL Common minke whale ...... Hawaii ...... 25,049 Buckland et al., 1992 ...... 0.00423 0.00423 ...... 0.00423 Martin et al., 2015 ...... NL Fin whale ...... Hawaii ...... 154 Bradford et al., 2017 ...... 0.00006 0.00006 ...... 0.00006 Bradford et al., 2017 ...... EN Humpback whale ...... CNP/Hawaii DPS 10,103 Calambokidis et al., 2008 ...... 0.00631 0.00631 ...... 0.00631 Mobley et al., 2001; NL Calambokidis et al., 2008. Sei whale ...... Hawaii ...... 391 Bradford et al., 2017 ...... 0.00016 0.00016 ...... 0.00016 Bradford et al., 2017 ...... EN Blainville’s beaked whale ...... Hawaii ...... 2,105 Bradford et al., 2017 ...... 0.00086 0.00086 0.00086 0.00086 Bradford et al., 2017 ...... NL Common bottlenose dolphin ... Hawaii Pelagic ..... 21,815 Bradford et al., 2017 ...... 0.00126 0.00126 0.00126 0.00126 Forney et al., 2015 ...... NL Oahu ...... 743 Baird et al., 2009; Carretta et 0.187 0.187 0.187 0.187 Baird et al., 2009 ...... NL al., 2014. 4 Islands ...... 191 Baird et al., 2009; Carretta et 0.017 0.017 0.017 0.017 Baird et al., 2009 ...... NL al., 2014. Hawaii Island ...... 128 Baird et al., 2009; Carretta et 0.028 0.028 0.028 0.028 Baird et al., 2009 ...... NL al., 2014. Kauai/Niihau ...... 184 Baird et al., 2009; Carretta et 0.065 0.065 0.065 0.065 Baird et al., 2009 ...... NL al., 2014. Cuvier’s beaked whale ...... Hawaii ...... 723 Bradford et al., 2017 ...... 0.0003 0.0003 0.0003 0.0003 Bradford et al., 2017 ...... NL Deraniyagala’s beaked whale NP ...... 22,799 Ferguson and Barlow, 2001; 0.00093 0.00093 0.00093 0.00093 Ferguson and Barlow, 2001; NL 2003. 2003. Dwarf sperm whale ...... Hawaii ...... 17,519 Barlow, 2006 ...... 0.00714 0.00714 0.00714 0.00714 Barlow, 2006...... NL False killer whale ...... Hawaii-Pelagic ..... 1,540 Bradford et al., 2014; 2015.... 0.00086 0.00086 0.00086 0.00086 Forney et al., 2015; Bradford NL et al., 2015. Main Hawaiian Is- 167 Bradford et al., 2018; Carretta 0.0008 0.0008 0.0008 0.0008 Bradford et al., 2015 ...... EN land Insular and et al., 2019. DPS. Fraser’s dolphin ...... Hawaii ...... 51,491 Bradford et al., 2017 ...... 0.02104 0.02104 0.02104 0.02104 Bradford et al., 2017 ...... NL Killer whale ...... Hawaii ...... 146 Bradford et al., 2017 ...... 0.00006 0.00006 0.00006 0.00006 Bradford et al., 2017 ...... NL Longman’s beaked whale ...... Hawaii ...... 7,619 Bradford et al., 2017 ...... 0.00311 0.00311 0.00311 0.00311 Bradford et al., 2017 ...... NL Melon-headed whale ...... Hawaiian Islands .. 8,666 Bradford et al., 2017 ...... 0.0020 0.0020 0.0020 0.0020 Aschettino, 2010...... NL Kohala Resident ... 447 Aschettino, 2010 ...... 0.1000 0.1000 0.1000 0.1000 Aschettino, 2010 ...... NL Pantropical spotted dolphin .... Hawaii Pelagic ..... 55,795 Bradford et al., 2017 ...... 0.00541 0.00541 0.00541 0.00541 Forney et al., 2015 ...... NL Hawaii Island ...... 220 Courbis et al., 2014 ...... 0.061 0.061 0.061 0.061 Oleson et al., 2013 ...... NL Oahu ...... 220 Courbis et al., 2014 ...... 0.072 0.072 0.072 0.072 Oleson et al., 2013 ...... NL 4 Islands ...... 220 Courbis et al., 2014 ...... 0.061 0.061 0.061 0.061 Oleson et al., 2013 ...... NL Pygmy killer whale ...... Hawaii ...... 10,640 Bradford et al., 2017 ...... 0.00435 0.00435 0.00435 0.00435 Bradford et al., 2017 ...... NL Pygmy sperm whale ...... Hawaii ...... 7,138 Barlow, 2006 ...... 0.0029 0.0029 0.0029 0.0029 Barlow, 2006...... NL Risso’s dolphin ...... Hawaii ...... 11,613 Bradford et al., 2017 ...... 0.00474 0.00474 0.00474 0.00474 Bradford et al., 2017 ...... NL Rough toothed dolphin ...... Hawaii ...... 75,528 Bradford et al., 2017 ...... 0.00257 0.00257 0.00257 0.00257 Forney et al., 2015 ...... NL Short-finned pilot whale ...... Hawaii ...... 19,503 Bradford et al., 2017 ...... 0.00549 0.00549 0.00549 0.00549 Forney et al., 2015 ...... NL Sperm whale ...... Hawaii ...... 4,559 Bradford et al., 2017 ...... 0.00131 0.00131 0.00131 0.00131 Forney et al., 2015 ...... EN Spinner dolphin ...... Hawaii Pelagic ..... 3,351 Barlow, 2006 ...... 0.00348 0.00348 0.00348 0.00348 Forney et al., 2015 ...... NL Oahu/4-Islands ..... 601 Carretta et al., 2014 ...... 0.023 0.023 0.023 0.023 Hill et al., 2011 ...... NL Hawaii Island ...... 665 Carretta et al., 2019 ...... 0.066 0.066 0.066 0.066 Tyne et al., 2014 ...... NL Kauai/Niihau ...... 355 Carretta et al., 2014 ...... 0.097 0.097 0.097 0.097 Hill et al., 2011 ...... NL Striped dolphin ...... Hawaii ...... 61,201 Bradford et al., 2017 ...... 0.00475 0.00475 0.00475 0.00475 Forney et al., 2015 ...... NL Hawaiian monk seal ...... Hawaii ...... 1,427 NMFS, 2018 ...... 0.00004 0.00004 0.00004 0.00004 NMFS, 2018, DoN, 2018 ...... EN 1 CNP = central north Pacific; NP = north Pacific. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 13—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 12, OFFSHORE SRI LANKA

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... NIND ...... 3,691 IWC, 2016 ...... 0.00004 0.00004 0.00004 0.00004 Kaschner et al., 2006; DoN, EN 2018. Bryde’s whale ...... NIND ...... 9,176 Wade and Gerrodette, 1993 .. 0.00041 0.00041 0.00041 0.00041 Kaschner et al., 2006; DoN, NL 2018. Common minke whale ...... IND ...... 257,000 IWC, 2016 ...... 0.00001 0.00001 0.00001 0.00001 SMRU Ltd., 2012; DoN, 2018 NL Fin whale ...... IND ...... 1,846 IWC, 2016 ...... 0.00001 0.00001 0.00001 0.00001 DoN, 2018...... EN Omura’s whale ...... NIND ...... 9,176 Wade and Gerrodette, 1993 .. 0.00041 0.00041 0.00041 0.00041 Kaschner et al., 2006; DoN, NL 2018. Sei whale ...... NIND ...... 9,176 Wade and Gerrodette, 1993 .. 0.00041 0.00041 0.00041 0.00041 SMRU Ltd., 2012; DoN, 2018 EN Blainville’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00105 0.00105 0.00105 0.00105 SMRU Ltd., 2012; DoN, 2018 NL Common dolphin ...... IND ...... 1,819,982 Wade and Gerrodette, 1993 .. 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; DoN, 2018 NL Common bottlenose dolphin ... NIND ...... 785,585 Wade and Gerrodette, 1993 .. 0.04839 0.04829 0.04725 0.04740 SMRU Ltd., 2012; DoN, 2018 NL

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TABLE 13—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 12, OFFSHORE SRI LANKA—Continued

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Cuvier’s beaked whale ...... NIND ...... 27,272 Wade and Gerrodette, 1993 .. 0.00506 0.00508 0.00505 0.00505 SMRU Ltd., 2012; DoN, 2018 NL Deraniyagala’s beaked whale IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; DoN, 2018 NL Dwarf sperm whale ...... IND ...... 10,541 Wade and Gerrodette, 1993 .. 0.00005 0.00005 0.00005 0.00005 Kaschner et al., 2006; DoN, NL 2018. False killer whale ...... IND ...... 144,188 Wade and Gerrodette, 1993 .. 0.00024 0.00024 0.00024 0.00024 Kaschner et al., 2006; DoN, NL 2018. Fraser’s dolphin ...... IND ...... 151,554 Wade and Gerrodette, 1993 .. 0.00207 0.00207 0.00207 0.00207 Kaschner et al., 2006; DoN, NL 2018. Indo-Pacific bottlenose dolphin IND ...... 7,850 Wade and Gerrodette, 1993 .. 0.00048 0.00048 0.00047 0.00047 SMRU Ltd., 2012; DoN, 2018 NL Killer whale ...... IND ...... 12,593 Wade and Gerrodette, 1993 .. 0.00697 0.00155 0.00693 0.00694 SMRU Ltd., 2012; DoN, 2018 NL Longman’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00513 0.00516 0.00541 0.00538 SMRU Ltd., 2012; DoN, 2018 NL Melon-headed whale ...... IND ...... 64,600 Wade and Gerrodette, 1993 .. 0.00921 0.00920 0.00937 0.00936 SMRU Ltd., 2012; DoN, 2018 NL Pantropical spotted dolphin .... IND ...... 736,575 Wade and Gerrodette, 1993 .. 0.00904 0.00904 0.00904 0.00904 Kaschner et al., 2006; DoN, NL 2018. Pygmy killer whale ...... IND ...... 22,029 Wade and Gerrodette, 1993 .. 0.00138 0.00137 0.00152 0.00153 SMRU Ltd., 2012; DoN, 2018 NL Pygmy sperm whale ...... IND ...... 10,541 Wade and Gerrodette, 1993 .. 0.00001 0.00001 0.00001 0.00001 Kaschner et al., 2006; DoN, NL 2018. Risso’s dolphin ...... IND ...... 452,125 Wade and Gerrodette, 1993 .. 0.08641 0.08651 0.08435 0.08466 SMRU Ltd., 2012; DoN, 2018 NL Rough-toothed dolphin ...... IND ...... 156,690 Wade and Gerrodette, 1993 .. 0.00071 0.00071 0.00071 0.00071 Kaschner et al., 2006; DoN, NL 2018. Short-finned pilot whale ...... IND ...... 268,751 Wade and Gerrodette, 1993 .. 0.03219 0.03228 0.03273 0.03279 SMRU Ltd., 2012; DoN, 2018 NL Sperm whale ...... NIND ...... 24,446 Wade and Gerrodette, 1993 .. 0.00129 0.00118 0.00126 0.00121 SMRU Ltd., 2012; DoN, 2018 EN Spinner dolphin ...... IND ...... 634,108 Wade and Gerrodette, 1993 .. 0.00678 0.00678 0.00678 0.00678 Kaschner et al., 2006; DoN, NL 2018. Striped dolphin ...... IND ...... 674,578 Wade and Gerrodette, 1993 .. 0.14601 0.14629 0.14780 0.14788 SMRU Ltd., 2012; DoN, 2018 NL

1 IND = Indian Ocean; NIND = northern Indian Ocean. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 14—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 13, ANDAMAN SEA

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... NIND ...... 3,691 IWC, 2016 ...... 0.00003 0.00003 0.00003 0.00003 Kaschner et al., 2006; DoN, EN 2018. Bryde’s whale ...... NIND ...... 9,176 Wade and Gerrodette, 1993 .. 0.00038 0.000036 0.00037 0.00037 Kaschner et al., 2006; DoN, NL 2018. Common minke whale ...... IND ...... 257,000 IWC, 2016 ...... 0.00001 0.00968 0.00001 SMRU Ltd., 2012; DoN, 2018 NL Fin whale ...... IND ...... 1,846 IWC, 2016 ...... 0.00001 0.00001 ...... 0.00001 SMRU Ltd., 2012; DoN, 2018 EN Omura’s whale ...... NIND ...... 9,176 IWC, 2016 ...... 0.00038 0.00036 0.00037 0.00037 Kaschner et al., 2006; DoN, NL 2018. Blainville’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00094 0.00089 0.00094 0.00099 SMRU Ltd., 2012; DoN, 2018 NL Common bottlenose dolphin ... NIND ...... 785,585 Wade and Gerrodette, 1993 .. 0.07578 0.07781 0.07261 0.07212 SMRU Ltd., 2012; DoN, 2018 NL Cuvier’s beaked whale ...... NIND ...... 27,272 Wade and Gerrodette, 1993 .. 0.00466 0.00482 0.00480 0.00473 SMRU Ltd., 2012; DoN, 2018 NL Deraniyagala’s beaked whale IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00094 0.00092 0.00097 0.00099 SMRU Ltd., 2012; DoN, 2018 NL Dwarf sperm whale ...... IND ...... 10,541 Wade and Gerrodette, 1993 .. 0.00005 0.00006 0.00006 0.00005 Kaschner et al., 2006; DoN, NL 2018. False killer whale ...... IND ...... 144,188 Wade and Gerrodette, 1993 .. 0.00023 0.00023 0.00024 0.00023 Kaschner et al., 2006; DoN, NL 2018. Fraser’s dolphin ...... IND ...... 151,554 Wade and Gerrodette, 1993 .. 0.00176 0.00179 0.00180 0.00180 Kaschner et al., 2006; DoN, NL 2018. Ginkgo-toothed beaked whale IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00094 0.00092 0.00097 0.00099 SMRU Ltd., 2012; DoN, 2018 NL Indo-Pacific bottlenose dolphin IND ...... 7,850 Wade and Gerrodette, 1993 .. 0.00076 0.00078 0.00073 0.00072 SMRU Ltd., 2012; DoN, 2018 NL Killer whale ...... IND ...... 12,593 Wade and Gerrodette, 1993 .. 0.00744 0.00178 0.00730 0.00734 SMRU Ltd., 2012; DoN, 2018 NL Longman’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00444 0.00429 0.00459 0.00440 SMRU Ltd., 2012; DoN, 2018 NL Melon-headed whale ...... IND ...... 64,600 Wade and Gerrodette, 1993 .. 0.00884 0.00884 0.00878 0.00846 SMRU Ltd., 2012; DoN, 2018 NL Pantropical spotted dolphin .... IND ...... 736,575 Wade and Gerrodette, 1993 .. 0.00868 0.00841 0.00829 0.00873 Kaschner et al., 2006; DoN, NL 2018. Pygmy killer whale ...... IND ...... 22,029 Wade and Gerrodette, 1993 .. 0.00121 0.00113 0.00125 0.00131 SMRU Ltd., 2012; DoN, 2018 NL Pygmy sperm whale ...... IND ...... 10,541 Wade and Gerrodette, 1993 .. 0.00001 0.00001 0.00001 0.00001 Kaschner et al., 2006; DoN, NL 2018. Risso’s dolphin ...... IND ...... 452,125 Wade and Gerrodette, 1993 .. 0.09197 0.09215 0.09173 0.09366 SMRU Ltd., 2012; DoN, 2018 NL Rough-toothed dolphin ...... IND ...... 156,690 Wade and Gerrodette, 1993 .. 0.00077 0.00078 0.00077 0.00074 Kaschner et al., 2006; DoN, NL 2018. Short-finned pilot whale ...... IND ...... 268,751 Wade and Gerrodette, 1993 .. 0.03354 0.03364 0.03543 0.03504 SMRU Ltd., 2012; DoN, 2018 NL Sperm whale ...... NIND ...... 24,446 Wade and Gerrodette, 1993 .. 0.00109 0.00099 0.00107 0.00105 SMRU Ltd., 2012; DoN, 2018 EN Spinner dolphin ...... IND ...... 634,108 Wade and Gerrodette, 1993 .. 0.00736 0.00711 0.00701 0.00726 Kaschner et al., 2006; DoN, NL 2018. Striped dolphin ...... IND ...... 674,578 Wade and Gerrodette, 1993 .. 0.14413 0.14174 0.14123 0.14402 SMRU Ltd., 2012; DoN, 2018 NL

1 IND = Indian Ocean; NIND = northern Indian Ocean. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

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TABLE 15—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 14, NORTHWESTERN AUSTRALIA

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Antarctic minke whale ...... ANT ...... 90,000 Bannister et al., 1996 ...... 0.00001 0.00001 0.00001 Unavail...... NL Blue whale/Pygmy blue whale SIND ...... 1,657 Jenner et al., 2008; McCauley ...... 0.00003 0.00003 0.00003 Kaschner et al., 2006; DoN, EN and Jenner, 2010. 2018. Bryde’s whale ...... SIND ...... 13,854 IWC, 1981 ...... 0.00032 0.00032 0.00032 0.00032 Kaschner et al., 2006; DoN, NL 2018. Common minke whale ...... IND ...... 257,500 IWC, 2016 ...... 0.01227 0.01929 0.01947 SMRU Ltd., 2012; DoN, 2018 NL Fin whale ...... SIND ...... 38,185 Branch and Butterworth, 0.00001 0.00099 0.00128 0.00121 SMRU Ltd., 2012; DoN, 2018 EN 2001; Mori and Butterworth, 2006. Humpback whale ...... Western Australia 13,640 Bannister and Hedley, 2001 ...... 0.00007 0.00007 0.00007 Kaschner et al., 2006; DoN, NL stock and DPS. 2018. Omura’s whale ...... SIND ...... 13,854 IWC, 1981 ...... 0.00032 0.00032 0.00032 0.00032 Kaschner et al., 2006; DoN, NL 2018. Sei whale ...... SIND ...... 13,854 IWC, 1981 ...... 0.00001 0.00001 0.00001 0.00001 Unavail...... EN Blainville’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; DoN, 2018 NL Common bottlenose dolphin ... WAU ...... 3,000 Preen et al., 1997 ...... 0.03630 0.03652 0.03459 0.03725 SMRU Ltd., 2012; DoN, 2018 NL Cuvier’s beaked whale ...... SH ...... 76,500 Dalebout et al., 2005 ...... 0.00399 0.00406 0.00402 0.00405 SMRU Ltd., 2012; DoN, 2018 NL Dwarf sperm whale ...... IND ...... 10,541 Wade and Gerrodette, 1993 .. 0.00004 0.00004 0.00004 0.00004 Kaschner et al., 2006; DoN, NL 2018. False killer whale ...... IND ...... 144,188 Wade and Gerrodette, 1993 .. 0.00020 0.00020 0.00019 0.00020 Kaschner et al., 2006; DoN, NL 2018. Fraser’s dolphin ...... IND ...... 151,554 Wade and Gerrodette, 1993 .. 0.00145 0.00148 0.00149 0.00147 Kaschner et al., 2006; DoN, NL 2018. Killer whale ...... IND ...... 12,593 Wade and Gerrodette, 1993 .. 0.00585 0.00435 0.00588 0.00580 SMRU Ltd., 2012; DoN, 2018 NL Longman’s beaked whale ...... IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00393 0.00393 0.00403 0.00412 SMRU Ltd., 2012; DoN, 2018 NL Melon-headed whale ...... IND ...... 64,600 Wade and Gerrodette, 1993 .. 0.00717 0.00717 0.00635 0.00637 SMRU Ltd., 2012; DoN, 2018 NL Pantropical spotted dolphin .... IND ...... 736,575 Wade and Gerrodette, 1993 .. 0.00727 0.00727 0.00715 0.00746 Kaschner et al., 2006; DoN, NL 2018. Pygmy killer whale ...... IND ...... 22,029 Wade and Gerrodette, 1993 .. 0.00100 0.00104 0.00101 0.00097 SMRU Ltd., 2012; DoN, 2018 NL Risso’s dolphin ...... IND ...... 452,125 Wade and Gerrodette, 1993 .. 0.07152 0.07214 0.06944 0.07173 SMRU Ltd., 2012; DoN, 2018 NL Rough-toothed dolphin ...... IND ...... 156,690 Wade and Gerrodette, 1993 .. 0.00059 0.00060 0.00059 0.00059 Kaschner et al., 2006; DoN, NL 2018. Short-finned pilot whale ...... IND ...... 268,751 Wade and Gerrodette, 1993 .. 0.02698 0.02759 0.02689 0.02716 SMRU Ltd., 2012; DoN, 2018 NL Southern bottlenose whale ..... IND ...... 599,300 Wade and Gerrodette, 1993 .. 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; DoN, 2018 NL Spade-toothed beaked whale IND ...... 16,867 Wade and Gerrodette, 1993 .. 0.00083 0.00083 0.00082 0.00083 SMRU Ltd., 2012; DoN, 2018 NL Sperm whale ...... SIND ...... 24,446 Wade and Gerrodette, 1993 .. 0.00096 0.00087 0.00097 0.00092 SMRU Ltd., 2012; DoN, 2018 EN Spinner dolphin ...... IND ...... 634,108 Wade and Gerrodette, 1993 .. 0.00561 0.00549 0.00568 0.00563 Kaschner et al., 2006; DoN, NL 2018. Striped dolphin ...... IND ...... 674,578 Wade and Gerrodette, 1993 .. 0.12018 0.12041 0.11680 0.11727 SMRU Ltd., 2012; DoN, 2018 NL 1 ANT = Antarctic; SIND = southern Indian Ocean; IND = Indian Ocean; SH = Southern Hemisphere; WAU = Western Australia. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence. 3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

TABLE 16—ABUNDANCE AND DENSITY ESTIMATES FOR THE MARINE MAMMAL SPECIES, SPECIES GROUPS, AND STOCKS ASSOCIATED WITH MODEL AREA 15, NORTHEAST OF JAPAN

Density (animals/km2) ESA Species Stock name 1 Abundance Abundance source reference Density source reference 2 status 3 Winter Spring Summer Fall

Blue whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.00001 0.00001 ...... 0.00001 Tillman, 1997; Ferguson and EN Barlow 2001; 2003; LGL, 2008. Common minke whale ...... WNP ‘‘OE’’ ...... 25,049 Buckland et al., 1992 ...... 0.0022 0.0022 0.0022 0.0022 Buckland et al., 1992 ...... NL Fin whale ...... WNP ...... 9,250 Tillman, 1977 ...... 0.0002 0.0002 0.0002 Tillman, 1977...... EN Humpback whale ...... WNP and DPS ..... 1,328 Bettridge et al., 2015 ...... 0.000498 0.000498 0.000498 Kaschner et al., 2006 in DoN, EN 2018. North Pacific right whale ...... WNP ...... 922 Best et al., 2001 ...... 0.00001 0.00001 Unavail...... EN Sei whale ...... NP ...... 7,000 Mizroch et al., 2015 ...... 0.00029 0.00029 ...... Fulling et al., 2011 ...... EN Western North Pacific gray Western and DPS 290 Caretta et al., 2019 ...... 0.00001 0.00001 Unavail...... EN whale. Baird’s beaked whale ...... WNP ...... 5,688 Miyashita 1986 and 1990, ...... 0.0015 0.0029 0.0029 Kasuya, 1986...... NL Kasuya and Perrin, 2017. Common dolphin ...... WNP ...... 3,286,163 Ferguson and Barlow, 2001; 0.0863 0.0863 0.0863 0.0863 Ferguson and Barlow, 2001; NL 2003. 2003. Cuvier’s beaked whale ...... WNP ...... 90,725 Ferguson and Barlow, 2001; 0.0054 0.0054 0.0054 0.0054 Ferguson and Barlow, 2001; NL 2003. 2003. Dall’s porpoise ...... WNP dalli ...... 162,000 Miyashita, 1991; Kasuya and 0.0390 0.0520 0.0650 0.0520 Ferguson and Barlow, 2001; NL Perrin, 2017. 2003. Killer whale ...... WNP ...... 12,256 Ferguson and Barlow, 2001; 0.0036 0.0036 0.0036 0.0036 Springer et al., 2003 ...... NL 2003. Pacific white-sided dolphin ..... NP ...... 931,000 Buckland et al., 1993 ...... 0.0048 0.0048 0.0048 0.0048 Ferguson and Barlow, 2001; NL 2003. Sperm whale ...... NP ...... 102,112 Kato and Miyashita, 1998 ...... 0.0017 0.0022 0.0022 0.0022 LGL, 2011...... EN Stejneger’s beaked whale ...... WNP ...... 8,000 Kasuya, 1986 ...... 0.0005 0.0005 0.0005 0.0005 Ferguson and Barlow, 2001; NL 2003. Northern fur seal ...... Western Pacific .... 503,609 Kuzin 2015; Gelatt et al., 0.00689 0.01378 0.01378 0.01378 Buckland et al., 1993 ...... NL 2015. Ribbon seal ...... NP ...... 365,000 Lowry, 2016 ...... 0.0904 0.0904 0.0452 0.0452 Moreland et al., 2012 ...... NL Spotted seal ...... Alaska/Bering Sea 461,625 Conn et al., 2014; Muto et al., ...... 0.2770 0.1385 ...... Moreland et al., 2012 ...... NL DPS. 2019. Steller sea lion ...... West-Asian and 77,767 Muto et al., 2019 ...... 0.00001 0.00001 0.00001 0.00001 Unavail...... EN Western DPS. 1 IND = Indian Ocean; NP = northern Pacific; WNP = western north Pacific; OE = Offshore Japan. 2 Unavail = No density estimates are available for this rare species/stock, therefore, the minimum density estimate of 0.00001 animals/km2 was used in the take analysis to reflect the low probability of occurrence.

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3 ESA Status: EN = Endangered; T = Threatened; NL = Not Listed.

Stock abundance and density Although not repeated in this noise exposure criteria to predict onset estimates are derived from the best document, NMFS has reviewed these of auditory effects in marine mammals available source documentation and data, determined them to be the best (i.e., PTS and TTS onset). Southall et al. species or stock-specific information on available scientific information for this (2019a) note that the quantitative the marine mammals that could occur in rulemaking, and considers this processes described and the resulting that area. The Navy developed the information part of the administrative exposure criteria (i.e., thresholds and abundance and density estimates by record for this action. Additional auditory weighting functions) are first using estimates from line-transect information is available in NMFS’ largely identical to those in Finneran surveys that occurred in or near each of Marine Mammal Stock Assessment (2016) and NMFS (2016 and 2018). the 15 model sites (e.g., Bradford et al., Reports, which may be viewed at However, they differ in that the Southall 2017) and NMFS’ SARs. When density https://www.fisheries.noaa.gov/ et al. (2019a) exposure criteria are more estimates were not available from a national/marine-mammal-protection/ broadly applicable as they include all survey in the model area, the Navy marine-mammal-stock-assessments. marine mammal species (rather than extrapolated density estimates from a There are no active Unusual Mortality those only under NMFS jurisdiction) for region with similar oceanographic Events in the SURTASS LFA sonar all noise exposures (both in air and characteristics to that model area. For Study Area. underwater for amphibious species), and while the hearing group example, the eastern tropical Pacific has Potential Effects of the Specified been extensively surveyed and provides compositions are identical, Southall et Activity on Marine Mammals and Their al. (2019a) renamed the hearing groups. a comprehensive understanding of Habitat marine mammals in temperate oceanic Recent studies on the behavioral waters (Ferguson and Barlow, 2001, NMFS provided a brief primer on the responses of cetaceans to mid-frequency 2003). Density estimates for some model subjects of underwater sound, the sonar examine and continue to areas were also derived from the Navy’s metrics used in the analysis of the demonstrate the importance of not only Marine Species Density Database (DoN, effects of underwater sound on marine sound source parameters, but exposure 2018). In addition, density estimates are mammals, and marine mammal hearing context (e.g., behavioral state, presence of other animals and social usually not available for rare marine sensitivities and vocalizations in the relationships, prey abundance, distance mammal species or for those that have Brief Background on Sound, Marine to source, presence of vessels, been newly defined (e.g., the Mammal Hearing, and Vocalization environmental parameters, etc.) in Deraniyagala’s beaked whale). For these section of the proposed rule (84 FR determining or predicting a behavioral species, the lowest density estimate of 7186; March 1, 2019). Additionally, response. Wensveen et al. (2019) 0.0001 animals/square kilometer (0.0001 NMFS provided a summary and examined the role of sound source animals/km2) was used in the take discussion of the potential effects of the (simulated sonar pulses) distance and analysis to reflect the low probability of specified activities (e.g., use of acoustic received level in northern bottlenose occurrence in a specific SURTASS LFA sources) on marine mammals and their whales in an environment without sonar model area. Further, the Navy habitat in the proposed rule (84 FR 7186; March 1, 2019). In the Potential frequent sonar activity using multi- pooled density estimates for species of Effects of Specified Activities on Marine scaled controlled exposure experiments. the same genus if sufficient data were Mammals and Their Habitat section of They observed behavioral avoidance of not available to compute a density for the proposed rule, NMFS provided a the sound source over a wide range of individual species or the species are description of the potential effects of distances (0.8–28 km) and estimated difficult to distinguish at sea, which is SURTASS LFA sonar training and avoidance thresholds ranging from often the case for beaked whales (e.g., testing activities on marine mammals, received SPLs of 117–126 dB re: 1 mPa. Mesoplodon spp.), as well as the pygmy including a discussion of serious injury The behavioral response characteristics and dwarf sperm whales (Kogia spp.). or mortality, physical trauma, sensory and avoidance thresholds were Density estimates are available for impairment (permanent and temporary comparable to those previously species groups rather than the threshold shift and acoustic masking), observed in beaked whale studies; individual species for Kogia spp. in physiological responses (particular however, Wensveen et al. (2019) did not model areas 1, 2, 3, 5, 6, and 7 and for stress responses), behavioral observe an effect of distance on Mesoplodon spp. in model area 8, and disturbance, or habitat effects, as well as behavioral response and found that the best available data (Ferguson and the results from previous SURTASS onset and intensity of behavioral Barlow, 2001 and 2003) are reported as LFA sonar activities monitoring. response were better predicted by pooled data. Therefore, we do not reprint this received SPL. When conducting The Navy provides detailed information here but refer the reader to controlled exposure experiments on descriptions of the distribution, that document, however, we provide an blue whales, Southall et al. (2019b) abundance, diving behavior, life history, overview of relevant new scientific observed that after exposure to and hearing vocalization information for studies below. None of the newer simulated and operational mid- each affected marine mammal species information highlighted here affects our frequency active sonar, more than 50 with confirmed or possible occurrence analysis in a manner that changes our percent of blue whales in deep-diving within SURTASS LFA sonar study areas determinations under the MMPA from states responded to the sonar, while no in section 4 (pages 4–1 through 4–44) of the proposed rule. behavioral response was observed in the application (available online at shallow-feeding blue whales. The https://www.fisheries.noaa.gov/ New Pertinent Science Since behavioral responses they observed national/marine-mammal-protection/ Publication of the Proposed Rule were generally brief, of low to moderate incidental-take-authorizations-military- Southall et al. (2019a) evaluated severity, and highly dependent on readiness-activities) and Chapter 3 of Southall et al. (2007) and used updated exposure context (behavioral state, the 2019 SURTASS LFA FSEIS/SOEIS. scientific information to propose revised source-to-whale horizontal range, and

