72312 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

DEPARTMENT OF COMMERCE Purpose of Regulatory Action • Activity limitations in certain areas These regulations, issued under the and times that are biologically National Oceanic and Atmospheric authority of the MMPA (16 U.S.C. 1361 important (e.g., for foraging or Administration et seq.), provide the framework for migration) for marine mammals; • Implementation of a Notification authorizing the take of marine mammals 50 CFR Part 218 and Reporting Plan (for dead or live incidental to the Navy’s training and stranded marine mammals); and testing activities (which qualify as [Docket No. 201020–0272] • Implementation of a robust military readiness activities) from the monitoring plan to improve our use of and other transducers, in- RIN 0648–BJ30 understanding of the environmental water detonations, and potential vessel effects resulting from the Navy training strikes based on Navy movement in the Taking and Importing Marine and testing activities. NWTT Study Area. The NWTT Study Mammals; Taking Marine Mammals Additionally, the rule includes an Area includes air and water space off Incidental to the U.S. Navy Training adaptive management component that the coast of Washington, Oregon, and and Testing Activities in the Northwest allows for timely modification of Northern California; in the Western Training and Testing (NWTT) Study mitigation or monitoring measures Behm Canal, Alaska; and portions of Area based on new information, when waters of the Strait of Juan de Fuca and appropriate. AGENCY: National Marine Fisheries Puget Sound, including Navy pierside Service (NMFS), National Oceanic and and harbor locations in Puget Sound Background Atmospheric Administration (NOAA), (see Figure 1–1 of the Navy’s The MMPA prohibits the ‘‘take’’ of Commerce. rulemaking/LOA application). marine mammals, with certain ACTION: Final rule; notification of NMFS received an application from exceptions. Sections 101(a)(5)(A) and issuance of Letters of Authorization. the Navy requesting seven-year (D) of the MMPA direct the Secretary of regulations and authorizations to Commerce (as delegated to NMFS) to SUMMARY: NMFS, upon request from the incidentally take individuals of multiple allow, upon request, the incidental, but U.S. Navy (Navy), issues these species of marine mammals (‘‘Navy’s not intentional, taking of small numbers regulations pursuant to the Marine rulemaking/LOA application’’ or of marine mammals by U.S. citizens Mammal Protection Act (MMPA) to ‘‘Navy’s application’’). Take is who engage in a specified activity (other govern the taking of marine mammals anticipated to occur by Level A than commercial fishing) within a incidental to the training and testing harassment and Level B harassment as specified geographical region if certain activities conducted in the Northwest well as a very small number of serious findings are made and either regulations Training and Testing (NWTT) Study injuries or mortalities incidental to the are issued or, if the taking is limited to Area. The Navy’s activities qualify as Navy’s training and testing activities. harassment, a notice of proposed military readiness activities pursuant to Section 101(a)(5)(A) of the MMPA (16 authorization is provided to the public the MMPA, as amended by the National U.S.C. 1371(a)(5)(A)) directs the for review and the opportunity to Defense Authorization Act for Fiscal Secretary of Commerce (as delegated to submit comments. Year 2004 (2004 NDAA). These NMFS) to allow, upon request, the An authorization for incidental regulations, which allow for the incidental, but not intentional taking of takings shall be granted if NMFS finds issuance of Letters of Authorization small numbers of marine mammals by that the taking will have a negligible (LOA) for the incidental take of marine U.S. citizens who engage in a specified impact on the species or stocks and will mammals during the described activities activity (other than commercial fishing) not have an unmitigable adverse impact and timeframes, prescribe the within a specified geographical region on the availability of the species or permissible methods of taking and other if, after notice and public comment, the stocks for taking for subsistence uses means of effecting the least practicable agency makes certain findings and (where relevant). Further, NMFS must adverse impact on marine mammal issues regulations that set forth prescribe the permissible methods of species and their habitat, and establish permissible methods of taking pursuant taking and other means of effecting the requirements pertaining to the to that activity, as well as monitoring least practicable adverse impact on the monitoring and reporting of such taking. and reporting requirements. Section affected species or stocks and their DATES: Effective from November 9, 2020 101(a)(5)(A) of the MMPA and the habitat, paying particular attention to to November 8, 2027. implementing regulations at 50 CFR part rookeries, mating grounds, and areas of 216, subpart I, provide the legal basis for similar significance, and on the ADDRESSES: A copy of the Navy’s issuing this final rule and the availability of the species or stocks for application, NMFS’ proposed and final subsequent LOAs. As directed by this taking for certain subsistence uses rules and subsequent LOAs for the legal authority, this final rule contains (referred to in this rule as ‘‘mitigation existing regulations, and other mitigation, monitoring, and reporting measures’’); and requirements supporting documents and documents requirements. pertaining to the monitoring and cited herein may be obtained online at: reporting of such takings. The MMPA www.fisheries.noaa.gov/national/ Summary of Major Provisions Within defines ‘‘take’’ to mean to harass, hunt, marine-mammal-protection/incidental- the Final Rule capture, or kill, or attempt to harass, take-authorizations-military-readiness- The following is a summary of the hunt, capture, or kill any marine activities. In case of problems accessing major provisions of this final rule mammal. The Analysis and Negligible these documents, please use the contact regarding the Navy’s activities. Major Impact Determination section below listed here (see FOR FURTHER provisions include, but are not limited discusses the definition of ‘‘negligible INFORMATION CONTACT). to: impact.’’ FOR FURTHER INFORMATION CONTACT: • The use of defined powerdown and The NDAA for Fiscal Year 2004 (2004 Leah Davis, Office of Protected shutdown zones (based on activity); NDAA) (Pub. L. 108–136) amended Resources, NMFS, (301) 427–8401. • Measures to reduce the likelihood section 101(a)(5) of the MMPA to SUPPLEMENTARY INFORMATION: of strikes; remove the ‘‘small numbers’’ and

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72313

‘‘specified geographical region’’ amendment to its application which the naval forces of the United States. provisions indicated above and incorporated new Southern Resident The Navy executes this responsibility in amended the definition of ‘‘harassment’’ killer whale offshore density part by training and testing at sea, often as applied to a ‘‘military readiness information, and on December 19, 2019, in designated operating areas (OPAREA) activity.’’ The definition of harassment the Navy submitted an amendment to its and testing and training ranges. The for military readiness activities (Section application which incorporated revised Navy must be able to access and utilize 3(18)(B) of the MMPA) is (i) Any act that testing activity numbers. On June 2, these areas and associated sea space and injures or has the significant potential to 2020, we published a notice of proposed air space in order to develop and injure a marine mammal or marine rulemaking (85 FR 33914) and requested maintain skills for conducting naval mammal stock in the wild (Level A comments and information related to operations. The Navy’s testing activities Harassment); or (ii) Any act that the Navy’s request for 45 days. All ensure naval forces are equipped with disturbs or is likely to disturb a marine comments received during the NOR and well-maintained systems that take mammal or marine mammal stock in the the proposed rulemaking comment advantage of the latest technological wild by causing disruption of natural periods were considered in this final advances. The Navy’s research and behavioral patterns, including, but not rule. Comments received on the acquisition community conducts limited to, migration, surfacing, nursing, proposed rule are addressed in this final military readiness activities that involve breeding, feeding, or sheltering, to a rule in the Comments and Responses testing. The Navy tests , aircraft, point where such behavioral patterns section. weapons, combat systems, sensors, and are abandoned or significantly altered The following types of training and related equipment, and conducts (Level B harassment). In addition, the testing, which are classified as military scientific research activities to achieve 2004 NDAA amended the MMPA as it readiness activities pursuant to the and maintain military readiness. relates to military readiness activities MMPA, as amended by the 2004 NDAA, The Navy has been conducting such that the least practicable adverse will be covered under the regulations training and testing activities in the impact analysis shall include and LOAs: Anti- warfare NWTT Study Area for decades, with consideration of personnel safety, (sonar and other transducers, some activities dating back to at least practicality of implementation, and underwater detonations), mine warfare the early 1900s. The tempo and types of impact on the effectiveness of the (sonar and other transducers, training and testing activities fluctuate military readiness activity. underwater detonations), surface because of the introduction of new More recently, Section 316 of the warfare (underwater detonations), and technologies, the evolving nature of NDAA for Fiscal Year 2019 (2019 other testing and training (sonar and international events, advances in NDAA) (Pub. L. 115–232), signed on other transducers). The activities will warfighting doctrine and procedures, August 13, 2018, amended the MMPA to not include pile driving/removal or use and changes in force structure (e.g., allow incidental take rules for military of air guns. organization of ships, , This would be the third time NMFS readiness activities under section aircraft, weapons, and personnel). Such has promulgated incidental take 101(a)(5)(A) to be issued for up to seven developments influence the frequency, regulations pursuant to the MMPA years. Prior to this amendment, all duration, intensity, and location of relating to similar military readiness incidental take rules under section required training and testing activities, activities in the NWTT Study Area. 101(a)(5)(A) were limited to five years. however the Navy’s planned activities Specifically, five-year regulations for the period of this rule will be largely Summary and Background of Request addressing training in the Northwest a continuation of ongoing activities. In On March 11, 2019, NMFS received Training Range Complex were first addition to ongoing activities, the Navy an application from the Navy for issued on November 9, 2010 (75 FR authorization to take marine mammals 69295; November 10, 2010) and five- is planning some new training activities by Level A harassment and Level B year regulations addressing testing in such as exercise—submarine harassment incidental to training and training and unmanned underwater the NUWC Keyport Range Complex 1 testing activities (which qualify as were issued on April 11, 2011 (76 FR vehicle training. The Navy is also military readiness activities) from the 20257; April 12, 2011). Regulations planning some new testing activities, use of sonar and other transducers and addressing both the training and testing including: At-sea sonar testing, Mine in-water detonations in the NWTT activities from the two previous separate Countermeasure and Neutralization Study Area over a seven-year period rules, Northwest Training and Testing testing, mine detection and beginning when the 2015—2020 (NWTT), were issued and were effective classification testing, kinetic energy authorization expires. In addition, the from November 9, 2015 through weapon testing, propulsion testing, Navy requested incidental take November 8, 2020 (80 FR 73555; undersea warfare testing, vessel authorization by serious injury or November 24, 2015). For this third signature evaluation, acoustic and mortality for up to three takes of large round of rulemaking, the activities the oceanographic research, and other 2 whales from vessel strikes over the Navy is planning to conduct are largely system testing, and simulant testing. seven-year period. We received revised a continuation of ongoing activities 1 applications on June 6, 2019 and June conducted over the past 10 years under Some of the activities included here are new to the 2020 NWTT FSEIS/OEIS, but are not new to the 21, 2019, which provided revisions in the previous rulemakings, with the Study Area. TORPEX—SUB activity was previously the take number estimates and vessel addition of some new training and analyzed in 2010 as part of the Sinking Exercise. strike analysis, and the Navy’s testing activities, as well as additional The Sinking Exercise is no longer conducted in the rulemaking/LOA application was found mitigation measures. NWTT Study Area and the TORPEX—SUB activity is now a separate activity included in the 2020 to be adequate and complete. On August The Navy’s mission is to organize, NWTT FSEIS/OEIS. Unmanned underwater vehicle 6, 2019 (84 FR 38225), we published a train, equip, and maintain combat-ready activity was analyzed in 2010 as a testing activity, notice of receipt (NOR) of application in naval forces capable of winning wars, but is now being included as a training activity. the Federal Register, requesting deterring aggression, and maintaining 2 Mine detection and classification testing was analyzed in 2010 in the Inland waters, but was not comments and information related to freedom of the seas. This mission is previously analyzed in the Offshore waters. Vessel the Navy’s request for 30 days. On mandated by Federal law (10 U.S.C. signature evaluation testing was analyzed in 2010 October 4, 2019, the Navy submitted an 8062), which requires the readiness of Continued

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72314 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

The Navy’s rulemaking/LOA Description of the Specified Activities aviation, and expeditionary warfare) application reflects the most up-to-date section (Tables 3 through 4). may train in some or all of these compilation of training and testing primary mission areas. The testing Geographical Region activities deemed necessary to community also categorizes most, but accomplish military readiness The NWTT Study Area is composed not all, of its testing activities under requirements. The types and numbers of of established maritime operating and these primary mission areas. A activities included in the rule account warning areas in the eastern North description of the sonar, munitions, for fluctuations in training and testing Pacific Ocean region, including areas of targets, systems, and other material used in order to meet evolving or emergent the Strait of Juan de Fuca, Puget Sound, during training and testing activities military readiness requirements. These and Western Behm Canal in within these primary mission areas is regulations cover training and testing southeastern Alaska. The Study Area provided in Appendix A (Navy activities that will occur for a seven-year includes air and water space within and Activities Descriptions) of the 2020 period following the expiration of the outside Washington state waters, within NWTT FSEIS/OEIS. current MMPA authorization for the Alaska state waters, and outside state The Navy describes and analyzes the NWTT Study Area, which expires on waters of Oregon and Northern effects of its activities within the 2020 November 8, 2020. California (see Figure 1 in the proposed NWTT FSEIS/OEIS. In its assessment, rule). The eastern boundary of the the Navy concluded that sonar and Description of the Specified Activity Offshore Area portion of the Study Area other transducers and in-water is 12 nautical miles (nmi) off the A detailed description of the specified detonations were the stressors most coastline for most of the Study Area, likely to result in impacts on marine activity was provided in our Federal including southern Washington, Register notice of proposed rulemaking mammals that could rise to the level of Oregon, and Northern California. The harassment as defined under the (85 FR 33914; June 2, 2020); please see Offshore Area includes the ocean all the that notice of proposed rulemaking or MMPA. Therefore, the Navy’s way to the coastline only along that part rulemaking/LOA application provides the Navy’s application for more of the Washington coast that lies information. Since publication of the the Navy’s assessment of potential beneath the airspace of W–237 and the effects from these stressors in terms of proposed rule, the Navy has made some Olympic Military Operations Area. The minor changes to its planned activities, the various warfare mission areas in Study Area includes four existing range which they would be conducted. Those all of which are in the form of complexes and facilities: The Northwest reductions and thereby have the effect mission areas include the following: Training Range Complex, the Keyport • Anti-submarine warfare (sonar and of reducing the impact of the activity. Range Complex, Carr Inlet Operations other transducers, underwater See the discussion of these changes Area, and the Southeast Alaska Acoustic detonations); below. In addition, since publication of Measurement Facility (Western Behm • expeditionary warfare; the proposed rule, additional mitigation Canal, Alaska). In addition to these • mine warfare (sonar and other measures have been added, which are range complexes, the Study Area also transducers, underwater detonations); discussed in detail in the Mitigation includes Navy pierside locations where • surface warfare (underwater Measures section of this rule. The Navy sonar maintenance and testing occurs as detonations); and has determined that acoustic and part of overhaul, modernization, • other (sonar and other transducers). explosive stressors are most likely to maintenance, and repair activities at The Navy’s training and testing result in impacts on marine mammals Naval Base Kitsap, Bremerton; Naval activities in air warfare and electronic that could rise to the level of Base Kitsap, Bangor; and Naval Station warfare do not involve sonar and other harassment, and NMFS concurs with Everett. Additional detail can be found transducers, underwater detonations, or this determination. Additional detail in Chapter 2 of the Navy’s rulemaking/ any other stressors that could result in regarding these activities is provided in LOA application. harassment, serious injury, or mortality Chapter 2 of the 2020 NWTT Final of marine mammals. Therefore, the Overview of Training and Primary Supplemental Environmental Impact activities in air warfare and electronic Mission Areas Statement (FSEIS)/Overseas EIS (OEIS) warfare are not discussed further in this (2020 NWTT FSEIS/OEIS) (https:// The Navy categorizes its at-sea rule, but are analyzed fully in the 2020 www.nwtteis.com) and in the Navy’s activities into functional warfare areas NWTT FSEIS/OEIS. Additional detail rulemaking/LOA application (https:// called primary mission areas. These regarding the primary mission areas was www.fisheries.noaa.gov/national/ activities generally fall into the provided in our Federal Register notice marine-mammal-protection/incidental- following eight primary mission areas: of proposed rulemaking (85 FR 33914; take-authorizations-military-readiness- Air warfare; amphibious warfare; anti- June 2, 2020); please see that notice of activities) and are summarized here. submarine warfare (ASW); electronic proposed rulemaking or the Navy’s warfare; expeditionary warfare; mine application for more information. Dates and Duration warfare (MIW); strike warfare; and surface warfare (SUW). The Navy’s Overview of Testing Activities Within The specified activities can occur at the NWTT Study Area any time during the seven-year period of planned activities for NWTT generally validity of the regulations, with the fall into the following six primary The Navy’s research and acquisition exception of the activity types and time mission areas: Air warfare; anti- community engages in a broad spectrum periods for which limitations have submarine warfare; electronic warfare; of testing activities in support of the explicitly been identified (see expeditionary warfare; mine warfare; Fleet. These activities include, but are Mitigation Measures section). The and surface warfare. Most activities not limited to, basic and applied planned number of training and testing addressed in the NWTT Study Area are scientific research and technology activities are described in the Detailed categorized under one of these primary development; testing, evaluation, and mission areas. Activities that do not fall maintenance of systems (, radar, and sonar) and platforms (surface ships, as a component to other activities, but is included within one of these areas are listed as in the list of new activities because it was not ‘‘other activities.’’ Each warfare submarines, and aircraft); and previously identified as an independent activity. community (surface, subsurface, acquisition of systems and platforms.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72315

The individual commands within the bins do not include the broadband characteristics of these and other research and acquisition community sounds produced incidental to vessel transducers, such as source level, beam include Naval Air Systems Command, and aircraft transits and weapons firing. width, directivity, and frequency, Naval Sea Systems Command, and Noise produced from vessel, aircraft, depend on the purpose of the source. Office of Naval Research. and weapons firing activities are not Higher frequencies can carry more carried forward because those activities information or provide more Description of Stressors were found to have de minimis or no information about objects off which they The Navy uses a variety of sensors, impacts, as stated above. reflect, but attenuate more rapidly. platforms, weapons, and other devices, The use of source classification bins Lower frequencies attenuate less including ones used to ensure the safety provides the following benefits: rapidly, so they may detect objects over • of Sailors and Marines, to meet its Provides the ability for new sensors a longer distance, but with less detail. mission. Training and testing with these or munitions to be covered under Additional detail regarding sound systems may introduce acoustic (sound) existing authorizations, as long as those sources and platforms and categories of energy or shock waves from explosives sources fall within the parameters of a acoustic stressors was provided in our into the environment. The following ‘‘bin;’’ • Federal Register notice of proposed subsections describe the acoustic and Improves efficiency of source rulemaking (85 FR 33914; June 2, 2020); explosive stressors for marine mammals utilization data collection and reporting please see that notice of proposed and their habitat (including prey requirements anticipated under the rulemaking or the Navy’s application for MMPA authorizations; species) within the NWTT Study Area. more information. • Ensures a conservative approach to Because of the complexity of analyzing Sonars and other transducers are sound propagation in the ocean all impact estimates, as all sources within a given class are modeled as the grouped into classes that share an environment, the Navy relied on attribute, such as frequency range or acoustic models in its environmental most impactful source (highest source level, longest duty cycle, or largest net purpose of use. As detailed below, analyses and rulemaking/LOA classes are further sorted by bins based application that considered sound explosive weight) within that bin; • Allows analyses to be conducted in on the frequency or bandwidth; source source characteristics and varying ocean a more efficient manner, without any level; and, when warranted, the conditions across the NWTT Study compromise of analytical results; and application in which the source would Area. Stressor/resource interactions that • Provides a framework to support be used. Unless stated otherwise, a were determined to have de minimis or the reallocation of source usage (hours/ reference distance of 1 meter (m) is used no impacts (e.g., vessel noise, aircraft explosives) between different source for sonar and other transducers. noise, weapons noise, and explosions in bins, as long as the total numbers of • Frequency of the non-impulsive air) were not carried forward for takes remain within the overall acoustic source: analysis in the Navy’s rulemaking/LOA analyzed and authorized limits. This Æ Low-frequency sources operate application. No Major Training flexibility is required to support below 1 kHz; Exercises (MTEs) or Sinking Exercise evolving Navy training and testing Æ Mid-frequency sources operate at (SINKEX) events are planned in the requirements, which are linked to real and above 1 kHz, up to and including NWTT Study Area. NMFS reviewed the world events. 10 kHz; Navy’s analysis and conclusions on de Æ High-frequency sources operate minimis sources and finds them Sonar and Other Transducers above 10 kHz, up to and including 100 complete and supportable. Active sonar and other transducers kHz; Acoustic stressors include acoustic emit non-impulsive sound waves into Æ Very-high-frequency sources signals emitted into the water for a the water to detect objects, navigate operate above 100 kHz but below 200 specific purpose, such as sonar, other safely, and communicate. Passive sonars kHz; transducers (devices that convert energy differ from active sound sources in that • Sound pressure level of the non- from one form to another—in this case, they do not emit acoustic signals; rather, into sound waves), as well as incidental impulsive source; they only receive acoustic information Æ sources of broadband sound produced about the environment, or listen. In this Greater than 160 decibels (dB) re 1 as a byproduct of vessel movement, rule, the terms sonar and other micro Pascal (mPa), but less than 180 dB aircraft transits, and use of weapons or re: 1 mPa; transducers will be used to indicate Æ other deployed objects. Explosives also active sound sources unless otherwise Equal to 180 dB re: 1 mPa and up produce broadband sound but are specified. to 200 dB re: 1 mPa; characterized separately from other The Navy employs a variety of sonars Æ Greater than 200 dB re: 1 mPa; acoustic sources due to their unique and other transducers to obtain and • Application in which the source hazardous characteristics. transmit information about the undersea would be used: Characteristics of each of these sound environment. Some examples are mid- Æ Sources with similar functions that sources are described in the following frequency hull-mounted sonars used to have similar characteristics, such as sections. find and track enemy submarines; high- pulse length (duration of each pulse), In order to better organize and frequency small object detection sonars beam pattern, and duty cycle. facilitate the analysis of approximately used to detect mines; high-frequency The bins used for classifying active 300 sources of underwater sound used underwater modems used to transfer sonars and transducers that are for training and testing by the Navy, data over short ranges; and extremely quantitatively analyzed in the NWTT including sonar and other transducers high-frequency (greater than 200 Study Area are shown in Table 1 below. and explosives, a series of source kilohertz (kHz)) Doppler sonars used for While general parameters or source classifications, or source bins, were navigation, like those used on characteristics are shown in the table, developed. The source classification commercial and private vessels. The actual source parameters are classified.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72316 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 1—SONAR AND OTHER TRANSDUCERS QUANTITATIVELY ANALYZED IN THE NWTT STUDY AREA

Source class category Bin Description

Low-Frequency (LF): Sources that produce signals less than 1 LF4 LF sources equal to 180 dB and up to 200 dB. kHz. LF5 LF sources less than 180 dB. Mid-Frequency (MF): Tactical and non-tactical sources that MF1 Hull-mounted surface ship sonars (e.g., AN/SQS–53C and AN/ produce signals between 1 and 10 kHz. SQS–60). MF1K Kingfisher mode associated with MF1 sonars. MF2 Hull-mounted surface ship sonars (e.g., AN/SQS–56). MF3 Hull-mounted submarine sonars (e.g., AN/BQQ–10). MF4 Helicopter-deployed dipping sonars (e.g., AN/AQS–22). MF5 Active acoustic sonobuoys (e.g., DICASS). MF6 Underwater sound signal devices (e.g., MK 84 SUS). MF9 Sources (equal to 180 dB and up to 200 dB) not otherwise binned. MF10 Active sources (greater than 160 dB, but less than 180 dB) not otherwise binned. MF11 Hull-mounted surface ship sonars with an active duty cycle great- er than 80 percent. MF12 Towed array surface ship sonars with an active duty cycle greater than 80 percent. High-Frequency (HF): Tactical and non-tactical sources that HF1 Hull-mounted submarine sonars (e.g., AN/BQQ–10). produce signals between 10 and 100 kHz. HF3 Other hull-mounted submarine sonars (classified). HF4 Mine detection, classification, and neutralization sonar (e.g., AN/ SQS–20). HF5 Active sources (greater than 200 dB) not otherwise binned. HF6 Sources (equal to 180 dB and up to 200 dB) not otherwise binned. HF8 Hull-mounted surface ship sonars (e.g., AN/SQS–61). HF9 Weapon-emulating sonar source. Very High-Frequency (VHF): Tactical and non-tactical sources VHF1 Active sources greater than 200 dB. that produce signals greater than 100 kHz but less than 200 VHF2 Active sources with a source level less than 200 dB. kHz. Anti-Submarine Warfare (ASW): Tactical sources (e.g., active ASW1 MF systems operating above 200 dB. sonobuoys and acoustic countermeasures systems) used dur- ASW2 MF Multistatic Active Coherent (e.g., AN/SSQ–125). ing ASW training and testing activities. ASW3 MF towed active acoustic countermeasure systems (e.g., AN/ ASW4 SLQ–25). ASW5 1 MF expendable active acoustic device countermeasures (e.g., MK 3). MF sonobuoys with high duty cycles. Torpedoes (TORP): Active acoustic signals produced by tor- TORP1 Lightweight torpedo (e.g., MK 46, MK 54, or Anti-Torpedo Tor- pedoes. pedo). TORP2 Heavyweight torpedo (e.g., MK 48). TORP3 Heavyweight torpedo (e.g., MK 48). Looking Sonar (FLS): Forward or upward looking object avoid- FLS2 HF sources with short pulse lengths, narrow beam widths, and fo- ance sonars used for ship navigation and safety. cused beam patterns. Acoustic Modems (M): Sources used to transmit data ...... M3 MF acoustic modems (greater than 190 dB). Synthetic Aperture Sonars (SAS): Sonars used to form high-reso- SAS2 HF SAS systems. lution images of the seafloor. Broadband Sound Sources (BB): Sonar systems with large fre- BB1 MF to HF mine countermeasure sonar. quency spectra, used for various purposes. BB2 HF to VHF mine countermeasure sonar. 1 Formerly ASW2 in the 2015–2020 (Phase II) rulemaking.

Explosives The near-instantaneous rise from (TNT), accounts for the first two ambient to an extremely high peak parameters. The effects of these factors This section describes the pressure is what makes an explosive are explained in Appendix D (Acoustic characteristics of explosions during shock wave potentially damaging. and Explosive Concepts) of the 2020 naval training and testing. The activities Farther from an explosive, the peak NWTT FSEIS/OEIS. The activities analyzed in the Navy’s rulemaking/LOA pressures decay and the explosive analyzed in the Navy’s rulemaking/LOA application that use explosives are waves propagate as an impulsive, application and this final rule that use described in additional detail in broadband sound. Several parameters explosives are described in further Appendix A (Training and Testing influence the effect of an explosive: The detail in Appendix A (Navy Activities Activities Descriptions) of the 2020 weight of the explosive in the warhead, Descriptions) of the 2020 NWTT FSEIS/ NWTT FSEIS/OEIS. Explanations of the the type of explosive material, the OEIS. Explanations of the terminology terminology and metrics used when boundaries and characteristics of the and metrics used when describing describing explosives in the Navy’s rule propagation medium, and, in water, the explosives are provided in Appendix D making/LOA application are also in detonation depth and the depth of the (Acoustic and Explosive Concepts) of Appendix H (Acoustic and Explosive receiver (i.e., marine mammal). The net the 2020 NWTT FSEIS/OEIS. Concepts) of the 2020 NWTT FSEIS/ explosive weight, which is the explosive Explosive detonations during training OEIS. power of a charge expressed as the and testing activities are associated with equivalent weight of trinitrotoluene high-explosive munitions, including,

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72317

but not limited to, bombs, missiles, would occur in waters 3 nmi or greater October 1 through June 30. naval gun shells, torpedoes, mines, from shore in the Quinault Range Site Additionally, within 20 nmi from shore demolition charges, and explosive (outside the Olympic Coast National in the Marine Species Coastal Mitigation sonobuoys. Explosive detonations Marine Sanctuary), or 12 nmi or greater Area, the Navy will not exceed 60 E4 during training and testing involving the from shore elsewhere in the Offshore and 9 E7 explosives over seven years, use of high-explosive munitions Area, and will not occur off the coast of from October 1 through June 30. Finally, (including bombs, missiles, and naval California. Since publication of the to the maximum extent practical, the gun shells) could occur in the air or near proposed rule, the Navy has agreed that Navy will conduct explosive Mine the water’s surface. Explosive it will conduct explosive Mine Countermeasure and Neutralization detonations associated with torpedoes Countermeasure and Neutralization Testing from July 1 through September and explosive sonobuoys would occur testing in daylight hours only, and in 30 when operating within 20 nmi from in the water column; mines and Beaufort Sea state number 3 conditions demolition charges could be detonated or less. Two of the three events would shore in the Marine Species Coastal in the water column or on the ocean involve the use of explosives, and Mitigation Area. In order to better bottom. Most detonations will occur in would typically occur in water depths organize and facilitate the analysis of waters greater than 200 ft in depth, and shallower than 1,000 ft. The two multi- explosives used by the Navy during greater than 50 nmi from shore, with the day events (1–10 days per event) would training and testing that could detonate exception of Mine Countermeasure and include up to 36 E4 explosives (>2.5–5 in water or at the water surface, Neutralization testing planned in the lb net explosive weight) and 5 E7 explosive classification bins were Offshore Area, and existing mine explosives (>20–60 lb net explosive developed. The use of explosive warfare training areas in Inland Waters weight). Use of E7 explosives would classification bins provides the same (i.e., Crescent Harbor and Hood Canal occur greater than 6 nmi from shore. benefits as described for acoustic source Explosive Ordnance Disposal Training Since publication of the proposed rule, classification bins discussed above and Ranges). Mine countermeasure and the Navy has agreed that, within 20 nmi in Section 1.4.1 (Acoustic Stressors) of neutralization testing is a new planned from shore in the Marine Species the Navy’s rulemaking/LOA application. testing activity that would occur closer Coastal Mitigation Area, the Navy will Explosives detonated in water are to shore than other in-water explosive conduct no more than one Mine binned by net explosive weight. The activities analyzed in the 2015 NWTT Countermeasure and Neutralization Final EIS/OEIS for the Offshore Area of testing event annually, not to exceed the bins of explosives in the NWTT Study the NWTT Study Area. This activity use of 20 E4 and 3 E7 explosives, from Area are shown in Table 2 below.

TABLE 2—EXPLOSIVES ANALYZED IN THE NWTT STUDY AREA

Net explosive Bin weight Example explosive source (lb)

E1 ...... 0.1–0.25 Medium-caliber projectiles. E2 ...... >0.25–0.5 Medium-caliber projectiles. E3 ...... >0.5–2.5 Explosive Ordnance Disposal Mine Neutralization. E4 ...... >2.5–5 Mine Countermeasure and Neutralization. E5 ...... >5–10 Large-caliber projectile. E7 ...... >20–60 Mine Countermeasure and Neutralization. E8 ...... >60–100 Lightweight torpedo. E10 ...... >250–500 1,000 lb bomb. E11 ...... >500–650 Heavyweight torpedo.

Propagation of explosive pressure When explosive ordnance (e.g., bomb or moves efficiently through the seawater. waves in water is highly dependent on ) detonates, fragments of the Because the ranges to mortality and environmental characteristics such as weapon are thrown at high-velocity injury due to exposure to the blast wave , bottom type, water depth, from the detonation point, which can are likely to far exceed the zone where temperature, and salinity, which affect injure or kill marine mammals if they fragments could injure or kill an animal, how the pressure waves are reflected, are struck. These fragments may be of the thresholds and associated ranges for refracted, or scattered; the potential for variable size and are ejected at assessing the likelihood of mortality and reverberation; and interference due to supersonic speed from the detonation. injury from a blast, which are also used multi-path propagation. In addition, The casing fragments will be ejected at to inform mitigation zones, are assumed absorption greatly affects the distance velocities much greater than debris from to encompass risk due to fragmentation. over which higher-frequency any target due to the proximity of the Other Stressor—Vessel Strike components of explosive broadband casing to the explosive material. Risk of noise can propagate. Appendix D fragment injury reduces exponentially Vessel strikes are not specific to any (Acoustic and Explosive Concepts) of with distance as the fragment density is particular training or testing activity, the 2020 NWTT FSEIS/OEIS explains reduced. Fragments underwater tend to but rather a potential, limited, sporadic, the characteristics of explosive be larger than fragments produced by in- and incidental result of Navy vessel detonations and how the above factors air explosions (Swisdak and Montaro, movement within the NWTT Study affect the propagation of explosive 1992). Underwater, the friction of the Area. Navy vessels transit at speeds that energy in the water. water would quickly slow these are optimal for fuel conservation or to Marine mammals could be exposed to fragments to a point where they no meet training and testing requirements. fragments from underwater explosions longer pose a threat. Opposingly, the Should a vessel strike occur, it would associated with the specified activities. blast wave from an explosive detonation likely result in incidental take from

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72318 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

serious injury and/or mortality and, Training prepares Navy personnel to be then the maximum total that could accordingly, for the purposes of the proficient in safely operating and occur over seven years. When a range of analysis we assume that any authorized maintaining equipment, weapons, and annual activities is provided, the ship strike would result in serious systems to conduct assigned missions. maximum number is analyzed. The injury or mortality. Information on Navy Navy research develops new science maximum number of activities may vessel movement is provided in the and technology followed by concept occur during some years, but not others, Vessel Movement section of this rule. testing relevant to future Navy needs. as several activities—Torpedo Exercise- Additional detail on vessel strike was The training and testing activities that Submarine Training, Tracking Exercise- the Navy plans to conduct in the NWTT provided in our Federal Register notice Helicopter Training, Civilian Port Study Area are summarized in Table 3 of proposed rulemaking (85 FR 33914; Defense- Homeland Security Anti- June 2, 2020); please see that notice of (training) and Table 4 (testing). The tables are organized according to Terrorism/Force Protection Training, proposed rulemaking or the Navy’s Bomb Exercise Training, and Missile application for more information. primary mission areas and include the activity name, associated stressor(s), Exercise Training—do not occur every Detailed Description of Specified description of the activity, sound source year, and other activities may occur Activities bin, the locations of those activities in every year, but less frequently than the Planned Training and Testing Activities the NWTT Study Area, and the number maximum annual total. However, to of activities. For further information conduct a conservative analysis, NMFS The Navy’s Operational Commands regarding the primary platform used analyzed the maximum times these and various System Commands have (e.g., ship or aircraft type) see Appendix activities could occur over one year and identified activity levels that are needed A (Training and Testing Activities seven years, with the assumption that in the NWTT Study Area to ensure Descriptions) of the 2020 NWTT FSEIS/ this number of activities would be naval forces have sufficient training, OEIS. representative of the annual and seven- maintenance, and new technology to This section indicates the number of year activity totals. meet Navy missions in the Northwest. activities that could occur each year and TABLE 3—TRAINING ACTIVITIES ANALYZED FOR THE SEVEN-YEAR PERIOD IN THE NWTT STUDY AREA

7-Year Typical Annual number of number Stressor category Activity Description duration of Source bin Location events of event events

Anti-Submarine Warfare

Acoustic; Explosive ..... Torpedo Exercise— Submarine crews search for, track, and detect 8 hours ...... TORP2 ...... Offshore Area >12 nmi 0–2 5 Submarine submarines. Event would include one MK–48 from land. (TORPEX—Sub). torpedo used during this event. Acoustic ...... Tracking Exercise –Heli- Helicopter crews search for, track, and detect 2–4 hours .. MF4, MF5 Offshore Area >12 nmi 0–2 5 copter (TRACKEX— submarines. from land. Helo). Acoustic ...... Tracking Exercise— crews search for, track, 2–8 hours .. ASW2, Offshore Area >12 nmi 373 2,611 Maritime Patrol Air- and detect submarines. ASW5, from land. craft (TRACKEX— MF5, MPA). TORP1. Acoustic ...... Tracking Exercise Surface ship crews search for, track, and de- 2–4 hours .. ASW3, Offshore Area ...... 62 434 –Ship (TRACKEX— tect submarines. MF1, Ship). MF11. Acoustic ...... Tracking Exercise— Submarine crews search for, track, and detect 8 hours ...... HF1, MF3 .. Offshore Area ...... 75–100 595 Submarine submarines. (TRACKEX—Sub).

Mine Warfare

Acoustic ...... Civilian Port Defense— Maritime security personnel train to protect ci- Multiple HF4, SAS2 Inland Waters ...... 0–1 5 Homeland Security vilian ports and harbors against enemy ef- days. Anti-Terrorism/Force forts to interfere with access to those ports.. Protection Exercises. Explosive ...... Mine Neutralization— Personnel disable threat mines using explosive Up to 4 E3 ...... Crescent Harbor EOD 1 6 1 42 Explosive Ordnance charges. hours. Training Range, Disposal (EOD). Hood Canal EOD Training Range.

Surface Warfare

Explosive ...... Bombing Exercise (Air- Fixed-wing aircrews deliver bombs against sur- 1 hour ...... E10 ...... Offshore Area (W–237) 0–2 (counts only the 5 to-Surface)(BOMBEX face targets. > 50 nmi from land. explosive events) [A–S]). Explosive ...... Gunnery Exercise (Sur- Surface ship crews fire large- and medium-cal- Up to 3 E1, E2, E5 Offshore Area > 50 nmi 1 34 (counts only the 1 238 face-to-Surface)— iber guns at surface targets.. hours. from land. explosive events) Ship (GUNEX [S– S]—Ship). Explosive ...... Missile Exercise (Air-to- Fixed-wing aircrews simulate firing precision- 2 hours ...... E10 ...... Offshore Area (W–237) 0–2 5 Surface)(MISSILEX guided missiles, using captive air training > 50 nmi from land. [A–S]). missiles (CATMs) against surface targets. Some activities include firing a missile with a high-explosive (HE) warhead..

Other Training

Acoustic ...... Submarine Sonar Main- Maintenance of submarine sonar and other Up to 1 LF5, MF3, NBK Bangor, NBK 26 182 tenance. system checks are conducted pierside or at hour. HF1. Bremerton, and Off- sea.. shore Area >12 nmi from land. Acoustic ...... Surface Ship Sonar Maintenance of surface ship sonar and other Up to 4 MF1 ...... NBK Bremerton, NS 25 175 Maintenance. system checks are conducted pierside or at hours. Everett, and Offshore sea.. Area >12 nmi from land.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72319

TABLE 3—TRAINING ACTIVITIES ANALYZED FOR THE SEVEN-YEAR PERIOD IN THE NWTT STUDY AREA—Continued

7-Year Typical Annual number of number Stressor category Activity Description duration of Source bin Location events of event events

Acoustic ...... Unmanned Underwater Unmanned underwater vehicle certification in- Up to 24 FLS2, M3 .. Inland Waters, Offshore 60 420 Vehicle Training. volves training with unmanned platforms to hours. Area. ensure submarine crew proficiency. Tactical development involves training with various payloads for multiple purposes to ensure that the systems can be employed effectively in an operational environment.. 1 These activities have been reduced since publication of the proposed rule.

TABLE 4—TESTING ACTIVITIES ANALYZED FOR THE SEVEN-YEAR PERIOD IN THE NWTT STUDY AREA

7-Year Typical Annual number of number Stressor category Activity Description duration Source bin Location events of events

Naval Sea Systems Command Testing Activities Anti-Submarine Warfare

Acoustic ...... Anti-Submarine War- Ships and their supporting platforms (rotary- 4–8 hours ASW1, Offshore Area ...... 44 308 fare Testing. wing aircraft and unmanned aerial systems) of active ASW2, detect, localize, and prosecute submarines. sonar ASW3, use. ASW5, MF1K, MF4, MF5, MF10, MF11, MF12, TORP1. Acoustic ...... At-Sea Sonar Testing .. At-sea testing to ensure systems are fully func- From 4 ASW3, Offshore Area ...... 4 28 tional in an open ocean environment.. hours to HF1, 11 days. HF5, M3, MF3,. ASW3, Inland Waters (DBRC) 4–6 34 HF5, TORP1. Acoustic ...... Countermeasure Test- Countermeasure testing involves the testing of From 4 ASW3, Offshore Area (QRS) ... 14 98 ing. systems that will detect, localize, and track hours to ASW4, incoming weapons, including marine vessel 6 days. HF8, targets. Countermeasures may be systems MF1, to obscure the vessel’s location or systems TORP2. to rapidly detect, track, and counter incoming ASW3, Inland Waters (DBRC, 29 203 threats. Testing includes surface ship tor- ASW4. Keyport Range Site). pedo defense systems and marine vessel ASW4 ...... Western Behm Canal, 1 5 stopping payloads. AK. Acoustic ...... Pierside-Sonar Testing Pierside testing to ensure systems are fully Up to 3 ASW3, Inland Waters (NS 88–99 635 functional in a controlled pierside environ- weeks. HF3, Everett, NBK Bangor, ment prior to at-sea test activities. MF1, NBK Bremerton). MF2, MF3, MF9, MF10, MF12. Acoustic ...... Submarine Sonar Test- Pierside, moored, and underway testing of sub- Up to 3 HF6, MF9 .. Western Behm Canal, 1–2 10 ing/Maintenance. marine systems occurs periodically following weeks. AK. major maintenance periods and for routine maintenance. Acoustic; Explosive ..... Torpedo (Explosive) Air, surface, or submarine crews employ explo- 1–2 hours E8, E11, Offshore Area> 50 nmi 4 28 Testing. sive and non-explosive torpedoes against ar- during ASW3, from land. tificial targets. daylight HF1, only. HF6, MF1, MF3, MF4, MF5, MF6, TORP1, TORP2. Acoustic ...... Torpedo (Non-explo- Air, surface, or submarine crews employ non- Up to 2 ASW3, Offshore Area ...... 22 154 sive) Testing. explosive torpedoes against targets, sub- weeks. ASW4, marines, or surface vessels.. HF1, HF5, HF6, MF1, MF3, MF4, MF5, MF6, MF9, MF10, TORP1, TORP2. HF6, LF4, Inland Waters (DBRC) 61 427 TORP1, TORP2, TORP3.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72320 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 4—TESTING ACTIVITIES ANALYZED FOR THE SEVEN-YEAR PERIOD IN THE NWTT STUDY AREA—Continued

7-Year Typical Annual number of number Stressor category Activity Description duration Source bin Location events of events

Mine Warfare

Acoustic; Explosive ..... Mine Countermeasure Air, surface, and subsurface vessels neutralize 1–10 days E4, E7, Offshore Area ...... 1 2 1 6 and Neutralization threat mines and mine-like objects.. HF4. Testing. HF4 ...... Inland Waters ...... 3 13 Acoustic ...... Mine Detection and Air, surface, and subsurface vessels and sys- Up to 24 BB1, BB2, Offshore Area (QRS) ... 1 7 Classification Testing. tems detect and classify mines and mine-like days. LF4. objects. Vessels also assess their potential BB1, BB2, Inland Waters (DBRC, 42 294 susceptibility to mines and mine-like objects.. HF4, LF4. Keyport Range Site).

Unmanned Systems

Acoustic ...... Unmanned Underwater Testing involves the production or upgrade of Typically 1– FLS2, HF5, Offshore Area (QRS) ... 38–39 269 Vehicle Testing. unmanned underwater vehicles. This may in- 2 days, TORP1, clude testing of mission capabilities (e.g., up to VHF1. mine detection), evaluating the basic func- multiple DS3, FLS2, Inland Waters (DBRC, 371–379 2,615 tions of individual platforms, or conducting months. HF5, Keyport Range Site, complex events with multiple vehicles.. HF9, M3, Carr Inlet). SAS2, VHF1, TORP1.

Vessel Evaluation

Acoustic ...... Undersea Warfare Ships demonstrate capability of counter- Up to 10 ASW3, Offshore Area ...... 1–12 27 Testing. measure systems and underwater surveil- days. ASW4, lance, weapons engagement, and commu- HF4, nications systems. This tests ships’ ability to MF1, detect, track, and engage undersea targets.. MF4, MF5, MF6, MF9, TORP1, TORP2.

Other Testing

Acoustic ...... Acoustic and Oceano- Research using active transmissions from Up to 14 LF4, MF9 .. Offshore Area (QRS) ... 1 7 graphic Research. sources deployed from ships, aircraft, and days. Inland Waters (DBRC, 3 21 unmanned underwater vehicles. Research Keyport Range Site). sources can be used as proxies for current and future Navy systems.. Acoustic ...... Acoustic Component Various surface vessels, moored equipment, 1 day to HF3, HF6, Western Behm Canal, 13–18 99 Testing. and materials are tested to evaluate perform- multiple LF5, MF9. AK. ance in the marine environment. months. Acoustic ...... Cold Water Support ..... Fleet training for divers in a cold water environ- 8 hours ...... HF6 ...... Inland Waters (Keyport 4 28 ment, and other diver training related to Navy Range Site, DBRC, divers supporting range/test site operations Carr Inlet). and maintenance.. Western Behm Canal, 1 7 AK. Acoustic ...... Post-Refit Sea Trial ..... Following periodic maintenance periods or re- 8 hours ...... HF9, M3, Inland Waters (DBRC) 30 210 pairs, sea trials are conducted to evaluate MF10. submarine propulsion, sonar systems, and other mechanical tests.. Acoustic ...... Semi-Stationary Equip- Semi-stationary equipment (e.g., ) From 10 HF6, HF9, Inland Waters (DBRC, 120 840 ment Testing. is deployed to determine functionality.. minutes LF4, Keyport Range Site). to mul- MF9, tiple days. VHF2. HF6, HF9 .. Western Behm Canal, 2–3 12 AK.

Naval Air Systems Command Testing Activities Anti-Submarine Warfare

Acoustic; Explosive ..... Tracking Test—Mari- The test evaluates the sensors and systems 4–8 flight E1, E3, Offshore Area ...... 8 56 time Patrol Aircraft. used by maritime patrol aircraft to detect and hours. ASW2, track submarines and to ensure that aircraft ASW5, systems used to deploy the tracking systems MF5, perform to specifications and meet oper- MF6. ational requirements.. 1 In the proposed rule, NMFS analyzed three events annually, and 15 events over the seven-year period; however, only two of the three annual events include sonar and/or explosives. The third annual event does not have acoustic components, and therefore, is not included here in the final rule. Additionally, the seven-year number of events has been reduced since publication of the proposed rule.

Summary of Acoustic and Explosive testing activities over a seven-year (HF)) that could occur over seven years Sources Analyzed for Training and period in the NWTT Study Area that under the planned training activities. Testing were analyzed in the Navy’s Acoustic source bin use in the proposed rulemaking/LOA application and by activities will vary annually. The seven- Tables 5 through 8 show the acoustic NMFS through the rulemaking process. year totals for the planned training and explosive source classes, bins, and Table 5 describes the acoustic source activities take into account that annual quantities used in either hours or counts classes (i.e., low-frequency (LF), mid- variability. associated with the Navy’s training and frequency (MF), and high-frequency

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72321

TABLE 5—ACOUSTIC SOURCE CLASSES ANALYZED AND USAGE FOR SEVEN-YEAR PERIOD FOR TRAINING ACTIVITIES IN THE NWTT STUDY AREA

Source class category Bin Description Unit 1 Annual 7-year total

Low-Frequency (LF): Sources that produce LF5 LF sources less than 180 dB ...... H 1 5 signals less than 1 kHz. Mid-Frequency (MF): Tactical and non-tactical MF1 Hull-mounted surface ship sonars (e.g., AN/ H 164 1,148 sources that produce signals between 1 SQS–53C and AN/SQS–61). and 10 kHz. MF3 Hull-mounted submarine sonars (e.g., AN/ H 70 490 BQQ–10). MF4 Helicopter-deployed dipping sonars (e.g., AN/ H 0–1 1 AQS–22 and AN/AQS–13). MF5 Active acoustic sonobuoys (e.g., DICASS) ..... C 918–926 6,443 MF11 Hull-mounted surface ship sonars with an ac- H 16 112 tive duty cycle greater than 80%. High-Frequency (HF): Tactical and non-tac- HF1 Hull-mounted submarine sonars (e.g., AN/ H 48 336 tical sources that produce signals between BQQ–10). 10 and 100 kHz. HF4 Mine detection, classification, and neutraliza- H 0–65 269 tion sonar (e.g., AN/SQS–20). Anti-Submarine Warfare (ASW): Tactical ASW2 MF Multistatic Active Coherent sonobuoy C 350 2,450 sources (e.g., active sonobuoys and acous- (e.g., AN/SSQ–125). tic countermeasures systems) used during ASW training and testing activities. ASW3 MF towed active acoustic countermeasure H 86 602 systems (e.g., AN/SLQ–25). ASW5 MF sonobuoys with high duty cycles ...... H 50 350 Torpedoes (TORP): Source classes associ- TORP1 Lightweight torpedo (e.g., MK 46, MK 54, or C 16 112 ated with the active acoustic signals pro- Anti-Torpedo Torpedo). duced by torpedoes. TORP2 Heavyweight torpedo (e.g., MK 48) ...... C 0–2 5 Forward Looking Sonar (FLS): Forward or up- FLS2 HF sources with short pulse lengths, narrow H 240 1,680 ward looking object avoidance sonars used beam widths, and focused beam patterns. for ship navigation and safety. Acoustic Modems (M): Systems used to trans- M3 MF acoustic modems (greater than 190 dB) .. H 30 210 mit data through the water. Synthetic Aperture Sonars (SAS): Sonars in SAS2 HF SAS systems ...... H 0–561 2,353 which active acoustic signals are post-proc- essed to form high-resolution images of the seafloor. 1 H = hours; C = count.

Table 6 describes the acoustic source testing activities. Acoustic source bin planned testing activities take into classes and numbers that could occur use in the planned activities would vary account that annual variability. over seven years under the planned annually. The seven-year totals for the

TABLE 6—ACOUSTIC SOURCE CLASSES ANALYZED AND USAGE FOR SEVEN-YEAR PERIOD FOR TESTING ACTIVITIES IN THE NWTT STUDY AREA

Source class category Bin Description Unit 1 Annual 7-year total

Low-Frequency (LF): Sources that produce LF4 LF sources equal to 180 dB and up to 200 dB H 177 1,239 signals less than 1 kHz. LF5 LF sources less than 180 dB ...... H 0–18 23 Mid-Frequency (MF): Tactical and non-tactical MF1 Hull-mounted surface ship sonars (e.g., AN/ H 20–169 398 sources that produce signals between 1 SQS–53C and AN/SQS–61). and 10 kHz. MF1K Kingfisher mode associated with MF1 sonars H 48 336 MF2 Hull-mounted surface ship sonars (e.g., AN/ H 32 224 SQS–56). MF3 Hull-mounted submarine sonars (e.g., AN/ H 34–36 239 BQQ–10). MF4 Helicopter-deployed dipping sonars (e.g., AN/ H 41–50 298 AQS–22 and AN/AQS–13). MF5 Active acoustic sonobuoys (e.g., DICASS) ..... C 300–673 2,782 MF6 Active underwater sound signal devices (e.g., C 60–232 744 MK 84 SUS). MF9 Active sources (equal to 180 dB and up to H 644–959 5,086 200 dB) not otherwise binned. MF10 Active sources (greater than 160 dB, but less H 886 6,197 than 180 dB) not otherwise binned.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72322 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 6—ACOUSTIC SOURCE CLASSES ANALYZED AND USAGE FOR SEVEN-YEAR PERIOD FOR TESTING ACTIVITIES IN THE NWTT STUDY AREA—Continued

Source class category Bin Description Unit 1 Annual 7-year total

MF11 Hull-mounted surface ship sonars with an ac- H 48 336 tive duty cycle greater than 80 percent. MF12 Towed array surface ship sonars with an ac- H 100 700 tive duty cycle greater than 80 percent. High-Frequency (HF): Tactical and non-tac- HF1 Hull-mounted submarine sonars (e.g., AN/ H 10 68 tical sources that produce signals between BQQ–10). 10 and 100 kHz. HF3 Other hull-mounted submarine sonars (classi- H 1–19 30 fied). HF4 Mine detection, classification, and neutraliza- H 1,860–1,868 11,235 tion sonar (e.g., AN/SQS–20). HF5 Active sources (greater than 200 dB) not oth- H 352–400 2,608 erwise binned. HF6 Active sources (equal to 180 dB and up to H 1,705–1,865 12,377 200 dB) not otherwise binned. HF8 Hull-mounted surface ship sonars (e.g., AN/ H 24 168 SQS–61). HF9 Weapon emulating sonar source ...... H 257 1,772 Very High-Frequency (VHF): Tactical and non- VHF1 Very high frequency sources greater than 200 H 320 2,240 tactical sources that produce signals greater dB. than 100 kHz but less than 200 kHz. VHF2 Active sources with a frequency greater than H 135 945 100 kHz, up to 200 kHz with a source level less than 200 dB. Anti-Submarine Warfare (ASW): Tactical ASW1 MF systems operating above 200 dB ...... H 80 560 sources (e.g., active sonobuoys and acous- tic countermeasures systems) used during ASW training and testing activities. ASW2 MF systems operating above 200 dB ...... C 240 1,680 ASW3 MF towed active acoustic countermeasure H 487–1,015 4,091 systems (e.g., AN/SLQ–25). ASW4 MF expendable active acoustic device coun- C 1,349–1,389 9,442 termeasures (e.g., MK 3). ASW5 MF sonobuoys with high duty cycles ...... H 80 560 Torpedoes (TORP): Source classes associ- TORP1 Lightweight torpedo (e.g., MK 46, MK 54, or C 298–360 2,258 ated with the active acoustic signals pro- Anti-Torpedo Torpedo). duced by torpedoes. TORP2 Heavyweight torpedo (e.g., MK 48) ...... C 332–372 2,324 TORP3 Heavyweight torpedo test (e.g., MK 48) ...... C 6 42 Forward Looking Sonar (FLS): Forward or up- FLS2 HF sources with short pulse lengths, narrow H 24 168 ward looking object avoidance sonars used beam widths, and focused beam patterns. for ship navigation and safety. Acoustic Modems (M): Systems used to trans- M3 MF acoustic modems (greater than 190 dB) .. H 1,088 7,616 mit data through the water. Synthetic Aperture Sonars (SAS): Sonars in SAS2 HF SAS systems ...... H 1,312 9,184 which active acoustic signals are post-proc- essed to form high-resolution images of the seafloor. Broadband Sound Sources (BB): Sonar sys- BB1 MF to HF mine countermeasure sonar ...... H 48 336 tems with large frequency spectra, used for various purposes. BB2 HF to VHF mine countermeasure sonar ...... H 48 336 1 H = hours; C = count.

Table 7 describes the number of in- activities. Under the planned activities, training activities take into account that water explosives that could be used in bin use will vary annually, and the annual variability. any year under the planned training seven-year totals for the planned

TABLE 7—EXPLOSIVE SOURCE CLASS BINS ANALYZED AND NUMBER OF DETONATIONS USED FOR SEVEN-YEAR PERIOD FOR TRAINING ACTIVITIES IN THE NWTT STUDY AREA

Net explosive Bin Example explosive source Annual 3 7-year total weight 1 (lb) 2

E1 ...... 0.1–0.25 Medium-caliber projectiles...... 60–120 672 E2 ...... >0.25–0.5 Medium-caliber projectiles...... 65–130 728 E3 ...... >0.5–2.5 Explosive Ordnance Disposal Mine Neutralization ...... 6 42 E5 ...... >5–10 Large-caliber projectile...... 56–112 628

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72323

TABLE 7—EXPLOSIVE SOURCE CLASS BINS ANALYZED AND NUMBER OF DETONATIONS USED FOR SEVEN-YEAR PERIOD FOR TRAINING ACTIVITIES IN THE NWTT STUDY AREA—Continued

Net explosive Bin Example explosive source Annual 3 7-year total weight 1 (lb) 2

E10 ...... >250–500 1,000 lb bomb ...... 0–4 9 1 Net explosive weight refers to the equivalent amount of TNT. The actual weight of a munition may be larger due to other components. 2 lb = pound(s). 3 Annual Nominal—Max. Two values indicate a range from Nominal to Max annual totals.

Table 8 describes the number of in- activities. Under the planned activities, activities take into account that annual water explosives that could be used in bin use will vary annually, and the variability. any year under the planned testing seven-year totals for the planned testing

TABLE 8—EXPLOSIVE SOURCE CLASS BINS ANALYZED AND NUMBER OF DETONATIONS USED FOR SEVEN-YEAR PERIOD FOR TESTING ACTIVITIES IN THE NWTT STUDY AREA

Net explosive Bin Example explosive source Annual 3 7-year total weight 1 (lb) 2

E1 ...... 0.1–0.25 SUS buoy...... 8 56 E3 ...... >0.5–2.5 Explosive sonobuoy...... 72 504 E4 ...... >2.5–5 Mine Countermeasure and Neutralization ...... 36 108 E7 ...... >20–60 Mine Countermeasure and Neutralization ...... 5 15 E8 ...... >60–100 Lightweight torpedo...... 4 28 E11 ...... >500–650 Heavyweight torpedo...... 4 28 1 Net explosive weight refers to the equivalent amount of TNT. The actual weight of a munition may be larger due to other components. 2 lb = pound(s). 3 Annual Nominal—Max.

Vessel Movement factors. Many training and testing Standard Operating Procedures Vessels used as part of the planned activities involve the use of vessels. For training and testing to be activities include ships, submarines, These activities could be widely effective, personnel must be able to unmanned vessels, and boats ranging in dispersed throughout the NWTT Study safely use their sensors and weapon size from small, 22 ft rigid hull Area, but will be typically conducted systems as they are intended to be used inflatable boats to aircraft carriers with near naval ports, piers, and range areas. in military missions and combat lengths up to 1,092 ft. Large ships Training and testing activities involving operations and to their optimum greater than 60 ft generally operate at vessel movements occur intermittently capabilities. While standard operating speeds in the range of 10–15 kn for fuel and are variable in duration, ranging procedures are designed for the safety of conservation. Submarines generally from a few hours to up to two weeks. personnel and equipment and to ensure operate at speeds in the range of 8–13 There is no seasonal differentiation in the success of training and testing kn in transits and less than those speeds military vessel use. Large vessel activities, their implementation often for certain tactical maneuvers. Small movement primarily occurs with the yields benefits on environmental, craft (for purposes of this discussion— majority of the traffic flowing between socioeconomic, public health and less than 60 ft in length) have much the installations and the Operating safety, and cultural resources. more variable speeds (dependent on the Areas (OPAREAS). Smaller support craft Because standard operating mission). While these speeds are would be more concentrated in the procedures are essential to safety and representative of most events, some coastal waters in the areas of naval mission success, the Navy considers vessels need to temporarily operate installations, ports, and ranges. The them to be part of the planned specified outside of these parameters. For number of activities that include the use activities, and they have been included example, to produce the required of vessels for training events is lower in the environmental analysis in the relative wind speed over the flight deck, (approximately 10 percent) than the 2020 NWTT FSEIS/OEIS. Additional an aircraft carrier engaged in flight number for testing activities. Testing details on standard operating operations must adjust its speed through can occur jointly with a training event, procedures were provided in our the water accordingly. Conversely, there in which case that testing activity could Federal Register notice of proposed are other instances, such as launch and be conducted from a training vessel. rulemaking (85 FR 33914; June 2, 2020); recovery of a small rigid hull inflatable Additionally, a variety of smaller craft please see that notice of proposed boat; vessel boarding, search, and will be operated within the NWTT rulemaking or the Navy’s application for seizure training events; or retrieval of a Study Area. Small craft types, sizes, and more information. target when vessels will be dead in the speeds vary. During training and testing, water or moving slowly ahead to speeds generally range from 10–14 kn; Comments and Responses maintain steerage. however, vessels can and will, on We published the proposed rule in The number of military vessels used occasion, operate within the entire the Federal Register on June 2, 2020 (85 in the NWTT Study Area varies based spectrum of their specific operational FR 33914), with a 45-day comment on military training and testing capabilities. In all cases, the vessels/ period. With that proposed rule, we requirements, deployment schedules, craft will be operated in a safe manner requested public input on our analyses, annual budgets, and other unpredictable consistent with the local conditions. our preliminary findings, and the

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72324 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

proposed regulations, and requested uncertainty.’’ The commenter asserts duration exposure tends to produce a that interested persons submit relevant that the auditory impact criteria should larger amount of TTS. Most marine information and comments. During the be revised. Another commenter noted mammal TTS data have been obtained 45-day comment period, we received that NMFS has not considered that using exposure durations of tens of 9,047 comments. Of this total, one repeated exposure to noise that can seconds up to an hour, much longer submission was from the Marine cause TTS can lead to PTS, or that TTS than the durations of many tactical Mammal Commission, two submissions increases the likelihood of vessel strike. sources (much less the continuous time were from tribes or coalitions of tribes, Response: The ‘‘Navy criteria’’ that that a marine mammal in the field three submissions were from state the commenter references for estimating would be exposed consecutively to agencies or officials, and the remaining were developed in coordination with those levels), further suggesting that the comments were from organizations or NMFS and ultimately finalized, use of these TTS data are likely to individuals acting in an official capacity following three peer reviews and three overestimate the effects of sonars with (e.g., non-governmental organizations public comment periods, as NMFS’ shorter duration signals. (NGOs)) and private citizens. We Technical Guidance for Assessing the Regarding the suggestion of received some submissions that Effects of Anthropogenic Sound on pseudoreplication and erroneous expressed general opposition toward the Marine Mammal Hearing-Underwater models, since marine mammal hearing Navy’s proposed training and testing Acoustic Thresholds for Onset of and noise-induced hearing loss data are activities and requested that NMFS not Permanent and Temporary Threshold limited, both in the number of species issue the regulations and LOAs, but Shifts (Acoustic Technical Guidance). and in the number of individuals NMFS disagrees with the commenter’s provided no specific comments or available, attempts to minimize criticism about inconsistent treatment of information. These general comments pseudoreplication would further reduce data and any suggestion that the use of have been noted, but because they did these already limited data sets. the Acoustic Technical Guidance not include information pertinent to Specifically, with marine mammal provides erroneous results. The NMFS’ decision, they are not addressed behaviorally derived temporary Acoustic Technical Guidance represents further. threshold shift studies, behaviorally NMFS has reviewed and considered the best available science and provides derived data are only available for two all public comments received on the thresholds and weighting functions that mid-frequency cetacean species proposed rule and issuance of the LOAs. allow us to predict when marine (bottlenose dolphin, beluga) and two General comments that did not provide mammals are likely to incur permanent information pertinent to NMFS’ threshold shift (PTS). All public phocid (in-water) pinniped species decisions have been noted, but are not comments on the Acoustic Technical (harbor seal and northern elephant seal), addressed further. All substantive Guidance, including those referenced by with otariid (in-water) pinnipeds and comments and our responses are the commenter here, were addressed in high-frequency cetaceans only having described below. We provide no full in the Federal Register notice behaviorally-derived data from one response to specific comments that announcing the finalization of the species each. Arguments from Wright addressed species or statutes not Acoustic Technical Guidance. We refer (2015) regarding pseudoreplication relevant to the rulemaking under section the reader to https:// within the TTS data are therefore largely 101(a)(5)(A) of the MMPA (e.g., www.federalregister.gov/documents/ irrelevant in a practical sense because comments related to sea turtles). We 2016/08/04/2016-18462/technical- there are so few data. Multiple data organize our comment responses by guidance-for-assessing-the-effects-of- points were not included for the same major categories. anthropogenic-sound-on-marine- individual at a single frequency. If mammal for full responses to those multiple data existed at one frequency, Impact Analysis and Thresholds previously raised comments. the lowest TTS onset was always used. Comment 1: A commenter stated that As described in the Estimated Take of There is only a single frequency where the criteria that the Navy has produced Marine Mammals section, when the TTS onset data exist for two individuals to estimate temporary and permanent acoustic thresholds, the Navy model, of the same species: 3 kHz for bottlenose threshold shift in marine mammals, and and other inputs into the take dolphins. Their TTS (unweighted) onset that NMFS applied in the proposed rule, calculation are considered, the values were 193 and 194 dB re 1 mPa2s. are erroneous and non-conservative. authorized incidental takes represent Thus, NMFS believes that the current According to the commenter, Wright the maximum number of instances in approach makes the best use of the (2015) has identified several statistical which marine mammals are reasonably given data. Appropriate means of and numerical faults in the Navy’s expected to be taken, which is reducing pseudoreplication may be approach, such as pseudo-replication, appropriate under the statute and there considered in the future, if more data use of means rather than onset (as with is no need or requirement for NMFS to become available. Many other the treatment of blast trauma), and authorize a larger number. comments from Wright (2015) and the inconsistent treatment of data, that tend Multiple studies from humans, comments from Racca et al. (2015b) to bias the criteria towards an terrestrial mammals, and marine appear to be erroneously based on the underestimation of effects. The mammals have demonstrated less idea that the shapes of the auditory commenter stated that similar and temporary threshold shift (TTS) from weighting functions and TTS/PTS additional issues were raised by a dozen intermittent exposures compared to exposure thresholds are directly related scientists during the public comment continuous exposures with the same to the audiograms; i.e., that changes to period on the draft criteria held by total energy because hearing is known to the composite audiograms would NMFS. The commenter asserts that the experience some recovery in between directly influence the TTS/PTS issue is NMFS’ broad extrapolation from noise exposures, which means that the exposure functions (e.g., Wright (2015) a small number of individual animals, effects of intermittent noise sources describes weighting functions as mostly bottlenose dolphins, without such as tactical sonars are likely ‘‘effectively the mirror image of an taking account of what Racca et al. overestimated. Marine mammal TTS audiogram’’ (p. 2) and states, ‘‘The (2015b) have succinctly characterized as data have also shown that, for two underlying goal was to estimate how a ‘‘non-linear accumulation of exposures with equal energy, the longer much a sound level needs to be above

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72325

hearing threshold to induce TTS.’’ (p. Comment 2: A commenter 2017b) and TTS (Kastelein et al., 2017a 3)). Both statements are incorrect and recommended that NMFS clarify and c, Popov et al., 2017, Kastelein et suggest a fundamental whether and how the Navy incorporated al., 2018a and 2019b, c, and d) support misunderstanding of the criteria/ uncertainty in its density estimates for the continued use of the current threshold derivation. This would its animat modeling specific to NWTT weighting functions and PTS and TTS require a constant (frequency- and if uncertainty was not incorporated, thresholds. independent) relationship between re-estimate the numbers of marine Response: NMFS has carefully hearing threshold and TTS onset that is mammal takes based on the uncertainty considered the references that the not reflected in the actual marine inherent in the density estimates commenter cites and the new data mammal TTS data. Attempts to create a provided in Department of the Navy included in those articles are consistent ‘‘cautionary’’ outcome by artificially (2019) or the underlying references with the thresholds and weighting lowering the composite audiogram (Jefferson et al., 2017, Smultea et al., functions included in the current thresholds would not necessarily result 2017, NMFS SARs, etc.). version of the Acoustic Technical in lower TTS/PTS exposure levels, since Response: Uncertainty was Guidance (NMFS, 2018). Furthermore, the exposure functions are to a large incorporated into the density estimates the recent peer-reviewed updated extent based on applying mathematical used for modeling and estimating take marine mammal noise exposure criteria functions to fit the existing TTS data. for NMFS’ rule. Where available, a by Southall et al. (2019a) provide Please refer to the response to coefficient of variation (CV) was used to identical PTS and TTS thresholds and Comment 9 for additional information represent uncertainty in the species- weighting functions to those provided regarding the use of ‘‘means rather than specific density estimates. The CV was in NMFS’ Acoustic Technical Guidance. onset’’ in the analysis of blast trauma. incorporated into the acoustic effects NMFS will continue to review and model by randomly varying the number evaluate new relevant data as it becomes Regarding the comment about of animats distributed for each scenario available and consider the impacts of repeated exposures to TTS leading to within the range described by the CV. If those studies on the Acoustic Technical PTS, NMFS is aware of studies by a measure of uncertainty was not Guidance to determine what revisions/ Kujawa and Liberman (2009) and Lin et available, then the number of animats updates may be appropriate. al. (2011), which found that despite distributed in the model remained the Comment 4: A commenter stated that completely reversible TS that leave same for each modeled scenario. the Navy, and in turn NMFS, has not cochlear sensory cells intact, large (but Multiple iterations of each modeled provided adequate justification for temporary) TS could cause synaptic scenario were run until the results ignoring the possibility that single level changes and delayed cochlear converged with minimal variation, underwater detonations can cause a nerve degeneration in mice and guinea meaning that even without behavioral response. The commenter pigs. However, the large TS (i.e., incorporating a CV into the animat recommends that NMFS estimate and maximum 40 decibel dB) that led to the distribution, uncertainty in the exposure ultimately authorize behavior takes of synaptic changes shown in these studies results were minimized. marine mammals during all explosive are in the range of the large shifts used The commenter is referred to the activities, including those that involve by Southall et al. (2007) and in NMFS technical report titled Quantifying single detonations. In a similar Acoustic Technical Guidance (2018) to Acoustic Impacts on Marine Mammals comment, another commenter stated define PTS onset (i.e., 40 dB). There is and Sea Turtles: Methods and that the literature on responses to no evidence indicating that smaller Analytical Approach for Phase III explosions does not distinguish between levels of TTS would lead to similar Training and Testing (U.S. Department single and multiple detonations, and changes or the long-term implications of of the Navy, 2018) for clarification on asserts that it is arbitrary for NMFS, in irreversible neural degeneration and the consideration of uncertainty in estimating takes and assessing impacts, NMFS has included several density estimates. Specifically, see to assume that only multiple rounds of conservative assumptions in its protocol Section 4.2 (Marine Species Distribution in-water detonations can cause Level B for examining marine mammal hearing Builder) of the technical report where harassment takes by behavioral loss data (e.g., using a 6 dB threshold details are provided on how statistical disturbance. shift to represent TTS onset, not directly uncertainty surrounding density Response: NMFS does not ignore the accounting for exposures that did not estimates was incorporated into the possibility that single underwater result in threshold shifts, assuming modeling for the NWTT Study Area, as detonations can cause a behavioral there is no recovery with the 24-h has been done for all other recent NMFS response. The current take estimate baseline accumulation period or and Navy analyses of training and framework allows for the consideration between intermittent exposures). testing at sea. To the commenter’s more of animals exhibiting behavioral Moreover, as described in the final rule, specific question, as with the 2018/2020 disturbance during single explosions as TTS incurred as a result of exposures to Hawaii-Southern California Training they are counted as ‘‘taken by Level B Navy NWTT activities is expected to be and Testing (HSTT) final rules and 2020 harassment’’ if they are exposed above of a smaller degree and, further, no Mariana Islands Training and Testing the TTS threshold, which is only 5 dB individual is expected to incur repeated (MITT) final rule, a lognormal higher than the behavioral harassment exposures of TTS in a manner that distribution was used in the density threshold. We acknowledge in our could accrue to PTS. Nonetheless, regression model. Uncertainty was analysis that individuals exposed above NMFS acknowledges the complexity of incorporated into the take estimation the TTS threshold may also be harassed sound exposure on the nervous system, through the density estimates and it is by behavioral disruption and those and will re-examine this issue as more not necessary to re-estimate the take potential impacts are considered in the data become available. Separately, the numbers for marine mammals. negligible impact determination. commenter provides no credible Comment 3: A commenter Neither NMFS nor the Navy are aware evidence to support the speculative recommended that NMFS specify in the of evidence to support the assertion that assertion that TTS increases the preamble to the final rule whether the animals will have significant behavioral likelihood of vessel strike of marine data regarding behavioral audiograms responses (i.e., those that would rise to mammals. (Branstetter et al., 2017, Kastelein et al., the level of a take) to temporally and