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prey availability). Blue whale response by behavioral disruption or incur some exposure of modeled animals exposed did not follow a simple exposure- degree of temporary or permanent to multiple pings over an extended response model based on received hearing impairment; (2) the area or period of time. NMFS concurs that this sound exposure level. In a review of the volume of water that will be ensonified model is appropriate and utilizes the potential impacts of sonar on beaked above these levels in a day or event; (3) best available science, and adopted the whales, Bernaldo de Quiro´s et al. (2019) the density or occurrence of marine model for use in the analysis to support suggested that the effect of mid- mammals within these ensonified areas; these regulations. The Navy’s acoustic frequency active sonar on beaked and (4) the number of days of activities model analyzes the following whales varies among individuals or or events. Below, we describe these components: (1) The LFA sonar source populations, and that predisposing components in more detail, as well as modeled as a point source, with an conditions such as previous exposure to the model the Navy used to incorporate effective source level (SL) of sonar and individual health risk factors these components to predict impacts, approximately 235 dB re: 1 mPa at 1 m may contribute to individual outcomes and present the take estimates. (SPL) (note: This was incorrectly stated (such as decompression sickness). as 240 dB in the proposed rule); (2) a 60 Density Estimates second duration signal; and (3) a beam Estimated Take of Marine Mammals To derive density estimates, direct pattern that is correct for the number This section indicates the numbers of estimates from line-transect surveys that and spacing of the individual projectors takes that NMFS is authorizing in its occurred in or near each of the 15 (source elements). This source model, LOA, which are based on the maximum modeled areas (described in the when combined with the three- number of instances in which marine Description of Marine Mammals in the dimensional transmission loss (TL) field mammals could be reasonably expected Area of the Specified Activities section generated by the Parabolic Equation (PE) to be taken, as described in detail below. above) were utilized first (e.g., Bradford acoustic propagation model, defines the NMFS coordinated closely with the et al., 2017). When density estimates received level (RL) (in SPL) sound field Navy in the development of its were not available from a survey in the surrounding the source for a 60-second incidental take application, and agrees Study Area, density estimates from a LFA sonar signal (i.e., the SPE metric that the methods the Navy has put forth region with similar oceanographic accounts for received level and described herein to estimate take characteristics were extrapolated to the exposure from multiple pings). To (including the model, thresholds, and operational area. Densities for some estimate the total exposure of animals density estimates), and the resulting model areas were also derived from the exposed to multiple pings, the Navy numbers estimated for authorization, are Navy’s Marine Species Density Database models the RLs for each modeled appropriate and based on the best (DoN, 2018a). Last, density estimates are location and any computer-simulated available science. usually not available for rare marine marine mammals (animats) within the Level B harassment is the only means mammal species or for those that have location, records the exposure history of of take expected to result from these been newly defined (e.g., Deraniyagala’s each animat, and generates a SPE value. activities. For military readiness beaked whale). For such species, a low Thus, the Navy can model the activities, the MMPA defines density estimate of 0.0001 animals per SURTASS LFA sound field, providing a ‘‘harassment’’ as: (i) Any act that injures square kilometer (animals/km2) was four-dimensional (position and time) or has the significant potential to injure used in the risk analysis to reflect the representation of a sound pressure field a marine mammal or marine mammal low probability of occurrence in a within the marine environment and stock in the wild (Level A Harassment); specific model area. Further, density estimates of an animal’s exposure to or (ii) any act that disturbs or is likely estimates are sometimes pooled for sound over a period of 24 hours (hrs). to disturb a marine mammal or marine species of the same genus if sufficient The Navy uses a behavioral response mammal stock in the wild by causing data are not available to compute a function to estimate the number of disruption of natural behavior patterns, density for individual species or the behavioral responses that would qualify including but not limited to, migration, species are difficult to distinguish at as behavioral Level B harassment under surfacing, nursing, breeding, feeding, or sea. This is often the case for beaked the MMPA. NMFS determined that this sheltering, to a point where such whales (Mesoplodon spp) as well as the threshold is appropriate for SURTASS behavioral patterns are abandoned or pygmy and dwarf sperm whales (Kogia LFA sonar and utilizes the best available significantly altered (Level B spp), which is why densities were science and adopted this function for Harassment). As described in the pooled for these species in certain use in the analysis for these regulations. Potential Effects of the Specified model areas. Density estimates are The behavioral response function is Activity on Marine Mammals and their available for these species groups rather described fully in Chapter 4 and Habitat section of the proposed rule (84 than the individual species in model Appendix B of the 2019 SURTASS LFA FR 7186, March 1, 2019), based on the areas 1, 2, 3, 5, 6, and 7 for Kogia spp, FSEIS/SOEIS. specified activities operational and in model area 8 for Mesoplodon A wide range of behavioral reactions parameters and mitigation, only Level B spp. Density information is provided in may qualify as Level B harassment Harassment is expected to occur and Tables 2 through 16 above, and is also under the MMPA, including but not therefore authorized. Based on the available in the Navy’s application limited to avoidance of the sound nature of the activities and the (Table 3–2, Pages 3–6 through 3–25) and source, temporary changes in anticipated effectiveness of the Chapter 3 and Appendix D of the 2019 vocalizations or dive patterns, mitigation measures, take by Level A SURTASS LFA FSEIS/SOEIS. temporary avoidance of an area, or Harassment, serious injury, or mortality temporary disruption of feeding, is neither anticipated nor authorized. SURTASS LFA Sonar Behavioral migrating, or reproductive behaviors. Generally speaking, for acoustic Response Function The estimates calculated using the impacts we estimate the amount and To model potential behavioral behavioral response function do not type of harassment by considering: (1) impacts to marine animals from differentiate between the different types Acoustic thresholds above which NMFS exposure to SURTASS LFA sonar of potential behavioral reactions, nor do believes the best available science sound, the Navy has developed a the estimates provide information indicates marine mammals will be taken methodology to estimate the total regarding the potential fitness or other

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biological consequences of the reactions testing activities. Modeling was in each model area for each activity is on the affected individuals. conducted for one 24-hour period in determined. The third step is to The definition of Level B harassment each of the four seasons in each model determine the number of model areas in for military readiness activities area. To predict acoustic exposure, the which each stock may occur for each contemplates the disruption of LFA sonar ship was simulated traveling activity, and the fourth step is to select behavioral patterns to the point where in a triangular pattern at a speed of 4 kt the maximum per-hour impact for each they are abandoned or significantly (7.4 kilometers per hour (kph), for eight stock that may occur in the model areas altered. It is difficult to predict with hours in each leg of the triangle. The for that activity. The final step is to certainty, given existing data, when duration of the LFA sonar transmission multiply the results of steps two, three, exposures that are generally expected was modeled as 24 hrs, with a signal and four to calculate the potential are likely to result in significantly duration of 60 seconds and a duty cycle annual impacts per activity, which are altered or abandoned behavioral of 10 percent (i.e., the source then summed across the stocks for a patterns. Therefore, the Navy’s take transmitted for 60 seconds every 10 total potential impact for all individual estimates capture a wider range of minutes (min) for 24 hrs, which equates activities. The number of individual impacts, including less significant to 2.4 active transmission hours and is marine mammals that may be taken over responses. Moreover, NMFS does not representative of average actual the seven-year period of the proposed assume that each instance of Level B transmission times based on the past 17 SURTASS LFA sonar training and harassment modeled by the Navy will years of SURTASS LFA sonar activities). testing activities was estimated by have, or is likely to have, an adverse The acoustic field around the LFA multiplying the maximum number of impact on an individual’s fitness. sonar source was predicted by the Navy instances of exposure for each species/ Rather, NMFS considers the available standard parabolic equation propagation stock calculated annually for each of the scientific evidence to determine the model using the defined LFA sonar two transmission scenarios (496 likely nature of the modeled behavioral operating parameters. Each marine transmission hours in years 1–4 and 592 responses and the potential fitness mammal species potentially occurring transmission hours in years 5–7), and consequences for affected individuals in in a model area in each season was then adding these to calculate a total its negligible impact evaluation. simulated by creating animats estimate. For example, for the WNP blue Accordingly, we consider application of (simulated animals) programmed with whale, four years of 496 transmission this Level B harassment threshold as behavioral values describing their dive hours (for years 1–4) resulted in 90 identifying the maximum number of and movement patterns. AIM then Level B harassment takes/year and three instances in which marine mammals integrates the acoustic field created from years of 592 transmission hours (for could be reasonably expected to the underwater transmission of LFA years 5–7) resulted in 123 Level B experience a disruption in behavior sonar with the three-dimensional (3D) harassment takes/year. Multiplying 90 patterns to a point where they are movement of marine mammals to takes/year by 4 years equals 360 Level abandoned or significantly altered (i.e., estimate their potential for sonar B harassment takes for the 496 Level B harassment). Because this is the exposure at each 30-second timestep transmission hour scenario, and most appropriate method for estimating within the 24-hr modeling period. Thus, multiplying 123 takes/year by 3 years Level B harassment given the best the output of AIM is the time history of equals 369 Level B harassment takes for available science and uncertainty on the exposure for each animat. the 592 transmission hour scenario. The The Navy assesses the potential topic, it is these numbers of Level B final step is adding the totals for the two harassment by behavioral disturbance impacts on marine mammals by transmission scenarios to arrive at a that are analyzed in the Negligible predicting the sound field that a given total (360 + 369 = 729 Level B Impact Analysis and Determination marine mammal species/stock could be harassment takes over the 7-year period section and authorized. exposed to over time in a potential model area. This is a multi-part process for WNP blue whales). For additional Estimates of Potential Marine Mammal involving: (1) The ability to measure or detail on modeling and take estimation, Exposure estimate an animal’s location in space please refer to Chapter 6.6 (Quantitative The Navy’s acoustic impact analysis and time; (2) the ability to measure or Impact Analysis for Marine Mammals) for marine mammals, which NMFS has estimate the three-dimensional sound of the Navy’s application and Appendix adopted for the purposes of these field at these times and locations; (3) the B of the 2019 SURTASS LFA FSEIS/ regulations, represents an evolution that integration of these two data sets into SOEIS. builds upon the analysis and the acoustic impact model to estimate With the implementation of the three- methodology documented in previous the total acoustic exposure for each part monitoring programs (visual, SURTASS LFA sonar NEPA efforts animal in the modeled population; and passive acoustic, and HF/M3 (DoN, 2001; 2007; 2012; and 2017), and (4) the conversion of the resultant monitoring, as discussed below), NMFS includes updates of the most current cumulative exposures for a modeled and the Navy do not expect that marine acoustic thresholds and methodology to population into an estimate of the risk mammals would be injured by assess auditory impacts (NMFS, 2018). of a potential injury (i.e., Level A SURTASS LFA sonar because a marine A detailed discussion of the acoustic harassment (permanent threshold shift mammal is likely to be detected and impact analysis is provided in (PTS)), temporary threshold shift (TTS), active transmissions suspended or Appendix B of the 2019 SURTASS LFA or disruption of natural behavioral delayed to avoid injurious exposure. FSEIS/SOEIS, but is summarized here. patterns (i.e., a take estimate for Level B The probability of detection of a marine Using the Acoustic Integration Model harassment). mammal of any size by the HF/M3 (AIM), the Navy modeled 15 To estimate the potential impacts for system within the LFA sonar mitigation representative model areas in the central each marine mammal stock on an zone approaches 100 percent over the and western North Pacific and eastern annual basis, several calculation steps course of multiple pings (see the 2001 Indian Oceans, representing the acoustic are required. First, the potential impact SURTASS LFA FOEIS/EIS, Subchapters regimes and marine mammal species for one LFA sonar transmission hour is 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar that may be encountered during calculated. Second, the number of LFA testing results as well as section 5.4.3 of SURTASS LFA sonar training and sonar transmission hours that may occur the 2019 SURTASS LFA FSEIS/SOEIS

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for a summary of the effectiveness of the stocks over the course of the seven-year likely taken at least once in a year. HF/M3 system). Quantitatively, regulations. However, because of the nature of the modeling output shows zero takes by The distances to the TTS thresholds SURTASS LFA activities (small number Level A harassment for all marine are less than 50 ft (15 m) for mid- of continuously moving vessels spread mammal stocks in all representative frequency (MF) and high-frequency (HF) over a very large area), there are likely mission areas with mitigation applied. cetaceans and otariids; 216 ft (66 m) for fewer repeated takes of the same All hearing groups of marine mammals phocids; and 1,354 ft (413 m) for low- individuals than would be expected except LF cetaceans would need to be frequency (LF) cetaceans if an animal from other more localized or stationary within 22 ft (7 m) of the LFA sonar were to remain at those distances for an activities. source for an entire LFA transmission entire LFA sonar signal (60 sec). While More detailed information for each of (60 seconds), and a LF cetacean would it is likely that mitigation measures the steps to quantify take estimates, as need to be within 135 ft (41 m) for an would also avoid TTS, some small well as an illustrative example, are entire LFA transmission to potentially subset of the animals may also provided in section 6.6 of the Navy’s experience PTS. This is unlikely to experience TTS if exposed for longer application (Quantitative Impact occur, especially given the mitigation periods of time at greater distances; Analysis for Marine Mammals). A more measures in place and the Navy’s however, any of the TTS impacts would thorough description of the impact proven effectiveness at detecting marine be expected to be captured within the analysis is also provided in the 2019 mammals well outside of this range so estimate of Level B harassment takes by SURTASS LFA FEIS/SOEIS, specifically behavioral disruption and separate section 4.5.2.1.3, Marine Mammals that shut down measures would be enumeration is not necessary or (Quantitative Impact Analysis for implemented well before marine appropriate. Any TTS incurred would Marine Mammals subsection) and mammals would be within these ranges. likely be of a low level and of short Appendix B (Marine Mammal Impact Again, NMFS notes that over the course duration because we do not expect Analysis). NMFS has reviewed this of the previous three rulemakings from animals to be exposed for long durations information and has accepted the Navy 2002 to 2017, and during the Navy’s close to the source. modeling procedure and results. The training and testing activities during the Of note, the estimated number of total maximum potential impact on an NDE from 2017 to the present, there Level B harassment takes does not annual basis for years 1–4 and years 5– have been no reported or known necessarily equate to the number of 7 as well as the total overall takes for the incidents of Level A harassment of any individual animals the Navy expects to seven-year period covered by this marine mammal. This is because it harass (which is lower), but rather to the rulemaking are presented in Table 17 would be highly unlikely that a marine instances of take (i.e., exposures above below. These are considered mammal would remain close enough to the Level B harassment threshold) that conservative estimates because they are the vessel to experience Level A are anticipated to occur over the seven- based on the maximum potential impact harassment (see discussion in Threshold year period. Some individuals may to a species or stock across all model Shift subsection of the Potential Effects experience multiple instances of take areas in which an activity may occur. of the Specified Activity on Marine (meaning over multiple days) over the Therefore, if an activity occurs in a Mammals and their Habitat section of course of the year, while some members different model area than the area where the proposed rulemaking 84 FR 7186, of a species or stock may not experience the maximum potential impact was 7205–7206; March 1, 2019), in take at all, which means that the predicted, the actual potential impact combination with the Navy’s highly number of individuals taken is likely may be less than estimated. However, effective detection of marine mammals somewhat smaller than the total since the Navy cannot forecast where a and shutting down SURTASS LFA estimated takes. Generally speaking, the specific activity may be conducted this sonar prior to the animals entering the higher the number of takes as compared far in advance, this maximum estimate Level A harassment zone. Therefore, to the population abundance, the more provides the Navy with the flexibility to NMFS does not anticipate and does not repeated takes of individuals are likely, conduct its training and testing authorize any Level A harassment takes and the higher the actual percentage of activities across all modeled areas for any marine mammal species or individuals in the population that are identified for each activity.

TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4 AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR

Maximum annual Level B Maximum annual Level B harassment, years 1–4 harassment, years 5–7 Total overall 1 Level B Species Stock Percen Percent harassment for Instances species or Instances species or 7-year period stock stock

Antarctic minke whale ...... ANT ...... 0 0.00 0 0.00 0 Blue whale...... CNP ...... 3 2.39 4 2.85 24 NIND ...... 0 0.00 1 0.00 3 WNP ...... 90 0.90 123 1.14 729 SIND ...... 1 0 .07 1 0.07 7 Bryde’s whale ...... ECS ...... 14 10.28 19 14.13 113 Hawaii ...... 5 0.62 6 0.74 38 WNP ...... 378 1.94 437 2.26 2,823 NIND ...... 8 0.07 10 0.10 62 SIND ...... 7 0.05 9 0.07 55 Common minke whale ...... Hawaii ...... 572 2.30 682 2.74 4,334 IND ...... 1,271 0.43 1,748 0.59 10,328 WNP JW ...... 3 0.12 5 0.17 27

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TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4 AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued

Maximum annual Level B Maximum annual Level B harassment, years 1–4 harassment, years 5–7 Total overall 1 Level B Species Stock Percen Percent harassment for Instances species or Instances species or 7-year period stock stock

WNP OE...... 2,127 8.59 2,404 9.71 15,720 YS ...... 189 4.20 250 5.57 1,506 Fin whale ...... ECS ...... 9 1.80 12 2.47 72 Hawaii ...... 3 2.30 4 2.74 24 IND ...... 0 0.00 0 0.00 0 SIND ...... 22 0.05 30 0.07 178 WNP ...... 2,558 27.55 3,455 37.23 20,597 Humpback whale ...... CNP stock and Hawaii DPS 487 4.85 611 6.10 3,781 WAU stock and DPS ...... 1 0.00 1 0.00 7 WNP stock and DPS ...... 3,103 233.84 4,266 321.49 25,210 North Pacific right whale ..... WNP ...... 89 9.57 122 13.15 722 Omura’s whale...... NIND ...... 8 0.07 10 0.10 62 SIND ...... 5 0.04 7 0.05 41 WNP ...... 14 0.81 16 0.95 104 Sei whale ...... Hawaii ...... 19 4.78 22 5.70 142 SIND ...... 0 0.00 0 0.00 0 NP ...... 3,172 45.37 4,361 62.37 25,771 NIND ...... 4 0.04 5 0.05 31 Western North Pacific gray WNP stock and Western 0 0.00 1 0.20 3 whale. DPS. Baird’s beaked whale...... WNP ...... 2,747 48.26 3,777 66.36 22,319 Blainville’s beaked whale .... Hawaii ...... 35 1.83 47 2.40 281 WNP ...... 269 3.30 311 3.82 2,009 IND ...... 47 0.27 65 0.37 383 Common bottlenose dolphin 4-Islands ...... 5 2.48 6 2.96 38 Hawaii Island...... 0 0.00 0 0.00 0 Hawaii Pelagic ...... 95 0.41 114 0.49 722 IA ...... 104 0.11 140 0.15 836 IND ...... 1,128 0.14 1,551 0.20 9,165 Japanese Coastal...... 1,686 47.94 1,789 50.86 12,111 Kauai/Niihau ...... 13 7.16 16 8.55 100 Oahu ...... 38 5.17 46 6.17 290 WNP Northern Offshore ..... 581 0.57 799 0.78 4,721 WNP Southern Offshore .... 2,726 6.63 3,063 7.45 20,093 WAU ...... 635 21.16 873 29.09 5,159 Common dolphin ...... IND ...... 52 0.00 72 0.00 424 WNP ...... 203,871 12.24 275,079 16.08 1,640,721 Cuvier’s beaked whale ...... Hawaii ...... 22 3.03 26 3.62 166 IND ...... 231 0.85 317 1.17 1,875 SH ...... 77 0.11 106 0.15 626 WNP ...... 6,946 7.78 8,980 10.04 54,724 Dall’s porpoise ...... SOJ dalli type ...... 614 0.36 845 0.49 4,991 WNP dalli ecotype ...... 22,056 13.62 30,327 18.72 179,205 WNP truei ecotype ...... 487 0.28 670 0.39 3,958 Deraniyagala’s beaked IND ...... 158 0.92 217 1.27 1,283 whale. NP ...... 342 1.41 412 1.69 2,620 Dwarf sperm whale ...... Hawaii ...... 655 3.72 782 4.44 4,966 IND ...... 3 0.05 4 0.07 24 WNP ...... 486 0.14 635 0.18 3,849 False killer whale ...... Hawaii Pelagic ...... 58 3.72 69 4.44 439 IA ...... 252 2.59 341 3.51 2,031 IND ...... 12 0.01 16 0.00 96 Main Hawaiian Islands In- 1 0.41 1 0.49 7 sular stock and DPS. Northwestern Hawaiian Is- 0 0.00 0 0.00 0 lands. WNP ...... 1,350 8.15 1,596 9.63 10,188 Fraser’s dolphin ...... CNP ...... 546 3.24 686 4.06 4,242 Hawaii ...... 1,944 3.79 2,320 4.52 14,736 IND ...... 93 0.05 128 0.07 756 WNP ...... 2,287 1.16 2,559 1.29 16,825 Ginkgo-toothed beaked IND ...... 12 0.07 16 0.10 96 whale. NP ...... 476 2.00 568 2.38 3,608 Harbor porpoise ...... WNP ...... 366 1.17 503 1.61 2,973

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TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4 AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued

Maximum annual Level B Maximum annual Level B harassment, years 1–4 harassment, years 5–7 Total overall 1 Level B Species Stock Percen Percent harassment for Instances species or Instances species or 7-year period stock stock

Hubbs’ beaked whale ...... NP ...... 26 0.11 36 0.15 212 Indo-Pacific bottlenose dol- IND ...... 11 0.14 16 0.20 92 phin. Killer whale...... Hawaii ...... 6 4.41 8 5.26 48 IND ...... 397 3.15 546 4.33 3,226 WNP ...... 10,470 85.37 14,387 117.31 85,041 Kogia spp.2 ...... WNP ...... 1,317 0.31 1,494 0.35 9,750 Longman’s beaked whale ... Hawaii ...... 739 5.01 882 11.59 5,602 IND ...... 325 1.92 447 2.64 2,641 WNP ...... 471 6.14 574 7.50 3,606 Melon-headed whale ...... Hawaiian Islands ...... 181 2.07 216 2.47 1,372 IND ...... 402 0.64 552 0.88 3,264 Kohala Resident...... 9 0.41 11 0.49 69 WNP ...... 1,605 2.87 1,823 3.27 11,889 Mesoplodon spp.2 ...... WNP ...... 10 0.05 14 0.07 82 Northern right whale dolphin NP ...... 0 0.00 0 0.00 0 Pacific white-sided dolphin NP ...... 9,530 1.05 12,890 1.41 76,790 Pantropical spotted dolphin 4-Islands ...... 32 14.40 38 17.18 242 Hawaii Island ...... 23 10.26 27 12.25 173 Hawaiian Pelagic ...... 297 0.55 355 0.66 2,253 IND ...... 311 0.05 428 0.07 2,528 Oahu ...... 23 10.54 28 12.58 176 WNP ...... 5,105 3.95 5,883 4.53 38,069 Pygmy killer whale ...... Hawaii ...... 393 3.72 469 4.44 2,979 IND ...... 60 0.27 82 0.37 486 WNP ...... 901 2.87 1,035 3.30 6,709 Pygmy sperm whale ...... Hawaii ...... 266 3.72 318 4.44 2,018 IND ...... 0 0.00 0 0.00 0 WNP ...... 203 0.07 265 0.09 1,607 Risso’s dolphin ...... Hawaii ...... 414 3.58 494 4.28 3,138 IA ...... 1,045 0.70 1,374 0.92 8,302 WNP ...... 4,347 3.07 4,914 3.47 32,130 IND ...... 4,621 1.01 6,354 1.39 37,546 Rough-toothed dolphin ...... Hawaii ...... 213 0.28 254 0.33 1,614 IND ...... 41 0.00 57 0.00 335 WNP ...... 1,439 28.74 1,732 34.56 10,952 Short-finned pilot whale ...... Hawaii ...... 396 2.00 473 2.38 3,003 IND ...... 1,526 0.59 2,098 0.81 12,398 WNP Northern Ecotype ...... 525 2.52 721 3.47 4,263 WNP Southern Ecotype ..... 5,683 18.03 6,303 19.99 41,641 Southern bottlenose whale IND ...... 22 0.00 31 0.00 181 Spade-toothed beaked IND ...... 16 0.09 22 0.12 130 whale. Sperm whale ...... Hawaii ...... 106 2.34 126 2.80 802 NIND ...... 33 0.14 46 0.20 270 NP ...... 1,429 1.28 1,855 1.68 11,281 SIND ...... 16 0.07 22 0.10 130 Spinner dolphin ...... Hawaii Island ...... 1 0.19 1 0.22 7 Hawaii Pelagic ...... 192 5.72 229 6.82 1,455 IND ...... 240 0.05 330 0.07 1,950 Kauai/Niihau ...... 83 13.85 99 16.53 629 Kure/Midway Atoll...... 0 0.00 0 0.00 0 Oahu/4-Islands ...... 20 2.88 24 6.66 152 Pearl and Hermes Reef ..... 0 0.00 0 0.00 0 WNP ...... 574 0.00 721 0.00 4,459 Stejneger’s beaked whale ... WNP ...... 201 2.49 276 3.42 1,632 Striped dolphin ...... Hawaii ...... 269 0.41 321 0.49 2,039 IND ...... 5,059 0.75 6,957 1.03 41,107 Japanese Coastal...... 3,366 17.18 3,571 18.23 24,177 WNP Northern Offshore ..... 267 0.07 367 0.10 2,169 WNP Southern Offshore .... 3,282 6.28 3,729 7.13 24,315 Hawaiian monk seal ...... Hawaii ...... 10 0.69 13 0.91 79 Northern fur seal ...... Western Pacific ...... 8,475 1.71 11,653 2.35 68,859 Ribbon seal ...... NP ...... 15,705 4.30 21,595 5.92 127,605 Spotted seal ...... Alaska stock/Bering Sea 80,722 17.53 110,993 24.10 655,867 DPS.

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TABLE 17—MAXIMUM TOTAL ANNUAL MMPA LEVEL B HARASSMENT PROPOSED FOR AUTHORIZATION FOR YEARS 1–4 AND 5–7, AND TOTAL FOR THE SEVEN-YEAR PERIOD OF THE FINAL RULE BY SURTASS LFA SONAR—Continued

Maximum annual Level B Maximum annual Level B harassment, years 1–4 harassment, years 5–7 Total overall 1 Level B Species Stock Percen Percent harassment for Instances species or Instances species or 7-year period stock stock

Southern stock and DPS ... 0 0.00 1 0.04 3 Steller sea lion ...... Western/Asian stock, West- 2 0.00 3 0.00 17 ern DPS. 1 ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP = Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia; YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemi- sphere; DPS = distinct population segment. 2 Kogia spp: Pygmy and dwarf sperm whales are difficult to distinguish at sea, and abundance estimates are pooled for Kogia spp in Modeled Areas 1, 2, 3, 5, 6, and 7 (reported as pooled in Ferguson and Barlow, 2001 and 2003, and pooled). Mesoplodon spp: No methods are available to distinguish between the species of Mesoplodon beaked whales in the WNP stocks (Blainville’s beaked whale (M. densirostris), Perrin’s beaked whale (M. perrini), Lesser beaked whale (M. peruvianus), Stejneger’s beaked whale (M. stejnegeri), Gingko-toothed beaked whale (M. gingkodens), and Hubbs’ beaked whale (M. carlhubbsi)) when observed during at-sea surveys (Carretta et al., 2018). As reported in Ferguson and Barlow, 2001 and 2003, data on these species were pooled. These six species are managed as one unit.

Mitigation with the ‘least practicable adverse are considered in evaluating population Under section 101(a)(5)(A) of the impact’ standard.’’ As the Ninth Circuit level impacts. MMPA, NMFS must set forth the noted in its opinion, however, the Court As we stated in the preamble to the ‘‘permissible methods of taking was interpreting the statute without the final rule for the incidental take pursuant to such activity, and other benefit of NMFS’ formal interpretation. implementing regulations, not every means of effecting the least practicable We state here explicitly that NMFS is in population-level impact violates the adverse impact on such species or stock full agreement that the ‘‘negligible negligible impact requirement. The and its habitat, paying particular impact’’ and ‘‘least practicable adverse negligible impact standard does not attention to rookeries, mating grounds, impact’’ requirements are distinct, even require a finding that the anticipated and areas of similar significance, and on though both statutory standards refer to take will have ‘‘no effect’’ on population the availability of such species or stock species and stocks. With that in mind, numbers or growth rates: ‘‘The statutory for subsistence uses’’ (hereinafter we provide further explanation of our standard does not require that the same referred to as ‘‘LPAI’’ or ‘‘least interpretation of least practicable recovery rate be maintained, rather that practicable adverse impact’’). NMFS adverse impact, and explain what no significant effect on annual rates of does not have a regulatory definition for distinguishes it from the negligible recruitment or survival occurs. [T]he least practicable adverse impact. The impact standard. This discussion is key factor is the significance of the level NDAA for FY 2004 amended the MMPA consistent with, and expands upon, of impact on rates of recruitment or as it relates to military readiness previous rules we have issued, such as survival.’’ (54 FR 40338, 40341–42; activities and the incidental take the Navy Gulf of Alaska rule (82 FR September 29, 1989). authorization process such that a 19530; April 27, 2017); the Navy While some level of impact on determination of least practicable Atlantic Fleet Testing and Training rule population numbers or growth rates of adverse impact shall include (83 FR 57076; November 14, 2018); and a species or stock may occur and still consideration of personnel safety, the Navy Hawaii-Southern California satisfy the negligible impact requirement—even without practicality of implementation, and Training and Testing rule (83 FR 66846; consideration of mitigation—the least impact on the effectiveness of the December 27, 2018). military readiness activity. practicable adverse impact provision Before NMFS can issue incidental separately requires NMFS to prescribe Least Practicable Adverse Impact take regulations under section means of ‘‘effecting the least practicable Standard 101(a)(5)(A) of the MMPA, it must make adverse impact on such species or stock In Conservation Council for Hawaii v. a finding that the total taking will have and its habitat, paying particular National Marine Fisheries Service, 97 F. a ‘‘negligible impact’’ on the affected attention to rookeries, mating grounds, Supp.3d 1210, 1229 (D. Haw. 2015), the ‘‘species or stocks’’ of marine mammals. and areas of similar significance,’’ 50 Court stated that NMFS ‘‘[appear[s] to NMFS’ and USFWS’ implementing CFR 216.102(b), which are typically think [it] satisfies] the statutory ‘least regulations for section 101(a)(5) both identified as mitigation measures.4 practicable adverse impact’ requirement define ‘‘negligible impact’’ as an impact The negligible impact and LPAI with a ‘negligible impact’ finding.’’ resulting from the specified activity that standards in the MMPA both call for More recently, expressing similar cannot be reasonably expected to, and is evaluation at the level of the ‘‘species or concerns in a challenge to the 2012 not reasonably likely to, adversely affect stock.’’ The MMPA does not define the SURTASS LFA sonar incidental take the species or stock through effects on term ‘‘species.’’ However, Merriam- rule (77 FR 50290; August 12, 2012), the annual rates of recruitment or survival Webster Dictionary defines ‘‘species’’ to Ninth Circuit Court of Appeals in (50 CFR 216.103 and 50 CFR 18.27(c)). include ‘‘related organisms or Natural Resources Defense Council Recruitment (i.e., reproduction) and (NRDC) v. Pritzker, 828 F.3d 1125, 1134 survival rates are used to determine 4 For purposes of this discussion, we omit population growth rates 3 and, therefore reference to the language in the standard for least (9th Cir. 2016), stated, ‘‘[c]ompliance practicable adverse impact that says we also must with the ‘negligible impact’ requirement mitigate for subsistence impacts because they are does not mean there [is] compliance 3 A growth rate can be positive, negative, or flat. not at issue in this regulation.

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populations potentially capable of finding (see 50 CFR 216.104(c)), no We have carefully reviewed and interbreeding.’’ See www.merriam- amount of mitigation can enable NMFS considered the Ninth Circuit’s opinion webster.com/dictionary/species to issue an incidental take authorization in NRDC v. Pritzker in its entirety. (emphasis added). The MMPA defines for an activity that still would not meet While the Court’s reference to ‘‘marine ‘‘stock’’ as a group of marine mammals the negligible impact standard. mammals’’ rather than ‘‘marine mammal of the same species or smaller taxa in a Moreover, even where NMFS can reach species or stocks’’ in the italicized common spatial arrangement that a negligible impact finding—which we language above might be construed as a interbreed when mature (16 U.S.C. emphasize does allow for the possibility holding that the least practicable 1362(11)). The definition of of some ‘‘negligible’’ population-level adverse impact standard applies at the ‘‘population’’ is a group of interbreeding impact—the agency must still prescribe individual ‘‘marine mammal’’ level, i.e., organisms that represents the level of measures that will affect the least that NMFS must require mitigation to organization at which speciation begins. practicable amount of adverse impact minimize impacts to each individual www.merriam-webster.com/dictionary/ upon the affected species or stock. marine mammal unless impracticable, population. The definition of Section 101(a)(5)(A)(i)(II) requires we believe such an interpretation ‘‘population’’ is strikingly similar to the NMFS to issue, in conjunction with its reflects an incomplete appreciation of MMPA’s definition of ‘‘stock,’’ with authorization, binding—and the Court’s holding. In our view, the both involving groups of individuals enforceable—restrictions (in the form of opinion as a whole turned on the that belong to the same species and regulations) setting forth how the Court’s determination that NMFS had located in a manner that allows for not given separate and independent interbreeding. In fact, the term ‘‘stock’’ activity must be conducted, thus ensuring the activity has the ‘‘least meaning to the least practicable adverse in the MMPA is interchangeable with impact standard apart from the the statutory term ‘‘population stock’’ practicable adverse impact’’ on the affected species or stocks and their negligible impact standard, and further, (16 U.S.C. 1362(11)). Both the negligible that the Court’s use of the term ‘‘marine impact standard and the least habitat. In situations where mitigation is specifically needed to reach a negligible mammals’’ was not addressing the practicable adverse impact standard call question of whether the standard for evaluation at the level of the species impact determination, section 101(a)(5)(A)(i)(II) also provides a applies to individual animals as or stock, and the terms ‘‘species’’ and opposed to the species or stock as a ‘‘stock’’ both relate to populations; mechanism for ensuring compliance with the ‘‘negligible impact’’ whole. We recognize that while therefore, it is appropriate to view both consideration of mitigation can play a the negligible impact standard and the requirement. Finally, we reiterate that the LPAI standard also requires role in a negligible impact least practicable adverse impact determination, consideration of standard as having a population-level consideration of measures for marine mammal habitat, with particular mitigation measures extends beyond focus. that analysis. In evaluating what This interpretation is consistent with attention to rookeries, mating grounds, and other areas of similar significance, mitigation measures are appropriate, Congress’s statutory findings for NMFS considers the potential impacts enacting the MMPA, nearly all of which and for subsistence impacts, whereas the negligible impact standard is of the specified activities, the are most applicable at the species or availability of measures to minimize stock (i.e., population) level. See 16 concerned solely with conclusions about the impact of an activity on those potential impacts, and the U.S.C. 1361 (finding that it is species practicability of implementing those and population stocks that are or may be annual rates of recruitment and measures, as we describe below. in danger of extinction or depletion; that survival.5 it is species and population stocks that In NRDC v. Pritzker, the Court stated, Implementation of Least Practicable should not diminish beyond being ‘‘[t]he statute is properly read to mean Adverse Impact Standard significant functioning elements of their that even if population levels are not Given the NRDC v. Pritzker decision, ecosystems; and that it is species and threatened significantly, still the agency we discuss here how we determine population stocks that should not be must adopt mitigation measures aimed whether a measure or set of measures permitted to diminish below their at protecting marine mammals to the meets the ‘‘least practicable adverse optimum sustainable population level). greatest extent practicable in light of impact’’ standard. Our separate analysis Annual rates of recruitment (i.e., military readiness needs.’’ Id. at 1134 reproduction) and survival are the key of whether the take anticipated to result (emphases added). This statement is from Navy’s activities meets the biological metrics used in the evaluation consistent with our understanding of population-level impacts, and ‘‘negligible impact’’ standard appears in stated above that even when the effects the Negligible Impact Analysis and accordingly these same metrics are also of an action satisfy the negligible impact used in the evaluation of population Determination section below. standard (i.e., in the Court’s words, Our evaluation of potential mitigation level impacts for the least practicable ‘‘population levels are not threatened adverse impact standard. measures includes consideration of two significantly’’), still the agency must primary factors: Recognizing this common focus of the prescribe mitigation under the least (1) The manner in which, and the least practicable adverse impact and practicable adverse impact standard. degree to which, implementation of the negligible impact provisions on the However, as the statute indicates, the potential measure(s) is expected to ‘‘species or stock’’ does not mean we focus of both standards is ultimately the reduce adverse impacts to marine conflate the two standards. Despite impact on the affected ‘‘species or mammal species or stocks, their habitat, some common statutory language, we stock,’’ and not solely focused on or recognize the two provisions are and their availability for subsistence directed at the impact on individual different and have different functions. uses (where relevant). This analysis marine mammals. First, a negligible impact finding is considers such things as the nature of required before NMFS can issue an the potential adverse impact (such as 5 Outside of the military readiness context, incidental take authorization. Although mitigation may also be appropriate to ensure likelihood, scope, and range), the it is acceptable to use the mitigation compliance with the ‘‘small numbers’’ language in likelihood that the measure will be measures to reach a negligible impact MMPA sections 101(a)(5)(A) and (D). effective if implemented, and the

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likelihood of successful standard. Analysis of how a potential The emphasis given to a measure’s implementation; and mitigation measure may reduce adverse ability to reduce the impacts on a (2) The practicability of the measures impacts on a marine mammal stock or species or stock considers the degree, for applicant implementation. species, consideration of personnel likelihood, and context of the Practicability of implementation may safety, practicality of implementation, anticipated reduction of impacts to consider such things as cost, impact on and consideration of the impact on individuals (and how many individuals) activities, and, in the case of a military effectiveness of military readiness as well as the status of the species or readiness activity, specifically considers activities are not issues that can be stock. personnel safety, practicality of meaningfully evaluated through a yes/ The ultimate impact on any implementation, and impact on the no lens. The manner in which, and the individual from a disturbance event effectiveness of the military readiness degree to which, implementation of a (which informs the likelihood of activity. 16 U.S.C. 1371(a)(5)(A)(iii). measure is expected to reduce impacts, adverse species- or stock-level effects) is While the language of the least as well as its practicability in terms of dependent on the circumstances and practicable adverse impact standard these considerations, can vary widely. associated contextual factors, such as calls for minimizing impacts to affected For example, a time/area restriction duration of exposure to stressors. species or stocks and their habitats, we could be of very high value for reducing Though any proposed mitigation needs recognize that the reduction of impacts the potential for, or severity of, to be evaluated in the context of the to those species or stocks accrues population-level impacts (e.g., avoiding specific activity and the species or through the application of mitigation disturbance of feeding females in an stocks affected, measures with the measures that limit impacts to area of established biological following types of effects have greater individual animals. Accordingly, importance), or it could be of lower value in reducing the likelihood or NMFS’ analysis focuses on mitigation value (e.g., decreased disturbance in an severity of adverse species- or stock- measures that are designed to avoid or area of high productivity but of less level impacts: Avoiding or minimizing minimize impacts on individual marine firmly established biological injury or mortality; limiting interruption mammals that have the potential to importance). Regarding practicability, a of known feeding, breeding, mother/ increase the probability or severity of measure might involve restrictions in an young, or resting behaviors; minimizing population-level effects. area or time that impede the Navy’s the abandonment of important habitat While direct evidence of impacts to ability to certify a strike group (higher (temporally and spatially); minimizing species or stocks from a specified impact on mission effectiveness), or it the number of individuals subjected to activity is rarely available, and could mean delaying a small in-port these types of disruptions; and limiting additional study is still needed to training event by 30 minutes to avoid degradation of habitat. Mitigating these understand how specific disturbance exposure of a marine mammal to types of effects is intended to reduce the events affect the fitness of individuals of injurious levels of sound (lower impact). likelihood that the activity will result in certain species, there have been A responsible evaluation of ‘‘least energetic or other types of impacts that improvements in understanding the practicable adverse impact’’ will are more likely to result in reduced process by which disturbance effects are consider the factors along these realistic reproductive success or survivorship. It translated to the population. With is also important to consider the degree recent scientific advancements (both scales. Accordingly, the greater the likelihood that a measure will of impacts that are expected in the marine mammal energetic research and absence of mitigation in order to assess the development of energetic contribute to reducing the probability or severity of adverse impacts to the the added value of any potential frameworks), the relative likelihood or measures. Finally, because the least degree of impacts on species or stocks species or stock or their habitat, the greater the weight that measure is given practicable adverse impact standard may often be inferred given a detailed gives NMFS discretion to weigh a understanding of the activity, the when considered in combination with practicability to determine the variety of factors when determining environment, and the affected species or appropriate mitigation measures and stocks. This same information is used in appropriateness of the mitigation measure, and vice versa. In the because the focus of the standard is on the development of mitigation measures reducing impacts at the species or stock and helps us understand how mitigation evaluation of specific measures, the details of the specified activity will level, the least practicable adverse measures contribute to lessening effects impact standard does not compel (or the risk thereof) to species or stocks. necessarily inform each of the two primary factors discussed above mitigation for every kind of take, or We also acknowledge that there is every individual taken, if that mitigation always the potential that new (expected reduction of impacts and practicability), and will be carefully is unlikely to contribute meaningfully to information, or a new recommendation the reduction of adverse impacts on the that we had not previously considered, considered to determine the types of mitigation that are appropriate under species or stock and its habitat, even becomes available and necessitates when practicable for implementation by reevaluation of mitigation measures the least practicable adverse impact standard. We discuss consideration of the applicant. (which may be addressed through The status of the species or stock is adaptive management) to see if further these factors in greater detail below. 1. Reduction of adverse impacts to also relevant in evaluating the reductions of population impacts are appropriateness of potential mitigation possible and practicable. marine mammal species or stocks and their habitat.6 measures in the context of least In the evaluation of specific measures, practicable adverse impact. The the details of the specified activity will 6 following are examples of factors that necessarily inform each of the two We recognize the least practicable adverse impact standard requires consideration of measures may (either alone, or in combination) primary factors discussed above that will address minimizing impacts on the result in greater emphasis on the (expected reduction of impacts and availability of the species or stocks for subsistence importance of a mitigation measure in practicability), and are carefully uses where relevant. Because subsistence uses are not implicated for this action, we do not discuss considered to determine the types of them. However, a similar framework would apply unmitigable adverse impact on the availability of mitigation that are appropriate under for evaluating those measures, taking into account the species or stocks for taking for subsistence, and the least practicable adverse impact the MMPA’s directive that we make a finding of no the relevant implementing regulations.

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reducing impacts on a species or stock: 2019 SURTASS LFA FSEIS/SOEIS, Hawaii through its CZMA Program, was The stock is known to be decreasing or NMFS has determined that the correctly described in the 2018 Draft status is unknown, but believed to be following mitigation measures would SURTASS LFA SEIS/SOEIS and 2019 declining; the known annual mortality satisfy the LPAI standard: SURTASS LFA FSEIS/SOEIS. The (from any source) is approaching or (1) 2,000-yd LFA sonar mitigation proposed rule incorrectly suggested that exceeding the potential biological zone—LFA sonar training and testing Navy would not operate the SURTASS removal (PBR) level (as defined in 16 transmissions will be suspended if the LFA sonar system within Hawaii state U.S.C. 1362(20)); the affected species or Navy detects marine mammals within a waters. The description of this measure stock is a small, resident population; or distance of 2,000 yds (1.8 km; 1.1 mi; is corrected in this final rule. the stock is involved in a UME or has 1.0 nmi) of the LFA sonar source, which Below, we discuss the mitigation other known vulnerabilities, such as encompasses both the approximately 1- measures as agreed upon by the Navy recovering from an oil spill. km radial distance of the 180 dB re: 1 and NMFS. For additional details Habitat mitigation, particularly as it mPa rms received level mitigation zone regarding the Navy’s mitigation relates to rookeries, mating grounds, and and an additional buffer, by any of the measures, please also see Chapter 5 in areas of similar significance, is also following detection methods: the 2019 SURTASS LFA FSEIS/SOEIS. relevant to achieving the standard and (a) Visual monitoring; 2,000-yard Mitigation Zone (Re- can include measures such as reducing (b) Passive acoustic monitoring; and Evaluation of the 180 dB re: 1 mPa rms impacts of the activity on known prey (c) Active acoustic monitoring. Zone) utilized in the activity area or reducing (2) Geographic restrictions—LFA impacts on physical habitat. As with sonar training and testing will be The Navy requested, and NMFS species- or stock-related mitigation, the conducted such that: includes in this rule, a single, fixed emphasis given to a measure’s ability to (a) The received level of SURTASS 2,000-yard (yd) (0.99 nmi/1,829 m/1.83 reduce impacts on a species or stock’s LFA sonar transmissions during training km) mitigation zone rather than a habitat considers the degree, likelihood, and testing events will not exceed 180 combined mitigation and buffer zone and context of the anticipated reduction dB re: 1 mPa rms within 1 km seaward (based on real-time propagation of impacts to habitat. Because habitat of any OBIA boundary, during the modeling) of nominally 1.08 nmi (2 km), value is informed by marine mammal indicated periods of biological which has been required in past rules. presence and use, in some cases there importance; This modification will standardize and may be overlap in measures for the (b) no more than 25 percent of the simplify Navy mitigation and species or stock and for use of habitat. authorized amount (transmission hours) monitoring implementation and We consider available information of SURTASS LFA sonar for training and includes consideration of updated indicating the likelihood of any measure testing will be used within 10 nmi (18.5 information on marine mammal injury to accomplish its objective. If evidence km) of any single OBIA during any year thresholds. The 180 dB re: 1 mPa rms shows that a measure has not typically (no more than 124 hours in years 1–4 threshold for the onset of potential been effective nor successful, then and 148 hours in years 5–7) unless the injury has been used in the impact either that measure should be modified following conditions are met: Should assessment for SURTASS LFA sonar or the potential value of the measure to national security present a requirement since 2001, and the isopleth associated reduce effects should be lowered. to conduct more than 25 percent of with that threshold has also previously 2. Practicability. Factors considered authorized hours of SURTASS LFA informed the development of mitigation. may include cost, impact on activities, sonar within 10 nmi (18.5 km) of any However, NMFS’ 2018 Revision to: and, in the case of a military readiness single OBIA during any year, naval Technical Guidance for Assessing the activity, personnel safety, practicality of units will obtain permission from the Effect of Anthropogenic Sound on implementation, and impact on the appropriate designated Command Marine Mammal Hearing (NMFS, 2018, effectiveness of the military readiness authority prior to commencement of the hereafter referred to as ‘‘NMFS’ 2018 activity (16 U.S.C. 1371(a)(5)(A)(iii)). activity. The Navy will provide NMFS Acoustic Technical Guidance’’) reflects the current state of scientific knowledge Mitigation Measures with notification as soon as is practicable and include the information regarding the potential impacts of sound As with other rulemakings for (e.g., sonar hours) in its annual activity on marine mammal hearing. It specifies SURTASS LFA sonar, our consideration reports submitted to NMFS. auditory weighted (SELcum) values for of mitigation under the LPAI standard (c) the received level of SURTASS the onset of PTS (onset of injury) based was conducted at scales that take into LFA sonar transmissions will not on marine mammal hearing groups. The account the entire rulemaking period exceed 180 dB re: 1 mPa rms within the NMFS 2018 Acoustic Technical and geographic scope of potential areas Coastal Standoff Zone (22 km (12 nmi) Guidance categorizes marine mammals of SURTASS LFA sonar activities and from any land); into five generalized hearing groups the types of impacts that could occur (d) no activities with the SURTASS with defined hearing ranges and under the rule. NMFS reviewed the LFA sonar system will occur within presents the auditory weighting proposed activities and the proposed territorial seas of foreign nations, which functions developed for each of these mitigation measures as described in the are areas up to 12 nmi from shore, hearing groups, reflecting the best Navy’s application, and the measures depending on the distance that available data on hearing, impacts of added by NMFS, to determine if they individual nations claim; and sound on hearing, and data on equal would satisfy the standard of LPAI on (e) no activities with the SURTASS latency. marine mammal species or stock(s) and LFA sonar system will occur within the When estimating the onset of injury their habitat. Since the proposed rule 14 waters of Penguin Bank, Hawaii for non-impulsive sound sources (PTS), OBIAs have been designated and (defined as water depth of 600 ft (183 NMFS’ 2018 Acoustic Technical additional mitigation has been added m)), and ensonification of Hawaii state Guidance defines weighted thresholds that limits the number of hours of waters (out to 3 nmi) will not exceed as cumulative sound exposure levels SURTASS LFA sonar transmission 145 dB re: 1 mPa rms. This measure, (SELcum). The new thresholds and their occurring around any single OBIA (see which is a result of an agreement associated metric incorporate a duration below). As described below, and in the between the Navy and the State of component, which means that they are

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not directly comparable to the previous weighting functions results in the LFA sonar before experiencing the onset 180 dB re: 1 mPa rms SPL threshold. To thresholds increasing by approximately of injury, 135 ft (41 m) for this example. determine what the SELcum for each 1.5; 46; 56; 15; and 20 dB for the LF, Consequently, if mitigation is tied to hearing group would be when exposed MF, HF, phocid pinnipeds (underwater) preventing the same type of impact to a 60-second (the nominal time of an (PW), and otariid pinnipeds (PTS), the distance at which SURTASS LFA sonar transmission, or one ping), (underwater) (OW) hearing groups, LFA sonar transmissions should be 300 Hz (the center frequency in the respectively, above the baseline mitigated for marine mammals would be possible sonar transmission range of threshold level (Table 18). Based on the distance associated with LF 100–500 Hz, single element source level simple spherical spreading (i.e., cetaceans, as the mitigation range would of 215 dB re: 1 mPa at 1 m) SURTASS transmission loss based on 20 × log10 be the greatest for this hearing group. LFA sonar transmission, the appropriate [range {m}]), all hearing groups except Any mitigation measure developed for auditory weighting function must be LF cetaceans would need to remain LF cetaceans based on PTS onset would applied to account for each hearing within 22 ft (7 m) for the duration of an group’s sensitivity. Again, although entire LFA sonar ping (60 seconds) to be highly conservative for any other direct comparisons are difficult, when a potentially experience PTS. LF marine mammals potentially exposed to 300 Hz, 60-second exposure is cetaceans would need to remain at the SURTASS LFA sonar transmissions. considered, applying the auditory greatest distance from the transmitting

TABLE 18—TTS AND PTS ONSET THRESHOLDS FOR NON-IMPULSIVE SOUNDS

Cumulative sound Cumulative Cumulative exposure sound sound level threshold exposure exposure for PTS 1 with Hearing group level threshold level threshold 1 1 weighting for TTS for PTS function (dB) (dB) applied at 300 Hz (dB)

Low-frequency cetaceans ...... 179 199 200.5 Mid-frequency cetaceans ...... 178 198 244 High-frequency cetaceans ...... 153 173 229 Phocid pinnipeds (PW) (Underwater) ...... 181 201 216 Otariid pinnipeds (OW) (Underwater) ...... 199 219 239 1 Referenced to 1 μPa2s; weighted according to appropriate auditory weighting function.

To calculate the SPL of these SELcum exposure scenario is unlikely, as a implemented a suspension of SURTASS thresholds it is necessary to account for marine mammal would have to remain LFA sonar transmissions. This measure the weighting function, as previously close, <200 ft (61 m), to the transmitting was included in prior rules to reduce or explained, and the duration of exposure LFA sonar array for an extended period, alleviate the likelihood that marine (10 x log (duration in sections)). approximately 20 minutes, to mammals would be exposed to levels of Applying the duration of a single ping experience two full pings (one ping sound that may result in injury (PTS). of SURTASS LFA sonar (60 sec) results every 10 min). Although this is an However, due to the updated criteria in in 17.8 dB (i.e., (10 log (60)), which is unlikely scenario, the Navy will retain NMFS’ 2018 Acoustic Technical subtracted from the weighted SELcum and NMFS will require a mitigation Guidance, this 180 dB mitigation zone value of 200.5 dB for LF cetaceans (199 zone that is basically equivalent to the would not only preclude PTS, but dB PTS onset threshold plus 1.5 dB previous zone based on 180 re: 1 mPa almost all TTS and more severe associated with LF cetacean weighting rms received level as the current behavioral reactions as well. While not function at 300 Hz), for an SPL of 182.7 mitigation zone for SURTASS LFA an expansion of the mitigation, the best dB re: 1 mPa rms. The distance to the sonar training and testing activities in available science indicates the this rule, as described below. mitigation zone is more effective at 182.7 dB re: 1 mPa rms isopleth would In previous rules, prior to reducing PTS and TTS than previously be slightly smaller than that associated commencing and during SURTASS LFA considered in prior authorizations for with the previously used 180 dB re: 1 sonar training and testing transmissions, SURTASS LFA sonar. mPa rms isopleth. To convert the SELcum the Navy determined (in real time) the The Navy modeling of the sound field threshold to SPL for two pings of propagation of LFA sonar signals in the in near-real time conditions provided SURTASS LFA sonar, one would need ocean and the distance from the the information necessary to calculate to account for this increased duration of SURTASS LFA sonar source to the 180 the mitigation zone for which delay or exposure (10 x log (120 seconds)), dB re: 1 mPa rms isopleth (See suspension of LFA sonar transmissions which results in 20.8 dB being Description of Real-Time SURTASS LFA would occur. Acoustic model updates subtracted from the weighted SELcum Sonar Sound Field Modeling section of were nominally made every 12 hrs, or value of 200.5 dB for LF cetaceans, for the application). The 180 dB re: 1 mPa as meteorological or oceanographic an SPL of 179.7 dB re: 1 mPa rms. The rms isopleth defined the extent of the conditions changed. If a marine resulting SPL for exposure of an LF LFA sonar mitigation zone for marine mammal entered the calculated cetacean to two pings of SURTASS LFA mammals around the surveillance threshold distance (plus its associated sonar (179.7 dB re: 1 mPa rms) is very vessel. If a marine mammal entered the buffer distance), the sonar operator close to the 180 dB re: 1 mPa rms LFA sonar mitigation zone (or the 1-km notified the senior military member in received level, on which previous buffer previously required by NMFS, as charge, who would order the delay or mitigation measures were based. This described below), the Navy suspension of transmissions. If it were

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predicted that the SPL threshold rare event of a strong acoustic duct in of the visual watches and periodically distances would change within the next which the volume of water ensonified to review the log entries. 12-hr period, the senior military 180 dB re: 1 mPa rms could exist at a If a lookout observes a marine member in charge would also be horizontal distance somewhat greater mammal outside of the 2,000-yd LFA notified in order to take the necessary than 0.54 nmi (1 km) (DoN, 2001). With sonar mitigation zone, the lookout will action to ensure that the sound field the mitigation zone of 2,000 yd (1.83 notify the senior military member in criteria would not be exceeded. km), there is no potential for animals to charge of the watch. The senior military As an added protective measure, be exposed to received levels greater member in charge shall then notify the NMFS previously required the Navy to than 180 dB re: 1 mPa rms, or levels HF/M3 active sonar operator to include a ‘‘buffer zone’’ that extended above the new injury (PTS) thresholds determine the range and projected track an additional 1 km (0.62 mi; 0.54 nm) identified in NMFS’ 2018 Acoustic of the marine mammal. If the HF/M3 beyond the Navy’s proposed 180 dB re: Technical Guidance, and, therefore, sonar operator or the lookout 1 mPa rms isopleth LFA sonar mitigation marine mammals are protected from determines that the marine mammal zone. This buffer typically coincides both acoustic injury and more severe will pass within the 2,000-yd LFA sonar with the full detection range of the HF/ occurrences of Level B harassment. mitigation zone, the senior military M3 active sonar for mitigation member in charge shall order the delay monitoring (approximately 2 to 2.5 km; Visual Mitigation Monitoring or suspension of SURTASS LFA sonar 1.2 to 1.5 mi; 1.1 to 1.3 nmi). Thus, Visual monitoring will consist of training and testing transmissions when implementation of this additional 1 km daytime observations for marine the animal enters the 2,000-yd LFA buffer zone increases the shutdown mammals from the bridge of SURTASS sonar mitigation zone to prevent Level zone around the LFA sonar array and LFA sonar vessels by lookouts A harassment as well as reduce the vessel and, given the highly effective (personnel trained in detecting and potential for TTS and more severe monitoring capabilities (described identifying marine mammals). Navy behavioral responses. below), ensures that no marine shipboard lookouts are highly qualified If a lookout observes a marine mammals will be exposed to an SPL and experienced observers of the marine mammal anywhere within the 2,000-yd greater than approximately 174 dB re: 1 environment. Their operational duties LFA mitigation/buffer zone (required by mPa rms. In past applications, the Navy require that they report all objects NMFS), the senior military member in has noted that this additional mitigation sighted on the water surface to the charge will be notified so that the LFA is practicable and the Navy has senior military member in charge (e.g., sonar training and testing transmissions implemented this measure in previous trash, a periscope, marine mammals, sea will be immediately shut down or authorizations. In addition, as noted turtles) and all disturbances (e.g., suspended. The lookout will enter his/ her observations about sighted marine above for the 180 dB mitigation zone, surface disturbance, discoloration) that mammals into the log: date/time; vessel based on new scientific information and may be indicative of a threat to the name; geographic coordinates/position; updated criteria in NMFS’ 2018 vessel and its crew. The objective of type and number of marine mammals Acoustic Technical Guidance, this visual mitigation monitoring is to observed; assessment basis (i.e., buffer mitigation is likely even more maintain location, distance, and observed injury or behavioral response); effective at avoiding the likelihood of movement information about marine bearing from vessel; whether activities PTS and reducing the degree of TTS mammals observed to ensure that none were delayed, suspended, or terminated; than previously known when analyzed approach close enough to enter the and employed in previous and relevant narrative information. 2,000-yd LFA mitigation/buffer zone. authorizations. The proposed 2,000 yd Marine mammal biologists who are (1.83 km) single fixed mitigation zone Daylight is defined as 30 min before qualified in conducting at-sea marine would cover virtually all of the previous sunrise until 30 min after sunset. Visual mammal visual monitoring from surface combined mitigation/buffer zone of monitoring will begin 30 min before vessels will train and qualify designated nominally 1.08 nmi (2 km), since the sunrise or 30 min before the Navy ship personnel to conduct at-sea visual difference between 2,000 yd and 2 km deploys the SURTASS LFA sonar array. monitoring. This training may be is only about 187 yd (or 0.09 nmi (167 Lookouts will continue to monitor the accomplished either in-person or via m)). Likewise, the difference in the area until 30 min after sunset or video training. continue to monitor for at least 15 min sound field of the combined mitigation/ Passive Acoustic Mitigation Monitoring buffer zone of 2,000 yd (1.83 km) versus after completion of the SURTASS LFA 1.08 nmi (2,187 yd; 2 km) would also be sonar training and testing transmission. For the second of the three-part negligible. At 2,000 yd (1.83 km), The lookouts will maintain a topside mitigation monitoring measures, the modeling shows that the received level watch and marine mammal observation Navy will conduct passive acoustic would be 174.75 dB while at 1.08 nmi log during daytime activities that monitoring using the SURTASS towed (2 km), the received level would be employ SURTASS LFA sonar in the horizontal line array to detect vocalizing 173.98 dB, which is a difference of only active mode. These trained monitoring marine mammals as an indicator of their 0.77 dB. This very small difference in personnel maintain a topside watch and presence. This system serves to augment received level would not be perceptible scan the water’s surface around the the visual and active sonar detection to a marine mammal. vessel systematically with standard systems, and is deployed and operated In summary, Navy proposed, and binoculars (7x) and with the naked eye. at all times in which the LFA sonar NMFS will require, a single, fixed, If the lookout sights a possible marine system could be utilized. If a passive combined mitigation/buffer zone for mammal, the lookout will use big-eye acoustic technician detects a vocalizing SURTASS LFA sonar training and binoculars (25x) to confirm the sighting marine mammal that may be potentially testing activities to standardize and and potentially identify the marine affected by LFA sonar prior to or during simplify implementation of this mammal species. Lookouts will enter transmissions, the technician will notify monitoring requirement using standard numbers and identification of marine the senior military member in charge Navy metrics (yards not meters). This mammals sighted into the log, as well as who will immediately alert the HF/M3 measure will be effective mitigation in any unusual behavior. A designated active sonar operators and the lookouts. all acoustic environments, even in the ship’s officer will monitor the conduct The senior military member in charge