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72326 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

spatially isolated explosions at received used to generate the BRFs. Data points calls, but the received level at the blue levels below the TTS threshold. come from published data that is readily whale individuals/group are unknown. However, if any such responses were to available and cited within the technical Comment 6: Commenters occur, they would be expected to be few report. recommended that NMFS refrain from and to result from exposure to the The Navy used the best available using cut-off distances in conjunction somewhat higher received levels science in the analysis, which has been with the Bayesian BRFs and re-estimate bounded by the TTS thresholds and reviewed by external scientists and the numbers of marine mammal takes would, thereby, be accounted for in the approved by NMFS. The Navy based solely on the Bayesian BRFs, as take estimates. The derivation of the considered all data available at the time the use of cut-off distances could be explosive injury criteria is provided in for the development of updated criteria perceived as an attempt to reduce the the 2017 technical report titled Criteria and thresholds, and limiting the data to numbers of takes. One commenter and Thresholds for U.S. Navy Acoustic the small number of field studies would suggested that the actual cut-off and Explosive Effects Analysis (Phase not provide enough data with which to distances used by the Navy appear to be III). develop the new risk functions. In unsubstantiated and questioned several Comment 5: A commenter stated that addition, the Navy accounted for the of the choices made in the development the behavioral response functions fact that captive animals may be less of the cutoff distances (although (BRFs) rely on captive animal studies sensitive, and the scale at which a alternate recommendations were not and the risk functions do not moderate-to-severe response was included). incorporate a number of relevant studies considered to have occurred is different Response: The consideration of on wild marine mammals (specifically for captive animals than for wild proximity (cut-off distances) was part of referencing a passive acoustic study on animals, as the Navy understands those the criteria developed in consultation between the Navy and NMFS, and is blue whales). The commenter states that responses will be different. The new appropriate based on the best available some were included in the only risk functions were developed in 2016, science which shows that marine published quantitative synthesis of before several recent papers were mammal responses to sound vary based behavioral response data, Gomez et al. published or the data were available. on both sound level and distance. (2016), while others appeared after that The Navy and NMFS continue to Therefore these cut-off distances were synthesis was published, and after the evaluate the information as new science applied within the Navy’s acoustic Navy produced its BRFs two years ago. is made available. The criteria have effects model. The derivation of the The commenter asserts that exclusion of been rigorously vetted within the Navy those studies fails to meet regulatory BRFs and associated cut-off distances is community, among scientists during requirements (citing to National provided in the 2017 technical report expert elicitation, and then reviewed by Environmental Policy Act (NEPA) titled Criteria and Thresholds for U.S. the public before being applied. It is regulations) that base evaluation of Navy Acoustic and Explosive Effects unreasonable to revise and update the impacts on research methods generally Analysis (Phase III). To account for non- criteria and risk functions every time a accepted in the scientific community applicable contextual factors, all new paper is published. NMFS concurs and that the result is arbitrary. available data on marine mammal The commenter asserts that it is not with the Navy’s evaluation and reactions to actual Navy activities and clear from the proposed rule, the 2020 conclusion that there is no new other sound sources (or other large scale NWTT DSEIS/OEIS, or the Navy’s information that necessitates changing activities such as seismic surveys when associated technical report on acoustic the acoustic thresholds at this time. information on proximity to sonar ‘‘criteria and thresholds’’ exactly how These new papers provide additional sources was not available for a given each of the studies considered relevant information, and the Navy is species group) were reviewed to find the were applied in the analysis, or how the considering them for updates to the farthest distance to which significant functions were fitted to the data, but the criteria in the future, when the next behavioral reactions were observed. For available evidence on behavioral round of updated criteria will be use as distance cut-offs to be used in response raises concerns that— developed. Regarding consideration of conjunction with the BRFs, these notwithstanding the agencies’ claims to research findings involving a passive distances were rounded up to the the contrary—the functions are not acoustic study on blue whale nearest 5 or 10 km interval, and for conservative for some species. For this vocalizations and behavior, the Navy moderate to large scale activities using reason and others, the commenter considered multiple recent references, multiple or louder sonar sources, these requests that NMFS make additional including but not limited to: Paniagua- distances were greatly increased— technical information available, Mendoza, 2017; Lesage, 2017; DeRuiter, doubled in most cases. The Navy’s BRFs including expert elicitation and peer 2017; Mate, 2016; Lomac-MacNair, applied within these distances provide review (if any), so that the public can 2016; Friedlaender, 2016; and Mate, technically sound methods reflective of fully comment pursuant to the 2015. Thus far, no new information has the best available science to estimate the Administrative Procedure Act (APA). been published or otherwise conveyed impact and potential take for the actions Response: We refer the commenter to that would fundamentally change the analyzed within the 2020 NWTT FSEIS/ the Criteria and Thresholds for the U.S. assessment of impacts or conclusions of OEIS and included in this rule. NMFS Navy Acoustic and Explosive Effects this rule. To be included in the BRF, has independently assessed the Analysis (Phase III) Technical Report data sets needed to relate known or thresholds used by the Navy to identify (U.S. Department of the Navy, 2017) for estimable received levels to Level B harassment by behavioral details on how the Navy accounted for observations of individual or group disturbance (referred to as ‘‘behavioral the differences in captive and wild behavior. Melcon et al. (2012) does not harassment thresholds’’ throughout the animals in the development of the relate observations of individual/group rest of the rule) and finds that they behavioral response risk functions, behavior to known or estimable received appropriately apply the best available which NMFS has evaluated and deemed levels at that individual/group. In science and it is not necessary to appropriate to incorporate into the Melcon et al. (2012), received levels at recalculate take estimates. analysis in the rule. The appendices to the HARP buoy averaged over many The commenters also specifically this report detail the specific data points hours are related to probabilities of D- expressed concern that distance ‘‘cut-

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72327

offs’’ alleviate some of the exposures movement and diving behavior with 2017 technical report titled Criteria and that would otherwise have been counted sonar use during military training Thresholds for U.S. Navy Acoustic and if the received level alone were exercises: A case study using satellite Explosive Effects Analysis (Phase III). considered. It is unclear why the tag data from Cuvier’s beaked whales at Specifically, the equations were commenters find this inherently the Southern California Anti-submarine modified for the current rulemaking inappropriate, as this is what the data Warfare Range (Falcone et al., 2017)) period (Phase III) to fully incorporate show. There are multiple studies was not available at the time the BRFs the injury model in Goertner (1982), illustrating that in situations where one were developed. However, NMFS and specifically to include lung compression would expect behavioral disturbance of the Navy have reviewed the article and with depth. NMFS independently a certain degree because of the received concur that neither this article nor any reviewed and concurred with this levels at which previous responses were other new information that has been approach. observed, it has not occurred when the published or otherwise conveyed since The impulse mortality/injury distance from the source was larger than the BRFs were developed changes the equations are depth dependent, with the distance of the first observed assessment of impacts or conclusions in thresholds increasing with depth due to response. the 2020 NWTT FSEIS/OEIS or in this increasing hydrostatic pressure in the Comment 7: A commenter stated that rulemaking. Additionally, the current model for both the previous 2015–2020 dipping sonar, like hull-mounted sonar, beaked whale BRF covers the responses phase of rulemaking (Phase II) and appears to be a significant predictor of observed in this study since the beaked Phase III. The underlying experimental deep-dive rates in beaked whales, with whale risk function is more sensitive data used in Phase II and Phase III the dive rate falling significantly (e.g., to than the other risk functions at lower remain the same, and two aspects of the 35 percent of that individual’s control received levels. The researchers Phase III revisions explain the rate) during sonar exposure, and involved with the study continue to relationships the commenter Notes: likewise appears associated with habitat further refine their analytical approach (1) The numeric coefficients in the abandonment. According to the and integrate additional statistical equations are computed by inserting the commenter, the data sources used to parameters for future reporting. Richmond et al. (1973) experimental produce the Navy’s BRFs concern hull- Nonetheless, the new information and data into the model equations. Because mounted sonar, an R/V-deployed sonar data presented in the article were the Phase III model equation accounts playback, or an in-pool source. thoroughly reviewed by NMFS and the for lung compression, the plugging of According to the commenter, the Navy and will be quantitatively experimental exposure values into a generic BRF for beaked whales used in incorporated into future BRFs, as different model results in different the rule does not incorporate their appropriate, when and if other new data coefficients. The numeric coefficients heightened response to these sources, that would meaningfully change the are slightly larger in Phase III versus although such a response would be functions would necessitate their Phase II, resulting in a slightly greater presumed to shift its risk function revision. Furthermore, ongoing beaked threshold near the surface. ‘‘leftward.’’ Nor do the response whale monitoring at the same site where (2) The rate of increase for the Phase functions for other species account for the dipping sonar tests were conducted II thresholds with depth is greater than this difference, although has not documented habitat the rate of increase for Phase III unpredictability is known to exacerbate abandonment by beaked whales. Passive thresholds with depth because the stress response in a diversity of acoustic detections of beaked whales Phase III equations take into account the mammalian species and should have not significantly changed over ten corresponding reduction in lung size conservatively be assumed, in this case, years of monitoring (DiMarzio et al., with depth (making an animal more to lead to a heightened response in 2018, updated in 2020). From visual vulnerable to injury per the Goertner marine mammal species other than surveys in the same area since 2006, model), as the commenter notes. beaked whales. there have been repeated sightings of Comment 9: A commenter Response: The best available science the same individual beaked whales, recommended that NMFS use onset was used to develop the BRFs. The beaked whale mother-calf pairs, and mortality, onset slight lung injury, and current beaked whale BRF beaked whale mother-calf pairs with onset gastrointestinal (GI) tract injury acknowledges and incorporates the mothers on their second calf (Schorr et thresholds rather than the 50-percent increased sensitivity observed in beaked al., 2018, 2020). Satellite tracking thresholds to estimate both the numbers whales during both behavioral response studies of beaked whales documented of marine mammal takes and the studies and during actual Navy training high site fidelity to this area (Schorr et respective ranges to effect. If NMFS does events, as well as the fact that dipping al., 2018, updated in 2020). not implement the recommendation, the sonar can have greater effects than some Comment 8: A commenter commenter further recommends that other sources with the same source recommends that NMFS: (1) Explain NMFS (1) specify why it is level. Specifically, the distance cut-off why, if the constants and exponents for inconsistently basing its explosive for beaked whales is 50 km, larger than onset mortality and onset slight lung thresholds for Level A harassment on any other group. Moreover, although injury thresholds for the current phase onset of PTS and Level B harassment on dipping sonar has a significantly lower of incidental take rulemaking for the onset of TTS and onset behavioral source level than hull-mounted sonar, it Navy (Phase III) have been amended to response, while the explosive is included in the category of sources account for lung compression with thresholds for mortality and Level A with larger distance cut-offs, specifically depth, they result in lower rather than harassment are based on the 50-percent in acknowledgement of its higher absolute thresholds when criteria for mortality, slight lung injury, unpredictability and association with animals occur at depths greater than 8 and GI tract injury, (2) provide scientific observed effects. This means that m and (2) specify what additional justification supporting the assumption ‘‘takes’’ are reflected at lower received assumptions were made to explain this that slight lung and GI tract injuries are levels that would have been excluded counterintuitive result. less severe than PTS and thus the 50- because of the distance for other source Response: The derivation of the percent rather than onset criteria are types. An article referenced by the explosive injury equations, including more appropriate for estimating Level A commenter (Associating patterns in any assumptions, is provided in the harassment for those types of injuries,

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72328 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

and (3) justify why the number of injury and onset mortality were exception of one incident with dolphins estimated mortalities should be examined to ensure that explosive in California, after which mitigation was predicated on at least 50 percent rather mitigation zones would encompass the adjusted to better account for explosives than 1 percent of the animals dying. range to any potential mortality or non- with delayed detonations (i.e., zones for Another commenter also stated that auditory injury, affording actual events with time-delayed firing were they do not understand why the Navy protection against these effects. In all enlarged). and NMFS use the 50 percent average cases, the mitigation zones for Further, for these reasons, the for the explosive impact analysis while explosives extend beyond the range to 1 methods used for estimating mortality using onset for purposes of assessing the percent risk of onset non-auditory and non-auditory injury are appropriate effectiveness of the Navy’s mitigation injury, even for a small animal for estimating take, including zones. This commenter also stated that (representative mass = 5 kg). Given the determining the ‘‘significant potential’’ this approach is not consistent with the implementation and expected for non-auditory injury consistent with probability standards set forth in the effectiveness of this mitigation, the the statutory definition of Level A MMPA. The MMPA incorporates a application of the indicated threshold is harassment for military readiness standard of ‘‘significant potential’’ into appropriate for the purposes of activities, within the limits of the best its definition of ‘‘injury’’ for military estimating take. Using the 1 percent available science. Using the one percent readiness activities; this standard onset non-auditory injury risk criteria to threshold would be inappropriate and plainly differs from the higher estimate take would result in an over- result in an overestimation of effects, ‘‘likelihood’’ standard that applies to estimate of take, and would not afford whereas given the mitigation applied behavioral disruption. And while the extra protection to any animal. within this larger area, the 50 percent probability standard for mortality is not Specifically, calculating take based on threshold results an appropriate specifically defined in the Act, Congress marine mammal density within the area mechanism for estimating the expressly amended the MMPA in 1994 that an animal might be exposed above significant potential for non-auditory to incorporate a ‘‘potential’’ standard in the 1 percent risk to onset injury and injury. the wake of the Ninth Circuit decision onset mortality criteria would over- Comment 10: A commenter had in U.S. v. Hiyashi, 22 F.3d 859 (9th Cir. predict effects because many of those concerns regarding the various areas, 1993). If NMFS is to satisfy the plain exposures will not happen because of abundance estimates, and correction language of the MMPA, and provide a the effective mitigation. The Navy, in factors that the Navy used for more conservative estimate of harm, it coordination with NMFS, has pinnipeds. The commenter referenced cannot base its mortality and injury determined that the 50 percent information in the context of both what estimates on the mean. incidence of onset injury and onset the Navy used and what the commenter argued they should have used and Response: First, we note an error in mortality occurrence is a reasonable one of the commenters’ assertions. The summarized the discussion with several representation of a potential effect and BRFs used in the behavioral harassment recommendations. appropriate for take estimation, given thresholds are not based on the onset of Broadly, the commenter stated that the mitigation requirements at the 1 any behavioral response. They are based since NMFS used the draft 2019 Stock percent onset injury and onset mortality on responses at or above a severity at Assessment Reports (SARs) or the most threshold, and the area ensonified above which we believe ‘‘take’’ occurs, recently finalized SAR for the this threshold would capture the therefore the BRFs do not predict onset abundance estimates in its negligible appropriate reduced number of likely behavioral response. Also, the ‘‘onset’’ impact determination analyses (Tables 9 injuries. of TTS is not when there is any and 52–57 in the Federal Register measurable TTS (i.e., 0.5, 1 dB); we’ve While the approaches for evaluating notice), it also must use the most recent defined the onset of TTS as where there non-auditory injury and mortality are abundance estimates to inform the is a consistently measurable amount of based on different types of data and associated densities and resulting take TTS, which has been defined as 6 dB of analyses than the evaluation of PTS and estimates as those abundance estimates TTS. Additionally, the weighting behavioral disturbance, and are not represent the best available science. function components of the TTS identical, NMFS disagrees with the The commenter noted that the thresholds are based on the average of commenter’s assertion that the abundance estimate for northern fur all of the data points. Since the PTS approaches are inconsistent, as both seals was based on pup count data from threshold is derived from an offset of approaches consider a combination of 2014 and did not include the more the TTS threshold, this same averaging thresholds and mitigation (where recent data from Bogoslof Island in 2015 concept holds true for PTS criteria. applicable) to inform take estimates. For and from St. Paul and St. George in For explosives, the type of data the same reasons, it is not necessary for 2016. For northern fur seals, the available are different than those NMFS to ‘‘provide scientific commenter recommended that NMFS available for hearing impairment, and justification supporting the assumption revise the density based on the this difference supports the use of that slight lung and GI tract injuries are abundance estimate that includes data different prediction methods. less severe than PTS,’’ as that from Bogoslof Island in 2015 and from Nonetheless, as appropriate and similar assumption is not part of NMFS’ St. Paul and St. George in 2016. to take estimation methods for PTS, rationale for the methods used. NMFS The commenter noted that the NMFS and the Navy have used a has explained in detail its justification abundance estimate for Guadalupe fur combination of exposure thresholds and for the number of estimated mortalities, seals was based on pup count data from consideration of mitigation to inform which is based on both the 50 percent 2008 and 2010 and did not include the the take estimates. The Navy used the threshold and the mitigation applied at more recent survey data from 2013– range to 1 percent risk of onset mortality the one percent threshold. Further, we 2015 and associated correction factors. and onset injury (also referred to as note that many years of Navy For Guadalupe fur seals, the commenter ‘‘onset’’ in the 2020 NWTT FSEIS/OEIS) monitoring following explosive recommended that NMFS revise the to inform the development of mitigation exercises has not detected evidence that density based on abundance data from zones for explosives. Ranges to effect any injury or mortality has resulted 2013–2015 at both Isla Guadalupe and based on 1 percent risk criteria to onset from Navy explosive exercises with the Isla San Benito.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72329

The commenter stated that the appropriate. While some of the Navy’s effects model. To abundance estimate for Steller sea lions suggestions the commenter makes could complete the modeling on schedule, the was based on pup and non-pup count provide alternate valid ways to conduct density data available at that time from and trend data from 2015 and did not the analyses, these modifications are not the final 2016 SAR (Carretta et al., 2017) incorporate the more recent trend data required in order to have equally valid were used. The initial abundance from 2017. The commenter also noted and supportable analyses. In addition, estimate of 20,000 fur seals was based that the Navy applied non-pup growth we note that (1) some of the specific on surveys between 2008 and 2010 as rates to the non-pup and pup abundance recommendations that the commenter the commenter points out, but to estimates rather than applying the non- makes are largely minor in nature account for a likely increasing pup growth rates to the non-pup within the context of our analysis (e.g., population trend, the Navy applied a abundances and the pup growth rates to ‘‘46 not 37 percent’’) and (2) even where growth rate of 7.64 percent per year to the pup abundances. For Steller sea the recommendation is somewhat larger estimate an abundance for the year lions, the commenter recommended that in scale, given the ranges of the majority 2017. That resulted in an abundance of NMFS revise the density based on of these stocks, the size of the stocks, 33,485 fur seals (a 67 percent increase adjusting the 2015 pup and non-pup and the number and nature of pinniped over the reported abundance of 20,000). data using the trend data from 2017, takes, recalculating the estimated take The final 2019 SAR (Carretta et al., applying the non-pup growth rate to the for any of these pinniped stocks using 2020) reported comparable abundance non-pup counts and the pup growth the commenter’s recommended changes estimates based on the later surveys, rates to the pup counts. would not change NMFS’ assessment of some of which were from sources For Guadalupe fur seal, Steller sea impacts on the rates of recruitment or published in 2018, and an estimated lion, California sea lions, harbor seals, survival of any of these stocks, or the growth rate of 5.9 percent, less than the and elephant seals, the commenter negligible impact determinations. growth rate applied by the Navy. The recommended that NMFS revise the Below, we address the commenter’s Navy’s abundance estimate for the year densities based on applying the relevant issues in more detail and, while we do 2017 is consistent with the latest growth rates up to at least 2020. not explicitly note it in every section, abundance estimates. For harbor seals in the Strait of Juan NMFS has reviewed the Navy’s analysis Steller sea lion—As stated above, the de Fuca and the San Juan Islands, the and choices in relation to these NMSDD technical report describes commenter recommended that NMFS comments and concurs that they are density estimates that were used in the revise the densities based on assuming technically sound and reflect the best Navy’s acoustics effects model. To that 46 percent of the animals would be available science. complete the modeling on schedule, the in the water at a given time from Huber Northern fur seal—The Navy density data available at that time from et al. (2001). analyzed unpublished tagging data the final 2016 SAR (Muto et al., 2017) Based on the recommendations above, provided by subject matter experts at were used. Steller sea lion densities the commenter recommended that NMFS’ Alaska Fisheries Science Center were calculated independently for NMFS re-estimate the numbers of takes (AKFSC). The Navy also did not regional populations in Washington, accordingly in the final rule. integrate the 2015 data from Bogoslof Oregon, California, and southeast Response: The Navy provided NMFS Island suggested by the commenter Alaska, consistent with the stock clarification regarding the referenced based on advice from subject matter assessment reports. No trend data were concerns about areas, abundance experts at the AKFSC, due to a volcanic (or are currently) estimated for pups in estimates, and correction factors that eruption at the rookery on Bogoslof Washington, therefore, the non-pup were used for pinnipeds. We first note Island where a portion of the counts are growth rate of 8.77 percent per year was that take estimation is not an exact made, which in the opinion of the used for the entire population. In science. There are many inputs that go AKFSC experts skewed the 2015 data. addition, the baseline abundance for into an estimate of marine mammal Therefore, the Navy found that Washington sea lions was increased exposure, and the data upon which incorporating this data would not reflect over the abundance from the stock those inputs are based come with the best available science. NMFS assessment report based on data varying levels of uncertainty and concurs with this assessment, and reported in Wiles (2015) before the precision. Also, differences in life therefore, has not included this growth rate was applied to project a histories, behaviors, and distributions of information in the take estimation in 2017 abundance. For sea lions in stocks can support different decisions this final rule. Regarding the Oregon, California, and southeast regarding methods in different recommendation for NMFS to revise the Alaska the non-pup growth rate was situations. Further, there may be more density based on the abundance used, because the number of non-pups than one acceptable method to estimate estimate from St. Paul and St. George in in each population was substantially take in a particular situation. 2016, to complete the modeling on greater than the number of pups. Using Accordingly, while the applicant bears schedule, the density data available at separate growth rates for pups and non- the responsibility of providing by that time from the final 2016 SAR (Muto pups in all three regions results in less species or stock the estimated number et al., 2017) were used. Note that the than a 1 percent increase in the and type of takes (see 50 CFR latest pup counts reported in the final projected 2017 abundance. The 216.104(a)(6)) and NMFS always 2019 SAR (Muto et al., 2020) using the associated change in the density is ensures that an applicant’s methods are more recent data from Bogoslof Island in minimal and would not change the technically supportable and reflect the 2015 and St. Paul and St. George in results of NMFS’ or the Navy’s analysis best available science, NMFS does not 2016 result in a lower pup count than of acoustic impacts on Steller sea lions. prescribe any one method for estimating the one used in the density calculation, Harbor seal—Density estimates for take (or calculating some of the specific which suggests that the estimates used harbor seal in the Strait of Juan de Fuca take estimate components that the for this final rule are likely conservative. and San Juan Islands were based on commenter is concerned about). NMFS Guadalupe fur seal—The Navy sighting data provided by the reviewed the areas, abundances, and Marine Species Density Database Washington Department of Fish and correction factors used by the Navy to (NMSDD) technical report describes Game (Jeffries, 2017). In the context of estimate take and concurs that they are density estimates that were used in the analyzing that data, a 37 percent in-

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72330 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

water correction factor was applied to Comment 11: A commenter stated that inputs used, which were coordinated the abundance estimate, which is a majority of the data that the Navy with NMFS, NMFS has ensured that this specific to southern Puget Sound. Huber reviews and uses to determine species final rule incorporates the best available et al. (2001) noted that a 46 percent in- population density and breeding information related to marine mammal water correction factor would have been grounds is admittedly old and is not the density and breeding areas in this final more appropriate given that the survey most accurate representation of the rule. location was in the Strait. However, species population or their geographic The commenter suggested that the there were specific haulout factors for location. In its requirements for an Navy should provide accurate, up-to- other areas within the Study Area that authorization, the MMPA clearly states date surveys of the activity areas, as gave lower estimates throughout the that requesters must include ‘‘the well as data for a long-term projection Inland Waters. Subject matter experts species and numbers of marine for at least 30 years of activity in the from the Alaska Fisheries Science mammals likely to be found within the NWTT Study Area. As discussed in the Center and the Northwest Fisheries activity area’’ in order to demonstrate Monitoring section of this final rule, the Science Center concurred with the the requesting party’s understanding of Navy funds numerous marine mammal Navy’s use of 37 percent as being most their activity impact on the animals and monitoring efforts, and this data is representative. habitat. Normally, this sort of data incorporated into the density and Regarding revising the densities based requires up-to-date assessment reports, abundance estimates as appropriate. For on applying the relevant growth rates up statistics, and accurate data that example, this final rule incorporates to at least 2020, the density estimates accurately portray the information that new data regarding harbor seal are based on sighting numbers from is necessary to require an authorization abundance in NWTT inland waters from surveys over many years to encompass under the MMPA. However, the Navy-funded surveys (see the Analysis variation and are not future predictions. commenter stated that the Navy is and Negligible Impact Determination It would not be appropriate to base violating the MMPA by providing section of this final rule). It is unclear densities on growth rates. The densities outdated data from 2012 and 2014 to what the commenter means by do not incorporate abundances or account for current patterns of marine suggesting that the Navy provide a long- estimates of growth rate since the activities in 2020–2027, even though term projection for at least 30 years of abundances for population and their they are conducting training exercises in activity in the area; however, NMFS population trend (reduction or growth) the same Northwest waters where they notes that the current authorization is are not directly applicable to the density are hoping to continue practicing for limited to seven years. NMFS will within a given area. Subject matter another seven years. conduct a new analysis on the potential experts at the NMFS Alaska Fisheries The commenter suggested that the effects to marine mammals assuming the Science Center advised in 2015 and Navy should instead provide accurate Navy seeks an authorization for training again in 2019 that growth/decline rates up-to-date surveys of the activity areas and testing activities beyond 2027 in the provided in the SARs should not be as well as data for a long-term projection NWTT Study Area, and will ensure that used to project future population for at least 30 years of activity in the the best available science, including numbers for use in the Navy’s analysis area if it continues to expect to apply for new data as available, is included in where abundance have been integrated the same authorization over and over that analysis. into the analysis. NMFS concurs with again. Comment 12: A commenter this assessment and has not applied the Response: The U.S. Navy Marine recommended that NMFS require the growth rates in the take estimation in Species Density Database Phase III for Navy to provide the method(s) by which this final rule. the Northwest Training and Testing species-specific cetacean densities were Additionally, the Navy’s purpose in Study Area Final Technical Report calculated for Western Behm Canal and applying an annual growth rate to includes an in-depth description of the cite the primary literature from which estimate pinniped abundances in 2017 process used to derive density estimates those data originated in the report was to account for stock assessment for marine mammal species occurring in (Department of the Navy (2019)). The report abundances that were based on the NWTT Study Area, and to provide commenter states that that level of surveys conducted several years prior to a summary of species-specific and area- information should be provided in all 2017. The intent was to update an older specific density estimates incorporated technical reports that underpin the abundance estimate to the time of the into the Marine Species Density Navy’s density databases for future Navy’s analysis, not to predict Database. NMFS concurs that as Phase III and IV DSEISs, DEISs, and abundances several years into the described in the report, the process the proposed rules. future. Projecting abundances from the Navy uses ensures that the density Response: There were two primary past to the present (2017) allowed estimates reflect the best available data. sources of density data used to establish adjustments. For example, the growth Given the extensive and comprehensive cetacean density estimates for Behm rate for Guadalupe fur seal reported in process, it is not possible (or necessary) Canal: (1) The marine mammal the 2016 SAR (Carretta et al., 2017) was to update the density estimates or occurrence/density report prepared in 10.3 percent; however, as the information about marine mammal support of Navy activities at the commenter pointed out, that rate is breeding grounds each time a new paper Southeast Alaska Acoustic based on survey data from 2008–2010. is published, nor does the commenter Measurement Facility (U.S. Department Subsequently, the 2015–2016 unusual provide additional data or publications of the Navy, 2010) and (2) Density mortality event (UME) occurred and the that should have been incorporated into estimates derived by the National growth rate needed to be revised, which the density estimates or identify new Marine Mammal Laboratory, Alaska the Navy did. Projections extending into information related to breeding grounds. Fisheries Science Center based on the future would not have allowed these However, the Navy will continue to systematic surveys conducted in types of corrections. incorporate, and NMFS will continue to Southeast Alaska (e.g., Dahlheim et al., Please see Comment 18 for additional consider, additional data for the next 2015). These sources were cited as information about the harbor seal phase of Navy training and testing appropriate in the species-specific abundance estimates included in this activities (Phase IV). Through the use of sections of Department of the Navy final rule. the Navy’s methodology and the data (2020); methods by which species-

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72331

specific density estimates were locations means that the agency cannot from the Navy’s density database may calculated are also described in ensure takes are kept below authorized force artificial granularity on species for Department of the Navy (2020). Multiple levels—and that sufficient measures are which it is not biologically meaningful sources were used to establish pinniped taken to protect particularly vulnerable at the population level. Therefore, given density estimates for Behm Canal. All marine mammal populations, such as the variables that determine when and are cited as appropriate and methods the critically endangered Southern where the Navy trains and tests and the described within the species-specific Resident killer whale and the struggling resolution of the density data, the sections of Department of the Navy, California gray whale. analysis of potential impacts cannot be 2020 (U.S. Navy Marine Species Density The commenter recommended that scaled to specific habitat areas, but the Database Phase III for the Northwest NMFS require the Navy to produce information included is at the Training and Testing Study Area: further information on modeled appropriate resolution and provides the Technical report. Naval Facilities locations and, if activities are not Navy and NMFS with the information Engineering Command Pacific, Pearl limited through the authorization necessary to determine potential Harbor, Hawaii. 258 pages). process to specific geographic areas, to impacts/take for a population of Comment 13: A commenter stated that determine a worst-case take estimate for animals. Chapter 3.4 (Marine Mammals) the delineation of Biologically each species or population. of the 2020 NWTT SFEIS/OEIS Important Areas by NMFS, the updates Another commenter stated that the estimates what portion of impacts to made by the Navy to its predictive Navy should provide NMFS with details each species are expected to occur habitat models, and evidence of on proposed timing of their training and within different regions in the Study additional important habitat areas testing activities and adjust the timing Area. NMFS has reviewed and concurs within the NWTT Study Area provide of their activities to minimize such with the Navy’s analysis and level of the opportunity for the agencies to overlap—such as through seasonal detail provided given these restrictions. improve upon their current approach to closures. The commenter stated that the Additionally, specific modeled the development of alternatives by DSEIS and the LOA application did not locations are not disclosed in public improving resolution of their analysis of detail the times of year during which documents because of national security operations. the proposed activities would take concerns, and information regarding the The commenter stated that place. To issue a LOA, NMFS requires exact location of sonar usage is recognizing that important habitat areas that proposed actions ‘‘be well-planned classified, although classified exercise imply the non-random distribution and with enough detailed information to reports with this information are density of marine mammals in space allow for a robust analysis of the entire provided to NMFS staff with the and time, both the spatial location and duration of your planned activity,’’ required security clearance. the timing of training and testing events which is lacking here. The Southern Furthermore, the Navy requires large in relation to those areas is a significant Resident killer whales have exhibited areas of sea and air space to support the determining factor in the assessment of seasonality in their movements, and tactics, techniques, and procedures acoustic impacts. Levels of acoustic information from tagging studies, needed for certain activities, and impact are likely to be under- or over- coastal surveys and passive acoustic training in large areas also helps the estimated depending on whether the monitoring allows some degree of Navy avoid observation by potential location of the modeled event is further understanding of seasonal areas for adversaries. Modern sensing from the important habitat area, or when and where they may be traveling technologies make training on a large closer to it, than the actual event. Thus, and foraging. Any overlap in their scale without observation more difficult. there is a need for the Navy to compile seasonal movements and the Navy’s A foreign military’s continual and provide more information regarding testing and training activities will observation of U.S. Navy training in the number, nature, and timing of increase adverse impacts. predictable (e.g., compiled and publicly testing and training events that take Response: This final rule and the 2020 disclosed) geographic areas and place within, or in close proximity to, NWTT FSEIS/OEIS are structured to timeframes would enable foreign important habitat areas, and to refine its provide flexibility in training and nations to gather intelligence and scale of analysis of operations to match testing locations, timing, and number. subsequently develop techniques, the scale of the habitat areas that are Many factors influence actual training tactics, and procedures to potentially considered to be important. And there is and testing locations that cannot be and effectively counter U.S. naval a need for NMFS to demand it. predicted in advance (e.g., weather), so operations. The commenter stated that while the the analysis must allow for flexibility. Still, the Navy’s rulemaking/LOA 2019 NWTT DSEIS/OEIS, in assessing The analysis must consider multiple application and the 2020 NWTT FSEIS/ environmental impacts on marine Navy training and testing activities over OEIS provide a significant level of mammals, breaks down estimated large areas of the ocean for a seven-year information about the locations of impacts by population, little detail is period; therefore, analyzing activities in specific activities (see, e.g., Chapter 2 provided about assumptions concerning multiple locations over multiple seasons (Description of Proposed Action and modeled locations and times of year. produces the best estimate of impacts/ Alternatives) and Appendix A (Activity See, e.g., DSEIS at 2–28 to 2–38 (e.g., take to inform the 2020 NWTT FSEIS/ Descriptions) of the FSEIS/OEIS), which defining numerous activities as simply OEIS and for NMFS to use to make its NMFS has used in its analysis of Navy occurring ‘‘[o]ffshore’’). The commenter determinations. The scale at which activities and their impacts to marine further stated that the proposed rule spatially explicit density models are mammals in the NWTT Study Area. notice adds nothing further, making it structured is determined by the data Chapter 2 of the 2020 NWTT FSEIS/ impossible for the public to assess the collection method and the OEIS also describes Standard Operating reasonableness of NMFS take estimates environmental variables that are used to Procedures that may influence activity and negligible impact analysis in build the model. A number of variables location. Additionally, this final rule, capturing the distribution of the that are meaningful to marine mammal and Chapter 5 (Mitigation) and activities proposed in the document. species, such as sea surface temperature, Appendix K (Geographic Mitigation Additionally, the commenter asserts do not vary or affect species on a fine Assessment) of the 2020 NWTT FSEIS/ that the lack of definition in activity scale. Expecting fine scale resolution OEIS describe mitigation measures,

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72332 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

including in specific mitigation areas, takes becomes non-negligible; using the estimating the number of instances of that the Navy is required to implement level where the probability of take was injury and mortality, NMFS makes two during 2020–2027 NWTT activities. In near 100 percent for the level where the post hoc adjustments, significantly addition to the above considerations, probability of take was 50 percent; reducing the totals based on presumed conservative assumptions are used in extrapolating values derived from animal avoidance and mitigation the quantitative assessment process, as laboratory experiments that were effectiveness. The commenter asserts described in the technical report titled conducted on trained animals to wild that these two adjustments are arbitrary Quantifying Acoustic Impacts on animals without regard for the and non-conservative. Marine Mammals and Sea Turtles: implications of training; and ignoring Response: First, we note that no Methods and Analytical Approach for other available data, resulting in a mortality or non-auditory injury from Phase III Training and Testing (U.S. further underestimation of takes. The exposure to explosives was modeled for Department of the Navy, 2018c), an commenter discusses several other any species in the NWTT Study Area, so analysis which NMFS has reviewed and points related to the development, the post-modeling approach was not concurs with. The Navy also interpretation, and application of the applied in relation to mortality. implements conservative application of behavioral harassment thresholds used Regarding the reference to concerns marine mammal behavioral response in prior Navy NWTT rules. about the killer whale mortality, the data in the development of behavioral Response: The commenter is referring comment references vague and response criteria, as described in the to the Phase II behavioral criteria, which unsupported claims that the author of a technical report titled Criteria and were utilized in the previous NWTT news article received from interviewees Thresholds for U.S. Navy Acoustic and rulemaking (2015–2020). In Phase III for questioning a NMFS report. NMFS is Explosive Effects Analysis (Phase III) this rulemaking, the Navy and NMFS unaware of information supporting the (U.S. Department of the Navy, 2017h), incorporated the best available science claim that Navy sonar or explosive use which NMFS has also reviewed and into new BRFs that are described in the has caused the death of a killer whale. concurs with. (Both technical reports technical report titled Criteria and The consideration of marine mammal are available at www.nwtteis.com.) Thresholds for U.S. Navy Acoustic and avoidance and mitigation effectiveness Additionally, implementation of the Explosive Effects Analysis (Phase III) is integral to NMFS’ and the Navy’s adaptive management process under the (U.S. Department of the Navy, 2017a), overall analysis of impacts from sonar Letters of Authorization issued under available at www.nwtteis.com. NMFS and explosive sources. NMFS has this final rule further ensures that the reviewed and concurs with the Phase III independently evaluated the method Navy does not exceed the level of behavioral criteria described in the and agrees that it is appropriately authorized take. Finally, the Navy’s technical report. applied to augment the model in the classified exercise reports are required Comment 15: A commenter prediction and authorization of injury to include information regarding recommends that NMFS (1) specify the and mortality as described in the rule. activities conducted and sound sources total numbers of model-estimated Level Details of this analysis are provided in used within specific mitigation areas, A harassment (PTS) and mortality takes the Navy’s 2018 technical report titled which provides the sort of rather than reduce the estimated Quantifying Acoustic Impacts on geographically-explicit information the numbers of takes based on the Navy’s Marine Mammals and Sea Turtles: commenter is referencing and may be post-model analyses, (2) include the Methods and Analytical Approach for used to inform the adaptive model-estimated Level A harassment Phase III Training and Testing. Detailed management process and future rules. and mortality takes in its negligible information on the mitigation analysis Comment 14: A commenter stated that impact determination analyses, and (3) was included in the proposed rule, rather than using a fixed received level authorize the model-estimated Level A including information about the threshold for whether a take is likely to harassment and mortality takes if the technical report, and NMFS disagrees occur from exposure to mid-frequency respective negligible impact with the commenters’ suggestions that sonar, the Navy has proposed a method determinations are able to be made and, there was not enough information by for incorporating individual variation. if not, require the Navy to implement which to evaluate the Navy’s post- Risk is predicted as a function of three additional measures to mitigate such modeling calculations or that the parameters: (1) A basement value below takes. methods are arbitrary or non- which takes are unlikely to occur; (2) Another commenter stated that conservative. the level at which 50 percent of NMFS’ post hoc adjustment for Sound levels diminish quickly below individuals would be taken; and (3) a operational mitigation effectiveness is levels that could cause PTS. sharpness parameter intended to reflect not a trivial or an abstract issue. It has Specifically, behavioral response the range of individual variation. The the apparent effect of eliminating risk of literature, including the recent 3S commenter stated that even when mortality from explosives known to be studies (multiple controlled sonar parameters employed are based on the of a power to kill marine mammals. exposure experiments on cetaceans in best available science, the implications Some experts have raised concerns that Norwegian waters) and SOCAL BRS of uncertainty in the values and biases one Southern Resident killer whale studies (multiple cetacean behavioral and limitations in the model tend to mortality (whale L112) was caused by response studies in Southern lead to underestimation of the number naval explosives or ordnance. NMFS California), indicate that multiple of takes. The commenter asserts that should have made the Navy’s approach species from different cetacean data were incorrectly interpreted when transparent and explained the rationale suborders do in fact avoid approaching calculating parameter values, resulting for its acceptance of that approach. Its sound sources by a few hundred meters in a model that underestimates takes. failure to do so has prevented the public or more, which would reduce received The commenter states that errors from effectively commenting on its sound levels for individual marine included failure to recognize the approach to this issue, in contravention mammals to levels below those that difference between the mathematical of the APA, on a matter of obvious could cause PTS (see Appendix B of the basement plugged into the model, and significance to the agency’s core Criteria and Thresholds for U.S. Navy the biological basement value, where negligible impact findings. The Acoustic and Explosive Impacts to the likelihood of observed and predicted commenter further states that, in Marine Mammals and Sea Turtles

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72333

Technical Report (U.S. Department of assessed the effectiveness of its participating in the activity whenever the Navy, 2017) and Southall et al. mitigation measures on a per-scenario possible as they conduct their primary (2019a)). The ranges to PTS for most basis for four factors: (1) Species mission responsibilities. However, as a marine mammal groups are within a few sightability, (2) a Lookout’s ability to conservative approach to assigning tens of meters and the ranges for the observe the range to permanent mitigation effectiveness factors, the most sensitive group, the HF cetaceans, threshold shift (for sonar and other Navy elected to account only for the average about 200 m, to a maximum of transducers) and range to mortality (for minimum number of required Lookouts 330 m in limited cases. For blue whales explosives), (3) the portion of time when used for each activity; therefore, the and other LF cetaceans, the range to PTS mitigation could potentially be mitigation effectiveness factors may is 67 m for MF1 30 sec duration conducted during periods of reduced underestimate the likelihood that some exposure, which is well within the daytime visibility (to include inclement marine mammals may be detected mitigation zones for hull-mounted weather and high sea-state) and the during activities that are supported by MFAS. Therefore, the anticipated portion of time when mitigation could additional personnel who may also be avoidance to the distances discussed potentially be conducted at night, and observing the mitigation zone. would greatly reduce the likelihood of (4) the ability for sound sources to be Although the Navy Acoustic Effects impacts to hearing such as TTS and positively controlled (e.g., powered Model (NAEMO) predicted PTS takes PTS. As discussed in the proposed rule, down). The Navy’s report clearly from the NWTT activities, no mortality this final rule, and the Navy’s report, describes how these factors were or non-auditory injuries were predicted animats in the Navy’s acoustic effects considered, and it is not necessary to by NAEMO. For all of the reasons above, model do not move horizontally or view the many tables of numbers NMFS considers the estimated and ‘‘react’’ to sound in any way. generated in the assessment to evaluate authorized take (that was adjusted for Accordingly, NMFS and the Navy’s the method. Further, this information is aversion and mitigation) appropriate, analysis appropriately applies a not readily available in a format that and that is what has been analyzed in quantitative adjustment to the exposure could be shared and it would take the negligible impact analysis. results calculated by the model (which extensive work to provide the necessary Accordingly, we decline the otherwise does not consider avoidance description of this data. commenter’s recommendation to or mitigation). The g(0) values used by the Navy for analyze and authorize the model- As discussed in the Navy’s report, the their mitigation effectiveness estimated PTS, as it is neither expected Navy’s acoustic effects model does not adjustments take into account the to occur nor authorized. Given that we consider procedural mitigations (i.e., have declined a re-evaluation based on power-down or shut-down of sonars, or differences in sightability with sea state, the PTS numbers the commenter pausing explosive activities when and utilize averaged g(0) values for sea recommends, the suggestion that we animals are detected in specific zones states of 1–4 and weighted as suggested would subsequently then assess adjacent to the source), which by Barlow (2015). Using g(0) values is whether additional mitigation were necessitates consideration of these an appropriate and conservative necessary to satisfy the negligible factors in the Navy’s overall acoustic approach (i.e., it underestimates the impact standard is inapplicable. analysis. Credit taken for mitigation protection afforded by the Navy’s However, we reiterate that even when effectiveness is extremely conservative. mitigation measures) for the reasons the estimated take has been determined For example, if Lookouts can see the detailed in the technical report. For to have a negligible impact on the whole area, they get credit for it in the example, during line-transect surveys, calculation; if they can see more than there are typically two primary affected species or stocks, it is still half the area, they get half credit; if they observers searching for animals. Each necessary, as a separate matter, to can see less than half the area, they get primary observer looks for marine identify measures that will effect the no credit. Not considering animal species in the forward 90-degree least practicable adverse impact on the avoidance and mitigation effectiveness quadrant on their side of the survey affected species or stocks and their would lead to a great overestimate of platform and scans the water from the habitat and, as described elsewhere, we injurious impacts. NMFS concurs with vessel out to the limit of the available have done so for this rule. the analytical approach used, i.e., we optics (i.e., the horizon). Because Navy Comment 16: A commenter stated that believe the estimated take by Level A Lookouts focus their observations on while the cause remains unknown, the harassment numbers represent the established mitigation zones, their area skinniness and emaciation of stranded maximum number of these takes that are of observation is typically much smaller gray whales associated with the current likely to occur and it would not be than that observed during line-transect UME strongly suggests a decline in prey appropriate to authorize a higher surveys. The mitigation zone size and availability. A previous die-off in 1998– number or consider a higher number in distance to the observation platform 2000 of gray whales was associated with the negligible impact analysis. varies by Navy activity. For example, strong El Nin˜ o and La Nin˜ a events and The Navy assumes that Lookouts will during hull-mounted mid-frequency a regime shift in the benthic prey base not be 100 percent effective at detecting active sonar activities, the mitigation of the Bering Sea. For the scientific all individual marine mammals within zone extends 1,000 yd from the ship community, the present-day concern is the mitigation zones for each activity. hull. During the conduct of training and that warming seas—caused by climate This is due to the inherent limitations testing activities, there is typically at change—are reducing primary of observing marine species and because least one, if not numerous, support productivity in the whales’ northern the likelihood of sighting individual personnel involved in the activity (e.g., foraging range and that vanishing sea ice animals is largely dependent on range support personnel aboard a is constricting populations of ice- observation conditions (e.g., time of day, torpedo retrieval boat or support associated amphipods. If so, the die-off sea state, mitigation zone size, aircraft). In addition to the Lookout may be a ‘‘harbinger of things to come,’’ observation platform) and animal posted for the purpose of mitigation, in the words of one NOAA ecologist, a behavior (e.g., the amount of time an these additional personnel observe for diminished, more tenuous future for the animal spends at the surface of the and disseminate marine species sighting species rather than a one- or two-year water). The Navy quantitatively information amongst the units anomaly.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72334 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

The commenter states that it is well rule, include one mortality over the that it is fully supported by the best established that animals already seven years covered by this rule, or 0.14 available science. Based on a growing exposed to one stressor may be less mortality annually, which has been body of behavioral response research, capable of responding successfully to analyzed in the context of its impacts on animals do in fact avoid the immediate another; and that stressors can combine the stock in the Analysis and Negligible area around sound sources to a distance to produce adverse synergistic effects. Impact Determination section. However, of a few hundred meters or more Here, disruption in gray whale behavior this mortality is associated with ship depending upon the species. Avoidance can act adversely with the inanition strike, not behavioral disturbance, and to this distance greatly reduces the caused by lack of food, increasing the given the severity and magnitude of the likelihood of impacts to hearing such as risk of stranding and lowering the risk authorized Level B harassment take TTS and PTS, respectively. Specifically, of survival in compromised animals. reiterated above, the effects of the take the ranges to PTS for most marine Further, starving gray whales may travel would not accumulate to impact annual mammal groups are within a few tens of into unexpected areas in search of rates of recruitment or survival. meters and the ranges for the most food—a likely contributing cause of Comment 17: A commenter stated that sensitive group, the HF cetaceans, some of the ship-strikes observed in by itself, NMFS’ avoidance adjustment average about 200 m, to a maximum of recently stranded animals. NMFS effectively reduces the number of 270 m in limited cases. NMFS continues estimates that the Navy’s activities will estimated auditory injuries by 95 to consider the adjustments for cause as many as 43 takes of gray percent, on the assumption that marine avoidance appropriate and declines the whales each year, including 15 cases of mammals initially exposed to three or recommendation that the adjustment temporary hearing loss caused by four sonar transmissions at levels below not be included in the estimation of underwater explosives, indicating the those expected to cause permanent take. potential for adverse interactions with injury would avoid injurious exposures. In regard to the comment about nutritionally-stressed animals. While it is certainly true that some vessels moving faster than animals’ The commenter states that in marine mammals will flee the sound, ability to get out of the way, animals do considering the effects of acoustic there are no data to inform how many not need to predict where an exercise exposure on gray whales, NMFS must would do so, let alone that 95 percent will occur—in the vast majority of cases carefully consider the biological context would move as expeditiously as the they can hear it coming. Further, the of behavioral disruption in that species agency presumes. Marine mammals may fact that vessels may move more rapidly and evaluate the potential for severe remain in important habitat, and the than animals just makes it less likely consequences—including the clear most vulnerable individuals may linger that the animal would remain close potential mortality, which, in violation in an area, notwithstanding the risk of enough to the source for the duration of the MMPA, is not authorized in the harm; marine mammals cannot necessary to incur injury. NMFS and the proposed rule. necessarily predict where an exercise Navy have appropriately considered Response: This final rule includes 43 will travel; and Navy vessels engaged in animal movement in relation to testing takes by Level B harassment of gray certain activities may move more and training activities and the whales, less than one percent of the rapidly than a marine mammal that is commenter’s observation does not Eastern North Pacific stock, and no attempting to evacuate. Some necessitate any changes in our methods. Level A harassment (PTS or non- commenters suggested that NMFS Comment 18: A commenter auditory injury) of gray whales is should not adjust for avoidance. recommends that NMFS ensure that its anticipated or authorized. As discussed Response: The consideration of density estimates and abundance in the Analysis and Negligible Impact marine mammals avoiding the area estimates used in the negligible impact Determination section, the take by immediately around the sound source is determination analyses for harbor seals behavioral disturbance for any affected provided in the Navy’s 2018 technical in Hood Canal, Washington Northern gray whale is expected to be at a report titled Quantitative Analysis for Inland Waters, and Southern Puget moderate or low level and likely to Estimating Acoustic and Explosive Sound are consistent, and if more recent occur on no more than one day within Impacts to Marine Mammals and Sea abundance estimates from Navy a year for any individual. Nonetheless, Turtles and additional discussion is monitoring efforts were used to inform NMFS shares the commenter’s concern provided in NMFS’ response to the negligible impact determination for this stock given the UME and, as Comment 15. As the commenter analyses, use those same abundances discussed in the Mitigation Measures correctly articulates: ‘‘For avoidance, estimates to inform its density estimates section and elsewhere in this section, the Navy assumed that animals present and re-estimate the numbers of takes measures have been added since the beyond the range to onset PTS for the accordingly. If NMFS intends to use the proposed rule that are expected to first three to four pings are assumed to ‘‘instances of total takes as a percentage further reduce the number and severity avoid any additional exposures at levels of the abundance’’ in the final rule, the of the takes of gray whales. However, that could cause PTS. That equated to commenter recommends that it ensure even if the impacts of the expected take approximately 5 percent of the total that the abundance estimates, total was exacerbated by the compromised pings or 5 percent of the overall time takes, and instances of total takes as a condition of a given individual, which active; therefore, 95 percent of marine percentage of the abundance are could happen, there is no reason to mammals predicted to experience PTS accurately stipulated for all three expect that the level and severity of take due to sonar and other transducers were metrics in the relevant tables. anticipated to result from the Navy’s instead assumed to experience TTS.’’ Response: NMFS has updated the activities would result in mortality as As discussed in the Navy report, abundance estimates for inland stocks of the commenter has suggested. Further, animats in the Navy’s acoustic effects harbor seals using data from Jefferson et this gray whale stock is considered to be model do not move horizontally or al. (2017) and Smultea et al. (2017) in increasing. ‘‘react’’ to sound in any way, this final rule and the same has been Further, the commenter incorrectly necessitating the additional step of done in the 2020 NWTT FSEIS/OEIS. states that NMFS did not include considering animal avoidance of close- The Analysis and Negligible Impact mortality of gray whales in the proposed in PTS zones. NMFS independently Determination section reflects these rule. The proposed rule, and this final reviewed this approach and concurs latest abundance estimates and includes

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72335

a complete explanation for how they Response: NMFS does not conclude separation of individuals). Thus, either were calculated. The new information that there is no possibility for mortality all whales would respond at the does not change the in-water density to occur as a result of the Navy’s sonar threshold for the most sensitive estimates, and therefore the number of activities, rather, we reason that individual present, or stress rather than takes did not change. consideration of all applicable avoidance in some or most individuals Comment 19: A commenter stated that information (the best available science) would be the response. Another as it has done for every Navy offshore does not indicate that such mortality is commenter suggested that NMFS does range in its third round of MMPA reasonably likely to result from the not consider calving cycles and authorizations, NMFS finds, Navy’s activities within the seven-year migration in the analysis. notwithstanding a long record, that the span of the NWTT rule. In a related comment, a commenter Navy’s use of active sonar would not NMFS has acknowledged that it is stated that first, not only do takes occur result in a single instance of serious possible for naval activities using hull- at far greater distances than predicted by injury or mortality in any cetacean mounted tactical sonar to contribute to the Navy’s risk model, the fact that species. In doing so, the agency is at the death of marine mammals in certain larger areas are exposed to a given pains to dismiss the scientific literature. circumstances via strandings resulting received level with increasing distance It spends almost five columns of the from behaviorally mediated from the source further multiplies the Federal Register notice characterizing physiological impacts or other gas- number of takes. This implies takes of the leading scientific explanation for related injuries. In the proposed rule, specific individuals will be of greater sonar-related injuries in beaked NMFS discussed these potential causes duration and be repeated more often, whales—maladaptive behavioral and outlined the few cases where active resulting in unexpectedly large response—as a mere ‘‘hypothesis’’ about naval sonar (in the United States or, cumulative effects. Second, corrections which more information is needed. In largely, elsewhere) had either need to be made for bias, and this, it elides the obvious fact that this potentially contributed to or (as with the corrections will need to be larger for ‘‘hypothesis’’ is supported by numerous Bahamas example) been more species for which there are no data than papers along multiple lines of evidence, definitively causally linked with marine for species for which there are poor including forensic investigations, mammal mass strandings (more than data. Third, the greater range at which laboratory study of organ tissue, and two animals). There have been no takes would occur requires more careful theoretical work on dive physiology, documented mass strandings of beaked consideration of habitat-specific risks and plainly constitutes best available whales in the NWTT Study area since and fundamentally different approaches science. And it concludes by opining stranding data began to be collected. to mitigation. As discussed in the proposed rule and Response: The NAEMO brings that, even if the ‘‘hypothesis’’ were true, the Estimated Take of Marine Mammals together scenario simulations of the pathologies would occur only upon section of this final rule, there are a Navy’s activities, sound propagation exposure ‘‘at very close range over a suite of factors that have been associated modeling, and marine mammal prolonged period of time,’’ which, it with these specific cases of strandings distribution (based on density and says, would not happen here. It directly associated with sonar (steep group size) by species or stock to model provides no evidence for this bathymetry, multiple hull-mounted and quantify the exposure of marine conclusion, which should not come as platforms using sonar simultaneously, mammals above identified thresholds a surprise since it is contradicted by the constricted channels, strong surface for behavioral harassment, TTS, PTS, agency’s own investigations into at least ducts, etc.) that are not present together non-auditory injury, and mortality. It two prior mass stranding events. in the NWTT Study Area and during the includes social factors (e.g., group sizes) The commenter stated that there is no specified activities (and which the Navy typical of the species modeled. The question that sonar causes mortalities of takes care across the world not to Southern Resident killer whale densities beaked whales and other species, and operate under without additional inherently consider group size over that the severe injuries observed in monitoring). The number of incidences large areas. We expect that on many beaked whales across multiple sonar- of strandings resulting from exposure to days, the Navy’s impacts will not affect related mortality events occur active sonar are few worldwide, there Southern Resident killer whales, while independent of the animals’ stranding. are no major training exercises utilizing on days that Southern Resident killer The commenter stated that NMFS’ multiple hull-mounted sonar in the whales are affected, multiple refusal to incorporate such impacts into NWTT Study Area, the overall amount individuals may be impacted, given its rulemaking violates the MMPA, of active sonar use is low relative to group size. That said, all Southern which requires that decisions be based other Navy Study Areas, and there have Resident killer whale takes are expected on best available science and which, not been any documented mass to be takes by Level B harassment consistent with the 1994 Amendments strandings of any cetacean species in the (behavioral disturbance and TTS) only. to the Act, implicitly sets a probability NWTT Study Area. Appropriately Regarding the commenter’s assertion standard of potentiality for takes therefore, the Navy has not requested, that NMFS and the Navy have resulting in serious injury and mortality. and NMFS does not anticipate or mischaracterized either the size of the In a related comment, another authorize, incidental take by mortality ensonified area or the number of commenter stated that while the Navy is of beaked whales or any other species as animals that will be exposed, we aware of this correlation between sonar a result of sonar use. disagree. As discussed in the technical testing and stranded marine mammals, Comment 20: Some commenters report titled Quantifying Acoustic they choose to ignore the data and stated that the Navy Acoustic Effects Impacts on Marine Mammals and Sea proceed with ‘‘hopeful’’ predictions that Model (NAEMO) has limitations as it Turtles: Methods and Analytical estimate no incidences of mortality or does not consider social factors, and this Approach for Phase III Training and serious injury, despite contrary is likely to result in the model Testing (U.S. Department of the Navy, evidence from past use of sonar testing. underestimating takes (i.e., since 2018) available at www.nwtteis.com, The commenter states that the Southern resident killer whales travel in marine mammal density data are documented history of sonar related groups, one whale ignoring noise while provided as a 10 × 10 km grid in which injuries and death cannot be ignored. another avoids it would result in each cell has a mean density and

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72336 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

standard error. In the NAEMO, species model. However, the Navy and NMFS Southern Resident killer whale densities are distributed into simulation have used the best available science in detections are highest. The Navy has areas. Sixty distributions that vary based the approach outlined for this rule, and clarified that it does not frequently on the standard deviation of the density appropriately incorporated conduct training or testing activities in estimates are run per season (warm and consideration of marine mammal social the location of the Cape Flattery cool) for each species to account for dynamics, as well as the likely area of Offshore since that area is statistical uncertainty in the density ensonification, in the model used in the highly utilized by commercial vessel estimate. The NAEMO also uses estimation of take. Further, the Potential traffic, making it an undesirable location accepted propagation models and Effects of Specified Activities on Marine for the Navy to conduct activities, incorporates extensive databases of Mammals and their Habitat section in especially sonar training or testing. physical environmental data to the proposed rule included a Emmons et al. (2019) reported a number accurately predict acoustic propagation, comprehensive discussion of the of sonar detections at the Cape Flattery as described in this same technical different ways that marine mammals Offshore hydrophone, but this was not report. This includes modeling for have been observed to respond to normalized for effort, which was also potential impacts at distances far from acoustic stimuli (e.g., separation) and highest at the Cape Flattery Offshore a sound source. The energy from NMFS used this information hydrophone location, which could have multiple exposures during an event qualitatively in addition to the the effect of overstating detections in (e.g., multiple sonar pings) are quantitative modeling results to that area. Further, Emmons et al. (2019) accumulated to assess auditory impacts. evaluate the impacts of anticipated take reported on detections of mid-frequency Takes of individuals are accurately on individuals and the species or stock active sonar, but did not distinguish accounted for in the quantitative in the Analysis and Negligible Impact between various sources (U.S. versus analysis as described in 2020 NWTT Determination section. Also, where Canadian navies, among other users). FSEIS/OEIS and the above supporting available, other information regarding Historically, the annual usage of MF1 technical report. biologically important areas and times sonar by the U.S. Navy in the Olympic The Navy compiled data from was considered in the development of Coast National Marine Sanctuary (which multiple sources and developed a mitigation measures. overlaps with the Cape Flattery Offshore protocol to select the best available Comment 21: A commenter stated that hydrophone) over the last 10 years has density estimates based on species, area, the proposed rule did not incorporate been minimal. As described in the and time (i.e., season), including those the latest, most seasonally specific Mitigation Measures section, NMFS and for species with poor data. This process distribution and hotspot information for the Navy developed additional is described in the technical report Southern Resident killer whales. In mitigation measures to further avoid or titled U.S. Navy Marine Species Density particular, the commenter asserted that reduce potential impacts from the Database Phase III for the Northwest NMFS does not specifically propose to Navy’s activities on Southern Resident Training and Testing Study Area (U.S. use recent monitoring evidence from killer whales and other marine species Department of the Navy, 2019), NOAA’s hydrophone network in its in key foraging, breeding, and migration available at www.nwtteis.com. analysis. While the Navy did propose to habitat areas. For example, NMFS and The commenter notes ‘‘larger areas are work with NMFS to determine the the Navy have included a new exposed to a given received level with likelihood of gray whale and Southern mitigation area known as the Juan de increasing distance from the source Resident killer whale presence, the Fuca Eddy Marine Species Mitigation further multiplies the number of takes,’’ commenter asserted that NMFS does not Area, which encompasses waters off seeming to suggest that this means that require itself or the Navy to rely on Cape Flattery as recommended by the the take estimates should be higher than NOAA’s hydrophone network. This commenter. The Navy’s mitigation now they are. However, this comment does omission is of particular concern includes annual limits on hull-mounted not account for the behavioral because NOAA’s monitoring shows mid-frequency active sonar and harassment thresholds used by NMFS considerable temporal and spatial prohibits explosive Mine and the Navy, which include both BRFs overlap between high-use testing areas Countermeasures and Neutralization describing how a smaller portion of for active sonar and explosives and Testing in the Juan de Fuca Eddy exposed animals respond in a manner high-use areas by Southern Resident Marine Species Mitigation Area. All that qualifies as a take at lower received killer whales off Washington’s north levels, as well as distance cutoffs—both coast. other explosive activities are required to of which counter the assertion that large Response: The Navy and NMFS used be conducted 50 nmi from shore in the numbers of animals will be taken at the best available science regarding Marine Species Coastal Mitigation Area. increasing distances from the source. distribution and hotspots of Southern In addition, NMFS and the Navy Regarding the comment about Resident killer whales both in the developed a new mitigation for the mitigation, while there is no specific density numbers that informed the take Navy to issue annual awareness recommendation, we note that NMFS estimates, as well as in the notification messages to alert Navy has worked with the Navy to carefully consideration of mitigation. The data ships and aircraft to the possible consider the risks and to develop a suite the commenter is noting, Emmons et al., presence of increased concentrations of of mitigation measures to avoid or 2019 (which is Navy-funded work Southern Resident killer whales reduce potential impacts to species utilizing the referenced hydrophones) seasonally, which will further help (such as the Southern Resident killer was considered in both this final rule avoid potential impacts from vessel whale) and their habitat to the and the 2020 NWTT FSEIS/OEIS. The movements and training and testing maximum extent practicable, including commenter has suggested that the Cape activities on this stock. numerous new mitigation measures Flattery Offshore region is a ‘‘high use’’ Comment 22: A commenter stated that developed for the final rule. area for the Navy based on findings from Tables 19–31 fail to include effects from All models have limitations, and there Emmons et al. (2019) and suggests that ASW2 mid-frequency sonar on marine is no way to fully incorporate all of the the Navy consider moving activities mammals. Although it appears that such interactions of the biotic and abiotic away from the Cape Flattery area in the tests will only occur 12 or more nmi components of a living system into a spring (April, May, and June) when offshore, the distribution of Southern

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72337

Resident killer whales and many other clearly have a negligible impact, even in will less successfully reduce these cetaceans still have considerable the absence of mitigation. impacts on marine mammals. Further, potential overlap with that zone. The Comment 24: A commenter the commenter has not provided commenter stated that NMFS must recommends that NMFS follow an information that shows that their require the Navy to provide a table analysis consisting of three elements to proposed approach would more showing the ranges to temporary and (1) determine whether the impacts of successfully evaluate mitigation under permanent threshold shifts for the the proposed activities are negligible at the LPAI standard, and we decline to ASW2 sonar bin and clarify the the species or stock level, (2) if so, accept it. predicted effects on marine mammals determine whether some of those Comment 26: A commenter stated that before approving the use of such sonar/ impacts nevertheless are adverse either although NMFS has written extensively activities. to marine mammal species or stocks or on the least practicable adverse impact Response: The range to impact tables to key marine mammal habitat, and (3) standard, it remains unclear exactly that the commenter references are if so, determine whether it is practicable how each authorization’s proposed provided for the most impactful for the applicant to reduce or eliminate ‘‘mitigation measures are sufficient to activities, and ASW2 sonar is not one of those impacts through modifying those meet the statutory legal standard,’’ or the most impactful activities. The Navy activities or by other means (e.g., even what standard NMFS is using. As has provided, and NMFS has presented, requiring additional mitigation such, the commenter recommends that information on representative bins from measures to be implemented). NMFS address these shortcomings by the Navy’s activities to demonstrate the Response: In the Mitigation Measures adopting a simple, two-step analysis ranges to impacts for marine mammals. section of the rule, NMFS has explained that more closely tracks the statutory The Navy is unable to provide in detail our interpretation of the least provisions being implemented. The first information on ranges to impact for bins practicable adverse impact standard, the step should be to identify impacts on that are classified, including ASW2 rationale for our interpretation, and then marine mammal species or stocks or sonar. The Navy has reviewed the how we implement the standard. The their habitat that, although negligible, scenarios and events associated with the method the agency is using addresses all are nevertheless adverse. If such of the necessary components of the ASW2 bin and there are zero estimated impacts are identified, then NMFS must standard and produces effective Southern Resident killer whale identify and require the applicant to mitigation measures that result in the exposures. NMFS has carefully adopt measures to reduce those impacts least practicable adverse impact on both reviewed this information and the to the lowest level practicable. If NMFS the species or stocks and their habitat. Navy’s methods and concurs with this is using some other legal standard to The commenter has failed to illustrate conclusion. implement the least practicable adverse why NMFS’ approach is inadequate or impact requirements, the commenter Mitigation and Monitoring why the commenter’s proposed further recommends that NMFS provide approach would be better, and we Least Practicable Adverse Impact a clear and concise description of that Determination therefore decline to accept the recommendation. standard and explain why it believes it Comment 23: A commenter Comment 25: A commenter to be ‘‘sufficient’’ to meet the statutory recommends that NMFS clearly separate recommended that NMFS rework its legal requirements. its application of the least practicable evaluation criteria for applying the least Response: NMFS disagrees with the adverse impact requirement from its practicable adverse impact standard to commenter’s assertion that analysis of negligible impact determination. Once separate the factors used to determine the rule’s mitigation measures under the NMFS determines that an applicant’s whether a potential impact on marine least practicable adverse impact proposed activities would have a mammals or their habitat is adverse and standard remains unclear or that the negligible impact, it still has a whether possible mitigation measures suggested shortcomings exist. Further, responsibility to determine whether the would be effective. the commenter provides no rationale as activities would nevertheless have Response: In the Mitigation Measures to why the two-step process they adverse impacts on marine mammal section, NMFS has explained in detail describe is better than the process that species and stocks and their habitat. If our interpretation and application of the NMFS uses to evaluate the least so, NMFS must condition the least practicable adverse impact practicable adverse impact that is authorization to eliminate or reduce standard. The commenter has described in the rule, and therefore we those impacts whenever, and to the recommended an alternate way of decline to accept the recommendation. greatest extent, practicable. As the interpreting and implementing the least Comment 27: Regarding the habitat statue is written, it is inappropriate to practicable adverse impact standard, in component of the least practicable conflate the two standards, as NMFS which NMFS would consider the adverse impact standard, a commenter seems to be doing. effectiveness of a measure in our recommended that NMFS (1) adopt a Response: NMFS has made clear in evaluation of its practicability. The clear decision-making framework that this and other rules that the agency commenter erroneously asserts that recognizes the species and stock separates its application of the least NMFS currently considers the component and the marine mammal practicable adverse impact requirement effectiveness of a measure in a habitat component of the least in the Mitigation Measures section from determination of whether the potential practicable adverse impact provision its negligible impact analyses and effects of an activity are adverse, but the and (2) always consider whether there determinations for each species or stock commenter has misunderstood NMFS’ are potentially adverse impacts on in a separate section. Further, NMFS has application of the standard—rather, marine mammal habitat and whether it made this separation clear in practice NMFS appropriately considers the is practicable to minimize them. The for years by requiring mitigation effectiveness of a measure in the MMPA requires that NMFS address both measures to reduce impacts to marine evaluation of the degree to which a types of impacts, not that there be no mammal species and stocks and their measure will reduce adverse impacts on overlap between the mitigation habitat for all projects, even those for marine mammal species or stocks and measures designed to reduce those which the anticipated take would their habitat, as a less effective measure impacts.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72338 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Response: NMFS’ decision-making standard’’ for mitigation that requires MMPA. Specifically, for those areas that framework for applying the least the agency to minimize impacts to the were previously covered under the 2015 practicable adverse impact standard lowest practicable level, and that the settlement agreement for the HSTT clearly recognizes the habitat agency must conduct its own analysis Study Area, it is essential to understand component of the provision (see the and clearly articulate it and not just that: (1) The measures were developed Mitigation Measures section of the rule). parrot what the Navy says. The pursuant to negotiations with the NMFS does always consider whether baselessness of this approach can be plaintiffs and were specifically not there are adverse impacts on habitat and seen from the outcome of the selected and never evaluated based on how they can be mitigated. Marine Conservation Council decision, where an examination of the best available mammal habitat value is informed by the parties were able to reach a science that NMFS otherwise applies to marine mammal presence and use and, settlement agreement establishing time- a mitigation assessment and (2) the in some cases, there may be overlap in area management measures, among Navy’s agreement to restrictions on its measures for the species or stock other things, on the Navy’s Southern activities as part of a relatively short- directly and for use of habitat. In this California and Hawaii Range Complexes term settlement (which did not extend rule, we have required time-area notwithstanding NMFS’ finding, beyond the expiration of the 2013 mitigation measures based on a following the Navy, that all such regulations) did not mean that those combination of factors that include management measures would restrictions were practicable to higher densities and observations of substantially affect military readiness implement over the longer term. specific important behaviors of marine and were not practicable. Unfortunately, Regarding the remainder of the mammal species themselves, but also there is no indication in the proposed comments, NMFS disagrees with much that clearly reflect preferred habitat rule that NMFS has, as yet, done of what the commenters assert. First, we (e.g., feeding habitat in the Juan de Fuca anything different here. have carefully explained our Eddy Marine Species Mitigation Area Another commenter stated that NMFS interpretation of the least practicable and areas that have also been designated ‘‘cannot just parrot what the Navy says’’ adverse impact standard and how it as Southern Resident killer whale with respect to analysis of the applies to both stocks and individuals, critical habitat in the Puget Sound and practicability of mitigation measures, in including in the context of the Pritzker Strait of Juan de Fuca Mitigation Area). reference to the opinion in Conservation decision, in the Mitigation Measures In addition to being delineated based on Council for Hawaii v. Nat’l Marine section. Further, we have applied the physical features that drive habitat Fisheries Serv. The commenter asserts standard correctly in this rule in function (e.g., bathymetric features), the that in the proposed rule, NMFS has requiring measures that reduce impacts high densities and concentration of done little more than parrot the Navy’s to individual marine mammals in a certain important behaviors (e.g., position on mitigation for actions in the manner that reduces the probability reproduction, feeding, resting) in these NWTT Study Area, asserting an and/or severity of population-level particular areas clearly indicate the independent review of the Navy’s impacts. When a suggested or recommended presence of preferred habitat. The assertions of impracticability but mitigation measure that would reduce MMPA does not specify that effects to providing no substantiation of that impacts is not practicable, NMFS has habitat must be mitigated in separate review. The commenter states that even explored variations of that mitigation to measures, and NMFS has clearly if NMFS did conduct such a review, NMFS failed to consider and implement determine if a practicable form of included measures that provide additional mitigation measures that are related mitigation exists. This is clearly significant reduction of impacts to both both practicable and effective to reduce illustrated in NMFS’ independent marine mammal species or stocks and the adverse impacts to marine mammals mitigation analysis process explained in their habitat, as required by the statute. in the NWTT Study Area. the Mitigation Measures section of the Comment 28: A commenter cited two The commenter stated that it final rule. First, some types of judicial decisions and commented that commented on the NWTT DSEIS and mitigation required under this rule are the ‘‘least practicable adverse impact’’ the Navy’s request for authorization that area-specific and vary by mitigation standard has not been met. The outlined specific mitigation measures area, demonstrating that NMFS has commenter stated that contrary to the the Navy could incorporate into its engaged in a site-specific analysis to Pritzker Court decision, NMFS, while training and testing activities. More ensure mitigation is tailored when clarifying that population-level impacts specifically, the commenter states that it practicability demands, i.e., some forms are mitigated ‘‘through the application suggested that NMFS consider seasonal of mitigation were practicable in some of mitigation measures that limit closures based on Southern Resident areas but not others. For instance, while impacts to individual animals,’’ has killer whale presence, require additional it was not practicable for the Navy to again set population-level impact as the mitigation in the Southern Resident prohibit surface ship hull-mounted MF1 basis for mitigation in the proposed killer whale offshore habitat area, use of mid-frequency active sonar during rule. Because NMFS’ mitigation analysis real-time whale reporting, and training or testing in all mitigation is opaque, it is not clear what practical additional mitigation measures areas, NMFS did prohibit its use during effect this position may have on its regarding impulsive sound and sonar all training and testing in the Point St. rulemaking. The commenter stated that exposure. The commenter stated that George Humpback Whale Mitigation the proposed rule is also unclear in its NMFS did not assess or incorporate Area, effective July 1 to November 30, application of the ‘‘habitat’’ emphasis in these practicable and effective and included caps on MF1 sonar use in the MMPA’s mitigation standard, and mitigation measures. the Olympic Coast National Marine that while NMFS’ analysis is opaque, its Response: First, the commenter’s Sanctuary Mitigation Area, the Juan de failure to incorporate or even, reference to mitigation measures Fuca Eddy Marine Species Mitigation apparently, to consider viable time-area implemented pursuant to a prior Area, and in the Marine Species Coastal measures suggests that the agency has settlement agreement is entirely Mitigation Area. not addressed this aspect of the Pritzker inapplicable to a discussion of NMFS’ Regarding the comment about decision. The commenter argued that responsibility to ensure the least mitigation of habitat impacts, marine the MMPA sets forth a ‘‘stringent practicable adverse impact under the mammal habitat value is informed by