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shall order the delay or suspension of mitigation zone by any of the three (e.g., sonar hours) in its annual activity LFA sonar transmissions when the monitoring methods. reports submitted to NMFS. animal enters the 2,000-yd LFA In situations where the HF/M3 sonar (c) The received level of SURTASS mitigation/buffer zone as detected by system has been powered down for LFA sonar transmissions will not either the HF/M3 sonar operator or the more than 2 min during a training and exceed 180 dB re: 1 mPa rms within the lookouts. The passive acoustic testing event, the Navy will ramp up the Coastal Standoff Zone (22 km (12 nmi) technician will record all contacts of HF/M3 sonar power level over a period from any land). marine mammals in a log. of 5 min from the source level of 180 dB (d) No activities with the SURTASS LFA sonar system will occur within Active Acoustic Mitigation Monitoring re: 1 mPa at 1 m in 10-dB increments until the system attains full power. territorial seas of foreign nations, which Active acoustic monitoring uses the are areas up to 12 nmi from shore, high-frequency marine mammal NMFS’ Additional 1-km Buffer Zone depending on the distance that monitoring (HF/M3) sonar to detect, Around OBIAs individual nations claim. locate, and track marine mammals that Similar to the previously-required 1- (e) No activities with the SURTASS could pass close enough to the km buffer around the LFA Sonar LFA sonar system will occur within the SURTASS LFA sonar array to enter the Mitigation Zone, NMFS is requiring the waters of Penguin Bank, Hawaii 2,000-yd LFA sonar mitigation zone. Navy to include a ‘‘buffer zone’’ that (defined as water depth of 600 ft (183 HF/M3 acoustic monitoring may be extends an additional 1 km (0.62 mi; m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed used at all times of the day or night and 0.54 nm) beyond the seaward boundary 145 dB re: 1 mPa rms. begins 30 min before the first LFA sonar of any OBIA (discussed in ‘‘Geographic As with previous rulemakings for transmission of a given training or Restrictions’’ section immediately SURTASS LFA sonar, this rulemaking testing activity is scheduled to below). The Navy has noted that this contains a consideration of geographic commence and continues until the Navy additional mitigation is practicable and restrictions, including OBIAs. However, terminates LFA sonar transmissions. has implemented this measure in whereas the Navy previously considered If the HF/M3 sonar operator detects a previous authorizations. In addition, as SURTASS LFA sonar activities marine mammal contact outside the noted above for the 180-dB mitigation worldwide, it has narrowed the 2,000-yd LFA sonar mitigation zone, the zone, based on new scientific geographic scope of its current HF/M3 sonar operator will determine information and updated criteria in application to reflect only those areas of the range and projected track of the NMFS’ 2018 Acoustic Technical the world’s oceans where the Navy marine mammal. If the operator Guidance, this 1-km buffer mitigation is anticipates conducting covered determines that the marine mammal more effective at avoiding PTS and SURTASS LFA sonar activities (i.e., will pass within the 2,000-yd LFA sonar reducing TTS than previously known training and testing in the SURTASS mitigation zone, he/she will notify the when analyzed and employed in LFA Study Area in the central and senior military member in charge. The previous authorizations. western North Pacific and eastern senior military member in charge will Geographic Restrictions Indian Oceans). Therefore, then immediately order the delay or consideration of geographical suspension of LFA sonar training and As noted above, the Navy will restrictions is also limited to the testing transmissions when the animal implement geographic restrictions for SURTASS LFA Study Area in the is predicted to enter the 2,000-yd LFA SURTASS LFA sonar training and central and western North Pacific and sonar mitigation zone. testing activities that entail restricting eastern Indian Oceans. If the HF/M3 sonar operator detects a SURTASS LFA sonar activities within marine mammal within the 2,000-yd these designated areas such that: Offshore Biologically Important Areas— LFA mitigation zone, he/she will notify (a) The received level of SURTASS Background the senior military member in charge LFA sonar transmissions during training Given the unique operational who will immediately order the delay or and testing events will not exceed 180 characteristics of SURTASS LFA sonar, suspension of training and testing dB re: 1 mPa rms within 1 km seaward Navy and NMFS developed the concept transmissions. The HF/M3 sonar of any OBIA boundary, during the of geographical restrictions for operator will record all contacts of indicated periods of biological SURTASS LFA sonar in the SURTASS marine mammals into the log. importance. LFA Sonar FOEIS/EIS (DoN, 2001) to Prior to full-power operations of the (b) No more than 25 percent of the include: Delineating a 12 nmi coastal HF/M3 active sonar during SURTASS authorized amount (transmission hours) standoff zone where received levels LFA sonar training and testing of SURTASS LFA sonar for training and from SURTASS LFA sonar will not activities, the Navy will ramp up the testing will be used within 10 nmi (18.5 exceed 180 dB re: 1 mPa rms, and HF/M3 sonar power level over a period km) of any single OBIA during any year designating OBIAs, where warranted, of 5 min from the source level of 180 dB (no more than 124 hours in years 1–4 for areas beyond this coastal standoff re 1 mPa at 1 m in 10-dB increments and 148 hours in years 5–7) unless the zone, wherein received levels will not until the HF/M3 system attains full following conditions are met: Should exceed 180 dB re: 1 mPa rms. The coastal power (if required) to ensure that there national security present a requirement standoff zone and OBIAs are intended to are no inadvertent exposures of marine to conduct more than 25 percent of reduce the likelihood and/or degree of mammals to received levels greater than authorized hours of SURTASS LFA impacts on affected marine mammal 180 dB re 1 mPa rms from the HF/M3 sonar within 10 nmi (18.5 km) of any species or stocks. As noted in the 2012 sonar. The Navy will not increase the single OBIA during any year, naval final rule (77 FR 50290; August 20, HF/M3 sonar source level if any of the units will obtain permission from the 2012), over 80 percent of the existing three monitoring methods detects a appropriate designated Command and potential marine protected areas marine mammal during ramp-up. Ramp- authority prior to commencement of the reviewed were within 12 nmi from a up of the HF/M3 active sonar may activity. The Navy will provide NMFS coastline, indicating the effectiveness of continue once marine mammals are no with notification as soon as is the coastal standoff as one of the longer detected within the 2,000-yd LFA practicable and include the information primary mitigation measures for

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reducing potential impacts to marine In parallel, for the 2012 rule, NMFS, somewhat limited data were eligible for mammals. OBIAs expand upon this with Navy input, developed a new further consideration as an OBIA. protection by avoiding or minimizing process and screening criteria for The systematic process described here impacts in areas beyond the coastal determining an area’s eligibility to be was developed in order to support an standoff zone where marine mammals considered as an OBIA nominee for orderly and manageable expert review are known to engage in specific marine mammals. Those screening and to ensure some definable behaviors that may lead to more severe criteria were: (1) Areas with: (a) High information quality in the identification impacts if interrupted; known to densities of marine mammals; or (b) of OBIAs. As a result of this process, 45 congregate in higher densities; and/or Known/defined critical habitat, areas ranked a 2 or higher. known to have a limited range and breeding/calving grounds, foraging Although not part of the initial small abundance that creates more grounds, migration routes; or (c) Small, screening criteria for the 2012 vulnerability for the stock as a whole. distinct populations of marine mammals rulemaking, consideration of marine These criteria are important when with limited distributions; and (2) Areas mammal hearing frequency sensitivity determining whether mitigation would that are outside of the coastal standoff led NMFS to screen out areas that be likely to reduce the probability or distance and within potential qualified solely on the basis of their severity of effects to individuals that operational areas for SURTASS LFA importance for mid- or high-frequency would translate to minimization of (i.e., greater than 22 km (13.6 mi; 12 hearing specialists in past rulemakings. impacts at the population level under nmi) from any shoreline and not in This was due to the fact that the LFA the LPAI standard. Limiting LFA sonar polar regions). sound source is below the range of best activities in these important areas is For the 2012 SURTASS LFA FSEIS/ hearing sensitivity for MF and HF expected to limit the likelihood and/or SOEIS and 2012 rule, NMFS also odontocete hearing specialists. Using degree of species or stock effects by developed and implemented a robust, the example of harbor porpoises, this minimizing the chances that the activity systematic screening process for means that a sound with a frequency will result in detrimental energetic reviewing existing and potential marine less than 1 kHz would need to be effects to individuals (such as those that protected areas against the OBIA significantly louder (more than 50 dB could occur in known feeding areas) or criteria, based on the World Database on louder) than a sound in their area of best direct interference in breeding or Protected Areas (WDPA, 2009), Hoyt sensitivity (around 100 kHz) in order for mother/young interactions (such as (2005), and prior SURTASS LFA sonar them to hear it. Additionally, during the those that could occur in reproductive OBIAs. This process produced a 1997 to 1998 SURTASS LFA Sonar Low or nursing areas) that could result in preliminary list of 403 OBIA nominees. Frequency Sound Scientific Research reductions in reproductive success or As noted above, and stated in the 2012 Program (LFS SRP), numerous survivorship. Final Rule (77 FR 50290; August 20, odontocete and pinniped species (i.e., Three OBIAs were identified in the 2012), the vast majority of the areas MF and HF hearing specialists) were 2001 SURTASS LFA FOEIS/EIS: 200 m reviewed as potential OBIAs were sighted in the vicinity of the sound isobaths of the east coast of North within 12 nmi from a coastline and exposure tests and showed no America; Costa Rica Dome; and therefore already afforded protection immediately obvious responses or Antarctic Convergence Zone. In 2007, due to the coastal standoff zone, changes in sighting rates as a function the Navy published a supplemental indicating the effectiveness of the of source conditions, which likely FEIS/FOEIS that designated six new coastal standoff zone as one of the produced received levels similar to OBIAs in addition to the three OBIAs primary mitigation measures for those that produced minor short-term that were designated in the 2001 reducing potential impacts. The behavioral responses in the baleen SURTASS LFA FOEIS/FEIS. The criteria remaining areas were broadly evaluated whales (i.e., LF hearing specialists). for identifying OBIAs in the 2001 and under the OBIA criteria and, after NMFS reasoned that MF and HF 2007 rules were originally defined in review, 73 potential OBIAs were odontocete hearing specialists have the 2001 SURTASS LFA Sonar FOEIS/ considered by the Navy and NMFS. such reduced sensitivity to the LFA EIS (Subchapter 2.3.2.1) as areas of the After the list of potential OBIAs was sonar source that limiting ensonification world’s oceans outside of the geographic developed based on information at a in OBIAs for those animals would not stand-off distance (greater than 22 km broad scale, each of these areas was afford protection beyond that which is (12 nmi)) from a coastline (including evaluated at a finer scale to determine already achieved by implementing a islands) where marine animals of whether they qualified for designation shutdown when any marine mammal concern (those animals listed under the as an OBIA. Further analysis of the enters the LFA mitigation zone. ESA and/or marine mammals) carry out biological evidence and robustness of Therefore, consideration of marine biologically important activities, the data for each of these mammal frequency sensitivity led including migration, foraging, breeding, recommendations included ranking NMFS to screen out areas that qualified and calving. them in categories using a numbering solely on the basis of their importance For the 2012 rule, the Deputy system ranging from 0 to 4. Any of the for MF or HF specialists. Assistant Secretary of the Navy for nominees that received a ranking of 2 or In addition to the considerations Environment (DASN(E)) determined higher were eligible for continued above, NMFS reviewed Hoyt (2011), that the purpose of NEPA and Executive consideration as an OBIA nominee. A which was an update and revision of Order 12114 would be furthered by the rank score of 2 for designation criteria Hoyt’s 2005 earlier work, along with preparation of an additional or for OBIA boundary considerations areas recommended in public comments supplemental analysis related to the indicated that the designation was received on the 2012 SURTASS LFA employment of SURTASS LFA sonar. inferred from habitat suitability models DSEIS/SOEIS. As a result of this further Accordingly, the DASN(E) directed that (non-peer reviewed), expert opinion, analysis, NMFS developed a list of an SEIS/SOEIS (among other things) regional expertise, or ‘‘gray literature’’ OBIAs, which were then further provide further analysis of potential (inferred from analyses conducted for considered in the context of additional OBIAs in regions of the purposes other than quantifying OBIA practicability. world where the Navy intended to use criteria or boundary; see DoN (2012), In response to public comments on the SURTASS LFA sonar systems. Section 4.5.2.1). Thus, even areas with the 2012 proposed rule, NMFS also

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reevaluated its preliminary decision not in the OBIA process, but designation as the available information and should be to include areas that met the criteria for critical habitat does not necessarily evaluated on a stock-by-stock basis, sperm whales and pinnipeds (because comport with designation as an OBIA although combining species or stocks they were not considered LF due to differences in the intent of these may be appropriate in some situations. specialists), and ultimately determined designations. Critical habitat is defined The best source for this type of such areas would be appropriate for and used in the ESA and includes determination are publically-available, OBIA designation where information specific geographic areas that contain direct measurements from survey data. established by the criteria were met, and features essential to the conservation of Geographic Criteria—For a marine in fact noted that one OBIA (Patagonia an endangered or threatened species, area to be eligible for consideration as Shelf) had already been identified for including areas that are not currently an OBIA for marine mammals, the area elephant seals. While no OBIAs had occupied by the relevant species. must be located where training and been identified for sperm whales, NMFS However, as stated above, the intent of testing activities of SURTASS LFA committed to considering sperm whales OBIA designation is to expand upon the sonar would occur (i.e. in the Study in future analyses should supporting coastal standoff zone, and provide Area) and cannot be located within 12 information become available. protection from potential SURTASS nm (22 km) of any emergent land As part of the 2017 SURTASS LFA LFA sonar impacts by avoiding or including islands or island systems (i.e., DSEIS/SOEIS, and as part of the 2017 minimizing impacts in areas beyond the must be outside of the coastal standoff rulemaking process, NMFS and Navy coastal standoff zone where marine zone, which already receives the same continued their evaluation of OBIAs. As mammals are known to engage in protection as OBIAs). a result of that work, NMFS and the specific behaviors that may lead to more LF Hearing Sensitivity—The Navy revised boundaries and designated severe impacts if interrupted; known to frequencies produced by SURTASS LFA seven more OBIAs, for a total of 29 congregate in higher densities; and/or sonar transmissions are well below the OBIAs that were identified and made known to have a limited range and frequency range of best hearing part of the NDE, under which the Navy small abundance that creates more sensitivity for most odontocetes and is currently conducting SURTASS LFA vulnerability for the stock as a whole. pinnipeds based on the measured sonar activities. Two of these OBIAs Therefore, at least one of the following hearing thresholds (Au and Hastings, include protection for sperm whales biological criteria must be met for a 2008; Houser et al., 2008; Kastelein et (OBIA #28, Perth Canyon; and OBIA marine area to be considered as a al., 2009; Mulsow and Reichmuth, 2010; #29, Southwest Australia Canyons). marine mammal OBIA for SURTASS NMFS, 2018; Nedwell et al., 2004; Since 2012, the Navy and NMFS have LFA sonar. When direct data relevant to Richardson et al., 1995; Southall et al., maintained an ‘‘OBIA Watchlist’’ of one of the following are limited, other 2007; Southall et al., 2019). The intent potential marine areas in the Study Area available data and information may be of OBIAs is to protect those marine for which information or data have not used if those data and information, mammal species, such as baleen whales, been sufficient to designate as OBIAs, either alone or in combination with most likely to hear and be affected by and reviewed new literature to limited direct data, are sufficient to LFA sonar transmissions and to provide determine if additional areas should be establish that at least one of the them with additional protections during added to the list of potential areas. As biological criteria are present: periods when they are conducting part of the Adaptive Management • Known Breeding/Calving or biologically significant activities. Thus, process (see Adaptive Management Foraging Ground, or Mitigation Route— the primary focus of the OBIA section), the OBIA Watchlist is an area representing a location of known mitigation measure is on LF hearing periodically evaluated as additional biologically important activities, specialist species. However, OBIAs have information becomes available to including defined breeding or calving been designated for non-LF hearing determine if the new information areas, foraging grounds, or migration specialists, such as elephant seals and provides adequate support under one of routes. Potential designation under this sperm whales, since the available the OBIA biological criteria. NMFS criterion is indicative that these areas hearing data for these species indicate refers the reader to the 2019 SURTASS are concentrated areas for at least one an increased sensitivity to LF sound LFA FSEIS/SOEIS, Chapter 5 and biologically important activity. (compared to most odontocetes and Appendix C, for more detail on the ‘‘Concentrated’’ means that more of the pinnipeds). analysis of potential OBIAs. As part of animals are engaged in the particular The biological criteria considered in the ongoing Adaptive Management behavior at the location (and perhaps the identification of OBIAs have process and in preparation for the 2019 time) than are typically engaged in that changed since the 2001 SURTASS LFA SURTASS LFA FSEIS/SOEIS, NMFS behavior elsewhere. FOEIS/EIS (and as continued in the and Navy reviewed the OBIA Watchlist • Small, Distinct Populations of 2007 SURTASS LFA SEIS) in two and other new information to determine Marine Mammals with Limited respects. First, under the 2001 the potential for additional OBIAs or Distributions—geographic areas in SURTASS LFA FOEIS/EIS, 2007 expansion of existing OBIAs within the which small, distinct populations of SURTASS LFA SEIS, and the 2007 final SURTASS LFA Study Area. marine mammals occur and whose rule, an area could be designated as an distributional ranges are limited. OBIA only if it met a conjunctive test of Offshore Biologically Important Areas— • High Densities—an area of high being an area where marine mammals Current Rulemaking density for one or more species of congregate (1) in high densities, and (2) For the 2019 SURTASS LFA FSEIS/ marine mammal. High density areas are for a biologically important purpose. SOEIS and this final rule, the following those marine waters where the density, The current scheme is more protective biological criteria, geographic criteria, within a definable area (and potentially because any one of the biological and LF hearing sensitivity factors were time), measurably and meaningfully criteria alone could be a sufficient basis considered in the identification of exceeds the average density of the for designation as an OBIA if it also OBIAs: species or stock within the region. The meets the geographic criterion of falling Biological Criteria—As with other exact basis for the identification of high outside of 12 nmi (22 km) from any biological criteria, critical habitat is density areas may differ across species/ coastline. Second, the current biological considered as one of the possible factors stocks and regions/scales, depending on criteria now include ‘‘small, distinct

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populations with limited distribution,’’ 2017 SURTASS LFA SEIS/SOEIS and OBIAs, four are located within the which also could, standing alone, be a application for rulemaking, and retained current SURTASS LFA sonar Study basis for designation. existing OBIAs; revised/expanded Area (OBIA 16, Penguin Bank, Hawaiian The 2017 NDE for SURTASS LFA existing OBIAs; and added new OBIAs Islands Humpback Whale NMS; OBIA sonar lists the 29 marine mammal to those defined as part of the 2012 20, Northern Bay of Bengal and Head of OBIAs and their effective periods as SURTASS LFA sonar rule (also see the Swatch-of-No-Ground; OBIA 26, geographic mitigation with which the 2019 SURTASS LFA FSEIS/SOEIS, Offshore Sri Lanka; and OBIA 27, Navy must comply for SURTASS LFA Chapter 5, Section 5.3.6.2 and Appendix Camden Sound/Kimberly Region), as sonar activities. These OBIAs resulted C for more detail on OBIAs). Of these 29 indicated in Table 19, below. from analyses conducted as part of the

TABLE 19—MARINE MAMMAL OBIAS OBSERVED FOR SURTASS LFA SONAR DURING THE NDE

Relevant Location/water low-frequency Effectiveness OBIA No. Name of OBIA body marine mammal seasonal period species

16 ...... Penguin Bank, Hawaiian Is- North-Central Pacific Ocean Humpback whale ...... November through April, an- lands Humpback Whale nually. NMS. 20 ...... Northern Bay of Bengal and Bay of Bengal/Northern In- Bryde’s whale ...... Year-round. Head of Swatch-of-No- dian Ocean. Ground (SoNG). 26 ...... Offshore Sri Lanka ...... North-Central Indian Ocean .. Blue whale ...... December through April, an- nually. 27 ...... Camden Sound/Kimberly Re- Southeast Indian Ocean; Humpback whale ...... June through September, an- gion. northwestern Australia. nually.

Since the 2017 SURTASS LFA SEIS/ comprehensive assessment of marine sensitivity factor, as well as the SOEIS and NDE for SURTASS LFA areas as potential OBIAs included practicability criterion to the potential sonar, analysis and assessment of review of the OBIA Watchlist for areas OBIAs. A summary of the number and marine areas as potential OBIAs has located within the Study Area as well as types of marine areas assessed as continued. The Navy and NMFS have a thorough review of the Important potential OBIAs for SURTASS LFA conducted a comprehensive assessment Marine Mammal Areas (IMMAs), sonar and their location relative to the of the available scientific literature, Ecologically or Biologically Significant Study Area and coastal standoff range data, and information on potential Marine Areas (EBSAs), IUCN Green List (12 nmi) and relevancy for marine marine areas in the SURTASS LFA of Protected and Conserved Areas, as mammals is provided in Table 20. Study Area to determine their potential well as marine areas recommended in While we provide a summary of the as OBIAs. Because this rulemaking and public comments on the 2019 SURTASS OBIA analysis here, we direct the reader the 2019 SURTASS LFA FSEIS/SOEIS LFA DSEIS/SOEIS (see Chapter 7 of the have a narrowed geographic scope for 2019 SURTASS LFA FSEIS/SOEIS) and to Chapter 5 and Appendix C of the SURTASS LFA sonar training and on our MMPA proposed rule (84 FR 2019 SURTASS LFA FSEIS/SOEIS for testing activities, review of OBIAs was 7186; March 1, 2019). For this final rule, the complete analysis of all considered similarly scoped to reflect only the we have applied the OBIA biological OBIA areas. current Study Area. Navy and NMFS’ criteria, geographic criteria, and hearing

TABLE 20—NUMBER AND TYPES OF MARINE AREAS ASSESSED AS POTENTIAL OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS) FOR SURTASS LFA SONAR, AND THEIR LOCATION RELATIVE TO THE STUDY AREA AND COASTAL STANDOFF RANGE (12 nmi) AND RELEVANCY TO MARINE MAMMALS

Number of Number of marine marine areas Number of mammal located marine areas areas Number of in LFA study marine areas Marine area region Total number within study area located in 1 further marine areas area for relevant to study area SURTASS and outside 2 assessed LFA marine the coastal sonar mammals standoff range

OBIA Watchlist Areas

Western North Pacific Ocean ...... 3 3 3 3 3 Central Indian Ocean ...... 1 1 1 1 0

Total OBIA Watchlist ...... 4 4 4 4 3

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TABLE 20—NUMBER AND TYPES OF MARINE AREAS ASSESSED AS POTENTIAL OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS) FOR SURTASS LFA SONAR, AND THEIR LOCATION RELATIVE TO THE STUDY AREA AND COASTAL STANDOFF RANGE (12 nmi) AND RELEVANCY TO MARINE MAMMALS—Continued

Number of Number of Number of marine marine areas marine areas mammal located areas Number of in LFA study located in marine areas Marine area region Total number within study area 1 further marine areas area for relevant to study area SURTASS and outside 2 assessed LFA marine the coastal sonar mammals standoff range

U.S. ESA Critical Habitat

Central North Pacific Ocean ...... 2 2 2 2 2

UNEP Ecologically or Biologically Significant Areas (EBSAs)

Northeast Indian Ocean ...... 10 10 5 3 3 South and Western Indian Ocean ...... 39 5 1 0 0 East Asian Seas ...... 34 31 9 6 3 7 North Pacific Ocean ...... 20 6 4 4 4 Western South Pacific Ocean ...... 26 2 0 0 0

Total EBSAs...... 129 54 19 13 14

IUCN WCPA–SSC Important Marine Mammal Areas (IMMAs)

Pacific Islands ...... 15 3 3 2 2 Southeast Asian Seas and Northeast Indian Ocean ...... 30 20 20 9 8

Total IMMAs...... 45 23 23 11 10

IUCN Green List of Protected and Conserved Areas

Asian Pacific...... 11 0 0 0 0

Recommended in Public Comments on Draft SEIS/SOEIS and MMPA Proposed Rule 4

Western North Pacific Ocean ...... 41 40 40 21 21 Eastern Indian Ocean...... 52 52 52 27 27

Total Comment Recommendations ...... 93 92 92 48 48 1 At least part of marine area located within study area for SURTASS LFA sonar. 2 At least part of the marine area is located outside the LFA coastal standoff range. 3 Even though the Ogasawara Islands EBSA is located within the coastal standoff range, due to its importance to the endangered humpback whale DPS, this area was further considered. 4 The number of marine areas received in Public Comments includes the newly designated IMMAs (SE Asian Seas and NE Indian Ocean) as well as duplicate marine areas, since some of the same marine areas were noted in comments received both for the 2018 SURTASS LFA DSEIS/SOEIS and MMPA Proposed Rule. Additionally, some of the recommended marine areas were EBSAs for marine mammals. The dupli- cate marine areas have been removed from the total number of marine areas further assessed, but that total number includes marine areas that are designated as IMMAs and EBSA.

Review of OBIA Watchlist Areas—The within the Study Area were further biologically to any marine mammal OBIA Watchlist areas located within the assessed. species, the Navy and NMFS did not Study Area that were re-evaluated The British Indian Ocean Territory- further consider the British Indian include the British Indian Ocean Chagos Islands Marine MPA is a large Ocean Territory-Chagos MPA as a Territory-Chagos Islands Marine MPA, and includes areas outside of the possible OBIA but will retain the area Protected Area (MPA), the Pacific LFA coastal standoff range. All available on the OBIA Watchlist. Remote Islands (PRI) Marine National literature and information were Scientific information and data Monument (MNM), Marianas Trench researched and reviewed; however, as indicate that marine mammals occur in MNM, and the Papaha¯naumokua¯kea was the case when this area was the waters of all the MNMs on the OBIA MNM. Only one unit of the Marianas originally evaluated, very little Watchlist. Scientific data and Trench MNM and only two units and a information is available on the presence information on important biological very small strip of the northern part of of marine mammals in the MPA (Dunne activities conducted by marine mammal a third unit (Kingman Reef/Palmyra et al., 2014) or whether marine species were most available for the Atoll) of the PRI MNM were within the mammals conduct biologically Papaha¯naumokua¯kea MNM, where the boundary of the Study Area (for a important activities in the MPA. Due to majority of the very small population of detailed map see Appendix C of the the lack of supporting information and the ESA-listed endangered Hawaiian 2019 SURTASS LFA FSEIS/SOEIS). data available to demonstrate that the monk seal resides, reproduces, and Thus, only those areas of the MNMs waters of this MPA are important forages, and where critical habitat for

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this species has been designated out to as possible OBIAs, as these areas have central or western North Pacific or the 656-ft (200-m) isobath. Although met the IMMA selection criteria and eastern Indian Oceans. Fifty-four of little information and data are readily have complete supporting data and these EBSAs are located in the available on marine mammals in the information. SURTASS LFA sonar Study Area (see waters of the Marianas Trench MNM All areas designated as IMMAs detailed maps and summary assessment Islands Unit or in the waters of Wake, located in the Study Area were assessed tables in Appendix C of the 2019 Johnson, Palmyra atolls or Kingman as potential OBIAs. Twenty-three SURTASS LFA FSEIS/SOEIS). Nineteen Reef units of the PRI MNM, the Navy IMMAs are located in the study area for of these 54 EBSAs were pertinent to and NMFS conducted a thorough review SURTASS LFA sonar (see detailed maps marine mammals under NMFS’ of the available data for these areas. Due and summary assessment tables in jurisdiction, and only 14 of these areas to the lack of supporting information Appendix C of the 2019 SURTASS LFA are located at least partially outside the and data available to demonstrate that FSEIS/SOEIS). Of the 15 Pacific Islands coastal standoff zone. One of these areas the waters of the PRI MNM in the Study IMMAs, three are located within the was pertinent only to coastal/inshore Area are important biologically to any SURTASS LFA sonar Study Area in the species of marine mammals and was not marine mammal species, the Navy and North Pacific Ocean: The Northwest carried forward. In addition, the NMFS did not further consider the PRI Hawaiian Islands, Main Hawaiian Ogasawara Islands EBSA was also MNM as a possible OBIA but will retain Archipelago, and Southern Shelf carried forward for additional review, the area on the OBIA Watchlist. Waters/Slope Edge of Palau. However, even though the EBSA is located Sufficient information and data were only the Northwest Hawaiian Islands entirely within the coastal standoff zone available to support designation of and Main Hawaiian Archipelago IMMAs for SURTASS LFA sonar. In recognition OBIAs in the waters of the have some part of their area located of the importance of the Ogasawara area Papaha¯naumokua¯kea MNM and the outside the coastal standoff zone for as a migrational waypoint and breeding/ Marianas Trench MNM (for a detailed SURTASS LFA sonar; the geographic calving area for the endangered WNP analysis of these areas see Appendix C extent of the Palau IMMA is entirely DPS and stock of humpback whales, the of the 2019 SURTASS LFA FSEIS/ located within the coastal standoff range waters beyond the coastal standoff zone SOEIS). for SURTASS LFA sonar and therefore of the Ogasawara Islands were assessed does not meet the geographic criteria for to determine if an areal extent could be Review of Important Marine Mammal consideration as an OBIA. Sufficient defined in which the important Areas (IMMAs) as OBIAs—IMMAs are information and data were available to migrational or reproductive behavior of defined by the Marine Mammal support designation of OBIAs in the humpback whales occurs and if data Protected Areas Task Force (MMPATF), waters of the Northwestern Hawaiian were sufficient to support the which is comprised of partners from the Islands and the Main Hawaiian determination. Therefore, 14 EBSAs International Union for Conservation of Archipelago IMMAs (for a detailed were carried forward for additional Nature (IUCN) World Commission on analysis of these areas see Appendix C assessment as potential OBIAs. Protected Areas (WCPA); IUCN Species of the 2019 SURTASS LFA FSEIS/ Review of IUCN Green List of Survival Commission (SSC); SOEIS). Protected and Conserved Areas as International Committee on Marine Thirty IMMAs were designated in the OBIAs—The IUCN Green List of Mammal Protected Areas (ICMMPA); North East Indian Ocean and South East Protected and Conserved Areas has been Tethys Research Institute; Whale and Asian Seas (MMPATF, 2019) (see generated as part of an IUCN program Dolphin Conservation (WDC); Global detailed maps and summary assessment that aims to encourage, achieve, and Ocean Biodiversity Initiative (GOBI), tables in Appendix C of the 2019 promote effective, equitable, and and Water Evolution organizations. SURTASS LFA FSEIS/SOEIS). Of these successful protected areas with a These areas are defined as discrete 30 IMMAs, 20 are located at least principal goal of increasing the number portions of habitat that are important to partially within the SURTASS LFA of protected and conserved areas that one or more marine mammal species; Study Area, with nine of these located are effectively and equitably managed represent priority sites for marine at least partially outside of the coastal and deliver conservation outcomes. The mammal conservation worldwide standoff zone. Additionally, one was basis of the IUCN Green List Programme without management implications; and only relevant to inshore species. Eight of is the Green List Standard, which is a merit protection and monitoring. IMMA the North East Indian Ocean and South set of components, criteria, and selection criteria are designed to capture East Asian IMMAs were carried forward indicators for successful protected area aspects of the biology, ecology, and for additional assessment as potential conservation and international population structure of marine OBIAs. benchmarks for quality to provide mammals, and a candidate IMMA need Review of Ecologically or Biologically improved performance and achievement only satisfy one of the following criteria Significant Marine Areas (EBSAs) as of conservation objectives (IUCN, 2018). and/or sub-criteria to successfully OBIAs—EBSAs are an effort of the Eleven of the 25 Green List areas are qualify for IMMA status: Criterion A— Convention on Biological Diversity located within the SURTASS LFA sonar Species or Population Vulnerability; (Convention), which was initiated by Study Area, but all are terrestrial parks Criterion B—Distribution and the United Nations Environment or reserves, and none of the IUCN Green Abundance; Criterion C—Key Life Programme (UNEP). The Convention is List Protected or Conserved Areas Activities; or Criterion D—Special an international legal instrument for the encompass any marine waters. For this Attributes. To date, IMMAs have been conservation and sustainable use of reason, no IUCN Green List areas were identified in the western and central biological diversity. EBSAs are defined further considered as potential OBIAs. Pacific Ocean, Mediterranean Sea, and as special marine areas that serve Review of Areas Recommended the North East Indian Ocean and South important purposes that ultimately Through Public Comment as OBIAs—In East Asian Seas (MMPATF, 2018; 2019). support the healthy functioning of addition to evaluation of OBIA IMMAs are divided into three oceans and thus should have increased Watchlist areas, EBSAs, IMMAs, IUCN categories: IMMAs, candidate IMMAs, protection and sustainable management. Green List of Protected and Conserved and areas of interest. Only areas Currently there are 278 EBSAs defined Areas (discussed above), and Critical designated as IMMAs were considered worldwide, 129 of which are within the Habitat areas (discussed below), NMFS

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and the Navy evaluated areas that were During the assessment, marine areas practicable to implement. As a result, 14 suggested as OBIAs in public comments were combined if they were designated new marine mammal OBIAs for received on the 2018 SURTASS LFA for the same geographic area (e.g., the SURTASS LFA sonar have been DSEIS/SOEIS and the proposed rule (84 Gulf of Mannar where an EBSA and designated (Table 21) (see detailed maps FR 7186; March 1, 2019). Ninety-three IMMA have been designated) or if and supporting information for each marine areas were recommended for different species of marine mammals designated OBIA in Appendix C of the consideration as OBIAs during the were designated in the same marine area 2019 SURTASS LFA FSEIS/SOEIS). All public comment periods. These areas (e.g., humpback and sperm whales in four of the OBIAs previously designated included 30 IMMAs for the Southeast the Ogasawara region). This in the SURTASS LFA Study Area (see Asian Seas and Northeast Indian Ocean combination of areas resulted in 33 Table 19) have been expanded spatially. designated in February 2019. Many of marine areas being considered as Former OBIA 16, Penguin Bank, is now the comments on the 2018 SURTASS potential OBIAs (see Table 5–2 and part of the much larger Main Hawaiian Appendix C in the 2019 SURTASS LFA LFA DSEIS/SOEIS and the proposed Islands OBIA, while OBIA 20, Northern FSEIS/SOEIS). Of these 33, the Navy’s rule recommended the same marine Bay of Bengal/Swatch-of-No-Ground and NMFS’ assessment resulted in 14 areas, so after duplicate areas were candidate OBIAs representing 17 of the (SoNG) is now encompassed in the removed, 69 marine areas remained marine areas. Some OBIAs, such as the SoNG OBIA, and the Offshore Sri Lanka, were assessed. Only one of the blue and humpback whale OBIAs for OBIA #26, is now part of the more recommended marine areas was not Western Australia, encompassed several encompassing Sri Lanka OBIA. Last, located within the SURTASS LFA sonar marine areas, which is why the number OBIA #27, Kimberly-Camden Sound Study Area (Commander Islands). The of candidate OBIAs is smaller than the was greatly expanded to become the remaining 68 marine areas, including number of marine areas represented. Western Australia (Humpback Whale) the 30 newly designated IMMAs, were The 14 candidate OBIAs (representing OBIA. A list of the areas added to the assessed in the context of the criteria for 17 areas) underwent Navy practicability Watchlist can be found at https:// OBIAs. Of these 68 recommended review. The Navy determined that these www.fisheries.noaa.gov/action/ marine areas, 48 were carried forward OBIAs in the SURTASS LFA sonar incidental-take-authorization-us-navy- for assessment as potential OBIAs Study Area and the relevant seasonal operations-surveillance-towed-array- (Table 20). effectiveness periods would be sensor-system-0.

TABLE 21—DESIGNATED MARINE MAMMAL OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS) IN THE SURTASS LFA STUDY AREA

Low-frequency marine Effective seasonal OBIA No. OBIA name Ocean area mammal species period

1 ...... Main Hawaiian Islands 1 ... Central North Pacific ...... Humpback whale ...... November to April. 2 ...... Northwestern Hawaiian Is- Central North Pacific ...... Humpback whale ...... December to April. lands. 3 ...... Mariana Islands ...... Western North Pacific ...... Humpback whale ...... February to April. 4 ...... Ryukyu-Philippines ...... Western North Pacific ...... Humpback whale ...... January to April. 5 ...... Ogasawara Islands Western North Pacific ...... Sperm whale ...... June to September. (Sperm Whale). 6 ...... Ogasawara-Kazin Islands Western North Pacific ...... Humpback whale ...... December to May. (Humpback Whale). 7 ...... Honshu ...... Western North Pacific ...... Gray whale ...... January to May. 8 ...... Southeast Kamchatka ...... Western North Pacific ...... Humpback, fin, Western North Pacific June to September. gray, and North Pacific right whales. 9 ...... Gulf of Thailand ...... Eastern Indian Ocean ...... Bryde’s whale ...... April to November. 10 ...... Western Australia (Blue Eastern Indian Ocean ...... Blue (pygmy) whale ...... May to November. Whale). 11 ...... Western Australia (Hump- Eastern Indian Ocean ...... Humpback whale ...... May to December. back Whale) 2. 12 ...... Southern Bali ...... Eastern Indian Ocean ...... Bryde’s, sei, humpback, Omura’s, and October to November. sperm whales. 13 ...... Swatch-of-No-Ground Northern Bay of Bengal .... Bryde’s whale ...... Year-round. (SoNG) 3. 14 ...... Sri Lanka 4 ...... Eastern Indian Ocean ...... Blue (pygmy) and sperm whales ...... October to April. 1 Expansion of existing OBIA #16, Penguin Bank. 2 Expansion of existing OBIA #27, Kimberly-Camden Sound. 3 Expansion of existing OBIA #20, Northern Bay of Bengal/SoNG. 4 Expansion of existing OBIA #26, Offshore Sri Lanka

Other Geographic Mitigation above, we expect to decrease the considered in the context of the LPAI Considerations likelihood and/or scale of impacts on standard. Below we address some other marine mammal species or stocks. factors that NMFS and the Navy Above, we describe a comprehensive However, the inclusion of this focused considered in the development of the process and set of criteria for identifying OBIAs, which, when used in and systematic process and criteria for final rule. conjunction with the limits on designating OBIAs does not mean that SURTASS LFA sonar transmission other mitigation, including specific levels in and around them described time/area restrictions, could not be

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ESA-Designated Critical Habitat waters at levels above 145 dB re: 1 mPa Regarding prey availability (large Under section 7 of the ESA, all rms. Main Hawaiian Islands and pelagic fish and squid) of sufficient Federal agencies must ensure that any Northwestern Hawaiian Islands OBIAs quantity, quality, and availability to actions they authorize, fund, or carry (designated in this final rule), effective support individual growth, out are not likely to jeopardize the from November to April and December reproduction, and development, as well continued existence of a listed species to April, respectively, encompass the as overall population growth of false or destroy or adversely modify its critical habitat for Hawaiian monk seal. killer whales, no mortality of marine designated critical habitat. ESA- During this time, the received levels in invertebrates is reasonably expected to designated critical habitat is not waters within 1 km of these OBIAs will occur from exposure to LFA sonar designated in foreign countries or any not exceed 180 dB re: 1 mPa (rms). training and testing activities nor are other areas outside of U.S. jurisdiction. The ESA-designated critical habitat population level effects likely. Thus, Critical habitat within the U.S. EEZ for the MHI insular false killer whale marine invertebrates such as squid implicated by SURTASS LFA sonar (MHI IFKW) DPS includes waters from would not reasonably be adversely activities has been designated for two of the 148- to 10,499-ft (45-to 3,200-m) affected by SURTASS LFA sonar the relevant ESA-listed marine mammal depth contours around the MHI from training and testing activities such that species, Hawaiian monk seals and the Niihau east to Hawaii. MHI IFKWs are their availability (or other prey Main Hawaiian Island (MHI) Insular island-associated whales that rely availability) would be diminished (also DPS of false killer whales. Effects to entirely on the productive submerged refer to Chapter 3, section 3.4.2.1 of the ESA-designated critical habitat are habitat of the main Hawaiian Islands to 2019 SURTASS LFA FSEIS/SOEIS for a explicitly addressed through the section support all of their life-history stages, discussion of why marine invertebrates 7 consultation process under the ESA. and their range is restricted to the shelf are not reasonably likely to be adversely Notably, the ESA biological opinion for and slope habitat around the MHI, impacted by SURTASS LFA sonar the Navy’s SURTASS LFA sonar unlike pelagic false killer whales found training and testing activities). Marine activities and this MMPA rule more in open oceans. Because of the fishes, however, may be affected by concludes that they are not likely to habitat characteristics that are important exposure to LFA sonar transmissions, adversely affect the relevant designated components to the ecology of these but only if they are located within close critical habitat for those species. whales, NMFS identified a single proximity (<0.54 nmi (<1 km)) to the Some of the characteristics of ESA- feature, island-associated marine transmitting sonar source. The Navy’s designated critical habitat are also habitat, with four characteristics that analysis indicates a minimal to germane to the identification of OBIAs support this feature as essential to their negligible potential for an individual or other mitigation under this conservation. The four characteristics fish to experience non-auditory or rulemaking. However, critical habitat include: (1) Adequate space for auditory effects or a stress response also considers physical as well as movement and use within shelf and from exposure to SURTASS LFA sonar biological features and may also slope habitat; (2) prey species of transmissions. A low potential exists for consider areas that are currently sufficient quantity, quality, and minor, temporary behavioral responses unoccupied by the species. Therefore, availability to support individual or masking effects to an individual fish not all critical habitat necessarily growth, reproduction, and development, when LFA sonar is transmitting, but no qualifies as an OBIA or is appropriate as as well as overall population growth; (3) potential is estimated for fitness level a basis for other time/area restrictions waters free of pollutants of a type and consequences to fish stocks. Since it is for SURTASS LFA sonar when amount harmful to MHI IFKWs; and (4) highly unlikely that a significant considering mitigation under the sound levels that will not significantly percentage of any prey stock would be MMPA. As it pertains to the potential impair the whales’ use or occupancy. in sufficient proximity during LFA inclusion of these areas as OBIAs, we Some Navy and other Federal agency sonar transmissions to experience such note that neither of these two ESA-listed areas, such as the Pacific Missile Range effects, there is minimal potential for species is a LF hearing specialist or Facility offshore ranges, are excluded LFA sonar to affect prey fish stocks. sensitive to SURTASS LFA sonar in a from the critical habitat designation Thus, no adverse effects are reasonably manner that would otherwise justify (NOAA, 2018). In most areas of the expected on the quantity, quality, and additional species-specific mitigation on waters surrounding the MHI, the coastal availability of prey fishes as the result their behalf, given the existing standoff range for SURTASS LFA (12 of exposure to SURTASS LFA sonar protections of the Navy’s three-part nmi (22 km)) is located closer to shore training and testing activities. detection and shutdown protocols and than the seaward boundary of the Accordingly, SURTASS LFA sonar coastal standoff zone. critical habitat for the MHI Insular DPS training and testing activities would not Nearly all of the ESA-designated of the false killer whale (i.e., some of the significantly impact the biological critical habitat for the Hawaiian monk critical habitat is beyond the coastal characteristics of prey availability of the seal lies within the coastal standoff standoff range). The Main Hawaiian MHI IFKW DPS’s designated critical distance for SURTASS LFA sonar. A Islands OBIA (designated in this final habitat. small area of the monk seal’s critical rule) encompasses some of the critical Regarding the underwater sound habitat at Penguin Bank extends beyond habitat, but a portion of the critical produced by SURTASS LFA sonar, it the 22-km (12-nmi) coastal standoff habitat lies beyond the OBIA. However, would not be expected to ‘‘significantly distance, which is part of the Main as discussed above, part of the CZMA impair false killer whale’s use or Hawaiian Islands OBIA (designated in stipulations for SURTASS LFA sonar occupancy’’ due both to the small scale this final rule). Per the CZMA use in Hawaiian waters required the of the activity (small number of vessels consultation with the State of Hawaii for Navy to agree not to use SURTASS LFA operating across two ocean basins, SURTASS LFA sonar, the Navy agreed sonar in the waters over Penguin Bank meaning that any individual marine not to operate SURTASS LFA sonar in to a water depth of 600 ft (183 m) and mammal would be expected to be the waters of Penguin Bank to the 600- to limit ensonification within Hawaii exposed for only a short amount of time) ft (183-m) isobath. In addition, the Navy state waters (out to 3 nmi) to 145 dB re: and the frequency of the SURTASS also agreed not to ensonify Hawaii state 1 mPa rms. signal, which is not in the range of

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higher sensitivity for this species and activities other than SURTASS LFA temporal relationships between basic would not be expected to interfere with sonar. environmental conditions and a given their communication. Further, required The Navy’s 2007 SURTASS LFA species’ presence’’ to ‘‘develop a generic shutdowns are expected to minimize SEIS/SOEIS evaluated increasing the quantitative approach to predict the false killer whale exposure to high coastal standoff distance up to 46 km average annual geographic ranges’’ of sound levels and the Navy’s (25 nmi) and, based on a six-step marine mammal species on a global implementation of a coastal standoff analysis process, determined that scale. Several environmental correlates zone means that SURTASS LFA training increasing the coastal standoff range including depth, sea surface and testing is not occurring across much would decrease exposure to higher temperature, distance to land, and mean of the critical habitat. No aspect of received levels for concentrations of annual distance to ice edge were used SURTASS LFA sonar training and marine animals closest to shore, but in the Kaschner effort. After evaluating testing activities would reasonably be would do so at the expense of increasing four case studies from the Kaschner et expected to impact the spatial use of exposure levels for shelf break and al. (2006) study for predicting gray false killer whales. As a result, the use pelagic species. There have been no whale, northern right whale dolphin, of SURTASS LFA sonar for training and changes to the best available North Atlantic right whale, and narwhal testing activities in Hawaiian waters information or other indications that the distribution, the authors of the White would not reasonably be expected to coastal standoff distance should be Paper concluded that ‘‘(t)he predictions have any impact on the physical increased, so there is no change in this from the four case studies . . . included characteristics of the false killer whale mitigation measure from previous errors of omission (exclusion of areas of critical habitat since neither the spatial rulemakings. In addition, any areas known habitat) and commission availability nor sound levels in the beyond the 12 nmi coastal standoff can (inclusion of areas that are not known continental shelf and slope habitat still be considered for mitigation, such to be habitat) that could have important would be significantly impacted. As as through the OBIA process. implications if the model predictions noted, NMFS is not recommending White Paper on ‘‘Identifying Areas of alone were used for decision making in additional geographic mitigation in this Biological Importance to Cetaceans in a conservation or management context.’’ Specifically, the White Paper area. Data-Poor Regions’’ illustrated that the Kaschner et al. effort Both the Navy and NMFS Protected As described earlier, for the 2012 omitted a considerable portion of Resources Permits and Conservation rulemaking, NMFS convened a panel of known gray whale habitat; Division consulted with NMFS subject matter experts (SMEs) to help overestimated the range of suitable Protected Resources Interagency identify marine mammal OBIAs relevant habitat for northern right whale Cooperation Division on effects on to the Navy’s use of SURTASS LFA dolphins off the U.S. West Coast (noting critical habitat pursuant to section 7 of sonar. Separately, we consulted a NMFS that species-specific models based on the ESA. scientist, who was also on that same dedicated shipboard surveys more Coastal Standoff Zone SME panel, to help address a correctly identified suitable habitat); recommendation in a public comment predicted habitat for North Atlantic The Navy will restrict training and that NMFS consider a global habitat right whales in large areas where they testing activities utilizing SURTASS model (Kaschner et al., 2006) in the have never been recorded; and LFA sonar within 22 km (14 mi; 12 nmi) development of OBIAs. In addition to predicted suitable habitat for narwhal of any coastline, including islands, such providing the requested input (which that did not correspond with their that the SURTASS LFA sonar-generated essentially concluded that using the known distribution. Noting that these sound field will not exceed a received Kaschner model was not advisable, for significant inaccuracies in the model level of 180 dB re: 1 mPa rms at that several reasons), the NMFS scientist, in could result in either under-protection seaward distance. This measure is conjunction with other NMFS scientists, or over-restrictiveness, the authors of intended to minimize both the severity went further and provided some the White Paper did not recommend and scale of effects to marine mammals guidance for alternate methods for basing the identification of biologically and, by extension, marine mammal considering ‘‘data poor areas’’ and important areas on this modeling. species and stocks, by avoiding areas drafted a paper entitled ‘‘Identifying NMFS concurred with this where many biologically important Areas of Biological Importance to recommendation and elected not to use behaviors and higher densities of many Cetaceans in Data-Poor Regions’’ the Kaschner paper, or other similar species that may be found in coastal (referred to in this notice as the ‘‘White predictive envelope models as a basis areas occur. In the past, some Paper’’). NMFS’ consideration of the for identifying additional protective commenters have recommended the White Paper was discussed in the 9th areas in the 2012 SURTASS LFA sonar Navy implement a larger coastal Circuit’s ruling on our 2012 final rule, incidental take rule. standoff zone than what we proposed. and as a consequence we provide here Clarification of Concepts Raised in We reiterate that as noted in 2012 final some additional details and background White Paper rule (77 FR 50290; August 20, 2012), regarding our consideration of the White approximately 80 percent of known and Paper recommendations for this In NRDC v. Pritzker, referring to the potential marine protected areas are rulemaking. White Paper and its specific within the 22 km (12 nmi) coastal recommendations that NMFS did not standoff zone, an indication of this Kaschner et al. (2006) Recommendation adopt for identification of OBIAs, the measure’s effectiveness, and it is As requested, the White Paper authors 9th Circuit stated that NMFS, in its 2012 practicable. Additionally, this reviewed the Kaschner et al. (2006) rule, ‘‘did not give adequate protection restriction limits exposures of marine paper in the context of potential to areas of the world’s oceans flagged by mammals to high-level sounds in the mitigation for SURTASS LFA sonar. The its own experts as biologically vicinity of geographical features that Kaschner et al. (2006) paper used important, based on the present lack of have been associated with some models based on a synthesis of ‘‘existing data sufficient to meet the Fisheries stranding events (i.e., enclosed bays, and often general qualitative Service’s (OBIA) designation criteria, narrow channels, etc.) attributed to observations about the spatial and even though NMFS’ own experts

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acknowledged that (f)or much of the restrictions in OBIAs, which further (1) Designation of all continental shelf world’s oceans, data on cetacean limit potentially more significant waters and waters 100 km seaward of distribution or density do not exist.’’ impacts in areas that are known to be the continental slope as biologically NRDC v. Pritzker, 828 F.3d at 1142. biologically important to the species important habitat for marine mammals; Although the White Paper authors that are more susceptible to the (2) Establishment of OBIAs within utilized the term ‘‘biological SURTASS LFA sonar signal. Finally, we 100 km of all islands and seamounts importance’’ in the title of the paper, discuss the limited and uncertain that rise within 500 m of the surface; they clearly stated that ‘‘it must be additional protective value that the and decided whether the list of OBIAs White Paper recommendations would (3) Nomination of high productivity should be comprehensive (based on a be expected to provide for marine regions that are not included in the ‘precautionary approach’) or pure (based mammal individuals, much less species continental shelf, continental slope, on the ‘minimalist approach’),’’ and or stocks. After considering all of this seamount, and island ecosystems above explicitly declined to provide an information, in addition to the as biologically important areas. answer. Specifically, they indicated ‘‘it information provided by the Navy These recommendations were must be decided whether to be indicating that further restricting evaluated (see below) in the context of precautionary and possibly nominate SURTASS LFA sonar training and the proposed SURTASS LFA sonar areas that are of marginal importance in testing in the areas recommended in the training and testing activities and the an attempt to minimize the chances of White Paper would be impracticable, mitigation measures proposed to be overlooking biologically important NMFS determined that the use of the implemented to minimize impacts on areas’’ or ‘‘minimize the chances of White Paper recommendations was not the affected marine mammal species or nominating sites that are of marginal appropriate. stocks from these activities. To reiterate, NMFS has required biological importance and, therefore, White Paper Specific Recommendations several mitigation measures for risk overlooking biologically important SURTASS LFA training and testing areas.’’ Then, the authors suggested While the White Paper authors sonar activities that: (1) Minimize or three general recommendations for essentially disqualified the specific alleviate the likelihood of injury (PTS), decision making based upon a extrapolative predictive results of the Kaschner model based on validating TTS, and more severe behavioral precautionary approach if that is the responses (the 2,000-yd LFA mitigation/ method selected by the decision maker, them against known data, they nevertheless recommended broader buffer zone); (2) additionally minimize as discussed further below. protections based on fewer or avoid behavioral impacts in known However, the recommendations of the environmental variables, to be used if important areas (which includes White Paper present a dichotomous NMFS determined that a ‘‘precautionary important habitat) that would have a ‘‘precautionary versus non- approach’’ was appropriate. Although higher potential to have negative precautionary’’ choice, an interpretation the current White Paper energetic effects or deleterious effects on that fails to consider the context of the recommendations are grounded in some reproduction that could reduce the requirements of the MMPA, the nature sound broad ecological principles, likelihood of survival or reproductive of the anticipated effects of the action at basing mitigation on the ‘‘precautionary success (OBIAs); and (3) generally issue, and the other mitigation approach’’ considered by the White lessen the total number of takes of many measures. More appropriately, NMFS Paper authors suffers from some of the species with coastal or shelf habitat has fully and independently considered same types of weaknesses as using the preferences (coastal standoff). The each of the White Paper’s three Kaschner model or other nature and context of how LFA sonar is recommendations in the context of the ‘‘environmental envelope’’ approaches. used in training and testing activities MMPA’s LPAI standard, as described In the 2012 SURTASS LFA sonar rule, (small number of vessels operating in below. In that analysis, we first note the NMFS evaluated the White Paper solely open ocean areas and typically using small scale of the anticipated effects of through the lens of the OBIA process, active sonar only sporadically) is such the Navy’s request for authorization and determined that the that impacts to any individual are (496–592 hours/year of SURTASS LFA recommendations presented were not expected to be limited primarily sonar spread across two ocean basins) appropriate for identification of OBIAs, because of the short duration of and the low magnitude and severity of which may have limited fuller exposure to any individual mammal. In impacts expected to any individual consideration of the recommendation. addition, as explained above, an animal marine mammals (relatively short-term For this rulemaking, NMFS would need to be fairly close to the exposures given the spatial scale of the independently examined the White source for the entire length of a vessels’ movement), even in the absence Paper’s specific recommendations in the transmission (60 sec) to experience of mitigation, given the nature of the context of the LPAI standard to injury, and exposures occur in open activities. Then we note the robust determine whether following those water areas where animals can more shutdown measures that utilize the recommendations is warranted to readily avoid the source and find highly effective visual, passive acoustic, minimize the impacts from SURTASS alternate habitat relatively easily. In and active acoustic detection methods LFA sonar training and testing activities addition, highly effective mitigation that are in place for all areas and times on the affected marine mammal species measures would be implemented that to avoid marine mammal injury as well or stocks. This consideration was done further ensure impacts are limited to as minimize TTS and more severe outside of the OBIA designation lower-level responses with limited behavioral responses, belying claims process, and is consistent with the potential to significantly alter natural that we treat data-poor areas as though consideration of the LPAI criteria behavior patterns in ways that would they are equivalent to zero-density areas described above when determining affect the fitness of individuals and by or areas of no biological importance. appropriateness of mitigation measures. extension the affected species or stocks. Next, we discuss the coastal standoff The White Paper recommended the SURTASS LFA sonar operates from zone, which minimizes take of many following general guidelines based on 100 to 500 Hz. These frequencies are far species with coastal habitat preferences. ecological principles to identify areas of below the best hearing sensitivity for We then examine the activity biological importance for cetaceans: MF and HF species. HF species have

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their best hearing between around 60 effective if implemented; the likelihood from the continental shelf or slope (well and 125 kHz, which means that a sound of successful implementation. beyond 100 km of the slope), and the at 500 Hz (and below) has to be at least Practicability of implementing the same was found for sperm whales. Some 50 dB louder for HF species to hear it measure is also assessed and may mysticetes do show higher densities on as well as a sound in their best hearing involve consideration of such things as the continental shelf, and some have range. MF cetaceans have their best cost, impact on operations, and, in the higher densities along the continental hearing between around 40 and 80 kHz, case of a military readiness activity, slope, which may also vary among which means that at 500 Hz and below, personnel safety, practicality of seasons (e.g., fin whales on the east the sound has to be 40 dB louder, or implementation, and impact on the coast). Generally, density information more, for this group to hear the sound effectiveness of the military readiness from the Atlantic showed some as well as a sound in their best hearing activity (16 U.S.C. 1371(a)(5)(A)(ii)). enhanced densities along the slope, but range. In other words, these species Taking into account the above only for certain species in certain have to be much closer to a sound at the considerations, NMFS’ evaluation of the seasons, and did not indicate frequency of SURTASS LFA sonar to White Paper’s recommendations is universally high densities along the hear it, which means that generally they described below: slope. There are many factors that have to be much closer to the SURTASS Continental shelf waters and waters influence the spatial and temporal sonar source for it to cause PTS, TTS, 100 km seaward of continental slope distribution and abundance of or a behavioral response. Additionally, Consideration of potential for cetaceans, including environmental during the 1997 to 1998 SURTASS LFA reduction of adverse impacts to marine variables such as physiochemical, Sonar LFS SRP, numerous odontocete mammal species and stocks and their climatological, and geomorphological species (i.e., MF and HF hearing habitat—The Navy already implements variables operating on times scales specialists) and pinniped species were a coastal standoff zone of 22 km (14 mi; ranging from less than a day to sighted in the vicinity of the sound 12 nmi), which includes large parts of millennia; biotic variables, such as prey exposure tests and showed no the continental shelf around the world, distribution, competition among other immediately obvious responses or includes parts of the slope in some species, reproduction, and predation; areas, and reduces potential takes of changes in sighting rates as a function and anthropogenic factors, such as many marine mammal species and of source conditions, which likely historical hunting, pollution, ship stocks with coastal habitat preferences. produced received levels similar to activity, etc. (Davis et al., 1998). In addition, under this rulemaking, the those that produced minor short-term Humpback whales (especially around Navy is not able to deploy and utilize behavioral responses in the baleen Cape Hatteras) seem to show some SURTASS LFA sonar for training and whales (i.e., LF hearing specialists). higher densities around the slope, but testing within any foreign nations As described in the 2012 rule, NMFS also seaward of the slope, especially in territorial seas, which encompasses an believes that MF and HF odontocete winter. However, the slope is closer to area up to 12 nmi (depending on the hearing specialists have such reduced the shore around Cape Hatteras than distance each nation claims). The White sensitivity to the LFA sonar source that most places along the eastern seaboard, limiting ensonification in OBIAs for Paper provided little basis for the 100 km buffer seaward of the continental and while humpbacks may show higher those animals would not afford densities along the slope in this area, meaningful protection beyond that slope and we have found no specific literature to support such a broad buffer the same cannot be said of humpbacks which is already incurred by further south (i.e., in Florida) where the implementing a shutdown when any in all areas. Therefore, in the context of slope is much further offshore. Right marine mammal enters the 2,000-yd this evaluation, NMFS first considered whales show higher densities closer to LFA sonar mitigation zone. For the same if there was evidence of the importance shore along the Atlantic coast, while reason, our discussion of the White of the continental slope itself, without sperm whales are farther out past the Paper recommendations is limited to any consideration for a buffer. slope on the Atlantic coast, as they are low frequency sensitive species. We In support of understanding the deep divers. Density data from the note the White Paper’s additional value of expanding this Pacific coast show higher densities of recommendations for mitigation in data- standoff to 100 km beyond the blue whales on the shelf and slope, poor areas similarly were solely for continental slope margin, NMFS while fin whales and sperm whales are cetaceans. assessed known marine mammal As noted previously, in evaluating density information for low frequency observed in waters beyond the mitigation for species or stocks and their hearing specialists from the U.S. East continental slope. Gray whales show habitat, we consider the expected (Roberts et al., 2016) and West coasts higher densities closer to shore along benefits of the mitigation measures for and compared these densities to the Pacific coast, while humpbacks the species or stocks and their habitats bathymetry, specifically looking at areas seem to be along the slope and beyond against the practicability of of high density compared to the in some places. Using the continental implementation. This consideration continental shelf and slopes on both United States densities of these lower includes assessing the manner in which, coasts (NOAA, 2009). This assessment frequency sensitive species as examples and the degree to which, the and comparison focused on the U.S. showed that densities are sometimes implementation of the measure(s) is East and West coasts as an example higher within 100 km of the slope, but expected to reduce impacts to marine because relatively more data is available are often higher elsewhere (off the mammal species or stocks (including for these waters. The comparison slope) and many of these high density through consideration of expected showed that mapped areas of highest areas are highly seasonal. reduced impacts on individuals), their densities are not always related to the As stated above, NMFS looked at habitat, and their availability for slope or shelf. For example, while fin these areas because relatively more data subsistence uses (where relevant). This whales in the eastern U.S. waters show are available and, since comparisons in analysis will consider such things as the relatively higher densities on the these areas do not consistently show nature of the proposed activity’s adverse continental shelf and slope, relatively strong correlation of high densities with impact (likelihood, scope, range); the higher densities of fin whales in western the continental slope, it is reasonable to likelihood that the measure will be U.S. waters are much farther out to sea infer the same inconsistent relationship

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for other slope/shelf areas where there mammals. Therefore, the other additional mitigation. Therefore, are even fewer data. As discussed mitigation measures (which are considered with the uncertain potential below, there is no scientific basis for currently in effect) would already limit of this proposed recommendation to NMFS to conclude that geographical most take of marine mammals to less provide meaningful incremental restrictions for these data-poor areas severe Level B harassment (e.g., short reduction of risk or severity of impacts would reduce adverse impacts to marine periods of changes to swim speed or to individual marine mammals, NMFS mammal species or stocks or their calling patterns; alterations of dive concludes that this recommendation habitat. Therefore, restricting SURTASS profiles, etc.). As a result, there is little would not reasonably be expected to LFA sonar training and testing activities to no indication that there is a risk to provide a reduction in the probability or within 100 km of the entire continental marine mammal species or stocks that degree of effects on any marine mammal shelf and slope is of questionable value would be avoided or lessened if waters species or stocks. as a mitigation measure to avoid areas 100 km seaward of the continental slope In addition to the mitigation measures of higher densities of marine mammal were subject to restrictions. in place for SURTASS LFA sonar that species or stocks, and further, would Of note, in many areas the waters of would already provide protection for restrict these activities in large areas of the continental shelf/slope will be continental shelf/slope waters, it is the open ocean that we know do not afforded significant protection due to important to note that there are harbor high densities of marine the coastal standoff mitigation measure. currently a total of four SURTASS LFA mammals (especially when the 100-km In addition, review of designated OBIAs sonar ships that would be training and buffer is considered). reveals that the majority include testing with up to a maximum of 496 We said in the OBIA context that continental shelf/slope areas and similar transmission hours total, pooled across although we are identifying ‘‘known’’ coastal waters. The Navy will also all vessels, per year in years one through biologically important areas, other transmit no more than 25 percent of the four. While the Navy plans to add biologically important areas have yet to authorized amount (transmission hours) additional vessels beginning in year 5, be identified, due to limited data. of SURTASS LFA sonar for training and the total transmission hours would be However, it is important to realize that testing activities within 10 nmi (18.5 capped at 592 hours total, regardless of much more research is conducted close km) of any single OBIA during any year the number of vessels. It is not known, to shore, in the United States and (no more than 124 hours in years 1–4 nor does the Navy indicate in its plans, internationally, and typically areas and 148 hours in years 5–7). Therefore, whether activities of these existing or within 100 km of the slope are less to the extent that some portion of the proposed new vessels would be focused likely to be data-poor compared to other shelf/slope waters are important in any specific area. It is likely, based areas. In areas where there is extensive habitats, many are afforded protection on past monitoring reports, that the data on marine mammal density and use due to the geographical restrictions activities of the multiple vessels are (e.g., in the continental US EEZ), it may already in place (coastal standoff and spatially separated and not concentrated be inappropriate to use broader OBIAs), and NMFS has determined that in a single area, and that they would not principles that could be helpful in the best available information justifies necessarily overlap marine mammal identifying protected areas in data-poor these measures under our evaluation high-density areas for an extended areas. NOAA, Navy, other agencies, and framework set forth above. period of time. However, as noted, the many independent researchers have Given the proposed mitigation Navy will transmit no more than 25 been conducting marine mammal measures, many of which are already in research throughout the U.S. EEZ (200 place under the NDE and have been in percent of the authorized amount mi from shore) for decades. The effect for many years under prior rules, (transmission hours) of SURTASS LFA prevalence of research makes it less takes of marine mammals would be sonar for training and testing activities likely that important areas closer to limited to Level B harassment in the less within 10 nmi (18.5 km) of any single shore have been overlooked. severe range of behavioral reactions and OBIA during any year, which means no NMFS acknowledges that large ocean some TTS, as described above. more than 124 hours in years 1–4 and areas such as the continental shelf and Consequently, the only additional 148 hours in years 5–7. slope and seamounts may include anticipated value to restricting activities Consideration of practicability for habitat features that could provide in continental shelf waters and waters restrictions in continental shelf waters important habitat for marine mammals 100 km seaward of continental slope and waters 100 km seaward of at certain times—as the White Paper would be some, though not a significant, continental slope—NMFS and the Navy states, the higher primary productivity reduction in the number of these less evaluated the practicability of in these areas could generally be severe behavioral reactions in those implementation of the White Paper’s associated with higher densities of areas. As discussed above, in general, recommended continental shelf, slope, marine mammals. However, exposures not all behavioral responses rise to the and 100-km seaward restriction. The to any individual animal are expected to level of a take and not all harassment Navy has indicated, and NMFS concurs, be short term and intermittent, since a takes result in fitness consequences to that additional continental shelf, slope, small number of ships would conduct individuals that have the potential to and 100 km seaward restrictions beyond SURTASS LFA sonar training and translate to population consequences to the territorial waters of foreign nations testing activities for up to 496 hours the species or stock. For example, the and the existing coastal standoff and (years 1–4) and 592 hours (years 5–7) energetic costs of short-term OBIAs would unacceptably impact the total for all ships combined annually. In intermittent exposures to SURTASS Navy’s national security mission, as addition, shutdown measures would LFA sonar (such as are expected here) large areas of the ocean would be avoid injury (PTS), most TTS, and would be unlikely to affect the restricted where LFA sonar severe behavioral responses, and coastal reproductive success or survivorship of transmissions are required for training standoff zones and OBIAs would avoid individuals. This means there is little to and testing proficiency in order for the disturbances more likely to lead to no likelihood that the impacts of the ships’ crews to understand how the fitness impacts by further restricting anticipated takes would accrue in a system operates in these varied activities in these areas of known manner that would impact a species or bathymetry conditions under future biological importance for marine stock even in the absence of any operational scenarios.