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72339

marine mammal presence and use and, Navy could incorporate into its training and solicit focused input from the in some cases, there may be overlap in and testing activities, as noted above public. Further, this approach affords measures for the species or stock this final rule includes numerous the same opportunities for public directly and for use of habitat. In this additional mitigation measures, which comment as a stand-alone rulemaking rule, we have required time-area are also included in the 2020 NWTT would. mitigations based on a combination of FSEIS/OEIS. For example, this final rule Comment 30: A commenter stated that factors that include higher densities and includes a new mitigation area in the the Navy fails to establish that its observations of specific important NWTT Offshore Area, the Juan de Fuca harassment is the least practicable behaviors of marine mammals Eddy Marine Species Mitigation Area, method to conduct its research. The themselves, but also that clearly reflect where the Navy will implement sonar commenter states that the MMPA preferred habitat (e.g., humpback whale restrictions and prohibit explosive mine mandates a finding that the planned feeding habitat in the Stonewall and countermeasure and neutralization activities ‘‘. . . effect the least Heceta Bank Humpback Whale activities to further avoid potential practicable impact on such species or Mitigation Area and gray whale feeding impacts on Southern Resident killer stock and its habitat. . . .’’ The habitat in Northern Puget Sound Gray whales and humpback whales. In commenter asserted that the Level A Whale Mitigation Area). In addition to NWTT Inland Waters, the Navy will and Level B harassment that the Navy being delineated based on physical initiate communication with the predicts will occur includes heavy use features that drive habitat function (e.g., appropriate marine mammal detection of sonar technology that has been bathymetric features), the high densities networks prior to certain activities, such correlated with the deaths and and concentration of certain important as Civilian Port Defense—Homeland strandings of thousands of whales and behaviors (e.g., breeding, resting) in Security Anti-Terrorism/Force dolphins during the past 20 years. The these particular areas clearly indicate Protection Exercises and Small Boat commenter further stated that the Navy the presence of preferred habitat. The Attack Exercises, to further avoid fails to address how its proposed commenter seems to suggest that NMFS potential impacts on Southern Resident activities lessen the threat of injury and must always consider separate measures killer whales and gray whales. death. Akin to its failure to address aimed at marine mammal habitat; Comment 29: A commenter stated that population and abundance, the however, the MMPA does not specify since NMFS has expounded on the least commenter says that the Navy fails to that effects to habitat must be mitigated practicable adverse impact standard at consider how decisions involving in separate measures, and NMFS has some length in a series of proposed geography, timing, and other factors clearly identified measures that provide authorizations, it has been an might lessen the ill effects of its actions. significant reduction of impacts to both evolutionary process that varies Response: NMFS’ application of the ‘‘marine mammal species and stocks depending on each specific situation. least practicable adverse impact and their habitat,’’ as required by the The commenter recommends that NMFS standard is described in the statute. adopt general regulations to govern the Implementation of Least Practicable NMFS agrees, however, that the process and set forth the basic steps and Adverse Impact Standard section of this agency must conduct its own analysis, criteria that apply across least final rule. This final rule requires the which it has done here, and not just practicable adverse impact Navy to implement extensive mitigation accept what is provided by the Navy. determinations. Those standards should measures to achieve the least practicable That does not mean, however, that not be shifting on a case by-case basis, adverse impacts on the species and NMFS cannot review the Navy’s as now appears to be the case. Rather, stocks of marine mammals and their analysis of effectiveness and the analytical framework and decision- habitat, including measures that are practicability of its proposed mitigation making standards should be consistent specific to certain times and areas as the measures, which by regulation the Navy across authorizations. Variations commenter suggests, and including was required to submit with its between authorizations should be based additional measures that have been application, and concur with those on the facts underlying each added since the proposed rule. aspects of the Navy’s analysis with application, not the criteria that Mitigation measures include procedural which NMFS agrees. The commenters underpin the least practicable adverse mitigation measures, such as required seem to suggest that NMFS must impact standard. shutdowns and delays of activities if describe in the rule in detail the Response: The commenter marine mammals are sighted within rationale for not adopting every misunderstands the agency’s process. certain distances, and geographic area conceivable permutation of mitigation, Neither the least practicable adverse mitigation measures, including which is neither reasonable nor required impact standard nor NMFS’ process for limitations on activities such as sonar in by the MMPA. NMFS has described our evaluating it shifts on a case-by-case areas that are important for certain well-reasoned process for identifying basis. Rather, as the commenter suggests behaviors such as feeding. These the measures needed to meet the least should be the case, the evaluation itself mitigation measures were designed to practicable adverse impact standard in is case-specific to the proposed activity, lessen the frequency and severity of the Mitigation Measures section in this the predicted impacts, and the impacts from the Navy’s activities on rule, and we have followed the mitigation under consideration. marine mammals and their habitat, and approach described there when Regarding the recommendation to ensure that the Navy’s activities have analyzing potential mitigation for the adopt general regulations, we appreciate the least practicable adverse impact on Navy’s activities in the NWTT Study the recommendation and may consider species and stocks. See the Mitigation Area. Responses to specific the recommended approach in the Measures section of this final rule for recommendations for mitigation future. However, providing directly additional detail on specific procedural measures provided by the commenters relevant explanations of programmatic mitigation measures and measures in are discussed separately. approaches or interpretations related to mitigation areas. Regarding the commenter’s statement the incidental take provisions of the Additionally, we disagree with the that it commented on the NWTT DSEIS MMPA in a proposed incidental take implications of the commenter’s and the Navy’s request for authorization authorization is an effective and statement regarding ‘‘the strandings of with specific mitigation measures the efficient way to provide information to thousands of whales and dolphins’’

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72340 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

being associated with the use of sonar. mitigation area that overlapped the Area, and the Olympic Coast National Please see the Stranding and Mortality Quinault Range Site). Marine Sanctuary Mitigation Area section in the proposed rule for an Additionally, regarding the use of combined. The expanded mitigation accurate characterization of the far dipping sonar, throughout the NWTT will offer additional protections for lower number of instances in which Study Area the Navy plans to conduct humpback whales in the portion of the naval activities have been causally no more than one hour of MF4 sonar Marine Species Coastal Mitigation Area associated with marine mammal (helicopter-deployed dipping sonar) per that overlaps the Point St. George strandings. That section included an year during training events over the Humpback Whale Mitigation Area. extensive discussion assessing the seven-year duration of this final rule. Additional geographic mitigation potential for Navy activities to result in Additionally, the Navy plans to conduct measures for active sonar beyond what stranding, and NMFS’ response to no more than 50 hours of MF4 sonar per is detailed in the Mitigation Areas Comment 19 describes why we do not year during testing events over the section of this final rule and Section K.3 expect the Navy’s NWTT activities to seven-year duration of this rule. Given (Mitigation Areas to be Implemented) of result in the stranding or death of the amount of dipping sonar and the 2020 NWTT FSEIS/OEIS, such as marine mammals from sonar use. comparatively low associated impacts to further expanding mitigation marine mammals, along with the requirements in the Point St. George Mitigation Areas impracticability of including more Humpback Whale Mitigation Area, Comment 31: A commenter restrictions, additional mitigation would be impractical to implement for recommended that NMFS expand the specific to dipping sonar is not the reasons described in Appendix K proposed mitigation measures to more warranted. (Geographic Mitigation Assessment) and comprehensively protect humpback Additional geographic mitigation Section 5.5.1 (Active Sonar) of the 2020 whales at Stonewall and Heceta Bank measures for active sonar beyond what NWTT FSEIS/OEIS. NMFS has carefully between May and November. The is detailed in the Mitigation Areas reviewed this information and commenter recommended that air- section of this final rule and Section K.3 determined that additional mitigation deployed mid-frequency active sonar (Mitigation Areas to be Implemented) of measures would be impracticable. (i.e., dipping sonar) should be the 2020 NWTT FSEIS/OEIS, such as Throughout the NWTT Study Area, prohibited, as well as other activities prohibiting additional types of active the Navy plans to conduct no more than involving sources of mid-frequency sonar or further limiting active sonar one hour of MF4 sonar (helicopter- active sonar, including unit-level hours in the Stonewall and Heceta Bank deployed dipping sonar) per year during training and maintenance and system Humpback Whale Mitigation Area, training events over the seven-year checks while vessels are in transit. The would be impractical to implement for duration of this final rule. Additionally, commenter states that expanded the reasons described in Appendix K the Navy plans to conduct no more than mitigation measures would benefit a (Geographic Mitigation Assessment) and 50 hours of MF4 sonar per year during variety of species, including noise- Section 5.5.1 (Active Sonar) of the 2020 testing events over the seven-year sensitive harbor porpoise, that are likely NWTT FSEIS/OEIS. NMFS has carefully duration of this rule. Please see the to be found in relatively higher densities reviewed this information and response to Comment 52 for additional within the Mitigation Area. The determined that additional mitigation information. Given the amount of commenter recommended that NMFS measures would be impracticable. dipping sonar and comparatively low also include mitigation measures that Potential vessel speed restrictions in associated impacts to marine mammals, limit vessel speeds to reduce the the NWTT Study Area are addressed in along with the impracticability of likelihood of vessel strike. our response to Comment 38. Please including more restrictions, additional Response: This final rule prohibits the refer to that comment for our full mitigation specific to dipping sonar is Navy from conducting surface ship hull- response. not warranted. mounted MF1 mid-frequency active Comment 32: A commenter stated that Potential vessel speed restrictions in sonar during training or testing NMFS should expand the proposed the NWTT Study Area are addressed in activities in the Stonewall and Heceta mitigation measures to more our response to Comment 38. Please Bank Humpback Whale Mitigation Area comprehensively protect humpback refer to that comment for our full (effective May 1 to November 30), as whales at Point St. George Humpback response. included in the proposed rule. Whale Mitigation Area between July and Comment 33: A commenter Additionally, this final rule includes November. The commenter asserted that recommended that NMFS engage with new mitigation which prohibits the within the area the agency should the Navy in a more rigorous analysis of Navy from conducting more than a total prohibit air-deployed mid-frequency alternatives and mitigation options in of 33 hours of surface ship hull- active sonar (i.e., dipping sonar), as well the Puget Sound and Strait of Juan de mounted MF1 mid-frequency active as other activities involving sources of Fuca Mitigation Area (year-round), with sonar during testing annually within 20 mid-frequency active sonar, including the aim of eliminating potential impacts nmi from shore in the Marine Species unit-level training and maintenance and on Southern Resident killer whales. The Coastal Mitigation Area (which includes system checks while vessels are in commenter recommended that NMFS a portion of the Stonewall and Heceta transit. NMFS should also include (1) completely prohibit activity during Bank Humpback Whale Mitigation mitigation measures that limit vessel periods of higher residency or Area), the Juan de Fuca Eddy Marine speeds to reduce the likelihood of vessel occurrence of the population, viz., Species Mitigation Area, and the strike. roughly May through October for the Olympic Coast National Marine Response: This final rule includes Salish Sea (another commenter Sanctuary Mitigation Area combined. new mitigation limiting the Navy to a recommended all year round) and This measure is effective year round. total of 33 hours of surface ship hull- roughly October through mid-February Previously the proposed rule restricted mounted MF1 mid-frequency active for the inland waters of Puget Sound (2) the Navy to 33 hours of MF1 sonar sonar during testing annually within 20 require noise isolation, particularly for annually within only the Olympic Coast nmi from shore in the Marine Species activities such as pierside testing and National Marine Sanctuary Mitigation Coastal Mitigation Area, the Juan de maintenance that are concentrated in Area (excluding the portion of the Fuca Eddy Marine Species Mitigation particular locations (3) set a transparent,

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72341

rigorous protocol for ensuring that Waters only when necessitated by authorized, take of marine mammals as Southern Resident killer whales will not mission-essential training or testing a result of Growler or other overflights. be exposed to noise that can cause program requirements, as it would Regarding the suggestion that NMFS behavioral disruption, before an activity impracticable to ‘‘completely prohibit’’ ensure that Southern Resident killer proceeds, including by using the all activity in the area. Furthermore, the whales will not be exposed to noise that region’s existing real-time hydrophone Navy will implement additional can cause behavioral disruption before networks and by establishing additional mitigation measures for activities that an activity proceeds, including by using hydrophone sites in key areas as are conducted in the mitigation area, the region’s existing real-time needed; and (4) consider measures to such as seasonal awareness messages, hydrophone networks and by mitigate the impacts of the Navy’s communication with sighting establishing additional hydrophone Growler overflights on Southern information networks, limitations on the sites in key areas as needed, please see Resident killer whales and other marine type and location of active sonar and NMFS’ response to Comment 45 species. The commenter stated that the explosive activities, and a prohibition regarding the use of hydrophone networks in real-time mitigation. While mere assurance that Navy biologists will on live fire activities. For example, it is not possible for the Navy to avoid work with NMFS to determine the NMFS and the Navy have formalized all behavioral disruption of Southern likelihood of species occurrence—a existing informal procedures already statement that does not imply use of any Resident killer whales while also conducted for Navy biologists to initiate real-time detection systems—is plainly effectively carrying out their mission, communication with the appropriate not sufficient. The commenter stated the measures NMFS is requiring will marine mammal detection networks in that NMFS should consider the ensure the least practicable adverse likelihood of humpback whale presence NWTT Inland Waters prior to impact on Southern Resident killer in the planned training location, in conducting explosive mine whales and other species and stocks. addition to gray whales and Southern neutralization activities involving the Potential vessel speed restrictions are Residents, in prescribing mitigation. use of Navy divers, Unmanned addressed in the response to Comment The commenter recommended that Underwater Vehicle Training, Civilian 38. Please refer to that comment for our NMFS also include mitigation measures Port Defense—Homeland Security Anti- full response. that limit vessel speeds in the area to Terrorism/Force Protection Exercises, Comment 34: A commenter reduce the likelihood of vessel strike. and Small Boat Attack Exercises. This recommended that NMFS require the Another commenter noted that NMFS mitigation has also been expanded to Navy to expand its mitigation measures does not require the use of publicly include a greater number of activities in to more comprehensively protect gray available whale sighting data to reduce the inland waters, and will help the whales in the Northern Puget Sound the chance of negative interactions Navy plan activities in a way that Gray Whale Mitigation Area between between the Navy and marine minimizes the potential for exposure of March and May. The commenter stated mammals. Southern Resident killer whales and that the Navy should not conduct any Response: The majority of locations in gray whales. Further, with testing or training activities within the which training and testing activities implementation of the new mitigation Mitigation Area from March through occur within the NWTT Inland Waters measures included in this final rule, we May. The commenter recommended do not overlap areas where Southern do not anticipate any take of Southern that, in addition, NMFS should require Resident killer whales occur. For Resident killer whales in NWTT Inland mitigation measures that limit vessel instance, most training and testing Waters due to NWTT training and speeds to reduce the likelihood of vessel occurs in the Hood Canal at Naval Base testing activities. strike. Response: As described elsewhere in Kitsap Bangor and Dabob Bay Range, Additionally, NMFS and the Navy around Keyport, and Bremerton. None this Comments and Responses section, have considered the impacts of Navy the Mitigation Areas section of this final of these locations have had sightings of activities to all species in the Southern Resident killer whales in over rule and Section K.3.3 (Mitigation Areas development of mitigation areas, and 20 years. The only locations with the for Marine Species in NWTT Inland the new mitigation in this area that potential to affect Southern Resident Waters) of the 2020 NWTT FSEIS/OEIS reduces activity levels is likely to killer whales are training events discuss the enhanced mitigation benefit other species such as humpback conducted at Everett, in Crescent Harbor measures in NWTT Inland Waters for and which use Navy 3 OPAREA and whales and gray whales. The gray whales as well as Southern Navy 7 OPAREA. commenter recommends ‘‘noise Resident killer whales and other marine The Mitigation Areas section of this isolation’’ in relation to pierside species. The Navy will implement final rule and Section K.3.3. (Mitigation training, but does not provide enough additional geographic mitigation Areas for Marine Species in NWTT detail for NMFS to understand or measures for activities that are Inland Waters) of the 2020 NWTT address the issue. The mitigation as conducted in the mitigation area, such FSEIS/OEIS include enhanced described in this final rule and the as seasonal awareness messages for gray mitigation measures in NWTT Inland NWTT FSEIS/OEIS represents the whales, limitations on the type and Waters for Southern Resident killer maximum level of mitigation practical location of active sonar and explosive whales, gray whales, humpback whales, to implement, and any further activities, and prohibition of live fire and other marine species. See the mitigation in NWTT Inland Waters, activities. The mitigation required from Changes from the Proposed Rule to the such as mitigation for aircraft the Navy as described in this final rule Final Rule and Mitigation Measures overflights, would be impracticable due and the 2020 NWTT FSEIS/OEIS sections of this rule for a full discussion to implications for safety, sustainability, represents the maximum level of of these new measures. The new and mission requirements for the mitigation practicable. Any further measures in the Puget Sound and Strait reasons described in Chapter 5 mitigation in NWTT Inland Waters, of Juan de Fuca Mitigation Area since (Mitigation) and Appendix K including entirely prohibiting training publication of the proposed rule will (Geographic Mitigation Assessment) of or testing activities within the Northern result in training and testing activities the 2020 NWTT FSEIS/OEIS. Further, Puget Sound Gray Whale Mitigation being conducted in NWTT Inland NMFS does not anticipate, and has not Area between March and May, is

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72342 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

impracticable due to implications for (including the measures added since the Southern Resident killer whales from safety, sustainability, and mission proposed rule), the high degree of December 1 to June 30, humpback requirements for the reasons described impracticability described here supports whales from May 1 through December in Chapter 5 (Mitigation) and Appendix the determination that this additional 31, and gray whales from May 1 to K (Geographic Mitigation Assessment) measure is not warranted, and therefore November 30. To assist in avoiding of the 2020 NWTT FSEIS/OEIS. NMFS is not requiring the additional interactions with whales, the Navy will Potential vessel speed restrictions are mitigation measures suggested by the instruct vessels to remain vigilant to the addressed in the response to Comment commenter. presence of Southern Resident killer 38. Please refer to that comment for our Comment 36: A commenter stated that whales, humpback whales, and gray full response. NMFS should expand activity whales that may be vulnerable to vessel Comment 35: A commenter restrictions within the proposed Marine strikes or potential impacts from recommended that the Navy conduct no Species Coastal Mitigation Area to the training and testing activities. Platforms training or testing activities with mid- greatest extent practicable. The will use the information from the frequency sonar within the vicinity of commenter stated that NMFS should awareness notification messages to Grays Canyon, Guide Canyon, Willapa prohibit or at least significantly limit the assist their visual observation of Canyon, Astoria Canyon, and Eel use of mid-frequency active sonar from applicable mitigation zones during Canyon at any time of year to provide all sources, including dipping sonar (at training and testing activities and to aid protection for deep-diving and/or noise- least between December and June) in the implementation of procedural sensitive species, including endangered within this Mitigation Area, at least out mitigation. Additionally, as included in sperm whales and harbor porpoise. The to the 200-meter isobath or 47 miles the proposed rule, the Navy will commenter additionally recommended from shore; and, similarly, should conduct a maximum of 32 hours of that the Navy observe the mitigation further limit other activities, such as surface ship hull-mounted MF1 mid- measures specified for the Marine mine countermeasures and gunnery frequency active sonar during training Species Coastal Mitigation Area in these activities, that have the potential to annually in the Olympic Coast National canyon areas, as appropriate. result in species take. The commenter Marine Sanctuary Mitigation Area, Response: NMFS and the Navy noted that the waters of greatest concern which overlaps with the Marine Species assessed the practicability of within the Mitigation Area extend Coastal Mitigation Area. The Navy will implementing the commenter’s between Cape Flattery, Washington, and also implement annual restrictions on additional mitigation recommendations. Tillamook Head, Oregon, including the surface ship hull-mounted MF1 mid- As described in Section K.3.2.2.2 waters offshore of the Columbia River frequency active sonar (no more than 33 (Operational Assessment) of the 2020 mouth, as these waters experience the hours total) during testing in three NWTT FSEIS/OEIS, training with active highest relative habitat use for Southern mitigation areas combined: The Marine sonar in varying ocean floor Resident killer whales as indicated by Species Coastal Mitigation Area within topographies, such as near canyons, is presently available satellite telemetry 20 nmi from shore, the new Juan de essential to national security; therefore, data. These additional mitigation Fuca Eddy Marine Species Mitigation additional restrictions on the use of measures would also benefit other at- active sonar near Quinault and in the Area, and the Olympic Coast National risk species, including the Central Marine Sanctuary Mitigation Area. The vicinity of Grays, Guide, Willapa, America and Mexico Distinct Astoria, and Eel Canyons, are annual restriction for testing previously Population Segments of humpback only applied to the Olympic Coast impracticable because such mitigation whale. National Marine Sanctuary Mitigation would preclude access to areas with the Another commenter stated that NMFS Area. This final rule also removes an necessary environmental and should include temporal restrictions oceanographic conditions that replicate based on Southern Resident killer whale exception that excluded the Quinault military mission and combat conditions. activity and to reflect the best available Range Site from the annual sonar Preventing access to critical training location data of marine mammals. The restrictions that was included in the waterspace would have a significant commenter stated that specifically, proposed rule. Now, the annual impact on the ability of Navy units to NMFS should consider limitations on restrictions will apply throughout the meet their individual training and the Navy’s activities in the Marine entire Olympic Coastal National Marine certification requirements (impacting Species Coastal Mitigation Area, which Sanctuary Mitigation Area, including the ability to deploy with the required covers winter habitat areas for Southern within the portion of the mitigation area level of readiness necessary to Resident killer whales. The commenter that overlaps the Quinault Range Site. accomplish their missions), to certify stated that NMFS should limit naval This reduction in activities is in areas forces to deploy to meet national activities, which have the capacity to that are important for Southern Resident security needs (limiting the flexibility of harm Southern Resident killer whales, killer whale and humpback whale the Navy to project power, engage in especially mid–frequency sonar, over feeding and migration. The Navy does multi-national operations, and conduct the winter months in order to limit not generally schedule training and the full range of naval fighting harm to this endangered species. testing near Cape Flattery due to the capability in support of national Response: This final rule includes high volume of commercial vessel traffic security interests). NMFS concurs with extensive mitigation in the Marine in that portion of the Study Area. the Navy’s practicability assessment. Species Coastal Mitigation Area, Additional mitigation that was added While canyons can offer one form of including additional mitigation added since the proposed rule is discussed in valuable habitat for some species at since publication of the proposed rule. the Mitigation Measures section. This certain times and a restriction on This final rule includes a new new mitigation includes a new training and testing could potentially mitigation measure in this area which mitigation area, the Juan de Fuca Eddy reduce the amount or severity of requires the Navy to issue seasonal Mitigation Area, which encompasses impacts to some degree for some awareness notification messages to alert waters near Cape Flattery as the species, given the protections offered by Navy ships and aircraft operating within commenter recommended. the procedural mitigation measures and the mitigation area to the possible This final rule includes required the measures in other mitigation areas presence of increased concentrations of procedural mitigation which is expected

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72343

to avoid or reduce potential impacts impacts to Southern Resident killer Areas section of this final rule for from active sonar on marine mammals whales, including mitigation in their additional information on the mitigation wherever and whenever activities occur offshore habitat, and new mitigation in measures in the NWTT offshore waters. in the Study Area. Additionally, new this habitat since publication of the Other Mitigation and Monitoring procedural mitigation measures require proposed rule. The Marine Species the Navy to conduct Mine Coastal Mitigation Area, the Juan de Comment 38: A commenter stated that Countermeasure and Neutralization Fuca Eddy Marine Species Mitigation the proposed rule does not contain any during daylight hours and in Beaufort Area, and the Olympic Coast National indication that a practicability analysis sea state conditions of 3 or less, both of Marine Sanctuary Mitigation Area was conducted, nor does it prescribe which increase the probability of marine contain mitigation measures expected to any speed reduction measure. The mammal detection and, thereby, reduce impacts to Southern Resident commenter states that this failure mitigation effectiveness. The Navy will killer whales in their offshore habitat. appears based on an unsupported also implement seasonal restrictions Since the proposed rule, new mitigation finding that vessel noise generated by and distance-from-shore requirements measures have been added pertaining to Navy vessels has de minimis or no impacts on Southern Resident killer for certain explosive bins, as described the NWTT Offshore Area. One new whales and other marine mammals. in detail in the Mitigation Areas section measure requires the Navy to implement Commenters recommended that NMFS of this final rule. Additionally, the Navy annual restrictions on surface ship hull- require the Navy to engage in lowest will implement new annual and seven- mounted MF1 mid-frequency active practicable speed reductions in year explosive ordnance limitations sonar (no more than 33 hours total) in biologically important habitats to reduce specific to explosive mine three mitigation areas combined: Within countermeasure and neutralization noise, including in designated critical 20 nmi from shore in the Marine habitat for endangered Southern testing. These restrictions and Species Coastal Mitigation Area, in the limitations will further reduce impacts Resident killer whales and other new Juan de Fuca Eddy Marine Species biologically important habitat for to marine mammals from explosives in Mitigation Area, and in the Olympic nearshore and offshore habitats, vulnerable species. A commenter also Coast National Marine Sanctuary stated that Washington State increased including important feeding and Mitigation Area. The annual restriction migration areas for Southern Resident vessel regulations in 2019 to reduce for testing previously only applied to killer whales and humpback whales. noise and disturbance to Southern the Olympic Coast National Marine Additional geographic mitigation for Resident killer whales from small active sonar beyond what is detailed in Sanctuary Mitigation Area. This final vessels, including by enacting a 7-knot the Mitigation Areas section of this final rule also removes an exception that speed limit within half a nautical mile rule, and in Section K.3 (Mitigation excluded the Quinault Range Site from of the killer whales. The commenter Areas to be Implemented) of the 2020 the annual sonar restrictions that was also referenced the Vancouver Fraser NWTT FSEIS/OEIS, would be included in the proposed rule. Now, the Port Authority’s Enhancing Cetacean impractical to implement for the reasons annual restrictions will apply Habitat and Observation (ECHO) described in Appendix K (Geographic throughout the entire Olympic Coastal Program which operates a voluntary Mitigation Assessment) and Section National Marine Sanctuary Mitigation slowdown of large ships transiting 5.5.1 (Active Sonar) of the 2020 NWTT Area, including within the portion of Southern Resident killer whale habitat FSEIS/OEIS. NMFS has carefully the mitigation area that overlaps the and a lateral displacement trial to shift reviewed this information and Quinault Range Site. This reduction in vessels away from high-use areas. The determined that additional mitigation activities is in areas that are important commenter recommended that the Navy measures would be impracticable. for Southern Resident killer whale and implement similar measures for The potential restriction of dipping humpback whale feeding and migration. transiting vessels within the Salish Sea sonar is discussed in the response to Additionally, the Navy will issue to reduce noise and disturbance in Comment 52. See that comment for our seasonal awareness notification inland waters. Additionally, given that full response. messages within 50 nmi from shore to the speed of Navy ships during all Comment 37: Commenters stated that alert Navy ships and aircraft operating aspects of their operations potentially additional mitigation measures are within the Marine Species Coastal impact marine mammals, the necessary and must be required, Mitigation Area to the possible presence commenter recommended that NMFS specifically additional mitigation and of increased concentrations of Southern require the Navy to collect and report monitoring in Southern Resident killer Resident killer whales from December 1 data on ship speed as part of the whale offshore habitat. A commenter to June 30, humpback whales from May rulemaking process. The commenter stated that this is necessary given the 1 through December 31, and gray whales asserts that this will allow for objective potential increased use of this area and from May 1 to November 30. To assist evaluation by NMFS of ship-strike risk, the unique activities—such as active in avoiding interactions with whales, of harassment resulting from vessel sonar—that take place in this portion of the Navy will instruct vessels to remain activity, and of the potential benefit of the NWTT range. A commenter stated vigilant to the presence of Southern additional speed-focused mitigation that it is even more critical now that the Resident killer whales, humpback measures. Finally, a commenter asserts offshore density numbers have been whales, and gray whales that may be that NMFS should require the Navy to updated and have dramatically vulnerable to vessel strikes or potential take steps to quiet smaller support increased the anticipated incidents of impacts from training and testing vessels used in the NWTT Study Area, level B harassment affecting Southern activities. Platforms will use the by seeking and incorporating best Resident killer whales. Approximately information from the awareness commercial off-the-shelf technology for 92 percent of training impacts and 68 notification messages to assist their vessel retrofits and new builds. percent of testing impacts on killer visual observation of applicable Response: Generally speaking, it is whales are projected to occur in the mitigation zones during training and impracticable (because of impacts to offshore area. testing activities and to aid in the mission effectiveness) to further reduce Response: This final rule includes implementation of procedural ship speeds for Navy activities, and, extensive mitigation designed to reduce mitigation. Please refer to the Mitigation moreover, given the maneuverability of

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72344 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Navy ships at higher speeds and the that ships operated by or for the Navy Regarding reporting of ship speed, as presence of effective Lookouts, any have personnel assigned to stand watch required through the Navy’s Notification further reduction in speed would be at all times, day and night, when and Reporting Plan (Vessel Strike unlikely to reduce the already low moving through the water (i.e., when the section), Navy vessels are required to probability of a ship strike. Navy ships vessel is underway). A primary duty of report extensive information, including generally operate at speeds in the range watch personnel is to ensure safety of ship speed, pursuant to any marine of 10–15 knots, and submarines the ship, which includes the mammal vessel strikes. Therefore, the generally operate at speeds in the range requirement to detect and report all data required for ship strike analysis of 8–13 knots. Small craft (for purposes objects and disturbances sighted in the discussed in the comment is already of this discussion, less than 40 ft), water that may be indicative of a threat being collected. Any additional data which are all support craft, have more to the ship and its crew, such as debris, collection requirement would create an variable speeds dependent on the a periscope, surfaced submarine, or unnecessary burden on the Navy. mission. While these speeds are surface disturbance. Per safety Regarding vessel noise from Navy ships, representative of most events, some requirements, watch personnel also Navy vessels are intentionally designed vessels need to operate outside of these report any marine mammals sighted that to be quieter than civilian vessels, and parameters under certain training and have the potential to be in the direct given that adverse impacts from vessel testing scenarios. The Navy is unable to path of the ship, as a standard collision noise are not anticipated to result from impose a 7-knot ship speed limit avoidance procedure. As described in Navy activities (see the Potential Effects because it would not be practical to Section 5.3.4.1 (Vessel Movement) of the of Specified Activities on Marine implement and would impact the 2020 NWTT FSEIS/OEIS, Navy vessels Mammals and Their Habitat section in effectiveness of the Navy’s activities by are also required to operate in the proposed rule), there is no putting constraints on training, testing, accordance with applicable navigation anticipated harassment caused by vessel and scheduling. The Navy requires rules. Applicable rules include the activity and therefore no need to collect flexibility in use of variable ship speeds Inland Navigation Rules (33 CFR part and report data on ship speed for this for training, testing, operational, safety, 83) and International Regulations for purpose. and engineering qualification Preventing Collisions at Sea (72 Regarding quieting small support requirements. Navy ships typically use Collision Regulations), which were vessels, most of the Navy’s vessels the lowest speed practical given formalized in the Convention on the already have state of the art quieting individual mission needs. NMFS has International Regulations for Preventing technologies employed to reduce their reviewed the analysis of these Collisions at Sea, 1972. These rules sound profile to assist them in avoiding additional suggested restrictions and the require that vessels proceed at a safe detection by enemy forces, therefore, impacts they would have on military speed so proper and effective action can they are much quieter than commercial/ readiness and concurs with the Navy’s be taken to avoid collision and so recreational vessels of similar sizes. Comment 39: A commenter stated that assessment that they are impracticable vessels can be stopped within a distance NMFS does not incorporate stand-off (see section 5.3.4.1 Vessel Movement appropriate to the prevailing distances of any size within its and section 5.5 Measures Considered circumstances and conditions. In requirements for the proposed but Eliminated in the 2020 NWTT addition to standard operating mitigation areas, providing only that FSEIS/OEIS). Therefore, the Navy is procedures, the Navy implements activities not take place ‘‘within’’ the already planning to engage in the lowest mitigation to avoid vessel strikes, which defined areas. Thus, activities that are practicable speed in biologically includes requiring vessels to maneuver important habitats, including in otherwise restricted or limited within a to maintain at least 500 yd away from mitigation area could occur directly designated critical habitat for whales, and 200 yd or 100 yd away from endangered Southern Resident killer along the boundary and ensonify the other marine mammals (depending on area at levels capable of causing injury whales and other biologically important the size of the vessel). Additionally, habitat for vulnerable species, as well as or increasing the risk or severity of please see the Estimated Take from behavioral disruption. The commenter in all other areas. Vessel Strikes by Serious Injury or The main driver for ship speed asserts that stand-off distances are a Mortality section of this rule and section reduction is reducing the possibility and reasonable mitigation measure that is 3.4.2.4.1 of the 2020 NWTT FSEIS/OEIS severity of ship strikes to large whales. routinely required by NMFS in However, even given the wide ranges of for discussion regarding the differences authorizing take under the MMPA. The speeds from slow to fast that Navy ships between Navy ships and commercial commenter recommended that NMFS must use to meet training and testing ships which make Navy ships less likely consider establishing stand-off distances requirements, the Navy has a very low to affect marine mammals. around its mitigation areas to the strike history to large whales in the When developing Phase III mitigation greatest extent practicable, allowing for NWTT Study Area. As further discussed measures, the Navy analyzed the variability in size given the location of in the Estimated Take from Vessel potential for implementing additional the mitigation area, the type of Strikes by Serious Injury or Mortality types of mitigation, such as vessel speed operation at issue, and the species of section, Navy vessel strike records have restrictions within the NWTT Study concern. been kept since 1995, and since 1995 Area. The Navy determined that based Response: The mitigation areas there have been two recorded strikes of on how the training and testing included in the final rule and described whales by Navy vessels (or vessels being activities will be conducted within the in Appendix K (Geographic Mitigation operated on behalf of the Navy) in the NWTT Study Area, vessel speed Assessment) of the 2020 NWTT FSEIS/ NWTT Study Area, one in 2012, and restrictions would be incompatible with OEIS represent the maximum mitigation one in 2016. Neither strike was practicability criteria for safety, within mitigation areas and the associated with training or testing sustainability, and training and testing maximum size of mitigation areas that activities. missions, as described in Chapter 5 are practicable for the Navy to As discussed in the 2015 NWTT FEIS/ (Mitigation), Section 5.3.4.1 (Vessel implement under their specified OEIS Section 5.1.2 (Vessel Safety), Navy Movement) of the 2020 NWTT FSEIS/ activity. Implementing additional standard operating procedures require OEIS. mitigation (e.g., stand-off distances that

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72345

would extend the size of the mitigation associated with the mitigation areas measures in geographic mitigation areas areas) beyond what is included in the where necessary for national security, if the Navy may conduct an otherwise final rule is impracticable due to certain conditions are met. Specifically, prohibited activity if necessary for implications for safety, sustainability, authorization must be granted, the Navy national security, but only if Navy and the Navy’s ability to continue must provide NMFS with advance personnel have obtained permission meeting its mission requirements. For notice of the derogation and with from the appropriate designated example, as described in Section further information after the completion Command authority prior to K.3.2.2.2 (Operational Assessment) of of events, and the Navy must provide commencing the activity, provide NMFS the 2020 NWTT FSEIS/OEIS, creating information on those activities in its with advance notification, and include stand-off distances from the 12 nmi, 20 annual reports. Unlike the consent information about the event in the nmi, and 50 nmi limits within the order, however, the proposed rule does annual activity reports to NMFS. It is Marine Species Coastal Mitigation Area not clearly restrict derogation authority not necessary to require permission would result in activities being to highest-level officers. from the highest-level Command conducted farther offshore. Moving Under the consent order, authority authority to ensure that a valid national activities farther offshore would be could be invoked only by certain named security need exists or that all other impractical due to decreased event officers representing the highest requirements of the provision will be realism, increased resource allocations command authority, namely the complied with. The commenter has and operational costs (due to extending Commander or Acting Commander of provided no information to indicate that the distance offshore and proximity to the Pacific Fleet, for training activities, the slightly different phrasing of the Navy support facilities, which would and the Commander or Acting condition or that the differences in the increase fuel consumption, Commander of the various research level of Navy approval will lead to maintenance, and time on station), branches for testing activities, and then misapplication of the provision. increased safety risks (associated with only when the Navy ‘‘deems it Comment 41: A commenter conducting training and testing at necessary for national defense.’’ recommended that NMFS consider extended distances offshore and farther Similarly, at least some of the additional measures to address away from critical medical and search geographic areas adopted by the Navy in mitigation for explosive events at night and rescue resources), and accelerated prior NEPA processes, such as the and during periods of low-visibility, fatigue-life of aircraft and ships (leading Humpback Whale Cautionary Area either by enhancing the observation to increased safety risk and higher established in previous Hawaii- platforms to include aerial and/or maintenance costs). Increased resource Southern California Training and passive acoustic monitoring (such as allocations and operational costs would Testing EISs, allowed for derogation glider use), as has been done here with serve as a limiting factor for Navy only upon approval of the Pacific Fleet sinking exercises, or by restricting surface vessels whose available Commander. This requirement made it events to particular Beaufort sea states underway times are constrained by more likely that derogation decisions (depending on likely species presence available manpower and fuel expenses. would be taken with the greatest and practicability). This would also reduce training or seriousness and consideration. By Response: This final rule includes testing opportunities during a platform’s contrast, the proposed rule is unclear in new mitigation that requires the Navy to limited available timeframes because its designation, generally allowing units conduct explosive mine countermeasure increased time spent transiting to more to obtain permission from ‘‘the and neutralization testing activities in distant training areas or test sites results appropriate designated Command daylight hours only and in Beaufort Sea in decreased time available for training authority.’’ NMFS should clarify that state number 3 conditions or less. The or testing. authorization may be given only by the Navy will also continue to implement When practicable, NMFS sometimes highest-level Command authorities, mitigation that requires explosive mine recommends the inclusion of buffers consistent with the consent order in neutralization training activities around areas specifically delineated to Conservation Council. involving Navy divers to be conducted contain certain important habitat or Response: The commenter references in Beaufort Sea state number 2 high densities of certain species, to the terms of a 2015 settlement conditions or less and not in low allow for further reduced effects on agreement approved by a court for a visibility conditions. As described in specifically identified features/species. previous MMPA rulemaking for Navy Section 5.5.2 (Explosives) of the 2020 However, buffers are not typically activities in a different study area, none NWTT FSEIS/OEIS, when assessing and considered necessary or appropriate in of which is applicable to the Navy’s developing mitigation, NMFS and the combination with more generalized and planned activities in this study area. In Navy considered further restrictions on inclusive measures, such as coastal addition, as discussed in the response to the use of explosives (e.g., during offsets or other areas that are intended Comment 28, the terms that were agreed periods of low visibility or in certain sea to broadly contain important features for to in that settlement agreement were state conditions). The locations and a multitude of species. In the case of never evaluated based on the best timing of the training and testing this rulemaking, NMFS and the Navy available science and under the two activities that use explosives vary have included an extensive array of prongs that NMFS (and the Navy) apply throughout the NWTT Study Area based broad protective areas that will reduce to evaluate potential measures under the on range scheduling, mission impacts on numerous species and ‘‘least practicable adverse impact’’ requirements, testing program habitats (including additions to what standard. requirements, and standard operating was described in the proposed rule) For this rulemaking, NMFS along procedures for safety and mission and, as described above, limitations in with the Navy considered the current success. Although activities using additional areas is not practicable. conditions specific to the Navy’s explosives typically occur during the Comment 40: A commenter noted that planned activities for the NWTT Study daytime for safety reasons, it is as with the consent order entered by the Area, the needs of the species and impracticable for the Navy to prohibit court in the Conservation Council case, stocks along with their habitat, and the every type of explosive activity at night the present proposed rule would allow practicability of potential measures. As or during low visibility conditions or the Navy to derogate from the measures the commenter notes, for several of the during different Beaufort Sea states.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72346 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Doing so would diminish activity The Mitigation Section (Chapter 5) of responses of a few captive harbor realism, which would impede the the 2020 NWTT FSEIS/OEIS includes a porpoises to varying signals. Although ability for Navy personnel to train and full discussion of the mitigation this very limited data set suggests that become proficient in using explosive measures that the Navy will implement, up or down sweeps of the sonar signal weapons systems (which would result as well as those that have been may result in different reactions by in a significant risk to personnel safety considered but eliminated, including harbor porpoises in certain during military missions and combat potential measures that have been raised circumstances, the author of those operations), and would impede the by NMFS or the public in the past. The studies highlights the fact that different Navy’s ability to certify forces to deploy Navy has explained that training and species respond to signals with varying to meet national security needs. testing in both good visibility (e.g., characteristics in a number of ways. In Passive acoustic devices, whether daylight, favorable weather conditions) fact, the same signals cited here were vessel-deployed or using research and low visibility (e.g., nighttime, also played to harbor seals, and their sensors on gliders or other devices, can inclement weather conditions) is vital responses were different from the harbor serve as queuing information that because environmental differences porpoises. Furthermore, harmonics in a vocalizing marine mammals could be in between day and night and varying signal result from a high-intensity signal the vicinity. Passive acoustic detection weather conditions affect sound being detected in close proximity; they does not account for individuals not propagation and the detection could be artificially removed for a vocalizing. Navy surface ships train to capabilities of sonar. Temperature layers captive study, but cannot be whitened localize submarines, not marine that move up and down in the water in the open ocean. Active sonar signals mammals. Some aviation assets column and ambient noise levels can are designed explicitly to provide deploying ordnance do not have vary significantly between night and optimum performance at detecting concurrent passive acoustic sensors. day. This affects sound propagation and underwater objects (e.g., submarines) in Furthermore, Navy funded civilian could affect how sonar systems function a variety of acoustic environments. If passive acoustic sensors do not report in and are operated. While some small future studies indicate that modifying real-time. Instead, a glider is set on a reduction in the probability or severity active sonar signals could be an certain path or floating/bottom-mounted of impacts could result from the effective mitigation approach, then sensor deployed. The sensor has to then implementation of this measure, it NMFS with the Navy will investigate if be retrieved often many months after would not be practicable for the Navy to and how the mitigation would affect the deployment (1–8 months), data is sent restrict operations in low visibility and sonar’s performance and how that back to the laboratory, and then the measure is not, therefore, warranted. mitigation may be applied in future subsequently analyzed. Combined with Comment 42: A commenter authorizations, but currently NMFS lack of localization, gliders with passive recommended that sonar signals might does not have a set timeline for this acoustic sensors are therefore not be modified to reduce the level of research and how it may be applied to suitable for mitigation. impact at the source. Mitigating active future rulemakings. The Navy does employ passive sonar impacts might be achieved by acoustic monitoring when practicable to employing down-sweeps with Comment 43: A commenter stated that do so (i.e., when assets that have passive harmonics or by reducing the level of while the Navy rejects modifying sonar acoustic monitoring capabilities are side bands (or harmonics). The sound sources as a mitigation measure, already participating in the activity) and commenter recommended that more a decision that was summarily upheld several of the procedural mitigation research of this nature be carried out in by NMFS during its most recent measures reflect this, but many order to understand the extent to which proposed rule for Navy activities off platforms do not have passive acoustic these results can be generalized across Southern California and Hawaii, the monitoring capabilities. Adding a species. The commenter also Navy never explains why making the passive acoustic monitoring capability recommended that the feasibility of modifications implied by the marine (either by adding a passive acoustic implementing signal modifications mammal behavioral studies discussed monitoring device (e.g., hydrophone) to (such as those recommended above) into Kastelein et al. (2012, 2014, 2015), Go¨tz, a platform already participating in the Navy operations be explored. T., and Janik (2011), and Hastie et al. activity, or by adding a platform with Response: The commenter notes that (2014) would be impracticable. The integrated passive acoustic monitoring NOAA’s Ocean Noise Strategy Roadmap commenter asserts that some of these capabilities to the activity, such as a puts an emphasis on source modifications, such as converting up- sonobuoy) for mitigation is not modification and habitat modification sweeps to down-sweeps, would not alter practicable. As discussed in Section as an important means for reducing the system’s spectral output in any way. 5.5.3 (Active and Passive Acoustic impacts. However, where the The commenter believes source Monitoring Devices) of the 2020 NWTT modification of sources is discussed, the modification requires greater validation FSEIS/OEIS, there are significant focus of the Roadmap is on modifying across species and in more behavioral manpower and logistical constraints technologies for activities in which low contexts before any decisions are made that make constructing and maintaining frequency, broadband sound (which to alter signals, but given the additional passive acoustic monitoring contributes far more significantly to preliminary data, and given the systems or platforms for each training increased chronic noise levels) is potential of this measure to reduce the and testing activity impracticable. The incidental to the activity (e.g., maritime instances and severity of behavioral Navy is required to implement pre-event traffic). As described in the 2020 NWTT harassment, the commenter observation mitigation, as well as post- FSEIS/OEIS, at this time, the science on recommended that NMFS require the event observation when practical, for all the differences in potential impacts of Navy to expedite that research and set in-water explosive events. If there are up or down sweeps of the sonar signal a timeline for this research within the other platforms participating in these (e.g., different behavioral reactions) is context of the present rulemaking. The events and in the vicinity of the extremely limited and requires further commenter asserted that the Navy’s detonation area, they will also visually development before a determination of ongoing research off Southern California observe this area as part of the potential mitigation effectiveness can be presents a strong opportunity for mitigation team. made. There is data on behavioral advancing mitigation research in this

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72347

area. The Navy’s multi-year Southern geographic area mitigation measures. with the appropriate marine mammal California behavioral response studies Also, the commenter did not detection networks in NWTT Inland provide baseline data and a vehicle for recommend any specific measures, Waters prior to conducting (1) explosive testing the effects of sonar modifications rendering it impossible to consider its mine neutralization activities involving in the field. Research on modified recommendation at a broader level. the use of Navy divers, (2) Unmanned signals can be incorporated into those Comment 45: A commenter stated that Underwater Vehicle Training at four ongoing behavioral response studies as the mitigation zones required to mitigate locations, (3) Civilian Port Defense— a variant on exposure experiments on the impact of the Navy’s testing and Homeland Security Anti-Terrorism/ tagged animals, for which there already training activities are based purely on Force Protection Exercises, and (4) exists data on blue whales, fin whales, animal sightings by vessel board Small Boat Attack Exercises. This Cuvier’s beaked whales, and other Lookouts, and should any animals be mitigation, which would increase real- species. underwater they could be easily missed. time awareness of nearby cetaceans, Response: The Navy has explained Several commenters suggested that increase the likelihood of detection, and that it explicitly designs its active sonar the Navy could use information from enhance the success of procedural signals to provide optimum real-time whale alert systems, including mitigations, has also been expanded to performance at detecting underwater NOAA’s hydrophone network and data include a greater number of activities in objects (e.g., submarines) in a variety of from the Whale Report Alert System the inland waters, and will help the acoustic environments. The Navy (WRAS) used by the Washington State Navy plan activities in a way that assessed the potential for implementing Ferries and other maritime minimizes the potential for exposure of active sonar signal modification as professionals. A commenter stated that Southern Resident killer whales and mitigation. At this time, the science on these additional, often-superior local gray whales, as described in the the differences in potential impacts of sources of such time-sensitive Mitigation Measures section of the rule up or down sweeps of the sonar signal information can help identify and Section K.3.3 (Mitigation Areas for (e.g., different behavioral reactions) is acoustically silent whales that have Marine Species in NWTT Inland extremely limited and as noted by the been sighted elsewhere that could be Waters) of the 2020 NWTT FSEIS/OEIS. commenter requires further moving into training or testing areas. The Navy also uses passive acoustic development. For example, Kastelein et Another commenter stated that NMFS monitoring technology for some al. (2012) researched the behavioral does not evaluate the possibility of exercises. NMFS and the Navy responses of a single captive harbor using this data from either an considered the use of passive acoustic porpoise to varying sonar signals. effectiveness or practicability monitoring during additional exercises, Although this very limited data set standpoint. Another commenter stated but determined that it is not practicable. suggests up or down sweeps of the sonar that this measure is indisputably both Please refer to Comment 47 for signal may result in different reactions available and practical, per the factors additional information about the by harbor porpoises in certain that NMFS considers in its evaluation. implementation of passive acoustic circumstances, this science requires A commenter stated that this data is monitoring. further development (e.g., to determine readily available and serves as a useful NMFS is unaware of a hydrophone potential reactions by other individual resource for the Navy to plan out its network, aside from some hydrophones harbor porpoises and other marine testing and training activities to reduce NOAA has deployed for individual mammal species). If future studies impacts to marine mammals. The projects such as to research Southern indicate that modifying active sonar commenter stated that in fact, it could Resident killer whales in offshore signals (i.e., up or down sweeps) could even increase the effectiveness of the waters, a single noise reference station be an effective mitigation approach, Navy’s testing and training activities if offshore the Strait of Juan de Fuca, and then the Navy will investigate if and it helps to reduce the number of delayed two to three assets in Olympic Coast how the mitigation would affect the or canceled actions due to animal National Marine Sanctuary. However, sonar’s performance. As required by this presence. The commenter recommended all of these hydrophone systems are final rule, the Navy will continue to that NMFS amend its proposed bottom mounted passive acoustic implement robust monitoring and authorization to require the Navy to monitoring devices with no real-time adaptive management, and NMFS and utilize readily available whale location reporting capability, and therefore they the Navy will consider the data as a form of mitigation. cannot be used for real time assessment. recommendations of the commenter, A commenter stated that for There are other hydrophones deployed along with other needs, when mitigation for active sonar training and in NWTT Inland Waters by private developing and prioritizing future testing activities in Puget Sound, NMFS individuals or entities (i.e. NGOs), but research and monitoring studies for the should require the Navy to consult data availability and issues with the NWTT Study Area. regional real-time whale alert systems Navy accessing external sites remains an Comment 44: A commenter rather than relying solely on human issue. The Navy will also continue to recommended that NMFS should observers on Navy vessels and assess the practicality of other available consider requiring compensatory communications with NMFS. monitoring techniques as technologies mitigation for the adverse impacts of the Response: NMFS acknowledges the advance. permitted activity on marine mammals fact that some animals in the mitigation Additionally, a Navy team began and their habitat that cannot be zone could go unobserved by the participating in the Governor of prevented or mitigated. Lookouts. We have taken that into Washington’s Southern Resident Orca Response: Compensatory mitigation is consideration in the quantitative Task Force in 2019, including the not required under the MMPA. Instead, evaluation of mitigation effectiveness, Vessels Working Group. As part of the authorizations must include means of and that is why some take by Level A Vessels Working Group, the Navy began effecting the least practicable adverse harassment is authorized. investigating potential mechanisms for impact from the activities on the This final rule includes formalization broadcasting WRAS sightings of affected species or stocks and their of existing informal mitigation Southern Resident killer whales to Navy habitat, which this rule has done procedures already conducted by Navy platforms conducting training or testing through the required procedural and biologists to initiate communication in the Inland Waters. The Navy has met

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72348 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

with the program developers of the the Navy is pursuing additional follow- Navy for more than a decade and are WRAS to begin exploring potential on research efforts. discussed in Section 5.5.4 of the 2020 applications for Navy use, considering Thermal detection technology being NWTT FSEIS/OEIS. The effectiveness of factors such as the geographic extent of researched by the Navy, which is largely even the most advanced thermal sighting reports as well as the Navy’s based on existing foreign military grade detection systems with technological stringent information security hardware, is designed to allow observers designs specific to marine mammal requirements (e.g., associated with and eventually automated software to surveys is highly dependent on broadcasting unit location using an detect the difference in temperature environmental conditions, animal unsecured application). As the WRAS between a surfaced marine mammal characteristics, and animal behaviors. continues to expand into U.S. waters, (i.e., the body or blow of a whale) and At this time, thermal detection systems NMFS and the Navy will continue to the environment (i.e., the water and air). have not been proven to be more explore the opportunity to engage with Technologies are advancing but effective than, or equally effective as, this sightings network as a future continue to be limited by their (1) traditional techniques currently reduced performance in certain mitigation tool. Any potential adoption employed by the Navy to observe for environmental conditions, (2) ability to of the system will be coordinated marine mammals (i.e., naked-eye detect certain animal characteristics and through the adaptive management scanning, hand-held binoculars, high- provisions of this final rule. behaviors, (3) low sensor resolution and powered binoculars mounted on a ship Comment 46: A commenter narrow fields of view, and (4) high cost recommended that NMFS should and low lifecycle (Boebel, 2017; deck). The use of thermal detection consider requiring the Navy to employ Zitterbart et al., 2013). systems instead of traditional thermal detection in optimal conditions, Thermal detection systems for techniques would compromise the or, alternatively, require the military applications are deployed on Navy’s ability to observe for marine establishment of a pilot program for various Department of Defense (DoD) mammals within its mitigation zones in thermal detection, with annual review platforms. These systems were initially the range of environmental conditions under the adaptive management system. developed for night time targeting and found throughout the NWTT Study According to the 2019 NWTT DSEIS/ object detection (e.g., a boat, vehicle, or Area. Focusing on thermal detection OEIS, the Navy ‘‘plans to continue people). Existing specialized DoD systems could also provide a distraction researching thermal detection infrared/thermal capabilities on Navy from and compromise the Navy’s ability technology to determine their aircraft and surface ships are designed to implement its established observation effectiveness and compatibility with for fine-scale targeting. Viewing arcs of and mitigation requirements. The Navy applications.’’ these thermal systems are narrow and mitigation measures discussed in the Response: Thermal detection systems focused on a target area. Furthermore, Mitigation Measures section include the are more useful for detecting marine sensors are typically used only in select maximum number of Lookouts the Navy mammals in some marine environments training events, not optimized for can assign to each activity based on than others. Current technologies have marine mammal detection, and have a available manpower and resources; limitations regarding water temperature limited lifespan before requiring therefore, it would be impractical to add and survey conditions (e.g., rain, fog, expensive replacement. Some sensor personnel to serve as additional sea state, glare, ambient brightness), for elements can cost upward of $300,000 Lookouts. For example, the Navy does which further effectiveness studies are to $500,000 per device, so their use is not have available manpower to add required. Thermal detection systems are predicated on a distinct military need. Lookouts to use thermal detection generally thought to be most effective in Thermal detection systems are systems in tandem with existing cold environments, which have a large currently used by some specialized U.S. Lookouts who are using traditional temperature differential between an Air Force aircraft for marine mammal observation techniques. Furthermore, animal’s temperature and the mitigation. These systems are high false positive rates of thermal environment. In addition, current specifically designed for and integrated detection systems could result in the thermal detection systems have proven into Air Force aircraft and cannot be Navy implementing mitigation for more effective at detecting large whale added to Navy aircraft. features incorrectly identified as marine blows than the bodies of small animals, The effectiveness remains unknown mammals. Increasing the instances of particularly at a distance. The in using certain DoD thermal systems mitigation implementation based on effectiveness of current technologies has for the detection of marine mammals incorrectly identified features would not been demonstrated for small marine without the addition of customized have significant impacts on the ability mammals. Research to better system-specific computer software to for training and testing activities to understand, and improve, thermal provide critical reliability (enhanced accomplish their intended objectives, technology continues, as mentioned in detection, cueing for an operator, without providing any mitigation the 2019 NWTT DSEIS/OEIS and reduced false positives, etc.). benefit to the species. described below. Current DoD thermal sensors are not The Navy has been investigating the always optimized for marine mammal The Defense Advanced Research use of thermal detection systems with detections versus object detection, nor Projects Agency funded six initial automated marine mammal detection do these systems have the automated studies to test and evaluate infrared- algorithms for future mitigation during marine mammal detection algorithms based thermal detection technologies training and testing, including on the Navy is testing via its ongoing and algorithms to automatically detect autonomous platforms. For example, the research program. The combination of marine mammals on an unmanned Defense Advanced Research Projects thermal technology and automated surface vehicle. Based on the outcome Agency funded six initial studies to test algorithms are still undergoing of these initial studies, the Navy is and evaluate infrared-based thermal demonstration and validation under pursuing additional follow-on research detection technologies and algorithms to Navy funding. efforts. Additional studies are currently automatically detect marine mammals Thermal detection systems being planned for 2020+ but additional on an unmanned surface vehicle. Based specifically for use in detecting marine information on the exact timing and on the outcome of these initial studies, mammals have been investigated by the scope of these studies is not currently

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72349

available (still in the development interference with existing shipboard implementation of its mitigation stage). systems); manpower and resource measures for all activities that could The Office of Naval Research Marine considerations for training personnel to cause injury or mortality beyond those Mammals and Biology program also effectively operate the equipment; and explosive activities for which passive funded a project (2018) to test the considerations of potential security and acoustic monitoring already was thermal limits of infrared-based classification issues. New system proposed—at the very least, sonobuoys automatic whale detection technology. integration on Navy assets can entail up deployed and active sources and That project focused on capturing whale to 5 to 10 years of effort to account for hydrophones used during an activity spouts at two different locations acquisition, engineering studies, and should be monitored for marine featuring subtropical and tropical water development and execution of systems mammals. temperatures, optimizing detector/ training. The Navy will provide Response: The Navy does employ classifier performance on the collected information to NMFS about the status passive acoustic monitoring to data, and testing system performance by and findings of Navy-funded thermal supplement visual monitoring when comparing system detections with detection studies and any associated practicable to do so (i.e., when assets concurrent visual observations. Results practicability assessments at the annual that have passive acoustic monitoring indicated that thermal detection systems adaptive management meetings. capabilities are already participating in in subtropical and tropical waters can Evidence regarding the current state the activity). We note, however, that be a valuable addition to marine of this technology does not support the sonobuoys have a narrow band that does mammal surveys within a certain assertion that the addition of these not overlap with the vocalizations of all distance from the observation platform devices would meaningfully increase marine mammals, and there is no (e.g., during seismic surveys, vessel detection of marine mammals beyond bearing or distance on detections based movements), but have challenges the current rate (especially given the on the number and type of devices associated with false positive detections narrow field of view of this equipment typically used; therefore it is not of waves and birds (Boebel, 2017). and the fact that a Lookout cannot use possible to use these to implement While Zitterbart et al. (2020) reported standard equipment when using the mitigation shutdown procedures. For on the results of land-based thermal thermal detection equipment) and, explosive events in which there are no imaging of passing whales, their further, modification of standard Navy platforms participating that have conclusion was that thermal technology equipment, training, and protocols passive acoustic monitoring capabilities, under the right conditions and from would be required to integrate the use adding passive acoustic monitoring land can detect a whale within 3 km of any such new equipment, which capability, either by adding a passive although there could also be lots of false would incur significant cost. At this acoustic monitoring device (e.g., positives, especially if there are birds, time, requiring thermal equipment is hydrophone) to a platform already boats, and breaking waves at sea. not warranted given the prohibitive cost participating in the activity or by adding Thermal detection systems exhibit and the uncertain benefit (i.e., reduction a platform with integrated passive varying degrees of false positive of impacts) to marine mammals. acoustic monitoring capabilities to the detections (i.e., incorrect notifications) Likewise requiring the establishment of activity (such as a sonobuoy), for due in part to their low sensor a pilot program is not appropriate. mitigation is not practicable. As resolution and reduced performance in However, as noted above, the Navy discussed in Section 5.5.3 (Active and certain environmental conditions. False continues to support research and Passive Acoustic Monitoring Devices) of positive detections may incorrectly technology development to improve this the 2020 NWTT FSEIS/OEIS, which identify other features (e.g., birds, technology for potential future use. NMFS reviewed and concurs accurately waves, boats) as marine mammals. In Comment 47: Multiple commenters assesses the practicability of utilizing one study, a false positive rate stated that the Navy should also use additional passive or active acoustic approaching one incorrect notification passive acoustic monitoring in addition systems for mitigation monitoring, there per 4 min of observation was noted. to Lookouts to detect Southern Resident are significant manpower and logistical The Navy plans to continue killer whales and other marine constraints that make constructing and researching thermal detection systems mammals when doing active sonar maintaining additional passive acoustic for marine mammal detection to training and testing. This will further monitoring systems or platforms for determine their effectiveness and expand awareness beyond what can be each training and testing activity compatibility with Navy applications. If accomplished with visual Lookouts. The impracticable. The Navy’s existing the technology matures to the state Navy proposes to use passive acoustic passive acoustic monitoring devices where thermal detection is determined monitoring to look for marine mammals (e.g., sonobuoys) are designed, to be an effective mitigation tool during when undertaking certain other maintained, and allocated to specific training and testing, NMFS and the activities (e.g., explosive torpedoes), training units or testing programs for Navy will assess the practicability of where passive acoustic assets are specific mission-essential purposes. using the technology during training already part of an activity, but it does Reallocating these assets to different and testing events and retrofitting the not include it as a mitigation measure training units or testing programs for the Navy’s observation platforms with for active sonar testing, which has the purpose of monitoring for marine thermal detection devices. The greatest anticipated impact on Southern mammals would prevent the Navy from assessment will include an evaluation of Resident killer whales. using its equipment for its intended the budget and acquisition process Another commenter recommended mission-essential purpose. Additionally, (including costs associated with that NMFS require the Navy to use diverting platforms that have passive designing, building, installing, passive (i.e., DIFAR and other types of acoustic monitoring capability would maintaining, and manning the sonobuoys) and active acoustic (i.e., impact their ability to meet their Title equipment); logistical and physical tactical sonars that are in use during the 10 requirements and reduce the service considerations for device installment, actual activity or other sources similar life of those systems. repair, and replacement (e.g., to fish-finding sonars) monitoring, Regarding the use of instrumented conducting engineering studies to whenever practicable, to supplement ranges for real-time mitigation, the ensure there is no electronic or power visual monitoring during the commenter is correct that the Navy

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72350 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

continues to develop the technology and injury or mortality (e.g., gear providing a final assessment on the capabilities on its Ranges for use in entanglement) and other mitigations are Navy’s Lookout Effectiveness Study marine mammal monitoring, which can expected to be less effective in following the end of Calendar Year (CY) be effectively compared to operational mitigating those effects. Active sonar 2021. The report must be submitted no information after the fact to gain generates additional noise with the later than 90 days after the end of information regarding marine mammal potential to disrupt marine mammal CY2021. The report will provide a response. There is no calibrated behavior, and is operated continuously statistical assessment of the data hydrophone array present in the NWTT during the activity that it is intended to available to date characterizing the area that is similar to the instrumented mitigate. On the whole, adding this effectiveness of Navy Lookouts relative range off Kauai in the Hawaiian Islands additional stressor is not beneficial to trained marine mammal observers for or the range off San Clemente Island, unless it is expected to offset, in the purposes of implementing the California where such marine mammal consideration of other mitigations mitigation measures. monitoring has occurred. Further, the already being implemented, a high Comment 49: A commenter Navy’s instrumented ranges were not likelihood or amount of injury or recommended that NMFS (1) require the developed for the purpose of mitigation. mortality. For the Navy’s NWTT Navy to determine whether it would be The manpower and logistical activities, very few mortalities are practicable to implement the proposed complexity involved in detecting and authorized or anticipated, injury is of a revised Southern Resident killer whale localizing marine mammals in relation small amount of low-level PTS, and the critical habitat areas, as depicted in the to multiple fast-moving sound source mitigation is expected to be effective at associated proposed rule (50 CFR platforms in order to implement real- minimizing impacts. Further, the 226.206(d)) and that fall within the time mitigation is significant. Although species most likely to incur a small NWTT Study Area but are not proposed the Navy is continuing to improve its degree of PTS from the Navy’s activities to be excluded for national security capabilities to use range are also the species with high frequency purposes in section 226.206(c) of the instrumentation to aid in the passive sensitivity that would be more likely to proposed rule, as a mitigation area(s) acoustic detection of marine mammals, experience behavioral disturbance by that limits MF sonar and explosive at this time it is not effective or the operation of the high frequency training and testing activities and (2) if practicable for the Navy to monitor active source. For all of these reasons, it is practicable, include the areas as a instrumented ranges for the purpose of NMFS does not recommend the use of mitigation area(s) in the final rule or, if real-time mitigation for the reasons active sonar to mitigate the Navy’s it is not practicable, justify why the discussed in Section 5.5.3 (Active and training and testing activities in the areas were not included as a mitigation Passive Acoustic Monitoring Devices) of NWTT Study Area. area(s) in the preamble to the final rule. the 2020 NWTT FSEIS/OEIS. Comment 48: A commenter If the mitigation area(s) is included in recommended that NMFS require the the final rule, the commenter further Regarding the use of active sonar for Navy to (1) allocate additional resources recommends that NMFS expand the mitigation, we note that during to the Lookout effectiveness study, (2) mitigation area(s) as necessary if new Surveillance Towed Array Sensor consult with the University of St. information is made available (e.g., the System low-frequency active sonar Andrews to determine how much proposed revised critical habitat is (which is not part of this rulemaking, additional data are necessary to analyze expanded in an associated final rule and and uses a high-powered low frequency the data in a statistically meaningful the expanded area(s) overlaps the source), the Navy uses a specially manner, and (3) develop a plan to NWTT Study Area) during the designed adjunct high-frequency marine maximize the number of sightings (e.g., timeframe under which the final rule mammal monitoring active sonar known conducting cruises in Southern would be valid. Another commenter as ‘‘HF/M3’’ to mitigate potential California rather than Hawaii) and also supported restricting activities in impacts. HF/M3 can only be towed at complete the study as soon as possible. the proposed Southern Resident killer slow speeds (significantly slower than Response: The Lookout effectiveness whale critical habitat. those used for ASW and the other study referenced by the commenter is Response: NMFS and the Navy training and testing uses contemplated still ongoing. This type of study has worked collaboratively during the ESA for the NWTT activities) and operates never been conducted, is extremely consultation and MMPA authorization like a fish finder used by commercial complex to ensure data validity, processes to determine the effectiveness and recreational fishermen. Installing requires a substantial amount of data to and practicability of implementing the HF/M3 adjunct system on the conduct meaningful statistical analysis, additional mitigation measures for tactical sonar ships used during and the Navy is committed to marine mammals, including Southern activities in this rule would have completing it. As noted by the Resident killer whales. NMFS worked implications for safety and mission commenter, there has not been enough with the Navy to refine the mitigation requirements due to impacts on speed data collected to conduct a sufficient area measures pertaining to the use of and maneuverability. Furthermore, analysis; therefore, drawing conclusions explosives during Mine Countermeasure installing the system would on an incomplete data set is not and Neutralization Testing to be more significantly increase costs associated scientifically valid. protective of ESA-listed species, with designing, building, installing, However, NMFS has provided that the including within areas that overlap maintaining, and manning the results of the Lookout effectiveness proposed Southern Resident killer equipment. For these reasons, study will be made available by whale and proposed humpback whale installation of the HF/M3 system or including a Term and Condition in the critical habitats. Also, the final rule other adjunct marine mammal Endangered Species Act (ESA) includes a new additional mitigation monitoring devices as mitigation under Incidental Take Statements associated area, the Juan de Fuca Eddy Marine the rule would be wholly impracticable. with this final rule and NMFS’ 2020 Species Mitigation Area, which includes Further, NMFS does not generally final rule for Navy training and testing important migration habitat for recommend the use of active sonar for activities in the MITT Study Area, Southern Resident killer whales as they mitigation, except in certain cases which requires the Navy to provide a transit between Inland Waters and the where there is a high likelihood of report summarizing the status of and/or Offshore Area (see the Mitigation Areas

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72351

section of this final rule and Section within 20 nmi and 12 nmi from shore the 2015 NWTT FEIS/OEIS. However, K.3.2.1.3 (Southern Resident Killer in the Marine Species Coastal Mitigation the effects conclusions and mitigation Whale) of the 2020 NWTT FSEIS/OEIS). Area. In addition, 90 percent of this for emerging technologies are not Further expanding geographic feeding area is located within the broken out separately; they are included mitigation requirements to include Olympic Coast National Marine in the stressor-based analysis with other additional mitigation for proposed ESA Sanctuary Mitigation Area. Based on current technologies. NMFS has critical habitat beyond this would be NMFS’ mitigation requirements, the thoroughly reviewed and concurs with impractical for the Navy to implement Navy will implement restrictions on the this analysis and it has been considered for the reasons described in Appendix K use of surface ship hull-mounted MF1 in the development of the final rule. (Geographic Mitigation Assessment) of mid-frequency active sonar in a portion NMFS and the Navy have coordinated the 2020 NWTT FSEIS/OEIS. For of this feeding area, will not use extensively regarding which of the example, such further mitigation would explosives during training or testing Navy’s training and testing activities encroach upon the primary water space (except explosive Mine Countermeasure (including emerging technologies) are where those training and testing and Neutralization Testing, which could likely to result in the take of marine activities occur in the NWTT Offshore occur in the 10 percent of this feeding mammals. Some of the stressors the Area for safety, sustainability, and area located outside of the Sanctuary commenter noted were not identified as mission requirements. Mitigation Area), and will not conduct sources that would cause the incidental Comment 50: A commenter Anti-Submarine Warfare Tracking take of marine mammals, which is why recommended that NMFS (1) require the Exercise—Helicopter,—Maritime Patrol they are not included in the Navy’s Navy to determine whether it would be Aircraft,—Ship, or—Submarine training MMPA application or discussed further practicable to implement both the activities or non-explosive Anti- in the rule. The commenter has offered Northern Washington Humpback Whale Submarine Warfare Torpedo Exercise— no evidence showing that these Feeding Area and the portion of the Submarine training activities (which emerging technologies (high energy Northwest Washington Gray Whale involve the use of mid-frequency or lasers, kinetic energy weapons, or Feeding Area that is within the NWTT high-frequency active sonar) within a biodegradable polymers) would result in offshore area as mitigation areas that portion of this humpback whale feeding the incidental take of marine mammals. limit MF sonar and explosive training area. Expanding geographic mitigation NMFS and the Navy clearly have and testing activities from May– requirements (including developing considered the impacts of unmanned November, consistent with the additional mitigation for these vehicles, and mitigation measures Humpback Whale Mitigation Areas humpback whale or gray whale feeding specific to these systems have been proposed to be included and (2) if it is areas) is not practicable for the Navy to included in the rule. Mitigation in the practicable, include the areas as implement for the reasons described in Puget Sound and Strait of Juan de Fuca mitigation areas in the final rule or, if Appendix K (Geographic Mitigation Mitigation Area specifically includes a it is not practicable, justify why the Assessment) of the 2020 NWTT FSEIS/ limit of one Unmanned Underwater areas were not included as mitigation OEIS. For example, such further Vehicle Training activity annually at the areas in the preamble to the final rule. mitigation would encroach upon the Response: The Northwest Washington primary water space where those Navy 3 OPAREA, Navy 7 OPAREA, and Gray Whale Feeding Area is located training and testing activities occur in Manchester Fuel Depot (i.e., a maximum entirely within 12 nmi from shore in the the NWTT Offshore Area for safety, of one event at each location), and Marine Species Coastal Mitigation Area sustainability, and mission prohibits the use of low-frequency, mid- and entirely within the Olympic Coast requirements. frequency, or high-frequency active National Marine Sanctuary Mitigation Comment 51: Commenters sonar during training or testing within Area. Therefore, due to the overlapping highlighted the need for NMFS to the Puget Sound and Strait of Juan de nature of the Navy’s mitigation areas, review the Navy’s plans to rapidly Fuca Mitigation Area, unless a required mitigation within 12 nmi, 20 nmi, and increase its use of emerging element necessitates that the activity be 50 nmi from shore in the Marine technologies, including the use of conducted in NWTT Inland Waters Species Coastal Mitigation Area and unmanned underwater systems in Puget during Unmanned Underwater Vehicle within the Olympic Coast National Sound and off the Washington coastline Training, and other activities as Marine Sanctuary Mitigation Area will and the use of sonar, high-energy lasers, described in the Mitigation Areas be implemented throughout the payload systems, kinetic energy section of this final rule. Also, since Northwest Washington Gray Whale weapons, and biodegradable polymers. publication of the proposed rule, an Feeding Area. Based on NMFS’ One commenter stated that the proposed additional measure has been added that mitigation requirements, the Navy will rule did not include a detailed analysis requires Navy event planners to implement restrictions on the use of of potential impacts from these coordinate with Navy biologists prior to surface ship hull-mounted MF1 mid- activities, and recommended that NMFS conducting Unmanned Underwater frequency active sonar, will not use any thoroughly analyze the impacts of these Vehicle Training at the Navy 3 explosives, and will not conduct Anti- emerging technologies on marine OPAREA, Manchester Fuel Depot, Submarine Warfare Tracking Exercise— mammals and prescribe any necessary Crescent Harbor Explosive Ordnance Helicopter,—Maritime Patrol Aircraft,— mitigation measures, including seasonal Disposal Range, and Navy 7 OPAREA. Ship, or—Submarine training activities restrictions and monitoring of short- and In addition, Unmanned Underwater or non-explosive Anti-Submarine long-term impacts and careful testing Vehicle Training events at the Navy 3 Warfare Torpedo Exercise—Submarine and monitoring of the impacts of new OPAREA, Manchester Fuel Depot, training activities (which involve the technologies, to ensure that the Navy’s Crescent Harbor Explosive Ordnance use of mid-frequency or high-frequency activities have the least practicable Disposal Range, and Navy 7 OPAREA active sonar) within this gray whale adverse impact on marine mammals. will be cancelled or moved to another feeding area. Response: The analysis that the training location if the presence of The Northern Washington Humpback commenter has suggested is included in Southern Resident killer whales is Whale Feeding Area is located entirely the Navy’s rulemaking/LOA application, reported through available monitoring within 50 nmi from shore, and partially in the 2020 NWTT FSEIS/OEIS, and in networks during the event planning