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The submarine forces of several key Adequate and effective training and focusing activities farther offshore adversaries are rapidly growing in size, testing with SURTASS LFA sonar is would shift from more coastal species or capability, and geographic reach. Due to necessary to ensure crews can stocks to more pelagic species or stocks, advancements in quieting technologies operationally detect these quieter and making any reduction in impacts in diesel-electric and nuclear harder to-find foreign submarines at uncertain. Further, limiting activities in submarines, undersea threats are greater distances. The Navy has these large areas of uncertain value to becoming increasingly difficult to locate indicated that if large areas of the marine mammals when activities are using traditional passive acoustic continental shelf or slope were comparatively low (small number of technologies. Submarines from many restricted beyond what is in the 12nmi/ ships operating up to a maximum of 496 nations are now much more capable and 22km coastal standoff, the Navy would transmission hours total across all able to stay submerged for a longer not have the benefit of being able to vessels in years 1–4 and 592 total period of time than earlier vessels. For train and test in these challenging transmission hours in years 5 and both conventional diesel-electric and environments. Coastal, shallow beyond pooled across all vessels, spread nuclear submarines, quieting technology environments are more acoustically across several mission areas and over has increased stealth and thus complex and the SURTASS LFA system the course of an entire year), given the operational effectiveness. These was designed to penetrate these existing risks to the affected species and technologies include air-independent environments to find quiet assets that stocks are already so low, would propulsion (AIP), hull coatings that may use these distinctive geographic provide little, if any, value for lowering minimize echoes, sound isolation features to their advantage. Year-round the probability or severity of impacts to mounts for machinery, and improved access to all of these areas of individual marine mammal fitness, propeller design. What once were challenging topography and bathymetry much less species or stocks, or their unique U.S. design capabilities are now is necessary so that crews learn how the habitat. Given the limited potential for being employed in new submarine SURTASS LFA system will operate additional reduction of impacts to projects and as upgrades to older amidst changing oceanographic marine mammal species beyond what submarines throughout potential conditions, including seasonal the existing mitigation measures adversaries’ navies. As this technology variations that occur in sound described in this rule provide, and the has improved, the predominant sources propagation. high degree of impracticability of ship noise (for example propeller Because these assets are forward (significant impacts on training and noise or other machinery noise) have deployed and can rapidly switch testing effectiveness and the availability been reduced. Passive sonar involves between training and testing activities of these assets to support other national listening for sounds emitted by a and operational missions, there is security missions), NMFS has potentially hostile submarine in order to limited flexibility for these ships to determined that adopting this detect, localize, and track it. As maneuver any substantial distance from recommendation is not warranted under submarines become quieter through primary mission areas of responsibility. the LPAI standard. Therefore, avoiding continental shelf improved sound dampening technology Restrictions Within 100 km of All and innovative propeller design, the and slope waters plus a 100 km buffer for training and testing activities would Islands and Seamounts That Rise to usefulness of passive sonar systems has Within 500 m of the Surface greatly diminished. These submarines constitute a significant deviation in their staging requirements for other Consideration of potential reduction have the ability to carry many different missions. Thus, implementing this of adverse impacts to marine mammal weapons systems, including torpedoes, mitigation measure would be highly species and stocks and their habitat— long-range anti-ship cruise missiles, impracticable and would significantly Currently, waters surrounding all anti-helicopter missiles, anti-ship adversely affect the availability of these islands are included in the coastal mines, and ballistic nuclear missiles. assets to conduct their national security standoff zone. As discussed previously, These capabilities make submarines, mission. Additionally, due to the slow this means that SURTASS LFA sonar both nuclear and diesel-electric speed at which these vessels transit (3 received levels would not exceed 180 powered, stealthy and flexible strategic to 4 knots when towing SURTASS, 10– dB re: 1 mPa within 22 km (12 nmi) from threats. 12 knots without) it does not allow for the coastline. Also, SURTASS LFA The destruction of U.S. Carrier Strike large scale movements on the orders of sonar will not be operated within Groups (CSGs) and Expeditionary Strike 100s of km proposed by the mitigation foreign territorial waters. Lastly, the Groups (ESGs) is a focal point in the scheme of the White Paper to avoid a Navy has agreed not to utilize SURTASS naval warfare doctrine of many 100 km buffer around continental shelf LFA sonar within the waters of Penguin adversaries’ navies. The main threat that and slope habitat. Bank (to a depth of 600 ft (183 m)), and a carrier strike group must defend Conclusion regarding restrictions in to limit ensonification of Hawaii state against is the undersea threat from continental shelf waters and waters 100 waters (out to 3 nmi) to 145 dB re: 1 mPa enemy submarines. A single diesel- km seaward of continental slope—In rms. electric submarine that is capable of summary, restricting SURTASS LFA Regarding seamounts, Morato et al. penetrating U.S. or multinational task sonar use in waters 100 km seaward (2010) state that seamounts were found force defenses could cause catastrophic from the continental slope could to have higher species diversity within damage to those forces, and jeopardize potentially reduce individual exposures 30–40 km of the summit and tended to the lives of thousands of sailors and or behavioral responses for certain aggregate some visitor species (Morato Marines onboard Navy ships. Even the species and potentially provide some et al., 2010). However, as stated by the threat of the presence of a quiet diesel additional protection to individual authors, the paper did not demonstrate submarine could effectively deny or animals in preferred habitat in some that this behavior can be generalized. delay U.S. or coalition naval forces cases. However, density data indicate Further, the authors note that access to vital operational areas. Long- that certain mysticetes and sperm associations with seamounts have been range detection of threat submarines in whales have higher densities in areas described for some species of marine near-shore and open ocean other than the continental slope and mammals (Morato et al., 2008), mostly environments is critical for this effort. potential impacts from moving and on an individual seamount scale.

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Morato et al. (2008) examined whales have been suggested to utilize environments to find quiet assets that seamounts for their effect on aggregating seamount features for prey capture may use these distinctive geographic visitors and noted that seamounts may (Pitcher et al., 2007), the authors features to their advantage. Year-round act as feeding stations for some visitors, conclude that the available evidence access to all of these areas of but not all seamounts seem to be equally suggests that ‘‘unlike many other challenging topography and bathymetry important for these associations. While members of seamount communities, the is necessary so that crews learn how the Morato et al. (2008) only examined vast majority of marine mammal species SURTASS LFA system will operate seamounts in the Azores, the authors are probably only loosely associated amidst changing oceanographic noted that only seamounts shallower with particular seamounts.’’ We note conditions, including seasonal than 400 m depth showed significant here that marine mammals being variations that occur in sound aggregation effects. Their results ‘‘loosely associated’’ with seamounts, or propagation. indicated that some marine predators being observed lingering at certain As discussed previously with respect (common dolphin (Delphinus delphis) seamounts, does not necessarily suggest to a 100 km buffer around continental and other non-marine mammal species a level of biological importance that shelf and slope habitat, similar (such as fish and invertebrates) were would support geographical restrictions practicability concerns exist with significantly more abundant in the to avoid all seamounts, or even the implementing a 100 km buffer around vicinity of some shallow-water specific seamounts where these loose all islands and seamounts. Because seamount summits; there was no aggregations occur. Further, as stated these assets are forward deployed and demonstrated seamount association for above, the short term, intermittent can rapidly switch between training and bottlenose dolphins (Tursiops nature of the exposures to SURTASS testing activities and operational truncatus), spotted dolphin (Stenella LFA sonar would be unlikely to impact missions, there is limited flexibility for frontalis), or sperm whales (Physeter the fitness (via effects on reproduction these ships to maneuver any substantial macrocephalus). or survival) of any individuals, distance from their primary mission areas of responsibility. Since seamounts Along the northeastern U.S. especially given the existing/proposed and other areas of complex bathymetry continental shelf, cetaceans tend to mitigation. Therefore, considered with are important training/testing features frequent regions based on food the uncertain potential of this proposed avoiding these areas would have preferences (i.e., areas where preferred measure to provide meaningful negative impacts on training and testing prey aggregate), with picscivores (fish- additional reduction of impacts to individual marine mammals, this preparedness and realism. Additionally, eating, e.g., humpback, fin, and minke avoiding island associated and sea whales as well as bottlenose, Atlantic measure is not expected to provide a reduction in the probability or degree of mount habitats by 100 km would white-sided, and common dolphins) constitute a significant deviation in the being most abundant over shallow effects on any marine mammal species or stocks. staging of these assets for other missions banks in the western Gulf of Maine and and would significantly impacting their mid-shelf east of Chesapeake Bay; Consideration of practicability for potential for these vessels to conduct planktivores (plankton-eating, e.g., right, restrictions within 100 km of all islands operational missions. Lastly, due to the blue, and sei whales) being most and seamounts that rise to within 500 m slow speed at which these vessels abundant in the western Gulf of Maine of the surface—Please see the transit (3 to 4 kt when towing and over the western and southern discussion of practicability for the SURTASS, 10–12 kt without) it does not portions of Georges Bank; and White Paper recommendation above allow for large scale movements on the teuthivores (squid eaters, e.g., sperm (protection of continental slope and a orders of a 100 km proposed by the whales) most abundant at the shelf edge 100 km buffer), which is also applicable mitigation scheme of the White Paper (Fiedler, 2002). While there have been here. NMFS and the Navy evaluated the without requiring extensive transmit observations of humpback whales practicability of implementation of the time on and off station that would lingering at seamounts in the middle of White Paper’s recommendation reduce training and testing the North Pacific on the way to summer regarding island and seamounts that rise opportunities and the ability of these feeding grounds in the Gulf of Alaska to within 500 m of the sea surface. The assets to support other national security (Mate et al., 2007), the purpose of these Navy has indicated, and NMFS concurs, missions required of them. occurrences is not clear, and it may be that restrictions within 100 km of all Conclusion regarding restrictions that they are feeding, regrouping, or islands and seamounts that rise to within 100 km of all islands and simply using them for navigation within 500 m of the surface beyond the seamounts that rise to within 500 m of (Fiedler, 2002; Mate et al., 2007); existing coastal standoff and OBIAs the surface—In summary, while therefore, the role of the seamount would unacceptably impact their restricting LFA sonar training and habitat is not clear. According to Pitcher national security mission. Adequate and testing in areas 100 km seaward from et al. (2007), there have been very few effective training and testing with islands and seamounts could potentially observations of high phytoplankton SURTASS LFA is necessary to ensure reduce incidences of take within a biomass (i.e., high primary production, crews can operationally detect quieter limited number of species in preferred usually estimated from chlorophyll and harder to-find foreign submarines at habitat in some cases (potential concentrations) over seamounts. Where greater distances. The Navy has feeding), available data indicate that such effects have been reported, all were indicated that if large areas of the marine mammal associations within from seamounts with summits continental shelf or slope were these areas are limited and the benefits shallower than 300 m, and the effects restricted beyond what is in the 12nmi/ would be at best limited and/or were not persistent, lasting only a few 22km coastal standoff, the Navy would ephemeral. Also, the habitat preferences days at most. Therefore, it may be that not have the benefit of being able to for these areas seem to be more food sources for many baleen whales are train and test in these challenging associated with mid and high frequency not concentrated in great enough environments. Coastal, shallow species, which are less sensitive to LFA quantities for significant enough time environments are more acoustically sonar, thereby further lessening concern periods to serve as important feeding complex and the SURTASS LFA system for the potential effects of LFA sonar. areas. While some odontocete (toothed) was designed to penetrate these Limiting SURTASS LFA sonar training

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and testing activities in these large areas and would not necessarily be primary productivity areas is such that when activities are already biologically important. These animals could likely easily access comparatively low (small number of moderately productive habitats are adjacent high productivity areas should ships operating up to a maximum of 496 likely to provide ample alternative they be temporarily diverted away from transmission hours total across all opportunities for species to move into a particular area due to a SURTASS LFA vessels in years 1–4 and 592 total and take advantage of areas should they sonar source. In addition, marine transmission hours in years 5 and avoid the area around the SURTASS mammals are not concentrated through beyond pooled across all vessels, spread LFA sonar vessel. Additionally, as noted all, or even most, of these large areas for across several mission areas and over above, given the nature of SURTASS all, or even most, of the time when the course of an entire year) and the LFA sonar activities and the other productivity is highest. Therefore, a existing risks to the affected species and mitigation for SURTASS LFA sonar, the broad limitation of this nature would stocks are already so low, would existing risk to marine mammal species likely unnecessarily limit LFA sonar provide little, if any, value for lowering and stocks is low and is limited to less activities while providing only some the probability or severity of impacts to severe Level B harassment. slight benefit to a limited number of individual marine mammal fitness, Consideration of practicability for individuals, which would not rise to the much less species or stocks, or their restrictions for high productivity regions level of value to marine mammal habitat. Given the limited potential for that are not included in the continental species or stocks. Limiting activities in additional reduction of impacts to a shelf, continental slope, seamount, and these large areas when activities are small number of marine mammal island ecosystems—NMFS and the Navy already comparatively low (small species and the high degree of evaluated the practicability of number of ships operating up to a impracticability (serious impacts on implementation of the White Paper’s maximum of 496 transmission hours mission effectiveness), NMFS has recommended restrictions on high total across all vessels in years 1–4 and determined that adopting this productivity areas. Please see the 592 total transmission hours in years 5 recommendation is not warranted under discussion of practicability for the first and beyond pooled across all vessels, the LPAI standard. White Paper recommendation above spread across several mission areas and (continental slope plus buffer), which is over the course of an entire year), given High Productivity Regions That Are Not also applicable here. The Navy has the existing risks to the affected species Included in the Continental Shelf, indicated, and NMFS concurs, that, and stocks are already so low, would Continental Slope, Seamount, and additional restrictions in high provide little, if any, value for lowering Island Ecosystems productivity regions that are not the probability or severity of impacts to Consideration of potential for included in the continental shelf, individual marine mammal fitness, reduction of adverse impacts to marine continental slope, seamount, and island much less species or stocks, or their mammal species and stocks and their ecosystems beyond the existing coastal habitat. While we note that subjecting habitat—Regions of high productivity standoff and OBIAs would unacceptably entire ‘‘high productivity regions’’ to have the potential to provide good impact its national security mission. geographical restrictions would provide foraging habitat for some species of Because of the inconsistent and little value, we also reiterate that over marine mammals at certain times of the ephemeral boundaries associated with half of the existing OBIAs previously year and could potentially correlate most high productivity regions, it would identified are in areas categorized as with either higher densities and/or be difficult to define geographic Class I (high productivity, >300 gC/m2- feeding behaviors through parts of their restrictions that would not impinge yr) or Class II (moderate productivity, area. Productive areas of the ocean are upon the long-range detection abilities 150–300 gC/m2-yr) ecosystems, based difficult to consistently define due to of the SURTASS LFA sonar system. The on SeaWiFS global primary productivity interannual spatial and temporal mission of SURTASS LFA sonar is to (see response to NRDC comment 20, 77 variability. High productivity areas have detect quieter and harder-to-find foreign FR 50290, 50304 (August 20, 2012)). ephemeral boundaries that are difficult submarines at greater distances. The However, we also note that high to define and do not always persist Navy must train and test in open ocean productivity/foraging was not interannually or within the same regions to track relevant targets at long necessarily the qualifying criteria for all defined region. While there is not one distances. If large areas of the ocean of these OBIAs, and being classified as definitive guide to the productive areas were excluded from potential usage, the a high productivity area does not of the oceans, NMFS and the Navy Navy would not have the benefit of necessarily mean the area serves as a examined these areas in the SURTASS being able to train and test at the long biologically important area for marine LFA sonar study area. For instance, ranges for which SURTASS LFA sonar mammal foraging. Given the limited Huston and Wolverton (2009) show has been designed to function most potential for additional reduction of areas of high/highest productivity that effectively. Further, because high impacts to marine mammal species and are either (1) confined to high latitude productivity areas are highly variable the high degree of impracticability (polar) areas that are not in the and ephemeral, implementation would (serious impacts on mission SURTASS LFA sonar Study Area, or (2) not be operationally practicable for the effectiveness), NMFS has determined very coastally and typically seasonally Navy. that adopting this recommendation is associated with areas of high coastal Conclusion regarding restrictions in not warranted under the LPAI standard. runoff (i.e., by river mouths), which are high productivity regions that are not already encompassed by the coastal included in the continental shelf, Overall Conclusion Regarding standoff range. continental slope, seamount, and island Consideration of the White Paper Areas of more moderate productivity ecosystems— Restricting use of Recommendations are typically very large, which means SURTASS LFA sonar training and NMFS has considered the White that they are not concentrating high testing seasonally in high productivity Paper recommendations and densities or feeding areas throughout areas could potentially reduce take acknowledges that some of them have their area. In fact, areas of moderate numbers for certain species in preferred the potential to reduce the numbers of productivity scored within the mean or feeding habitat in some cases. take for some individual marine and thus represent ‘‘average’’ habitat However, as noted above, the size of the mammals within a limited number of

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species, while in other cases, adopting under Level B harassment; and (3) mammals and otherwise) from the White Paper’s guidelines could minimize marine mammal takes in areas SURTASS LFA sonar training and potentially increase take of other and during times of important behaviors testing activities including critical species. NMFS also acknowledges that such as feeding, migrating, calving, or habitat, essential fish habitat, marine the White Paper’s recommendations breeding or in areas where small protected areas, and national marine may add some small degree of resident populations reside or there is sanctuaries. SURTASS LFA sonar protection in preferred habitat or during high density, further minimizing the training and testing activities involve feeding behaviors in certain likelihood of adverse impacts to species introduction of pressure and sound in circumstances. However, the potential or stocks. the water column but will not alter for impacts on reproduction or survival The SURTASS LFA sonar signal is not physical habitat. Marine mammal prey of any individuals, much less accrual to expected to cause mortality, serious will not be exposed to sustained population level impacts, with the injury, or PTS, due to implementation of duration and intensity of sound levels existing mitigation is already very low. the 2,000-yd LFA sonar mitigation zone, that would be expected to result in which will ensure that no marine As explained above, the minimal significant adverse effects to marine mammals are exposed to an SPL greater training and testing impacts and the mammal food resources. Habitat than about 174 dB re: 1 mPa rms. As anticipated, and demonstrated, success impacts were considered within the of the significant mitigation measures discussed above, a low-frequency context of the addition of sound energy that the Navy is already implementing, cetacean would need to remain within to the marine environment while provide a large degree of protection and 41 meters (135 ft) for an entire LFA SURTASS LFA sonar is transmitting, limit takes to less severe Level B sonar transmission (60 sec) to harassment. Therefore, the highly potentially experience PTS and within which represents a vanishingly small limited and uncertain likelihood that 413 m (1,345 ft) for an entire LFA sonar percentage of the overall annual the White Paper recommendations will transmission (60 sec) to potentially underwater acoustic energy budget that further reduce impacts on individual experience TTS, which would be would not affect the ambient noise marine mammal fitness, much less the unlikely given typical avoidance environment of marine habitats (refer to affected species or stocks, and their behaviors even in the absence of Chapter 4, Sections 4.4 and 4.5 of the habitat does not justify adopting the mitigation. Therefore, in addition to 2019 SURTASS LFA FSEIS/SOEIS). recommendations, especially when alleviating the likelihood of PTS, the Therefore, with regard to habitat, NMFS considered in light of the high degree of implementation of the 2,000-yd LFA has not identified any impacts to habitat impracticability for Navy sonar shutdown zone mitigation from SURTASS LFA sonar that persist implementation. measure will minimize the number of beyond the time and space that the LF cetaceans likely exposed to LFA impacts to marine mammals themselves Least Practicable Adverse Impact— sonar at levels associated with the onset and the water column could occur. Our Conclusions of TTS. The best information available mitigation targeted to minimize impacts Based on our evaluation of the Navy’s indicates that effects from SPLs less to species or stocks while in particular proposed mitigation measures as well as than 180 dB re: 1 mPa rms will be habitats (i.e., the coastal standoff and other measures considered by NMFS or limited to short-term, Level B OBIAs) will protect preferred habitat recommended by the public, NMFS has harassment, and animals are expected to during its use, and therefore is determined that the mitigation measures return to behaviors shortly after contributing to the means of effecting required by this final rule provide the exposure. the LPAI on a species or stock and its means of effecting the least practicable Further, the implementation of OBIA habitat. Therefore, the mitigation adverse impact on the affected species measures and the coastal standoff measures that address areas that serve as or stock(s) of marine mammals and their allows the Navy to minimize or avoid important habitat for marine mammals habitat, paying particular attention to impacts in areas where behavioral in all or part of the year help effectuate rookeries, mating grounds, and areas of disturbance and other impacts would be the LPAI on marine mammal species similar significance, considering more likely to have negative energetic and stocks and their habitat. personnel safety, practicality of effects, or deleterious effects on implementation, and impact on the reproduction, which could reduce the The Ninth Circuit’s Pritzker decision effectiveness of the military readiness likelihood of survival or reproductive faulted NMFS for considering the White activity. success (measures to avoid or lessen Paper mitigation recommendations for The 2,000-yd LFA sonar mitigation exposures of marine mammals within ‘‘data-poor areas’’ against the OBIA (shutdown) zone, based on detection of the coastal standoff zone and OBIAs); standards NMFS had set for the 2012 marine mammals from the highly and generally lessen the total number of rule. We do not read the opinion as effective three-part mitigation takes in areas of higher density for some holding that the MMPA compelled a monitoring efforts (visual, as well as species (coastal standoff measures and change in the criteria and process for active and passive acoustic monitoring), OBIAs). These measures, taken together, evaluating OBIAs. NMFS addressed the and geographic restrictions (coastal constitute the means of effecting the Court’s decision by separately and standoff zone and OBIAs plus the 1-km least practicable adverse impact on the independently evaluating the White buffer as well as the limitation on affected species and stocks in the Paper’s recommendations for benefits to transmission hours near OBIAs except western and central North Pacific and the affected species or stocks and when additional approval is obtained eastern Indian Oceans in the upcoming practicability, without regard to the from the Navy Command authority if seven-year LOA period. As described OBIA criteria or process (see NMFS’ required for national security) will above, we evaluated the potential evaluation of the White Paper in this enable the Navy to: (1) Avoid Level A inclusion of additional measures (White rule). Using the best available harassment of marine mammals; (2) Paper recommendations, critical habitat, information, NMFS considered the minimize the incidences of marine etc.) before reaching this conclusion. recommendations in the White Paper mammals exposed to SURTASS LFA The 2019 SURTASS LFA FSEIS/ under our interpretation of the LPAI sonar sound levels associated with TTS SOEIS evaluated the potential for standard and determined the measures and more severe behavioral effects impacts to marine habitats (marine (as well as a smaller buffer distance)

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were not warranted, as described in that foraging by humpback whales as are practicable for the Navy and section. documented in one peer-reviewed effective in minimizing impacts on In reaching the conclusion that report (p.D–319, DoN 2012). Based on marine mammals from activities that are NMFS’ record for the 2012 rule did not the results of that study, the Olympic likely to increase the probability or establish the agency had satisfied the Coast OBIA was reviewed and severity of population level effects— LPAI standard, the Court in Pritzker designated. Other examples include the wherever marine mammals occur, even determined that NMFS failed to Southwest Australia Canyons OBIA, in areas where data are limited. consider an important aspect of the which considers past whaling data but Therefore, as we have said, NMFS’ problem, ‘‘namely the underprotection also more recent sighting and stranding mitigation requirements are not based that accompanies making conclusive information; and the boundary for the on the premise that the ‘‘no data’’ data an indispensable component of Eastern Gulf of Mexico OBIA, which scenario is equivalent to ‘‘zero OBIA designation,’’ and that this was drawn to ‘‘conservatively population density’’ or ‘‘no biological ‘‘systematic underprotection of marine encompass’’ waters where Bryde’s importance.’’ 8 The LFA shutdown zone mammals’’ cannot be consistent with whales may occur based on sightings will avoid or minimize auditory impacts the requirement that mitigation information (as opposed to scientific and more severe forms of Level B measures result in the ‘‘least practicable validation of their occurrence). In harassment, wherever marine mammals adverse impact’’ on marine mammals.’’ addition, even though most available occur. The coastal exclusion zone will Id. at 1140. While we have corrected the data are only available for inshore reduce adverse impacts, specifically identified deficiency by evaluating the waters (within the coastal standoff higher numbers of take or take in areas White Paper measures independent of zone), NMFS is designating OBIAs for of preferred habitat for coastal species the OBIA process, we disagree with the the Ogasawara Island region as part of that are present in higher numbers, or suggestion that our mitigation is this rulemaking due to the importance through lessening the severity of systematically underprotective. of the nearshore area for humpback impacts by minimizing take of We first emphasize that NMFS’ OBIA whales and sperm whales. individuals in shelf or slope areas informational standards (and other Thus, NMFS does not insist on an encompassed by the standoff, when that mitigation measures), while data-driven, ‘‘unattainable’’ evidentiary standard of habitat is preferred by some species do not require scientific certainty or ‘‘conclusive data’’ 7 for imposing (again, when NMFS assessed areas that conclusive data. This is illustrated by conservation and management measures met the OBIA biological criteria for the the fact that the OBIA screening criteria for SURTASS LFA sonar, including 2012 rule, 80 percent of the areas fell allow for consideration of a variety of OBIAs. As another example, the coastal within the 12 nmi coastal exclusion information sources, including historic standoff zone uniformly applies not zone, but the protection applies whaling data, stranding data, sightings only in areas with supporting data about anywhere in the coastal exclusion zone, information, and regional expertise, to marine mammals (80 percent of the even in parts that are ‘‘data poor’’). In name a few examples of the ‘‘data’’ areas initially identified for OBIA addition, NMFS designated OBIAs, considered—and, in fact, the only areas consideration were within the 12 nmi/ where supporting information that were not considered were those 22 km coastal standoff) but also in areas sufficiently (and not necessarily considered to have entirely inconclusive that could be fairly characterized as conclusively) demonstrated the areas data. As detailed further in Appendix D ‘‘data poor.’’ met the established criteria and they of the 2012 SURTASS LFA SEIS/SOEIS, Finally, because the LPAI standard were determined to be practicable, supporting documents that are authorizes NMFS to weigh a variety of which are expected to reduce the considered include peer-reviewed factors when evaluating appropriate likelihood of impacts that would articles; scientific committee reports; mitigation measures, it does not compel adversely affect reproduction or cruise reports and transects; personal mitigation for every kind of individual survival. communications and unpublished take, even when practicable for We have assessed all reports; dissertations and theses; books, implementation by the applicant. Thus, recommendations and the best available government reports, and non- we do not evaluate measures strictly on science and are aware of no other governmental organization reports; and the basis of whether they will reduce practicable measures that would further notes, abstracts, and conference taking. The focus is on the relevant reduce the probability of impacts to proceedings. The process set up for the contextual factors that more species or stocks and their habitats. In 2012 rule carried forward areas for meaningfully assess a measure’s value other words, the measures that NMFS consideration if they had sufficient in contributing to the standard of includes in this rule will effect the least scientific support for the relevant minimizing impacts to the affected practicable adverse impact on the criterion based on a ranking of 2 or species or stock and its habitat. It is also affected species or stocks and their higher on a scale developed for that relevant to consider a measure in the habitats. As discussed in the Adaptive purpose, with zero being the lowest and context of the nature and extent of the Management section, NMFS will four the highest. Even areas that were expected impacts of the specified systematically consider new ranked ‘‘2’’ (‘‘Supporting information activity and the value of other information and re-evaluate as derived from habitat suitability models mitigation that will be implemented. necessary if applicable new information (non-peer reviewed), expert opinion, NMFS has evaluated the likely effects becomes available. regional expertise, or gray (non-peer of SURTASS LFA sonar training and Monitoring reviewed) literature, but requires more testing activities and has required justification’’) were deemed ‘‘eligible’’ measures to minimize the impacts to the Section 101(a)(5)(A) of the MMPA for further consideration (77 FR 50290, affected species or stocks and their states that in order to issue an ITA for 50299 (August 20, 2012)). habitat to achieve the LPAI. Consistent an activity, NMFS must set forth In fact, NMFS has previously with our interpretation of LPAI, the LFA ‘‘requirements pertaining to the designated OBIAs for areas based on shutdown and coastal exclusion zone monitoring and reporting of such these types of information sources. For taking.’’ The MMPA implementing example, the Olympic Coast OBIA 7 NRDC v. Pritzker, 828 F.3d 1125, 1140 (9th Cir. (OBIA 21) had a ranking of 2 for 2016). 8 White Paper at p. 1.