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72352 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

process, or immediately prior to the The commenter states that NMFS has when it is essential to training missions event, as applicable. Additionally, since proposed authorizing take from as many or testing program requirements since publication of the proposed rule, as 41–50 annual testing events— active sonar has the potential to alert another additional measure has been amounting to 298 events across the opposing forces to the operating added, limiting the Navy to conducting seven-year authorization (as well as one platform’s presence. Passive sonar and a maximum of one Unmanned training event across the seven-year other available sensors are used in Underwater Vehicle Training event period). The commenter states that concert with active sonar to the within 12 nmi from shore at the NMFS must consider restricting or maximum extent practicable. The Navy, Quinault Range Site, and requiring the limiting use of dipping sonar during the in coordination with NMFS, customized Navy to cancel or move Unmanned present MMPA process. its mitigation zone sizes and mitigation Underwater Vehicle Training events if Response: The commenter appears to requirements for each applicable Southern Resident killer whales are have misinterpreted the number of training and testing activity category or detected within 12 nmi from shore at dipping sonar hours during testing stressor. Each mitigation zone the Quinault Range Site. This measure events with the number of dipping represents the largest area that (1) is expected to help avoid any potential sonar testing events. The Navy plans to Lookouts can reasonably be expected to impacts on Southern Resident killer conduct a maximum of one hour of MF4 observe during typical activity whales during Unmanned Underwater sonar (Helicopter-deployed dipping conditions (i.e., most environmentally Vehicle Training events. sonars) for training over the seven-year protective) and (2) the Navy can commit Comment 52: A commenter stated that period of this rule, and 41–50 hours of to implementing mitigation without dipping sonar, like hull-mounted sonar, MF4 sonar annually for testing (298 impacting safety, sustainability, or the has been shown to be a significant hours total over the seven-year period of ability to meet mission requirements. predictor of deep-dive rates in beaked this rule). The final rule does include The current exclusion zones represent whales. Evidence indicates that beaked mitigation for and some restrictions on the maximum distance practicable for whales dive deeper and stay at depth mid-frequency active sonar, including the Navy to implement, as described in during exposure to mid-frequency active dipping sonar. For example, as Chapter 5 of the FSEIS/OEIS and, sonar (possibly to escape from the described in the proposed rule, further, they encompass the area in sound, as the lowest sound pressure mitigation requirements within 12 nmi which any marine mammal would be levels occur at depth), behavior that also from shore prohibit Anti-Submarine expected to potentially be injured. This extends the inter-deep-dive-interval Warfare Tracking Exercise—Helicopter, final rule includes procedural (‘‘IDDI,’’ a proxy for foraging Maritime Patrol Aircraft, Ship, or mitigation and mitigation areas to disruption). IDDIs were found to Submarine training activities (which further avoid or reduce potential significantly lengthen upon exposure to involve mid-frequency active sonar, impacts from active sonar on marine mid-frequency sonar, with the longest, including MF4 dipping sonar). The mammals in areas where important lasting 541 and 641 minutes, recorded mitigation zone sizes and mitigation behaviors such as feeding and migration during helicopter-deployer sonar use at requirements were developed occur. For example, this final rule distances of about 17 and 11 km, specifically for each applicable training requires the Navy to restrict certain respectively. These effects have been and testing activity category or stressor. activities or types of sonar year-round documented at substantially greater These mitigation zones are the largest within 12 nmi from shore in the Marine distances (about 30 km) than would area that (1) Lookouts can reasonably be Species Coastal Mitigation Area, otherwise be expected given the expected to observe during typical seasonally within the Point St. George systems’ source levels and the response activity conditions (i.e., most Humpback Whale Mitigation Area and thresholds developed from research on environmentally protective); and (2) can Stonewall and Heceta Bank Humpback hull-mounted sonar. Deep-dive duration be implemented by the Navy without Whale Mitigation Area, and year-round increases as distance to the helicopter impacting safety, sustainability, or the in the Puget Sound and Strait of Juan de decreases. ability to meet mission requirements. Fuca Mitigation Area to help avoid The commenter states that helicopters The mitigation measures included in potential impacts from active sonar on deploy mid-frequency active sonar from this final rule represent the maximum marine mammals in important foraging a hover in bouts generally lasting under level of mitigation that is practicable for and migration areas. Also, new 20 minutes, moving rapidly between the Navy to implement when balanced sequential deployments in an against impacts on safety, sustainability, mitigation requiring the Navy to only unpredictable pattern. That and the ability of the Navy to continue conduct explosive mine countermeasure unpredictability may well explain the meeting its mission requirements. Given and neutralization testing in daylight comparatively strong response of whales the amount of dipping sonar and hours and in Beaufort Sea state number to these exposures, even though their comparatively low associated impacts to 3 conditions or less will increase the duration of use and source level (217 marine mammals, along with the probability of detection of marine dB) are generally well below those of impracticability of including more mammals and further increase the hull-mounted mid-frequency active restrictions, additional mitigation effectiveness of procedural mitigation sonar (235 dB). This finding is specific to dipping sonar is not zones. Additional information about the consistent with the wider stress warranted. required mitigation is included in the literature, for which predictability is a Comment 53: Commenters stated that Mitigation Measures section of this final significant factor in determining stress- the Navy needs to incorporate better rule, and in Appendix K (Geographic response from acoustic and other techniques to improve their detection Mitigation Assessment) of the 2020 stimuli (Wright et al., 2007). It should rates of marine mammals, extend their NWTT FSEIS/OEIS. thus be presumed conservatively to exclusion zones around detected marine Comment 54: A commenter stated that apply to marine mammal species other mammals, and utilize exclusion zones other agencies and operators are taking than beaked whales. Notably, dipping based on specific areas and times in new, meaningful steps to reduce noise sonar is deployed at depth, which may their mitigation strategies. and disturbance affecting Southern be another reason why it is relatively Response: The Navy uses active sonar Resident killer whales. The commenter more impactful. during military readiness activities only stated that the Navy must also increase

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72353

its protections, or it will become one-tenth of one percent of total vessel installations in Puget Sound that benefit responsible for a larger share of the traffic in Inland Waters, Navy vessels Southern Resident killer whales. cumulative impact and potentially when present do not add significantly to Comment 55: A commenter stated that negate some of the benefits of the other ambient noise levels. although the Navy proposes to use actions being taken. In 2019, Nonetheless, the number and/or surface-level Lookout systems for Washington state took big steps to intensity of incidents of take of whales, these Lookouts are inadequate reduce impacts on Southern Resident Southern Resident killer whales will be because (1) the visual range of human killer whales from other vessel types, minimized through the incorporation of Lookouts is limited and (2) historically recognizing that noise and disturbance mitigation measures, and NMFS has one-quarter of Navy tests have occurred have significant adverse consequences added mitigation measures for marine at night, further limiting visibility. for this endangered population. In May mammals, including Southern Resident Response: NMFS acknowledges the of that year, Governor Inslee signed into killer whales, in this final rule. New limitations of Lookouts, does not law a bill that increases the distance measures include additional procedural assume that all marine mammals will be that vessels must stay away from mitigation during explosive mine detected, and incorporates this Southern Resident killer whales and countermeasure and neutralization information into its take estimates. enacts a 7-knot speed limit within a half testing; a new Juan de Fuca Eddy Information about the quantitative nautical mile of these killer whales. The Marine Species Mitigation Area; and analysis process, including the legislature also allocated funding for a additional mitigation in the Marine consideration of mitigation new hybrid ferry and funding to convert Species Coastal Mitigation Area and the effectiveness, is described in detail in some ferries to hybrid-electric power. Olympic Coast National Marine the 2018 technical report titled Washington State Ferries also started Sanctuary Mitigation Area (both Quantifying Acoustic Impacts on conducting a baseline noise inventory offshore areas that overlap with Marine Mammals and Sea Turtles: and working to develop solutions to proposed Southern Resident killer Methods and Analytical Approach for address noise and frequencies of whale critical habitat), as well as in the Phase III Training and Testing. The concern. In 2020, the Washington Puget Sound and Strait of Juan de Fuca Navy quantitatively assessed the Department of Fish and Wildlife is Mitigation Area. This new mitigation is effectiveness of its mitigation measures developing rules for a commercial expected to benefit Southern Resident on a per-scenario basis for four factors: whale-watching license program to killer whales, in some cases by limiting (1) Species sightability, (2) a Lookout’s reduce the daily and cumulative or prohibiting certain activities in ability to observe the range to PTS (for impacts of vessel noise and disturbance certain areas during times in which sonar and other transducers) and range on the Southern Resident killer whales. Southern Resident killer whales engage to mortality (for explosives), (3) the portion of time when mitigation could Meanwhile, in 2020, voluntary ship in important behaviors such as feeding potentially be conducted during periods slowdowns will continue and expand and migration, and in other cases, by of reduced daytime visibility (to include through the Vancouver Fraser Port augmenting the effectiveness of inclement weather and high sea state) Authority-led Enhancing Cetacean procedural mitigation measures by and the portion of time when mitigation Habitat and Observation (ECHO) requiring seasonal awareness messages could potentially be conducted at night, Program—a Canadian program that or limiting activities to lower sea states and (4) the ability for sound sources to directly benefits Southern Resident when visibility is higher. With implementation of the new mitigation be positively controlled (e.g., powered orcas in the inland waters. In 2019, 82 measures included in this final rule, we down). percent of large commercial ships do not anticipate any take of Southern Appendix A (Navy Activities participated in the slowdown. The Resident killer whales in NWTT Inland Descriptions) of the 2020 NWTT FSEIS/ Navy’s contributions will take up a Waters due to NWTT training and OEIS includes details on seasonality larger share of the underwater noise and testing activities. These new mitigation and day/night requirements of the disturbance as others reduce their measures are described in detail in the Navy’s activities. Additionally, this final impacts and the Navy continues to scale Mitigation Measures section of this final rule includes mitigation which prohibits its activities up. The Navy should rule. the Navy from conducting explosive increase its own mitigation efforts so These new measures, in combination Mine Countermeasure and that there is still a significant net benefit with those included in the proposed Neutralization Testing at night, as to the Southern Resident killer whales rule, will reduce the severity of impacts described in the Mitigation Measures in terms of reduced noise and to Southern Resident killer whales by section of this final rule, and in Chapter disturbance when all these other entities reducing interference in feeding and 5 (Mitigation) of the 2020 NWTT FSEIS/ are increasing their protective measures. migration that could result in lost OEIS. As described in Section 5.5.1 Response: Please see the response to feeding opportunities or necessitate (Active Sonar) of the 2020 NWTT Comment 74 for more information additional energy expenditure to find FSEIS/OEIS, the Navy has a requirement regarding the low magnitude and other good foraging opportunities or to conduct some active sonar training severity of the anticipated impacts on migration routes. Procedural mitigations and testing at night due to Southern Resident killer whales. Also, that alleviate the likelihood of injury, environmental differences between day of note, the standard operating such as shutdown measures, also further and night and varying weather procedures and mitigation the Navy reduce the likelihood of more severe conditions that affect sound propagation uses to help avoid vessel strike would behavioral responses. and the detection capabilities of sonar. further help reduce exposure to vessel Additionally, the Navy has been a key Temperature layers that move up and noise. Further, unlike commercial contributor to marine species down in the water column and ambient vessels, Navy vessel design generally monitoring projects for a number of noise levels can vary significantly incorporates quieting technologies in years to advance scientific knowledge of between night and day. This affects propulsion components, machinery, and Southern Resident killer whales and the sound propagation and could affect how the hull structure to reduce radiated salmon they rely on. For decades, the sonar systems function and are acoustic energy. As a result, and in Navy has implemented habitat operated. Therefore, it is not practicable addition to comprising approximately improvement projects on its to prohibit all active sonar activities

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72354 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

from being conducted at night due to distance aligns with Washington State noted in Washington State law, we note impacts on mission requirements; law which requires most vessels to slow that the analysis conducted by the Navy however, after sunset and prior to down to 7 knots when within 0.5 nmi and NMFS includes consideration of sunrise, Lookouts and other Navy watch (0.9 km) of Southern Resident killer large areas such as those referenced by personnel employ night visual search whales in order to mitigate noise the commenters, through the techniques, which could include the use impacts and disturbance. Other application of the BRFs and the of night vision devices, as described in commenters recommended that the associated cutoff distances—in other Section 5.2.1 (Procedural Mitigation Navy cease any active mid-frequency words, effects at these distances are Development) of the 2020 NWTT FSEIS/ sonar testing and exercises if any killer considered. However, avoiding all Level OEIS. Please see the response to whales are sighted within .5 nmi, rather B harassment would be impossible to do Comment 46 for discussion regarding than the proposed 200-yd or 100-yd while also conducting the activities use of thermal detection systems as a shutdown mitigation zone which is analyzed, which is why the Navy has mitigation tool. Also, we note that much closer than even the 300-yd and requested authorization. Further, we visual mitigation is not the only tool; 400-yd approach distance for note that reference to Washington State the Navy currently uses passive acoustic commercial whale watch operators and measures is not comparable to devices to the maximum extent recreational boaters. Additionally, mitigation required pursuant to an practicable to aid in the detection of commenters stated that the Navy’s use incidental take authorization, as the goal marine mammals. of mid-frequency sonar can impact there is to minimize the likelihood of Comment 56: Commenters suggested wildlife within 2,000 mi2 (5180 km2), any take for unauthorized entities. that NMFS require the Navy to use an much farther than the 100 yd (91.4 m) The Navy has conducted active sonar alternative method of training that does proposed for some of the Navy’s and explosives training and testing not have such a negative impact on proposed activities. The commenter activities in the Study Area for decades, marine life, such as sophisticated stated that although these activities may and there is no evidence that routine simulators and virtual explosives. affect a wide range of marine mammals, Navy training and testing has negatively Response: The Navy uses the the potential impact of these activities impacted marine mammal populations necessary amounts of simulated and live on endangered Southern Resident killer in the Study Area. NMFS’ and the training to accomplish their mission. As whales is of particular concern, given Navy’s analyses were completed using discussed in the 2015 NWTT Final EIS/ their dangerously low population size. the best available science, and include OEIS Section 1.4.1 (Why the Navy Response: As described in the 2020 results from recently completed acoustic Trains), simulators and synthetic NWTT FSEIS/OEIS regarding shutdown modeling. As discussed in the training are critical elements that requirements, the mitigation zone sizes Mitigation Measures section of this final provide early skill repetition and and mitigation requirements in this rule rule, and Chapter 5 (Mitigation) of the enhance teamwork; however, they are customized for each applicable 2020 NWTT FSEIS/OEIS, required cannot replicate the complexity and training and testing activity category or mitigation will avoid or reduce potential stresses faced by Navy personnel during stressor to protect specific biological impacts from NWTT activities on military missions and combat resources from an auditory injury (PTS), marine mammals, including Southern operations to which the Navy trains non-auditory injury (from impulsive Resident killer whales (see response to (e.g., anti-submarine warfare training sources), or direct strike (e.g., vessel Comment 74 for additional discussion using hull-mounted mid-frequency strike) to the maximum extent regarding impacts to Southern Resident active sonar). Just as a pilot would not practicable. Mitigation zones were killer whales). be ready to fly solo after simulator developed to be the largest area that (1) Monitoring training, operational Commanders Lookouts can reasonably be expected to cannot allow military personnel to observe during typical activity Comment 58: A commenter stated that engage in military missions and combat conditions (i.e., most environmentally the Navy should clearly state that all operations based merely on simulator protective) and (2) the Navy can commit appropriate personnel must have training. In addition, as discussed in to implementing mitigation without completed relevant training modules Section 2.4.1.5 (Simulated Training and impacting safety, sustainability, or the prior to participating in training and Testing Only) of the 2020 NWTT FSEIS/ ability to meet mission requirements. testing activities. Ensuring OEIS, the Navy currently uses NMFS has evaluated these ‘‘environmental awareness of event simulation whenever possible (e.g., recommendations for larger shutdown participants,’’ including the possible initial basic systems training, emergency zones, and while larger shutdown zones presence of Southern Resident killer procedures, and command and control might further reduce the potential or whales in the training location, implies exercises that are conducted without severity of the small amount of that it is real-time situational awareness operational forces) and simulation plays anticipated Level A harassment to some of potential killer whale presence. But it a role in both antisubmarine warfare degree, we concur with the evaluation is in fact a series of modules in the training and testing aboard ships, presented by the Navy indicating that Afloat Environmental Compliance submarines, and aircraft and in aircrew increases in these zones are Training Program, and ‘‘appropriate training and testing. impracticable and have accordingly personnel’’ will complete some or all of Comment 57: Commenters determined that larger shutdown zones these modules at some time, with no recommended that NMFS require the are not warranted. The shutdown zones defined timeline. There should be clear Navy to postpone or cancel any currently required for Navy activities, timeframes in which personnel will exercises when Lookouts detect marine especially as coupled with other complete this training program. The mammals, specifically killer whales, procedural mitigations and the required commenter asserts that this mitigation within 1,000 yd (914.4 m) of the geographic mitigations, will effect the measure is indisputably both available exercise, rather than the smaller zones least practicable adverse impact on and practical. included in the proposed rule, to marine mammal species or stocks and Response: As stated in the rule, ‘‘All mitigate long-term effects of noise their habitat. bridge watch personnel, Commanding exposure over an animal’s lifetime. The Regarding statements related to the Officers, Executive Officers, maritime commenters note that this minimum areal extent of Navy effects, or distances patrol aircraft aircrews, anti-submarine

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72355

warfare and mine warfare rotary-wing requirements of the MMPA, NMFS management processes, which regularly aircrews, Lookouts, and equivalent works closely with the Navy in the consider and evaluate the development civilian personnel must successfully identification of monitoring priorities and use of new science and technologies complete the Marine Species Awareness and the selection of projects to conduct, for Navy applications. Further, the Navy Training prior to standing watch or continue, modify, and/or stop through also works with NMFS to target and serving as a Lookout.’’ Please see Table the adaptive management process, prioritize data needs that are more 35 for additional information regarding which includes annual review and appropriately addressed through Navy training requirements. debriefs by all scientists conducting research programs, such as the ONR and Comment 59: A commenter studies pursuant to the MMPA LMR programs. The Navy has indicated recommended that, in addition to authorization. The process NMFS and that it will continue to be a leader in requiring long-term monitoring studies, the Navy have developed allows for funding of research to better understand NMFS should prioritize Navy research comprehensive and timely input from the potential impacts of Navy training projects that aim to quantify the impact NMFS, the Navy, the Marine Mammal and testing activities and to operate of training and testing activities at the Commission, and researchers with the least possible impacts while individual, and ultimately, population- conducting monitoring under the rule, meeting training and testing level. The commenter recommended which is based on rigorous reporting out requirements. Some of the efforts the detailed, individual-level behavioral- from the Navy and the researchers doing Navy is leading or has recently response studies, such as focal follows the work. With extensive input from completed are described below. and tagging using DTAGs, carried out NMFS, the Navy established the (1) Individual-level behavioral- before, during, and after Navy Strategic Planning Process for Marine response studies—There are no ONR or operations, which can provide Species Monitoring to help structure the LMR behavioral response studies in the important insights for these species and evaluation and prioritization of projects NWTT Study Area given the limited stocks. The commenter stated that for funding. The Monitoring section of number of activities conducted in recent studies using DTAGs have also this rule provides an overview of this NWTT in comparison to other ranges in been used to characterize social Strategic Planning Process. More detail, the Pacific. However, many of the communications between individuals of including the current intermediate studies on species-specific reactions are a species or stock, including between scientific objectives, is available in designed to be applicable across mothers and calves. The commenter section 5 (Mitigation), Section geographic boundaries (e.g., Cuvier’s recommended studies be prioritized that 5.1.2.2.1.3 (Strategic Planning Process) beaked whale studies in the HSTT further characterize the suite of of the 2020 NWTT FSEIS/OEIS and on Study Area). vocalizations related to social the monitoring portal (https:// (2) Tags and other detection technologies to characterize social interactions. The commenter also stated www.navymarinespeciesmonitoring.us/) communication between individuals of that the use of unmanned aerial vehicles as well as in the Strategic Planning a species or stock, including mothers is also proving useful for surveying Process report. The Navy’s evaluation and calves—DTAGs are just one marine species, and can provide a less and prioritization process is driven example of animal movement and invasive approach to undertaking focal largely by a standard set of criteria that acoustics tags. From the Navy’s ONR follows. Imagery from unmanned aerial help the internal steering committee and LMR programs, Navy funding is vehicles can also be used to assess body evaluate how well a potential project being used to improve a suite of marine condition and, in some cases, health of would address the primary objectives of individuals. The commenter mammal tags to increase attachment the monitoring program. Given that the recommended that NMFS require the times, improve data being collected, and Navy’s Monitoring Program applies to Navy to use these technologies for improve data satellite transmission. The all of the Navy’s major Training and assessing marine mammal behavior Navy has funded a variety of projects Testing activities and, thereby spans before, during, and after Navy that are collecting data that can be used multiple regions and Study Areas to operations (e.g., swim speed and to study social interactions amongst encompass consideration of the entire direction, group cohesion). The individuals. For example, as of U.S. EEZ and beyond, one of the key commenter also stated that studies into September 2020 the following studies components of the prioritization process how these technologies can be used to are currently being funded: Assessing is to focus monitoring in a manner that assess body condition should be performance and effects of new supported as this can provide an fills regionally specific data gaps, where integrated transdermal large whale important indication of energy budget possible (e.g., more limited basic marine satellite tags 2018–2021 (Organization: and health, which can inform the mammal distribution data in the MITT Marine Ecology and Telemetry assessment of population-level impacts. Study Area), and also takes advantage of Research); Autonomous Floating Response: First, the Navy is pursuing regionally available assets (e.g., Acoustic Array and Tags for Cue Rate many of the topics that the commenter instrumented ranges in the HSTT Study Estimation 2019–2020 (Organization: identifies, either through the monitoring Area). NMFS has opportunities to Texas A&M University Galveston); required under the MMPA or under the provide input regarding the Navy’s Development of the next generation ESA, or through other Navy-funded intermediate scientific objectives as well automatic surface whale detection Office of Naval Research (ONR) and as to provide feedback on individual system for marine mammal mitigation Living Marine Resources (LMR) research projects through the annual program and distribution estimation 2019–2021 programs. We are confident that the review meeting and annual report. For (Organization: Woods Hole monitoring conducted by the Navy additional information, please visit: Oceanographic Institution); High satisfies the requirements of the MMPA. https:// Fidelity Acoustic and Fine-scale A list of the monitoring studies that the www.navymarinespeciesmonitoring.us/ Movement Tags 2016–2020 Navy will be conducting under this rule about/strategic-planning-process/. (Organization: University of Michigan); is at the end of the Monitoring section The Navy’s involvement with future Improved Tag Attachment System for of this final rule. Broadly speaking, in research will continue to be developed Remotely-deployed Medium-term order to ensure that the monitoring the and refined by the Navy and NMFS Cetacean Tags 2019–2023 (Organization: Navy conducts satisfies the through the consultation and adaptive Marine Ecology and Telemetry

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72356 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Research); Next generation sound and population level consequences resulting reasonable alternatives (40 CFR 1502.22; movement tags for behavioral studies on from disturbances will be collected now section 1502.21), NMFS should whales 2016–2020 (Organization: during projects funded by the Navy’s urgently fund research to assess the University of St. Andrews); On-board marine species monitoring program. extent of prey availability loss for calculation and telemetry of the body However, currently, PCoD models are California gray whales and to determine condition of individual marine dependent on multiple factors, one or the cause of that loss of prey. mammals 2017–2021 (Organization: more of which are often unknown for Response: This comment is outside of University of St. Andrews, Sea Mammal many populations, which makes it the scope of this rulemaking, which Research Unit); wide-band detection challenging to produce a reliable answer must use the best available science to and classification system 2018–2020 for most species and activity types, and determine whether incidental take (Organization: Woods Hole further work is needed (and underway) authorization should be issued under Oceanographic Institution); and to develop a more broadly applicable section 101(a)(5)(A) of the MMPA, and Extended Duration Acoustic Tagging generalized construct that can be used which includes requirements for the 2016–2021 (Organization: Syracuse in an impact assessment. As discussed Navy to implement certain mitigation University). in the Monitoring section of this rule, and monitoring measures related to that (3) Unmanned Aerial Vehicles to the Navy’s marine species monitoring incidental take. There is no information assess marine mammal behavior (e.g., program typically supports 10–15 to indicate that prey availability loss for swim speed and direction, group projects in the Pacific at any given time. gray whales is related to the Navy’s cohesion) before, during, and after Navy Current projects cover a range of species testing and training activities in the training and testing activities—Studies and topics from collecting baseline data NWTT Study Area. Comments regarding that use unmanned aerial vehicles to on occurrence and distribution, to NMFS’ responsibilities under separate assess marine mammal behaviors and tracking whales, to conducting sections of the MMPA or NEPA, or body condition are being funded by behavioral response studies on beaked recommendations that NMFS fund ONR’s Marine Mammals and Biology whales and pilot whales. The Navy’s specific research under other sections of program. Although the technology marine species monitoring web portal the MMPA, should be addressed to the shows promise (as reviewed by Verfuss provides details on past and current appropriate NMFS office. et al., 2019), the field limitations monitoring projects, including technical Comment 61: A commenter stated that associated with the use of this reports, publications, presentations, and the Navy says it will make reports but technology have hindered its useful access to available data and can be questioned how their activities will be application in behavioral response found at: https://www. monitored. Another commenter studies in association with Navy navymarinespeciesmonitoring.us/ requested an accounting of past training and testing events. For safety, regions/pacific/current-projects/. operations and the damage done in the research vessels cannot remain in close In summary, NMFS and the Navy 10 years prior to this authorization. proximity to Navy vessels during Navy work closely together to prioritize, Response: Please refer to the training or testing events, so battery life review, and adaptively manage the Monitoring and Reporting sections of of the unmanned aerial vehicles has extensive suite of monitoring that the this final rule for an explanation of how been an issue. However, as the Navy conducts in order to ensure that it the Navy’s activities will be monitored technology improves, the Navy will satisfies the MMPA requirements. and reported on. Additionally, the continue to assess the applicability of NMFS has laid out a broad set of goals Navy’s marine species monitoring web this technology for the Navy’s research that are appropriate for any entity portal provides exercise reports for and monitoring programs. An example authorized under the MMPA to pursue, previous activities in the NWTT Study project is integrating remote sensing and then we have worked with the Navy Area, as well details on past and current methods to measure baseline behavior to manage their projects to best target monitoring projects, including technical and responses of social delphinids to the most appropriate goals given their reports, publications, presentations, and Navy sonar 2016–2019 (Organization: activities, impacts, and assets in the access to available data. The Navy’s Southall Environmental Associates NWTT Study Area. Given the scale of marine species monitoring web portal Inc.). the NWTT Study Area and the variety can be found at: https:// (4) Modeling methods that could of activities conducted, there are many www.navymarinespeciesmonitoring.us/ provide indicators of population-level possible combinations of projects that reporting/pacific/. effects—NMFS asked the Navy to could satisfy the MMPA standard for the Comment 62: A commenter stated that expand funding to explore the utility of rule. The commenter has recommended the Navy should reconsider the impacts other, simpler modeling methods that more and/or different monitoring than of its proposed activities being imposed could provide at least an indicator of NMFS is requiring and the Navy is on Southern Resident killer whales, and population-level effects, even if each of conducting or currently plans to examine alternatives and additional the behavioral and physiological conduct, but has in no way mitigation measures to ensure the mechanisms are not fully characterized. demonstrated that the monitoring protection and recovery of this The ONR Marine Mammals and Biology currently being conducted does not population. The commenter program has invested in the Population satisfy the MMPA standard. NMFS recommended that if marine mammals Consequences of Disturbance (PCoD) appreciates the commenter’s input, and are sighted or detected within acoustic model, which provides a theoretical will consider it, as appropriate, in the range, then exercises should be shut framework and the types of data that context of our adaptive management down, if in progress, and postponed or would be needed to assess population process, but is not requiring any moved elsewhere if the exercises have level impacts. Although the process is changes at this time. not yet started. The commenter stated complicated and many species are data Comment 60: Consistent with its that an appropriate threshold for such a poor, this work has provided a responsibilities under the MMPA’s decision is whenever noise levels from foundation for the type of data that is provisions on unusual mortality events naval operations as well as other needed. Therefore, in the future, the (section 1421c of the MMPA), as well as sources at the location of Southern relevant data pieces that are needed for requirements under NEPA to obtain Resident killer whales are expected to improving the analytical approaches for information essential to its analysis of be greater than 130 dB re 1mPa, the pain

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72357

threshold of killer whales. The criteria and thresholds for assessing not included a requirement to install a commenter states that these lower impacts to marine mammals. hydrophone array for real-time thresholds will extend far beyond the Additionally, as referenced in other mitigation monitoring. range at which marine mammals can be comment responses, this final rule Negligible Impact Determination sighted from vessels responsible for includes extensive mitigation that will explosives and mid-frequency active minimize impacts to Southern Resident Comment 63: A commenter stated that sonar. This will require the use of killer whales, including many NMFS tabulates takes of marine remote sensing technology such as additional measures added since the mammal species but has not adequately drones (with infrared sensing capability proposed rule. For example, the Navy is assessed the aggregate impacts. The for use at night) and sonobuoys. Two required to communicate with available commenter asserted that, on the commenters suggested that the use of sighting detection networks prior to the contrary, NMFS assumes, without any permanent hydrophone arrays wired to conduct of applicable activities in explanation, that the accumulated shore would allow more thorough NWTT Inland Waters. Additionally, this annual mortalities, injuries, energetic tracking of marine mammal movement final rule includes a new mitigation area costs, temporary losses of hearing, throughout the training range. In in the NWTT Offshore Area known as chronic stress, and other impacts would addition, exercises should be moved the Juan de Fuca Eddy Marine Species not affect vital rates in individuals or further offshore than currently planned Mitigation Area, where annual mid- populations, even though the Navy’s to compensate for the greater ranges at frequency active sonar hours will be activities would affect the same which Level B takes could be expected limited and explosives will be populations over time. This assumption under the criteria recommended here prohibited. It would not be practicable seems predicated, for many species, on than for the 120 dB contour. for the Navy to implement additional the unsupported notion that transient Another commenter stated that the distance-from-shore restrictions or activity will not accumulate into Navy should fund the installation of an additional passive acoustic monitoring population-level harm. The commenter array of underwater microphones along for the reasons provided in Appendix K stated that the proposed rule makes this the coast of Washington state to provide (Geographic Mitigation Assessment) and assertion even for populations such as near real-time information on the Chapter 5 (Mitigation) of the 2020 Hood Canal harbor seals and whereabouts of the Southern Resident NWTT FSEIS/OEIS. NMFS has Washington Inland harbor porpoises, for killer whales as well as other cetaceans. reviewed the analysis of additional which it estimates auditory injury, This would serve as an important early potential restrictions and the impacts temporary hearing loss, and behavioral warning system in the offshore area to they would have on military readiness, disruption at high numbers relative to complement the boat-based observers and concurs with the Navy’s assessment the size of individual populations. who have a limited visual range. that they are impracticable. Multiple commenters noted concern Activities could then be planned based Additionally, the mitigation zones that the Hood Canal population of on Southern Resident killer whales included in this final rule represent the harbor seals would be taken 30.84 times movements and halted when Southern largest zones practicable for the Navy to its abundance each year, for seven years. Resident killer whales are approaching implement, as discussed in Comment Commenters said that NMFS observes well before they reach the 0.5 nmi 52. Therefore, the larger zones suggested that such high numbers of takes make it distance. Hanson (2018) noted that 28 by the commenter are not included in likely that females will suffer recorders would achieve a high this final rule. Regarding the use of reproductive loss, yet it argues—without probability of detection all along the infrared and thermal technologies, any quantitative support—that any such Washington coast. The array would please see the response to Comment 46. effects would be negligible on the have the added benefit of improving Regarding the installation of population level because only a small monitoring of other killer whale permanent hydrophone arrays wired to number of individual females would be populations, pilot whales, sperm shore along the coast of Washington affected. Nowhere does NMFS consider whales, and beaked whales, allowing for state to provide near real-time the potential for sensitization, improved implementation of mitigation information on the whereabouts of the permanent habitat displacement, or measures to reduce incidental take of Southern Resident killer whales as well other effects of repeated exposure that those species as well. as other cetaceans, the cost and could exacerbate the already high Response: The Navy, in consultation installation of such a system in and of numbers of takes. with NMFS, used the best available itself would be a major federal Commenters noted that other parties science on marine mammal behavioral undertaking that would require separate have conducted quantitative analysis of responses during acoustic exposures to NEPA and permitting (Clean Water Act, population consequences of develop appropriate behavioral essential fish habitat consultation, etc.) disturbance, both in cases where response criteria and BRFs, which for and is beyond the scope of mitigation substantial information is available for odontocetes (including killer whales) that is necessary to meet the least modeling and in cases where it is not— predict that approximately 10–17 practicable adverse impact standard. as is evident even in a three-year-old percent of exposures at 120–130 dB will Further, given the low numbers and report from the National Academy of result in behavioral responses that density of Southern Resident killer Sciences. NMFS cannot, the commenter qualify as Level B harassment. For more whales, combined with the relatively asserts, discount the results of its take information about the Phase III criteria, low number of training and testing estimation without any quantitative or please refer to the technical report titled activities, the benefits of such a meaningful analysis. Its attempt to do so Criteria and Thresholds for U.S. Navy detection network would be limited here for populations with high levels of Acoustic and Explosive Effects Analysis (i.e., we would expect few instances in take is unreasonable on its own terms (Phase III) (June 2017), available at which whales would be detected in an and insupportable under the MMPA’s www.nwtteis.com. NMFS and the Navy exact place and time that would standard of ‘‘best available science.’’ have also consulted with NMFS’ ESA intersect with a potential exercise, and Response: NMFS fully considered the Interagency Cooperation Division under thereby allow for an opportunity to potential for aggregate effects from all section 7 of the Endangered Species Act mitigate). This recommendation is not Navy activities and has applied a and will continue to coordinate on warranted and, accordingly, NMFS has reasoned and comprehensive approach

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72358 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

to evaluating the effects of the Navy options) could cause them to forego Additionally, in the NWTT Study activities on marine mammal species reproduction for a year (energetic Area unit-level military readiness and their habitat. impacts to males are generally activities occur over a small spatial No mortalities or non-auditory meaningless to population rates unless scale with few participants, typically injuries are predicted from sonar or they cause death, and it takes extreme over a short duration (a few hours or explosives for any marine mammal energy deficits beyond what would ever less), while larger-scale training and species, including harbor porpoises and be likely to result from these activities testing events occur in locations outside harbor seals. The vast majority of to cause the death of an adult marine of the Study Area. While data with impacts to marine mammals are mammal). However, we first note that which to quantify or analyze potentially instances of behavioral response, the predicted potential number of synergistic impacts of multiple stressors followed by instances of temporary repeated days of take for any individual are limited, substantial efforts are threshold shift, both considered Level B has decreased significantly since the underway to better understand aggregate harassment under the MMPA. A small proposed rule (a reduction of more than effects through data collection and proportion of a few species such as 50 percent) as a result of harbor seal improved analytical methods, such as harbor porpoises are estimated to abundance corrections. Specifically, the Population Consequences of receive instances of mild PTS, however whereas the proposed rule suggested an Disturbance model (see Section there is no information to indicate that 3.4.2.1.1.7, Long-Term Consequences in the small amount of predicted PTS will average of 31 days of take with some subset of individuals experiencing the 2020 NWTT FSEIS/OEIS). However, affect the fitness of any individual. until there are sufficient data to inform NMFS has explained in detail in the more, the final rule predicts an average of 10 days of incurred take per such models, the best mechanism for proposed rule and again in this final assessing the impacts from Navy rule how the estimated takes were individual, with some potentially experiencing up to 21. The fewer the training and testing activities on marine calculated for marine mammals, and mammal reproduction and survival days per year on which take is likely then how the size of the Study Area includes monitoring the populations incurred by any individual, the less across which activities may be over time on Navy ranges. The Navy has likely those days will be sequential, and distributed (and the ASW activities conducted active sonar and explosives the lower the maximum number of utilizing MF1 sonar, which account for training and testing activities in the sequential days, all of which makes it the majority of the takes may occur Study Area for decades, and there is no anywhere in the Study Area and less likely that the behavioral impacts to evidence that routine Navy training and predominantly more than 12 nmi from any individuals would impact energetic testing has negatively impacted marine shore) combined with the comparatively budgets in a manner that would affect mammal populations in the Study Area small number of takes as compared to reproduction. Further, foregone (or at any Navy Range Complex). In the abundance of the species or stock in reproduction (especially for only one addition, the Navy’s research and the area does not support that any year within seven, which is the monitoring programs described in the individuals, other than Hood Canal maximum predicted because the small Monitoring section are focused on harbor seals, will likely be taken over number anticipated in any one year filling data gaps and obtaining the most more than a few non-sequential days. makes the probability that any up-to-date science to inform impact We also considered UMEs (for species individual will be impacted in this way assessment. Information about prior and or stocks where applicable) to inform twice in seven years very low) has far current research being conducted on the baseline levels of both individual less of an impact on population rates marine mammals on Navy ranges is in health and susceptibility to additional than mortality, and a relatively small Chapter 3.4 (Marine Mammals) of the stressors, as well as stock status. number of instances of foregone 2020 NWTT FSEIS/OEIS and can be Further, the species-specific reproduction would not be expected to found at assessments in the Analysis and adversely affect the stock through effects www.navymarinespeciesmonitoring.us. Negligible Impact Determination section on annual rates of recruitment or Comment 64: A commenter stated that pull together and address the combined survival, especially when the stock is injury, behavioral disturbance, and NMFS did not meet the legal standard increasing. As discussed in the Analysis in the MMPA to find that the Navy’s other effects of the aggregate NWTT and Negligible Impact Determination activities (and in consideration of proposed actions ‘‘will have a negligible section for this analysis, there is applicable mitigation) as well as other impact on’’ the species and stocks of documented evidence of an increasing information that supports our marine mammals living in the NWTT population for Hood Canal harbor seals, determinations that the Navy activities Study Area. NMFS defines ‘‘[n]egligible will not adversely affect any species or including pupping on the Naval Base impact’’ as an impact ‘‘that cannot be stocks via impacts on rates of Kitsap Bangor waterfront in recent years reasonably expected to, and is not recruitment or survival. (an area with high levels of human reasonably likely to, adversely affect the NMFS acknowledges that for the activity, including nearby pile driving, species or stock through effects on Hood Canal stock of harbor seals, and associated noise). Further of note, annual rates of recruitment or survival.’’ though the majority of impacts are the Navy has been conducting NMFS must make the negligible impact expected to be of a lower to sometimes monitoring of harbor seals and finding based on the ‘‘best available moderate severity, the repeated takes porpoises in the vicinity of Naval Base science.’’ However, the commenter says over some number of sequential days for Kitsap Bangor where pierside sonar use that NMFS does not adequately engage some individuals in this stock makes it occurs, and harbor seals are noted in the with identified impacts to vulnerable more likely that some small number of waters around the piers daily and have species, including Southern Resident individuals could be interrupted during become habituated to the high levels of killer whales and gray whales, analyze foraging in a manner and amount such noise at the industrial piers to the extent impacts of Naval aircraft, or address the that impacts to the energy budgets of that they do not avoid the piers during role of climate change in exacerbating females (from either losing feeding active pile driving with impact anticipated impacts of Naval activities. opportunities or expending considerable hammers, which produce sounds almost Another commenter also noted that energy to find alternative feeding as high as tactical sonar. multiple studies demonstrate behavior

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72359

impacts to cetaceans from aircraft, aircraft, but overall little change in NMFS has corrected this error in the disagreed with the conclusion that behavior has been observed during final rule. The Analysis and Negligible aircraft do not result in harassment, and flyovers. Some odontocetes dove, Impact Determination section of this asked that NMFS ensure that any effects slapped the water, or swam away from final rule includes a full discussion of from aircraft result in a negligible the direction of the aircraft during NMFS’ analysis of the impacts of the impact on marine mammals (especially overflights; others did not visibly react Navy’s activities, and its negligible Southern Resident killer whales, given (Richardson et al., 1995b). Beaked impact determinations for impacts to their status). For these reasons, the whales are more sensitive than other Dall’s porpoise and harbor porpoise. commenter asserts that NMFS cannot cetaceans (Wu¨ rsig et al., 1998). Killer Comment 66: A commenter stated that justify its finding of negligible impact whales demonstrated no change in it strongly urges NMFS to revise its based on the record in the proposed group cohesion or orientation during proposed authorization and mitigation rule. survey airplane or unmanned aerial measures to better protect Washington’s Response: NMFS fully considered the system flyovers (Durban et al., 2015; marine mammals, including endangered potential for aggregate effects from all Smultea and Lomac-ManNair, 2016). It Southern Resident killer whales, in Navy activities, and discusses its is unlikely that aircraft will randomly accordance with the MMPA. The consideration of these impacts, and its fly close enough to marine mammals commenter stated that NMFS bases its negligible impact determination for each (much less close enough over water at authorization on inadequate data and species and stock in the Analysis and the moment that a cetacean surfaces) to does not require sufficient mitigation Negligible Impact Determination section evoke any response, and further measures. The commenter asserted that of this final rule. As described unlikely that a marine mammal as a result, NMFS’ findings of negligible throughout the rule, NFMS relied on the response to such an instantaneous impact and least practicable adverse best available science in considering the exposure would result in that marine impact and proposed approval violate impacts of the Navy’s activities and in mammal’s behavioral patterns being the MMPA and are further arbitrary and making the negligible impact ‘‘significantly altered or abandoned.’’ capricious under the Administrative determinations. NMFS fully considered Accordingly, the Navy did not request Procedure Act. the status of Southern Resident killer authorization for take resulting from Response: In the final rule, NMFS whales, gray whales, and all other aircraft overflights, and NMFS does not fully considered the best available marine mammals in its analysis, as anticipate or authorize it. science, with the key scientific studies discussed in the Description of Marine Comment 65: A commenter stated that fully referenced throughout the rule. Mammals and Their Habitat in the Area the rates of take for populations of Dall’s Additional science that was considered of the Specified Activities and the porpoises (131 percent of population by both NMFS and the Navy is Analysis and Negligible Impact abundance) and the populations of referenced in the 2020 NWTT FSEIS/ Determination sections of the proposed harbor porpoises on the Northern OR/ OEIS. and final rules. NMFS is required to WA Coast (244 percent of population The rule also includes extensive analyze the impacts of the proposed abundance) and in Washington Inland mitigation measures for Southern authorized take in its negligible impact Waters (265 percent of population Resident killer whales and other marine analysis—the effects of climate change abundance) are exceptionally high. As mammals that occur in Washington, are considered in the baseline of the noted by NMFS, these porpoises are including new measures since status of marine mammal stocks in the particularly vulnerable to the impacts of publication of the proposed rule. As rule, and further considered through the anthropogenic sound. NMFS recognizes discussed in the Mitigation Measures 2020 NWTT FSEIS/OEIS cumulative that this level of take could also lead to section of the rule, and in Chapter 5 impact analysis (Chapter 4, Cumulative reproductive loss, but again asserts, (Mitigation) of the 2020 NWTT FSEIS/ Impacts). NMFS acknowledges that without thorough analysis, that it OEIS, the Navy will implement climate change is impacting the marine ‘‘would not be expected to adversely extensive mitigation to avoid or reduce environment in ways that could change impact annual rates of recruitment or potential impacts from the NWTT our assessment of effects on marine survival.’’ However, NMFS goes on to activities on marine mammals. These mammals in the future, but the precise authorize these very high levels of take. mitigation measures include mitigation manner in which these changes would The commenter asserts that such areas that restrict certain activities in impact marine mammals and their ‘‘cursory’’ statements are not enough places and during times that are habitat in the next seven years is both under the MMPA. Rather NMFS has a particularly important to Southern unpredictable and unquantifiable in the legal obligation to assess these impacts Resident killer whales and other marine context of our analysis of the impacts of using the best available science. mammals. One of these mitigation areas, Navy activities, and NMFS’ analysis is Response: The vulnerability of Dall’s the Puget Sound and Strait of Juan de based on the best available scientific porpoise and harbor porpoise to sound Fuca Mitigation Area, encompasses the data. is captured in the higher take estimate entire extent of NWTT Inland Waters in NMFS acknowledges the data (as compared to other species in the the state of Washington, including demonstrating that marine mammals NWTT Study Area), as this sensitivity is Southern Resident killer whale critical sometimes respond to aircraft accounted for in the Navy’s NAEMO habitat. New mitigation measures in the overflights, however, we have evaluated model. NMFS erroneously indicated in Puget Sound and Strait of Juan de Fuca the best available data and the Navy’s the Preliminary Analysis and Negligible Mitigation Area will result in training activities and do not expect marine Impact Determination section of the and testing activities being conducted in mammals to be affected in a manner that proposed rule that the impacts to Dall’s NWTT Inland Waters only when qualifies as Level B harassment. porpoises and harbor porpoises may necessitated by mission-essential Information regarding behavioral cause them to forgo reproduction for a training or testing program reactions of marine mammals to aircraft year. Given the expected low-level requirements. With implementation of is provided in Section 3.4.2.1.1.5 impacts and the mitigation included in the new mitigation measures included (Behavioral to Aircraft Noise) of the this final rule, NMFS does not expect in this final rule, we do not anticipate 2020 NWTT FSEIS/OEIS. Marine individuals from these species and any take of Southern Resident killer mammals have variable responses to stocks to forego reproduction, and whales in NWTT Inland Waters due to

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72360 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

NWTT training and testing activities. A harassment is anticipated or and impact of all the activity covered by This final rule also includes additional authorized. Altogether, while we have the SEIS, and failing to consider the mitigation measures for Southern considered the impacts of the gray cumulative impacts of noise and other Resident killer whales in other whale UME, this population of gray stressors in conjunction with other mitigation areas, including the Marine whales is not endangered or threatened reasonably foreseeable activities. Species Coastal Mitigation Area and the under the ESA and the best available Commenters stated that the final rule Olympic Coast National Marine science at this time indicates the stock should not be issued until after NMFS Sanctuary Mitigation Area. Please refer is increasing. Additionally, only a very completes a proper NEPA analysis. to the Mitigation Measures section of small portion of the stock is anticipated Response: Consistent with the this final rule for further discussion of to be impacted by Level B harassment regulations published by the Council on the required mitigation measures in the (less than 1 percent) and any individual Environmental Quality (CEQ), it is NWTT Study Area. gray whale is likely to be disturbed at common and sound NEPA practice for Having considered all of the pertinent a low-moderate level. This low NMFS to participate as a cooperating science available to the agency (of magnitude and moderate-lower severity agency and adopt a lead agency’s NEPA which just the key studies have been of harassment effects is not expected to analysis when, after independent referenced in the rule) and the full suite result in impacts to reproduction or review, NMFS determines the document of mitigation measures to reduce survival for any individuals, nor are to be sufficient in accordance with 40 impacts, the final rule provides a these harassment takes combined with CFR 1506.3. Specifically here, NMFS is thorough discussion of the least the authorized mortality of one whale satisfied that the 2020 NWTT FSEIS/ practicable adverse impact and over the seven-year period expected to OEIS adequately addresses the impacts negligible impact analyses and adversely affect this stock through of issuing the MMPA incidental take determinations in the Mitigation impacts on annual rates of recruitment authorization (including in its Measures and Analysis and Negligible or survival. For these reasons, NMFS assessment of effects to Southern Impact Determination sections, determined, in consideration of all of Resident killer whales, and in respectively. the effects of the Navy’s activities consideration of the effects of the entire Comment 67: Gray whales are combined, that the authorized take will action) and that NMFS’ comments and currently undergoing an unexplained have a negligible impact on the Eastern concerns have been adequately die-off leading to 352 strandings North Pacific stock of gray whales. addressed. The FSEIS/OEIS takes a hard between January 2019 and July 2020, Additionally, this final rule includes look at all of the issues specifically including 44 strandings along the coast extensive mitigation for gray whales, raised by the commenter. NMFS’ early of Washington alone. NOAA is including in the Marine Species Coastal, participation in the NEPA process and investigating the die-off as an Unusual Olympic Coast National Marine role in shaping and informing analyses Mortality Event. While it is not clear Sanctuary, Stonewall and Heceta Bank using its special expertise ensured that what specifically is driving this event, Humpback Whale, Point St. George the analysis in the 2020 NWTT FSEIS/ many animals show signs of ‘‘poor to Humpback Whale, and Northern Puget OEIS is sufficient for purposes of NMFS’ thin body condition.’’ The commenter Sound Gray Whale Mitigation Areas, own NEPA obligations related to its states that in the proposed rule, NMFS which overlap with important gray issuance of incidental take authorization relies on the increasing population of whale foraging and migration areas. under the MMPA. the stock to assert that the Navy’s Regarding the alternatives and proposed takes will not be exacerbated NEPA mitigation measures, NMFS’ by the Unusual Mortality Event to the Comment 68: Commenters stated that involvement in development of the 2020 point of affecting annual rates of NMFS cannot rely on the Navy’s NWTT FSEIS/OEIS and role in recruitment or survival. However, as the deficient EIS to satisfy NMFS’ NEPA evaluating the effects of incidental take exact cause of the Unusual Mortality obligations when issuing regulations or under the MMPA ensured that the 2020 Event is not known, NMFS also cannot permits under the MMPA. The NWTT FSEIS/OEIS includes adequate know if the current Unusual Mortality commenter states that NMFS must analysis of a reasonable range of Event is indicative of a longer–term prepare a separate EIS, or, at minimum, alternatives. The 2020 NWTT FSEIS/ trend in the population, potentially a supplemental EIS, before proceeding OEIS includes a No Action Alternative linked to the impacts of climate change. with the proposed action. The specifically to address what could NMFS’ reliance on an increasing stock commenter stated that the Navy’s DSEIS happen if NMFS did not issue an may be misplaced, particularly in light is deficient on its face. One commenter MMPA authorization. The FSEIS/OEIS of the fact that NMFS will authorize the asserted that those deficiencies include, also includes and analyzes two action Navy’s activities for a seven-year period but are not limited to: Failing to take a alternatives (including mitigation during which the health of the gray hard look at the effects of the action to measures incorporated into the action whale population could decline. endangered Southern Resident killer alternatives) to evaluate the impacts of Response: NMFS does not rely solely whales and other sensitive species, an MMPA incidental take authorization on the increasing stock size for gray failing to take a hard look at the effects that would also meet the current and whales as the commenter suggests. As of the proposed training and testing future (seven-year) training and testing discussed in the Analysis and Negligible activities, including modeling, requirements to ensure the Navy meets Impact Determination section of this thresholds, and assumptions about harm its Title 10 responsibilities, which final rule, NMFS is authorizing one that underestimate the extent and includes to maintain, train, and equip mortality over the seven years covered severity of marine mammal take (both combat ready forces. As noted, these by this rule, or 0.14 mortality annually. behavioral impacts and injury), failing alternatives fully analyze a The addition of this 0.14 annual to take a hard look at the effects of the comprehensive variety of mitigation mortality still leaves the total annual entire action, failing to evaluate a full measures. This NEPA mitigation human-caused mortality well under range of reasonable alternatives, failing analysis supported NMFS’ evaluation of both the insignificance threshold and to evaluate a full range of reasonable our mitigation options in potentially residual PBR (which is 661.6). No mitigation measures, failing to issuing an MMPA authorization, which, mortality from explosives and no Level accurately estimate the amount of take if the authorization can be issued under

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72361

the negligible impact standard, NMFS’ purpose of evaluating the Navy’s applicable laws, must be completed primarily revolves around the proposed action and making a before a decision is made to issue a final appropriate mitigation to prescribe. This determination whether to issue the rule authorizing incidental take under approach to evaluating a reasonable MMPA regulations and LOAs. NMFS’ the MMPA, but the NEPA analysis does range of alternatives is consistent with early participation in the NEPA process not need to be completed before an NMFS policy and practice for issuing and role in shaping and informing MMPA application is submitted. The MMPA incidental take authorizations. analyses using its special expertise Navy submitted their application while NMFS has independently reviewed and ensured that the analysis in the 2020 the NWTT SEIS/OEIS was in evaluated the 2020 NWTT FSEIS/OEIS, NWTT FSEIS/OEIS is sufficient for development. NMFS and the Navy including the range of alternatives, and purposes of NMFS’ own NEPA coordinated on development of the determined that the 2020 NWTT FSEIS/ obligations related to its issuance of NWTT SEIS/OEIS, and the final rule OEIS fully satisfies NMFS’ NEPA incidental take authorization under the authorizes Navy training and testing obligations related to its decision to MMPA. activities beginning in November 2020. issue the MMPA final rule and Comment 70: Commenters stated that Any Navy testing and training activities associated LOAs, and we have adopted their organizations are aware that on occurring in the Olympic Coast National it. July 16, one day before the conclusion Marine Sanctuary prior to finalization of Comment 69: Commenters stated that of the comment period, CEQ issued new this rule and the 2020 NWTT FSEIS/ NMFS cannot rely on the 2020 NWTT regulations governing the preparation of OEIS were conducted under the FSEIS/OEIS to fulfill its obligations environmental assessments and previous MMPA incidental take under NEPA because it does not environmental impact statements under authorization and its accompanying adequately address NMFS’ own actions NEPA. The commenters stated that they NEPA analysis. and responsibilities under the MMPA. believe these new regulations contain The commenter stated that the MMPA numerous provisions that are contrary ESA requires NMFS to protect and manage to law and destructive of federal Comment 72: A commenter stated that marine mammals, allowing incidental environmental decision-making. NMFS must ensure that the Navy’s take of marine mammals only in limited Agencies that have begun the NEPA activities will not jeopardize circumstances when such take satisfies process for a particular agency action endangered species in the NWTT Study the Act’s statutory requirements, prior to September 14, 2020, as is the Area, including the Southern Resident including the ‘‘negligible impact’’ and case with NWTT, have discretion under killer whale population, as required by ‘‘least practicable adverse impact’’ the new regulations at 40 CFR 1506.13 the ESA, and that NMFS and the Navy standards. In other words, NMFS is to decide whether to apply them. The must fully comply with their obligations charged under the MMPA with commenters stated that given the legal under the ESA. Another commenter prioritizing the protection of species. infirmities of the new CEQ regulations, stated that NMFS’ consultation must The commenter states that the Navy, on they strongly recommend that NMFS also evaluate the impacts of the the other hand, seeks primarily to elect not to apply them here; and NMFS proposed action beyond ESA-listed maximize its opportunities for training should make that choice clear in its EIS. marine mammals and their habitat, to and testing activities. Thus, the Navy’s Response: The effective date of the include the other threatened and SEIS is framed around a fundamentally 2020 CEQ NEPA regulations was endangered species that will be affected different purpose and need—one that is September 14, 2020. As noted by the by the Navy activities. The commenter incongruent with NMFS’ obligations commenter, NEPA reviews initiated specifically references designated under the MMPA. prior to the effective date of the 2020 critical habitat for endangered Pacific Response: The proposed action is the CEQ regulations may be conducted leatherback sea turtles in the NWTT Navy’s proposal to conduct testing and using the 1978 version of the Study Area, and that more than two training activities in the NWTT Study regulations. The NEPA review for this dozen listed populations of Pacific Area. NMFS is a cooperating agency, as rulemaking and the Navy’s proposed salmon and Steelhead occur in the it has jurisdiction by law and special action began prior to September 14, Study Area. The commenter states that expertise over marine resources 2020, and the agencies decided to NMFS has a duty to ensure against impacted by the Navy’s action, proceed under the 1978 CEQ jeopardy for each of these, and any including marine mammals and regulations. Therefore, the new CEQ other, imperiled species in this area. federally-listed threatened and regulations were not applied to the 2020 Another commenter stated that this endangered species. As discussed in NWTT FSEIS/OEIS, and the FSEIS/OEIS authorization violates NMFS’ own Comment 68, NMFS has adopted the was prepared using the 1978 CEQ NEPA Recovery Plan for U.S. Pacific 2020 NWTT FSEIS/OEIS after regulations. Populations of the Leatherback Turtle. determining that the document is Comment 71: A commenter stated that Another commenter stated that NMFS sufficient under the CEQ regulations at the Navy’s MMPA application was should require the Navy to shift testing 40 CFR 1506.3. Specifically, NMFS is premature because the 2020 NWTT and training activities away from satisfied that the FSEIS/OEIS adequately FSEIS/OEIS had not been finalized. The locations and seasonal windows that addresses the impacts of issuing the commenter questioned what activities endangered species are present. MMPA incidental take authorization would occur in the Olympic Coast Response: NMFS’ Permits and and that NMFS’s comments and National Marine Sanctuary prior to Conservation Division has completed concerns have been adequately finalization of the 2020 NWTT FSEIS/ ESA consultation with NMFS’ ESA addressed. There is no requirement in OEIS. Interagency Cooperation Division on the CEQ regulations that NMFS, as a Response: The commenter whether the promulgation of this rule cooperating agency, have a separate misunderstands the timing of the and issuance of the associated LOAs are purpose and need statement in order to analysis of environmental impacts likely to jeopardize the continued ensure adequacy and sufficiency for under NEPA and NMFS’ consideration existence of any ESA-listed species or adoption. Nevertheless, the statement of of an application for MMPA incidental destroy or adversely modify any purpose and need in the 2020 NWTT take authorization. The NEPA analysis, designated critical habitat, while the FSEIS/OEIS explicitly acknowledges along with consideration of other Navy has consulted on all ESA-listed

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72362 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

species that may be affected by their consultation must evaluate the take-authorizations-military-readiness- action. NMFS’ ESA Interagency programmatic impact of seven years of activities. Cooperation Division’s biological Navy training and testing as authorized As discussed in the Mitigation opinion includes analysis and by NMFS in final regulations, and in Measures section and multiple determinations regarding all ESA-listed addition to completing programmatic responses to Comments, this final rule species and designated critical habitat consultation, NMFS must also consult includes extensive mitigation measures that may be affected by the Navy’s or on a site-specific basis prior to issuing to lessen the frequency and severity of NMFS’ actions in the NWTT Study or modifying LOAs. The commenter impacts from the Navy’s activities on Area. The biological opinion concluded states that NMFS, however, cannot marine mammals and their habitat, that NMFS’ and the Navy’s proposed avoid programmatic consultation by including those that are listed as actions are not likely to jeopardize the deferring to partial, LOA-specific threatened or endangered. Please refer continued existence of any endangered consultations. to the biological opinion for additional or threatened species and are not likely The commenter asserts that if other information about ESA-listed species to destroy or adversely modify activities or conditions also harm an and additional mitigation required for designated critical habitat. endangered species or its habitat, the ESA-listed species other than marine The commenter does not explain in effects of NMFS’ authorization of the mammals. what manner they think authorizing Navy’s activities must be added to that Southern Resident Killer Whale incidental take of marine mammals baseline and analyzed together to Comment 74: Multiple commenters under the MMPA would violate the ESA determine whether the proposed noted that the amended Navy recovery plan for U.S. Pacific activity jeopardizes the species or application and NMFS’ proposed rule populations of leatherback turtles. ESA adversely modifies critical habitat, and recovery plans are guidance documents now predict and would allow for a states that in the NWTT Study Area, vastly increased level of incidental that provide recommended recovery threatened and endangered species actions for NMFS, other federal take—formerly 2 takes of Southern along the coast are exposed to a variety Resident killer whales, now 51 takes— agencies, States, tribes, NGOs, and other of threats from ship strikes, oil and gas stakeholders to recover the species, and every year. One commenter stated that activities, noise from vessels, approval of such a high level of as such it is not possible to ‘‘violate’’ a entanglement or bycatch in fishing gear, recovery plan. That said, we have incidental take without requiring any wastewater discharge, oil spills, as well additional mitigation measures reviewed the recovery plan and there as other cumulative impacts from are no recovery actions related to Navy represents gross neglect of the agency’s fishing, shipping, military activities, activities or authorization of incidental management responsibilities under the and climate change. The commenter take of marine mammals. ESA and the MMPA to avoid or mitigate Neither the ESA nor the MMPA states that the aggregate impact of these impacts to this highly endangered and preclude activities in locations and activities must be considered in the iconic species. A commenter also stated times where endangered species are consultation. that many organizations and present. As described in the ESA Response: NMFS agrees that we could Washington state agencies have asked biological opinion, NMFS made the not finalize these regulations or issue for enhanced mitigation measures to preliminary findings necessary to allow LOAs until we completed consultation reduce adverse impacts on Southern for incidental take of ESA-listed marine under section 7 of the ESA. NMFS’ Resident killer whales; other mammals in the proposed MMPA rule. Permits and Conservation Division, commenters echoed this The biological opinion is accompanied which developed this rule, consulted recommendation. The commenter by an ESA incidental take statement with NMFS’ ESA Interagency asserted that these measures are not that, among other things, exempts the Cooperation Division on the expected to impact the Navy’s ability to incidental take from ESA section 9 promulgation of this seven-year rule and carry out its national security mission, liability and identifies reasonable and issuance of the associated LOAs which and yet they do not seem to have been prudent measures to minimize the authorize incidental take of marine considered, let alone adopted in the impact of the anticipated incidental mammals in the NWTT Study Area. As proposed rule. Furthermore, mitigation take. As described in the Mitigation required, the consultation included the measures considered sufficient when Measures section of this rule, necessary consideration of the the Navy thought the density of geographic mitigations required by this environmental baseline, impacts on ESA Southern Resident killer whales rule limit activities in some areas where listed species and their habitat over the offshore was much lower should not be ESA-listed species (e.g., the Southern seven years of the rule, and cumulative considered sufficient now that the Navy Resident killer whale) are present in effects. As noted in the Endangered knows it is higher based on more recent higher densities or exhibit important Species Act section of this rule, NMFS’ data. Commenters also urged NMFS to behaviors. ESA Interagency Cooperation Division change its preliminary determination of Comment 73: A commenter stated that has issued a biological opinion ‘‘negligible impact’’ and require NMFS cannot finalize the proposed concluding that the promulgation of this additional monitoring and mitigation incidental take regulations or issue any seven-year rule and issuance of measures to significantly reduce the LOAs until it completes consultation subsequent LOAs are not likely to incidental take of Southern Resident and imposes limits to mitigate the jeopardize the continued existence of killer whales so that it does in fact hazards of Navy’s training and testing threatened and endangered species warrant a ‘‘negligible impact’’ on threatened and endangered species under NMFS’ jurisdiction and are not determination. and their habitats and also must require likely to result in the destruction or A commenter stated that while the additional mitigation. The commenter adverse modification of designated (or MMPA allows permitted incidental take further stated that in complying with proposed) critical habitat in the NWTT of certain activities if the take is of small the ESA, NMFS must consider the Study Area. The Biological Opinion for numbers, with no more than a appreciable impact of the proposed this rulemaking is available at https:// ‘‘negligible impact,’’ defined as one that activities on listed species and their www.fisheries.noaa.gov/national/ ‘‘cannot be reasonably expected to, and habitats. The commenter stated that the marine-mammal-protection/incidental- is not reasonably likely to, adversely

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72363

affect the species or stock through procedural mitigation measures by In reference to the ‘‘small numbers’’ effects on annual rates of recruitment or requiring seasonal awareness messages determination mentioned by the survival,’’ a take of 51 individual or limiting activities to lower sea states commenter, this determination does not Southern Resident killer whales per when visibility is higher. These new apply to military readiness activities, year cannot be considered to be ‘‘of mitigation measures are described in including the Navy’s activities in the small numbers’’ nor unlikely to detail in the Mitigation Measures NWTT Study Area. The National ‘‘adversely affect’’ the species. Multiple section of this final rule. Defense Authorization Act for Fiscal commenters echoed this concern. A These new measures, in combination Year 2004 amended section 101(a)(5) of commenter also stated that with those included in the proposed the MMPA for military readiness displacement from preferred foraging rule, will reduce the severity of impacts activities to remove the ‘‘small areas will cause population-level effects to Southern Resident killer whales by numbers’’ and ‘‘specified geographical that could extend into the future given reducing interference in feeding and region’’ provisions, as well as amending the highly social nature of the Southern migration that could result in lost the definition of ‘‘harassment’’ as Resident killer whale community and feeding opportunities or necessitate applied to a ‘‘military readiness transmission of information between additional energy expenditure to find activity.’’ associated individuals. The commenter other good foraging opportunities or Comment 75: A commenter stated that stated that there are documented cases migration routes. Procedural mitigations in the 2019 Southern Resident Orca of naval activities causing Southern that avoid the likelihood of injury, such Task Force ‘‘Final Report and Resident killer whales to abruptly as shutdown measures, also further Recommendations,’’ the Task Force change their behavior and abandon reduce the likelihood of more severe noted that ‘‘the final decisions on foraging activities and areas, most behavioral responses. training and testing activities conducted in the NWTT Study Area between notably the USS Shoup active sonar The 51 takes of Southern Resident November 2020 and November 2027 incident in 2003. More recently, the killer whales, only two of which are should eliminate impacts from current, Canadian Navy set off explosives near a estimated to involve TTS, each new or additional exercises involving group of Southern Resident killer represent a day in which one individual mid-frequency sonar, explosives and whales from L pod, in federally whale is predicted to be exposed above protected critical habitat, causing them other activities with the potential to the behavioral harassment threshold (or to flee the area. adversely affect Southern Resident killer in two cases, above the TTS threshold), Response: This increase in incidental whale recovery or incorporate enhanced take of Southern Resident killer whales which is discussed in detail in the mitigation measures to reduce impacts.’’ between Phase II and Phase III of the Analysis and Negligible Impact The commenter asserted that the Navy’s activities is partially due to new Determination section of this final rule proposed incidental takes clearly offshore Southern Resident killer whale as well as the Navy’s 2017 Criteria and conflict with recommendations from the density estimates and analytical factors, Thresholds for U.S. Navy Acoustic and Southern Resident Orca Task Force. and partially due to increased activity Explosive Effects Analysis (Phase III) Response: NMFS and the Navy are levels in the Navy’s Phase III activities. report. This means that either 51 aware of (and NMFS participated on) The number and/or intensity of individual whales are exposed above the 2019 Southern Resident Orca Task incidents of take will be minimized these thresholds on one day within a Force. See Comment 74 for information through the incorporation of mitigation year, or some fewer number of on mitigation measures, including measures, which were expanded from individuals might be exposed on two or measures added since publication of the the last rule in the Navy’s application three days (but no more than 51 total proposed rule, that will reduce the and the proposed rule. Further, since exposure days so, for example, 25 number and/or intensity of expected publication of the proposed rule NMFS individuals exposed on two days each incidental takes of Southern Resident has added mitigation measures for within a year and one individual killer whales. NMFS and the Navy have marine mammals, including Southern exposed on one day). Also, modeling worked hard to put in place mitigation Resident killer whales, in this final rule. supports the prediction that, given the measures to ensure as much as possible New measures include additional movement of the animals and the that any relatively minor, short-term procedural mitigation during explosive characteristics of the testing and impacts that may occur will not affect mine countermeasure and neutralization training activities, the duration of any that individual’s reproduction or testing and new geographic mitigation exposure is expected to be relatively survival and are also practicable (i.e., measures, including a new Juan de Fuca short, not more than seconds or allow the Navy to meet its statutorily Eddy Marine Species Mitigation Area minutes, or occasionally hours. As required mission along with ensuring and additional mitigation in the Marine discussed in the Analysis and Negligible Navy personnel safety). See Comment Species Coastal Mitigation Area and the Impact Determination section of this 74 also for discussion of the effects of Olympic Coast National Marine final rule, even acknowledging the small the remaining expected incidental takes Sanctuary Mitigation Area (both of and declining stock size of the Southern on Southern Resident killer whales that which are offshore areas that overlap Resident DPS of killer whales (which is cannot be avoided. With the additional with ESA proposed Southern Resident the same as the Eastern North Pacific mitigation measures, NMFS has killer whale critical habitat), as well as Southern Resident stock under the ‘‘eliminate[d] impacts . . . with the in the Puget Sound and Strait of Juan de MMPA), this low magnitude and potential to adversely affect Southern Fuca Mitigation Area. This new severity of harassment effects is unlikely Resident [killer whale] recovery’’ and mitigation will benefit Southern to result in impacts on individual ‘‘incorporate[d] enhanced mitigation Resident killer whales, in some cases by reproduction or survival, let alone have measures to reduce impacts.’’ limiting or prohibiting certain activities impacts on annual rates of recruitment Comment 76: Multiple commenters in certain areas during times in which or survival of this stock. Additionally, stated that NMFS and the Navy must Southern Resident killer whales engage no mortality or Level A harassment is consider the highly endangered status in important behaviors such as feeding anticipated or authorized for the Eastern and continuing decline of the and migration, and in other cases, by North Pacific Southern Resident stock of endangered Southern Resident killer augmenting the effectiveness of killer whales. whale. The commenter stated that

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72364 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

NMFS must also recognize the threat of Additionally, no mortality or Level A Resident killer whales do not. The population level effects and greater than harassment is anticipated or authorized majority of locations where the Navy negligible impact from harm to for the Eastern North Pacific Southern conducts training and testing in the individual killer whales. Another Resident stock of killer whales. Inland Waters do not overlap with areas commenter stated that Level B Comment 77: A commenter noted where Southern Resident killer whales harassment by Navy activities that that, according to the Navy’s analysis, occur. For instance, most testing occurs interfere with feeding or displace killer the Washington Inland Waters in Hood Canal (Dabob Bay) and at whales from preferred foraging areas population of harbor porpoises and the Keyport; Southern Resident killer should be of significant concern, and Hood Canal population of harbor seals whales are not present in either that this cannot possibly constitute will be subjected to some of the highest location. There has not been a sighting ‘‘negligible impact’’ to an already estimated take, strongly suggesting that of Southern Resident killer whales in vulnerable population. Finally, a some activities with the potential to Hood Canal since 1995 (25 years ago). commenter noted that, given the harm killer whales are concentrated in The locations where there is potential imperiled nature of Southern Resident the Salish Sea and the interior waters of overlap of training and Southern killer whales, the number of proposed Puget Sound. The proposed activities Resident killer whale habitat include takes threatens a significant impact on overlap with areas of proposed critical Everett, Crescent Harbor, and Navy the population from the Navy’s training habitat that NMFS itself recognizes as a OPAREA 3 and Navy OPAREA 7. and testing activities. ‘‘high-use foraging area’’ for Southern As it did for all marine mammals, Response: NMFS has carefully Resident killer whales. Another NMFS worked with the Navy during the considered the status of Southern commenter stated that the lack of MMPA rulemaking process to enhance Resident killer whales in its analysis, as sensitivity to the Southern Resident mitigation measures for Southern discussed in the Description of Marine killer whales’ dwindling population and Resident killer whales (i.e., the MMPA Mammals and Their Habitat in the Area its need for a protected home in Eastern North Pacific Southern Resident of the Specified Activities sections of accordance with its endangered species stock) to ensure the least practicable the proposed and final rules and the status in 2005 remains a critical adverse impact on the stock. As Analysis and Negligible Impact concern. The commenter stated that in described in the Mitigation Measures Determination section of this final rule. a perfect world, training should be section, this final rule includes Additionally, this final rule includes excluded from their critical habitat. additional mitigation in the Puget significant mitigation, as described in Another commenter stated that the Navy Sound and Strait of Juan de Fuca the response to Comment 74, and should identify high-use areas in both Mitigation Area, which includes the full further in the Mitigation Measures inland and offshore killer whale habitat extent of NWTT Inland Waters and section of this final rule, including for seasonal or permanent closures to overlaps with existing ESA Southern additional mitigation added since NWTT activities to minimize overlap Resident killer whale critical habitat, publication of the proposed rule, to with Southern Resident killer whales. designed to further avoid or reduce minimize impacts to marine mammals, Response: NMFS fully considered the potential impacts on Southern Resident with an emphasis on further reducing status of Southern Resident killer killer whales. New mitigation in this both the amount and severity of any whales in its analysis, as discussed in area includes a requirement for the take of Southern Resident killer whales. the Description of Marine Mammals and Navy to use the lowest active sonar As also discussed in the response to Their Habitat in the Area of the source levels practical to successfully Comment 74, NMFS’ analysis indicates Specified Activities sections of the accomplish each event, a prohibition on that either 51 individual whales are proposed and final rules and the the use of explosives during testing, and exposed above the behavioral Analysis and Negligible Impact seasonal awareness messages regarding harassment threshold (or in two of the Determination section of this final rule. the possible presence of concentrations 51 cases, above the TTS threshold) on Potential impacts to marine mammals of Southern Resident killer whales and one day within a year, or some fewer from acoustic and explosive sources, gray whales, among other new number of individuals might be exposed which are part of the Navy’s planned measures, as described in the on two or three days (but no more than activities in the NWTT Study Area, are Assessment of Mitigation Measures for 51 total exposure days, so for example, analyzed in the Potential Effects of NWTT Study Area section of this final 25 individuals exposed on two days Specified Activities on Marine rule and in Appendix K (Geographic each within a year). Also, modeling Mammals and their Habitat and Mitigation Assessment) of the 2020 supports the prediction that, given the Analysis and Negligible Impact NWTT FSEIS/OEIS. movement of the animals and the Determination sections of the proposed The commenter also referenced characteristics of the testing and and final rules, and in Section 3.4.2.1 proposed critical habitat for Southern training, the duration of any exposure is and Section 3.4.2.2, of the 2020 NWTT Resident killer whales in inland waters; expected to be relatively short, not more FSEIS/OEIS, respectively. These effects however, NMFS notes that the proposed than seconds or minutes, or analyses considered multiple factors, ESA Southern Resident killer whale occasionally hours. As noted in the such as seasonal Southern Resident critical habitat is in offshore waters, Analysis and Negligible Impact killer whale’s abundance across the rather than in the Salish Sea and Puget Determination section of this final rule, Study Area and the type, amount, and Sound. This final rule includes even acknowledging the small and location of planned Navy activities. additional mitigation that overlaps with declining stock size of the Southern A greater number of incidental takes the proposed ESA Southern Resident Resident DPS of killer whales (which is are estimated for harbor porpoises and killer whale critical habitat, including in the the MMPA Eastern North Pacific harbor seals in comparison to other the Marine Species Coastal Mitigation Southern Resident stock), this low species, including Southern Resident Area and the Olympic Coast National magnitude and severity of harassment killer whales, due to their much higher Marine Sanctuary Mitigation Area. effects is unlikely to result in impacts abundances in the Study Area. Comment 78: Commenters stated that on individual reproduction or survival, Additionally, the impacts to harbor NMFS should analyze the cumulative let alone have impacts on annual rates porpoises and harbor seals in the Inland impacts over the full extent of training of recruitment or survival of this stock. Waters occur in areas where Southern and testing activities that would be

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72365

authorized by this permit, and one predicted to be exposed above the rule in a manner that could exceed a commenter noted that the Navy’s testing behavioral harassment threshold, which negligible impact. Last, we note that the and training activities have already been is described in detail in the Analysis MMPA does not prohibit the authorized twice before, and are likely and Negligible Impact Determination authorization of incidental take for to continue into the future. A section of this final rule as well as the activities that continue in an area, as commenter stated that killer whales are Navy’s 2017 Criteria and Thresholds for long as the necessary findings have been long-lived and it is likely that the same U.S. Navy Acoustic and Explosive made within the period of the requested individuals would be affected in Effects Analysis (Phase III) report. This authorization. multiple years. This level of ongoing, means that either 51 individual whales Comment 79: A commenter stated that perpetual take (68 percent, as one are exposed above this threshold on one the proposed Navy activities do not commenter noted) to specific day within a year, or some fewer account for the Southern Resident killer individuals in a small population is a number of individuals might be exposed whales’ seasonal behaviors. Another significant threat, commenters assert, on two or three days (but no more than commenter stated that additional that could result in displacement or 51 total exposure days so, for example, mitigation and avoidance measures physical harm over extended periods of 25 individuals exposed on two days should include establishing seasonal time, and should be more clearly each within a year and one individual limitations on the use of sonars in factored into the analysis impact. exposed on one day). Also, modeling traditional Southern Resident killer Further, one commenter asserted that supports the prediction that, given the whale foraging areas. instances of temporary hearing loss, movement of the animals and the Response: Seasonal behaviors and such as the TTS contemplated in NMFS’ characteristics of the testing and locations of marine mammals, including authorization, can be cumulative and training activities, the duration of any Southern Resident killer whales, were lead to long-term hearing loss. exposure is expected to be relatively accounted for in both the effects Commenters stated that NMFS and the short, not more than minutes, or analysis (e.g., density estimate input Navy must also consider that occasionally hours. Even if these into the modeling of take) and in harassment and behavioral impacts are impacts occurred to an individual of consideration and inclusion of likely to have a compounded effect on compromised health, the behavioral mitigation measures (e.g., geographic individuals that are already in impacts would not be expected to mitigation measures targeted at compromised condition. Research impact reproduction or health, much protecting Southern Resident killer currently being compiled into a health less result in a mortality, given the low whales) in the NWTT Study Area. This database for the Southern Resident severity and duration of effect that any final rule includes extensive mitigation for Southern Resident killer whales, killer whale community shows multiple individual killer whale is expected to including mitigation that is seasonally individuals have been seen in poor body experience within a year. Similarly, applicable, such as required seasonal condition, and compared to Northern while significant repeated exposure to awareness notification messages that the Resident killer whales, the Southern noise levels associated with TTS could, Navy will issue for the Puget Sound and Resident population has lower survival in certain circumstances (e.g., numerous Strait of Juan de Fuca Mitigation Area and reproductive rates. The commenters exposures, long durations, with no time and the Marine Species Coastal asserted that given the many stresses for recovery in between exposures) lead Mitigation Area during times when already faced by this endangered to PTS, there is no reason to expect that Southern Resident killer whales and population, ongoing, repeated, and the number (no more than a single gray whales may be present in the area instance of TTS to either of the two cumulative impacts from NWTT in higher concentrations. The rule activities could place additional stress individuals taken within a year) and includes seasonal restrictions on on both individuals already in poor nature (low level) of the exposures explosive Mine Countermeasure and health, perhaps even leading to anticipated from Navy training and Neutralization Testing in the Marine mortality, as well as on the population testing activities would lead to PTS for Species Coastal Mitigation Area. This as a whole. Commenters asserted that Southern Resident killer whales. final rule also includes mitigation areas NMFS has thus failed to show that these Further, as discussed in detail in the in which mitigation requirements limit impacts are negligible under the MMPA. Mitigation Measures section of this rule or prohibit the use of sonar during Response: NMFS has analyzed the and the response to Comment 74, this certain activities. Seasonal and year- cumulative impacts of the Navy’s rule includes extensive mitigation for round mitigation measures, including training and testing activities over the Southern Resident killer whales that those that have been added since full seven-year extent of the regulations. will reduce both the probability and publication of the proposed rule, and Further, NMFS has fully considered the severity of impacts to this stock, their benefits to marine mammals status of Southern Resident DPS killer including additional measures that have (including Southern Resident killer whale (which is the same as the Eastern been added since the proposed rule. whales specifically) are discussed North Pacific Southern Resident stock Even acknowledging the small and further in the response to Comment 74 under the MMPA) and the compromised declining stock size of the Southern and the Mitigation Measures section of health of some of the individuals of that Resident DPS of killer whales, the low this final rule, as well as Appendix K stock in its analysis and negligible magnitude and severity of effects is (Geographic Mitigation Assessment) of impact determination, as described in unlikely to result in impacts on the 2020 NWTT FSEIS/OEIS. the Analysis and Negligible Impact individual reproduction or survival, let Comment 80: A commenter stated that Determination section of this final rule. alone have impacts on annual rates of increasing the Navy’s testing and No mortality or Level A harassment is recruitment or survival of this stock. training activities at this time is counter anticipated or authorized for the Further, given the absence of any to what the endangered Southern Southern Resident DPS of killer whales. expected impacts on individual fitness Resident killer whales need to have a The 51 takes of Southern Resident killer or annual rates of recruitment or chance at recovery. Without bold and whales, only two of which are estimated survival, there is no possibility that the immediate actions, the Southern to involve TTS, each represent a day in impacts of the authorized take could Resident killer whales are likely to go which one individual whale is accrue over the seven-year period of the extinct. The commenter stated that

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72366 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

everything that can be done now to training or testing program vulnerable population. With such a protect the Southern Resident killer requirements. With implementation of small and shrinking population, the whales is critical. Despite being listed the new mitigation measures included impact of each take is amplified within under the ESA for nearly 15 years, this in this final rule, we do not anticipate the population. unique population is not recovering and any take of Southern Resident killer Response: NFMS relied on the 2019 is continuing to decline. The commenter whales in NWTT Inland Waters due to Stock Assessment Reports (published in further stated that it is obvious that NWTT training and testing activities. August 2020) for the latest abundance status quo actions, including the Navy’s This final rule also includes additional information for all stocks, except the training and testing activities, are not mitigation measures for Southern inland water stocks of harbor seals, as serving the Southern Resident killer Resident killer whales in other the stock assessments are outdated and whales. In a time when everyone should mitigation areas, including the Marine did not reflect the best available science, be acting to address and decrease threats Species Coastal Mitigation Area and the as described in this final rule. The 2019 facing the population, including Olympic Coast National Marine Southern Resident killer whale stock reducing noise and disturbance, the Sanctuary Mitigation Area. Please refer assessment indicates that the minimum Navy’s proposed activities increase the to the Mitigation Measures section of population estimate (Nmin) for the risks from ocean noise, vessel strikes this final rule for further discussion of Eastern North Pacific Southern Resident and disturbance, potential direct harm the required mitigation measures in the stock of killer whales is 75 animals. The and injury to Southern Resident killer NWTT Study Area. stock assessment indicates that this whales, and displacement from Additionally, NMFS considered the estimate serves as both the Nmin, as preferred habitat. The commenter stated status of Southern Resident killer well as the best estimate of abundance that given the Southern Resident killer whales in its analysis, as discussed in because the assessment is a ‘‘direct whale’s highly endangered status and the Analysis and Negligible Impact count of individually identifiable continuing decline, the Navy should Determination section of this final rule. animals [and] it is thought that the adjust its training and testing activities Modeling supports NMFS’ conclusion entire population is censused every to reduce impacts and increase that, given the movement of the animals year.’’ Therefore, NMFS based its protections for these iconic animals. and the characteristics of the testing and analysis on this population estimate, as Response: The Navy has conducted training, the duration of any exposure of it reflects the best available science active sonar training and testing a Southern Resident killer whale is given that it is the most recent, peer- activities in the NWTT Study Area for expected to be relatively short, not more reviewed literature that NMFS is aware decades, and there is no evidence that than minutes, or occasionally hours. As of. Separately, we note that two calves routine Navy training and testing has noted in the Analysis and Negligible have been born in 2020 (Orca Network, negatively impacted Southern Resident Impact Determination section and the 2020) and are not included in the 2019 killer whale populations in the Study response to Comment 78, even SAR. Area. Based on the best available acknowledging the small and declining Comment 82: A commenter stated that science summarized in the 2020 NWTT stock size of Southern Resident killer additional datasets are available for FSEIS/OEIS Section 3.4.3.4 (Summary whales, this low magnitude and severity killer whale response to noise. For of Monitoring and Observations During of harassment effects is unlikely to example, in Bain and Dahlheim’s (1994) Navy Activities Since 2015), long-term result in impacts on individual study of captive killer whales exposed consequences for Southern Resident reproduction or survival, let alone have to band-limited white noise in a band killer whales, including for the seven- impacts on annual rates of recruitment similar to that of mid-frequency sonar at year period of this rule, are unlikely to or survival of this stock. Additionally, a received level of 135 dB re 1uPa, result from Navy training and testing no mortality or Level A harassment is abnormal behavior was observed in 50 activities in the Study Area. anticipated or authorized for the Eastern percent of the individuals. This is far As discussed in the Mitigation North Pacific Southern Resident stock. lower than the level observed in Measures section of this final rule, Comment 81: A commenter stated that bottlenose dolphins. In addition, Bain elsewhere in this section, and in with the apparent loss of three whales (1995) observed that 100 percent of wild Chapter 5 (Mitigation) of the 2020 last summer, Southern Resident killer killer whales appeared to avoid noise NWTT FSEIS/OEIS, the Navy will whales appear to have a population of produced by banging on pipes implement extensive mitigation to avoid just 73 whales—the lowest population (fundamental at 300 Hz with higher or reduce potential impacts from the size in more than 40 years. Given this harmonics) to 135 dB re 1uPa contour. NWTT activities on Southern Resident declining population, the loss of even This indicates the difference between killer whales. These mitigation one more whale could greatly wild and captive killer whales (non-zero measures include mitigation areas that undermine recovery efforts for decades. risk in captive marine mammals might restrict certain activities in places and The commenter stated that NMFS does correspond to 100 percent risk in wild during times that are particularly not consider the most up-to-date individuals of the same species), as well important to Southern Resident killer information on the Southern Resident as implying that risk of 100 percent may whales (and other marine mammals). killer whale population. The commenter occur by 135 dB re 1uPa for this genus One of these mitigation areas, the Puget stated that while NMFS purports to rely in the wild. The commenter stated that Sound and Strait of Juan de Fuca on the ‘‘best available science’’ in while more emphasis needs to be placed Mitigation Area, encompasses the entire developing stock numbers, NMFS on the captive-wild difference, there are extent of NWTT Inland Waters, actually assesses impacts based on a also species differences, like Dall’s including Southern Resident killer potentially outdated population size of porpoises, harbor seals, and California whale ESA-designated critical habitat. 75, and does not note the data sea lions being relatively noise tolerant, New mitigation measures in the Puget indicating the population may sit at just and harbor porpoises, killer whales, and Sound and Strait of Juan de Fuca 73 whales. As a result, NMFS fails to Steller sea lions being relatively noise Mitigation Area will result in training ensure its reliance on the best and most- intolerant. and testing activities being conducted in up-to-date scientific information, which The commenter stated further that NWTT Inland Waters only when could result in NMFS underestimating killer whales responded to vessel traffic necessitated by mission-essential the harm of the Navy’s activities on this at around 105–110 dB with conspicuous

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72367

behavioral changes such as increased the Navy considered how captive and levels involved. The devices which rates of threat displays and evasive wild animals may respond differently to excluded both killer whales and harbor swimming patterns, although the acoustic stressors when analyzing porpoises had a source level of 195 dB commenter provided no scientific response severity. NMFS has carefully re 1mPa, a fundamental frequency of 10 source for this assertion. The reviewed the Navy’s criteria, i.e., BRFs kHz, and were pulsed repeatedly for a commenter stated that subtle behavioral and cutoff distances for these species, period of about 2.5 seconds, followed by changes, such as inhibition of foraging and agrees that they are the best a period of silence of similar duration, behavior, were observed at lower levels. available science and the appropriate before being repeated. Devices used While inhibition of foraging is a Level method to use at this time for only with harbor porpoises had a source B take, in a food limited population, determining impacts to marine level of 120–145 dB re 1mPa, inhibition of foraging is likely to result mammals from sonar and other fundamental frequency of 10 kHz, a in increased mortality and/or reduced transducers and for calculating take and duration on the order of 300 msec, and recruitment. to support the determinations made in were repeated every few seconds. Response: It is clear in some parts of this rule. Harbor porpoises, which the Navy treats their comment that the commenter is NMFS explained in the response to as having a B+K value of 120 dB re 1mPa referring to the Phase I and II behavioral Comment 38 why responses to vessel (with A large enough to yield a step criteria, i.e., criteria that we used in noise alone are unlikely to qualify as function) in the Atlantic Fleet Active previous rules and not this one, and Level B harassment and further Sonar Training (AFAST) DEIS, 45 dB therefore some of the comment is described that Navy vessels are also lower than the average value used in the inapplicable. In this rule, NMFS and the much quieter than typical vessels Hawaii Range Complex (HRC) SDEIS, Navy have incorporated emergent best because they are designed that way to may be representative of how the available science into new BRFs for evade detection by adversaries. majority of cetacean species, which are Phase III, and this rule specifically, that Comment 83: A commenter stated that shy around vessels and hence poorly are described in the technical report the Navy’s characterization of the killer known, would respond to mid- titled Criteria and Thresholds for U.S. whale dataset [used in the behavioral frequency sonar. Even if harbor Navy Acoustic and Explosive Effects harassment thresholds] is incorrect. The porpoises were given equal weight with Analysis (Phase III) (U.S. Department of commenter stated that the Navy the three species used to calculate B+K, the Navy, 2017a) available at indicates the effects observed in the including them in the average would www.nwtteis.com, including data on presence of mid-frequency sonar in put the average value at 154 dB re 1mPa exposures to wild killer whales. Haro Strait were confounded by the instead of 165 dB re 1mPa. The Phase III behavioral criteria presence of vessels. However, the effects Response: Regarding the datasets used appropriately incorporate data from of vessels on killer whales have been to develop behavioral criteria, the behavioral response studies that were extensively studied, both prior to and commenter is referring to the Phase I designed to record behavioral subsequent to exposure. The commenter and II behavioral criteria, i.e., criteria observations and contained detailed asserted that behavioral responses that we used in previous rules and not data on reactions at specific received attributed to mid-frequency sonar are this one, and therefore much of the sound levels. Specifically, data needed qualitatively different than those comment is inapplicable. In this rule, to meet both of the following criteria to observed to vessels alone. The NMFS and the Navy incorporated be used in the quantitative derivation: commenter further stated that while the emergent best available science into (1) Observations of individual/group observations were based on a small new BRFs that are described in the animal behavior were related to known sample, they were not inconsistent. The technical report titled Criteria and or estimable received levels, and (2) The sonar signal was blocked from reaching Thresholds for U.S. Navy Acoustic and study was primarily designed to observe the whales with full intensity by Explosive Effects Analysis (Phase III) behavioral changes during controlled shallow banks or land masses during (U.S. Department of the Navy, 2017a), exposures or actual Navy activities (i.e., three segments of the observation available at www.nwtteis.com. monitoring). The data referenced in this period. The commenter said that the Regarding the Haro Strait data, in May comment (Bain, 1995 and Bain and ‘‘inconsistencies’’ can be attributed to 2003, killer whales in Haro Strait, Dahlheim, 1994) were not specifically differences in behavior depending on Washington, exhibited what were included in the criteria because they do whether there was a direct sound path believed by some observers to be not meet either of these two criteria for from the USS Shoup (the vessel emitting aberrant behaviors, during which time BRF inclusion and, further, we note that sonar in the vicinity) to the whales. The the USS Shoup was in the vicinity and the sound source referenced is a notably commenter stated that there was engaged in mid-frequency active sonar lower frequency than the majority of the extensive study of this population prior operations. Sound fields modeled for Navy’s sources used for training and to exposure, as well as extensive post- the USS Shoup transmissions (Fromm, testing, and the signal would be exposure monitoring. 2009; National Marine Fisheries Service, characterized as an impulse, rather than The commenter also stated that the 2005; U.S. Department of the Navy, non-pulse like active sonar is. The best Navy incorrectly concludes that 2004) estimated a mean received SPL of available science is documented in the additional datasets are unavailable. In approximately 169 dB re 1 mPa at the technical report referenced above and addition to the three data sets the Navy location of the killer whales at the Section 3.4.2.1.1.5 (Behavioral relies upon; captive cetaceans, killer closest point of approach between the Reactions) of the 2020 NWTT FSEIS/ whales, and right whales, they suggest animals and the vessel (estimated SPLs OEIS. Nonetheless, the BRFs used in the that the data set illustrating the use of ranged from 150 to 180 dB re 1 mPa). final rule predict that close to 20 acoustic harassment and acoustic However, attributing the observed percent of odontocetes exposed to deterrent devices on harbor porpoises behaviors during that particular received levels of 135dB will respond in illustrates exclusion from foraging exposure to any one cause is a manner that would qualify as a take, habitat. Data are also available showing problematic given there were six nearby so the data presented by the commenter exclusion of killer whales from foraging whale watch vessels surrounding the is not at odds with the criteria used habitat, although additional analysis pod, and subsequent research has here. As shown in the technical report, would be required to assess received demonstrated that ‘‘Southern Residents

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72368 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

modify their behavior by increasing travel together in pods, making it far in pods, individuals are spread out over surface activity (breaches, tail slaps, and more likely that every member of the a fairly large area and while more than pectoral fin slaps) and swimming in pod would be affected. Nor does it make one individual might be taken more erratic paths when vessels are sense that take estimates for Washington sometimes if a Navy activity is close’’ (National Oceanic and Inland Waters harbor porpoises and encountered, it is far less likely that an Atmospheric Administration, NOAA Hood Canal harbor seals would number entire pod would be exposed at levels Fisheries, 2014). Data from this study in the hundreds of thousands, while resulting in take. Please refer to the were not used in the Phase III BRFs Southern Resident killer whale takes response to Comment 74 for further because they did not meet the criteria to account for a handful. The commenter discussion of the implication of the 51 be used in the quantitative derivation argued that the agency has provided authorized takes of Southern Resident (see response to Comment 82 for little rationale for why the abandonment killer whales. description of criteria). Nonetheless, the or significant alteration in vital We also note that the commenter is BRFs used in this 2020–2027 NWTT activities that these take numbers incorrect that the mitigation areas in the rule indicate a likelihood of represent would have a negligible rule fail to include the whale’s offshore approximately 30 to 95 percent that the impact on Southern Resident killer habitat. The proposed included estimated received levels during this whales, given the low vital rates that mitigation that overlaps with the exposure would be associated with currently prevail in this endangered, proposed ESA Southern Resident killer Level B harassment by behavioral declining population. whale critical habitat (in offshore disturbance. In addition, the commenter stated that waters), including in the Marine Species Regarding the harbor porpoise data, although some form of command Coastal Mitigation Area and the the data referenced in this comment was approval is required before mid- Olympic Coast National Marine a study of acoustic harassment devices frequency sonar is used in the Salish Sanctuary Mitigation Area, and the and do not meet either criteria for BRF Sea, this requirement does little to mitigation in those areas has been inclusion. Further, NMFS and the Navy ensure that such activities do not occur. expanded in the final rule. Please see continue to use a behavioral harassment The commenter also stated that NMFS the Mitigation Measures section for a threshold for harbor porpoises that has grossly overstated the effectiveness full description of the mitigation predicts that 100 percent of harbor of the Navy’s mitigation in preventing required in these areas. porpoises exposed at levels above 120 mortalities. Regarding the idea that NMFS has dB will respond in a manner that The commenter additionally states grossly overstated the effectiveness of qualifies as Level B harassment, which that mitigation areas for Southern the Navy’s mitigation in preventing encompasses the results the commenter Resident killer whales fail to include the mortalities, we note that no mortality references. However, we disagree that whales’ offshore habitat, where most of was modeled, even without harbor porpoise data should be the agency’s estimated takes are consideration of mitigation. combined with other odontocete data to expected to occur. Nonetheless, this final rule includes create one behavioral harassment Response: The basis for NMFS’ extensive mitigation for Southern threshold for odontocetes, given the conclusions about the effects of the Resident killer whales as discussed in extensive literature documenting the estimated, and now authorized, Level B the Mitigation Measures section and in heightened sensitivity of harbor harassment takes of Southern Resident the response to Comment 74. Please porpoises to sound. The best available killer whales, both on affected refer to the Mitigation Measures section science is documented in Criteria and individuals and on the stock’s annual of this final rule for a full discussion. Thresholds for U.S. Navy Acoustic and rates of recruitment and survival, has Regarding Command authority, Explosive Effects Analysis (Phase III) been fully and carefully explained in requirements for naval units to obtain (U.S. Department of the Navy, 2017a), the proposed rule and again in this final approval from the appropriate available at www.nwtteis.com, and rule. The Navy consulted with Southern designated Command authority prior to Section 3.4.2.1.1.5 (Behavioral Resident killer whale experts in the conducting active sonar pierside Reactions) of the 2020 NWTT FSEIS/ development of the density layers used maintenance or testing with hull- OEIS. for modeling and the acoustic modeling mounted mid-frequency active sonar Comment 84: A commenter stated that process used in this rule accounts for will elevate the situational and NMFS should address problems in the the population occurring in 3 large environmental awareness of respective proposed rule, which the commenter pods, composed of the appropriate Command authorities during the event asserts underestimate and discount individual numbers of killer whales. planning process. Requiring designated potential take of Southern Resident However, despite occurring in pods, not Command authority approval provides killer whales, and reconsider its all animals exposed to similar sound an increased level of assurance that negligible impact determination for the levels will respond in the exact same mid-frequency active sonar is a required population. The commenter asserted manner. The BRFs take into account element for each event. Such that NMFS’ conclusory statement that individual responses, and were authorizations are typically based on the the Navy’s activities are ‘‘unlikely to developed from data that included real unique characteristics of the area from result in impacts on individual exposures of wild killer whales to Naval a military readiness perspective, taking reproduction or survival’’ or cause sonar sources. Further, Navy training into account the importance of the area greater than negligible impacts on the and testing activities predominantly for marine species and the need to Southern Resident killer whale occur in portions of the NWTT Study mitigate potential impacts on Southern population is arbitrary and capricious. Area inland waters where Southern Resident killer whales (and other The commenter stated that conclusion is Resident killer whales rarely occur (e.g., marine mammals, such as gray whales) based in part on the premise that the Hood Canal, Dabob Bay, Bremerton, and to the maximum extent practicable. Navy would cause as many as 51 Keyport). Also, the density is low Additionally, the Navy has reported to Southern Resident killer whale takes overall for Southern Resident killer NMFS that, where included in past each year, a number that, like the Navy’s whales, so it is much less likely that a NWTT authorizations, the requirement original calculation of two annual takes, pod will be encountered. Also while for Navy personnel to gain permission makes little sense given that the whales Southern Resident killer whales travel from the appropriate command

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72369

authority to conduct activities in a commenter stated that there are no application of the MMPA incidental particular mitigation area has resulted circumstances under which it should be take provisions avoids harm to Tribes’ in the activities not being conducted in permissible to carry out military cultural ways of life, including the designated mitigation areas. training exercises in a designated subsistence, that are dependent upon Please refer to Comment 77 for a full federal marine sanctuary. Another culturally important species, places, and explanation of the higher take numbers commenter stated that the Sanctuary ecosystems and protects the species for Washington Inland Waters harbor would continue to be unacceptably necessary for the Tribes’ well-being and porpoises and Hood Canal harbor seals damaged by the Navy’s training survival. in comparison to Southern Resident activities and that the activities cited by The commenter stated that NMFS’ killer whales. the Navy would cause long-term damage obligation to Indian Tribes applies to all Tribes affected by the Navy’s NWTT Other Comments to the Sanctuary ecosystem which NOAA is supposed to protect as its activities, including the ten federally Comment 85: A commenter administrator. Another commenter recognized member Tribes of the questioned how many incidental stated that the Navy needs to clear out InterTribal Sinkyone Wilderness injuries and deaths would it take before of the Olympic Coast National Marine Council, whose territories are situated NOAA and the Navy recognize the dire Sanctuary, permanently. within and offshore from Northern situation in which they are putting Response: Regulations for the California and who maintain important marine mammals. The commenter Olympic Coast National Marine cultural connections with their further questioned what would it take Sanctuary at 15 CFR part 922, subpart traditional coastal ecosystems and for NOAA to decline the Navy’s request O specifically address the conduct of migrating marine mammals. The for yet another permit in which Department of Defense military Sinkyone Council’s member Tribes are: hundreds and thousands of animals are activities in the sanctuary, though we Cahto Tribe of Laytonville Rancheria; slated to be hurt or die. disagree with one commenter’s Coyote Valley Band of Pomo Indians; Response: Through the MMPA, suggestion that the Navy was Hopland Band of Pomo Indians; Congress has determined that an intentionally targeting the Sanctuary. In Pinoleville Pomo Nation; Potter Valley applicant, including a federal agency addition, both NMFS and the Navy Tribe; Redwood Valley Band of Pomo like the Navy, can request and receive consulted with NOAA’s Office of Indians; Robinson Rancheria of Pomo marine mammal incidental take National Marine Sanctuaries under Indians; Round Valley Indian Tribes; authorization provided all statutory section 304(d) of the National Marine Scotts Valley Band of Pomo Indians; findings are made (and all other legal Sanctuaries Act regarding their actions and Sherwood Valley Rancheria of requirements are met). For the Navy’s that had the potential to injure Pomo Indians. The commenter noted application, NMFS has determined, sanctuary resources in the Olympic that the ten Northern California Tribes among other things, that the estimated Coast National Marine Sanctuary. We are in formal government-to-government take will have a negligible impact on disagree with the commenter’s assertion consultation with the Navy regarding each of the affected species or stocks that the Navy’s activities will cause Tribal opposition to the Navy’s training and has included the required long-term damage to the Sanctuary and testing activities, and the NWTT’s mitigation, monitoring, and reporting ecosystem and refer the reader to the impacts to marine mammals and the measures. Therefore it is appropriate to documents associated with the Tribes’ cultural ways of life. authorize the incidental take. As consultation, which may be found at: Response: NMFS is fully aware of and discussed elsewhere in this section and https://www.fisheries.noaa.gov/ sensitive to its federal trust the Mitigation Measures section of the national/marine-mammal-protection/ responsibilities to all Indian Tribes. rule, the final rule includes extensive incidental-take-authorizations-military- Consistent with federal directives on mitigation measures to reduce impacts readiness-activities. Comments about consultation and coordination with to the least practicable level. We note the Navy’s activities generally in Indian Tribal governments, NMFS has that the commenter overstates the scale national marine sanctuaries are beyond engaged in government-to-government of authorized injury and mortality and, the scope of this rule. discussions with the Northern further, that the rule includes a robust Comment 87: A commenter stated that California Tribes of the InterTribal suite of mitigation measures to lessen NMFS has a federal trust responsibility Sinkyone Wilderness Council, and is the probability and severity of impacts to Indian Tribes and therefore a discussing concerns directly with the on marine mammals. heightened duty to apply the MMPA member Tribes and Council staff. The Comment 86: A commenter stated that with special care and to protect and Navy is also engaged in government-to- the Navy is entitled to consult with the preserve marine species and areas of government consultation with the 10 Office of National Marine Sanctuaries to interest and concern for those Tribes to Northern California Tribes of the gain access to National Marine which the federal trust responsibility InterTribal Sinkyone Wilderness Sanctuary waters, in this case the applies. Therefore, when faced with Council (as well as other Tribes) on its Olympic Coast National Marine several alternatives for mitigation, for training and testing activities, including Sanctuary. The commenter asserted that example, a commenter stated in a impacts on marine mammals. the authority to do so does not, related comment that NMFS ‘‘must Also, as part of the MMPA rulemaking however, justify its position in choose the alternative that is in the best process, NMFS sought information on designing the NWTT Study Area to interests of the Indian tribe.’’ how the Navy’s activities could affect include an offshore portion of these A commenter stated that the trust Alaskan Natives’ subsistence use in waters. The meaning of the word responsibility serves several purposes in southeast Alaska. NMFS has added a ‘‘sanctuary’’ has been compromised this context. First, it requires NMFS to mitigation measure in this final rule to beyond recognition by federal be especially cognizant of Tribes’ needs minimize potential impacts on government agencies, but that does not as they pertain to their cultural ways of subsistence hunters from four Alaskan mean the Navy should continue to life and engage in meaningful Native communities that are also disregard the intent of the government government-to-government consultation federally recognized Tribes. See the in establishing these waters to protect concerning the proposed rule. Second, it Subsistence Harvest of Marine marine animal and plant life. The requires NMFS to ensure that its Mammals section for more information.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72370 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Comment 88: A commenter stated that Naval bases for the convenience of determination that the Navy’s activities NMFS proposes to authorize take of sailors and their families, or interesting will affect only a small number of any multiple island-associated populations, underwater topography taken as a species and that the outcome of the most of unknown population size and rationale for continuing exercises does activities will not adversely affect many presumably with small or limited not warrant even one ‘‘take’’ of Southern geographically diverse animal ranges. To justify the authorization Resident killer whales. populations. notwithstanding the lack of robust Response: The MMPA provides for Response: The ‘‘small numbers’’ mitigation measures, the commenter the authorization of incidental take determination discussed by the stated that the agency makes a number caused by activities that will continue commenter does not apply to military of assumptions that are not supported in an area. The law directs NMFS to readiness activities, including the by the best available science. process adequate and complete Navy’s activities in the NWTT Study Response: This comment is not applications for incidental take Area. The National Defense applicable to this rulemaking as there authorization, and issue the Authorization Act for Fiscal Year 2004 are no ‘‘island-associated populations’’ authorization provided all statutory amended section 101(a)(5) of the MMPA impacted by the Navy’s NWTT activities findings and requirements, as well as all for military readiness activities to or occurring within the NWTT Study associated legal requirements, are met. remove the ‘‘small numbers’’ and Area. The MMPA does not require the Navy ‘‘specified geographical region’’ Comment 89: A commenter to prove anything regarding whether provisions, as well as amending the questioned whether any ethical previous activities were sufficient for definition of ‘‘harassment’’ as applied to considerations have gone into the achieving military readiness, or to a ‘‘military readiness activity.’’ issuance of these authorizations for the justify why they have located their Comment 91: A commenter stated that United States government to harass and activities where they have (except NMFS should operate in full injure marine mammals for the past 10 inasmuch as it is considered in the least transparency and good faith toward our years, and another commenter practicable adverse impact analysis for fellow Washingtonians and reopen the referenced Occupational Safety and geographic mitigation considerations). comment period. The comment period Health Administration standards for Likewise, section 101(a)(5)(A) of the should be, at least, 60 days with plenty human noise exposure limits and MMPA does not include standards or of notice to the communities impacted, suggested parallel ‘‘pain thresholds’’ for determinations for the agency to thus allowing them to give testimony. killer whales. The commenter asserted consider the ethical and other factors Please give proper notification to the that although the MMPA requires raised by the commenters. public and to all who made comments mitigation strategies in order to As described in the rule, NMFS is on the May 29, 2019, Navy EIS. The authorize incidental takings, the Navy is required to evaluate the specified Navy should be able to provide those violating this provision by requiring a activity presented by the Navy in the names and addresses. The commenter constant authorization to operate in the context of the standards described in specifically requested that NMFS same location. The commenter stated this final rule, and NMFS has described include them on its list for notification that the Navy’s activities are never- how these standards and requirements for public comment. Another ending and now the Navy asks for yet have been satisfied throughout this final commenter stated that NMFS failed to another seven-year extension of the rule. notify the public and other same rule that will allow the Navy to Both this rule and the prior rules for governmental agencies regarding the test its sonar, explosives, and vessels in training and testing activities in the authorization process. The lack of the same area of water that will impact NWTT Study Area have required transparency has not allowed for NEPA- the same populations of marine monitoring to report and help better mandated public comment. mammals that have been subjected to understand the impacts of the Navy’s Response: NMFS provided full notice these same tests and disturbances for a activities on marine mammals. The to the public in the Federal Register on decade. The commenter questioned how Navy has conducted all monitoring as two opportunities to provide the Navy can continue to justify required, and the associated Monitoring information and comments related to repeating their activities in the same Reports may be viewed at: https:// this rulemaking: The notice of receipt of location without producing any new www.navymarinespeciesmonitoring.us/ the Navy’s application for MMPA results. reporting/pacific/. incidental take authorization (84 FR The commenter stated that there Comment 90: A commenter stated that 38225, August 6, 2019) and the notice appears to be no end to the Navy’s the Navy provides no factual basis from of NMFS’ proposed incidental take rule testing and no end to the Navy’s which a rational determination can be (85 FR 33914, June 2, 2020). NMFS reluctance to unearth credible evidence made about species population and provided 30 and 45 days, respectively, of the facts surrounding the takings that their geographical location. Indeed, the for the public to comment and provide have and will occur in the NWTT area. commenter asserts that it is pure input on those documents. These The commenter questioned the factual speculation to conclude that any figure notices and the associated comment ground on which NMFS can now grant cited by the Navy is a ‘‘small’’ number periods satisfy the requirements of the the Navy continued permission to cause of animals. However, one thing is MMPA and our implementing injury and death to protected marine certain according to the commenter. The regulations. Further, interested persons mammals. The commenter stated that in Navy has had the opportunity and also had the opportunity to comment this circumstance, the Navy should be motivation to seek the needed through the NEPA process on, among denied authorization because it has information, and it has failed to do so. other things, the Notice of Intent to failed to show that past test activities do The commenter questioned how many Prepare a Supplemental Environmental not provide a sufficient basis to achieve incidental injuries and deaths it would Impact Statement for Northwest its military readiness. In the absence of take before the Navy’s proposed Training and Testing and the Notice of such a showing, the Navy cannot activities were considered to be too Availability of the NWTT Draft credibly claim that it has pursued the great a loss for the animal species Supplemental Environmental Impact least practical method. Another involved. In the absence of any credible Statement/Overseas Environmental commenter noted that proximity to facts, NMFS cannot make a rational Impact Statement for both this MMPA

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72371

rulemaking and the Navy’s activities. activity also resulted in a reduction in Additionally, new procedural Given these opportunities for public HF4 sonar hours associated with Mine mitigation requires the Navy to conduct input and the need to ensure that the Countermeasure and Neutralization Mine Countermeasures and MMPA rulemaking process was testing; however, this reduction is not Neutralization during daylight hours completed in the time needed to ensure shown quantitatively. and in Beaufort sea state conditions of coverage of the Navy’s training and In addition, the take estimates for 3 or less. testing activities, NMFS determined that some species during both training and This final rule also includes new additional time for public comment was testing have been updated, and are discussion of monitoring projects being not possible. NMFS has practiced full reflected in Table 32 (Training) and conducted under the 2020–2027 rule. and appropriate transparency under Table 33 (Testing). For all updated These planned projects include research both the MMPA and NEPA. species except Kogia, the maximum on the offshore distribution of Southern annual take remained the same, but the Resident killer whales in the Pacific Changes From the Proposed Rule to the Northwest (ongoing and planned Final Rule seven-year total decreased. For Kogia Spp., takes during training activities through 2022), and characterizing the Between publication of the proposed decreased by 1 both annually, and over distribution of ESA-listed salmonids in rule and development of the final rule, the seven-year period of the rule. During the Pacific Northwest (ongoing and the Navy has decreased their activity testing activities, annual takes by Level planned through 2022). Please see the levels for some training activities. As a B harassment decreased by 1 and annual Past and Current Monitoring in the result, the annual and/or seven-year takes by Level A harassment increased NWTT Study Area section for additional take estimates for some species have by 1. Over the seven-year period of the details about these planned projects. changed (all decreases with the rule, takes by Level B harassment during Finally, NMFS has added information exception of Kogia, which increased by testing activities decreased by 1. discussing the nature of subsistence 1 annually and over seven years). activities by Alaskan Natives in the Specifically regarding the harbor seal Additional mitigation measures have NWTT Study Area in the Subsistence density estimates, since publication of also been added, including the Harvest of Marine Mammals section of the proposed rule, additional identification of a new mitigation area, this final rule. NMFS also added a information and analyses have been additional requirements in existing requirement for the Navy to continue to used to refine the abundance estimate of areas, and new procedural measures. notify the following Alaskan Native the Washington Northern Inland Waters, Additionally, harbor seal abundance communities of Navy operations that Hood Canal, and Southern Puget Sound estimates for inland water stocks have involve restricting access in the Western stocks of harbor seal. These changes are been refined. Behm Canal at least 72 hours in advance discussed in greater detail in the Group The Navy has reduced the number of through issuance of its Notices to and Species-Specific Analyses section planned Mine Neutralization-Explosive Mariners to minimize potential impact of this rule, and the updated abundance Ordnance Disposal (EOD) (Bin E3) on subsistence hunters: Central Council estimates are used in our analysis and training events from 12 to 6 annually, of the Tlingit and Haida Indian Tribes, negligible impact determination. and 84 to 42 over the seven-year period Ketchikan Indian Corporation, Regarding the additional mitigation of the rule. The Navy also reduced the Organized Village of Saxman, and measures, a new mitigation area, the number of Gunnery Exercise (Surface- Metlakatla Indian Community, Annette Juan de Fuca Eddy Marine Species to-Surface)- Ship (GUNEX [S–S]-Ship) Island Reserve. training exercises from 90 to 34 Mitigation Area has been added. No annually, and 504 to 238 over the seven- mine countermeasure and neutralization Description of Marine Mammals and year period, counting only the explosive testing will be conducted in this area, Their Habitat in the Area of the events, as noted in Table 3. and the Navy will conduct no more than Specified Activities Additionally, the Navy added bin HF1 a total of 33 hours of surface ship hull- Marine mammal species and their to the Submarine Sonar Maintenance mounted MF1 mid-frequency active associated stocks that have the potential training activity. (This change does not sonar during testing annually within 20 to occur in the NWTT Study Area are increase total HF1 hours, but nmi from shore in the Marine Species presented in Table 9. The Navy redistributes them to include use of the Coastal Mitigation Area, in this new anticipates the take of individuals of source types identified in bin HF1) Juan de Fuca Eddy Marine Species 28 3 marine mammal species by Level A Finally, the Navy clarified the number Mitigation Area, and in the Olympic harassment and Level B harassment of planned Mine Countermeasure and Coast National Marine Sanctuary incidental to training and testing Neutralization Testing events in the Mitigation Area combined. Please see activities from the use of sonar and offshore area. The final rule reflects 2 the Mitigation Areas section for other transducers and in-water events annually, and 6 events over the additional information on the new Juan detonations. In addition, the Navy seven-year period, as one of the 3 de Fuca Eddy Marine Species Mitigation requested authorization for three takes annual events noted in the proposed Area. of large whales by serious injury or rule does not include acoustic New mitigation requirements also mortality from vessel strikes over the components. This change resulted in have been added in the following seven-year period. Currently, the decreases in estimated take over seven mitigation areas: The Marine Species Southern Resident killer whale has years for the following species: fin Coastal Mitigation Area, the Olympic critical habitat designated under the whale, sei whale, minke whale, Coast National Marine Sanctuary Endangered Species Act (ESA) in the humpback whale, gray whale, northern Mitigation Area, and the Puget Sound NWTT Study Area (described below). right whale dolphin, Pacific white-sided and Strait of Juan de Fuca Mitigation dolphin, Risso’s dolphin, Kogia whales, Area. The Mitigation Areas section 3 The total number of species was calculated by Dall’s porpoise, harbor porpoise, describes the specific additions in these counting Mesoplodont beaked whales as one California sea lion, Steller sea lion, mitigation areas since publication of the species for the reasons explained in the Baird’s and Cuvier’s beaked whales and Mesoplodon species harbor seal, and northern elephant seal. proposed rule and discusses additional (California/Oregon/Washington stocks) section. The Revised take estimates are reflected in information about all of the mitigation proposed rule erroneously indicated anticipated Table 32 and Table 33. This change in area requirements. take of individuals of 29 marine mammal species.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72372 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

However, NMFS has recently published reader to our Federal Register notice of incorporating the best available science, two proposed rules, proposing new or proposed rulemaking (85 FR 33914; including monitoring data, from the revised ESA-designated critical habitat June 2, 2020) for more information. Navy’s marine mammal research efforts. for humpback whales (84 FR 54354; Information on the status, NMFS has also reviewed new scientific October 9, 2019) and Southern Resident distribution, abundance, population literature since publication of the killer whales (84 FR 49214; September trends, habitat, and ecology of marine proposed rule, and determined that 19, 2019). mammals in the NWTT Study Area may none of these nor any other new The NWTT proposed rule included be found in Chapter 4 of the Navy’s information changes our determination additional information about the species rulemaking/LOA application. NMFS has of which species have the potential to in this rule, all of which remains valid reviewed this information and found it be affected by the Navy’s activities or and applicable but has not been to be accurate and complete. Additional the information pertinent to status, reprinted in this final rule, including a information on the general biology and distribution, abundance, population subsection entitled Marine Mammal ecology of marine mammals is included trends, habitat, or ecology of the species Hearing that described the importance in the 2020 NWTT FSEIS/OEIS. Table 9 in this final rulemaking, except as noted of sound to marine mammals and incorporates data from the U.S. Pacific below or, in the case of revised harbor characterized the different groups of and the Alaska Marine Mammal Stock seal abundance, in the applicable marine mammals based on their hearing Assessment Reports (SARs) (Carretta et section of the Analysis and Negligible sensitivity. Therefore, we refer the al., 2020; Muto et al., 2020), as well as Impact Determination section. TABLE 9—MARINE MAMMAL EXPECTED OCCURRENCE WITHIN THE NWTT STUDY AREA

Occurrence 8 ESA/MMPA status; Stock abundance Annual Common name Scientific name Stock strategic (CV, Nmin, most recent PBR 3 1 2 M/SI Offshore Inland Western (Y/N) abundance survey) area waters behm canal

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Eschrichtiidae: Gray whale ...... Eschrichtius robustus Eastern North Pacific .. -, -, N ...... 26.960 (0.05, 25,849, 801 139 Seasonal.... Seasonal 2016)...... Western North Pacific E, D, Y ...... 290 (NA, 271, 2016) ... 0.12 UNK Rare ...... Rare Family Balaenopteridae (rorquals): Blue whale ...... Balaenoptera Eastern North Pacific .. E, D, Y ...... 1,496 (0.44, 1,050, 1.2 ≥19.4 Seasonal musculus. 2014). Fin whale ...... Balaenoptera physalus Northeast Pacific ...... E, D, Y ...... 3,168 (0.26, 2,554, 5.1 0.4 Rare. 2013) 4. CA/OR/WA ...... E, D, Y ...... 9,029 (0.12, 8,127, 81 ≥43.5 Seasonal .... Rare 2014). Humpback whale .. Megaptera Central North Pacific .. T/E5, D, Y ...... 10,103 (0.3, 7,891, 83 25 Regular...... Regular ...... Regular. novaeangliae. 2006). CA/OR/WA ...... T/E5, D, Y ...... 2,900 (0.05, 2,784, 16.7 ≥42.1 Regular ...... Regular ...... Regular. 2014). Minke whale ...... Balaenoptera Alaska ...... -, -, N ...... UNK ...... UND 0 ...... Rare. acutorostrata. CA/OR/WA ...... -, -, N ...... 636 (0.72, 369, 2014) 3.5 ≥1.3 Regular ...... Seasonal Sei whale ...... Balaenoptera borealis Eastern North Pacific .. E, D, Y ...... 519 (0.4, 374, 2014) ... 0.75 ≥0.2 Regular

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Physeteridae: Sperm whale ...... Physeter CA/OR/WA ...... E, D, Y ...... 1.997 (0.57, 1,270, 2.5 0.6 Regular macrocephalus. 2014). Family Kogiidae: Dwarf sperm Kogia sima ...... CA/OR/WA ...... -, -, N ...... UNK ...... UND 0 Rare whale. Pygmy sperm Kogia breviceps ...... CA/OR/WA ...... -, -, N ...... 4,111 (1.12, 1,924, 19.2 0 Regular whale. 2014). Family Ziphiidae (beaked whales): Baird’s beaked Berardius bairdii ...... CA/OR/WA ...... -, -, N ...... 2,697 (0.6, 1,633, 16 0 Regular whale. 2014). Cuvier’s beaked Ziphius cavirostris ...... CA/OR/WA ...... -, -, N ...... 3,274 (0.67, 2,059, 21 <0.1 Regular whale. 2014). Mesoplodont Mesoplodon species ... CA/OR/WA ...... -, -, N ...... 3,044 (0.54, 1,967, 20 0.1 Regular beaked whales. 2014). Family Delphinidae: Common Tursiops truncatus ...... CA/OR/WA Offshore ... -, -, N ...... 1,924 (0.54, 1,255, 11 ≥1.6 Regular bottlenose dol- 2014). phin. Killer whale ...... Orcinus orca ...... Eastern North Pacific -, -, N ...... 2,347 (UNK, 2,347, 24 1 ...... Regular. Alaska Resident. 2012) 6. Eastern North Pacific -, -, N ...... 302 (UNK, 302, 2.2 0.2 Seasonal.... Seasonal Northern Resident. 2018) 6. West Coast Transient -, -, N ...... 243 (UNK, 243, 2009) 2.4 0 Regular ...... Regular ...... Regular. Eastern North Pacific -, -, N ...... 300 (0.1, 276, 2012) ... 2.8 0 Regular ...... Regular. Offshore. Eastern North Pacific E, D, Y ...... 75 (NA, 75, 2018) ...... 0.13 0 Regular ...... Regular Southern Resident. Northern right Lissodelphus borealis CA/OR/WA ...... -, -, N ...... 26,556 (0.44, 18,608, 179 3.8 Regular whale dolphin. 2014). Pacific white-sided Lagenorhynchus North Pacific ...... -, -, N ...... 26,880 (UNK, NA, UND 0 ...... Regular. dolphin. obliquidens. 1990). CA/OR/WA ...... -, -, N ...... 26,814 (0.28, 21,195, 191 7.5 Regular...... Regular ...... 2014). Risso’s dolphin ..... Grampus griseus ...... CA/OR/WA ...... -, -, N ...... 6,336 (0.32, 4,817, 46 ≥3.7 Regular ...... Rare 2014). Short-beaked com- Delphinus delphis ...... CA/OR/WA ...... -, -, N ...... 969,861 (0.17, 8,393 ≥40 Regular ...... Rare mon dolphin. 839,325, 2014).

VerDate Sep<11>2014 22:27 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72373

TABLE 9—MARINE MAMMAL EXPECTED OCCURRENCE WITHIN THE NWTT STUDY AREA—Continued

Occurrence 8 ESA/MMPA status; Stock abundance Annual Common name Scientific name Stock strategic (CV, Nmin, most recent PBR 3 1 2 M/SI Offshore Inland Western (Y/N) abundance survey) area waters behm canal

Short-finned pilot Globicephala CA/OR/WA ...... -, -, N ...... 836 (0.79, 466, 2014) 4.5 1.2 Regular ...... Rare ...... whale. macrorhynchus. Striped dolphin ..... Stenella coeruleoalba CA/OR/WA ...... -, -, N ...... 29,211 (0.2, 24,782, 238 ≥0.8 Regular 2014). Family Phocoenidae (porpoises): Dall’s porpoise ...... Phocoenoides dalli ..... Alaska ...... -, -, N ...... 83,400 (0.097, NA, UND 38 ...... Regular. 1991). CA/OR/WA ...... -, -, N ...... 25,750 (0.45, 17,954, 172 0.3 Regular...... Regular 2014). Harbor porpoise ... Phocoena phocoena ... Southeast Alaska ...... -, -, Y ...... 1,354 (0.12, 1,224, 12 34 ...... Regular. 2012). Northern OR/WA -, -, N ...... 21,487 (0.44, 15,123, 151 ≥3 Regular Coast. 2011). Northern CA/Southern -, -, N ...... 24,195 (0.40, 17,447, 349 ≥0.2 Regular OR. 2016). Washington Inland -, -, N ...... 11,233 (0.37, 8,308, 66 ≥7.2 ...... Regular Waters. 2015).

Order Carnivora—Superfamily Pinnipedia

Family Otariidae (eared seals and sea lions): California sea lion Zalophus californianus U.S...... -, -, N ...... 257,606 (NA, 233,515, 14,011 ≥321 Seasonal .... Regular 2014). Guadalupe fur seal Arctocephalus Mexico to California .... T, D, Y ...... 34,187 (NA, 31,109, 1,062 ≥3.8 Seasonal townsendi. 2013). Northern fur seal .. Callorhinus ursinus ..... Eastern Pacific ...... -, D, Y ...... 620,660 (0.2, 525,333, 11,295 399 Regular...... Seasonal. 2016). California ...... -, -, N ...... 14,050 (NA, 7,524, 451 1.8 Regular 2013). Steller sea lion ..... Eumetopias jubatus .... Eastern U.S...... -, -, N ...... 43,201 (NA, 43,201, 2,592 112 Regular...... Seasonal .... Regular. 2017) 7. Family Phocidae (ear- less seals): Harbor seal ...... Phoca vitulina ...... Southeast Alaska -, -, N ...... 27,659 (UNK, 24,854, 746 40 ...... Regular. (Clarence Strait). 2015). OR/WA Coast ...... -, -, N ...... UNK ...... UND 10.6 Regular ...... Seasonal California ...... -, -, N ...... 30,968 (0.157, 27,348, 1,641 43 Regular 2012). Washington Northern -, -, N ...... UNK ...... UND 9.8 Seasonal .... Regular Inland Waters. Hood Canal ...... -, -, N ...... UNK ...... UND 0.2 Seasonal .... Regular Southern Puget Sound -, -, N ...... UNK ...... UND 3.4 Seasonal .... Regular Northern Elephant seal: Mirounga California ...... -, -, N ...... 179,000 (NA, 81,368, 4,882 8.8 Regular...... Regular ...... Seasonal. angustirostris. 2010). 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as de- pleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a stra- tegic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of vari- ation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For the Eastern North Pacific Southern Resident stock of killer whales Nbest/Nmin are based on a direct count of individually identifiable animals. The population size of the U.S. stock of California sea lion was estimated from a 1975–2014 time series of pup counts (Lowry et al. 2017), com- bined with mark-recapture estimates of survival rates (DeLong et al. 2017, Laake et al. 2018). The population size of the Mexico to California stock of Guadalupe fur seals was estimated from pup count data collected in 2013 and a range of correction factors applied to pup counts to account for uncounted age classes and pre-census pup mortality (Garcı´a-Aguilar et al. 2018). The population size of the California stock of Northern fur seals was estimated from pup counts multiplied by an expansion factor (San Miguel Island) and maximum pup, juvenile, and adult counts (Farrallon Islands) at rookeries. The population size of the Eastern U.S. stock of Steller sea lions was estimated from pup counts and non-pup counts at rookeries in Southeast Alaska, British Columbia, Oregon, and California. The population size of the California stock of Northern Elephant seals was estimated from pup counts at rookeries multiplied by the inverse of the expected ratio of pups to total animals (McCann, 1985; Lowry et al., 2014). 3 These values, found in NMFS’ SARs, represent annual levels of human-caused mortality and serious injury (M/SI) from all sources combined (e.g., commercial fisheries, ship strike). Annual mortality or serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commer- cial fisheries is presented in some cases. 4 The SAR reports this stock abundance assessment as provisional and notes that it is an underestimate for the entire stock because it is based on surveys which covered only a small portion of the stock’s range. 5 Humpback whales in the Central North Pacific stock and the CA/OR/WA stock are from three Distinct Population Segments (DPSs) based on animals identified in breeding areas in Hawaii, Mexico, and Central America. Both stocks and all three DPSs co-occur in the NWTT Study Area. 6 Stock abundance estimate is based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted infre- quently. 7 Stock abundance estimate is the best estimate counts, which have not been corrected to account for animals at sea during abundance surveys. 8 A ‘‘-’’ indicates the species or stock does not occur in that area. Note—Unknown (UNK); Undetermined (UND); Not Applicable (NA); California (CA); Oregon (OR); Washington (WA).

Below, we include additional proposed rules, however, proposing to the conservation of the Southern information about the marine mammals new or revised ESA-designated critical Resident killer whale DPS: (1) Water in the area of the specified activities that habitat for Southern Resident killer quality to support growth and informs our analysis, such as identifying whale (84 FR 49214; September 19, development; (2) prey species of known areas of important habitat or 2019) and humpback whales (84 FR sufficient quantity, quality, and behaviors, or where Unusual Mortality 54354; October 9, 2019). availability to support individual Events (UME) have been designated. NMFS designated critical habitat for growth, reproduction, and development, the Southern Resident killer whale DPS as well as overall population growth; Critical Habitat on November 29, 2006 (71 FR 69054) in and (3) passage conditions to allow for Currently, only the distinct inland waters of Washington State. migration, resting, and foraging. ESA- population segment (DPS) of Southern Based on the natural history of the Resident killer whale has ESA- Southern Resident killer whales and designated critical habitat consists of designated critical habitat in the NWTT their habitat needs, NMFS identified three areas: (1) The Summer Core Area Study Area. NMFS has published two physical or biological features essential in Haro Strait and waters around the

VerDate Sep<11>2014 22:27 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72374 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

San Juan Islands; (2) Puget Sound; and 22304; April 21, 2015), but NMFS did BIAs off the West Coast of the United (3) the Strait of Juan de Fuca, which not receive relevant data or information States (including southeastern Alaska) comprise approximately 2,560 square regarding habitats or habitat features in that overlap portions of the NWTT miles (mi2) (6,630 square kilometers areas within U.S. jurisdiction. In the Study Area include the following (km2)) of marine habitat. In designating final rule listing the five DPSs of feeding and migration areas: Northern critical habitat, NMFS considered humpback whales, NMFS concluded Puget Sound Feeding Area for gray economic impacts and impacts to that critical habitat was not yet whales (March–May); Northwest national security, and concluded that determinable, which had the effect of Feeding Area for gray whales (May– the benefits of exclusion of 18 military extending by one year the statutory November); Northbound Migration sites, comprising approximately 112 mi2 deadline for designating critical habitat Phase A for gray whales (January–July); (291 km2), outweighed the benefits of (16 U.S.C. 1533(b)(6)(C)(ii)). Northbound Migration Phase B for gray inclusion because of national security On October 9, 2019, NMFS proposed whales (March–July); Southbound impacts. to designate critical habitat for the Migration for gray whales (October– On January 21, 2014, NMFS received endangered Western North Pacific DPS, March); Northern Washington Feeding a petition requesting revisions to the the endangered Central America DPS, Area for humpback whales (May– Southern Resident killer whale critical and the threatened Mexico DPS of November); Stonewall and Heceta Bank habitat designation. The petition humpback whales (84 FR 54354). Areas Feeding Area for humpback whales requested that NMFS revise critical proposed as critical habitat include (May–November); and Point St. George habitat to include ‘‘inhabited marine specific marine areas located off the Feeding Area for humpback whales waters along the West Coast of the coasts of California, Oregon, (July–November) (Calambokidis et al., United States that constitute essential Washington, and Alaska. Based on 2015). foraging and wintering areas,’’ consideration of national security and The NWTT Study Area overlaps with specifically the region between Cape economic impacts, NMFS also proposed the Northern Puget Sound Feeding Area Flattery, Washington and Point Reyes, to exclude multiple areas from the for gray whales and the Northwest California extending from the coast to a designation for each DPS. Feeding Area for gray whales. Gray distance of 47.2 mi (76 km) offshore. whale migration corridor BIAs NMFS, in the proposed rule, The petition also requested that NMFS (Northbound and Southbound) overlap identified prey species, primarily adopt a fourth essential habitat feature with the NWTT Study Area, but only in euphausiids and small pelagic schooling in both current and expanded critical a portion of the Northwest coast of habitat relating to in-water sound levels. fishes of sufficient quality, abundance, Washington, approximately from Pacific On September 19, 2019 (84 FR 54354), and accessibility within humpback Beach and extending north to the Strait NMFS published a proposed rule whale feeding areas to support feeding of Juan de Fuca. The offshore Northern proposing to revise the critical habitat and population growth, as an essential Washington Feeding Area for humpback designation for the Southern Resident habitat feature. NMFS, through a critical whales is located entirely within the killer whale DPS by designating six new habitat review team (CHRT), also NWTT Study Area boundaries. The areas (using the same essential features considered inclusion of migratory Stonewall and Heceta Bank Feeding determined in 2006, and not including corridors and passage features, as well Area for humpback whales only the requested essential feature relating as sound and the , as partially overlaps with the NWTT Study to in-water sound levels) along the U.S. essential habitat features. NMFS did not Area, and the Point St. George Feeding West Coast. Specific new areas propose to include either, however, as Area for humpback whales has proposed along the U.S. West Coast the CHRT concluded that the best extremely limited overlap with the include 15,626.6 mi2 (40,472.7 km2) of available science did not allow for Study Area since they abut marine waters between the 6.1 m (20 ft) identification of any consistently used approximately 12 nmi from shore which depth contour and the 200 m (656.2 ft) migratory corridors or definition of any is where the NWTT Study Area depth contour from the U.S. physical, essential migratory or passage boundary begins. To mitigate impacts to international border with Canada south conditions for whales transiting marine mammals in these BIAs, the to Point Sur, California. between or within habitats of the three Navy will implement several procedural For humpback whales, on September DPSs. The best available science also mitigation measures and mitigation 8, 2016, NMFS revised the listing of currently does not enable NMFS to areas (described later in the Mitigation humpback whales under the ESA by identify particular sound levels or to Measures section). removing the original, taxonomic-level describe a certain soundscape feature species listing, and in its place listing that is essential to the conservation of National Marine Sanctuaries four DPSs as endangered and one DPS humpback whales. Under Title III of the Marine Protection, Research, and Sanctuaries as threatened (81 FR 62260). NMFS also Biologically Important Areas determined that nine additional DPSs Act of 1972 (also known as the National did not warrant listing. This listing of Biologically Important Areas (BIAs) Marine Sanctuaries Act (NMSA)), DPSs of humpback whales under the include areas of known importance for NOAA can establish as national marine ESA in 2016 triggered the requirement reproduction, feeding, or migration, or sanctuaries (NMS), areas of the marine to designate critical habitat, to the areas where small and resident environment with special conservation, maximum extent prudent and populations are known to occur (Van recreational, ecological, historical, determinable, for those DPSs occurring Parijs, 2015). Unlike ESA critical cultural, archaeological, scientific, in areas under U.S. jurisdiction— habitat, these areas are not formally educational, or aesthetic qualities. specifically, the Central America, designated pursuant to any statute or Sanctuary regulations prohibit or Mexico, and Western North Pacific law, but are a compilation of the best regulate activities that could destroy, DPSs. available science intended to inform cause the loss of, or injure sanctuary In the proposed rule to revise the impact and mitigation analyses. An resources pursuant to the regulations for humpback whale listing, NMFS interactive map of the BIAs may be that sanctuary and other applicable law solicited information that could inform found here: https://cetsound.noaa.gov/ (15 CFR part 922). NMSs are managed a critical habitat designation (80 FR biologically-important-area-map. on a site-specific basis, and each

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72375

sanctuary has site-specific regulations. explosive Mine Countermeasure and of sea lion prey items around the Most, but not all, sanctuaries have site- Neutralization Testing activities and Channel Island rookeries during critical specific regulatory exemptions from the non-explosive bombing training sea lion life history events (nursing by prohibitions for certain military activities. See the Mitigation Areas adult females, and transitioning from activities. Separately, section 304(d) of section of this final rule for additional milk to prey by young sea lions). These the NMSA requires Federal agencies to discussion of mitigation measures prey shifts were most likely driven by consult with the Office of National required in the Olympic Coast National unusual oceanographic conditions at the Marine Sanctuaries whenever their Marine Sanctuary. time due to the ‘‘Warm Water Blob’’ and activities are likely to destroy, cause the El Nin˜ o. This investigation closed on Unusual Mortality Events (UMEs) loss of, or injure a sanctuary resource. May 6, 2020. Please refer to: https:// One NMS, the Olympic Coast NMS An UME is defined under Section www.fisheries.noaa.gov/national/ managed by the Office of National 410(6) of the MMPA as a stranding that marine-life-distress/2013-2017- Marine Sanctuaries, is located within is unexpected; involves a significant california-sea-lion-unusual-mortality- the offshore portion of the NWTT Study die-off of any marine mammal event-california for more information on Area (for a map of the location of this population; and demands immediate this UME. NMS see Chapter 6 of the 2020 NWTT response. Three UMEs with ongoing or Guadalupe Fur Seal UME FSEIS/OEIS, Figure 6.1–1). recently closed investigations in the Additionally, a portion of the Quinault NWTT Study Area that inform our Increased strandings of Guadalupe fur Range Site overlaps with the southern analysis are discussed below. The seals began along the entire coast of end of the Sanctuary. California sea lion UME in California California in January 2015 and were The Olympic Coast NMS includes was closed on May 6, 2020. The eight times higher than the historical 3,188 mi2 of marine waters and Guadalupe fur seal UME in California average (approximately 10 seals/yr). submerged lands off the Olympic and the gray whale UME along the west Strandings have continued since 2015 Peninsula coastline. The sanctuary coast of North America are active and and remained well above average extends 25–50 mi. (40.2–80.5 km) involve ongoing investigations. through 2019. Numbers by year are as follows: 2015 (98), 2016 (76), 2017 (62), seaward, covering much of the California Sea Lion UME continental shelf and portions of three 2018 (45), 2019 (116), 2020 (95 as of major submarine canyons. The From January 2013 through October 4, 2020). The total number of boundaries of the sanctuary as defined September 2016, a greater than expected Guadalupe fur seals stranding in in the Olympic Coast NMS regulations number of young malnourished California from January 1, 2015, through (15 CFR part 922, subpart O) extend California sea lions (Zalophus October 4, 2020, in the UME is 492. from Koitlah Point, due north to the californianus) stranded along the coast Additionally, strandings of Guadalupe United States/Canada international of California. Sea lions stranding from fur seals became elevated in the spring boundary, and seaward to the 100- an early age (6–8 months old) through of 2019 in Washington and Oregon; fathom isobath (approximately 180 m in two years of age (hereafter referred to as subsequently, strandings for seals in depth). The seaward boundary of the juveniles) were consistently these two states have been added to the sanctuary follows the 100-fathom underweight without other disease UME starting from January 1, 2019. The isobath south to a point due west of the processes detected. Of the 8,122 current total number of strandings in Copalis River, and cuts across the tops stranded juveniles attributed to the Washington and Oregon is 132 seals, of Nitinat, Juan de Fuca, and the UME, 93 percent stranded alive including 91 (46 in Oregon; 45 in Quinault Canyons. The shoreward (n=7,587, with 3,418 of these released Washington) in 2019 and 41 (30 in boundary of the sanctuary is at the mean after rehabilitation) and 7 percent Oregon; 11 in Washington) in 2020 as of lower low-water line when adjacent to (n=531) stranded dead. Several factors October 4, 2020. Strandings are seasonal American Indian lands and state lands, are hypothesized to have impacted the and generally peak in April through July and includes the intertidal areas to the ability of nursing females and young sea of each year. The Guadalupe fur seal mean higher high-water line when lions to acquire adequate nutrition for strandings have been mostly weaned adjacent to federally managed lands. successful pup rearing and juvenile pups and juveniles (1–2 years old) with When adjacent to rivers and streams, the growth. In late 2012, decreased anchovy both live and dead strandings occurring. sanctuary boundary cuts across the and sardine recruitment (CalCOFI data, Current findings from the majority of mouths but does not extend up river or July 2013) may have led to nutritionally stranded animals include primary up stream. The Olympic Coast NMS stressed adult females. Biotoxins were malnutrition with secondary bacterial includes many types of productive present at various times throughout the and parasitic infections. When the marine habitats including kelp forests, UME, and while they were not detected 2013–2016 California sea lion UME was subtidal reefs, rocky and sand intertidal in the stranded juvenile sea lions active, it was occurring in the same area zones, submarine canyons, rocky deep- (whose stomachs were empty at the time as the California portion of this UME. sea habitat, and plankton-rich upwelling of stranding), biotoxins may have This investigation is ongoing. Please zones. These habitats support the impacted the adult females’ ability to refer to: https://www.fisheries.noaa.gov/ Sanctuary’s rich biodiversity which support their dependent pups by national/marine-life-distress/2015-2020- includes 29 species of marine mammals affecting their cognitive function (e.g., guadalupe-fur-seal-unusual-mortality- that reside in or migrate through the navigation, behavior towards their event-california for more information on Sanctuary (Office of National Marine offspring). Therefore, the role of this UME. Sanctuaries, 2008). Additional biotoxins in this UME, via its possible information on the Olympic Coast NMS impact on adult females’ ability to Gray Whale UME can be found at https:// support their pups, is unclear. The Since January 1, 2019, elevated gray olympiccoast.noaa.gov. proposed primary cause of the UME was whale strandings have occurred along Mitigation measures in the Olympic malnutrition of sea lion pups and the west coast of North America, from Coast NMS include limits on the use of yearlings due to ecological factors. Mexico to Canada. As of October 4, MF1 mid-frequency active sonar during These factors included shifts in 2020, there have been a total of 384 testing and training and prohibition of distribution, abundance, and/or quality strandings along the coasts of the United

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72376 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

States, Canada, and Mexico, with 200 of Potential Effects of Specified Activities the dolphins resulted in frequency- those strandings occurring along the on Marine Mammals and Their Habitat dependent increases in hearing U.S. coast. Of the strandings on the U.S. We provided a detailed discussion of thresholds of up to 18.5 dB when coast, 92 have occurred in Alaska, 40 in the potential effects of the specified compared to sounds projected from in Washington, 9 in Oregon, and 53 in activities on marine mammals and their front of the dolphins. Sounds projected California. Partial necropsy habitat in our Federal Register notice of directly above the dolphins resulted in examinations conducted on a subset of proposed rulemaking (85 FR 33914; thresholds that were approximately 8 stranded whales have shown evidence June 2, 2020). In the Potential Effects of dB higher than those obtained when of poor to thin body condition in some Specified Activities on Marine sounds were projected below the of the whales. Additional findings have Mammals and Their Habitat section of dolphins. These findings suggest that included human interactions the proposed rule, NMFS provided a dolphins may receive lower source levels when they are oriented 180 (entanglements or vessel strikes) and description of the ways marine degrees away from the sound source, pre-mortem killer whale predation in mammals may be affected by these and that dolphins are less sensitive to several whales. As part of the UME activities in the form of, among other sound projected from above (leading to investigation process, NOAA has things, serious injury or mortality, some spatial release from masking). assembled an independent team of physical trauma, sensory impairment Directional or spatial hearing also scientists to coordinate with the (permanent and temporary threshold allows animals to locate sound sources. Working Group on Marine Mammal shift and acoustic masking), This study indicates dolphins can detect Unusual Mortality Events to review the physiological responses (particularly source direction at lower frequencies stress responses), behavioral data collected, sample stranded whales, than previously thought, allowing them consider possible causal-linkages disturbance, or habitat effects. All of to successfully avoid or approach between the mortality event and recent this information remains valid and biologically significant or anthropogenic ocean and ecosystem perturbations, and applicable. Therefore, we do not reprint sound sources at these frequencies. determine the next steps for the the information here, but refer the Houser et al. (2020) measured investigation. Please refer to: https:// reader to that document. cortisol, aldosterone, and epinephrine www.fisheries.noaa.gov/national/ NMFS has also reviewed new relevant levels in the blood samples of 30 marine-life-distress/2019-2020-gray- information from the scientific literature bottlenose dolphins before and after whale-unusual-mortality-event-along- since publication of the proposed rule. exposure to simulated U.S. Navy mid- west-coast-and for more information on Summaries of the new key scientific frequency sonar from 115–185 dB re: 1 this UME. literature since publication of the mPa. They collected blood samples proposed rule are presented below. approximately one week prior to, Species Not Included in the Analysis Temporary hearing shifts have been immediately following, and documented in harbor seals and harbor approximately one week after exposures The species carried forward for porpoises with onset levels varying as a analysis (and described in Table 9) are and analyzed for hormones via function of frequency. Harbor seals radioimmunoassay. Aldosterone levels those likely to be found in the NWTT experienced TTS 1–4 minutes after Study Area based on the most recent were below the detection limits in all exposure to a continuous one-sixth- samples. While the observed severity of data available, and do not include octave noise band centered at 32 kHz at species that may have once inhabited or behavioral responses scaled (increased) sound pressure levels of 92 to 152 dB re with SPL, levels of cortisol and transited the area but have not been 1 mPa (Kastelein et al. 2020a), with the sighted in recent years (e.g., species epinephrine did not show consistent maximum TTS at 32 kHz occurring relationships with received SPL. The which were extirpated from factors such below ∼176 dB re 1 mPa2s. These seals as 19th and 20th century commercial authors note that it is still unclear appeared to be equally susceptible to whether intermittent, high-level exploitation). Several species that may TTS caused by sounds in the 2.5–32 kHz acoustic stimuli elicit endocrine be present in the northwest Pacific range, but experienced TTS at 45 kHz responses consistent with a stress Ocean have an extremely low 2 occurring above ∼176 dB re 1 mPa s response, and that additional research is probability of presence in the NWTT (Kastelein et al. 2020a). needed to determine the relationship Study Area. These species are Harbor porpoises also experience between behavioral responses and considered extralimital (not anticipated variable temporary hearing shifts as a physiological responses. to occur in the Study Area) or rare function of frequency. Kastelein et al. In an effort to compare behavioral (occur in the Study Area sporadically, (2020b) documented TTS in one responses to continuous active sonar but sightings are rare). These species/ porpoise due to a one-sixth-octave noise (CAS) and pulsed (intermittent) active stocks include the Eastern North Pacific band centered at 63 kHz from 154–181 sonar (PAS), Isojunno et al. (2020) stock of Bryde’s whale (Balaenoptera dB re 1 mPa2s 1–4 minutes after conducted at-sea experiments on 16 edeni), Eastern North Pacific stock of exposure, and to another porpoise sperm whales equipped with animal- North Pacific right whale (Eubalaena exposed 1–4 minutes to a 88.4 kHz attached sound- and movement- japonica), false killer whale (Pseudorca signal at 192 dB re 1 mPa2s (no TTS was recording tags in Norway. They crassidens), long-beaked common apparent in either animal at 10 or 125 examined changes in foraging effort and dolphin (Delphinus capensis), Western kHz). proxies for foraging success and cost U.S. stock of Steller sea lion Accomando et al. (2020) examined during sonar and control exposures after (Eumetopias jubatus), and Alaska stock the directional dependence of hearing accounting for baseline variation. They of Cuvier’s beaked whale (Ziphius thresholds for 2, 10, 20, and 30 kHz in observed no reduction in time spent cavirostris). These species are unlikely two adult bottlenose dolphins. They foraging during exposures to medium- to occur in the NWTT Study Area and observed that source direction (i.e., the level PAS transmitted at the same peak the reasons for not including each was relative angle between the sound source amplitude as CAS, however they explained in further detail in the location and the dolphin) impacted observed similar reductions in foraging proposed rulemaking (85 FR 33914; hearing thresholds for these frequencies. during CAS and PAS when they were June 2, 2020). Sounds projected from directly behind received at similar energy levels (SELs).