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regulations at 50 CFR 216.104(a)(13) ecologically meaningful ocean scales Additional Ranked Monitoring Projects indicate that requests for LOAs must and time periods under varying noise Under Consideration include the suggested means of conditions. Due to research indicating that beaked accomplishing the necessary monitoring As part of the research and whales and harbor porpoises may be and reporting that will result in monitoring component of the SURTASS particularly sensitive to a range of increased knowledge of the species, the LFA sonar program, M3 data are underwater sound (Southall et al., 2007; level of taking, or impacts on collected to: Tyack et al., 2011; Kastelein et al., • populations of marine mammals that are Document occurrence, distribution, 2012), in the 2012 rule and LOAs for expected to be present. and behaviors of acoustically active these activities, NMFS included Monitoring measures prescribed by whale species over ocean basin and conditions for increasing understanding NMFS should accomplish one or more decadal scales; of the potential effects of SURTASS LFA • of the following general goals: Assess changes in marine mammal sonar on these taxa. The Navy convened • An increase in our understanding of activity levels under normal conditions an independent Scientific Advisory how many marine mammals are likely (e.g., weather, wind, time of year, or Group (SAG), composed of six scientists to be exposed to levels of LFA sonar that time of day) relative to acoustic affiliated with two universities, one we associate with specific adverse conditions with varying levels of Federal agency (NMFS), and three effects, such as disruption of behavioral anthropogenic noise (e.g., seismic private research and consultancy firms, patterns, TTS, or PTS; activities, naval sonar, shipping, or to investigate and assess different types • An increase in our understanding of fishing activities); of research and monitoring methods that how individual marine mammals • Inform environmental assessments could increase the understanding of the respond (behaviorally or of current and future anti-submarine potential effects to beaked whales and physiologically) to LFA sonar (at warfare systems; and harbor porpoises from exposure to specific received levels or other stimuli • Assemble a long-term database of SURTASS LFA sonar transmissions. expected to result in take); • ocean ambient noise data to enable The SAG submitted a report (‘‘Potential An increase in our understanding of scientifically-based evaluations of how anticipated takes of individuals (in Effects of SURTASS LFA sonar on potential influences on cetaceans or Beaked Whales and Harbor Porpoises’’) different ways and to varying degrees) other species. may impact the population, species, or describing their monitoring and Acoustic data collected and archived stock (specifically through effects on research recommendations. This report by the M3 program allow program annual rates of recruitment or survival); was submitted to the Executive analysts to statistically quantify how • An increase in knowledge of the Oversight Group (EOG) for SURTASS cetacean acoustic behaviors are affected affected species; LFA sonar, which is comprised of • An increase in our understanding of by various factors, such as ocean basin representatives from the U.S. Navy the effectiveness of certain mitigation topographic features, hydrographic (Chair, OPNAV N2/N6F24), Office of the and monitoring measures; conditions, seasonality, time, weather Deputy Assistant Secretary of the Navy • A better understanding and record conditions, and ambient noise for the Environment, Office of Naval of the manner in which the authorized conditions. The compiled acoustic data Research, Navy Living Marine entity complies with the incidental take can be used to estimate the total number Resources Program, and the NMFS authorization; and of vocalizing whales per unit area as Office of Protected Resources (OPR) • An increase in the probability of well as document the seasonal or Permits and Conservation Division. The detecting marine mammals, both within localized movements of individual EOG met twice in 2014 to review and the mitigation zone (thus allowing for animals. In addition, observations over further discuss the research more effective implementation of the time can also show the interaction and recommendations put forth by the SAG, mitigation) and in general to better influence of noise sources on large the feasibility of implementing any of achieve the above goals. whale behavior. the research efforts, and existing In addition to the real-time At present, the M3 Program’s data are budgetary constraints. Representatives monitoring associated with mitigation, classified, as are the data reports created from the Marine Mammal Commission the Navy is engaging in exploring other by M3 Program analysts, due to the also attended EOG meetings as monitoring efforts described here: inclusion of sensitive national security observers. In addition to the SAG information. The Navy continues to recommendations, promising Marine Mammal Monitoring (M3) assess and analyze M3 Program data suggestions for monitoring and research Program collected from Navy passive acoustic were recommended for consideration by Beginning in 1993, the Marine monitoring systems and is working the EOG. The EOG considered which Mammal Monitoring (M3) Program was toward making some portion of that data efforts would be most effective, given designed to assess the feasibility of (after appropriate security reviews) existing budgetary constraints, and the detecting and tracking marine available to scientists with appropriate Navy has submitted the outcome of this mammals. The M3 program uses the clearances and ultimately to the public. study to NMFS. Navy’s fixed and mobile passive Additionally, data summaries are shared In summary, after consideration of the acoustic monitoring systems to monitor with NMFS analysts with appropriate SAG recommendations and the inputs the movements of some large cetaceans clearances. There has been some provided by the EOG, the research (principally baleen whales), including progress on addressing security monitoring studies were ranked as their migration and feeding patterns, by concerns and declassifying a report of follows. In addition to the topic, the tracking them through their fin whale singing and swimming approximate cost of the research effort vocalizations. This Program has evolved behaviors (DoN, 2015; Clark et al., is also listed. Those study topics which into a valuable tool by which the 2019). In addition, the Navy has shared the Navy has invested in since the EOG acoustic activity levels of vocalizing information on detections of western recommendations are also indicated whales can be quantitatively gray whale vocalizations with the IUCN below. documented and trends of oceanic on possible wintering areas for this The category of research ocean noise levels measured over species. recommendations that were ranked

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highest included those estimated to cost NMFS (2016) noted that the predicted field sound field consistent across the less than $100,000. audiogram does not match the typical measurement experiment. The final 1. Desktop study of potential overlap U-shaped audiogram expected with results of the study have not been of harbor porpoise habitat by SURTASS normal hearing in mammals in that published yet, but the study found that LFA sonar transmissions. The Navy there is a ‘‘hump’’ at low frequencies AEPs were only successful down to funded this study and the report has and shallow roll-off of sensitivity at frequencies of 10 kHz for bottlenose been submitted to NMFS. In summary high frequencies. Given these dolphins (where 10 kHz is the upper the report finds that, while harbor difficulties, additional funding would range of what is considered mid- porpoises could potentially be exposed be required to determine the source of frequency) and 1 kHz for California sea to SURTASS LFA sonar transmissions, the abnormal results. The Navy is lions (the upper range of what is exposure is likely to occur at reduced continuing to invest in LF cetacean considered low-frequency). In addition, sound levels with limited potential for audiogram development and recently the correlation of equal latency contours behavioral responses. The full report is released a Broad Agency Announcement only applied over a limited frequency available at http://www.surtass-lfa- in coordination with the Subcommittee range, providing limited benefit beyond eis.com. on Ocean Science and Technology— the frequency range of auditory 2. Review of existing high frequency Ocean Noise and Marine Life Task force thresholds. Therefore, it is currently not acoustic recording package (HARP) data to make further investment in this area. feasible to conduct ABR/AEPs at to determine spatiotemporal overlap The final group of recommendations frequencies within the range of with SURTASS LFA missions. NMFS are studies that require additional SURTASS LFA sonar (100 to 500 Hz). consulted with scientists at NOAA’s methodological developments and/or Finally, the Navy funded audiograms Pacific Islands Fisheries Science Center would cost greater than $500,000. and TTS studies for harbor porpoise about deployments in the western and 1. Controlled exposure estimates across its entire frequency range central North Pacific and Scripps (CEE) for beaked whales with an (Kastelein et al., 2017). This study Institution of Oceanography about appropriate LF source. There are many reported the hearing sensitivity of a six- deployments in the eastern North complexities associated with this year-old female and a three-year-old Pacific. Since the EOG, Baumann- recommendation, even more so male harbor porpoise as measured by Pickering et al. (2014) presented the considering the results of the ongoing using a standard psycho-acoustic results of over eleven cumulative years mid-frequency sonar behavioral technique under low ambient noise of HARP deployments in the North response studies (BRS) demonstrating conditions. The porpoises’ hearing Pacific, which may overlap with the importance of real-world exposures thresholds for 13 narrow-band sweeps SURTASS LFA missions. It would be for characterizing behavioral responses. with center frequencies between 0.125 fairly straightforward and require It is possible that existing LF sources and 150 kHz were established. The minimal cost to determine the already in use on Navy ranges could be range of most sensitive hearing (defined spatiotemporal overlap of HARP surrogates for SURTASS LFA sonar, but as within 10 dB of maximum deployments and LFA missions. If it such extrapolations would need to be sensitivity) was from 16 to 140 kHz. was determined that overlap existed, the considered carefully. SURTASS LFA Sensitivity declined sharply above 125 cost for data analysis would depend on sonar is currently authorized for use in kHz. Hearing sensitivity in the low the amount of overlap. the western and central North Pacific frequencies 125 Hz to 1 kHz were 40– The second-highest ranked group of and Indian oceans, regions in which 80 dB above their maximum sensitivity. recommendations consisted of studies controlled exposure experiments (CEEs) The Navy has obtained a permit from that are estimated to cost in the have not been conducted, making the NMFS marine mammal health and $100,000–$500,000 range, but for which experiments with the LFA sonar system stranding program to conduct an AEP methodologies exist and itself particularly difficult. Given the audiogram on a stranded beaked whale, implementation would extend existing cost and complexities associated with but to date none have stranded alive in studies. this recommendation, it was ranked as an area with staff suitable to conduct the 1. Targeted deployment of one HARP a lower priority. This recommendation testing. The Navy will continue to seek sensor in the western North Pacific for should also be revisited with future opportunities to conduct such research one year; approximate estimated cost of development of tagging technologies for should they arise. $250,000. The objective of this study harbor porpoises. The ranking of research and would be to document beaked whale 2. LF behavioral audiograms for monitoring recommendations has vocal behavior before, during, and after harbor porpoise or LF auditory helped inform Navy and NMFS decision LFA sonar transmissions. Careful brainstem response/auditory evoked makers of the scientific priority, consideration of lessons learned from potential (ABR/AEP) audiograms for feasibility, and cost of possible previous deployments would be needed beaked whales. Since the EOG experiments to increase understanding to increase the probability of a concluded, the Navy funded a study led of potential effects of SURTASS LFA successful project (i.e., Baumann- by Dr. James Finneran (http:// sonar on harbor porpoises and beaked Pickering et al., 2014 and as described greenfleet.dodlive.mil/files/2017/05/ whales. Discussions among Navy in the reports of previous studies using LMRFactSheet_Project9.pdf) to correlate decision makers from OPNAV N2/ HARPs located at https://www.navy AEP measurements of hearing N974B/N45, Office of the Deputy marinespeciesmonitoring.us/). sensitivity with perceived loudness Assistant Secretary of the Navy for the 2. Anatomical modeling of LF sound (Muslow et al., 2015). Part of this study Environment, Office of Naval Research, reception by beaked whales; included attempts to extend the LF and Navy Living Marine Resources approximate estimated cost of range of AEP measurements, which may Program will continue to leverage $150,000–$200,000. Since the EOG be transferable to studies of hearing research among various programs. meetings in 2014, Cranford and Krysl sensitivity of harbor porpoise or beaked Ongoing discussions between Navy and (2015) presented a synthetic audiogram whales. There are difficulties with the NMFS will continue to evaluate the for a fin whale, predicted based transmission of LF sounds, in achieving most efficient and cost-effective way predominantly on bone conduction of the required power with manageable forward for Navy research and sound through the head to the ear. laboratory systems and creating a far- environmental compliance monitoring

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efforts once the amount of funding Navy’s Living Marine Resources Notification of the Discovery of a authorized is known. advisory board to provide input to Stranded Marine Mammal 9 Ambient Noise Data Monitoring future research projects that may The Navy will systematically observe address SURTASS LFA sonar needs. Several efforts (Federal and academic) during SURTASS LFA sonar activities The most recently available data are for for injured or disabled marine are underway to develop a Fiscal Year 2015, in which the Navy comprehensive ocean noise budget (i.e., mammals. In addition, the Navy will reported that it spent $35.9 million that an accounting of the relative monitor the principal marine mammal year on marine mammal research and contributions of various underwater stranding networks and other media to sources to the ocean noise field) for the conservation (Marine Mammal correlate analysis of any whale mass world’s oceans that includes both Commission, 2017). This ongoing strandings that could potentially be anthropogenic and natural sources of marine mammal research relates to associated with SURTASS LFA sonar noise. Ocean noise distribution and hearing and hearing sensitivity, auditory activities. noise budgets are used in marine effects, marine mammal monitoring and Minimization of Harm to Live-Stranded mammal masking studies, habitat detection, noise impacts, behavioral (or Milling) Marine Mammals characterization, and marine animal responses, diving physiology and In the event of a live stranding (or impact analyses. physiological stress, and distribution. The Navy will collect ambient noise The Navy sponsors a significant portion near-shore atypical milling) event, NMFS will advise the Navy of the need data when the SURTASS passive towed of U.S. research on the effects of human- to implement shutdown procedures for horizontal line array is deployed. generated underwater sound on marine any use of SURTASS LFA sonar within However, because the collected ambient mammals and approximately 50 percent noise data may also contain sensitive 50 km (27 nmi) of the stranding. of such research conducted worldwide. Following this initial shutdown, NMFS acoustic information, the Navy classifies These research projects may not be the data, and thus does not make these will communicate with the Navy to specifically related to SURTASS LFA determine if circumstances support any data publicly available. The Navy is sonar activities; however, they are exploring the feasibility of declassifying modification of the shutdown zone. The crucial to the overall knowledge base on and archiving portions of the ambient Navy may decline to implement all or marine mammals and the potential noise data for incorporation into part of the shutdown if the holder of the appropriate ocean noise budget efforts effects from underwater anthropogenic LOA, or his/her designee, determines after all related security concerns have noise. The Navy also sponsors research that it is necessary for national security. been resolved. to determine marine mammal Shutdown procedures for live stranding The Navy will evaluate the feasibility abundances and densities for all Navy or milling marine mammals include the and appropriate methods to collect new ranges and other operational areas. The following: • data to supplement the data available on Navy notes that research and evaluation If at any time, the marine behavioral responses of marine is being carried out on various mammal(s) die or are euthanized, or if mammals to SURTASS LFA sonar using monitoring and mitigation methods, herding/intervention efforts that were newer methods and technologies. These including passive acoustic monitoring, occurring are stopped, NMFS types of scientific inquiries fit within and the results from this research could (individuals specifically identified in the scope the Navy’s Living Marine be applicable to SURTASS LFA sonar the Stranding Communication Protocol) Resources (LMR) program. The LMR passive acoustic monitoring. The Navy will immediately advise the Navy that program weighs the various Navy has also sponsored several workshops to the shutdown around that animal(s)’ research needs against each other evaluate the current state of knowledge location is no longer needed; • Otherwise, shutdown procedures through a needs and solicitation and potential for future acoustic will remain in effect until NMFS process. The Navy has submitted a monitoring of marine mammals. The (individuals specifically identified in needs statement to the LMR advisory workshops bring together underwater committee to research future data the Stranding Communication Protocol) acoustic subject matter experts and determines and advises the Navy that all collection that would supplement marine biologists from the Navy and understanding of how SURTASS LFA live animals involved have left the area other research organizations to present (either of their own volition or following sonar may affect marine resources, data and information on current including mysticetes and beaked an intervention); and acoustic monitoring research efforts, • whales. The LMR program assesses If further observations of the marine and to evaluate the potential for Navy data needs through an iterative mammals indicate the potential for re- process in which each submitted need incorporating similar technology and stranding, additional coordination with is evaluated and ranked by an advisory methods on Navy instrumented ranges. the Navy may be required to determine what measures are necessary to committee. Prior to implementing any Reporting potential behavioral response study, the minimize that likelihood (e.g., feasibility must be evaluated and a In order to issue an ITA for an activity, section 101(a)(5)(A) of the 9 As defined in section 410 of the MMPA (16 research plan must be developed. The U.S.C. 1421h), ‘‘stranding’’ means ‘‘an event in the LMR process is the primary mechanism MMPA states that NMFS must set forth wild in which (A) a marine mammal is dead and which the Navy uses to solicit expert ‘‘requirements pertaining to the is (i) on a beach or shore of the United States, or assistance for marine resource monitoring and reporting of such (ii) in waters under the jurisdiction of the United States (including any navigable waters); or (B) a investigations. taking.’’ Effective reporting is critical marine mammal is alive and is (i) on a beach or Research both to compliance and to ensuring that shore of the United States and unable to return to the most value is obtained from the the water; (ii) on a beach or shore of the United The Navy sponsors significant required monitoring. There are several States and, although able to return to the water, is research for marine living resources to in need of apparent medical attention; or (iii) in the different reporting requirements in these study the potential effects of its waters under the jurisdiction of the United States regulations: (including any navigable waters), but is unable to activities on marine mammals. OPNAV return to its natural habitat under its own power or N974B provides a representative to the without assistance.’’

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extending the shutdown or moving • Environmental conditions (e.g., sonar activities; and (3) any discernible operations farther away) and to wind speed and direction, Beaufort sea or estimated cumulative impacts from implement those measures as state, cloud cover, visibility) SURTASS LFA sonar training and appropriate. immediately preceding the marine testing activities. Shutdown procedures are not related mammal strike; to the investigation of the cause of the • Estimated size and length of marine Comprehensive Report stranding and their implementation is mammal that was struck; The Navy will provide to NMFS and not intended to imply that Navy activity • Description of the behavior of the the public a final comprehensive report is the cause of the stranding. Rather, marine mammal immediately preceding analyzing the impacts of SURTASS LFA shutdown procedures are intended to and following the strike; sonar training and testing activities on protect marine mammals exhibiting • If available, description of the marine mammal species and stocks. indicators of distress by minimizing presence and behavior of any other This report will include an in-depth their exposure to possible additional marine mammals immediately analysis of all monitoring and Navy- stressors, regardless of the factors that preceding the strike; funded research pertinent to SURTASS contributed to the stranding. • Estimated fate of the marine LFA sonar activities conducted during mammal (e.g., dead, injured but alive, the seven-year period of this rule, a Navy Discovery of Any Stranded Marine injured and moving, blood or tissue scientific assessment of cumulative Mammal observed in the water, status unknown, impacts on marine mammal stocks, and In the event that Navy personnel disappeared, etc.); an analysis on the advancement of (uniformed military, civilian, or • To the extent practicable, alternative (passive) technologies as a contractors conducting Navy work) photographs or video footage of the replacement for LFA sonar. This report associated with operating a T–AGOS struck marine mammal(s); and will be a key document for NMFS’ class vessel discover a live or dead • Any relevant information review and assessment of impacts for stranded marine mammal at sea, the discovered during Navy’s investigation any future rulemaking. Navy shall report the incident to NMFS of the ship strike. The Navy will respond to NMFS’ comments and requests for additional (see communication protocols below) as Annual Report soon as is feasible. The Navy will information or clarification on the provide NMFS with: The classified and unclassified annual annual or comprehensive reports. These • Time, date, and location (latitude/ reports, which are due annually no later reports will be considered final after the longitude) of the first discovery (and than 90 days after the anniversary of the Navy has adequately addressed NMFS’ updated location information if known effective date of the seven-year LOA, comments or provided the requested and applicable); will provide NMFS with a summary of information, or three months after the • Species identification (if known) or the prior year’s training and testing submittal of the draft if NMFS does not description of the marine mammal(s) transmission hours. Specifically, the comment within the three-month time involved; classified reports will include dates/ period. NMFS will post the annual and • Condition of the marine mammal(s) times of exercises, location of vessel, comprehensive reports online at: (including carcass condition if the mission operational area, marine https://www.fisheries.noaa.gov/ marine mammal is dead); mammal observations, and records of national/marine-mammal-protection/ • Observed behaviors of the marine any delays or suspensions of activities. incidental-take-authorizations-military- mammal(s), if alive; Marine mammal observations will • readiness-activities. If available, photographs or video include animal type and/or species, footage of the marine mammal(s); and Adaptive Management • number of animals sighted by species, General circumstances under which date and time of observations, type of Our understanding about marine the marine mammal was discovered detection (visual, passive acoustic, HF/ mammals and the potential effects of (e.g., vessel transit). M3 sonar), the animal’s bearing and SURTASS LFA sonar on marine Vessel Strike range from vessel, behavior, and mammals is continually evolving. Reflecting this, this final rule again In the event of a ship strike of a remarks/narrative (as necessary). The includes an adaptive management marine mammal by any T–AGOS class classified reports will also include the framework. This allows the agencies to vessel, the Navy shall immediately Navy’s analysis of take by Level B consider new/revised peer-reviewed report, or as soon as security clearance harassment and estimates of the and published scientific data and/or procedures and safety conditions allow, percentage of marine mammal stocks other information from qualified and the information above in Discovery of affected for the year by SURTASS LFA Any Stranded Marine Mammal sonar training and testing activities. The recognized sources within academia, subsection, to NMFS. As soon as Navy’s estimates of the percentage of industry, and government/non- feasible, but no later than seven (7) marine mammal stocks and number of government organizations to determine business days, the Navy shall individual marine mammals affected by (with input regarding practicability) additionally report to NMFS, the: exposure to SURTASS LFA sonar whether SURTASS LFA sonar • Vessel’s speed during and leading transmissions will be derived using mitigation, monitoring, or reporting up to the incident; acoustic impact modeling based on measures should be modified (including • Vessel’s course/heading and what operating locations, season of missions, additions or deletions), and to make training or testing activity was being system characteristics, oceanographic such modification if new scientific data conducted (if applicable); environmental conditions, and marine indicate that they would be appropriate. • Status of all sound sources in use mammal demographics. Under this final rule, substantial (e.g., active sonar); Additionally, the annual report will modifications will be made only after a • Description of avoidance measures/ include: (1) Analysis of the effectiveness 30-day period of public review and requirements that were in place at the of the mitigation measures with comment. Substantial modifications time of the strike and what additional recommendations for improvements include a change in training and testing measures were taken, if any, to avoid where applicable; (2) assessment of any areas, or significant changes to marine mammal strike; long-term effects from SURTASS LFA mitigation.

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As discussed in the Mitigation section To avoid repetition, the discussion of and particularly serious injury, to occur above, NMFS and Navy have refined the our analyses applies to all the stocks is minimal. adaptive management process for this listed in Table 17 (including those for Regarding the potential for mortality, rule compared to previous rulemakings. which density and take estimates have as described previously, neither In the 2012 rule, NMFS and the Navy been pooled), because the anticipated acoustic impacts resulting in stranding annually considered how new effects of the specified activities on nor ship strikes are expected to result information, from anywhere in the these different marine mammal stocks from SURTASS LFA sonar training and world, should be considered in an are expected to be similar, given the testing activities. There is no empirical adaptive management context— operational parameters of the activities. evidence of strandings or ship strikes of including whether this new information While there are differences in the marine mammals associated spatially or would support the identification of new hearing sensitivity of different groups, temporally with the employment of OBIAs or other mitigation measures. these differences have been factored SURTASS LFA sonar. Moreover, the Moving forward, new information will into the analysis for auditory sonar system acoustic characteristics still be considered annually, but only impairment. However, the nature of differ between LFA sonar and MF for the purposes of OBIA identification their behavioral responses is expected to sonars that have been associated with in the context of the areas covered by be similar for SURTASS LFA sonar, strandings: LFA sonars use frequencies this rule (i.e., the Study Area in the especially given the context of their from 100 to 500 Hz, with relatively long western and central North Pacific and short duration and open ocean signals (pulses, with average length of eastern Indian Oceans in which exposures. Additionally, with the 60 sec), while MF sonars use SURTASS LFA assets will train and operational avoidance of areas (and frequencies greater than 1,000 Hz, with test). additional transmission hour limitations relatively short signals on the order of year, no more than 124 hours in years 1 sec. NMFS also makes a distinction Negligible Impact Analysis and 1–4 and 148 hours in years 5–7) that are between the common features shared by Determination designated for specific biologically the stranding events associated with MF NMFS has defined negligible impact important reasons and coastal standoff sonar in Greece (1996), Bahamas (2000), as an impact resulting from the zones, and the anticipated low-level Madeira (2000), Canary Islands (2002), specified activity that cannot be effects, there is no need to differentially Hanalei Bay (2004), and Spain (2006), reasonably expected to, and is not evaluate species or stocks based on referenced in the Potential Effects of reasonably likely to, adversely affect the varying status. Where there is a notable Specified Activities on Marine species or stock through effects on difference in the proportion of Mammals and Their Habitat section of annual rates of recruitment or survival authorized takes (as compared to the proposed rule (84 FR 7186; March (50 CFR 216.103). A negligible impact abundance) for two species, we 1, 2019). These included operation of finding is based on the lack of likely explicitly address it below. MF sonar, deep water close to land adverse effects on annual rates of The Navy has described its specified (such as offshore canyons), presence of recruitment or survival (i.e., population- activities based on best estimates of the an acoustic waveguide (surface duct level effects). An estimate of the number number of hours that the Navy will conditions), and periodic sequences of of takes alone is not enough information conduct SURTASS LFA sonar training transient pulses (i.e., rapid onset and on which to base an impact and testing activities. The exact number decay times) generated at depths less determination. In addition to of transmission hours may vary from than 32.8 ft (10 m) by sound sources considering the numbers of marine year to year, but will not exceed the moving at speeds of 2.6 m/s (5.1 knots) mammals that might be taken through annual total of 496 transmission hours or more during sonar operations mortality, serious injury, and Level A for all vessels in years 1–4 (currently (D’Spain et al., 2006). None of these harassment or Level B harassment four vessels), or the annual total of 592 factors are present in SURTASS LFA (although only Level B harassment is transmission hours for all vessels in sonar training and testing activities. considered for authorization under this years 5–7 regardless of the number of Regarding the potential for ship strike, final rule), NMFS considers other vessels in use (previous SURTASS LFA given the small number of vessels, low factors, such as the likely nature of any sonar rulemakings evaluated and densities of marine mammals in the area responses (e.g., intensity and duration), authorized 432 transmission hours per of operation, mitigation, and slow ship the context of any response (e.g., critical vessel per year). speeds, the potential of strike is so low reproductive time or location, As mentioned previously, NMFS as to be discountable. migration, etc.), as well as effects on estimates that 46 species of marine NMFS neither anticipates nor habitat, the status of the affected stocks, mammals representing 139 stocks could authorizes Level A harassment of and the likely effectiveness of the be taken by Level B harassment over the marine mammals as a result of specified mitigation. We also assess the number, course of the seven-year period. For activities. The mitigation measures intensity, and context of estimated takes reasons stated previously, no mortalities (including visual monitoring along with by evaluating this information relative or injuries are anticipated to occur as a active and passive acoustic monitoring, to population status. Consistent with the result of the Navy’s proposed SURTASS which together have been shown to be 1989 preamble for NMFS’ implementing LFA sonar training and testing over 98 percent effective at detecting regulations (54 FR 40338; September 29, activities, and none are authorized by marine mammals, approaching 100 1989), the impacts from other past and NMFS. The Navy has operated percent for multiple HF/M3 pings of any ongoing anthropogenic activities are SURTASS LFA sonar under NMFS sized marine mammal), and incorporated into these analyses via regulations for the last 17 years without implementing a shutdown zone of 2,000 their impacts on the environmental any reports of serious injury or death. yds around the LFA sonar array and baseline (e.g., as reflected in the The evidence to date, including recent vessel) would allow the Navy to avoid regulatory status of the species, scientific reports, annual monitoring exposing marine mammals to received population size, and growth rate where reports, and 17 years of Navy experience levels of SURTASS LFA sonar or HF/M3 known, ongoing sources of human- conducting SURTASS LFA sonar sonar sound that would result in injury caused mortality, or ambient noise activities, further supports the (Level A harassment). Additionally, as levels). conclusion that the potential for injury, discussed in the Estimated Take of

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Marine Mammals section, TTS and (2) Low Frequency Sonar Scientific Potential Effects of Specified Activities more severe behavioral reactions will Research Program (LFS SRP)—The Navy on Marine Mammals and Their Habitat also be minimized due to mitigation designed the three-phase LFS SRP study section in the proposed rule (84 FR measures, so that the majority of takes to assess the potential impacts of 7186) for discussion of more recent will be expected to be in the form of less SURTASS LFA sonar on the behavior of studies regarding context). Therefore, severe Level B harassment. low-frequency hearing specialists, those take estimates for SURTASS LFA sonar As noted above, the context of species believed to be at (potentially) are likely conservative (though we exposures is important in evaluating the greatest risk due to the presumed analyze them here nonetheless), and ultimate impacts of Level B harassment overlap in hearing of these species and takes that do occur will primarily be in on individuals. In the case of SURTASS the frequencies at which SURTASS LFA the form of lower levels of take by Level LFA sonar, the approaching sound sonar is operated. This field research B harassment. source would be moving through the addressed three important behavioral (3) Efficacy of the Navy’s Three-Part open ocean at low speeds, so concerns contexts for baleen whales: (1) Blue and Mitigation Monitoring Program— of noise exposure are somewhat lower fin whales feeding in the southern Review of Final Comprehensive and in this context compared to situations California Bight, (2) gray whales Annual Reports, from August 2002 where animals may not be as able to migrating past the central California through December 2018, indicates that avoid strong or rapidly approaching coast, and (3) humpback whales the HF/M3 active sonar system has sound sources. In addition, the duration breeding off Hawaii. These experiments, proven to be the most effective of the of the take is important; in the case of which exposed baleen whales to mitigation monitoring measures to SURTASS LFA sonar, the vessel received levels ranging from 120 to detect possible marine mammals in continues to move and any interruption approximately 155 dB re: 1 mPa, proximity to the transmitting LFA sonar of behavior would be of relatively short confirmed that some portion of the total array, and use of this system duration. Further, NMFS and the Navy number of whales exposed to LFA sonar substantially increases the probability of have imposed geographic restrictions responded behaviorally by changing detecting marine mammals within the that minimize behavioral disruption in their vocal activity, moving away from mitigation zone (and beyond), providing times and areas where impacts would be the source vessel, or both, but the a superior monitoring capability. more likely to lead to effects on responses were short-lived and animals Because the HF/M3 active sonar is able individual fitness that could impact the returned to their normal activities to monitor marine mammals out to an species or stock. within tens of minutes after initial effective range of 2 to 2.5 km (1.2 to 1.5 For SURTASS LFA sonar training and exposure. While some of the observed mi; 1.1 to 1.3 nmi) from the vessel, it is testing activities, the Navy provided responses would likely be considered unlikely that the SURTASS LFA sonar information (Table 7–1 of the Navy’s ‘‘take’’ under the MMPA, these short- operations would expose marine application) estimating incidental take term behavioral responses do not mammals to an SPL greater than numbers and percentages of marine necessarily constitute significant approximately 174 dB re: 1 mPa rms. mammal stocks that could potentially changes in biologically important The combination of visual, passive occur due to SURTASS LFA sonar behaviors, such as those that might be acoustic, and active acoustic (HF/M3) training and testing activities based on expected to affect individual fitness. In monitoring results in near 100 percent the 15 model areas in the central and addition, these experiments illustrated probability of detection for a medium- western North Pacific and eastern sized (approximately 33 ft (10 m)) that the context of an exposure scenario Indian Oceans. Based on our evaluation, marine mammal swimming towards the is important for determining the incidental take from the specified system before the animal enters the LFA probability, magnitude, and duration of activities associated with SURTASS sonar mitigation zone (see Ellison and a response. This was shown by the fact LFA sonar training and testing activities Stein, 2001 and Chapter 5, section 5.4.3 that migrating gray whales responded to will most likely fall within the realm of of the 2019 SURTASS LFA FSEIS/ a sound source in the middle of their short-term and temporary, or ephemeral, SOEIS for a summary of the migration route but showed no response disruption of behavioral patterns (Level effectiveness of the HF/M3 monitoring to the same sound source when it was B harassment), will not include Level A system). Lastly, as noted above, from the located father offshore, outside the harassment, and is not expected to commencement of SURTASS LFA sonar impact reproduction or survival of migratory corridor, even when the use in 2002 through the present, neither individuals. NMFS bases this source level was increased to maintain operation of LFA sonar, nor operation of assessment on a number of factors the same received levels within the the T–AGOS vessels, has been (discussed in more detail in previous migratory corridor. associated with any mass or individual sections) considered together: Although the LFS SRP study is two strandings of marine mammals. In (1) Geographic Restrictions—The decades old, the collected behavioral addition, required monitoring reports coastal standoff and OBIA geographic response data remain valid and highly indicate that there have been no restrictions on SURTASS LFA sonar relevant because of the lack of apparent marine mammal avoidance training and testing activities are additional studies utilizing this specific reactions observed, and no observed expected to minimize the likelihood of source, but also because the data show, marine mammal exposures to sound disruption of marine mammals in areas as reflected in newer studies with other levels associated with Level A where important behavior patterns such sound sources, that the context of an harassment takes due to SURTASS LFA as migration, calving, breeding, feeding, exposure (novelty of the sound source, sonar since its use began in 2002. or sheltering occur, or in areas with distance from the sound source and In examining the results of the small resident populations or higher activity of the animals experiencing mitigation monitoring procedures over densities of marine mammals. As a exposure, and whether the source is the previous 17 years of SURTASS LFA result, the takes that occur are less likely perceived as approaching or moving activities, NMFS has concluded that the to result in energetic effects or away, etc.) is as important as, the source mitigation and monitoring measures for disturbances of other important level and frequency in terms of triggering shutdowns of the LFA sonar behaviors that would reduce assessing reactions (see the Behavioral system have been implemented properly reproductive success or survivorship. Response/Disturbance section of the and have successfully minimized the