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72377

The authors note that these results strandings occurred a day prior to sonar the ability of killer whales to locate support the hypothesis that sound transmissions and so should not be them when at the surface. This may lead energy (SEL) is the main cause of considered coincident with sonar. The to a trade-off for the larger, more fit behavioral responses rather than sound authors’ analysis examined the animals that could conduct longer amplitude (SPL), and that exposure probability that three of eight random foraging dives, such that all members of context and measurements of days would fall during, or within six the group remain together and are better cumulative sound energy are important days after, a naval event (utilizing the protected by this behavior. The authors considerations for future research and Navy training events and sonar further speculate that this may explain noise impact assessments. detections of which the authors were the long, slow, silent, and shallow Frankel and Stein (2020) used aware). Their test results indicated that ascents that beaked whales make when shoreline theodolite tracking to examine the probability that three of eight sonar occurs during a deep foraging potential behavioral responses of stranding events were randomly dive. However, these hypotheses are southbound migrating eastern gray associated with naval sonar was one based only on the dive behavior of whales to a high-frequency active sonar percent. tagged beaked whales, with no system transmitted by a vessel located The authors did not have access to the observations of predation attempts by off the coast of California. The sonar Navy’s classified data (in the Note killer whales, and need to be tested transducer deployed from the vessel added to the article, Simonis et al. noted further to be validated. transmitted 21–25 kHz sweeps for half that the Navy was working with NMFS Having considered the new of each day (experimental period), and to make the broader classified dataset information, along with information no sound the other half of the day available for further statistical analysis). provided in public comments on the (control period). In contrast to low- Later reporting by the Navy indicated proposed rule, we have determined that frequency active sonar tests conducted there were more than three times as there is no new information that in the same area (Clark et al., 1999; many sonar days in the Marianas during substantively affects our analysis of Tyack and Clark, 1998), no overt the designated time period than Simonis potential impacts on marine mammals behavioral responses or deflections were et al. (2020) reported. Primarily for this and their habitat that appeared in the observed in field or visual data. reason, the Navy tasked the Center for proposed rule, all of which remains However, statistical analysis of the Naval Analysis (CNA) with repeating applicable and valid for our assessment tracking data indicated that during the statistical examination of Simonis et of the effects of the Navy’s activities experimental periods at received levels al. using the full classified sonar record, during the seven-year period of this of approximately 148 dB re: 1 mPa2 (134 including ship movement information rule. dB re: 1 mPa2 s) and less than 2 km from to document the precise times and the transmitting vessel, gray whales locations of Navy sonar use throughout Estimated Take of Marine Mammals deflected their migration paths inshore the time period of consideration (2007– from the vessel. The authors indicate 2019). This section indicates the number of that these data suggest the functional The results of the Simonis et al. takes that NMFS is authorizing, which hearing sensitivity of gray whales (2020) paper and the CNA analysis both is based on the amount of take that extends to at least 21 kHz. These suggest (the latter to a notably lesser NMFS anticipates could occur or the findings agree with the predicted degree) that it is more probable than not maximum amount that is reasonably mysticete hearing curve and BRFs used that there was some form of non-random likely to occur, depending on the type in the analysis to estimate take by Level relationship between sonar days and of take and the methods used to A harassment (PTS) and Level B strandings in the Marianas during this estimate it, as described in detail below. harassment (behavioral response) for period of time; however, the results of NMFS coordinated closely with the this rule (see the Technical Report the Navy analysis (using the full dataset) Navy in the development of their Criteria and Thresholds for U.S. Navy allow, statistically, that the strandings incidental take application, and agrees Acoustic and Explosive Effects Analysis and sonar use may not be related. that the methods the Navy has put forth (Phase III)). Varghese et al. (2020) analyzed group described herein to estimate take In February 2020, a study (Simonis et vocal periods from Cuvier’s beaked (including the model, thresholds, and al., 2020) was published titled ‘‘Co- whales during density estimates), and the resulting occurrence of beaked whale strandings activity recorded in the Southern numbers are based on the best available and naval sonar in the Mariana Islands, California Antisubmarine Warfare science and appropriate for Western Pacific.’’ In summary, the Range, and failed to find any clear authorization. Nonetheless, since authors compiled the publicly available evidence of behavioral response due to publication of the proposed rule, the information regarding Navy training the echosounder survey. The whales did Navy has adjusted their planned activity exercises from 2006–2019 (from press not leave the range or cease foraging. by reducing the number of times Mine releases, etc.), as well as the passive De Soto et al. (2020) hypothesized Countermeasure and Neutralization acoustic monitoring data indicating that the high degree of vocal synchrony testing could occur over the seven-year sonar use that they collected at two in beaked whales during their deep authorization. This change in action specific locations on HARP recorders foraging dives, coupled with their silent, resulted in decreases in estimated take over a shorter amount of time, and low-angled ascents, have evolved as an over seven years for the following compared it to the dates of beaked anti-predator response to killer whales. species: fin whale, sei whale, minke whale strandings. Using this data, they Since killer whales do not dive deep whale, humpback whale, gray whale, reported that six of the 10 Cuvier’s when foraging and so may be waiting at northern right whale dolphin, Pacific beaked whales, from four of eight the surface for animals to finish a dive, white-sided dolphin, Risso’s dolphin, events, stranded during or within six these authors speculated that by diving Kogia whales, Dall’s porpoise, harbor days of a naval ASW exercise using in spatial and vocal cohesion with all porpoise, California sea lion, Steller sea sonar. In a Note to the article, the members of their group, and by lion, harbor seal, and northern elephant authors acknowledged additional surfacing silently and up to a kilometer seal. These changes also resulted in a information provided by the Navy while away from where they were vocally reduction in HF4 sonar hours associated the article was in press that one of the active during the dive, they minimize with Mine Countermeasure and

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72378 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Neutralization testing; however, this present together in the NWTT Study identify Level B harassment by reduction is not shown quantitatively. Area and during the specified activities. behavioral disturbance (referred to as Takes are predominantly in the form The number of incidences of strandings ‘‘behavioral harassment thresholds’’) of harassment, but a small number of resulting from exposure to active sonar have been refined to better consider the mortalities are also possible. For a are few worldwide, there are no major best available science (e.g., military readiness activity, the MMPA training exercises utilizing multiple- incorporating both received level and defines ‘‘harassment’’ as (i) Any act that hull-mounted sonar in the NWTT Study distance), they also still have some injures or has the significant potential to Area, the overall amount of active sonar built-in conservative factors to address injure a marine mammal or marine use is low relative to other Navy Study the challenge noted. For example, while mammal stock in the wild (Level A Areas, and there have not been any duration of observed responses in the Harassment); or (ii) Any act that documented mass strandings of any data are now considered in the disturbs or is likely to disturb a marine cetacean species in the NWTT Study thresholds, some of the responses that mammal or marine mammal stock in the Area. Accordingly, mortality is not are informing take thresholds are of a wild by causing disruption of natural anticipated or authorized. very short duration, such that it is behavioral patterns, including, but not Generally speaking, for acoustic possible some of these responses might limited to, migration, surfacing, nursing, impacts NMFS estimates the amount not always rise to the level of disrupting breeding, feeding, or sheltering, to a and type of harassment by considering: behavior patterns to a point where they point where such behavioral patterns (1) Acoustic thresholds above which are abandoned or significantly altered. are abandoned or significantly altered NMFS believes the best available We describe the application of this (Level B Harassment). science indicates marine mammals will Level B harassment threshold as Authorized takes will primarily be in be taken by behavioral disturbance (in identifying the maximum number of the form of Level B harassment, as use this case, as defined in the military of the acoustic and explosive sources readiness definition of Level B instances in which marine mammals (i.e., sonar and explosives) is more harassment included above) or incur could be reasonably expected to likely to result in behavioral disturbance some degree of temporary or permanent experience a disruption in behavior (rising to the level of a take as described hearing impairment; (2) the area or patterns to a point where they are above) or temporary threshold shift volume of water that will be ensonified abandoned or significantly altered. In (TTS) for marine mammals than other above these levels in a day or event; (3) summary, we believe these thresholds forms of take. There is also the potential the density or occurrence of marine are the most appropriate method for for Level A harassment, however, in the mammals within these ensonified areas; predicting Level B harassment by form of auditory injury, to result from and (4) the number of days of activities behavioral disturbance given the best exposure to the sound sources utilized or events. Below, we describe these available science and the associated in training and testing activities. No components in more detail and present uncertainty. Level A harassment from tissue damage the take estimates. Hearing Impairment (TTS/PTS) and is anticipated or authorized. Lastly, no Tissue Damage and Mortality more than three serious injuries or Acoustic Thresholds mortalities total (over the seven-year Using the best available science, NMFS’ Acoustic Technical Guidance period) of large whales could potentially NMFS, in coordination with the Navy, (NMFS, 2018) identifies dual criteria to occur through vessel collisions. has established acoustic thresholds that assess auditory injury (Level A Although we analyze the impacts of identify the most appropriate received harassment) to five different marine these potential serious injuries or level of underwater sound above which mammal groups (based on hearing mortalities that are authorized, the marine mammals exposed to these sensitivity) as a result of exposure to planned mitigation and monitoring sound sources could be reasonably noise from two different types of measures are expected to minimize the expected to experience a disruption in sources (impulsive or non-impulsive). likelihood (i.e., further lower the behavior patterns to a point where they The Acoustic Technical Guidance also already low probability) that ship strike are abandoned or significantly altered, identifies criteria to predict TTS, which (and the associated serious injury or or to incur TTS (equated to Level B is not considered injury and falls into mortality) would occur. harassment) or PTS of some degree the Level B harassment category. The The Navy has not requested, and (equated to Level A harassment). Navy’s planned activity includes the use NMFS does not anticipate or authorize, Thresholds have also been developed to of non-impulsive (sonar) and impulsive incidental take by mortality of beaked identify the pressure levels above which (explosives) sources. whales or any other species as a result animals may incur non-auditory injury of sonar use. As discussed in the from exposure to pressure waves from These thresholds (Tables 10 and 11) proposed rule, there are a few cases explosive detonation. were developed by compiling and where active naval sonar (in the United Despite the quickly evolving science, synthesizing the best available science States or, largely, elsewhere) has either there are still challenges in quantifying and soliciting input multiple times from potentially contributed to or been more expected behavioral responses that both the public and peer reviewers. The definitively causally linked with marine qualify as take by Level B harassment, references, analysis, and methodology mammal mass strandings. There are a especially where the goal is to use one used in the development of the suite of factors that have been associated or two predictable indicators (e.g., thresholds are described in the Acoustic with these specific cases of strandings received level and distance) to predict Technical Guidance, which may be (steep bathymetry, multiple hull- responses that are also driven by accessed at: https:// mounted platforms using sonar additional factors that cannot be easily www.fisheries.noaa.gov/national/ simultaneously, constricted channels, incorporated into the thresholds (e.g., marine-mammal-protection/marine- strong surface ducts, etc.) that are not context). So, while the thresholds that mammal-acoustic-technical-guidance.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72379

TABLE 10—ACOUSTIC THRESHOLDS IDENTIFYING THE ONSET OF TTS AND PTS FOR NON-IMPULSIVE SOUND SOURCES BY FUNCTIONAL HEARING GROUPS

Non-impulsive Functional hearing group TTS threshold SEL PTS threshold SEL (weighted) (weighted)

Low-Frequency Cetaceans ...... 179 199 Mid-Frequency Cetaceans ...... 178 198 High-Frequency Cetaceans ...... 153 173 Phocid Pinnipeds (Underwater) ...... 181 201 Otarid Pinnipeds (Underwater) ...... 199 219 Note: SEL thresholds in dB re: 1 μPa2s.

Based on the best available science, thresholds indicated in Table 11 to (impulsive) and other impulsive sound the Navy (in coordination with NMFS) predict the onset of TTS, PTS, tissue sources. used the acoustic and pressure damage, and mortality for explosives

TABLE 11—ONSET OF TTS, PTS, TISSUE DAMAGE, AND MORTALITY THRESHOLDS FOR MARINE MAMMALS FOR EXPLOSIVES

Functional hearing Mean onset slight Mean onset Mean onset Species Onset TTS 1 Onset PTS slight lung group GI tract injury injury mortality

Low-frequency All mysticetes ...... 168 dB SEL 183 dB SEL 237 dB Peak SPL Equation 1 ...... Equation 2. cetaceans. (weighted)or 213 (weighted)or 219 dB Peak SPL. dB Peak SPL. Mid-frequency Most delphinids, 170 dB 185 dB SEL 237 dB Peak SPL cetaceans. medium and SEL(weighted) or (weighted)or 230 large toothed 224 dB Peak dB Peak SPL. whales. SPL. High-frequency Porpoises and 140 dB SEL 155 dB SEL 237 dB Peak SPL cetaceans. Kogia spp.. (weighted)or 196 (weighted) or dB Peak SPL. 202 dB Peak SPL. Phocidae ...... Harbor seal, Ha- 170 dB SEL 185 dB SEL 237 dB Peak SPL waiian monk (weighted)or 212 (weighted)or 218 seal, Northern dB Peak SPL. dB Peak SPL. elephant seal. Otariidae ...... California sea lion, 188 dB SEL 203 dB SEL 237 dB Peak SPL Guadalupe fur (weighted) or (weighted) or seal, Northern 226 dB Peak 232 dB Peak fur seal. SPL. SPL.

1 1 1 1 Notes: (1) Equation 1: 47.5M ⁄3 (1+[DRm/10.1]) ⁄6 Pa-sec (2) Equation 2: 103M ⁄3 (1+[DRm/10.1]) ⁄6 Pa-sec (3) M = mass of the animals in kg (4) DRm = depth of the receiver (animal) in meters (5) SPL = sound pressure level. 1 Peak thresholds are unweighted.

The criteria used to assess the onset proposed rule under the Potential daylight hours to improve the of TTS and PTS due to exposure to Effects of Specified Activities on Marine sightability of marine mammals and sonars (non-impulsive, see Table 10 Mammals and Their Habitat section— thereby improve mitigation above) are discussed further in the Acoustically Mediated Bubble Growth effectiveness. Observing for marine Navy’s rulemaking/LOA application and other Pressure-related Injury and mammals during the explosive activities (see Hearing Loss from Sonar and Other the additional discussion in this final will include visual and passive acoustic Transducers in Chapter 6, Section rule and is therefore not considered detection methods (when they are 6.4.2.1, Methods for Analyzing Impacts further in this analysis. available and part of the activity) before from Sonars and Other Transducers). The mitigation measures associated the activity begins, in order to cover the Refer to the Criteria and Thresholds for with explosives are expected to be mitigation zones that can range from U.S. Navy Acoustic and Explosive effective in preventing tissue damage to 500 yd (457 m) to 2,500 yd (2,286 m) Effects Analysis (Phase III) report (U.S. any potentially affected species, and no depending on the source (e.g., explosive Department of the Navy, 2017c) for species are anticipated to incur tissue sonobuoy, explosive torpedo, explosive detailed information on how the criteria damage during the period of this rule. bombs; see Tables 38–44). and thresholds were derived. Tables 30 Specifically, the Navy will implement Level B Harassment by Behavioral indicates the range to effects for tissue mitigation measures (described in the Disturbance damage for different explosive types. Mitigation Measures section) during Non-auditory injury (i.e., other than explosive activities, including delaying Though significantly driven by PTS) and mortality from sonar and other detonations when a marine mammal is received level, the onset of Level B transducers is not reasonably likely to observed in the mitigation zone. Nearly harassment by behavioral disturbance result for the reasons explained in the all explosive events will occur during from anthropogenic noise exposure is

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72380 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

also informed to varying degrees by being applied. It is not necessary or significantly altered such that it other factors related to the source (e.g., possible to revise and update the criteria qualifies as harassment), but have erred frequency, predictability, duty cycle), and risk functions every time a new on the cautious side where uncertainty the environment (e.g., bathymetry), and paper is published. The Navy and exists (e.g., counting these lower the receiving animals (hearing, NMFS consider new information as it duration reactions as take), which likely motivation, experience, demography, becomes available for updates to the results in some degree of overestimation behavioral context) and can be difficult criteria in the future, when the next of Level B harassment by behavioral to predict (Ellison et al., 2011; Southall round of updated criteria will be disturbance. We consider application of et al., 2007). Based on what the developed. Thus far, no new these behavioral harassment thresholds, available science indicates and the information has been published or therefore, as identifying the maximum practical need to use thresholds based otherwise conveyed that would number of instances in which marine on a factor, or factors, that are both fundamentally change the assessment of mammals could be reasonably expected predictable and measurable for most impacts or conclusions of the 2020 to experience a disruption in behavior activities, NMFS uses generalized NWTT FSEIS/OEIS or this rule. patterns to a point where they are acoustic thresholds based primarily on As discussed above, marine mammal abandoned or significantly altered (i.e., received level (and distance in some responses to sound (some of which are Level B harassment). Because this is the cases) to estimate the onset of Level B considered disturbances that qualify as most appropriate method for estimating harassment by behavioral disturbance. a take) are highly variable and context Level B harassment given the best specific, i.e., they are affected by available science and uncertainty on the Sonar differences in acoustic conditions; topic, it is these numbers of Level B As noted above, the Navy coordinated differences between species and harassment by behavioral disturbance with NMFS to develop, and propose for populations; differences in gender, age, that are analyzed in the Analysis and use in this rule, thresholds specific to reproductive status, or social behavior; Negligible Impact Determination section their military readiness activities and other prior experience of the and are authorized. utilizing active sonar that identify at individuals. This means that there is In the Navy’s acoustic impact what received level and distance Level support for considering alternative analyses during Phase II (the previous B harassment by behavioral disturbance approaches for estimating Level B phase of Navy testing and training, would be expected to result. These harassment by behavioral disturbance. 2015–2020; see also Navy’s Criteria and thresholds are referred to as ‘‘behavioral Although the statutory definition of Thresholds for U.S. Navy Acoustic and harassment thresholds’’ throughout the Level B harassment for military Explosive Effects Analysis Technical rest of the rule. These behavioral readiness activities means that a natural Report, 2012), the likelihood of Level B harassment thresholds consist of BRFs behavioral pattern of a marine mammal harassment by behavioral disturbance in and associated cutoff distances, and are is significantly altered or abandoned, response to sonar and other transducers also referred to, together, as ‘‘the the current state of science for was based on a probabilistic function criteria.’’ These criteria are used to determining those thresholds is (BRF), that related the likelihood (i.e., estimate the number of animals that somewhat unsettled. probability) of a behavioral response (at may exhibit a behavioral response that In its analysis of impacts associated the level of a Level B harassment) to the qualifies as a take when exposed to with sonar acoustic sources (which was received SPL. The BRF was used to sonar and other transducers. The way coordinated with NMFS), the Navy used estimate the percentage of an exposed the criteria were derived is discussed in an updated conservative approach that population that is likely to exhibit Level detail in the Criteria and Thresholds for likely overestimates the number of takes B harassment due to altered behaviors U.S. Navy Acoustic and Explosive by Level B harassment due to behavioral or behavioral disturbance at a given Effects Analysis (Phase III) report (U.S. disturbance and response. Many of the received SPL. This BRF relied on the Department of the Navy, 2017c). behavioral responses identified using assumption that sound poses a Developing these behavioral harassment the Navy’s quantitative analysis are negligible risk to marine mammals if criteria involved multiple steps. All most likely to be of moderate severity as they are exposed to SPL below a certain peer-reviewed published behavioral described in the Southall et al. (2007) ‘‘basement’’ value. Above the basement response studies conducted both in the behavioral response severity scale. exposure SPL, the probability of a field and on captive animals were These ‘‘moderate’’ severity responses response increased with increasing SPL. examined in order to understand the were considered significant if they were Two BRFs were used in Navy acoustic breadth of behavioral responses of sustained for the duration of the impact analyses: BRF1 for mysticetes marine mammals to sonar and other exposure or longer. Within the Navy’s and BRF2 for other species. BRFs were transducers. NMFS has carefully quantitative analysis, many reactions not used for beaked whales during reviewed the Navy’s criteria, i.e., BRFs are predicted from exposure to sound Phase II analyses. Instead, a step and cutoff distances for these species, that may exceed an animal’s threshold function at an SPL of 140 dB re: 1 mPa and agrees that they are the best for Level B harassment by behavioral was used for beaked whales as the available science and the appropriate disturbance for only a single exposure (a threshold to predict Level B harassment method to use at this time for few seconds) to several minutes, and it by behavioral disturbance. determining impacts to marine is likely that some of the resulting Developing the criteria for Level B mammals from sonar and other estimated behavioral responses that are harassment by behavioral disturbance transducers and for calculating take and counted as Level B harassment would for Phase III (the current phase of Navy to support the determinations made in not constitute significant alteration or training and testing activities) involved this rule. The Navy and NMFS will abandonment of the natural behavioral multiple steps: all available behavioral continue to evaluate the information as patterns. The Navy and NMFS have response studies conducted both in the new science becomes available. The used the best available science to field and on captive animals were criteria have been rigorously vetted address the challenging differentiation examined to understand the breadth of within the Navy community, among between significant and non-significant behavioral responses of marine scientists during expert elicitation, and behavioral reactions (i.e., whether the mammals to sonar and other transducers then reviewed by the public before behavior has been abandoned or (see also Navy’s Criteria and Thresholds

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72381

for U.S. Navy Acoustic and Explosive Dose Response Functions (referred to as 6.4.2.1 (Methods for Analyzing Impacts Effects Analysis (Phase III) Technical the BRFs) that were developed for from Sonars and other Transducers) of Report, 2017). Six behavioral response odontocetes, pinnipeds, mysticetes, and the Navy’s rulemaking/LOA application field studies with observations of 14 beaked whales predict the probability of was used to predict the probability of a different marine mammal species a behavioral response qualifying as potential significant behavioral reactions to sonar or sonar-like signals Level B harassment given exposure to response. For training and testing events and 6 captive animal behavioral studies certain received levels of sound. These that contain multiple platforms or with observations of 8 different species BRFs are then used in combination with tactical sonar sources that exceed 215 reactions to sonar or sonar-like signals the cutoff distances described below to dB re: 1 mPa at 1 m, this cutoff distance were used to provide a robust data set estimate the number of takes by Level B is substantially increased (i.e., doubled) for the derivation of the Navy’s Phase III harassment. from values derived from the literature. The Navy used cutoff distances marine mammal behavioral response The use of multiple platforms and beyond which the potential of criteria. All behavioral response intense sound sources are factors that significant behavioral responses (and research that has been published since therefore Level B harassment) is probably increase responsiveness in the derivation of the Navy’s Phase III considered to be unlikely (see Table 12 marine mammals overall (however, we criteria (c.a. December 2016) has been below). This was determined by note that helicopter dipping sonars were examined and is consistent with the examining all available published field considered in the intense sound source current BRFs. Marine mammal species observations of behavioral reactions to group, despite lower source levels, were placed into behavioral criteria sonar or sonar-like signals that included because of data indicating that marine groups based on their known or the distance between the sound source mammals are sometimes more presumed behavioral sensitivities to and the marine mammal. The longest responsive to the less predictable sound. In most cases these divisions distance, rounded up to the nearest employment of this source). There are were driven by taxonomic 5-km increment, was chosen as the currently few behavioral observations classifications (e.g., mysticetes, cutoff distance for each behavioral under these circumstances; therefore, pinnipeds). The data from the criteria group (i.e. odontocetes, the Navy conservatively predicted behavioral studies were analyzed by mysticetes, pinnipeds, and beaked significant behavioral responses that looking for significant responses, or lack whales). For animals within the cutoff will rise to Level B harassment at farther thereof, for each experimental session. distance, a BRF based on a received SPL ranges as shown in Table 12, versus less The resulting four Bayesian Biphasic as presented in Chapter 6, Section intense events.

TABLE 12—CUTOFF DISTANCES FOR MODERATE SOURCE LEVEL, SINGLE PLATFORM TRAINING AND TESTING EVENTS AND FOR ALL OTHER EVENTS WITH MULTIPLE PLATFORMS OR SONAR WITH SOURCE LEVELS AT OR EXCEEDING 215 dB RE: 1 μPa AT 1 m

Moderate SL/ High SL/multi- single platform platform cutoff Criteria group cutoff distance distance (km) (km)

Odontocetes ...... 10 20 Pinnipeds ...... 5 10 Mysticetes ...... 10 20 Beaked Whales ...... 25 50 Harbor Porpoise ...... 20 40 Notes: dB re: 1 μPa at 1 m = decibels referenced to 1 micropascal at 1 meter, km = kilometer, SL = source level.

The range to received sound levels in Analyzing Impacts from Sonars and disruption in behavioral patterns to a 6-dB steps from five representative Other Transducers) of the Navy’s point where they are abandoned or sonar bins and the percentage of rulemaking/LOA application for further significantly altered) for low-frequency animals that may be taken by Level B details on the derivation and use of the active sonar (LFAS). As noted harassment at the received level and BRFs, thresholds, and the cutoff previously, NMFS carefully reviewed, distance indicated under each BRF are distances to identify takes by Level B and contributed to, the Navy’s shown in Tables 13 through 17. Cells harassment, which were coordinated behavioral harassment thresholds (i.e., are shaded if the mean range value for with NMFS. Table 13 illustrates the the BRFs and the cutoff distances) for the specified received level exceeds the maximum likely percentage of exposed the species, and agrees that these distance cutoff range for a particular individuals taken at the indicated methods represent the best available hearing group and therefore are not received level and associated range (in science at this time for determining included in the estimated take. See which marine mammals would be impacts to marine mammals from sonar Chapter 6, Section 6.4.2.1 (Methods for reasonably expected to experience a and other transducers.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72382 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 13—RANGES TO ESTIMATED LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR SONAR BIN LF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Average range (m) Probability of behavioral response for sonar bin LF4 Received level with minimum and (dB re: 1 μPa) maximum values in Odontocete Mysticete Pinniped Beaked whale Harbor porpoise parentheses (%) (%) (%) (%) (%)

196 ...... 1 (0–1) 100 100 100 100 100 190 ...... 3 (0–3) 100 98 99 100 100 184 ...... 6 (0–8) 99 88 98 100 100 178 ...... 13 (0–30) 97 59 92 100 100 172 ...... 29 (0–230) 91 30 76 99 100 166 ...... 64 (0–100) 78 20 48 97 100 160 ...... 148 (0–310) 58 18 27 93 100 154 ...... 366 (230–850) 40 17 18 83 100 148 ...... 854 (300–2,025) 29 16 16 66 100 142 ...... 1,774 (300–5,025) 25 13 15 45 100 136 ...... 3,168 (300–8,525) 23 9 15 28 100 130 ...... 5,167 (300–30,525) 20 5 15 18 100 124 ...... 7,554 (300–93,775) 17 2 14 14 100 118 ...... 10,033 (300– 12 1 13 12 0 100,000*) 112 ...... 12,700 (300– 6 0 9 11 0 100,000*) 106 ...... 15,697 (300– 3 0 5 11 0 100,000*) 100 ...... 17,846 (300– 1 0 2 8 0 100,000*) Notes: dB re: 1 μPa = decibels referenced to 1 micropascal, LF = low-frequency * Indicates maximum range to which acoustic model was run, a distance of approximately 100 km from the sound source. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group. Any impacts within the cutoff range for a criteria group are included in the estimated impacts. Cut-off ranges in this table are for activities with high source levels and/or multiple platforms (see Table 12 for behavioral cut-off distances).

Tables 14 through 16 identify the received level and associated range for maximum likely percentage of exposed mid-frequency active sonar (MFAS). individuals taken at the indicated

TABLE 14—RANGES TO ESTIMATED LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR SONAR BIN MF1 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Average range (m) Probability of Level B harassment by behavioral disturbance for Sonar bin MF1 Received level with minimum and (dB re: 1 μPa) maximum values in Odontocete Mysticete Pinniped Beaked whale Harbor porpoise parentheses (%) (%) (%) (%) (%)

196 ...... 112 (80–170) 100 100 100 100 100 190 ...... 262 (80–410) 100 98 99 100 100 184 ...... 547 (80–1,025) 99 88 98 100 100 178 ...... 1,210 (80–3,775) 97 59 92 100 100 172 ...... 2,508 (80–7,525) 91 30 76 99 100 166 ...... 4,164 (80–16,025) 78 20 48 97 100 160 ...... 6,583 (80–28,775) 58 18 27 93 100 154 ...... 10,410 (80–47,025) 40 17 18 83 100 148 ...... 16,507 (80–63,525) 29 16 16 66 100 142 ...... 21,111 (80–94,025) 25 13 15 45 100 136 ...... 26,182 (80– 23 9 15 28 100 100,000 *) 130 ...... 31,842 (80– 20 5 15 18 100 100,000 *) 124 ...... 34,195 (80– 17 2 14 14 100 100,000 *) 118 ...... 36,557 (80– 12 1 13 12 0 100,000 *) 112 ...... 38,166 (80– 6 0 9 11 0 100,000 *) 106 ...... 39,571 (80– 3 0 5 11 0 100,000 *) 100 ...... 41,303 (80– 1 0 2 8 0 100,000 *) Notes: dB re: 1 μPa = decibels referenced to 1 micropascal, MF = mid-frequency.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72383

* Indicates maximum range to which acoustic model was run, a distance of approximately 100 km from the sound source. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group. Any impacts within the cutoff range for a criteria group are included in the estimated impacts. Cut-off ranges in this table are for activities with high source levels and/or multiple platforms (see Table 12 for behavioral cut-off distances).

TABLE 15—RANGES TO ESTIMATED TAKES BY LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR SONAR BIN MF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Average range (m) Probability of Level B harassment by behavioral disturbance for Sonar bin MF4 Received level with minimum and (dB re: 1 μPa) maximum values in parentheses Odontocete Mysticete Pinniped Beaked whale Harbor porpoise

196 ...... 8 (0–8) 100 100 100 100 100 190 ...... 16 (0–20) 100 98 99 100 100 184 ...... 34 (0–40) 99 88 98 100 100 178 ...... 68 (0–85) 97 59 92 100 100 172 ...... 155 (120–300) 91 30 76 99 100 166 ...... 501 (290–975) 78 20 48 97 100 160 ...... 1,061 (480–2,275) 58 18 27 93 100 154 ...... 1,882 (525–4,025) 40 17 18 83 100 148 ...... 2,885 (525–7,525) 29 16 16 66 100 142 ...... 4,425 (525–14,275) 25 13 15 45 100 136 ...... 9,902 (525–48,275) 23 9 15 28 100 130 ...... 20,234 (525– 20 5 15 18 100 56,025) 124 ...... 23,684 (525– 17 2 14 14 100 91,775) 118 ...... 28,727 (525– 12 1 13 12 0 100,000 *) 112 ...... 37,817 (525– 6 0 9 11 0 100,000 *) 106 ...... 42,513 (525– 3 0 5 11 0 100,000 *) 100 ...... 43,367 (525– 1 0 2 8 0 100,000 *) Notes: dB re: 1 μPa = decibels referenced to 1 micropascal, MF = mid-frequency. * Indicates maximum range to which acoustic model was run, a distance of approximately 100 km from the sound source. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group. Any impacts within the cutoff range for a criteria group are included in the estimated impacts. Cut-off ranges in this table are for activities with high source levels and/or multiple platforms (see Table 12 for behavioral cut-off distances).

TABLE 16—RANGES TO ESTIMATED LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR SONAR BIN MF5 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Average range (m) Probability of Level B harassment by behavioral disturbance for Sonar bin MF5 Received level with minimum and (dB re: 1 μPa) maximum values in parentheses Odontocete Mysticete Pinniped Beaked whale Harbor porpoise

196 ...... 0 (0–0) 100 100 100 100 100 190 ...... 1 (0–3) 100 98 99 100 100 184 ...... 5 (0–7) 99 88 98 100 100 178 ...... 14 (0–18) 97 59 92 100 100 172 ...... 29 (0–35) 91 30 76 99 100 166 ...... 58 (0–70) 78 20 48 97 100 160 ...... 127 (0–280) 58 18 27 93 100 154 ...... 375 (0–1,000) 40 17 18 83 100 148 ...... 799 (490–1,775) 29 16 16 66 100 142 ...... 1,677 (600–3,525) 25 13 15 45 100 136 ...... 2,877 (675–7,275) 23 9 15 28 100 130 ...... 4,512 (700–12,775) 20 5 15 18 100 124 ...... 6,133 (700–19,275) 17 2 14 14 100 118 ...... 7,880 (700–26,275) 12 1 13 12 0 112 ...... 9,673 (700–33,525) 6 0 9 11 0 106 ...... 12,095 (700– 3 0 5 11 0 45,275) 100 ...... 18,664 (700– 1 0 2 8 0 48,775) Notes: dB re: 1 μPa = decibels referenced to 1 micropascal, MF = mid-frequency. * Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group. Any impacts within the cutoff range for a criteria group are included in the estimated impacts. Cut-off ranges in this table are for activities with high source levels and/or multiple platforms (see Table 12 for behavioral cut-off distances).

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72384 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 17—RANGES TO ESTIMATED TAKE BY LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR SONAR BIN HF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Average range (m) Probability of Level B harassment by behavioral disturbance for Sonar bin HF4 Received level with minimum and (dB re: 1 μPa) maximum values in parentheses Odontocete Mysticete Pinniped Beaked whale Harbor porpoise

196 ...... 4 (0–7) 100 100 100 100 100 190 ...... 10 (0–16) 100 98 99 100 100 184 ...... 20 (0–40) 99 88 98 100 100 178 ...... 42 (0–85) 97 59 92 100 100 172 ...... 87 (0–270) 91 30 76 99 100 166 ...... 177 (0–650) 78 20 48 97 100 160 ...... 338 (25–825) 58 18 27 93 100 154 ...... 577 (55–1,275) 40 17 18 83 100 148 ...... 846 (60–1,775) 29 16 16 66 100 142 ...... 1,177 (60–2,275) 25 13 15 45 100 136 ...... 1,508 (60–3,025) 23 9 15 28 100 130 ...... 1,860 (60–3,525) 20 5 15 18 100 124 ...... 2,202 (60–4,275) 17 2 14 14 100 118 ...... 2,536 (60–4,775) 12 1 13 12 0 112 ...... 2,850 (60–5,275) 6 0 9 11 0 106 ...... 3,166 (60–6,025) 3 0 5 11 0 100 ...... 3,470 (60–6,775) 1 0 2 8 0 Notes: dB re: 1 μPa = decibels referenced to 1 micropascal, MF = mid-frequency.

Explosives the TTS thresholds for explosives) for III) report (U.S. Department of the Navy, events that contain multiple impulses 2017c) for detailed information on how Phase III explosive thresholds for from explosives underwater. This was the criteria and thresholds were derived. Level B harassment by behavioral the same approach as taken in Phase II NMFS continues to concur that this disturbance for marine mammals is the for explosive analysis. See the Criteria approach represents the best available hearing groups’ TTS threshold minus 5 and Thresholds for U.S. Navy Acoustic science for determining impacts to dB (see Table 18 below and Table 11 for and Explosive Effects Analysis (Phase marine mammals from explosives.

TABLE 18—THRESHOLDS FOR LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR EXPLOSIVES FOR MARINE MAMMALS

Medium Functional hearing group SEL (weighted)

Underwater ...... Low-frequency cetaceans ...... 163 Underwater ...... Mid-frequency cetaceans ...... 165 Underwater ...... High-frequency cetaceans ...... 135 Underwater ...... Phocids ...... 165 Underwater ...... Otariids ...... 183 Note: Weighted SEL thresholds in dB re: 1 μPa2s underwater.

Navy’s Acoustic Effects Model when computing the sound level the possibility that marine mammals received by the animats. The model would avoid continued or repeated The Navy’s Acoustic Effects Model conducts a statistical analysis based on sound exposures. For more information calculates sound energy propagation multiple model runs to compute the on this process, see the discussion in from sonar and other transducers and estimated effects on animals. The the Take Requests subsection below. explosives during naval activities and number of animats that exceed the Many explosions from ordnance such as the sound received by animat thresholds for effects is tallied to bombs and missiles actually occur upon dosimeters. Animat dosimeters are provide an estimate of the number of impact with above-water targets. virtual representations of marine marine mammals that could be affected. However, for this analysis, sources such mammals distributed in the area around Assumptions in the Navy model as these were modeled as exploding the modeled naval activity and each intentionally err on the side of underwater, which overestimates the dosimeter records its individual sound overestimation when there are amount of explosive and acoustic ‘‘dose.’’ The model bases the unknowns. Naval activities are modeled energy entering the water. distribution of animats over the NWTT as though they would occur regardless The model estimates the impacts Study Area on the density values in the of proximity to marine mammals, caused by individual training and Navy Marine Species Density Database meaning that no mitigation is testing exercises. During any individual and distributes animats in the water considered (i.e., no power down or shut modeled event, impacts to individual column proportional to the known time down modeled) and without any animats are considered over 24-hour that species spend at varying depths. avoidance of the activity by the animal. periods. The animats do not represent The model accounts for The final step of the quantitative actual animals, but rather they represent environmental variability of sound analysis of acoustic effects is to consider a distribution of animals based on propagation in both distance and depth the implementation of mitigation and density and abundance data, which

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72385

allows for a statistical analysis of the using the Navy Acoustic Effects Model. additional details on the derivation and number of instances that marine Marine mammals exposed within these use of the BRFs, thresholds, and the mammals may be exposed to sound ranges for the shown duration are cutoff distances that are used to identify levels resulting in an effect. Therefore, predicted to experience the associated Level B harassment by behavioral the model estimates the number of effect. Range to effects is important disturbance. NMFS has reviewed the instances in which an effect threshold information in not only predicting range distance to effect data provided by was exceeded over the course of a year, acoustic impacts, but also in verifying the Navy and concurs with the analysis. but does not estimate the number of the accuracy of model results against individual marine mammals that may be real-world situations and determining The ranges to PTS for five impacted over a year (i.e., some marine adequate mitigation ranges to avoid representative sonar systems for an mammals could be impacted several higher level effects, especially exposure of 30 seconds is shown in times, while others would not physiological effects to marine Table 19 relative to the marine experience any impact). A detailed mammals. mammal’s functional hearing group. explanation of the Navy’s Acoustic This period (30 seconds) was chosen Sonar Effects Model is provided in the based on examining the maximum technical report Quantifying Acoustic The ranges to received sound levels in amount of time a marine mammal Impacts on Marine Mammals and Sea 6–dB steps from five representative would realistically be exposed to levels Turtles: Methods and Analytical sonar bins and the percentage of the that could cause the onset of PTS based Approach for Phase III Training and total number of animals that may on platform (e.g., ship) speed and a Testing (U.S. Department of the Navy, exhibit a significant behavioral response nominal animal swim speed of 2018). (and therefore Level B harassment) approximately 1.5 m per second. The under each BRF are shown in Tables 13 ranges provided in the table include the Range to Effects through 17 above, respectively. See average range to PTS, as well as the The following section provides range Chapter 6, Section 6.4.2.1 (Methods for to effects for sonar and other active Analyzing Impacts from Sonars and range from the minimum to the acoustic sources as well as explosives to Other Transducers) of the Navy’s maximum distance at which PTS is specific acoustic thresholds determined rulemaking/LOA application for possible for each hearing group. TABLE 19—RANGE TO PERMANENT THRESHOLD SHIFT (Meters) FOR FIVE REPRESENTATIVE SONAR SYSTEMS OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate range in meters for pts from 30 second exposure 1 Hearing group Sonar bin HF4 Sonar bin LF4 Sonar bin MF1 Sonar bin MF4 Sonar bin MF5

High-frequency cetaceans ...... 38 (22–85) 0 (0–0) 195 (80–330) 30 (30–40) 9 (8–11) Low-frequency cetaceans ...... 0 (0–0) 2 (1–3) 67 (60–110) 15 (15–17) 0 (0–0) Mid-frequency cetaceans ...... 1 (0–3) 0 (0–0) 16 (16–19) 3 (3–3) 0 (0–0) Otariids ...... 0 (0–0) 0 (0–0) 6 (6–6) 0 (0–0) 0 (0–0) Phocids ...... 0 (0–0) 0 (0–0) 46 (45–75) 11 (11–12) 0 (0–0) 1 PTS ranges extend from the sonar or other active acoustic sound source to the indicated distance. The average range to PTS is provided as well as the range from the estimated minimum to the maximum range to PTS in parentheses.

The tables below illustrate the range from five representative sonar systems to TTS for 1, 30, 60, and 120 seconds (see Tables 20 through 24). TABLE 20—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN LF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate TTS ranges (meters) 1 Hearing group Sonar bin LF4 1 second 30 seconds 60 seconds 120 seconds

High-frequency cetaceans ...... 0 (0–0) 0 (0–0) 0 (0–0) 1 (0–1) Low-frequency cetaceans ...... 22 (19–30) 32 (25–230) 41 (30–230) 61 (45–100) Mid-frequency cetaceans ...... 0 (0–0) 0 (0–0) 0 (0–0) 0 (0–0) Otariids ...... 0 (0–0) 0 (0–0) 0 (0–0) 0 (0–0) Phocids ...... 2 (1–3) 4 (3–4) 4 (4–5) 7 (6–9) 1 Ranges to TTS represent the model predictions in different areas and seasons within the NWTT Study Area. The zone in which animals are expected to suffer TTS extends from onset-PTS to the distance indicated. The average range to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parentheses.

TABLE 21—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN MF1 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate TTS ranges (meters) 1 Hearing group Sonar bin MF1 1 second 30 seconds 60 seconds 120 seconds

High-frequency cetaceans ...... 2,466 (80–6,275) 2,466 (80–6,275) 3,140 (80–10,275) 3,740 (80–13,525) Low-frequency cetaceans ...... 1,054 (80–2,775) 1,054 (80–2,775) 1,480 (80–4,525) 1,888 (80–5,275) Mid-frequency cetaceans ...... 225 (80–380) 225 (80–380) 331 (80–525) 411 (80–700)

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72386 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 21—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN MF1 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA—Continued

Approximate TTS ranges (meters) 1 Hearing group Sonar bin MF1 1 second 30 seconds 60 seconds 120 seconds

Otariids ...... 67 (60–110) 67 (60–110) 111 (80–170) 143 (80–250) Phocids ...... 768 (80–2,025) 768 (80–2,025) 1,145 (80–3,275) 1,388 (80–3,775) 1 Ranges to TTS represent the model predictions in different areas and seasons within the NWTT Study Area. The zone in which animals are expected to suffer TTS extends from onset-PTS to the distance indicated. The average range to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parentheses. Note: Ranges for 1 second and 30 second periods are identical for Bin MF1 because this system nominally pings every 50 seconds; therefore, these periods en- compass only a single ping.

TABLE 22—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN MF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate TTS ranges (meters)1 Hearing group Sonar bin MF4 1 second 30 seconds 60 seconds 120 seconds

High-frequency cetaceans ...... 279 (220–600) 647 (420–1,275) 878 (500–1,525) 1,205 (525–2,275) Low-frequency cetaceans ...... 87 (85–110) 176 (130–320) 265 (190–575) 477 (290–975) Mid-frequency cetaceans ...... 22 (22–25) 35 (35–45) 50 (45–55) 71 (70–85) Otariids ...... 8 (8–8) 15 (15–17) 19 (19–23) 25 (25–30) Phocids ...... 66 (65–80) 116 (110–200) 173 (150–300) 303 (240–675) 1 Ranges to TTS represent the model predictions in different areas and seasons within the NWTT Study Area. The zone in which animals are expected to suffer TTS extends from onset-PTS to the distance indicated. The average range to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parentheses.

TABLE 23—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN MF5 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate TTS ranges (meters) 1 Hearing group Sonar nin MF5 1 second 30 seconds 60 seconds 120 seconds

High-frequency cetaceans ...... 115 (110–180) 115 (110–180) 174 (150–390) 292 (210–825) Low-frequency cetaceans ...... 11 (10–13) 11 (10–13) 17 (16–19) 24 (23–25) Mid-frequency cetaceans ...... 6 (0–9) 6 (0–9) 12 (11–14) 18 (17–22) Otariids ...... 0 (0–0) 0 (0–0) 0 (0–0) 0 (0–0) Phocids ...... 9 (8–11) 9 (8–11) 15 (14–17) 22 (21–25) 1 Ranges to TTS represent the model predictions in different areas and seasons within the NWTT Study Area. The zone in which animals are expected to suffer TTS extends from onset-PTS to the distance indicated. The average range to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parentheses.

TABLE 24—RANGES TO TEMPORARY THRESHOLD SHIFT (Meters) FOR SONAR BIN HF4 OVER A REPRESENTATIVE RANGE OF ENVIRONMENTS WITHIN THE NWTT STUDY AREA

Approximate TTS ranges (meters) 1

Hearing group Sonar bin HF4 1 second 30 seconds 60 seconds 120 seconds

High-frequency cetaceans ...... 236 (60–675) 387 (60–875) 503 (60–1,025) 637 (60–1,275) Low-frequency cetaceans ...... 2 (0–3) 3 (1–6) 5 (3–8) 8 (5–12) Mid-frequency cetaceans ...... 12 (7–20) 21 (12–40) 29 (17–60) 43 (24–90) Otariids ...... 0 (0–0) 0 (0–0) 0 (0–0) 1 (0–1) Phocids ...... 3 (0–5) 6 (4–10) 9 (5–15) 14 (8–25) 1 Ranges to TTS represent the model predictions in different areas and seasons within the NWTT Study Area. The zone in which animals are expected to suffer TTS extends from onset-PTS to the distance indicated. The average range to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parentheses.

Explosives application and the Criteria and the Navy’s rulemaking/LOA The following section provides the Thresholds for U.S. Navy Acoustic and application). The range to effects are range (distance) over which specific Explosive Effects Analysis (Phase III) shown for a range of explosive bins, physiological or behavioral effects are report (U.S. Department of the Navy, from E1 (up to 0.25 lb net explosive expected to occur based on the 2017c)) and the explosive propagation weight) to E11 (greater than 500 lb to explosive criteria (see Chapter 6, calculations from the Navy Acoustic 650 lb net explosive weight) (Tables 25 Section 6.5.2 (Impacts from Explosives) Effects Model (see Chapter 6, Section through 31). Ranges are determined by of the Navy’s rulemaking/LOA 6.5.2.2 (Impact Ranges for Explosives) of modeling the distance that noise from

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72387

an explosion would need to propagate range to the onset of an impact based on Turtles: Methods and Analytical to reach exposure level thresholds SEL thresholds. Ranges to non-auditory Approach for Phase III Training and specific to a hearing group that would injury and mortality are shown in Testing (U.S. Navy, 2018). cause behavioral response (to the degree Tables 30 and 31, respectively. NMFS Table 25 shows the minimum, of Level B harassment), TTS, PTS, and has reviewed the range distance to effect average, and maximum ranges to onset non-auditory injury. Ranges are data provided by the Navy and concurs of auditory and likely behavioral effects provided for a representative source with the analysis. For additional depth and cluster size for each bin. For information on how ranges to impacts that rise to the level of Level B events with multiple explosions, sound from explosions were estimated, see the harassment for high-frequency cetaceans from successive explosions can be technical report Quantifying Acoustic based on the developed thresholds. expected to accumulate and increase the Impacts on Marine Mammals and Sea

TABLE 25—SEL-BASED RANGES (METERS) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR HIGH-FREQUENCY CETACEANS

Range to effects for explosives: high-frequency cetaceans 1 Source depth Bin (m) Cluster size PTS TTS Behavioral disturbance

E1 ...... 0.1 1 361 (350–370) 1,108 (1,000–1,275) 1,515 (1,025–2,025) 18 1,002 (925–1,025) 2,404 (1,275–4,025) 3,053 (1,275–5,025) E2 ...... 0.1 1 439 (420–450) 1,280 (1,025–1,775) 1,729 (1,025–2,525) 5 826 (775–875) 1,953 (1,275–3,025) 2,560(1,275–4,275) E3 ...... 10 1 1,647(160–3,525) 2,942 (160–10,275) 3,232 (160–12,275) 12 3,140 (160–9,525) 3,804 (160–17,525) 3,944 (160–21,775) 18.25 1 684 (550–1,000) 2,583 (1,025–5,025) 4,217 (1,525–7,525) 12 1,774 (1,025–3,775) 5,643 (1,775–10,025) 7,220 (2,025–13,275) E4 ...... 10 2 1,390 (950–3,025) 5,250 (2,275–8,275) 7,004 (2,775–11,275) 30 2 1,437 (925–2,775) 4,481 (1,525–7,775) 5,872 (2,775–10,525) 70 2 1,304 (925–2,275) 3,845 (2,525–7,775) 5,272 (3,525–9,525) 90 2 1,534 (900–2,525) 5,115 (2,525–7,525) 6,840 (3,275–10,275) E5 ...... 0.1 1 940 (850–1,025) 2,159 (1,275–3,275) 2,762 (1,275–4,275) 20 1,930 (1,275–2,775) 4,281 (1,775–6,525) 5,176 (2,025–7,775) E7 ...... 10 1 2,536 (1,275–3,775) 6,817 (2,775–11,025) 8,963 (3,525–14,275) 30 1 1,916 (1,025–4,275) 5,784 (2,775–10,525) 7,346 (2,775–12,025) E8 ...... 45.75 1 1,938 (1,275–4,025) 4,919 (1,775–11,275) 5,965 (2,025–15,525) E10 ...... 0.1 1 1,829 (1,025–2,775) 4,166 (1,775–6,025) 5,023 (2,025–7,525) E11 ...... 91.4 1 3,245 (2,025–6,775) 6,459 (2,525–15,275) 7,632 (2,775–19,025) 200 1 3,745 (3,025–5,025) 7,116 (4,275–11,275) 8,727 (5,025–15,025) 1 Average distance (m) to PTS, TTS, and behavioral disturbance thresholds are depicted above the minimum and maximum distances which are in parentheses. Values depict the range produced by SEL hearing threshold criteria levels.

Table 26 shows the minimum, of auditory and likely behavioral effects harassment for low-frequency cetaceans average, and maximum ranges to onset that rise to the level of Level B based on the developed thresholds.

TABLE 26—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR LOW-FREQUENCY CETACEANS

Range to effects for explosives: low-frequency cetaceans 1 Source depth Bin (m) Cluster size PTS TTS Behavioral disturbance

E1 ...... 0.1 1 52 (50–55) 221 (120–250) 354 (160–420) 18 177 (110–200) 656 (230–875) 836 (280–1,025) E2 ...... 0.1 1 66 (55–70) 276 (140–320) 432 (180–525) ...... 5 128 (90–140) 512 (200–650) 735 (250–975) E3 ...... 10 1 330 (160–550) 1,583 (160–4,025) 2,085 (160–7,525) ...... 12 1,177 (160–2,775) 2,546 (160–11,775) 2,954 (160–17,025) 18.25 ...... 1 198 (180–220) 1,019 (490–2,275) 1,715 (625–4,025) ...... 12 646 (390–1,025) 3,723 (800–9,025) 6,399 (1,025–46,525) E4 ...... 10 2 462 (400–600) 3,743 (2,025–7,025) 6,292 (2,525–13,275) 30 2 527 (330–950) 3,253 (1,775–4,775) 5,540 (2,275–8,275) 70 2 490 (380–775) 3,026 (1,525–4,775) 5,274 (2,275–7,775) 90 2 401 (360–500) 3,041 (1,275–4,525) 5,399 (1,775–9,275) E5 ...... 0.1 1 174 (100–260) 633 (220–850) 865 (270–1,275) ...... 20 550 (200–700) 1,352 (420–2,275) 2,036 (700–4,275) E7 ...... 10 1 1,375 (875–2,525) 7,724 (3,025–15,025) 11,787 (4,525–25,275) 30 1 1,334 (675–2,025) 7,258 (2,775–11,025) 11,644 (4,525–24,275) E8 ...... 45.75 1 1,227 575–2,525) 3,921 (1,025–17,275) 7,961(1,275–48,525) E10 ...... 0.1 1 546 (200–700) 1,522 (440–5,275) 3,234 (850–30,525) E11 ...... 91.4 1 2,537 (950–5,525) 11,249 (1,775–50,775) 37,926 (6,025–94,775)

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72388 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 26—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR LOW-FREQUENCY CETACEANS—Continued

Range to effects for explosives: low-frequency cetaceans 1 Source depth Bin (m) Cluster size PTS TTS Behavioral disturbance

200 1 2,541 (1,525–4,775) 7,407 (2,275–43,275) 42,916 (6,275–51,275) 1 Average distance (m) to PTS, TTS, and behavioral disturbance thresholds are depicted above the minimum and maximum distances which are in parentheses. Values depict the range produced by SEL hearing threshold criteria levels.

Table 27 shows the minimum, of auditory and likely behavioral effects harassment for mid-frequency cetaceans average, and maximum ranges to onset that rise to the level of Level B based on the developed thresholds.

TABLE 27—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR MID-FREQUENCY CETACEANS

Range to effects for explosives: Mid-frequency cetaceans 1 Source depth Bin (m) Cluster size PTS TTS Behavioral disturbance

E1 ...... 0.1 1 25 (25–25) 118 (110–120) 203 (190–210) ...... 18 96 (90–100) 430 (410–440) 676 (600–700) E2 ...... 0.1 1 30 (30–30) 146 (140–150) 246 (230–250) ...... 5 64 (60–65) 298 (290–300) 493 (470–500) E3 ...... 10 1 61 (50–100) 512 (160–750) 928 (160–2,025) ...... 12 300 (160–625) 1,604 (160–3,525) 2,085 (160–5,525) 18.25 1 40 (35–40) 199 (180–280) 368 (310–800) ...... 12 127 (120–130) 709 (575–1,000) 1,122 (875–2,525) E4 ...... 10 2 73 (70–75) 445 (400–575) 765 (600–1,275) 30 2 71 (65–90) 554 (320–1,025) 850 (525–1,775) 70 2 63 (60–85) 382 (320–675) 815 (525–1,275) 90 2 59 (55–85) 411 (310–900) 870 (525–1,275) E5 ...... 0.1 1 79 (75–80) 360 (350–370) 575 (525–600) 20 295 (280–300) 979 (800–1,275) 1,442 (925–1,775) E7 ...... 10 1 121 (110–130) 742 (575–1,275) 1,272 (875–2,275) 30 1 111 (100–130) 826 (500–1,775) 1,327 (925–2,275) E8 ...... 45.75 1 133 (120–170) 817 (575–1,525) 1,298 (925–2,525) E10 ...... 0.1 1 273 (260–280) 956 (775–1,025) 1,370 (900–1,775) E11 ...... 91.4 1 242 (220–310) 1,547 (1,025–3,025) 2,387 (1,275–4,025) 200 1 209 (200–300) 1,424 (1,025–2,025) 2,354 (1,525–3,775) 1 Average distance (m) to PTS, TTS, and behavioral disturbance thresholds are depicted above the minimum and maximum distances which are in parentheses. Values depict the range produced by SEL hearing threshold criteria levels.

Table 28 shows the minimum, of auditory and likely behavioral effects harassment for otariid pinnipeds based average, and maximum ranges to onset that rise to the level of Level B on the developed thresholds.

TABLE 28—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR OTARIIDS

Range to effects for explosives: Otariids 1 Source depth Range to PTS Range to TTS Range to behavioral Bin (meters) Cluster size (meters) (meters) (meters)

E1 ...... 0.1 1 7 (7–8) 34 (30–35) 58 (55–60) 18 25 (25–25) 124 (120–130) 208 (200–210) E2 ...... 0.1 1 9 (9–10) 43 (40–45) 72 (70–75) 5 19 (19–20) 88 (85–90) 145 (140–150) E3 ...... 10 1 21 (18–25) 135 (120–210) 250 (160–370) 12 82 (75–100) 551 (160–875) 954 (160–2,025) 18.25 1 15 (15–15) 91 (85–95) 155 (150–160) 12 53 (50–55) 293 (260–430) 528 (420–825) E4 ...... 10 2 30 (30–30) 175 (170–180) 312 (300–350) 30 2 25 (25–25) 176 (160–250) 400 (290–750) 70 2 26 (25–35) 148 (140–200) 291 (250–400) 90 2 26 (25–35) 139 (130–190) 271 (250–360) E5 ...... 0.1 1 25 (24–25) 111 (110–120) 188 (180–190) 20 93 (90–95) 421 (390–440) 629 (550–725) E7 ...... 10 1 60 (60–60) 318 (300–360) 575 (500–775)

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72389

TABLE 28—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR OTARIIDS—Continued

Range to effects for explosives: Otariids 1 Source depth Range to PTS Range to TTS Range to behavioral Bin (meters) Cluster size (meters) (meters) (meters)

30 1 53 (50–65) 376 (290–700) 742 (500–1,025) E8 ...... 45.75 1 55 (55–55) 387 (310–750) 763 (525–1,275) E10 ...... 0.1 1 87 (85–90) 397 (370–410) 599 (525–675) E11 ...... 91.4 1 100 (100–100) 775 (550–1,275) 1,531 (900–3,025) 200 1 94 (90–100) 554 (525–700) 1,146 (900–1,525) 1 Average distance (m) to PTS, TTS, and behavioral disturbance thresholds are depicted above the minimum and maximum distances which are in parentheses. Values depict the range produced by SEL hearing threshold criteria levels.

Table 29 shows the minimum, of auditory and likely behavioral effects harassment for phocid pinnipeds based average, and maximum ranges to onset that rise to the level of Level B on the developed thresholds.

TABLE 29—SEL-BASED RANGES (Meters) TO ONSET PTS, ONSET TTS, AND LEVEL B HARASSMENT BY BEHAVIORAL DISTURBANCE FOR PHOCIDS

Range to Effects for Explosives: Phocids 1 Source depth Range to PTS Range to TTS Range to behavioral Bin (meters) Cluster size (meters) (meters) (meters)

E1 ...... 0.1 1 47 (45–50) 219 (210–230) 366 (350–370) 18 171 (160–180) 764 (725–800) 1,088 (1,025–1,275) E2 ...... 0.1 1 59 (55–60) 273 (260–280) 454 (440–460) 5 118 (110–120) 547 (525–550) 881 (825–925) E3 ...... 10 1 185 (160–260) 1,144 (160–2,775) 1,655 (160–4,525) 12 760 (160–1,525) 2,262 (160–8,025) 2,708 (160–12,025) 18.25 1 112 (110–120) 628 (500–950) 1,138 (875–2,525) 12 389 (330–625) 2,248 (1,275–4,275) 4,630 (1,275–8,525) E4 ...... 10 2 226 (220–240) 1,622 (950–3,275) 3,087 (1,775–5,775) 30 2 276 (200–600) 1,451 (1,025–2,275) 2,611 (1,775–4,275) 70 2 201 (180–280) 1,331 (1,025–1,775) 2,403 (1,525–3,525) 90 2 188 (170–270) 1,389 (975–2,025) 2,617 (1,775–3,775) E5 ...... 0.1 1 151 (140–160) 685 (650–700) 1,002 (950–1,025) 20 563 (550–575) 1,838 (1,275–2,275) 2,588 (1,525–3,525) E7 ...... 10 1 405 (370–490) 3,185 (1,775–6,025) 5,314 (2,275–11,025) 30 1 517 (370–875) 2,740 (1,775–4,275) 4,685 (3,025–7,275) E8 ...... 45.75 1 523 (390–1,025) 2,502 (1,525–6,025) 3,879 (2,025–10,275) E10 ...... 0.1 1 522 (500–525) 1,800 (1,275–2,275) 2,470 (1,525–3,275) E11 ...... 91.4 1 1,063 (675–2,275) 5,043 (2,775–10,525) 7,371 (3,275–18,025) 200 1 734 (675–850) 5,266 (3,525–9,025) 7,344 (5,025–12,775) 1 Average distance (m) to PTS, TTS, and behavioral disturbance thresholds are depicted above the minimum and maximum distances which are in parentheses. Values depict the range produced by SEL hearing threshold criteria levels.

Table 30 shows the minimum, explosive weight). Ranges to these water volumes would be expected average, and maximum ranges due to gastrointestinal tract injury typically to receive minor injuries at the outer varying propagation conditions to non- exceed ranges to slight lung injury; ranges, increasing to more substantial auditory injury as a function of animal therefore, the maximum range to effect injuries, and finally mortality as an mass and explosive bin (i.e., net is not mass-dependent. Animals within animal approaches the detonation point.

TABLE 30—RANGES 1 TO 50 PERCENT TO NON-AUDITORY INJURY FOR ALL MARINE MAMMAL HEARING GROUPS

Bin Range to non-auditory injury (meters) 1

E1 ...... 12 (11–13) E2 ...... 16 (15–16) E3 ...... 25 (25–45) E4 ...... 31 (23–50) E5 ...... 40 (40–40) E7 ...... 104 (80–190) E8 ...... 149 (130–210) E10 ...... 153 (100–400)

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72390 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 30—RANGES 1 TO 50 PERCENT TO NON-AUDITORY INJURY FOR ALL MARINE MAMMAL HEARING GROUPS— Continued

Bin Range to non-auditory injury (meters) 1

E11 ...... 419 (350–725) 1 Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses. Note: All ranges to non-auditory injury within this table are driven by gastrointestinal tract injury thresholds regardless of animal mass.

Ranges to mortality, based on animal mass, are shown in Table 31 below.

TABLE 31—RANGES 1 TO 50 PERCENT TO MORTALITY RISK FOR ALL MARINE MAMMAL HEARING GROUPS AS A FUNCTION OF ANIMAL MASS

Range to mortality (meters) for various animal mass intervals (kg) 1 Bin 10 kg 250 kg 1,000 kg 5,000 kg 25,000 kg 72,000 kg

E1 ...... 3 (2–3) 1 (0–3) 0 (0–0) 0 (0–0) 0 (0–0) 0 (0–0) E2 ...... 4 (3–5) 2 (1–3) 1 (0–1) 0 (0–0) 0 (0–0) 0 (0–0) E3 ...... 10 (9–20) 5 (3–20) 2 (1–5) 0 (0–3) 0 (0–1) 0 (0–1) E4 ...... 13 (11–19) 7 (4–13) 3 (2–4) 2 (1–3) 1 (1–1) 1 (0–1) E5 ...... 13 (11–15) 7 (4–11) 3 (3–4) 2 (1–3) 1 (1–1) 1 (0–1) E7 ...... 49 (40–80) 27 (15–60) 13 (10–20) 9 (5–12) 4 (4–6) 3 (2–4) E8 ...... 65 (60–75) 34 (22–55) 17 (14–20) 11 (9–13) 6 (5–6) 5 (4–5) E10 ...... 43 (40–50) 25 (16–40) 13 (11–16) 9 (7–11) 5 (4–6) 4 (3–4) E11 ...... 185 (90–230) 90 (30–170) 40 (30–50) 28 (23–30) 15 (13–16) 11 (9–13) 1 Average distance (m) to mortality is depicted above the minimum and maximum distances, which are in parentheses.