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potential adverse effects of SURTASS percentages of take compared to the low total number of hours of LFA sonar to marine mammals in the abundance for most stocks (the vast operation planned across all vessels; LFA sonar mitigation zone around the majority below 10 percent, 12 stocks in (2) The relatively low duty cycle, vessel. This conclusion is further the 10–20 percent range, and a handful short duration of training and testing supported by documentation that no ranging from 20–67 percent) and the fact events, and offshore nature of the known mortality or injury to marine that takes of single stocks are expected SURTASS LFA sonar use; mammals has occurred over this period. across multiple regions, we expect that (3) The fact that marine mammals in For reasons discussed in the Potential most individuals taken are taken only unspecified migration corridors and Effects of the Specified Activity on once in a year with some small subset open ocean concentrations would be Marine Mammals and their Habitat taken perhaps a few times in the course adequately protected from exposure to section (see the proposed rule (84 FR of a year. However, two stocks have sound levels that would result in injury, 7186)), NMFS anticipates that the effect somewhat higher percentages that we most TTS (and any accrued would be of masking will be limited and the note here. When estimated instances of expected to be of a small degree), and chances of an LFA sonar sound take are compared to the estimated stock more severe levels of behavioral overlapping whale calls at levels that abundances, the percentages are 117 disruption by the historical would interfere with their detection and and 321 for the Western North Pacific demonstrated effectiveness of the recognition will be extremely low. stock of killer whales and the Western Navy’s three-part monitoring program in NMFS does not expect any short- or North Pacific stock of humpback detecting marine mammals and long-term effects to marine mammal whales, respectively. Acknowledging triggering shutdowns; food resources from SURTASS LFA the uncertainty surrounding abundance (4) Geographic restrictions requiring sonar training and testing activities. It is estimates for the Navy’s action area, it the SURTASS LFA sonar sound field unlikely that the activities of the is still worth noting that these not exceed 180 re: 1 mPa rms within 22 SURTASS LFA sonar vessels percentages are notably higher than km of any shoreline, including islands, transmitting LFA sonar at any place in others, and would suggest that some or at a distance of one km from the the action area over the course of a year number of individuals are expected to perimeter of an OBIA, as well as would implicate all of the areas for a be taken more than once. It indicates the limitations on amount of activity near given species or stock in any year. It is possibility that some individuals are an OBIA absent additional approvals anticipated that ample similar nearby taken several times within a year, as the through the Navy chain of command, habitat areas are available for species/ percentage exceeds 100 percent. For thereby further limiting the severity and stocks in the event that portions of example, for the Western North Pacific number of behavioral disturbances in preferred areas are ensonified. stock of humpback whales, the average those areas; and Implementation of the 2,000-yd LFA number of takes would be three or more (5) The proven effectiveness of the sonar mitigation zone (shutdown zone) per individual. It is unlikely that takes required three-part monitoring and would ensure that most marine mammal would be exactly evenly distributed mitigation protocols. takes are limited to lower-level Level B across all individuals, and it is therefore In summary, based on the analysis harassment. Further, potential impacts more reasonable to assume that some contained herein of the likely effects of in areas of known or likely biological number of individuals would be taken the specified activity on marine importance for functions such as fewer than three times, while others mammals and their habitat, and taking feeding, reproduction, etc., effects are would be taken on more than three into consideration the implementation mitigated by the coastal standoff zone days, and we assume up to twice this of the proposed monitoring and and OBIAs. (i.e., one individual could be taken on mitigation measures, the authorized As noted above, because of the nature, six days) for the sake of analysis. Even takes are not expected to adversely scale, and locations of SURTASS LFA where one individual may be taken by affect any species or stock through sonar training and testing, there is no Level B harassment (in the form of impacts on recruitment or survival. reason to expect meaningfully behavioral disturbance or a small degree Therefore, NMFS finds that the total differential impacts on any particular of TTS) on up to six days within a year, authorized marine mammal take from species or stock that warrant additional given the nature of the activities, there the proposed activity will have a discussion. However, we include the is no reason to expect that these takes negligible impact on all affected marine following to ensure understanding of would be likely to occur on sequential mammal species or stocks. the two cases where the percentages of days or that this magnitude of exposure Subsistence Harvest of Marine stocks taken are notably higher within a year would be likely to result Mammals compared to other stocks. As also noted in impacts on reproduction or survival, previously, the modeling the Navy uses especially given the implementation of The Navy will not operate SURTASS allows for the enumeration of instances mitigation to reduce the severity of LFA sonar in Arctic waters nor in the of take—each representing an exposure impacts. Gulf of Alaska, or off the Aleutian Island above the Level B harassment threshold For the following summarized chain where subsistence uses of marine of a single marine mammal for some reasons, pulling in the supporting mammals protected under the MMPA amount of time (likely relatively short) information both in this section and occur. Therefore, there are no relevant within a single day. The model does not previous sections, including material subsistence uses of marine mammals predict how many of these instances for not repeated from the proposed rule implicated by this action and there will a given species or stock may occur as because it was unchanged, NMFS finds be no impact on subsistence hunting. multiple, or repeated, takes to a single that the total authorized taking from SURTASS LFA sonar will not cause individual. Given the nature (small SURTASS LFA sonar training and abandonment of any harvest/hunting number of ships and relatively few testing activities will have a negligible locations, displace any subsistence hours across two ocean basins) and impact on the affected species or stocks: users, or place physical barriers between location of the activity (beyond coastal (1) The small number of SURTASS marine mammals and hunters. NMFS exclusion in open ocean, areas where LFA sonar systems that will be has determined that the total taking species/stocks are not concentrated as operating in the Study Area (likely not affecting species or stocks will not have much), as well as the relatively small in close proximity to one another) and an unmitigable adverse impact on the

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availability of such species or stocks for its action of authorizing incidental take that the action will not have a taking for subsistence purposes. through MMPA regulations and an LOA significant economic impact on a for these Navy activities, NMFS substantial number of small entities. Endangered Species Act determined that consultation under the The Navy is the sole entity that will be Eleven marine mammal species under NMSA is not required. affected by this rulemaking and is not a NMFS’ jurisdiction with confirmed or small governmental jurisdiction, small National Environmental Policy Act possible occurrence in the central and organization, or small business, as western North Pacific and eastern To comply with the National defined by the RFA. Any requirements Indian Oceans are listed as endangered Environmental Policy Act of 1969 imposed by an LOA issued pursuant to or threatened under the ESA: Blue (NEPA; 42 U.S.C. 4321 et seq.) and these regulations, and any monitoring or whale; fin whale; humpback whale NOAA Administrative Order (NAO) reporting requirements imposed by (Western North Pacific DPS); North 216–6A, NMFS must evaluate our these regulations, will be applicable Pacific right whale; sei whale; gray proposed action (i.e., the promulgation only to the Navy. NMFS does not expect whale (Western North Pacific DPS); of regulations and issuance of the LOA) the issuance of these regulations or the sperm whale; false killer whale (Main and alternatives with respect to associated LOA to result in any impacts Hawaiian Islands Insular DPS); Steller potential impacts on the human to small entities pursuant to the RFA. sea lion (western DPS); spotted seal environment. NMFS participated as a Because this action will directly affect (Southern DPS); and Hawaiian monk cooperating agency on the 2019 the Navy and not a small entity, NMFS seal. ESA-designated critical habitat for SURTASS LFA sonar Final concludes the action will not result in Hawaiian monk seals and Main Supplemental Environmental Impact a significant economic impact on a Hawaiian Island insular false killer Statement/Supplemental Overseas substantial number of small entities. No whales is also located in the Study Area. Environmental Impact Statement comments were received regarding this The Navy consulted with NMFS (SURTASS LFA FSEIS/SOEIS) which certification. As a result, a regulatory pursuant to section 7 of the ESA, and was published on July 5, 2019 (84 FR flexibility analysis is not required and NMFS also consulted internally on the 32168), and is available at http:// none has been prepared. issuance of these regulations and LOA www.surtass-lfa-eis.com. In accordance under section 101(a)(5)(A) of the MMPA with 40 CFR 1506.3, NMFS Waiver of Delay in Effective Date for SURTASS LFA sonar training and independently reviewed and evaluated NMFS has determined that there is testing activities. NMFS issued a the 2019 SURTASS LFA FSEIS/SOEIS good cause under the Administrative Biological Opinion concluding that the and determined that it is adequate and Procedure Act (5 U.S.C. 553(d)(3)) to issuance of the rule and subsequent sufficient to meet our responsibilities waive the 30-day delay in the effective LOA is not likely to jeopardize the under NEPA for the issuance of this rule date of this final rule. No individual or continued existence of the threatened and associated LOA, and adopted the entity other than the Navy is affected by and endangered species under NMFS’ Navy’s SURTASS LFA FSEIS/SOEIS. the provisions of these regulations. The jurisdiction and is not likely to result in NMFS has prepared a separate Record of Navy has informed NMFS that it the destruction or adverse modification Decision. NMFS’ Record of Decision for requests that this final rule take effect of critical habitat in the SURTASS LFA adoption of the SURTASS LFA FSEIS/ on or by August 13, 2019, so as to not Study Area. The Biological Opinion for SOEIS and issuance of this final rule cause a disruption in training and this action is available at https:// and subsequent LOAs can be found at: testing activities when the NDE expires www.fisheries.noaa.gov/national/ https://www.fisheries.noaa.gov/ on August 12, 2019. The Navy has a marine-mammal-protection/incidental- national/marine-mammal-protection/ compelling national security reason to take-authorizations-military-readiness- incidental-take-authorizations-military- continue military readiness activities activities. readiness-activities. without interruption to the SURTASS The USFWS is responsible for LFA sonar activities. Suspension or regulating the take of the several marine Classification interruption of the Navy’s ability to mammal species including the polar This action does not contain any conduct those activities disrupts bear, walrus, and dugong. The Navy has collection of information requirements adequate and realistic military determined that none of these species for purposes of the Paperwork readiness, proper operations, and occur in geographic areas that overlap Reduction Act of 1980 (44 U.S.C. 3501 suitability for combat essential to with SURTASS LFA sonar activities et seq.). national security. NMFS was unable to and, therefore, that SURTASS LFA The Office of Management and Budget accommodate the 30-day delay of the sonar activities will have no effect on has determined that this final rule is not effectiveness period due to the need for the endangered or threatened species or significant for purposes of Executive more time to consider additional the critical habitat of ESA-listed species Order 12866. mitigation measures and finalize NEPA under the jurisdiction of the USFWS. Pursuant to the Regulatory Flexibility obligations. The waiver of the 30-day Thus, no consultation with the USFWS Act (RFA), the Chief Counsel for delay of the effective date of the final pursuant to Section 7 of the ESA Regulation of the Department of rule will ensure that the MMPA final occurred. Commerce certified to the Chief Counsel rule and LOA are in place by the time for Advocacy of the Small Business the NDE expires. Any delay in finalizing National Marine Sanctuaries Act Administration at the proposed rule the rule would result in either: (1) A Under section 304(d) of the National stage that this action will not have a suspension of planned naval training Marine Sanctuaries Act (NMSA), federal significant economic impact on a and testing, which would disrupt vital agencies are required to consult with substantial number of small entities. training and testing essential to national NOAA’s Office of National Marine The RFA requires a Federal agency to security; or (2) absent another NDE, the Sanctuaries (ONMS) on activities that prepare an analysis of a rule’s impact on potential for unauthorized takes of are likely to destroy, cause the loss of, small entities whenever the agency is marine mammals by Navy (should the or injure any sanctuary resource, unless required to publish a notice of proposed Navy conduct training and testing it is determined that consultation is not rulemaking. However, a Federal agency without an LOA). Moreover, the Navy is required. Based on NMFS’ assessment of may certify, pursuant to 5 U.S.C. 605(b), ready to implement the rule

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immediately. For these reasons, NMFS PART 218–REGULATIONS 218.238 Renewals and modifications of a finds good cause to waive the 30-day GOVERNING THE TAKING AND Letter of Authorization. delay in the effective date. In addition, IMPORTING OF MARINE MAMMALS the rule authorizes incidental take of Subpart X—Taking and Importing of marine mammals that would otherwise ■ 1. The authority citation for part 218 Marine Mammals; U.S. Navy be prohibited under the statute. continues to read as follows: Surveillance Towed Array Sensor Therefore, the rule is granting an System Low Frequency Active Authority: 16 U.S.C. 1361 et seq. exception to the Navy and relieving (SURTASS LFA) Sonar Training and restrictions under the MMPA, which is ■ 2. Add subpart X to read as follows: Testing in the Central and Western North Pacific and Eastern Indian a separate basis for waiving the 30-day Subpart X—Taking and Importing of Marine effective date for the rule. Mammals; U.S. Navy Surveillance Towed Oceans Array Sensor System Low Frequency Active List of Subjects in 50 CFR Part 218 § 218.230 Specified activity, level of taking, (SURTASS LFA) Sonar Training and Testing and species/stocks. Exports, Fish, Imports, Indians, in the Central and Western North Pacific Labeling, Marine mammals, Penalties, and Eastern Indian Oceans Regulations in this subpart apply to Reporting and recordkeeping Sec. the U.S. Navy (Navy) for the taking of requirements, Seafood, Transportation. 218.230 Specified activity, level of taking, marine mammals that occurs incidental Dated: July 31, 2019. and species/stocks. to the Navy’s SURTASS LFA sonar 218.231 Effective dates. Samuel D. Rauch III, training and testing activities under 218.232 Permissible methods of taking. authority of the Secretary of the Navy Deputy Assistant Administrator for 218.233 Prohibitions. Regulatory Programs, National Marine 218.234 Mitigation. within the central and western North Fisheries Service. 218.235 Requirements for monitoring. Pacific and eastern Indian Oceans For reasons set forth in the preamble, 218.236 Requirements for reporting. (SURTASS LFA Sonar Study Area) 50 CFR part 218 is amended as follows: 218.237 Letter of Authorization. (Table 1 to § 218.230).

TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES

Species Stock 1

Antarctic minke whale ...... ANT. Blue whale ...... CNP. NIND. WNP. SIND. Bryde’s whale ...... ECS. Hawaii. WNP. NIND. SIND. Common minke whale ...... Hawaii. IND. WNP JW. WNP OE. YS. Fin whale ...... ECS. Hawaii. IND. SIND. WNP. Humpback whale ...... CNP stock and Hawaii DPS. WAU stock and DPS. WNP stock and DPS. North Pacific right whale ...... WNP. Omura’s whale ...... NIND. SIND. WNP. Sei whale ...... Hawaii. SIND. NP. NIND. Western North Pacific gray whale ...... WNP stock and Western DPS. Baird’s beaked whale ...... WNP. Blainville’s beaked whale ...... Hawaii. WNP. IND. Common bottlenose dolphin ...... 4-Islands. Hawaii Island. Hawaii Pelagic. IA. IND. Japanese Coastal. Kauai/Niihau.

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TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES—Continued

Species Stock 1

Oahu. WNP Northern Offshore. WNP Southern Offshore. WAU. Common dolphin ...... IND. WNP. Cuvier’s beaked whale ...... Hawaii. IND. SH. WNP. Dall’s porpoise ...... SOJ dalli type. WNP dalli ecotype. WNP truei ecotype. Deraniyagala’s beaked whale ...... IND. NP. Dwarf sperm whale ...... Hawaii. IND. WNP. False killer whale ...... Hawaii Pelagic. IA. IND. Main Hawaiian Islands Insular stock and DPS. Northwestern Hawaiian Islands. WNP. Fraser’s dolphin ...... CNP. Hawaii. IND. WNP. Ginkgo-toothed beaked whale ...... IND. NP. Harbor porpoise ...... WNP. Hubbs’ beaked whale ...... NP. Indo-Pacific bottlenose dolphin ...... IND. Killer whale ...... Hawaii. IND. WNP. Kogia spp...... WNP. Longman’s beaked whale ...... Hawaii. IND. WNP. Melon-headed whale ...... Hawaiian Islands. IND. Kohala Resident. WNP. Mesoplodon spp...... WNP. Northern right whale dolphin ...... NP. Pacific white-sided dolphin ...... NP. Pantropical spotted dolphin ...... 4-Islands. Hawaii Island. Hawaiian Pelagic. IND. Oahu. WNP. Pygmy killer whale ...... Hawaii. IND. WNP. Pygmy sperm whale ...... Hawaii. IND. WNP. Risso’s dolphin ...... Hawaii. IA. WNP. IND. Rough-toothed dolphin ...... Hawaii. IND. WNP. Short-finned pilot whale ...... Hawaii. IND. WNP Northern Ecotype. WNP Southern Ecotype. Southern bottlenose whale ...... IND.

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TABLE 1 TO § 218.230—SPECIES/STOCKS PROPOSED FOR AUTHORIZATION BY LEVEL B HARASSMENT FOR THE 7-YEAR PERIOD OF THE PROPOSED RULE BY SURTASS LFA SONAR TRAINING AND TESTING ACTIVITIES—Continued

Species Stock 1

Spade-toothed beaked whale ...... IND. Sperm whale ...... Hawaii. NIND. NP. SIND. Spinner dolphin ...... Hawaii Island. Hawaii Pelagic. IND. Kauai/Niihau. Kure/Midway Atoll. Oahu/4-Islands. Pearl and Hermes Reef. WNP. Stejneger’s beaked whale ...... WNP. Striped dolphin ...... Hawaii. IND. Japanese Coastal. WNP Northern Offshore. WNP Southern Offshore. Hawaiian monk seal ...... Hawaii. Northern fur seal ...... Western Pacific. Ribbon seal ...... NP. Spotted seal ...... Alaska stock/Bering Sea DPS. Southern stock and DPS. Steller sea lion ...... Western/Asian stock and Western DPS. 1 ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP = Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia; YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemi- sphere; DPS = distinct population segment.

§ 218.231 Effective dates. (d) Take any marine mammal (b) General operating procedures. (1) Regulations in this subpart are specified in the LOA if NMFS makes a Prior to SURTASS LFA sonar activities, effective from August 13, 2019, through determination that such taking is the Navy will promulgate executive August 12, 2026. having, or may have, more than a guidance for the administration, negligible impact on the species or execution, and compliance with the § 218.232 Permissible methods of taking. stocks concerned; or environmental regulations under these Under a Letter or Letters of (e) Take a marine mammal specified regulations and LOA. Authorization (LOA) issued pursuant to in the LOA if NMFS determines such (2) The Navy must not transmit the §§ 216.106 of this chapter and 218.237, taking is having, or may have, an SURTASS LFA sonar signal at a the Holder of the LOA (hereinafter unmitigable adverse impact on frequency greater than 500 Hz. ‘‘Navy’’) may incidentally, but not availability of the species or stock for (c) 2,000-yard LFA sonar mitigation intentionally, take marine mammals taking for subsistence uses. zone; suspension and delay. If a marine within the area described in § 218.230 mammal is detected, through by Level B harassment associated with § 218.234 Mitigation. monitoring required under § 218.235, SURTASS LFA sonar training and When conducting activities identified within or about to enter within 2,000 testing provided the activity is in in § 218.230, the mitigation measures yards of the SURTASS LFA source (i.e., compliance with all terms, conditions, described in this section and in any the LFA mitigation zone), the Navy and requirements of the regulations in LOA issued under §§ 216.106 of this must immediately delay or suspend this subpart and the applicable LOA. chapter and 218.237 must be SURTASS LFA sonar transmissions. § 218.233 Prohibitions. implemented. (d) Resumption of SURTASS LFA Notwithstanding takings (a) Personnel training—lookouts. The sonar transmissions. (1) The Holder of contemplated in § 218.230 and Navy will utilize one or more trained a LOA may not resume SURTASS LFA authorized by a LOA issued under marine biologists qualified in sonar transmissions earlier than 15 §§ 216.106 of this chapter and 218.237, conducting at-sea marine mammal minutes after: no person in connection with the visual monitoring to conduct at-sea (i) All marine mammals have left the activities described in § 218.230 may: marine mammal visual monitoring area of the 2,000-yard LFA sonar (a) Violate, or fail to comply with, the training and qualify designated ship mitigation zone; and terms, conditions, and requirements of personnel to conduct at-sea visual (ii) There is no further detection of this subpart or a LOA issued under monitoring. Training will ensure quick any marine mammal within the 2,000- §§ 216.106 of this chapter and 218.237; and effective communication within the yard LFA sonar mitigation zone as (b) Take any marine mammal not command structure in order to facilitate determined by the visual, passive specified in such LOAs; implementation of protective measures acoustic, and active acoustic high (c) Take any marine mammal if they detect marine mammals and may frequency monitoring described in specified in such LOAs in any manner be accomplished either in-person, or via § 218.235. other than Level B harassment; video training. (2) [Reserved]

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(e) Ramp-up procedures for the high- exceed 180 dB re: 1 mPa rms at a (18.5 km) of any single OBIA during any frequency marine mammal monitoring distance of 1 km (0.5 nmi) seaward of year, naval units will obtain permission (HF/M3) sonar required under the outer perimeter of any Offshore from the appropriate designated § 218.235. (1) The Navy must ramp up Biologically Important Area (OBIA) Command authority prior to the HF/M3 sonar power level beginning designated in the Study Area for commencement of the activity. The at a maximum source sound pressure SURTASS LFA sonar in paragraph (f)(2) Navy will provide NMFS with level of 180 dB: re 1 mPa at 1 meter in of this section, or subsequently notification as soon as is practicable and 10-dB increments to operating levels identified through the Adaptive include the information (e.g., sonar over a period of no less than five Management process specified in hours) in its annual activity reports minutes: § 218.241, during the period specified. submitted to NMFS. (i) At least 30 minutes prior to any The boundaries and periods of such (iv) No activities with the SURTASS SURTASS LFA sonar transmissions; and OBIAs will be kept on file in NMFS’ LFA system will occur within territorial (ii) Anytime after the HF/M3 source Office of Protected Resources and on its seas of foreign nations, which are areas has been powered down for more than website at https:// from 0 up to 12 nmi from shore, two minutes. www.fisheries.noaa.gov/national/ (2) The Navy must not increase the marine-mammal-protection/incidental- depending on the distance that HF/M3 sound pressure level once a take-authorizations-military-readiness- individual nations claim; and marine mammal is detected; ramp-up activities. (v) No activities with the SURTASS may resume once marine mammals are LFA sonar system will occur in the no longer detected. (iii) No more than 25 percent of the authorized amount (transmission hours) waters of Penguin Bank, Hawaii (f) Geographic restrictions on the (defined as water depth of 600 ft (183 SURTASS LFA sonar sound field. (1) of SURTASS LFA sonar for training and testing will be conducted within 10 nmi m)), and ensonification of Hawaii state LFA sonar training and testing activities waters (out to 3 nmi) will not exceed must be conducted such that: (18.5 km) of any single OBIA during any 145 dB re: 1 mPa rms. (i) The received level of SURTASS year (no more than 124 hours in years LFA sonar transmissions will not 1–4 and 148 hours in years 5–7) unless (2) Offshore Biologically Important exceed 180 dB re: 1 mPa rms within 22 the following conditions are met: Areas (OBIAs) for marine mammals km (12 nmi) from any emergent land, Should national security present a (with specified periods) for SURTASS including offshore islands; requirement to conduct more than 25 LFA sonar training and testing activities (ii) The received level of SURTASS percent of authorized hours of include the following (Table 1 to LFA sonar transmissions will not SURTASS LFA sonar within 10 nmi paragraph (f)(2)):

TABLE 1 TO PARAGRAPH (f)(2)—OFFSHORE BIOLOGICALLY IMPORTANT AREAS (OBIAS)

OBIA name Ocean area Effective seasonal period

Main Hawaiian Islands ...... Central North Pacific ...... November to April. Northwestern Hawaiian Islands ...... Central North Pacific ...... December to April. Mariana Islands ...... Western North Pacific ...... February to April. Ryukyu-Philippines ...... Western North Pacific ...... January to April. Ogasawara Islands (Sperm Whale) ...... Western North Pacific ...... June to September. Ogasawara-Kazin Islands (Humpback Whale) ...... Western North Pacific ...... December to May. Honshu ...... Western North Pacific ...... January to May. Southeast Kamchatka ...... Western North Pacific ...... June to September. Gulf of Thailand ...... Eastern Indian Ocean ...... April to November. Western Australia (Blue Whale) ...... Eastern Indian Ocean ...... May to November. Western Australia (Humpback Whale) ...... Eastern Indian Ocean ...... May to December. Southern Bali ...... Eastern Indian Ocean ...... October to November. Swatch-of-No-Ground (SoNG) ...... Northern Bay of Bengal ...... Year-round. Sri Lanka ...... Eastern Indian Ocean ...... October to April.

(g) Minimization of additional harm 30 minutes after sunset). During training ramp-up requirements in § 216.234(e) of to live-stranded (or milling) mammals. and testing activities that employ this chapter. The Navy must consult the Notification SURTASS LFA sonar in the active (b) Monitoring under paragraph (a) of and Reporting Plan, which sets out the mode, the SURTASS vessels must have this section must: requirements for when live stranded Lookouts to maintain a topside watch (1) Commence at least 30 minutes marine mammals are reported in the with standard binoculars (7x) and with before the first SURTASS LFA sonar Study Area. The Stranding and the naked eye. If the lookout sights a training and testing transmission; Notification Plan is available at: https:// possible marine mammal, the lookout (2) Continue between transmission www.fisheries.noaa.gov/action/ will use big-eye binoculars (25x) to pings; and incidental-take-authorization-us-navy- confirm the sighting and potentially (3) Continue either for at least 15 operations-surveillance-towed-array- identify the marine mammal species. minutes after completion of the sensor-system-0. (2) Use the passive SURTASS sonar SURTASS LFA sonar training and § 218.235 Requirements for monitoring. component to detect vocalizing marine testing transmission, or, if marine mammals; and mammals are exhibiting unusual (a) The Navy must: (3) Use the HF/M3 sonar to locate and changes in behavioral patterns, until (1) Conduct visual monitoring from track marine mammals in relation to the behavior patterns return to normal or the ship’s bridge during all daylight SURTASS LFA sonar vessel and the conditions prevent continued hours (30 minutes before sunrise until LFA mitigation zone, subject to the observations.

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(c) The Navy must designate qualified NMFS as described in this paragraph § 218.238 Renewals and modifications of a on-site individuals to conduct the (b). Letter of Authorization. mitigation, monitoring, and reporting (c) The Navy will continue to assess (a) An LOA issued under §§ 216.106 activities specified in these regulations the data collected by its undersea arrays of this chapter and 218.237 for the and LOA issued under §§ 216.106 of and work toward making some portion activity identified in § 218.230 may be this chapter and 218.237. of that data, after appropriate security renewed or modified upon request by (d) The Navy must continue to assess reviews, available to scientists with the applicant, provided that: data from the Marine Mammal appropriate clearances. Any portions of (1) The planned specified activity and Monitoring Program and work toward the analyses conducted by these mitigation, monitoring, and reporting making some portion of that data, after scientists based on these data that are measures, as well as the anticipated appropriate security reviews, available determined to be unclassified after impacts, are the same as those described to scientists with appropriate appropriate security reviews will be and analyzed for the regulations in this clearances. Any portions of the analyses made publically available. subpart (excluding changes made conducted by these scientists based on pursuant to the adaptive management (d) The Navy must consult the provision in paragraph (c)(1) of this these data that are determined to be Notification and Reporting Plan, which unclassified after appropriate security section); and sets out notification, reporting, and (2) NMFS determines that the reviews will be made publically other requirements for when dead, available. mitigation, monitoring, and reporting injured, or live stranded marine measures required by the previous (e) The Navy must collect ambient mammals are reported in the Study noise data and will explore the LOA(s) were implemented. Area. The Stranding and Notification (b) For LOA modification or renewal feasibility of declassifying and archiving Plan is available at: https:// the ambient noise data for incorporation requests by the Navy that include www.fisheries.noaa.gov/action/ changes to the activity or to the into appropriate ocean noise budget incidental-take-authorization-us-navy- efforts. mitigation, monitoring, or reporting operations-surveillance-towed-array- measures (excluding changes made (f) The Navy must conduct all sensor-system-0. pursuant to the adaptive management monitoring required under LOAs. § 218.237 Letter of Authorization. provision in paragraph (c)(1) of this § 218.236 Requirements for reporting. section) that do not change the findings (a) To incidentally take marine made for the regulations or that do not (a) The Navy must submit classified mammals pursuant to these regulations, and unclassified annual training and result in more than a minor change in Navy must apply for and obtain a Letter the total estimated number of takes (or testing activity reports to the Director, of Authorization (LOA). Office of Protected Resources, NMFS, no distribution by species or stock or later than 90 days after the end of each (b) An LOA, unless suspended or years), NMFS may publish notification year covered by the LOA beginning on revoked, may be effective for a period of of a planned LOA in the Federal the date of effectiveness of a LOA. Each time not to exceed the expiration date Register, including the associated annual training and testing activity of these regulations. analysis of the change, and solicit report will include a summary of all (c) If an LOA expires prior to the public comment before issuing the LOA. active-mode training and testing expiration date of these regulations, (c) An LOA issued under §§ 216.106 activities completed during that year. At Navy may apply for and obtain a of this chapter and 218.237 may be a minimum, each classified training and renewal of the LOA. modified by NMFS under the following testing activity report must contain the (d) In the event of projected changes circumstances: (1) Adaptive management. After following information: to the activity or to mitigation and consulting with the Navy regarding the (1) Dates, times, and location of each monitoring measures required by an practicability of the modifications, vessel during each training and testing LOA (excluding changes made pursuant NMFS may modify (including adding or activity; to the adaptive management provision removing measures) the existing (2) Information on sonar of § 218.239), the Navy must apply for mitigation, monitoring, or reporting transmissions during each training and and obtain a modification of the LOA as measures if doing so creates a testing activity; described in § 218.238. reasonable likelihood of more (3) Results of the marine mammal (e) The LOA shall set forth: effectively accomplishing the goals of monitoring program specified in the (1) Permissible methods of incidental the mitigation and monitoring. LOA; and taking; (i) Possible sources of data that could (4) Estimates of the percentages of (2) Means of effecting the least contribute to the decision to modify the marine mammal species and stocks practicable adverse impact on the mitigation, monitoring, or reporting affected (both for the year and species, its habitat, and on the measures in an LOA include: cumulatively for each successive year) availability of the species for (A) Results from the Navy’s covered by the LOA. subsistence uses (i.e., mitigation); and monitoring from the previous year(s); (b) The seventh annual report must be (B) Results from other marine (3) Requirements for monitoring and prepared as a final comprehensive mammal and/or sound research or reporting. report, which will include information studies; or for the final year as well as the prior six (f) Issuance of the LOA will be based (C) Any information that reveals years of activities under the rule. This on a determination that the level of marine mammals may have been taken final comprehensive report must also taking will be consistent with the in a manner, extent, or number not contain an unclassified analysis of new findings made for the total taking authorized by the regulations in this passive sonar technologies and an allowable under these regulations. subpart or subsequent LOAs. assessment of whether such a system is (g) Notice of issuance or denial of an (ii) If, through adaptive management, feasible as an alternative to SURTASS LOA will be published in the Federal the modifications to the mitigation, LFA sonar, and be submitted to the Register within thirty days of a monitoring, or reporting measures are Director, Office of Protected Resources, determination. substantial, NMFS will publish a notice

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of planned LOA in the Federal Register species or stocks of marine mammals comment. Notice would be published in and solicit public comment. specified in LOAs issued pursuant to the Federal Register within thirty days (2) Emergencies. If NMFS determines §§ 216.106 of this chapter and 218.237, of the action. that an emergency exists that poses a an LOA may be modified without prior [FR Doc. 2019–16695 Filed 8–12–19; 8:45 am] significant risk to the well-being of the notice or opportunity for public BILLING CODE 3510–22–P

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