Marine Mammal Density geographic areas. This is the general places, ship availability, lack of funding, A quantitative analysis of impacts on approach applied in estimating cetacean inclement weather conditions, and high a species or stock requires data on their abundance in NMFS’ SARs. Although sea states prevent the completion of abundance and distribution that may be the single value provides a good average comprehensive year-round surveys. affected by anthropogenic activities in estimate of abundance (total number of Even with surveys that are completed, the potentially impacted area. The most individuals) for a specified area, it does poor conditions may result in lower appropriate metric for this type of not provide information on the species sighting rates for species that would analysis is density, which is the number distribution or concentrations within typically be sighted with greater of animals present per unit area. Marine that area, and it does not estimate frequency under favorable conditions. species density estimation requires a density for other timeframes or seasons Lower sighting rates preclude having an significant amount of effort to both that were not surveyed. More recently, acceptably low uncertainty in the collect and analyze data to produce a spatial habitat modeling developed by density estimates. A high level of reasonable estimate. Unlike surveys for NMFS’ Southwest Fisheries Science uncertainty, indicating a low level of terrestrial wildlife, many marine species Center has been used to estimate confidence in the density estimate, is spend much of their time submerged, cetacean densities (Barlow et al., 2009; typical for species that are rare or and are not easily observed. In order to Becker et al., 2010, 2012a, b, c, 2014, difficult to sight. In areas where survey collect enough sighting data to make 2016, 2017, 2020; Ferguson et al., 2006a; data are limited or non-existent, known reasonable density estimates, multiple Forney et al., 2012, 2015; Redfern et al., or inferred associations between marine observations are required, often in areas 2006). These models estimate cetacean habitat features and the likely presence that are not easily accessible (e.g., far density as a continuous function of of specific species are sometimes used offshore). Ideally, marine mammal habitat variables (e.g., sea surface to predict densities in the absence of species sighting data would be collected temperature, seafloor depth, etc.) and actual animal sightings. Consequently, for the specific area and time period thus allow predictions of cetacean there is no single source of density data (e.g., season) of interest and density densities on finer spatial scales than for every area, species, and season estimates derived accordingly. However, traditional line-transect or mark because of the fiscal costs, resources, in many places, poor weather recapture analyses and for areas that and effort involved in providing enough conditions and high sea states prohibit have not been surveyed. Within the survey coverage to sufficiently estimate the completion of comprehensive visual geographic area that was modeled, density. surveys. densities can be predicted wherever To characterize marine species For most cetacean species, abundance these habitat variables can be measured density for large oceanic regions, the is estimated using line-transect surveys or estimated. Navy reviews, critically assesses, and or mark-recapture studies (e.g., Barlow, Ideally, density data would be prioritizes existing density estimates 2010; Barlow and Forney, 2007; available for all species throughout the from multiple sources, requiring the Calambokidis et al., 2008). The result study area year-round, in order to best development of a systematic method for provides one single density estimate estimate the impacts of Navy activities selecting the most appropriate density value for each species across broad on marine species. However, in many estimate for each combination of

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72391

species/stock, area, and season. The Although relative environmental estimates or habitat-based density selection and compilation of the best suitability (RES) models provide models that have been extensively available marine species density data estimates for areas of the oceans that validated to provide the most accurate resulted in the Navy Marine Species have not been surveyed using estimates possible. Density Database (NMSDD). The Navy information on species occurrence and NMFS coordinated with the Navy in vetted all cetacean densities with NMFS inferred habitat associations and have the development of its take estimates prior to use in the Navy’s acoustic been used in past density databases, and concurs that the Navy’s approach analysis for the current NWTT these models were not used in the for density appropriately utilizes the rulemaking process. current quantitative analysis. best available science. Later, in the A variety of density data and density The Navy developed a protocol and Analysis and Negligible Impact models are needed in order to develop database to select the best available data Determination section, we assess how a density database that encompasses the sources based on species, area, and time the estimated take numbers compare to entirety of the NWTT Study Area. (season). The resulting Geographic stock abundance in order to better Because this data is collected using Information System database, used in understand the potential number of different methods with varying amounts the NMSDD, includes seasonal density individuals impacted. of accuracy and uncertainty, the Navy values for every marine mammal species has developed a hierarchy to ensure the present within the NWTT Study Area. Take Estimation most accurate data is used when This database is described in the The 2020 NWTT FSEIS/OEIS available. The U.S. Navy Marine Species Density Technical Report. considered all training and testing Density Database Phase III for the The Navy describes some of the activities planned to occur in the NWTT Northwest Training and Testing Study challenges of interpreting the results of Study Area that have the potential to Area (U.S. Department of the Navy, the quantitative analysis summarized result in the MMPA defined take of 2019), hereafter referred to as the above and described in the Density marine mammals. The Navy determined Density Technical Report, describes Technical Report: ‘‘It is important to that the three stressors below could these models in detail and provides consider that even the best estimate of result in the incidental taking of marine detailed explanations of the models marine species density is really a model mammals. NMFS has reviewed the applied to each species density representation of the values of Navy’s data and analysis and estimate. The list below describes concentration where these animals determined that it is complete and models in order of preference. might occur. Each model is limited to accurate and agrees that the following 1. Spatial density models are the variables and assumptions stressors have the potential to result in preferred and used when available considered by the original data source takes by harassment or serious injury/ because they provide an estimate with provider. No mathematical model mortality of marine mammals from the the least amount of uncertainty by representation of any biological Navy’s planned activities: deriving estimates for divided segments population is perfect, and with regards • Acoustics (sonar and other of the sampling area. These models (see to marine mammal biodiversity, any transducers); Becker et al., 2016; Forney et al., 2015) single model method will not • predict spatial variability of animal completely explain the actual Explosives (explosive shock wave presence as a function of habitat distribution and abundance of marine and sound, assumed to encompass the risk due to fragmentation); and variables (e.g., sea surface temperature, mammal species. It is expected that • seafloor depth, etc.). This model is there would be anomalies in the results Vessel strike. developed for areas, species, and, when that need to be evaluated, with Acoustic and explosive sources have available, specific timeframes (months independent information for each case, the potential to result in incidental takes or seasons) with sufficient survey data; to support if we might accept or reject of marine mammals by harassment and therefore, this model cannot be used for a model or portions of the model (U.S. injury. Vessel strikes have the potential species with low numbers of sightings. Department of the Navy, 2017a).’’ to result in incidental take from injury, 2. Stratified design-based density The Navy’s estimate of abundance serious injury, and/or mortality. estimates use line-transect survey data (based on density estimates used in the The quantitative analysis process with the sampling area divided NWTT Study Area) utilizes NMFS’ used for the 2020 NWTT FSEIS/OEIS (stratified) into sub-regions, and a SARs, except for species with high site and the Navy’s take request in the density is predicted for each sub-region fidelity/smaller home ranges within the rulemaking/LOA application to estimate (see Barlow, 2016; Becker et al., 2016; NWTT Study Area, relative to their potential exposures to marine mammals Bradford et al., 2017; Campbell et al., geographic distribution (e.g., harbor resulting from acoustic and explosive 2014; Jefferson et al., 2014). While seals). For harbor seals in the inland stressors is described above and further geographically stratified density waters, more up-to-date, site specific detailed in the technical report titled estimates provide a better indication of population estimates were available. For Quantifying Acoustic Impacts on a species’ distribution within the study some species, the stock assessment for Marine Mammals and Sea Turtles: area, the uncertainty is typically high a given species may exceed the Navy’s Methods and Analytical Approach for because each sub-region estimate is density prediction because those Phase III Training and Testing (U.S. based on a smaller stratified segment of species’ home range extends beyond the Department of the Navy, 2018). The the overall survey effort. Study Area boundaries. For other Navy Acoustic Effects Model (NAEMO) 3. Design-based density estimations species, the stock assessment abundance brings together scenario simulations of use line-transect survey data from land may be much less than the number of the Navy’s activities, sound propagation and aerial surveys designed to cover a animals in the Navy’s modeling given modeling, and marine mammal specific geographic area (see Carretta et that the NWTT Study Area extends distribution (based on density and al., 2015). These estimates use the same beyond the U.S waters covered by the group size) by species to model and survey data as stratified design-based SAR abundance estimate. The primary quantify the exposure of marine estimates, but are not segmented into source of density estimates are mammals above identified thresholds sub-regions and instead provide one geographically specific survey data and for behavioral harassment, TTS, PTS, estimate for a large surveyed area. either peer-reviewed line-transect non-auditory injury, and mortality.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72392 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

NAEMO estimates acoustic and effects on the affected populations. even with the consideration of explosive effects without taking There are multiple pieces of the Navy mitigation and avoidance, given some of mitigation into account; therefore, the take estimation methods—propagation the more conservative components of model overestimates predicted impacts models, animat movement models, and the methodology (e.g., the thresholds do on marine mammals within mitigation behavioral thresholds, for example. not consider ear recovery between zones. To account for mitigation for NMFS evaluates the acceptability of pulses), we would describe the marine species in the take estimates, the these pieces as they evolve and are used application of these methods as Navy conducts a quantitative in different rules and impact analyses. identifying the maximum number of assessment of mitigation. The Navy Some of the pieces of the Navy’s take instances in which marine mammals conservatively quantifies the manner in estimation process have been used in would be reasonably expected to be which procedural mitigation is expected Navy incidental take rules since 2009 taken through non-auditory injury, PTS, to reduce the risk for model-estimated and have undergone multiple public TTS, or behavioral disturbance. PTS for exposures to sonars and for comment processes; all of them have model-estimated mortality for exposures undergone extensive internal Navy Summary of Estimated Take by to explosives, based on species review, and all of them have undergone Harassment From Training and Testing sightability, observation area, visibility, comprehensive review by NMFS, which Activities and the ability to exercise positive has sometimes resulted in modifications control over the sound source. See the to methods or models. Based on the methods discussed in proposed rule (85 FR 33914; June 2, The Navy uses rigorous review the previous sections and the Navy’s 2020) for a description of the process for processes (verification, validation, and model and quantitative assessment of assessing the effectiveness of procedural accreditation processes; peer and public mitigation, the Navy provided its take mitigation measures, along with the review) to ensure the data and estimate and request for authorization of process for assessing the potential for methodology it uses represent the best takes incidental to the use of acoustic animal avoidance. Where the analysis available science. For instance, the and explosive sources for training and indicates mitigation would effectively NAEMO model is the result of a NMFS- testing activities both annually (based reduce risk, the model-estimated PTS led Center for Independent Experts (CIE) on the maximum number of activities takes are considered reduced to TTS review of the components used in that could occur per 12-month period) and the model-estimated mortalities are earlier models. The acoustic and over the seven-year period covered considered reduced to injury. For a propagation component of the NAEMO by the Navy’s rulemaking/LOA complete explanation of the process for model (CASS/GRAB) is accredited by application. The following species/ assessing the effects of mitigation, see the Oceanographic and Atmospheric stocks present in the NWTT Study Area the Navy’s rulemaking/LOA application Master Library (OAML), and many of were modeled by the Navy and (Section 6: Take Estimates for Marine the environmental variables used in the estimated to have 0 takes of any type Mammals, and Section 11: Mitigation NAEMO model come from approved from any activity source: Eastern North Measures) and the technical report titled OAML databases and are based on in- Pacific Northern Resident stock of killer Quantifying Acoustic Impacts on situ data collection. The animal density whales, Western North Pacific stock of Marine Mammals and Sea Turtles: components of the NAEMO model are gray whales, and California stock of Methods and Analytical Approach for base products of the NMSDD, which harbor seals. NMFS has reviewed the Phase III Training and Testing (U.S. includes animal density components Navy’s data, methodology, and analysis Department of the Navy, 2018). The that have been validated and reviewed and determined that it is complete and extent to which the mitigation areas by a variety of scientists from NMFS accurate. NMFS agrees that the reduce impacts on the affected species Science Centers and academic estimates for incidental takes by is addressed qualitatively separately in institutions. Several components of the harassment from all sources requested the Analysis and Negligible Impact model, for example the Duke University for authorization are the maximum Determination section. habitat-based density models, have been number of instances in which marine NMFS coordinated with the Navy in published in peer reviewed literature. mammals are reasonably expected to be the development of this quantitative Others like the Atlantic Marine taken. method to address the effects of Assessment Program for Protected procedural mitigation on acoustic and Species, which was conducted by For training and testing activities, explosive exposures and takes, and NMFS Science Centers, have undergone Tables 32 and 33 summarize the Navy’s NMFS independently reviewed and quality assurance and quality control take estimate and request and include concurs with the Navy that it is (QA/QC) processes. Finally, the the maximum amount of Level A appropriate to incorporate the NAEMO model simulation components harassment and Level B harassment for quantitative assessment of mitigation underwent QA/QC review and the seven-year period that NMFS into the take estimates based on the best validation for model parts such as the concurs is reasonably expected to occur available science. scenario builder, acoustic builder, by species and stock. Note that take by As a general matter, NMFS does not scenario simulator, etc., conducted by Level B harassment includes both prescribe the methods for estimating qualified statisticians and modelers to behavioral disturbance and TTS. Tables take for any applicant, but we review ensure accuracy. Other models and 6–14–41 (sonar and other transducers) and ensure that applicants use the best methodologies have gone through and 6–56–71 (explosives) in Section 6 of available science, and methodologies similar review processes. the Navy’s rulemaking/LOA application that are logical and technically sound. In summary, we believe the Navy’s provide the comparative amounts of Applicants may use different methods methods, including the underlying TTS and behavioral disturbance for each of calculating take (especially when NAEMO modeling and the method for species and stock annually, noting that using models) and still get to a result incorporating mitigation and avoidance, if a modeled marine mammal was that is representative of the best are the most appropriate methods for ‘‘taken’’ through exposure to both TTS available science and that allows for a predicting non-auditory injury, PTS, and behavioral disturbance in the rigorous and accurate evaluation of the TTS, and behavioral disturbance. But model, it was recorded as a TTS.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72393

TABLE 32—ANNUAL AND SEVEN-YEAR TOTAL SPECIES-SPECIFIC TAKE ESTIMATES AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE SOUND SOURCE EFFECTS FOR ALL TRAINING ACTIVITIES IN THE NWTT STUDY AREA

Annual 7-Year total 1 Species Stock Level B Level A Level B Level A

Order Cetacea Suborder Mysticeti (baleen whales)

Family Balaenopteridae (rorquals): Blue whale * ...... Eastern North Pacific ...... 2 0 11 0 Fin whale * ...... Northeast Pacific ...... 0 0 0 0 California, Oregon, Washington ...... 54 0 377 0 Sei whale * ...... Eastern North Pacific ...... 30 0 206 0 Minke whale ...... Alaska ...... 0 0 0 0 California, Oregon, Washington ...... 110 0 767 0 Humpback whale ...... Central North Pacific ...... 5 0 31 0 California, Oregon, Washington † ...... 4 0 2 28 0 Family Eschrichtiidae (gray whale): Gray whale ...... Eastern North Pacific ...... 2 0 10 0 Western North Pacific † ...... 0 0 0 0

Suborder Odontoceti (toothed whales)

Family Delphinidae (dolphins): Bottlenose dolphin ...... California, Oregon, & Washington, Offshore .... 5 0 33 0 Killer whale ...... Alaska Resident ...... 0 0 0 0 Eastern North Pacific Offshore ...... 68 0 2 476 0 Northern Resident ...... 0 0 0 0 West Coast Transient ...... 78 0 538 0 Southern Resident † ...... 3 0 15 0 Northern right whale dolphin ...... California, Oregon, Washington ...... 7,941 0 55,493 0 Pacific white-sided dolphin ...... North Pacific ...... 0 0 0 0 California, Oregon, Washington ...... 5,284 0 36,788 0 Risso’s dolphin ...... California, Oregon, Washington ...... 2,286 0 15,972 0 Short-beaked common dolphin ...... California, Oregon, Washington ...... 1,165 0 8,124 0 Short-finned pilot whale ...... California, Oregon, Washington ...... 57 0 398 0 Striped dolphin ...... California, Oregon, Washington ...... 439 0 3,059 0 Family Kogiidae (Kogia spp.): Kogia whales ...... California, Oregon, Washington ...... 3 382 0 3 2,665 0 Family Phocoenidae (porpoises): Dall’s porpoise ...... Alaska ...... 0 0 0 0 California, Oregon, Washington ...... 13,299 8 92,793 48 Harbor porpoise ...... Southeast Alaska ...... 0 0 0 0 Northern Oregon/Washington Coast ...... 299 0 2,092 0 Northern California/Southern Oregon ...... 21 0 145 0 Washington Inland Waters ...... 12,315 43 79,934 291 Family Physeteridae (sperm whale): Sperm whale * ...... California, Oregon, Washington ...... 512 0 3,574 0 Family Ziphiidae (beaked whales): Baird’s beaked whale ...... California, Oregon, Washington ...... 556 0 3,875 0 Cuvier’s beaked whale ...... California, Oregon, Washington ...... 1,462 0 10,209 0 Mesoplodon spp ...... California, Oregon, Washington ...... 652 0 4,549 0

Suborder Pinnipedia

Family Otariidae (sea lions and fur seals): California sea lion ...... U.S. Stock ...... 3,624 0 25,243 0 Steller sea lion ...... Eastern U.S...... 108 0 743 0 Guadalupe fur seal * ...... Mexico ...... 608 0 4,247 0 Northern fur seal ...... Eastern Pacific ...... 2,134 0 14,911 0 California ...... 43 0 300 0 Family Phocidae (true seals): Harbor seal ...... Southeast Alaska—Clarence Strait ...... 0 0 0 0 Oregon/Washington Coastal ...... 0 0 0 0 Washington Northern Inland Waters ...... 669 5 3,938 35 Hood Canal ...... 2,686 1 18,662 5 Southern Puget Sound ...... 1,090 1 6,657 6 Northern elephant seal ...... California ...... 1,909 1 13,324 1 * ESA-listed species (all stocks) within the NWTT Study Area. † Only designated populations are ESA-listed. 1 The seven-year totals may be less than the annual totals times seven, given that not all activities occur every year, some activities occur multiple times within a year, and some activities only occur a few times over the course of a seven-year period. 2 The proposed rule incorrectly indicated 32 takes by Level B harassment of the CA/OR/WA stock of humpback whale, and 478 takes by Level B harassment of the Eastern North Pacific Offshore stock of killer whale over the seven-year period of the rule. Given that the annual take estimate is calculated based on the maximum amount of activity that could occur within a one-year period, the seven-year take estimate would, at most, be seven times the annual take estimate. (However, we note that in some cases, the seven-year take estimate is less than seven times the annual take estimate, as some activities have restrictions on the number of activi- ties over the seven-year period.) 3 For Kogia Spp., the proposed rule indicated 381 annual takes by Level B harassment, and 2,664 takes by Level B harassment over the seven-year period of the rule. These updated take estimates reflect clarifications due to rounding errors in the proposed rule.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72394 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 33—ANNUAL AND SEVEN-YEAR TOTAL SPECIES-SPECIFIC TAKE ESTIMATES AUTHORIZED FROM ACOUSTIC AND EXPLOSIVE SOUND SOURCE EFFECTS FOR ALL TESTING ACTIVITIES IN THE NWTT STUDY AREA

Annual 7-Year total Species Stock Level B Level A Level B Level A

Order Cetacea Suborder Mysticeti (baleen whales)

Family Balaenopteridae (rorquals): Blue whale * ...... Eastern North Pacific ...... 8 0 38 0 Fin whale * ...... Northeast Pacific ...... 2 0 10 0 California, Oregon, Washington ...... 81 0 1 389 0 Sei whale * ...... Eastern North Pacific ...... 53 0 1 257 0 Minke whale ...... Alaska ...... 2 0 9 0 California, Oregon, Washington ...... 192 0 1 913 0 Humpback whale * ...... Central North Pacific ...... 110 0 1 577 0 California, Oregon, Washington ...... 89 0 1 456 0 Family Eschrichtiidae (gray whale): Gray whale ...... Eastern North Pacific ...... 41 0 1 181 0

Western North Pacific† ...... 0 0 0 0

Suborder Odontoceti (toothed whales)

Family Delphinidae (dolphins): Bottlenose dolphin ...... California, Oregon, Washington, Offshore ...... 3 0 14 0 Killer whale ...... Alaska Resident ...... 34 0 202 0 Eastern North Pacific Offshore ...... 89 0 412 0 Northern Resident ...... 0 0 0 0 West Coast Transient ...... 154 0 831 0 Southern Resident † ...... 48 0 228 0 Northern right whale dolphin ...... California, Oregon, Washington ...... 13,759 1 1 66,456 7 Pacific white-sided dolphin ...... North Pacific ...... 101 0 603 0 California, Oregon, Washington ...... 15,681 1 1 76,978 17 Risso’s dolphin ...... California, Oregon, Washington ...... 4,069 0 1 19,636 0 Short-beaked common dolphin ...... California, Oregon, Washington ...... 984 0 3,442 0 Short-finned pilot whale ...... California, Oregon, Washington ...... 31 0 126 0 Striped dolphin ...... California, Oregon, Washington ...... 344 0 1,294 0 Family Kogiidae (Kogia spp.): Kogia whales ...... California, Oregon, Washington ...... 2 500 2 2 122,375 9 Family Phocoenidae (porpoises): Dall’s porpoise ...... Alaska ...... 638 0 3,711 0 California, Oregon, Washington ...... 20,398 90 1 98,241 1 456 Harbor porpoise ...... Southeast Alaska ...... 130 0 794 0 Northern Oregon/Washington Coast ...... 52,113 103 1 264,999 1 359 Northern California/Southern Oregon ...... 2,018 86 1 11,525 1 261 Washington Inland Waters ...... 17,228 137 115,770 930 Family Physeteridae (sperm whale): Sperm whale * ...... California, Oregon, Washington ...... 327 0 1,443 0 Family Ziphiidae (beaked whales): Baird’s beaked whale ...... California, Oregon, Washington ...... 420 0 1,738 0 Cuvier’s beaked whale ...... California, Oregon, Washington ...... 1,077 0 4,979 0 Mesoplodon spp ...... California, Oregon, Washington ...... 470 0 2,172 0

Suborder Pinnipedia

Family Otariidae (sea lions and fur seals): California sea lion ...... U.S. Stock ...... 20,474 1 1 93,901 1 4 Steller sea lion ...... Eastern U.S...... 2,130 0 1 10,744 0 Guadalupe fur seal * ...... Mexico ...... 887 0 4,022 0 Northern fur seal ...... Eastern Pacific ...... 9,458 0 45,813 0 California ...... 189 0 920 0 Family Phocidae (true seals): Harbor seal ...... Southeast Alaska—Clarence Strait ...... 2,352 0 13,384 0 Oregon/Washington Coastal ...... 1,180 2 1 6,182 1 6 Washington Northern Inland Waters ...... 578 0 3,227 0 Hood Canal ...... 58,784 0 396,883 0 Southern Puget Sound ...... 5,748 3 39,511 1 21 Northern elephant seal ...... California ...... 2,935 3 1 14,110 1 17 * ESA-listed species (all stocks) within the NWTT Study Area. † Only designated populations are ESA-listed. 1 The take estimate for these species decreased since the proposed rule, as the Navy has adjusted their planned activity by reducing the number of times Mine Countermeasure and Neutralization testing could occur over the seven-year period of the rule. 2 For Kogia Spp., the proposed rule indicated 501 annual takes by Level B harassment, 1 annual take by Level A harassment, and 2,376 takes by Level B harass- ment over the seven-year period of the rule. These updated take estimates reflect clarifications due to rounding errors in the proposed rule.

Estimated Take From Vessel Strikes by resulted in serious injury and occasional century, and the worldwide number of Serious Injury or Mortality fatalities to cetaceans (Berman- collisions appears to have increased Kowalewski et al., 2010; Calambokidis, steadily during recent decades (Laist et Vessel strikes from commercial, 2012; Douglas et al., 2008; Laggner al., 2001; Ritter 2012). recreational, and military vessels are 2009; Lammers et al., 2003). Records of Numerous studies of interactions known to affect large whales and have collisions date back to the early 17th between surface vessels and marine

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72395

mammals have demonstrated that free- severity of a strike. For example, possible, accidental result of Navy ranging marine mammals often, but not Vanderlaan and Taggart (2007) found vessel movement within the NWTT always (e.g., McKenna et al., 2015), that between vessel speeds of 8.6 and 15 Study Area or while in transit. engage in avoidance behavior when knots, the probability that a vessel strike Data from the ports of Vancouver, surface vessels move toward them. It is is lethal increases from 0.21 to 0.79. British Columbia; Seattle, Washington; not clear whether these responses are Large whales also do not have to be at and Tacoma, Washington indicate there caused by the physical presence of a the water’s surface to be struck. Silber were more than 7,000 commercial vessel surface vessel, the underwater noise et al. (2010) found when a whale is transits in 2017 associated with visits to generated by the vessel, or an below the surface (about one to two just those ports (The Northwest Seaport interaction between the two (Amaral times the vessel draft), under certain Alliance, 2018; Vancouver Fraser Port and Carlson, 2005; Au and Green, 2000; circumstances (vessel speed and Authority). This number of vessel Bain et al., 2006; Bauer 1986; Bejder et location of the whale relative to the transits does not account for other al., 1999; Bejder and Lusseau, 2008; ship’s centerline), there is likely to be a vessel traffic in the Strait of Juan de Bejder et al., 2009; Bryant et al., 1984; pronounced propeller suction effect. Fuca or Puget Sound including Corkeron, 1995; Erbe, 2002; Fe´lix, 2001; This suction effect may draw the whale commercial ferries, tourist vessels, or Goodwin and Cotton, 2004; Greig et al., into the hull of the ship, increasing the recreational vessels. Additional 2020; Guilpin et al., 2020; Keen et al., probability of propeller strikes. commercial traffic in the NWTT Study 2019; Lemon et al., 2006; Lusseau, 2003; There are some key differences Area also includes vessels transiting Lusseau, 2006; Magalhaes et al., 2002; between the operation of military and offshore along the Pacific coast, Nowacek et al., 2001; Redfern et al., non-military vessels, which make the bypassing ports in Canada and 2020; Richter et al., 2003; Scheidat et likelihood of a military vessel striking a Washington; traffic associated with al., 2004; Simmonds, 2005; Szesciorka whale lower than some other vessels ports to the south along the coast of et al., 2019; Watkins, 1986; Williams et (e.g., commercial merchant vessels). Key Washington and in Oregon; and vessel al., 2002; Wursig et al., 1998). Several differences include: traffic in Southeast Alaska (Nuka • Many military ships have their authors suggest that the noise generated Research & Planning Group, 2012). Navy bridges positioned closer to the bow, during motion is probably an important vessel traffic accounts for only a small offering better visibility ahead of the factor (Blane and Jaakson, 1994; Evans portion of vessel activities in the NWTT ship (compared to a commercial et al., 1992; Evans et al., 1994). Water Study Area. The Navy has, in total, the disturbance may also be a factor. These merchant vessel); • There are often aircraft associated following homeported operational studies suggest that the behavioral vessels: 2 aircraft carriers, 6 destroyers, responses of marine mammals to surface with the training or testing activity (which can serve as Lookouts), which 14 submarines, and 22 smaller security vessels are similar to their behavioral vessels with a combined annual total of responses to predators. Avoidance can more readily detect cetaceans in the vicinity of a vessel or ahead of a vessel’s 241 Navy vessel transits (see Appendix behavior is expected to be even stronger A (Navy Activities Descriptions) of the in the subset of instances during which present course before crew on the vessel would be able to detect them; 2020 FSEIS/OEIS for descriptions of the the Navy is conducting training or number of vessels used during the testing activities using active sonar or • Military ships are generally more various types of Navy’s planned explosives. maneuverable than commercial activities). Activities involving military The marine mammals most vulnerable merchant vessels, and if cetaceans are to vessel strikes are those that spend spotted in the path of the ship, could be vessel movement would be widely extended periods of time at the surface capable of changing course more dispersed throughout the NWTT Study in order to restore oxygen levels within quickly; Area. their tissues after deep dives (e.g., sperm • The crew size on military vessels is Navy vessel strike records have been whales). In addition, some baleen generally larger than merchant ships, kept since 1995, and since 1995 there whales seem generally unresponsive to allowing for stationing more trained have been two recorded strikes of vessel sound, making them more Lookouts on the bridge. At all times whales by Navy vessels (or vessels being susceptible to vessel collisions when Navy vessels are underway, operated on behalf of the Navy) in the (Nowacek et al., 2004). These species trained Lookouts and bridge navigation NWTT Study Area. Neither strike was are primarily large, slow moving teams are used to detect objects on the associated with training or testing whales. surface of the water ahead of the ship, activities. The first strike occurred in Some researchers have suggested the including cetaceans. Additional 2012 by a Navy destroyer off the relative risk of a vessel strike can be personnel, beyond those already southern coast of Oregon while in assessed as a function of animal density stationed on the bridge and on transit to San Diego. The whale was and the magnitude of vessel traffic (e.g., navigation teams, are positioned as suspected to be a minke whale due to Fonnesbeck et al., 2008; Vanderlaan et Lookouts during some training events; the appearance and size (25 ft, dark with al., 2008). Differences among vessel and white belly), however the Navy could types also influence the probability of a • When submerged, submarines are not rule out the possibility that it was vessel strike. The ability of any ship to generally slow moving (to avoid a juvenile fin whale. The whale was detect a marine mammal and avoid a detection) and therefore marine observed swimming after the strike and collision depends on a variety of factors, mammals at depth with a submarine are no blood or injury was sighted. The including environmental conditions, likely able to avoid collision with the second strike occurred in 2016 by a U.S. ship design, size, speed, and ability and submarine. When a submarine is Coast Guard cutter operating on behalf number of personnel observing, as well transiting on the surface, there are of the Navy as part of a Maritime as the behavior of the animal. Vessel Lookouts serving the same function as Security Operation escort vessel in the speed, size, and mass are all important they do on surface ships. Strait of Juan de Fuca. The whale was factors in determining if injury or death Vessel strike to marine mammals is positively identified as a humpback of a marine mammal is likely due to a not associated with any specific training whale. It was observed for 10 minutes vessel strike. For large vessels, speed or testing activity but is rather an post-collision and appeared normal at and angle of approach can influence the extremely limited and sporadic, but the surface. There was no blood

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72396 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

observed in the water and the whale mitigation measures during the seven expected to be struck by Navy vessels. subsequently swam away. years of this rule. The probability Based on this information and the In order to account for the potential analysis concluded that there was a 26 Navy’s assessment, NMFS concludes risk from vessel movement within the percent chance that zero whales would that there is the potential for incidental NWTT Study Area within the seven- be struck by Navy vessels over the take by vessel strike of large whales only year period in particular, the Navy seven-year period, and a 35, 24, 11, and (i.e., no dolphins, small whales, requested incidental takes based on 4 percent chance that one, two, three, or porpoises, or pinnipeds) over the course probabilities derived from a Poisson four whales, respectively, would be of the seven-year regulations from distribution using ship strike data struck over the seven-year period (with training and testing activities. between 2009–2018 in the NWTT Study a 74 percent chance total that at least Taking into account the available Area (the time period from when one whale would be struck over the information regarding how many of any current mitigation measures to reduce seven-year period). Therefore, the Navy given stock could be struck and the likelihood of vessel strikes were estimates, and NMFS agrees, that there therefore should be authorized for take, instituted until the Navy conducted the is some probability (an 11 percent NMFS considered three factors in analysis for the Navy’s application), as chance) that the Navy could strike, and addition to those considered in the well as historical at-sea days in the take by serious injury or mortality, up Navy’s request: (1)The relative NWTT Study Area from 2009–2018 and to three large whales incidental to likelihood of hitting one stock versus estimated potential at-sea days for the training and testing activities within the another based on available strike data period from 2020 to 2027 covered by the NWTT Study Area over the course of from all vessel types as denoted in the requested regulations. This distribution the seven years. SARs, (2) whether the Navy has ever predicted the probabilities of a specific Small whales, delphinids, porpoises, definitively struck an individual from a number of strikes (n=0, 1, 2, etc.) over and pinnipeds are not expected to be particular species or stock in the NWTT the period from 2020 to 2027. The struck by Navy vessels. In addition to Study Area, and if so, how many times, analysis for the period of 2020 to 2027 the reasons listed above that make it and (3) whether there are records that an is described in detail in Chapter 6.6 unlikely that the Navy will hit a large individual from a particular species or (Vessel Strike Analysis) of the Navy’s whale (more maneuverable ships, larger stock has been struck by any vessel in rulemaking/LOA application. For the same reasons listed above, crews, etc.), the following are the the NWTT Study Area, and if so, how describing why a Navy vessel strike is additional reasons that vessel strike of many times (based on ship strike comparatively unlikely, it is highly dolphins, small whales, porpoises, and records provided by the NMFS West unlikely that a Navy vessel would strike pinnipeds is considered very unlikely. Coast Region in February 2020). To a whale, dolphin, porpoise, or pinniped Dating back more than 20 years and for address number (1) above, NMFS without detecting it and, accordingly, as long as it has kept records, the Navy compiled information from NMFS’ NMFS is confident that the Navy’s has no records of individuals of these SARs on detected annual rates of large reported strikes are accurate and groups (including Southern Resident whale serious injury or mortality (M/SI) appropriate for use in the analysis. killer whales) being struck by a vessel from vessel collisions (Table 34). The Specifically, Navy ships have multiple as a result of Navy activities and, annual rates of large whale serious Lookouts, including on the forward part further, their smaller size and injury or mortality from vessel of the ship that can visually detect a hit maneuverability make a strike unlikely. collisions from the SARs help inform animal, in the unlikely event ship Also, NMFS has never received any the relative susceptibility of large whale personnel do not feel the strike. Unlike reports from other authorized activities species to vessel strike in NWTT Study the situation for non-Navy ships indicating that these species have been Area as recorded systematically over the engaged in commercial activities, NMFS struck by vessels. Worldwide ship strike last five years (the period used for the and the Navy have no evidence that the records show little evidence of strikes of SARs). However, we note that the SARs Navy has struck a whale and not these groups from the shipping sector present strike data from the stock’s detected it. Navy’s strict internal and larger vessels, and the majority of entire range, which is much larger than procedures and mitigation requirements the Navy’s activities involving faster- the NWTT Study Area, and available include reporting of any vessel strikes of moving vessels (that could be ship strike records show that the marine mammals, and the Navy’s considered more likely to hit a marine majority of strikes that occur off the U.S. discipline, extensive training (not only mammal) are located in offshore areas West Coast occur in southern California. for detecting marine mammals, but for where smaller delphinid, porpoise, and We summed the annual rates of serious detecting and reporting any potential pinniped densities are lower. Since injury or mortality from vessel navigational obstruction), and strict 2005, though, three vessel strikes of collisions as reported in the SARs, then chain of command give NMFS a high Southern Resident killer whales have divided each species’ annual rate by this level of confidence that all strikes been recorded: one collision with a sum to get the proportion of strikes for actually get reported. commercial whale watch vessel in 2005 each species/stock. To inform the The Navy used those two whale (the whale recovered), one collision likelihood of striking a particular strikes in their calculations to determine with a tug boat in 2006 (the whale was species of large whale, we multiplied the number of strikes likely to result killed), and one animal found dead in the proportion of striking each species from their activities and evaluated data 2016 with evidence of blunt force by the probability of striking at least one beginning in 2009. The Navy’s Marine trauma consistent with a vessel strike. whale (i.e., 74 percent, as described by Species Awareness Training was first However, given the information above the Navy’s probability analysis above). used in 2006 and was fully integrated regarding the overall low likelihood of We note that these probabilities vary across the Navy in 2009, which is why vessel strikes of small whales, from year to year as the average annual the Navy uses 2009 as the date to begin delphinids, porpoises, and pinnipeds by mortality for a given five-year window the analysis. The adoption of additional Navy vessels, as well as the enhanced in the SAR changes; however, over the mitigation measures to address ship mitigation for, and high visibility of, years and through changing SARs, strike also began in 2009, and will Southern Resident killer whales, stocks tend to consistently maintain a remain in place along with additional Southern Resident killer whales are not relatively higher or relatively lower

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72397

likelihood of being struck (and we in the NWTT Study Area. We also note For each indicated stock, Table 34 include the annual averages from 2017 that Rockwood et al. (2017) modeled the includes the percent likelihood of SARs in Table 34 to illustrate). likely vessel strike of blue whales, fin hitting an individual whale once based The probabilities calculated as whales, and humpback whales on the on SAR data, total strikes from Navy described above are then considered in U.S. West Coast (discussed in more vessels (from 1995), total strikes from combination with the information detail in the Serious Injury or Mortality any vessel (from 2000 from regional indicating the species that the Navy has subsection of the Analysis and stranding data), and modeled vessel definitively hit in the NWTT Study Area Negligible Impact Determination strikes from Rockwood et al. (2017). The since 1995 (since they started tracking section), and those numbers help inform last column indicates the annual serious consistently) and the species that are the relative likelihood that the Navy injury or mortality authorized. known to have been struck by any will hit those stocks. vessel (through regional stranding data) TABLE 34—SUMMARY OF FACTORS CONSIDERED IN DETERMINING THE NUMBER OF INDIVIDUALS IN EACH STOCK POTENTIALLY STRUCK BY A VESSEL

Percent Annual rate Annual rate likelihood of M/SI from of M/SI from of hitting Total known Rockwood MMPA vessel vessel individual strikes in Total known et al. (2017) authorized Annual ESA status Species Stock collision collision from OR, WA, navy strikes modeled takes authorized (observed (observed species/ northern CA in NWTT vessel (from the 3 take (from 2000 study area 5 from 2017 from 2019 stock once 1 strikes total) SARs) SARs) (from 2019 to present) SARs data)

Listed ...... Blue whale ...... Eastern North Pacific ...... 0 0.4 3.7 ...... 18 0 0 Fin whale ...... Northeast Pacific ...... 0.2 0.4 3.7 2 10 ...... 2 0.29 CA/OR/WA ...... 1.8 1.6 14.8 2 10 ...... 43 2 0.29 Sei whale ...... Eastern North Pacific ...... 0 0.2 1.85 ...... 0 0 Humpback whale..... CA/OR/WA (Mexico and Central 1.1 2.1 19.425 3 4 4 1 22 2 0.29 America DPS). Sperm whale ...... CA/OR/WA ...... 0.2 0 0 3 ...... 1 0.14 Not Listed ... Minke whale ...... Alaska ...... 0 0 0 ...... 0 0 CA/OR/WA ...... 0 0 0 1 1 ...... 1 0.14 Gray whale ...... Eastern North Pacific ...... 2 0.8 7.4 9 ...... 1 0.14 Humpback whale ..... Central North Pacific (Hawaii DPS) 2.6 2.5 23.125 3 4 4 1 ...... 2 0.29 Note: A ‘‘-’’ indicates that the field does not apply. 1 Only one ship strike was reported in California in the NWTT Study Area (which is limited to Humboldt and Del Norte Counties). This strike occurred in 2004 in Humboldt County and was not identified to species. 2 A total of 10 fin whale strikes are reported in the regional stranding database, however no information on stock is provided. As these two stocks of fin whales are known to overlap spatially and temporally in the NWTT Study Area, the 10 reported strikes could come from either stock or a combination of both stocks. 3 A total of 4 humpback whales strikes are reported in the regional stranding database, however no information on stock is provided. As these two stocks of humpback whales are known to overlap spatially and temporally in the NWTT Study Area, the 4 reported strikes could come from either stock or a combination of both stocks. 4 One humpback whale was reported as struck by a U.S. Coast Guard cutter operating on behalf of the Navy, however it was not possible for the Navy to determine which stock this whale came from. As these two stocks of humpback whales are known to overlap spatially and temporally in the NWTT Study Area, this whale could have come from either stock. 5 Rockwood et al. modeled likely annual vessel strikes off the U.S. West Coast for these three species only.

Accordingly, stocks that have no SAR data, the two stocks of humpback of these stocks could be struck by the record of having been struck by any whales also have the highest likelihood Navy once during the seven-year rule. vessel are considered unlikely to be of being struck. Though the Navy has Finally, based on stranding data, gray struck by the Navy in the seven-year not definitively struck a fin whale in the whales are the second most commonly period of the rule. Stocks that have NWTT Study Area (noting that the Navy struck whale in the NWTT Study Area never been struck by the Navy, have could not rule out that the minke whale and the SAR data indicates that on rarely been struck by other vessels, and strike could have been a juvenile fin average, 0.8 whales from this stock are have a low likelihood of being struck whale), fin whales are the most common struck throughout the stock’s range each based on the SAR calculation and a low species struck by any vessel in the year. Based on these data, we consider relative abundance (Eastern North Study Area based on stranding data. it reasonable that an individual from the Pacific stock of blue whales, Eastern Based on the SAR data, the CA/OR/WA Eastern North Pacific stock of gray North Pacific stock of sei whales, and stock has the third highest likelihood of whales could be struck by the Navy Alaska stock of minke whales) are also being struck. Based on all of these once during the seven-year rule. considered unlikely to be struck by the factors, it is considered reasonable that In conclusion, although it is generally Navy during the seven-year rule. This humpback whales (from either the CA/ unlikely that any whales will be struck rules out all but seven stocks. OR/WA or Central North Pacific stocks) in a year, based on the information and The two stocks of humpback whales could be struck twice and fin whales analysis above, NMFS anticipates that (California/Oregon/Washington (CA/ (from either the CA/OR/WA or no more than three whales have the OR/WA) and Central North Pacific) and Northeast Pacific stocks) could be struck potential to be taken by serious injury two stocks of fin whales (CA/OR/WA twice during the seven-year rule. or mortality over the seven-year period and Northeast Pacific) are known to Based on the SAR data, the CA/OR/ of the rule. Of those three whales over overlap spatially and temporally in the WA stock of sperm whales and CA/OR/ the seven years, no more than two may NWTT Study Area, and it is not possible WA stock of minke whales have a very come from any of the following species/ to distinguish the difference between low likelihood of being struck. stocks: Fin whale (which may come individuals of these stocks based on However, 3 sperm whales have been from either the Northeast Pacific or CA/ visual sightings in the field. The Navy struck by non-Navy vessels in the OR/WA stock) and humpback whale has previously struck a humpback NWTT Study Area (in 2002, 2007, and (which may come from either the whale in the NWTT Study Area, and it 2012) and the Navy has previously Central North Pacific or CA/OR/WA is the second most common species struck a minke whale in the NWTT stock). Additionally, of those three struck by any vessel in the Study Area Study Area. Therefore, we consider it whales over the seven years no more based on stranding data. Based on the reasonable that an individual from each than one may come from any of the

VerDate Sep<11>2014 22:27 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72398 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

following species/stocks: Sperm whale impact’’ requirements are distinct, even and areas of similar significance, 50 CFR (CA/OR/WA stock), minke whale (CA/ though both statutory standards refer to 216.102(b), which are typically OR/WA stock), and gray whale (Eastern species and stocks. With that in mind, identified as mitigation measures.5 North Pacific stock). Accordingly, we provide further explanation of our The negligible impact and least NMFS has evaluated under the interpretation of least practicable practicable adverse impact standards in negligible impact standard the mortality adverse impact, and explain what the MMPA both call for evaluation at or serious injury (M/SI) of 0.14 or 0.29 distinguishes it from the negligible the level of the ‘‘species or stock.’’ The whales annually from each of these impact standard. This discussion is MMPA does not define the term stocks (i.e., 1 or 2 takes, respectively, consistent with previous rules we have ‘‘species.’’ However, Merriam-Webster divided by seven years to get the annual issued, such as the Navy’s Hawaii- Dictionary defines ‘‘species’’ to include number), along with the expected Southern California Training and ‘‘related organisms or populations incidental takes by harassment. We do Testing (HSTT) rule (85 FR 41780; July potentially capable of interbreeding.’’ not anticipate, nor have we authorized, 10, 2020), Atlantic Fleet Training and See www.merriam-webster.com/ ship strike takes to blue whales (Eastern Testing (AFTT) rule (84 FR 70712; dictionary/species (emphasis added). North Pacific stock), minke whales December 23, 2019), and Mariana Section 3(11) of the MMPA defines (Alaska stock), or sei whales (Eastern Islands Training and Testing (MITT) ‘‘stock’’ as a group of marine mammals North Pacific stock). rule (85 FR 46302; July 31, 2020). of the same species or smaller taxa in a Before NMFS can issue incidental common spatial arrangement that Mitigation Measures take regulations under section interbreed when mature. The definition Under section 101(a)(5)(A) of the 101(a)(5)(A) of the MMPA, it must make of ‘‘population’’ is a group of MMPA, NMFS must set forth the a finding that the total taking will have interbreeding organisms that represents permissible methods of taking pursuant a ‘‘negligible impact’’ on the affected the level of organization at which to the activity, and other means of ‘‘species or stocks’’ of marine mammals. speciation begins. www.merriam- effecting the least practicable adverse NMFS’ and U.S. Fish and Wildlife webster.com/dictionary/population. The impact on the species or stocks and Service’s implementing regulations for definition of ‘‘population’’ is strikingly their habitat, paying particular attention section 101(a)(5) both define ‘‘negligible similar to the MMPA’s definition of to rookeries, mating grounds, and areas impact’’ as an impact resulting from the ‘‘stock,’’ with both involving groups of of similar significance, and on the specified activity that cannot be individuals that belong to the same availability of the species or stocks for reasonably expected to, and is not species and located in a manner that subsistence uses (‘‘least practicable reasonably likely to, adversely affect the allows for interbreeding. In fact under adverse impact’’). NMFS does not have species or stock through effects on MMPA section 3(11), the term ‘‘stock’’ a regulatory definition for least annual rates of recruitment or survival in the MMPA is interchangeable with practicable adverse impact. The 2004 (50 CFR 216.103 and 50 CFR 18.27(c)). the statutory term ‘‘population stock.’’ NDAA amended the MMPA as it relates Recruitment (i.e., reproduction) and Both the negligible impact standard and to military readiness activities and the survival rates are used to determine the least practicable adverse impact incidental take authorization process population growth rates 4 and, therefore standard call for evaluation at the level such that a determination of ‘‘least are considered in evaluating population of the species or stock, and the terms practicable adverse impact’’ on the level impacts. ‘‘species’’ and ‘‘stock’’ both relate to species or stock shall include As stated in the preamble to the populations; therefore, it is appropriate consideration of personnel safety, proposed rule for the MMPA incidental to view both the negligible impact practicality of implementation, and take implementing regulations, not standard and the least practicable impact on the effectiveness of the every population-level impact violates adverse impact standard as having a military readiness activity. the negligible impact requirement. The population-level focus. In Conservation Council for Hawaii v. negligible impact standard does not This interpretation is consistent with National Marine Fisheries Service, 97 F. require a finding that the anticipated Congress’ statutory findings for enacting Supp. 3d 1210, 1229 (D. Haw. 2015), the take will have ‘‘no effect’’ on population the MMPA, nearly all of which are most Court stated that NMFS ‘‘appear[s] to numbers or growth rates: The statutory applicable at the species or stock (i.e., think [it] satisf[ies] the statutory ‘least standard does not require that the same population) level. See MMPA section 2 practicable adverse impact’ requirement recovery rate be maintained, rather that (finding that it is species and population with a ‘negligible impact’ finding.’’ no significant effect on annual rates of stocks that are or may be in danger of Expressing similar concerns in a recruitment or survival occurs. The key extinction or depletion; that it is species challenge to a U.S. Navy Surveillance factor is the significance of the level of and population stocks that should not Towed Array Sensor System Low impact on rates of recruitment or diminish beyond being significant Frequency Active Sonar (SURTASS survival. (54 FR 40338, 40341–42; functioning elements of their LFA) incidental take rule (77 FR 50290), September 29, 1989). ecosystems; and that it is species and the Ninth Circuit Court of Appeals in While some level of impact on population stocks that should not be Natural Resources Defense Council population numbers or growth rates of permitted to diminish below their (NRDC) v. Pritzker, 828 F.3d 1125, 1134 a species or stock may occur and still optimum sustainable population level). (9th Cir. 2016), stated, ‘‘[c]ompliance satisfy the negligible impact Annual rates of recruitment (i.e., with the ‘negligible impact’ requirement requirement—even without reproduction) and survival are the key does not mean there [is] compliance consideration of mitigation—the least biological metrics used in the evaluation with the ‘least practicable adverse practicable adverse impact provision of population-level impacts, and impact’ standard.’’ As the Ninth Circuit separately requires NMFS to prescribe noted in its opinion, however, the Court means of effecting the least practicable 5 Separately, NMFS also must prescribe means of was interpreting the statute without the adverse impact on the species or stocks effecting the least practicable adverse impact on the benefit of NMFS’ formal interpretation. and their habitat, paying particular availability of the species or stocks for subsistence uses, when applicable. See the Subsistence Harvest We state here explicitly that NMFS is in attention to rookeries, mating grounds, of Marine Mammals section for separate discussion full agreement that the ‘‘negligible of the effects of the specified activities on Alaska impact’’ and ‘‘least practicable adverse 4 A growth rate can be positive, negative, or flat. Native subsistence use.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72399

accordingly these same metrics are also is consistent with our understanding Our evaluation of potential mitigation used in the evaluation of population stated above that even when the effects measures includes consideration of two level impacts for the least practicable of an action satisfy the negligible impact primary factors: adverse impact standard. standard (i.e., in the Court’s words, (1) The manner in which, and the Recognizing this common focus of the ‘‘population levels are not threatened degree to which, implementation of the least practicable adverse impact and significantly’’), still the agency must potential measure(s) is expected to negligible impact provisions on the prescribe mitigation under the least reduce adverse impacts to marine ‘‘species or stock’’ does not mean we practicable adverse impact standard. mammal species or stocks, their habitat, conflate the two standards; despite some However, as the statute indicates, the and their availability for subsistence common statutory language, we focus of both standards is ultimately the uses (where relevant 7). This analysis recognize the two provisions are impact on the affected ‘‘species or considers such things as the nature of different and have different functions. stock,’’ and not solely focused on or the potential adverse impact (such as First, a negligible impact finding is directed at the impact on individual likelihood, scope, and range), the required before NMFS can issue an marine mammals. likelihood that the measure will be incidental take authorization. Although effective if implemented, and the We have carefully reviewed and it is acceptable to use the mitigation likelihood of successful considered the Ninth Circuit’s opinion measures to reach a negligible impact implementation; and in NRDC v. Pritzker in its entirety. finding (see 50 CFR 216.104(c)), no (2) The practicability of the measures amount of mitigation can enable NMFS While the Court’s reference to ‘‘marine for applicant implementation. to issue an incidental take authorization mammals’’ rather than ‘‘marine mammal Practicability of implementation may for an activity that still would not meet species or stocks’’ in the italicized consider such things as cost, impact on the negligible impact standard. language above might be construed as the specified activities, and, in the case Moreover, even where NMFS can reach holding that the least practicable of a military readiness activity, a negligible impact finding—which we adverse impact standard applies at the specifically considers personnel safety, emphasize does allow for the possibility individual ‘‘marine mammal’’ level, i.e., practicality of implementation, and of some ‘‘negligible’’ population-level that NMFS must require mitigation to impact on the effectiveness of the impact—the agency must still prescribe minimize impacts to each individual military readiness activity (when measures that will effect the least marine mammal unless impracticable, evaluating measures to reduce adverse practicable amount of adverse impact we believe such an interpretation impact on the species or stocks). reflects an incomplete appreciation of upon the affected species or stocks. Evaluation of Measures for Least the Court’s holding. In our view, the Section 101(a)(5)(A)(i)(II) requires Practicable Adverse Impact on Species NMFS to issue, in conjunction with its opinion as a whole turned on the or Stocks authorization, binding—and Court’s determination that NMFS had While the language of the least enforceable—restrictions (in the form of not given separate and independent practicable adverse impact standard regulations) setting forth how the meaning to the least practicable adverse calls for minimizing impacts to affected activity must be conducted, thus impact standard apart from the species or stocks, we recognize that the ensuring the activity has the ‘‘least negligible impact standard, and further, reduction of impacts to those species or practicable adverse impact’’ on the that the Court’s use of the term ‘‘marine stocks accrues through the application affected species or stocks. In situations mammals’’ was not addressing the of mitigation measures that limit where mitigation is specifically needed question of whether the standard applies to individual animals as impacts to individual animals. to reach a negligible impact Accordingly, NMFS’ analysis focuses on determination, section 101(a)(5)(A)(i)(II) opposed to the species or stock as a whole. We recognize that while measures that are designed to avoid or also provides a mechanism for ensuring minimize impacts on individual marine consideration of mitigation can play a compliance with the ‘‘negligible mammals that are likely to increase the role in a negligible impact impact’’ requirement. Finally, the least probability or severity of population- determination, consideration of practicable adverse impact standard also level effects. requires consideration of measures for mitigation measures extends beyond While direct evidence of impacts to marine mammal habitat, with particular that analysis. In evaluating what species or stocks from a specified attention to rookeries, mating grounds, mitigation measures are appropriate, activity is rarely available, and and other areas of similar significance, NMFS considers the potential impacts additional study is still needed to and for subsistence impacts, whereas of the specified activities, the understand how specific disturbance the negligible impact standard is availability of measures to minimize events affect the fitness of individuals of concerned solely with conclusions those potential impacts, and the certain species, there have been about the impact of an activity on practicability of implementing those improvements in understanding the annual rates of recruitment and measures, as we describe below. process by which disturbance effects are survival.6 In NRDC v. Pritzker, the Court translated to the population. With stated, ‘‘[t]he statute is properly read to Implementation of Least Practicable Adverse Impact Standard recent scientific advancements (both mean that even if population levels are marine mammal energetic research and not threatened significantly, still the Given the NRDC v. Pritzker decision, the development of energetic agency must adopt mitigation measures we discuss here how we determine frameworks), the relative likelihood or aimed at protecting marine mammals to whether a measure or set of measures degree of impacts on species or stocks the greatest extent practicable in light of meets the ‘‘least practicable adverse may often be inferred given a detailed military readiness needs.’’ Pritzker at impact’’ standard. Our separate analysis understanding of the activity, the 1134 (emphases added). This statement of whether the take anticipated to result from Navy’s activities meets the 7 For more information on measures to effect the 6 Outside of the military readiness context, ‘‘negligible impact’’ standard appears in least practicable adverse impact on the availability mitigation may also be appropriate to ensure of species or stocks for subsistence uses, see the compliance with the ‘‘small numbers’’ language in the Analysis and Negligible Impact Subsistence Harvest of Marine Mammals section MMPA sections 101(a)(5)(A) and (D). Determination section below. below.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72400 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

environment, and the affected species or practicability to determine the may (either alone, or in combination) stocks—and the best available science appropriateness of the mitigation result in greater emphasis on the has been used here. This same measure, and vice versa. We discuss importance of a mitigation measure in information is used in the development consideration of these factors in greater reducing impacts on a species or stock: of mitigation measures and helps us detail below. The stock is known to be decreasing or understand how mitigation measures 1. Reduction of adverse impacts to status is unknown, but believed to be contribute to lessening effects (or the marine mammal species or stocks and declining; the known annual mortality risk thereof) to species or stocks. We their habitat. The emphasis given to a (from any source) is approaching or also acknowledge that there is always measure’s ability to reduce the impacts exceeding the potential biological the potential that new information, or a on a species or stock considers the removal (PBR) level (as defined in new recommendation could become degree, likelihood, and context of the MMPA section 3(20)); the affected available in the future and necessitate anticipated reduction of impacts to species or stock is a small, resident reevaluation of mitigation measures individuals (and how many individuals) population; or the stock is involved in (which may be addressed through as well as the status of the species or a UME or has other known adaptive management) to see if further stock. vulnerabilities, such as recovering from reductions of population impacts are The ultimate impact on any an oil spill. possible and practicable. individual from a disturbance event Habitat mitigation, particularly as it (which informs the likelihood of In the evaluation of specific measures, relates to rookeries, mating grounds, and adverse species- or stock-level effects) is areas of similar significance, is also the details of the specified activity will dependent on the circumstances and relevant to achieving the standard and necessarily inform each of the two associated contextual factors, such as can include measures such as reducing primary factors discussed above duration of exposure to stressors. impacts of the activity on known prey (expected reduction of impacts and Though any proposed mitigation needs utilized in the activity area or reducing practicability), and are carefully to be evaluated in the context of the impacts on physical habitat. As with considered to determine the types of specific activity and the species or species- or stock-related mitigation, the mitigation that are appropriate under stocks affected, measures with the emphasis given to a measure’s ability to the least practicable adverse impact following types of effects have greater reduce impacts on a species or stock’s standard. Analysis of how a potential value in reducing the likelihood or habitat considers the degree, likelihood, mitigation measure may reduce adverse severity of adverse species- or stock- and context of the anticipated reduction impacts on a marine mammal stock or level impacts: Avoiding or minimizing of impacts to habitat. Because habitat species, consideration of personnel injury or mortality; limiting interruption value is informed by marine mammal safety, practicality of implementation, of known feeding, breeding, mother/ presence and use, in some cases there and consideration of the impact on young, or resting behaviors; minimizing may be overlap in measures for the effectiveness of military readiness the abandonment of important habitat species or stock and for use of habitat. activities are not issues that can be (temporally and spatially); minimizing We consider available information meaningfully evaluated through a yes/ the number of individuals subjected to indicating the likelihood of any measure no lens. The manner in which, and the these types of disruptions; and limiting to accomplish its objective. If evidence degree to which, implementation of a degradation of habitat. Mitigating these shows that a measure has not typically measure is expected to reduce impacts, types of effects is intended to reduce the been effective or successful, then either as well as its practicability in terms of likelihood that the activity will result in that measure should be modified or the these considerations, can vary widely. energetic or other types of impacts that potential value of the measure to reduce For example, a time/area restriction are more likely to result in reduced effects should be lowered. could be of very high value for reproductive success or survivorship. It 2. Practicability. Factors considered decreasing population-level impacts is also important to consider the degree may include cost, impact on activities, (e.g., avoiding disturbance of feeding of impacts that are expected in the and, in the case of a military readiness females in an area of established absence of mitigation in order to assess activity, will include personnel safety, biological importance) or it could be of the added value of any potential practicality of implementation, and lower value (e.g., decreased disturbance measures. Finally, because the least impact on the effectiveness of the in an area of high productivity but of practicable adverse impact standard military readiness activity (see MMPA less biological importance). Regarding gives NMFS discretion to weigh a section 101(a)(5)(A)(ii)). practicability, a measure might involve variety of factors when determining Assessment of Mitigation Measures for restrictions in an area or time that appropriate mitigation measures and NWTT Study Area impede the Navy’s ability to certify a because the focus of the standard is on strike group (higher impact on mission reducing impacts at the species or stock Section 216.104(a)(11) of NMFS’ effectiveness and national security), or it level, the least practicable adverse implementing regulations requires an could mean delaying a small in-port impact standard does not compel applicant for incidental take training event by 30 minutes to avoid mitigation for every kind of take, or authorization to include in its request, exposure of a marine mammal to every individual taken, if that mitigation among other things, ‘‘the availability injurious levels of sound (lower impact). is unlikely to meaningfully contribute to and feasibility (economic and A responsible evaluation of ‘‘least the reduction of adverse impacts on the technological) of equipment, methods, practicable adverse impact’’ will species or stock and its habitat, even and manner of conducting such activity consider the factors along these realistic when practicable for implementation by or other means of effecting the least scales. Accordingly, the greater the the applicant. practicable adverse impact upon the likelihood that a measure will The status of the species or stock is affected species or stocks, their habitat, contribute to reducing the probability or also relevant in evaluating the and [where applicable] on their severity of adverse impacts to the appropriateness of potential mitigation availability for subsistence uses, paying species or stock or its habitat, the greater measures in the context of least particular attention to rookeries, mating the weight that measure is given when practicable adverse impact. The grounds, and areas of similar considered in combination with following are examples of factors that significance.’’ Thus NMFS’ analysis of

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72401

the sufficiency and appropriateness of Lookouts in effectively sighting Resident killer whales and humpback an applicant’s measures under the least potential marine mammals, including whales. practicable adverse impact standard will Southern Resident killer whales, in the 5. As noted above in #2, the Navy will always begin with evaluation of the procedural mitigation zones. conduct no more than a total of 33 hours mitigation measures presented in the 2. The Navy will implement a new of surface ship hull-mounted MF1 mid- application. mitigation area, the Juan de Fuca Eddy frequency active sonar during testing NMFS has fully reviewed the Marine Species Mitigation Area, in annually within 20 nmi from shore in specified activities together with the which the Navy will not conduct the Marine Species Coastal Mitigation mitigation measures included in the explosive Mine Countermeasure and Area, in the new Juan de Fuca Eddy Navy’s rulemaking/LOA application and Neutralization Testing activities and Marine Species Mitigation Area, and in the 2020 NWTT FSEIS/OEIS to will limit surface ship hull-mounted the Olympic Coast National Marine determine if the mitigation measures MF1 mid-frequency active sonar, Sanctuary Mitigation Area combined. would result in the least practicable eliminating impacts to marine mammals The annual restriction for testing adverse impact on marine mammals and in this area from Mine Countermeasure previously only applied to the Olympic their habitat. NMFS worked with the and Neutralization activities, and Coast National Marine Sanctuary Navy in the development of the Navy’s minimizing impacts to marine mammals Mitigation Area. This final rule also initially proposed measures, which are from MF1 sonar in this area. removes an exception that excluded the informed by years of implementation Specifically, the Navy will conduct no Quinault Range Site from the annual and monitoring. A complete discussion more than a total of 33 hours of surface sonar restrictions that was included in of the Navy’s evaluation process used to ship hull-mounted MF1 mid-frequency the proposed rule. Now, the annual develop, assess, and select mitigation active sonar during testing annually restrictions will apply throughout the measures, which was informed by input within 20 nmi from shore in the Marine entire Olympic Coastal National Marine from NMFS, can be found in Section 5 Species Coastal Mitigation Area, in this Sanctuary Mitigation Area, including (Mitigation) and Appendix K new Juan de Fuca Eddy Marine Species within the portion of the mitigation area (Geographic Mitigation Assessment) of Mitigation Area, and in the Olympic that overlaps the Quinault Range Site. the 2020 NWTT FSEIS/OEIS. The Coast National Marine Sanctuary This reduction in activities is in areas process described in Chapter 5 Mitigation Area combined. that are important for Southern Resident (Mitigation) and Appendix K killer whale and humpback whale 3. The Navy will issue seasonal (Geographic Mitigation Assessment) of feeding and migration. awareness notification messages within the 2020 NWTT FSEIS/OEIS robustly 6. The Navy will conduct a maximum 50 nmi from shore to alert Navy ships supported NMFS’ independent of one Unmanned Underwater Vehicle and aircraft operating within the Marine evaluation of whether the mitigation Training event within 12 nmi from Species Coastal Mitigation Area to the measures meet the least practicable shore at the Quinault Range Site, and possible presence of increased adverse impact standard. will cancel or move Unmanned As a general matter, where an concentrations of Southern Resident Underwater Vehicle Training events applicant proposes measures that are killer whales from December 1 to June within 12 nmi from shore at the likely to reduce impacts to marine 30, humpback whales from May 1 Quinault Range Site if Southern mammals, the fact that they are through December 31, and gray whales Resident killer whales are detected at included in the application indicates from May 1 to November 30. To assist the planned training location during the that the measures are practicable, and it in avoiding interactions with whales, event planning process, or immediately is not necessary for NMFS to conduct a the Navy will instruct vessels to remain prior to the event, as applicable. This detailed analysis of the measures the vigilant to the presence of Southern measure is expected to help avoid any applicant proposed (rather, they are Resident killer whales, humpback potential impacts on Southern Resident simply included). However, it is still whales, and gray whales that may be killer whales during Unmanned necessary for NMFS to consider whether vulnerable to vessel strikes or potential Underwater Vehicle Training events. there are additional practicable impacts from training and testing 7. NMFS has included several new measures that would meaningfully activities. Platforms will use the measures in the Puget Sound and Strait reduce the probability or severity of information from the awareness of Juan de Fuca Mitigation Area that the impacts that could affect reproductive notification messages to assist their Navy had been voluntarily success or survivorship. visual observation of applicable implementing previously during Phase Since publication of the proposed mitigation zones during training and II activities, but are now required rule, and in consideration of public testing activities and to aid in the mitigation measures. Specifically, the comments received, additional implementation of procedural Navy will not use low-, mid-, or high- mitigation requirements have been mitigation. frequency active sonar during training added that will further reduce the 4. The Navy will implement seasonal or testing unless a required element (i.e., likelihood and/or severity of adverse restrictions and distance-from-shore a criterion necessary for the success of impacts on marine mammal species and requirements for certain explosive bins, the event) necessitates the activity be their habitat and are practicable for as described in detail in the Mitigation conducted in NWTT Inland Waters implementation. Below we describe the Areas section of this final rule. during (1) Unmanned Underwater added measures that the Navy will Additionally, the Navy will implement Vehicle Training, (2) Civilian Port implement and explain the manner in new annual and seven-year explosive Defense—Homeland Security Anti- which they are expected to reduce the ordnance limitations specific to Terrorism/Force Protection Exercises, likelihood or severity of adverse impacts explosive mine countermeasure and (3) activities conducted by Naval Sea on marine mammals and their habitats. neutralization testing. These restrictions Systems Command at designated 1. The Navy will only conduct and limitations will further reduce locations, or (4) pierside sonar explosive Mine Countermeasure and impacts to marine mammals from maintenance or testing at designated Neutralization testing in daylight hours explosives in nearshore and offshore locations. Additionally, the Navy will and in Beaufort Sea state number 3 habitats, including important feeding use the lowest active sonar source levels conditions or less. This will assist Navy and migration areas for Southern practical to successfully accomplish

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72402 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

each event, and will not use explosives migration habitat for gray whales and further, be practicable for Navy during testing. The Navy will not use critical habitat for Southern Resident implementation. Therefore, the explosives during training except at the killer whales and one of their primary mitigation measures assure that the Hood Canal Explosive Ordnance sources of prey, Puget Sound Chinook Navy’s activities will have the least Disposal (EOD) Range and Crescent salmon. New mitigation in the Puget practicable adverse impact on the Harbor EOD Range during explosive Sound and Strait of Juan de Fuca species or stocks and their habitat. mine neutralization activities involving Mitigation Area is designed to help Measures Evaluated but not Included the use of Navy divers. Additionally, avoid any potential impacts from Navy event planners are required to training and testing on Southern The Navy also evaluated numerous coordinate with Navy biologists during Resident killer whales in NWTT Inland measures in the 2020 NWTT FSEIS/ the event planning process prior to Waters. As stated in the Mitigation OEIS that were not included in the these events. The Navy will not conduct Areas section of this final rule, with Navy’s rulemaking/LOA application, non-explosive live fire events (except implementation of these new mitigation and NMFS independently reviewed and firing blank weapons), including measures, we do not anticipate any take concurs with the Navy’s analysis that gunnery exercises, missile exercises, of Southern Resident killer whales in their inclusion was not appropriate torpedo exercises, bombing exercises, NWTT Inland Waters due to NWTT under the least practicable adverse and Kinetic Energy Weapon Testing. training and testing activities. impact standard based on our 8. In addition to the previous Additionally, we expect that the new assessment. The Navy considered these voluntary measures that the Navy will mitigation in this mitigation area will additional potential mitigation measures now implement as mitigation measures, help reduce potential impacts on gray in two groups. First, Section 5 the Navy will also implement several whales from testing and training (Mitigation) of the 2020 NWTT FSEIS/ new mitigation measures within the activities. OEIS, in the Measures Considered but Puget Sound and Strait of Juan de Fuca In addition, the Navy has agreed to Eliminated section, includes an analysis Mitigation Area. Within the Puget procedural mitigation measures that of an array of different types of Sound and Strait of Juan de Fuca will reduce the probability and/or mitigation that have been recommended Mitigation Area, the Navy will conduct severity of impacts expected to result over the years by non-governmental a maximum of one Unmanned from acute exposure to acoustic sources organizations or the public, through Underwater Vehicle Training activity and explosives, such as hearing scoping or public comment on annually at the Navy 3 Operating Area, impairment, more severe behavioral environmental compliance documents. Navy 7 Operating Area, and Manchester disturbance, as well as the probability of Appendix K (Geographic Mitigation Fuel Depot (i.e., a maximum of one vessel strike. Specifically, the Navy will Assessment) of the 2020 NWTT FSEIS/ event at each location). Additionally, use a combination of delayed starts, OEIS includes an in-depth analysis of Navy event planners are required to powerdowns, and shutdowns to avoid time/area restrictions that have been coordinate with Navy biologists during or minimize mortality or serious injury, recommended over time. As described the event planning process prior to minimize the likelihood or severity of in Chapter 5 (Mitigation) of the 2020 conducting Unmanned Underwater PTS or other injury, and reduce NWTT FSEIS/OEIS, commenters Vehicle Training at the Navy 3 instances of TTS or more severe sometimes recommend that the Navy Operating Area, Manchester Fuel Depot, behavioral disturbance caused by reduce its overall amount of training, Crescent Harbor Explosive Ordnance acoustic sources or explosives. The reduce explosive use, modify its sound Disposal Range, and Navy 7 Operating Navy will also implement multiple sources, completely replace live training Area, and to cancel or move events to time/area restrictions that will reduce and testing with computer simulation, another training location if the presence take of marine mammals (as well as or include time of day restrictions. of Southern Resident killer whales is impacts on marine mammal habitat) in Many of these mitigation measures reported through available monitoring areas where or at times when they are could potentially reduce the number of networks. Additionally, the Navy will known to engage in important marine mammals taken, via direct issue annual seasonal awareness behaviors, such as feeding, where the reduction of the activities or amount of notification messages to alert Navy disruption of those behaviors would sound energy put in the water. ships and aircraft operating within the have a higher probability of resulting in However, as described in Section 5 Puget Sound and Strait of Juan de Fuca impacts on reproduction or survival of (Mitigation) of the 2020 NWTT FSEIS/ Mitigation Area to the possible presence individuals that could lead to OEIS, the Navy needs to train and test of concentrations of Southern Resident population-level impacts. in the conditions in which it fights— killer whales and gray whales. These The Navy assessed the practicability and these types of modifications messages are expected to help further of these measures in the context of fundamentally change the activity in a avoid potential impacts from training personnel safety, practicality of manner that will not support the and testing activities on Southern implementation, and their impacts on purpose and need for the training and Resident killer whales and gray whales, the Navy’s ability to meet their Title 10 testing (i.e., are entirely impracticable) and will coincide with the seasons in requirements and found that the and therefore are not considered further. which Southern Resident killer whales measures are supportable. NMFS has NMFS finds the Navy’s explanation for and gray whales are most likely to be independently evaluated the measures why adoption of these observed in the mitigation area (July 1 the Navy proposed in the manner recommendations would unacceptably to November 30 for Southern Resident described earlier in this section (i.e., in undermine the purpose of the testing killer whales, and March 1 to May 31 for consideration of their ability to reduce and training persuasive. After gray whales). adverse impacts on marine mammal independent review, NMFS finds As described in the Mitigation Areas species and their habitat and their Navy’s judgment on the impacts of section of this final rule, the Puget practicability for implementation). We potential mitigation measures to Sound and Strait of Juan de Fuca have determined that the measures will personnel safety, practicality of Mitigation Area encompasses the full significantly and adequately reduce implementation, and the effectiveness of extent of NWTT Inland Waters, and impacts on the affected marine mammal training and testing within the NWTT includes feeding and potential species and stocks and their habitat and, Study Area persuasive, and for these

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72403

reasons, NMFS finds that these OEIS, which considers the same factors combined. NMFS concurred with the measures do not meet the least that NMFS considers to satisfy the least Navy’s analysis that it would be practicable adverse impact standard practicable adverse impact standard, impracticable to fully restrict Undersea because they are not practicable. and concurs with the analysis and Warfare testing in this area, and this Second, in Chapter 5 (Mitigation) of conclusions. Therefore, NMFS is not limitation is expected to minimize the 2020 NWTT FSEIS/OEIS, the Navy including any of the measures that the impacts from sonar in the three areas evaluated additional potential Navy ruled out in the 2020 NWTT combined. procedural mitigation measures, FSEIS/OEIS. The following sections describe the including increased mitigation zones, Below, we describe additional mitigation measures that will be ramp-up measures, additional passive measures that were considered but implemented in association with the acoustic and visual monitoring, and eliminated during the development of training and testing activities analyzed decreased vessel speeds. Some of these the final rule: (1) A full restriction on in this document. These are the measures have the potential to Mine Countermeasure and mitigation measures that NMFS has incrementally reduce take to some Neutralization testing in water depths determined will ensure the least degree in certain circumstances, though less than 650 ft. and (2) A full restriction practicable adverse impact on all the degree to which this would occur is on Undersea Warfare Testing within 20 affected species and their habitat, typically low or uncertain. However, as nmi from shore in the Marine Species including the specific considerations for described in the Navy’s analysis, the Coastal Mitigation Area (except within military readiness activities. The measures would have significant direct the portion of the mitigation area that mitigation measures are organized into negative effects on mission effectiveness overlaps the Quinault Range Site). two categories: procedural mitigation and are considered impracticable (see Regarding the consideration of a full and mitigation areas. Section 5 Mitigation of 2020 NWTT restriction on Mine Countermeasure and FSEIS/OEIS). NMFS independently Neutralization testing in water depths Procedural Mitigation reviewed the Navy’s evaluation and less than 650 ft, water depths drop concurs with this assessment, which rapidly from 650 ft to 1,000 ft in the Procedural mitigation is mitigation supports NMFS’ findings that the NWTT Offshore Area, and the Navy that the Navy will implement whenever impracticability of this additional plans to conduct this activity in areas and wherever an applicable training or mitigation would greatly outweigh any where water depths are less than 1,000 testing activity takes place within the potential minor reduction in marine ft. Limiting the available testing area to NWTT Study Area. Procedural mammal impacts that might result; areas deeper than 650 ft would allow mitigation is customized for each therefore, these additional mitigation the Navy a span of only one to two nmi applicable activity category or stressor. measures are not warranted. in some cases to conduct the activity. Procedural mitigation generally Last, Appendix K (Geographic Given the limited available area beyond involves: (1) The use of one or more Mitigation Assessment) of the 2020 650 ft, and given that the typical testing trained Lookouts to diligently observe NWTT FSEIS/OEIS describes a depth of Mine Countermeasure and for specific biological resources comprehensive method for analyzing Neutralization testing is 300 ft, limiting (including marine mammals) within a potential geographic mitigation that testing to water depths greater than 650 mitigation zone, (2) requirements for includes consideration of both a ft would not be practical to implement Lookouts to immediately communicate biological assessment of how the with respect to allowing the Navy to sightings of these specific biological potential time/area limitation would meet mission requirements. In resources to the appropriate watch benefit the species and its habitat (e.g., consideration of the reductions in station for information dissemination, is a key area of biological importance or potential impacts provided by the and (3) requirements for the watch would result in avoidance or reduction restrictions on Mine Countermeasure station to implement mitigation (e.g., of impacts) in the context of the and Neutralization testing in the halt an activity) until certain stressors of concern in the specific area geographic mitigation areas, the recommencement conditions have been and an operational assessment of the required procedural mitigation met. The first procedural mitigation practicability of implementation restricting Mine Countermeasure and (Table 35) is designed to aid Lookouts (including an assessment of the specific Neutralization testing to daylight hours and other applicable Navy personnel in importance of that area for training, only and in a Beaufort sea state of 3 or their observation, environmental considering proximity to training ranges less, and combined with the compliance, and reporting and emergency landing fields and other impracticability for the Navy, NMFS responsibilities. The remainder of the issues). For most of the areas that were found that this measure was not procedural mitigation measures (Tables considered in the 2020 NWTT FSEIS/ warranted. 36 through 49) are organized by stressor OEIS but not included in this rule, the Regarding the consideration of a full type and activity category and include Navy found that the mitigation was not restriction on Undersea Warfare Testing acoustic stressors (i.e., active sonar, warranted because the anticipated within 20 nmi from shore in the Marine weapons firing noise), explosive reduction of adverse impacts on marine Species Coastal Mitigation Area (except stressors (i.e., sonobuoys, torpedoes, mammal species and their habitat was within the portion of the mitigation area medium-caliber and large-caliber not sufficient to offset the that overlaps with the Quinault Range projectiles, missiles, bombs, mine impracticability of implementation. In Site), this final rule instead includes a counter-measure and neutralization some cases potential benefits to marine cap of 33 hours of surface ship hull- activities, mine neutralization involving mammals were non-existent, while in mounted MF1 mid-frequency active Navy divers), and physical disturbance others the consequences on mission sonar during testing annually within 20 and strike stressors (i.e., vessel effectiveness were too great. nmi from shore in the Marine Species movement, towed in-water devices, NMFS has reviewed the Navy’s Coastal Mitigation Area, in the Juan de small-, medium-, and large-caliber non- analysis in Section 5 Mitigation and Fuca Eddy Marine Species Mitigation explosive practice munitions, non- Appendix K Geographic Mitigation Area, and in the Olympic Coast National explosive missiles, non-explosive Assessment of the 2020 NWTT FSEIS/ Marine Sanctuary Mitigation Area bombs and mine shapes).

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72404 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 35—PROCEDURAL MITIGATION FOR ENVIRONMENTAL AWARENESS AND EDUCATION

Procedural Mitigation Description

Stressor or Activity: • All training and testing activities, as applicable. Mitigation Requirements: • Appropriate Navy personnel (including civilian personnel) involved in mitigation and training or testing activity reporting under the speci- fied activities will complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identified in their career path training plan. Modules include: —Introduction to the U.S. Navy Afloat Environmental Compliance Training Series. The introductory module provides information on en- vironmental laws (e.g., Endangered Species Act, Marine Mammal Protection Act) and the corresponding responsibilities that are rel- evant to Navy training and testing activities. The material explains why environmental compliance is important in supporting the Navy’s commitment to environmental stewardship. —Marine Species Awareness Training. All bridge watch personnel, Commanding Officers, Executive Officers, maritime patrol aircraft aircrews, anti-submarine warfare and mine warfare rotary-wing aircrews, Lookouts, and equivalent civilian personnel must success- fully complete the Marine Species Awareness Training prior to standing watch or serving as a Lookout. The Marine Species Aware- ness Training provides information on sighting cues, visual observation tools and techniques, and sighting notification procedures. Navy biologists developed Marine Species Awareness Training to improve the effectiveness of visual observations for biological re- sources, focusing on marine mammals and sea turtles, and including floating vegetation, jellyfish aggregations, and flocks of seabirds. —U.S. Navy Protective Measures Assessment Protocol. This module provides the necessary instruction for accessing mitigation re- quirements during the event planning phase using the Protective Measures Assessment Protocol software tool. —U.S. Navy Sonar Positional Reporting System and Marine Mammal Incident Reporting. This module provides instruction on the pro- cedures and activity reporting requirements for the Sonar Positional Reporting System and marine mammal incident reporting.

TABLE 36—PROCEDURAL MITIGATION FOR ACTIVE SONAR

Procedural Mitigation Description

Stressor or Activity:

• Low-frequency active sonar, mid-frequency active sonar, high-frequency active sonar —For vessel-based active sonar activities, mitigation applies only to sources that are positively controlled and deployed from manned surface vessels (e.g., sonar sources towed from manned surface platforms). —For aircraft-based active sonar activities, mitigation applies only to sources that are positively controlled and deployed from manned aircraft that do not operate at high altitudes (e.g., rotary-wing aircraft). Mitigation does not apply to active sonar sources deployed from unmanned aircraft or aircraft operating at high altitudes (e.g., maritime patrol aircraft). Number of Lookouts and Observation Platform: • Hull-mounted sources: —1 Lookout: Platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at anchor (including pierside). —2 Lookouts: Platforms without space or manning restrictions while underway (at the forward part of the ship). Sources that are not hull-mounted: —1 Lookout on the ship or aircraft conducting the activity. Mitigation Requirements: • Mitigation zones: —1,000 yd power down, 500 yd power down, and 200 yd or 100 yd shut down for low-frequency active sonar at 200 decibels (dB) and hull-mounted mid-frequency active sonar (see During the activity below). —200 yd or 100 yd shut down for low-frequency active sonar <200 dB, mid-frequency active sonar sources that are not hull-mounted, and high-frequency active sonar (see During the activity below). • Prior to the initial start of the activity (e.g., when maneuvering on station): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of active sonar transmission. • During the activity: —Low-frequency active sonar at 200 decibels (dB) and hull-mounted mid-frequency active sonar: (1) Navy personnel must observe the mitigation zone for marine mammals; Navy personnel will power down active sonar transmission by 6 dB if a marine mammal is ob- served within 1,000 yd of the sonar source; Navy personnel will power down an additional 4 dB (10 dB total) if a marine mammal is observed within 500 yd of the sonar source; Navy personnel must cease transmission if cetaceans are observed within 200 yd of the sonar source in any location in the Study Area; (2) Navy personnel must cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source and cease transmission if pinnipeds in NWTT Inland Waters are observed within 100 yd of the sonar source (except if hauled out on, or in the water near, man-made structures and vessels). —Low-frequency active sonar <200 dB, mid-frequency active sonar sources that are not hull-mounted, and high-frequency active sonar: Navy personnel must observe the mitigation zone for marine mammals; Navy personnel will cease transmission if cetaceans are observed within 200 yd of the sonar source in any location in the Study Area. Navy personnel will cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source; Navy personnel will cease transmission if pinnipeds in NWTT Inland Waters is observed within 100 yd of the sonar source (except if hauled out on, or in the water near, man-made structures and vessels). • Commencement/recommencement conditions after a marine mammal sighting before or during the activity:

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72405

TABLE 36—PROCEDURAL MITIGATION FOR ACTIVE SONAR—Continued

Procedural Mitigation Description

—Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing or powering up active sonar transmission) until one of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; (3) the mitigation zone has been clear from any additional sightings for 10 minutes for aircraft-deployed sonar sources or 30 minutes for vessel-deployed sonar sources; (4) for mobile activities, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the lo- cation of the last sighting; or (5) for activities using hull-mounted sonar, the Lookout concludes that dolphins are deliberately closing in on the ship to ride the ship’s bow wave, and are therefore out of the main transmission axis of the sonar (and there are no other marine mammal sightings within the mitigation zone).

TABLE 37—PROCEDURAL MITIGATION FOR WEAPONS FIRING NOISE

Procedural Mitigation Description

Stressor or Activity: • Weapons firing noise associated with large-caliber gunnery activities. Number of Lookouts and Observation Platform: • 1 Lookout positioned on the ship conducting the firing. —Depending on the activity, the Lookout could be the same one described for Procedural Mitigation for Explosive Medium-Caliber and Large-Caliber Projectiles (Table 40) or Procedural Mitigation for Small-, Medium-, and Large-Caliber Non-Explosive Practice Muni- tions (Table 47). Mitigation Requirements: • Mitigation zone: —30° on either side of the firing line out to 70 yd from the muzzle of the weapon being fired. • Prior to the initial start of the activity: —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of weapons firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease weapons firing. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing weapons firing) until one of the following conditions has been met: (1) The ani- mal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; (3) the mitigation zone has been clear from any additional sightings for 30 minutes; or (4) for mobile activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

TABLE 38—PROCEDURAL MITIGATION FOR EXPLOSIVE SONOBUOYS

Procedural Mitigation Description

Stressor or Activity: • Explosive sonobuoys. Number of Lookouts and Observation Platform: • 1 Lookout positioned in an aircraft or on a small boat. • If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zone: —600 yd. around an explosive sonobuoy. • Prior to the initial start of the activity (e.g., during deployment of a sonobuoy field, which typically lasts 20–30 minutes): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will conduct passive acoustic monitoring for marine mammals; personnel will use information from detections to as- sist visual observations. —Navy personnel will visually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of sonobuoy or source/receiver pair detonations. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease sonobuoy or source/receiver pair detonations. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing detonations) until one of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonobuoy; or (3) the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72406 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 38—PROCEDURAL MITIGATION FOR EXPLOSIVE SONOBUOYS—Continued

Procedural Mitigation Description

• After completion of the activity (e.g., prior to maneuvering off station): —When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), Navy per- sonnel will observe the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 39—PROCEDURAL MITIGATION FOR EXPLOSIVE TORPEDOES

Procedural Mitigation Description

Stressor or Activity: • Explosive torpedoes. Number of Lookouts and Observation Platform: • 1 Lookout positioned in an aircraft. • If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zone: —2,100 yd around the intended impact location. • Prior to the initial start of the activity (e.g., during deployment of the target): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will conduct passive acoustic monitoring for marine mammals; personnel will use information from detections to as- sist visual observations. —Navy personnel will visually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease firing. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) The animal is ob- served exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or (3) the mitigation zone has been clear from any additional sightings for 10 minutes when the activity involves aircraft that have fuel constraints, or 30 minutes when the activity involves aircraft that are not typically fuel constrained. • After completion of the activity (e.g., prior to maneuvering off station): —When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), Navy per- sonnel will observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 40—PROCEDURAL MITIGATION FOR EXPLOSIVE MEDIUM-CALIBER AND LARGE-CALIBER PROJECTILES

Procedural Mitigation Description

Stressor or Activity: • Gunnery activities using explosive medium-caliber and large-caliber projectiles

—Mitigation applies to activities using a surface target. Number of Lookouts and Observation Platform: • 1 Lookout on the vessel conducting the activity. —For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one de- scribed for Procedural Mitigation for Weapons Firing Noise (Table 37). • If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zones: —600 yd around the intended impact location for explosive medium-caliber projectiles. —1,000 yd around the intended impact location for explosive large-caliber projectiles. • Prior to the initial start of the activity (e.g., when maneuvering on station): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease firing.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72407

TABLE 40—PROCEDURAL MITIGATION FOR EXPLOSIVE MEDIUM-CALIBER AND LARGE-CALIBER PROJECTILES—Continued

Procedural Mitigation Description

• Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) The animal is ob- served exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; (3) the mitigation zone has been clear from any additional sightings for 30 minutes for vessel-based firing; or (4) for activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. • After completion of the activity (e.g., prior to maneuvering off station): —When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), Navy per- sonnel will observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 41—PROCEDURAL MITIGATION FOR EXPLOSIVE MISSILES

Procedural Mitigation Description

Stressor or Activity: • Aircraft-deployed explosive missiles. —Mitigation applies to activities using a surface target. Number of Lookouts and Observation Platform • 1 Lookout positioned in an aircraft • If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. Mitigation Requirements: • Mitigation zone: —2,000 yd around the intended impact location. • Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease firing. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) The animal is ob- served exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or (3) the mitigation zone has been clear from any additional sightings for 10 minutes when the activity involves aircraft that have fuel constraints, or 30 minutes when the activity involves aircraft that are not typically fuel constrained. • After completion of the activity (e.g., prior to maneuvering off station): —When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), Navy per- sonnel will observe the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 42—PROCEDURAL MITIGATION FOR EXPLOSIVE BOMBS

Procedural Mitigation Description

Stressor or Activity: • Explosive bombs. Number of Lookouts and Observation Platform: • 1 Lookout positioned in the aircraft conducting the activity. • If additional platforms are participating in the activity, personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zone: —2,500 yd around the intended target. • Prior to the initial start of the activity (e.g., when arriving on station): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of bomb deployment. • During the activity (e.g., during target approach):

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72408 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 42—PROCEDURAL MITIGATION FOR EXPLOSIVE BOMBS—Continued

Procedural Mitigation Description

—Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease bomb deployment. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment) until one of the following conditions has been met: (1) the animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; (3) the mitigation zone has been clear from any additional sightings for 10 min; or (4) for activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. • After completion of the activity (e.g., prior to maneuvering off station): —When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), Navy per- sonnel will observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 43—PROCEDURAL MITIGATION FOR EXPLOSIVE MINE COUNTERMEASURE AND NEUTRALIZATION ACTIVITIES

Procedural Mitigation Description

Stressor or Activity: • Explosive Mine Countermeasure and Neutralization activities. Number of Lookouts and Observation Platform: • 1 Lookout positioned on a vessel or in an aircraft when implementing the smaller mitigation zone. • 2 Lookouts (one positioned in an aircraft and one on a small boat) when implementing the larger mitigation zone. • If additional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) will support observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zones: —600 yd around the detonation site for activities using ≤5 lb net explosive weight. —2,100 yd around the detonation site for activities using >5–60 lb net explosive weight. • Prior to the initial start of the activity (e.g., when maneuvering on station; typically, 10 minutes when the activity involves aircraft that have fuel constraints, or 30 minutes when the activity involves aircraft that are not typically fuel constrained): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of detonations. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease detonations. —Navy personnel will use the smallest practicable charge size for each activity. —Navy personnel will conduct activities in daylight hours and only in Beaufort Sea state number 3 conditions or less. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing detonations) until one of the following conditions has been met: (1) the animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to detonation site; or (3) the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. • After completion of the activity (typically 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained): —Navy personnel will observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mam- mals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 44—PROCEDURAL MITIGATION FOR EXPLOSIVE MINE NEUTRALIZATION ACTIVITIES LNVOLVING NAVY DIVERS

Procedural Mitigation Description

Stressor or Activity: • Explosive mine neutralization activities involving Navy divers. Number of Lookouts and Observation Platform: • 2 Lookouts on two small boats with one Lookout each, one of which will be a Navy biologist. • All divers placing the charges on mines will support the Lookouts while performing their regular duties and will report applicable sightings to the lead Lookout, the supporting small boat, or the Range Safety Officer. • If additional platforms are participating in the activity, personnel positioned on those assets (e.g., safety observers, evaluators) will sup- port observing the mitigation zone for marine mammals while performing their regular duties. Mitigation Requirements: • Mitigation zone:

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72409

TABLE 44—PROCEDURAL MITIGATION FOR EXPLOSIVE MINE NEUTRALIZATION ACTIVITIES LNVOLVING NAVY DIVERS— Continued

Procedural Mitigation Description

—500 yd around the detonation site during activities using >0.5–2.5 lb net explosive weight. • Prior to the initial start of the activity (starting 30 minutes before the first planned detonation): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of detonations. —Navy personnel will ensure the mitigation zone is clear of marine mammals for 30 minutes prior to commencing a detonation. —A Navy biologist will serve as the lead Lookout and will make the final determination that the mitigation zone is clear of any biologi- cal resource sightings, including marine mammals, prior to the commencement of a detonation. The Navy biologist will maintain radio communication with the unit conducting the event and the other Lookout. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease detonations. —To the maximum extent practical depending on mission requirements, safety, and environmental conditions, boats will position them- selves near the midpoint of the mitigation zone radius (but outside of the detonation plume and human safety zone), will position themselves on opposite sides of the detonation location (when two boats are used), and will travel in a circular pattern around the detonation location with one Lookout observing inward toward the detonation site and the other observing outward toward the perim- eter of the mitigation zone. —Navy personnel will use only positively controlled charges (i.e., no time-delay fuses). —Navy personnel will use the smallest practicable charge size for each activity. —Activities will be conducted in Beaufort sea state number 2 conditions or better and will not be conducted in low visibility conditions. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing detonation) until one of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detonation site; or (3) the mitigation zone has been clear from any additional sightings for 30 minutes. • After each detonation and the completion of an activity (for 30 minutes): —Navy personnel will observe for marine mammals in the vicinity of where detonations occurred and immediately downstream of the detonation location; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. —If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel positioned on these assets will assist in the visual observation of the area where detonations occurred.

TABLE 45—PROCEDURAL MITIGATION FOR VESSEL MOVEMENT

Procedural Mitigation Description

Stressor or Activity: • Vessel movement: —The mitigation will not be applied if: (1) The vessel’s safety is threatened, (2) the vessel is restricted in its ability to maneuver (e.g., during launching and recovery of aircraft or landing craft, during towing activities, when mooring, and during Transit Protection Pro- gram exercises or other events involving escort vessels), (3) the vessel is submerged 1 or operated autonomously, or (4) when im- practical based on mission requirements (e.g., during test body retrieval by range craft). Number of Lookouts and Observation Platform: • 1 Lookout on the vessel that is underway. Mitigation Requirements: • Mitigation zones: —500 yd around whales. —200 yd (for surface ships, which do not include small boats) around marine mammals other than whales (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels). —100 yd (for small boats, such as range craft) around marine mammals other than whales (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels). • During the activity: —When underway, Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy per- sonnel will maneuver to maintain distance. • Additional requirement: —If a marine mammal vessel strike occurs, Navy personnel will follow the established incident reporting procedures. 1 NMFS has clarified in this final rule that this measure does not apply to submerged vessels. This does not change the scope of the mitigation measure, however, as the description of mitigation zones in the proposed rule as well as this rule explain that these zones apply to surface ves- sels and small boats, neither of which include submerged vessels.

TABLE 46—PROCEDURAL MITIGATION FOR TOWED IN-WATER DEVICES

Procedural Mitigation Description

Stressor or Activity: • Towed in-water devices:

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72410 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 46—PROCEDURAL MITIGATION FOR TOWED IN-WATER DEVICES—Continued

Procedural Mitigation Description

—Mitigation applies to devices that are towed from a manned surface platform or manned aircraft, or when a manned support craft is already participating in an activity involving in-water devices being towed by unmanned platforms. —The mitigation will not be applied if the safety of the towing platform or in-water device is threatened. Number of Lookouts and Observation Platform: • 1 Lookout positioned on the towing platform or support craft. Mitigation Requirements: • Mitigation zones: —250 yd (for in-water devices towed by aircraft or surface ships) around marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels). —100 yd (for in-water devices towed by small boats, such as range craft) around marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels). • During the activity (i.e., when towing an in-water device): —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will maneu- ver to maintain distance.

TABLE 47—PROCEDURAL MITIGATION FOR SMALL-, MEDIUM-, AND LARGE-CALIBER NON-EXPLOSIVE PRACTICE MUNITIONS

Procedural Mitigation Description

Stressor or Activity: • Gunnery activities using small-, medium-, and large-caliber non-explosive practice munitions. —Mitigation applies to activities using a surface target. Number of Lookouts and Observation Platform: • 1 Lookout positioned on the platform conducting the activity. • Depending on the activity, the Lookout could be the same as the one described for Procedural Mitigation for Weapons Firing Noise (Table 37). Mitigation Requirements: • Mitigation zone: —200 yd around the intended impact location. • Prior to the initial start of the activity (e.g., when maneuvering on station): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease firing. • Commencement/recommencement conditions after a marine mammal sighting before or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) The animal is ob- served exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; (3) the mitigation zone has been clear from any additional sightings for 10 minutes for aircraft-based firing or 30 minutes for vessel-based firing; or (4) for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

TABLE 48—PROCEDURAL MITIGATION FOR NON-EXPLOSIVE MISSILES

Procedural Mitigation Description

Stressor or Activity: • Aircraft-deployed non-explosive missiles. • Mitigation applies to activities using a surface target. Number of Lookouts and Observation Platform: • 1 Lookout positioned in an aircraft. Mitigation Requirements: • Mitigation zone: —900 yd around the intended impact location. • Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of firing. • During the activity: —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease firing. • Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity:

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72411

TABLE 48—PROCEDURAL MITIGATION FOR NON-EXPLOSIVE MISSILES—Continued

Procedural Mitigation Description

—Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) The animal is ob- served exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or (3) the mitigation zone has been clear from any additional sightings for 10 minutes when the activity involves aircraft that have fuel constraints, or 30 minutes when the activity involves aircraft that are not typically fuel constrained.

TABLE 49—PROCEDURAL MITIGATION FOR NON-EXPLOSIVE BOMBS AND MINE SHAPES

Procedural Mitigation Description

Stressor or Activity: • Non-explosive bombs. • Non-explosive mine shapes during mine laying activities. Number of Lookouts and Observation Platform: • 1 Lookout positioned in an aircraft. Mitigation Requirements: • Mitigation zone: —1,000 yd around the intended target. • Prior to the initial start of the activity (e.g., when arriving on station): —Navy personnel will observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel will relo- cate or delay the start until the mitigation zone is clear. —Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will relocate or delay the start of bomb deployment or mine laying. • During the activity (e.g., during approach of the target or intended minefield location): ¥ Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will cease bomb deployment or mine laying. • Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity: —Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment or mine laying) until one of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2) the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target or minefield location; (3) the mitigation zone has been clear from any additional sightings for 10 minutes; or (4) for activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

Mitigation Areas maintenance/testing of sonar systems, in Puget Sound, Navy event planners and required pierside maintenance and consulted with Navy biologists who In addition to procedural mitigation, testing to be conducted in accordance contacted NMFS early in the planning the Navy will implement mitigation with the Navy’s Protective Measures process in order to determine the extent measures within mitigation areas to Assessment Protocol (PMAP). that marine mammals may have been avoid or minimize potential impacts on Additionally, prior to Maritime present in the immediate vicinity of the marine mammals. A full technical Homeland Defense/Security Mine proposed exercise area as planners analysis (for which the methods were Countermeasure Integrated Exercises, considered the specifics of the event. discussed above) of the mitigation areas the Navy was required to conduct pre- Finally, the Navy continued an existing that the Navy considered for marine permission and approval process mammals is provided in Appendix K event planning and training to ensure environmental awareness of all exercise through the U.S. Third Fleet for in-water (Geographic Mitigation Assessment) of explosives training conducted at Hood the 2020 NWTT FSEIS/OEIS. NMFS and participants, and Navy event planners were required to consult with Navy Canal or Crescent Harbor. In coastal the Navy took into account public areas, the Navy conducted Missile biologists who contacted NMFS comments received on the 2019 NWTT Exercises using high explosives at least (Protected Resources Division, West DSEIS/OEIS and the 2020 NWTT 50 nmi from shore in the NWTRC Coast Marine Species Branch Chief) proposed rule, best available science, Offshore Area, conducted BOMBEX and the practicability of implementing during the planning process in order to (high explosive munitions) events at additional mitigation measures and has determine likelihood of gray whale or least 50 nmi from shore, and conducted enhanced the mitigation areas and southern resident killer whale presence BOMBEX (non-explosive practice mitigation measures, beyond the 2015– in the proposed exercise area as munitions) events at least 20 nmi from 2020 regulations, to further reduce planners considered specifics of the shore. Functionally, the protections impacts to marine mammals. Of note event. Additionally, prior to Small Boat provided by these mitigation area specifically, the 2015–2020 regulations Attack training in Puget Sound, the requirements from the previous rule included area-specific mitigation in Navy was also required to conduct pre- have been carried forward into this rule Puget Sound and coastal areas. event planning and training to ensure (though they may be worded slightly Mitigation in Puget Sound included environmental awareness of all exercise differently) and, further, significant required approval from the Navy’s U.S. participants. When this event was additional geographic mitigation has Pacific Fleet’s designated authority or proposed to be conducted in and around been added. System Command designated authority Naval Station Everett, Naval Base Kitsap Descriptions of the mitigation prior to MFAS training or pierside Bangor, or Naval Base Kitsap Bremerton measures that the Navy will implement

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72412 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

within mitigation areas is provided in and their habitat. As described of detrimental energetic consequences. Table 50 (see below). The mitigation previously, exposure to active sonar and In migratory corridors, training and applies year-round unless specified explosive detonations has the potential testing activities can result in additional otherwise in the table. The Changes to both disrupt behavioral patterns and energetic expenditures to avoid the loud from the Proposed Rule to the Final reduce hearing sensitivity (temporarily sources—lessening training and testing Rule section summarizes the mitigation or permanently, depending on the in these areas also reduces the area changes that have occurred since intensity and duration of the exposure). likelihood of detrimental energetic the proposed rule and the changes are Disruption of feeding behaviors can effects. In all of the mitigation areas, further detailed in the descriptions of have negative energetic consequences as inasmuch as the density of certain each mitigation area. a result of either obtaining less food in species may be higher at certain times, NMFS conducted an independent a given time or expending more energy a selective reduction of training and analysis of the mitigation areas that the (in the effort to avoid the stressor) to testing activities in those higher-density Navy will implement and that are find the necessary food elsewhere, and areas and times is expected to lessen the included in this rule. NMFS’ analysis extensive disruptions of this sort magnitude of take overall, as well as the indicates that the measures in these (especially over multiple sequential specific likelihood of hearing mitigation areas will reduce the days) could accumulate in a manner impairment or vessel strike. likelihood or severity of adverse impacts that could negatively impact to marine mammal species or their reproductive success or survival. By Regarding operational practicability, habitat in the manner described in this limiting impacts in known feeding NMFS is heavily reliant on the Navy’s rule and are practicable for the Navy. areas, the overall severity of any take in description and conclusions, since the Specifically, below we describe how those areas is reduced and the Navy is best equipped to describe the certain activities are limited in feeding likelihood of impacts on reproduction degree to which a given mitigation areas, migratory corridors, or other or survival is further lessened. measure affects personnel safety or important habitat. To avoid repetition in Similarly, reducing impacts on prey mission effectiveness, and is practical to those sections, we describe here how species, either by avoiding causing implement. The Navy considers the these measures reduce the likelihood or mortality or changing their expected measures in this rule to be practicable, severity of effects on marine mammals distribution, can also lessen these sorts and NMFS concurs.

TABLE 50—GEOGRAPHIC MITIGATION AREAS FOR MARINE MAMMALS IN THE NWTT STUDY AREA

Mitigation Area Description

Stressor or Activity: • Sonar (mitigation does not apply to active sonar sources used for safety of navigation). • Explosives. • Physical disturbance and strikes. Resource Protection Focus: • Marine mammals (humpback whale, gray whale, Southern Resident killer whale, harbor porpoise). • Fish (including Chinook salmon). Mitigation Requirements: 1 • Marine Species Coastal Mitigation Area (year-round or seasonal if specified): —Within 50 nmi from shore in the Marine Species Coastal Mitigation Area: D The Navy will not conduct explosive training activities. D The Navy will not conduct explosive testing activities (except explosive Mine Countermeasure and Neutralization Testing). D The Navy will not conduct non-explosive missile training activities. D The Navy will issue annual seasonal awareness notification messages to alert Navy ships and aircraft to the possible presence of increased concentrations of Southern Resident killer whales from December 1 to June 30, humpback whales from May 1 through December 31, and gray whales from May 1 to November 30. For safe navigation and to avoid interactions with large whales, the Navy will instruct vessels to remain vigilant to the presence of Southern Resident killer whales, humpback whales, and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. Platforms will use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.2 —Within 20 nmi from shore in the Marine Species Coastal Mitigation Area: D The Navy will conduct no more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during test- ing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined. D To the maximum extent practical, the Navy will conduct explosive Mine Countermeasure and Neutralization Testing from July 1 through September 30 when operating within 20 nmi from shore. D From October 1 through June 30, the Navy will conduct a maximum of one explosive Mine Countermeasure and Neutralization Testing event, not to exceed the use of 20 explosives from bin E4 and 3 explosives from bin E7 annually, and not to exceed the use of 60 explosives from bin E4 and 9 explosives from bin E7 over the seven-year period of the rule. D The Navy will not conduct non-explosive large-caliber gunnery training activities. D The Navy will not conduct non-explosive bombing training activities. —Within 12 nmi from shore in the Marine Species Coastal Mitigation Area: D The Navy will not conduct Anti-Submarine Warfare Tracking Exercise—Helicopter,—Maritime Patrol Aircraft,—Ship, or—Sub- marine training activities (which involve the use of mid-frequency or high-frequency active sonar). D The Navy will not conduct non-explosive Anti-Submarine Warfare Torpedo Exercise—Submarine training activities (which involve the use of mid-frequency or high-frequency active sonar). D The Navy will conduct a maximum of one Unmanned Underwater Vehicle Training event per year within 12 nmi from shore at the Quinault Range Site. In addition, Unmanned Underwater Vehicle Training events within 12 nmi from shore at the Quinault Range Site will be cancelled or moved to another training location if Southern Resident killer whales are detected at the planned training location during the event planning process, or immediately prior to the event, as applicable.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72413

TABLE 50—GEOGRAPHIC MITIGATION AREAS FOR MARINE MAMMALS IN THE NWTT STUDY AREA—Continued

Mitigation Area Description

D During explosive Mine Countermeasure and Neutralization Testing, the Navy will not use explosives in bin E7 closer than 6 nmi from shore in the Quinault Range Site. D The Navy will not conduct non-explosive small- and medium-caliber gunnery training activities. • Olympic Coast National Marine Sanctuary Mitigation Area (year-round): —Within the Olympic Coast National Marine Sanctuary Mitigation Area: D The Navy will conduct a maximum of 32 hours of surface ship hull-mounted MF1 mid-frequency active sonar during training an- nually. D The Navy will conduct no more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during test- ing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined. D The Navy will not conduct explosive Mine Countermeasure and Neutralization Testing activities. D The Navy will not conduct non-explosive bombing training activities. • Juan de Fuca Eddy Marine Species Mitigation Area (year-round): —Within the Juan de Fuca Eddy Marine Species Mitigation Area: D The Navy will conduct no more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during test- ing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined. D The Navy will not conduct explosive Mine Countermeasure and Neutralization Testing activities. • Stonewall and Heceta Bank Humpback Whale Mitigation Area (May 1–November 30): —Within the Stonewall and Heceta Bank Humpback Whale Mitigation Area from May 1 to November 30: D The Navy will not use surface ship hull-mounted MF1 mid-frequency active sonar during training or testing. D The Navy will not conduct explosive Mine Countermeasure and Neutralization Testing. • Point St. George Humpback Whale Mitigation Area (July 1–November 30): —Within the Point St. George Humpback Whale Mitigation Area from July 1 to November 30: D The Navy will not use surface ship hull-mounted MF1 mid-frequency active sonar during training or testing. D The Navy will not conduct explosive Mine Countermeasure and Neutralization Testing. • Northern Puget Sound Gray Whale Mitigation Area (March 1–May 31): —Within the Northern Puget Sound Gray Whale Mitigation Area from March 1 to May 31: D The Navy will not conduct Civilian Port Defense—Homeland Security Anti-Terrorism/Force Protection Exercises. • Puget Sound and Strait of Juan de Fuca Mitigation Area (year-round or seasonal if specified): —Within the Puget Sound and Strait of Juan de Fuca Mitigation Area: D The Navy will not use low-frequency, mid-frequency, or high-frequency active sonar during training or testing within the Puget Sound and Strait of Juan de Fuca Mitigation Area, unless a required element (i.e., a criterion necessary for the success of the event) necessitates that the activity be conducted in NWTT Inland Waters during (1) Unmanned Underwater Vehicle Training, (2) Civilian Port Defense—Homeland Security Anti-Terrorism/Force Protection Exercises, (3) activities conducted by Naval Sea Systems Command at designated locations, or (4) pierside sonar maintenance or testing at designated locations. D The Navy will use the lowest active sonar source levels practical to successfully accomplish each event. D Naval units will obtain permission from the appropriate designated Command authority prior to commencing pierside mainte- nance or testing with hull-mounted mid-frequency active sonar. D The Navy will conduct a maximum of one Unmanned Underwater Vehicle Training activity annually at the Navy 3 OPAREA, Navy 7 OPAREA, and Manchester Fuel Depot (i.e., a maximum of one event at each location). D The Navy will not use explosives during testing. D The Navy will not use explosives during training except at the Hood Canal EOD Range and Crescent Harbor EOD Range during explosive mine neutralization activities involving the use of Navy divers. D The Navy will not use explosives in bin E4 (>2.5–5 lb. net explosive weight) or above, and will instead use explosives in bin E0 (<0.1 lb. net explosive weight) or bin E3 (>0.5–2.5 lb. net explosive weight). D During February, March, and April at the Hood Canal EOD Range, the Navy will not use explosives in bin E3 (>0.5–2.5 lb. net explosive weight), and will instead use explosives in bin E0 (<0.1 lb. net explosive weight). D During August, September, and October at the Hood Canal EOD Range, the Navy will avoid using explosives in bin E3 (>0.5– 2.5 lb. net explosive weight) and will instead use explosives in bin E0 (<0.1 lb. net explosive weight) to the maximum extent practical unless necessitated by mission requirements. D At the Crescent Harbor EOD Range, the Navy will conduct explosive activities at least 1,000 m from the closest point of land. D The Navy will not conduct non-explosive live fire events in the mitigation area (except firing blank weapons), including gunnery exercises, missile exercises, torpedo exercises, bombing exercises, and Kinetic Energy Weapon Testing. D Navy event planners will coordinate with Navy biologists during the event planning process prior to conducting (1) Unmanned Underwater Vehicle Training at the NAVY 3 OPAREA, Manchester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and NAVY 7 OPAREA (for Southern Resident killer whales), (2) Civilian Port Defense—Homeland Security Anti-Ter- rorism/Force Protection Exercises (for Southern Resident killer whales and gray whales), (3) explosive mine neutralization activi- ties involving the use of Navy divers (for Southern Resident killer whales), and (4) Small Boat Attack Exercises, which involve firing blank small-caliber weapons (for Southern Resident killer whales and gray whales). Navy biologists will work with NMFS and will initiate communication with the appropriate marine mammal detection networks to determine the likelihood of applicable marine mammal species presence in the planned training location. Navy biologists will notify event planners of the likelihood of species presence. To the maximum extent practical, Navy planners will use this information when planning specific details of the event (e.g., timing, location, duration) to avoid planning activities in locations or seasons where species presence is expected. The Navy will ensure environmental awareness of event participants. Environmental awareness will help alert participating crews to the possible presence of applicable species in the training location. Lookouts will use the information to assist visual observa- tion of applicable mitigation zones and to aid in the implementation of procedural mitigation. In addition, Unmanned Underwater Vehicle Training events at the NAVY 3 OPAREA, Manchester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and NAVY 7 OPAREA will be cancelled or moved to another training location if the presence of Southern Resident killer whales is reported through available monitoring networks during the event planning process, or immediately prior to the event, as applicable.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72414 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 50—GEOGRAPHIC MITIGATION AREAS FOR MARINE MAMMALS IN THE NWTT STUDY AREA—Continued

Mitigation Area Description

D The Navy will issue annual seasonal awareness notification messages to alert Navy ships and aircraft operating within the Puget Sound and Strait of Juan de Fuca Mitigation Area to the possible presence of concentrations of Southern Resident killer whales from July 1 to November 30 in the Puget Sound and Strait of Juan de Fuca, and concentrations of gray whales from March 1 to May 31 in the Strait of Juan de Fuca and northern Puget Sound. For safe navigation and to avoid interactions with large whales, the Navy will instruct vessels to remain vigilant to the presence of Southern Resident killer whales and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. Platforms will use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing ac- tivities and to aid in the implementation of procedural mitigation. 1 Should national security present a requirement to conduct training or testing prohibited by the mitigation requirements specified in this table, naval units must obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with advance notification and include relevant information about the event (e.g., sonar hours, explosives use, non-explosive prac- tice munitions use) in its annual activity reports to NMFS. 2 The Navy will send these notification messages to all units operating throughout the NWTT Study Area.

BILLING CODE 3510–22–P

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72415

BILLING CODE 3510–22–C and/or proposed ESA critical habitat for canyons are also located within 50 nmi Marine Species Coastal Mitigation Area humpback whale, gray whale, Southern from shore in the Marine Species Resident killer whale, and harbor Coastal Mitigation Area. Within 50 nmi from shore—The 50 porpoise. The Olympic Coast National nmi from shore portion of the Marine See Table 50 for the specific Marine Sanctuary and Quinault, Grays, mitigation measures. Mitigation within Species Coastal Mitigation Area Guide, Willapa, Astoria, and Eel overlaps important feeding, migration, 50 nmi from shore will result in an

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 ER12NO20.000 72416 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

avoidance of potential impacts on Navy from conducting more than a total described in Section K.3.2.1 (Resource marine mammals within their important of 33 hours of surface ship hull- Description) of the 2020 FSEIS/OEIS. habitat areas from all explosive training mounted MF1 mid-frequency active Additionally, part of the Marine Species activities, all explosive testing activities sonar during testing annually within 20 Coastal Mitigation Area within 12 nmi except explosive Mine Countermeasure nmi from shore in the Marine Species from shore overlaps a portion of the and Neutralization Testing activities, Coastal Mitigation Area, in the Juan de Olympic Coast National Marine and non-explosive missile training Fuca Eddy Marine Species Mitigation Sanctuary. exercises. Additionally, this mitigation Area, and in the Olympic Coast National See Table 50 for the specific will eliminate impacts from active sonar Marine Sanctuary Mitigation Area mitigation measures. As described in used in conjunction with these combined. the proposed rule, mitigation prohibited activities, such as mid- Mitigation has also been added to requirements within 12 nmi from shore frequency and high-frequency active limit explosive Mine Countermeasure (which apply in addition to the sonar used during explosive torpedo and Neutralization Testing events in measures described above for within 50 events (e.g., MF1 and MF4 sonar during this area during certain times of year nmi and within 20 nmi from shore) Torpedo [Explosive] Testing). and limit the number of explosives in prohibit non-explosive small- and Since publication of the proposed each event. This mitigation is designed medium-caliber gunnery training rule, an additional measure has been primarily to avoid or reduce potential activities and Anti-Submarine Warfare added in this mitigation area that impacts on ESA-listed fish species Tracking Exercise—Helicopter, requires the Navy to issue annual based on their typical occurrence Maritime Patrol Aircraft, Ship, or seasonal awareness notification seasonally and at certain water depths Submarine training activities (which messages to further help avoid potential (see the 2020 NWTT FSEIS/OEIS for involve mid-frequency active sonar impacts from vessel strikes and training depth considerations). The mitigation [including surface ship hull-mounted and testing activities on humpback may also benefit feeding or migrating MF1 mid-frequency active sonar and whales, gray whales, and Southern humpback whales, migrating gray MF4 dipping sonar] and high-frequency Resident killer whales in the Marine whales, and feeding or transiting active sonar). Additionally, new Species Coastal Mitigation Area. The Southern Resident killer whales. One of mitigation since publication of the awareness notification messages will these new mitigation measures requires proposed rule prohibits non-explosive coincide with the seasons in which the Navy to conduct explosive Mine Anti-Submarine Warfare Torpedo humpback whales, gray whales, and Countermeasure and Neutralization Exercise—Submarine training activities Southern Resident killer whales are Testing from July 1 through September (which involves mid-frequency and most likely to be observed in 30 to the maximum extent practical high-frequency active sonar) within this concentrations in the mitigation area. when operating within 20 nmi from area. We expect these measures to result Southern Resident killer whales are shore. An additional new measure in an avoidance of potential impacts to most likely to be observed in the NWTT requires that the Navy can only conduct marine mammals from these activities. Offshore Area in winter and spring a maximum of one explosive Mine Since publication of the proposed (December 1 to June 30), due to prey Countermeasure and Neutralization rule, another additional measure has availability. Gray whales and humpback Testing event annually from October 1 been added, limiting the Navy to whales are most likely to be observed in through June 30, not to exceed the use conducting a maximum of one the NWTT Offshore Area from late of 20 explosives from bin E4 and 3 Unmanned Underwater Vehicle spring through fall (May 1 to November explosives from bin E7 annually, and Training event per year within 12 nmi 30 and May 1 through December 31, not to exceed the use of 60 explosives from shore at the Quinault Range Site, respectively), which correlates to from bin E4 and 9 explosives from bin and requiring the Navy to cancel or feeding or migration seasons. E7 over the seven-year period of the move Unmanned Underwater Vehicle Within 20 nmi from shore—The 20 rule. The new limit on the number of Training events if Southern Resident nmi from shore portion of the Marine explosives used annually and over the killer whales are detected within 12 nmi Species Coastal Mitigation Area seven-year period is designed primarily from shore at the Quinault Range Site. overlaps important feeding, migration, to reduce potential impacts on ESA- This measure is expected to help avoid or ESA-designated critical habitat, as listed fish, including Chinook salmon, any potential impacts on Southern described in Section K.3.2.1 of the 2020 the preferred prey source of Southern Resident killer whales during FSEIS/OEIS (Resource Description), for Resident Killer Whales. This mitigation Unmanned Underwater Vehicle gray whales, humpback whales, and will reduce the maximum potential Training events. Southern Resident killer whales. The exposure to explosives in bin E4 and bin Within 6 nmi from shore—Finally, in mitigation area also overlaps a E7 by approximately 40 percent in the addition to the mitigation measures significant portion of the Olympic Coast months and locations where ESA-listed described above, new mitigation during National Marine Sanctuary, and Astoria fish species (some of which are prey explosive Mine Countermeasure and and Eel canyons. species for killer whales), including Neutralization Testing prohibits the use See Table 50 for the specific Chinook salmon Upper Columbia River of explosives in bin E7 closer than 6 mitigation measures. As included in the Spring-Run Evolutionarily Significant nmi from shore in the Quinault Range proposed rule, mitigation requirements Unit, and Chinook salmon Central Site. This measure is primarily designed within 20 nmi from shore will (in Valley Spring-Run Evolutionarily to avoid overlap of the larger of the addition to the avoided impacts Significant Unit, are expected to be explosive bins used in this activity with described above for within 50 nmi) present in the NWTT Offshore Area. ESA-listed fish species, including avoid or reduce potential impacts on Within 12 nmi from shore—The 12 Chinook salmon, which are an marine mammals within these habitats nmi from shore portion of the Marine important prey species for killer whales. from non-explosive large-caliber Species Coastal Mitigation Area gunnery training and non-explosive overlaps important feeding, migration, Olympic Coast National Marine bombing training. Additionally, since and ESA-designated critical habitat for Sanctuary Mitigation Area publication of the proposed rule, a gray whales, humpback whales, and Mitigation within the Olympic Coast measure has been added limiting the Southern Resident killer whales, as National Marine Sanctuary Mitigation

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72417

Area is designed to avoid or reduce Coast National Marine Sanctuary Section K.3.2.2.2 (Operational potential impacts from surface ship Mitigation Area combined. Assessment) of the 2020 NWTT FSEIS/ hull-mounted MF1 mid-frequency As included in the proposed rule, the OEIS, when scheduling activities, the active sonar, explosives during Mine Navy will not conduct explosive Mine Navy considers the need to minimize Countermeasure and Neutralization Countermeasure and Neutralization sea space and airspace conflicts between Testing activities, and non-explosive Testing activities or non-explosive its own activities and other users with practice munitions during non- bombing training activities in the consideration for public safety. explosive bombing training in important Olympic Coast National Marine Waters within the Juan de Fuca Eddy feeding or migration habitat for gray Sanctuary Mitigation Area. Because this Marine Species Mitigation Area whales, humpback whales, Southern mitigation area is located entirely (including areas off Cape Flattery) are Resident killer whales, and other within 50 nmi from shore in the Marine important foraging habitat for sanctuary resources, including Chinook Species Coastal Mitigation Area, the aggregations of humpback whales and salmon, which serve as an important combined mitigation will ensure that migration habitat for Southern Resident marine mammals and their habitat are killer whales as they transit between prey species for killer whales. not exposed to explosives in the Inland Waters and the Offshore Area Mitigation within the Olympic Coast Sanctuary from any training or testing (see Section K.3.2.1.1 (Humpback National Marine Sanctuary Mitigation activities. Furthermore, additive Whale) and Section K.3.2.1.3 (Southern Area may avoid or reduce impacts to mitigation within 20 nmi and 12 nmi Resident Killer Whale) of the 2020 other marine mammal species that from shore in the Marine Species FSEIS/OEIS). The full extent of the Juan inhabit, forage in, and migrate through Coastal Mitigation Area will help de Fuca Eddy is not incorporated into the sanctuary. As detailed in Section further avoid or reduce potential the Northern Washington humpback 6.1.2.1 (Olympic Coast National Marine impacts from active sonar and non- whale biologically important feeding Sanctuary) of the 2015 NWTT Final EIS/ explosive practice munitions on area because the development of OEIS, the Olympic Coast National Sanctuary resources. biologically important areas was Marine Sanctuary consists of an area of restricted to U.S. waters only. Therefore, Juan de Fuca Eddy Marine Species 2,408 square nmi of marine waters and the Northern Washington biologically Mitigation Area the submerged lands off the Olympic important humpback whale feeding area Peninsula Coastline of Washington. The The Juan de Fuca Eddy system is extends northward to the boundary of sanctuary extends approximately 38 located off Cape Flattery and contains the U.S. Exclusive Economic Zone nmi seaward, covering much of the elevated macronutrient levels from (Calambokidis et al., 2015; Ferguson et continental shelf and the Quinault spring to fall, derived primarily from al., 2015a; Ferguson et al., 2015b). Canyon. Due to the Juan de Fuca Eddy upwelling of nutrient-rich deep waters However, humpback whale aggregations ecosystem created from localized from the California Undercurrent feed across this political boundary in currents at the entrance to the Strait of combined with lesser contributions the nutrient rich waters throughout the Juan de Fuca and the diversity of bottom from the Strait of Juan de Fuca outflow Juan de Fuca Eddy. Therefore, waters habitats, the Olympic Coast National (MacFadyen et al., 2008). Mitigation within the Juan de Fuca Eddy between Marine Sanctuary supports a variety of within the Juan de Fuca Eddy Marine the Northern Washington humpback marine life. The diversity of habitats, Species Mitigation Area is designed to whale biologically important area and and the nutrient-rich upwelling zone avoid or reduce potential impacts from the northern boundary of the NWTT (which exhibits the greatest volume of surface ship hull-mounted MF1 mid- Offshore Area are included in the Juan upwelling in North America) that drives frequency active sonar and explosives de Fuca Eddy Marine Species Mitigation high primary productivity in this area, during Mine Countermeasure and Area. contribute to the high species diversity Neutralization Testing activities on Migrating gray whales may also use in the Olympic Coast National Marine Southern Resident killer whales and this area, as well as other species of Sanctuary. According to the Office of humpback whales within important marine mammals, including sperm National Marine Sanctuaries (2008), the migration and feeding habitats. The whales. Sperm whale concentrations Sanctuary provides important foraging Navy will not conduct explosive Mine typically correlate with areas of high and migration habitat for 29 species of Countermeasure and Neutralization productivity near drop-offs and areas marine mammals. Testing activities in this mitigation area, with strong currents and steep and will conduct no more than a total topography (Gannier and Praca, 2007; As included in the proposed rule, the of 33 hours of surface ship hull- Jefferson et al., 2015), such as the Navy will conduct a maximum of 32 mounted MF1 mid-frequency active conditions present seasonally in the hours annually of surface ship hull- sonar during testing annually within 20 Juan de Fuca Eddy (MacFadyen et al., mounted MF1 mid-frequency active nmi from shore in the Marine Species 2008). The mitigation area’s nutrient- sonar during training in the Olympic Coastal Mitigation Area, in the Juan de rich waters and seasonal upwelling Coast National Marine Sanctuary Fuca Eddy Marine Species Mitigation provide an abundance of marine Mitigation Area. Additionally, since Area, and in the Olympic Coast National mammal prey species and favorable publication of the proposed rule, and as Marine Sanctuary Mitigation Area foraging conditions for concentrations of discussed in the Marine Species Coastal combined. marine mammals. The mitigation will Mitigation Area section above, an Additional measures were considered also help avoid or reduce potential additional measure has been added in this area, however, NMFS determined impacts on other species, including limiting the Navy from conducting more that additional measures were not Southern Resident killer whale than a total of 33 hours of surface ship warranted, given that the Navy does not preferred prey, Chinook salmon. hull-mounted MF1 mid-frequency generally schedule other training and active sonar during testing annually testing activities in this portion of the Stonewall and Heceta Bank Humpback within 20 nmi from shore in the Marine Study Area due to the high volume of Whale Mitigation Area Species Coastal Mitigation Area, in the commercial vessel traffic. Therefore the Mitigation in the Stonewall and Juan de Fuca Eddy Marine Species potential for impacts to marine Heceta Bank Humpback Whale Mitigation Area, and in the Olympic mammals is low. As described in Mitigation Area, which is required from

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72418 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

May 1 to November 30, is primarily observed at Heceta Bank during spring important area. Gray whales feed in this designed to avoid or reduce potential and summer, possibly indicating a area from March 1 to May 31. The Navy impacts from surface ship hull-mounted correlation between the abundance of will not conduct Civilian Port Defense— MF1 mid-frequency active sonar and prey species, such as large cephalopods Homeland Security Anti-Terrorism/ explosive Mine Countermeasure and (e.g., squid) and fish (Tynan et al., Force Protection Exercises during this Neutralization Testing activities to 2005). Therefore, in addition to benefits same time period (March 1 to May 31) humpback whales in an important to humpback whales and harbor in this mitigation area. Civilian Port seasonal feeding area. See Table 50 for porpoise in important foraging habitat, Defense—Homeland Security Anti- the specific mitigation measures. mitigation within the Stonewall and Terrorism/Force Protection Exercises The Stonewall and Heceta Bank Heceta Bank Humpback Whale are multi-day events that involve Humpback Whale Mitigation Area is Mitigation Area will likely help avoid or aircraft, surface vessels, and unmanned within 50 nmi from shore in the Marine reduce potential impacts to additional underwater vehicles using high- Species Coastal Mitigation Area. marine mammal species that may feed frequency active sonar and other Therefore, given the combined in or migrate through this area. systems to train to detect non-explosive mitigation in these two areas, no underwater mine shapes. Therefore, Point St. George Humpback Whale explosive training or testing will occur with the Navy restricted from Mitigation Area in this mitigation area from May 1 to conducting this activity in the Northern November 30. Additionally, a portion of The Point St. George Humpback Puget Sound Gray Whale Mitigation the Stonewall and Heceta Bank Whale Mitigation area contains Area during the specified time period, Humpback Whale Mitigation Area is important humpback whale feeding potential impacts from vessel within 20 nmi from shore in the Marine habitat. From July to November, movements, towed in-water devices, Species Coastal Mitigation Area. humpback whales feed in an area off of and active sonar on gray whales will be Mitigation measures between these two Oregon and California at Point St. avoided during important times in this areas will help further reduce potential George, an area that has similar feeding area. impacts from additional sources of productive upwelling conditions as The Northern Puget Sound Gray active sonar, as well as non-explosive Heceta Bank. Additionally, the area Whale Mitigation Area is located practice munitions, year round, given overlaps important habitats for several entirely within the Puget Sound and that the Marine Species Coastal other species, including potential gray Strait of Juan de Fuca Mitigation Area. Mitigation Area is effective year round. whale migration habitat and Southern Therefore, mitigation in the Puget From May to November, humpback Resident killer whale feeding and Sound and Strait of Juan de Fuca whales aggregate to feed on krill and migration habitat. Migrating Chinook Mitigation Area, described below, will small fish in this area. Enhanced salmon may occur in this area as well. further reduce potential impacts on gray vertical and horizontal mixing Mitigation in the Point St. George whale feeding in this location. associated with Heceta Bank results in Humpback Whale Mitigation Area, higher prey densities, which improves effective from July 1 to November 30, Puget Sound and Strait of Juan de Fuca foraging conditions for humpback was initially designed to avoid or Mitigation Area whales and harbor porpoise (Tynan et reduce potential impacts from mid- The Puget Sound and Strait of Juan de al., 2005). Humpback whales and harbor frequency active sonar on humpback Fuca Mitigation Area encompasses the porpoise aggregate in this area in the whales, as this is an important seasonal full extent of NWTT Inland Waters and, summer when prey concentrations are feeding area. Since the proposed rule, therefore, the mitigation area fully thought to be highest. an additional measure has been added overlaps each known important marine In addition to containing humpback that prohibits the Navy from conducting mammal feeding and migration habitat whale and harbor porpoise feeding explosive Mine Countermeasure and area in NWTT inland waters. (See habitat, the Stonewall and Heceta Bank Neutralization Testing activities in this Section K.3.3.1 (Resource Description) Humpback Whale Mitigation Area mitigation area. of the 2020 FSEIS/OEIS for a full overlaps important habitats for several The Point St. George Humpback description of these areas.) This other species, including potential gray Whale Mitigation Area is located includes feeding and potential whale migration habitat; Southern entirely within 20 nmi from shore in the migration habitat for gray whales and Resident killer whale feeding, migration Marine Species Coastal Mitigation Area. ESA-designated critical habitat for and proposed ESA critical habitat; and Therefore, given the combined Southern Resident killer whales, as well Chinook salmon migration habitat. mitigation in these two areas, no as for one of the Southern Resident Other marine mammal species have also explosive training or testing will occur killer whales’ primary sources of prey, been observed in the vicinity of Heceta in the Point St. George Humpback Puget Sound Chinook salmon. Bank. The enhanced vertical and Whale Mitigation Area from July 1 to Mitigation in the Puget Sound and Strait horizontal mixing associated with November 30. Additionally, potential of Juan de Fuca Mitigation Area is Heceta Bank that results in higher prey impacts to marine mammals from designed to minimize potential impacts densities and improved foraging surface ship hull-mounted MF1 mid- on these species and their habitat in conditions for humpback whales and frequency active sonar as well as non- NWTT Inland Waters. See Table 50 for harbor porpoise may also serve to explosive practice munitions will be the specific mitigation measures. influence the presence of other marine avoided or reduced year round. As included in the proposed rule, mammal species in this area (Tynan et naval units are required to obtain al., 2005). For example, sperm whales, Northern Puget Sound Gray Whale approval from the appropriate Baird’s beaked whales, Cuvier’s beaked Mitigation Area designated Command authority prior to whales, Pacific white-sided dolphins, The Northern Puget Sound Gray commencing pierside maintenance or northern right whale dolphins, Risso’s Whale Mitigation Area fully overlaps testing with hull-mounted mid- dolphins, and Dall’s porpoise have been the biologically important gray whale frequency active sonar. This measure observed at Heceta Bank in spring or feeding habitat identified by will elevate the situational and summer during past surveys (Tynan et Calambokidis et al. (2015) and a portion environmental awareness of respective al., 2005). Sperm whales have been of the gray whale migration biologically Command authorities during the event

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72419

planning process. Requiring designated not implemented by the Navy in NWTT least 72 hours in advance: Central Command authority approval provides Phase II. See that section and Table 50 Council of the Tlingit and Haida Indian an increased level of assurance that for all other mitigation measures. Tribes, Ketchikan Indian Corporation, mid-frequency active sonar is a required New mitigation in the Puget Sound Organized Village of Saxman, and element (i.e., a criterion necessary for and Strait of Juan de Fuca Mitigation Metlakatla Indian Community, Annette the success of the event) for each event. Area is designed to help avoid any Island Reserve. These notifications will Such authorizations are typically based potential impacts from training and minimize potential impacts on on the unique characteristics of the area testing on Southern Resident killer subsistence hunters. from a military readiness perspective, whales in NWTT Inland Waters. With Mitigation Conclusions taking into account the importance of implementation of these new mitigation the area for marine species and the need measures, we do not anticipate any take NMFS has carefully evaluated the to mitigate potential impacts on of Southern Resident killer whales in mitigation measures—many of which Southern Resident killer whales (and NWTT Inland Waters due to NWTT were developed with NMFS’ input other marine mammals, such as gray training and testing activities. Based on during the previous phases of Navy whales) to the maximum extent seasonal density data, Southern training and testing authorizations but practical. Resident killer whale occurrence is several of which are new since Also included in the proposed rule, either not anticipated or is expected to implementation of the 2015 to 2020 year-round mitigation at the Crescent be infrequent at Naval Sea Systems regulations or new since publication of Harbor Explosive Ordnance Disposal Command testing sites and in the the proposed rule (and addressing some (EOD) Range prohibits explosive locations where pierside maintenance of the information or recommendations activities within 1,000 m of the closest and testing are designated to occur. received during the public comment point of land. This measure is primarily Additionally, given the sheltered, calm period). NMFS has also considered a intended to avoid or reduce potential waters, there is an increased likelihood broad range of other measures (e.g., the impacts on bull trout, however, it may that any Southern Resident killer measures considered but eliminated in also benefit other species, such as whales or gray whales in these areas the 2020 NWTT FSEIS/OEIS, which Southern Resident killer whales would be observed by Navy Lookouts, reflect other comments that have arisen (although they have not been observed as described in Section 5.3.2.1 (Active via NMFS or public input in past years) regularly at the Crescent Harbor EOD Sonar) of the 2020 NWTT FSEIS/OEIS. in the context of ensuring that NMFS Range), gray whales, and Puget Sound New mitigation in this mitigation area prescribes the means of effecting the Chinook salmon. Finally, as also will reduce the types of active sonar least practicable adverse impact on the included in the proposed rule, for activities and the active sonar source affected marine mammal species or Civilian Port Defense—Homeland levels when practical, and therefore the stocks and their habitat and on the Security Anti-Terrorism/Force overall amount of active sonar (i.e., availability of the species or stocks for Protection Exercises, Navy event number of hours) conducted in the subsistence uses. Our evaluation of planners will coordinate with Navy mitigation area, and the overall potential measures included biologists during the event planning potential for marine mammal exposure, consideration of the following factors in process. Navy biologists will work with while allowing the Navy to successfully relation to one another: The manner in NMFS to determine the likelihood of accomplish events that require the use which, and the degree to which, the gray whale and Southern Resident killer of active sonar in designated locations. successful implementation of the whale presence in the planned training Additionally, new mitigation will mitigation measures is expected to location. Navy biologists will notify effectively reduce the locations, charge reduce the likelihood and/or magnitude event planners of the likelihood of killer sizes, and overall annual number of of adverse impacts to marine mammal whale and gray whale presence as they explosive detonations in the mitigation species or stocks and their habitat; the plan specific details of the event (e.g., area, which will avoid or reduce manner in which, and the degree to timing, location, duration), with the goal potential overlap of explosive activities which, the successful implementation of of minimizing impacts to killer whales within Southern Resident killer whale the mitigation measures is expected to and gray whales through the adjustment and gray whale habitat to the maximum reduce the likelihood and/or magnitude of event details, where practical. The extent practical. New mitigation will of adverse impacts on subsistence uses; Navy will also ensure environmental also help avoid any impacts from the proven or likely efficacy of the awareness of event participants. explosives and non-explosive practice measures; and the practicability of the Environmental awareness will help alert munitions on marine mammals measures for applicant implementation, participating ship and aircraft crews to throughout NWTT Inland Waters. including (for measures to address the possible presence of marine adverse impacts to marine mammal Availability for Subsistence Uses mammals in the training location, such species or stocks and their habitat) as gray whales and Southern Resident The nature of subsistence activities by consideration of personnel safety, killer whales. Alaskan Natives in the NWTT Study practicality of implementation, and As described previously, this final Area are discussed in detail below, in impact on the effectiveness of the rule includes many new mitigation the Subsistence Harvest of Marine military readiness activity. measures in the Puget Sound and Strait Mammals section of this final rule. As Based on our evaluation of the Navy’s of Juan de Fuca Mitigation Area to noted in that section, testing activities proposed measures, as well as other further protect marine mammals, in the Western Behm Canal are the only measures considered by the Navy and particularly Southern Resident killer activities within the NWTT Study Area NMFS, NMFS has determined that the whales. The Assessment of Mitigation that have the potential to affect mitigation measures included in this Measures for NWTT Study Area section subsistence uses of marine mammals. final rule are the appropriate means of describes mitigation that is new to this The Navy will notify the following effecting the least practicable adverse final rule, and distinguishes between Alaskan Native communities of the impact on marine mammal species or new mitigation that is a continuation of issuance of Notices to Mariners of Navy stocks and their habitat, paying the Navy’s voluntary Phase II operations that involve restricting particular attention to rookeries, mating mitigation, and new measures that were access in the Western Behm Canal at grounds, and areas of similar

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72420 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

significance, and considering stressors; the consequences of a presence, abundance, distribution, and specifically personnel safety, particular marine mammal response to density of species); practicality of implementation, and their individual fitness and, ultimately, • An increase in the understanding of impact on the effectiveness of the populations; and the effectiveness of the nature, scope, or context of the military readiness activity, and on the implemented mitigation measures. likely exposure of marine mammals availability of the species and stocks for Taken together, mitigation and and/or ESA-listed species to any of the subsistence uses. Additionally, an monitoring comprise the Navy’s potential stressors associated with the adaptive management provision ensures integrated approach for reducing action (e.g., sound, explosive that mitigation is regularly assessed and environmental impacts from the detonation, or military expended provides a mechanism to improve the specified activities. The Navy’s overall materials), through better understanding mitigation, based on the factors above, monitoring approach seeks to leverage of one or more of the following: (1) The through modification as appropriate. and build on existing research efforts action and the environment in which it Thus, NMFS concludes that the whenever possible. occurs (e.g., sound-source mitigation measures outlined in this As agreed upon between the Navy and characterization, propagation, and final rule satisfy the statutory standard NMFS, the monitoring measures ambient noise levels), (2) the affected and that any adverse impacts that presented here, as well as the mitigation species (e.g., life history or dive remain cannot be practicably further measures described above, focus on the patterns), (3) the likely co-occurrence of mitigated. protection and management of marine mammals and/or ESA-listed potentially affected marine mammals. A Monitoring marine species with the action (in well-designed monitoring program can whole or part), and (4) the likely Section 101(a)(5)(A) of the MMPA provide important feedback for biological or behavioral context of states that in order to authorize validating assumptions made in exposure to the stressor for the marine incidental take for an activity, NMFS analyses and allow for adaptive mammal and/or ESA-listed marine must set forth requirements pertaining management of marine resources. species (e.g., age class of exposed to the monitoring and reporting of such animals or known pupping, calving, or taking. The MMPA implementing Integrated Comprehensive Monitoring Program (ICMP) feeding areas); regulations at 50 CFR 216.104(a)(13) • An increase in the understanding of indicate that requests for incidental take The Navy’s ICMP is intended to how individual marine mammals or authorizations must include the coordinate marine species monitoring ESA-listed marine species respond suggested means of accomplishing the efforts across all regions and to allocate (behaviorally or physiologically) to the necessary monitoring and reporting that the most appropriate level and type of specific stressors associated with the will result in increased knowledge of effort for each range complex based on action (in specific contexts, where the species and of the level of taking or a set of standardized objectives, and in possible, e.g., at what distance or impacts on populations of marine acknowledgement of regional expertise received level); mammals that are expected to be and resource availability. The ICMP is • An increase in the understanding of present. designed to be flexible, scalable, and how anticipated individual responses, Although the Navy has been adaptable through the adaptive to individual stressors or anticipated conducting research and monitoring in management and strategic planning combinations of stressors, may impact the NWTT Study Area for over 20 years, processes to periodically assess progress either (1) the long-term fitness and it developed a formal marine species and reevaluate objectives. This process survival of an individual; or (2) the monitoring program in support of the includes conducting an annual adaptive population, species, or stock (e.g., MMPA and ESA authorizations in 2009. management review meeting, at which through impacts on annual rates of This robust program has resulted in the Navy and NMFS jointly consider the recruitment or survival); hundreds of technical reports and prior-year goals, monitoring results, and • An increase in the understanding of publications on marine mammals that related scientific advances to determine the effectiveness of mitigation and have informed Navy and NMFS if monitoring plan modifications are monitoring measures; analyses in environmental planning warranted to more effectively address • A better understanding and record documents, MMPA rules, and ESA program goals. Although the ICMP does of the manner in which the Navy Biological Opinions. The reports are not specify actual monitoring field work complies with the incidental take made available to the public on the or individual projects, it does establish regulations and LOAs and the ESA Navy’s marine species monitoring a matrix of goals and objectives that Incidental Take Statement; website have been developed in coordination • An increase in the probability of (www.navymarinespeciesmonitoring.us) with NMFS. As the ICMP is detecting marine mammals (through and the data on the Ocean implemented through the Strategic improved technology or methods), both Biogeographic Information System Planning Process (see the section specifically within the mitigation zones Spatial Ecological Analysis of below), detailed and specific studies (thus allowing for more effective Megavertebrate Populations (OBIS– that support the Navy’s and NMFS’ top- implementation of the mitigation) and SEAMAP) site (http:// level monitoring goals will continue to in general, to better achieve the above seamap.env.duke.edu/) and the Animal be developed. In essence, the ICMP goals; and Telemetry Network (https://atn.ioos.us/ directs that monitoring activities • Ensuring that adverse impact of ). relating to the effects of Navy training activities remains at the least practicable The Navy will continue collecting and testing activities on marine species level. monitoring data to inform our should be designed to contribute understanding of the occurrence of towards one or more of the following Strategic Planning Process for Marine marine mammals in the NWTT Study top-level goals: Species Monitoring Area; the likely exposure of marine • An increase in the understanding of The Navy also developed the Strategic mammals to stressors of concern in the the likely occurrence of marine Planning Process for Marine Species NWTT Study Area; the response of mammals and/or ESA-listed marine Monitoring, which establishes the marine mammals to exposures to species in the vicinity of the action (i.e., guidelines and processes necessary to

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72421

develop, evaluate, and fund individual the range complexes to leverage an NMFS has received multiple years’ projects based on objective scientific increase in return of the progress toward worth of annual exercise and study questions. The process uses an answering scientific monitoring monitoring reports addressing active underlying framework designed around questions. This includes in the NWTT sonar use and explosive detonations intermediate scientific objectives and a Study Area, for example, (a) satellite within the NWTT Study Area and other conceptual framework incorporating a tagging of blue whales, fin whales, Navy range complexes. The data and progression of knowledge spanning humpback whales, and Southern information contained in these reports occurrence, exposure, response, and Resident killer whales; (b) analysis of have been considered in developing consequence. The Strategic Planning existing passive acoustic monitoring mitigation and monitoring measures for Process for Marine Species Monitoring datasets; and (c) line-transect aerial the training and testing activities within is used to set overarching intermediate surveys for marine mammals in Puget the NWTT Study Area. The Navy’s scientific objectives; develop individual Sound, Washington. annual exercise and monitoring reports monitoring project concepts; identify Numerous publications, dissertations, may be viewed at: https:// potential species of interest at a regional and conference presentations have www.fisheries.noaa.gov/national/ scale; evaluate, prioritize, and select resulted from research conducted under marine-mammal-protection/incidental- specific monitoring projects to fund or the marine species monitoring program take-authorizations-military-readiness- continue supporting for a given fiscal (https:// activities and https:// year; execute and manage selected www.navymarinespeciesmonitoring.us/ www.navymarinespeciesmonitoring.us/ monitoring projects; and report and reading-room/publications/), resulting reporting/. evaluate progress and results. This in a significant contribution to the body The Navy’s marine species monitoring process addresses relative investments of marine mammal science. Publications program typically supports several to different range complexes based on on occurrence, distribution, and density monitoring projects in the NWTT Study goals across all range complexes, and have fed the modeling input, and Area at any given time. Additional monitoring leverages multiple publications on exposure and response details on the scientific objectives for techniques for data acquisition and have informed Navy and NMFS analysis each project can be found at https:// analysis whenever possible. The of behavioral response and www.navymarinespeciesmonitoring.us/ Strategic Planning Process for Marine consideration of mitigation measures. regions/pacific/current-projects/. Species Monitoring is also available Furthermore, collaboration between Projects can be either major multi-year online (http://www.navymarinespecies the monitoring program and the Navy’s efforts, or one to two-year special monitoring.us/). research and development (e.g., the studies. The emphasis on species- Office of Naval Research) and specific monitoring in the Pacific Past and Current Monitoring in the demonstration-validation (e.g., Living Northwest is directed towards collecting NWTT Study Area Marine Resources) programs has been and analyzing tagging data related to the The monitoring program has strengthened, leading to research tools occurrence of blue whales, fin whales, undergone significant changes since the and products that have already humpback whales, and Southern first rule was issued for the NWTT transitioned to the monitoring program. Resident killer whales. In 2017, Study Area in 2010, which highlights These include Marine Mammal researchers deployed 28 tags on blue the monitoring program’s evolution Monitoring on Ranges (M3R), controlled whales and one tag on a fin whale (Mate through the process of adaptive exposure experiment behavioral et al., 2017, 2018a). Humpback whales management. The monitoring program response studies (CEE BRS), acoustic have been tagged with satellite tags, and developed for the first cycle of sea glider surveys, and global biopsy samples have been collected environmental compliance documents positioning system-enabled satellite (Mate et al., 2017, 2018b, 2019, 2020). (e.g., U.S. Department of the Navy, tags. Recent progress has been made Location information on Southern 2008a, 2008b) utilized effort-based with better integration with monitoring Resident killer whales was provided via compliance metrics that were somewhat across all Navy at-sea study areas, satellite tag data and acoustic detections limiting. Through adaptive management including study areas in the Pacific and (Emmons et al., 2019; Hanson et al., discussions, the Navy designed and the Atlantic Oceans, and various other 2018; Riera et al., 2019). Also, conducted monitoring studies according testing ranges. Publications from the distribution of Chinook salmon (a key to scientific objectives, thereby Living Marine Resources and Office of prey species of Southern Resident killer eliminating basing requirements upon Naval Research programs have also whales) in coastal waters from Alaska to metrics of level-of-effort. Furthermore, resulted in significant contributions to Northern California was studied refinements of scientific objectives have information on hearing ranges and (Shelton et al., 2018). continued through the latest acoustic criteria used in effects Specific monitoring under the 2015– authorization cycle. modeling, exposure, and response, as 2020 regulations included the following Progress has also been made on the well as in developing tools to assess projects: conceptual framework categories from biological significance (e.g., population- • QRS Unmanned Acoustic Glider; the Scientific Advisory Group for Navy level consequences). • PAM for Marine Mammals in the Marine Species Monitoring (U.S. NMFS and the Navy also consider NWTRC; Department of the Navy, 2011), ranging data collected during procedural • Modeling the Offshore Distribution from occurrence of animals, to their mitigations as monitoring. Data are of Southern Resident Killer Whales in exposure, response, and population collected by shipboard personnel on the Pacific Northwest; consequences. The Navy continues to hours spent training, hours of • Marine Mammal Density Surveys in manage the Atlantic and Pacific observation, hours of sonar, and marine the Pacific Northwest (Inland Puget program as a whole, with monitoring in mammals observed within the Sound); each range complex taking a slightly mitigation zones when mitigations are • Blue and Fin Whale Tagging and different but complementary approach. implemented. These data are provided Genetics; Tagging and Behavioral The Navy has continued to use the to NMFS in both classified and Monitoring of Sea Lions in the Pacific approach of layering multiple unclassified annual exercise reports, Northwest in Proximity to Navy simultaneous components in many of which will continue under this rule. Facilities;

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72422 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

• Harbor Seal Density Estimation; within the Navy training ranges; (2) Reporting Humpback Whale Tagging in Support of describe the influence of environmental In order to issue incidental take Marine Mammal Monitoring Across covariates on salmonid occurrence; and authorization for an activity, section Multiple Navy Training Areas in the (3) describe the occurrence of salmonids 101(a)(5)(A) of the MMPA states that Pacific Ocean; in relation to Southern Resident killer NMFS must set forth requirements • Modeling the Offshore Distribution whale distribution. Methods include: pertaining to the monitoring and of Chinook Salmon in the Pacific Acoustic telemetry (pinger tags) and reporting of such taking. Effective Northwest; pop-up satellite tagging. • Characterizing the Distribution of reporting is critical both to compliance ESA-Listed Salmonids in the Pacific Adaptive Management as well as ensuring that the most value is obtained from the required Northwest; The regulations governing the take of • monitoring. Reports from individual Guadalupe Fur Seal Satellite marine mammals incidental to Navy Tracking; monitoring events, results of analyses, training and testing activities in the publications, and periodic progress Future monitoring efforts in the NWTT Study Area contain an adaptive NWTT Study Area are anticipated to reports for specific monitoring projects management component. Our will be posted to the Navy’s Marine continue along the same objectives: understanding of the effects of Navy determining the species and Species Monitoring web portal: http:// training and testing activities (e.g., www.navymarinespeciesmonitoring.us. populations of marine mammals present acoustic and explosive stressors) on and potentially exposed to Navy There were several different reporting marine mammals continues to evolve, training and testing activities in the requirements pursuant to the 2015–2020 which makes the inclusion of an NWTT Study Area, through tagging, regulations. All of these reporting adaptive management component both passive acoustic monitoring, refined requirements will continue under this valuable and necessary within the modeling, photo identification, biopsies, rule for the seven-year period. context of seven-year regulations. and visual monitoring. Notification of Injured, Live Stranded, Currently planned monitoring The reporting requirements associated or Dead Marine Mammals projects for the 2020–2027 rule are with this rule are designed to provide listed below. Monitoring projects are NMFS with monitoring data from the The Navy will consult the typically planned one year in advance; previous year to allow NMFS to Notification and Reporting Plan, which therefore, this list does not include all consider whether any changes to sets out notification, reporting, and projects that will occur over the entire existing mitigation and monitoring other requirements when injured, live period of the rule. requirements are appropriate. The use of stranded, or dead marine mammals are • Offshore Distribution of Southern adaptive management allows NMFS to detected. The Notification and Resident Killer Whales in the Pacific consider new information from different Reporting Plan is available at https:// Northwest (ongoing and planned sources to determine (with input from www.fisheries.noaa.gov/national/ through 2022)—Objectives include: (1) the Navy regarding practicability) on an marine-mammal-protection/incidental- Identify and classify Southern Resident annual or biennial basis if mitigation or take-authorizations-military-readiness- killer whale detections from acoustic monitoring measures should be activities. recorders and satellite tag tracking; (2) modified (including additions or Annual NWTT Monitoring Report Develop a model to estimate the deletions). Mitigation measures could be seasonal and annual occurrence patterns modified if new data suggests that such The Navy will submit an annual of Southern Resident killer whales modifications will have a reasonable report to NMFS of the NWTT Study relative to offshore Navy training ranges; likelihood of more effectively Area monitoring, which will be (3) Characterize occurrence of accomplishing the goals of the included in a Pacific-wide monitoring anthropogenic sounds in potential mitigation and monitoring and if the report including results specific to the Southern Resident killer whale habitat; measures are practicable. If the NWTT Study Area, describing the and (4) Develop state space habitat modifications to the mitigation, implementation and results from the model for Southern Resident killer monitoring, or reporting measures are previous calendar year. Data collection whale prey, based on fall Chinook substantial, NMFS will publish a notice methods will be standardized across salmon tagged and released from of the planned LOAs in the Federal Pacific Range Complexes including the California to British Columbia between Register and solicit public comment. MITT, HSTT, NWTT, and Gulf of Alaska 1977 and 1990 to estimate seasonal The following are some of the (GOA) Study Areas to the best extent distribution along the West Coast. possible sources of applicable data to be practicable, to allow for comparison in Methods include: Passive acoustic considered through the adaptive different geographic locations. The monitoring, model development, visual management process: (1) Results from report must be submitted to the survey, satellite tagging, and analysis of monitoring and exercise reports, as Director, Office of Protected Resources, archived data. required by MMPA authorizations; (2) NMFS, either within three months after • Characterizing the Distribution of compiled results of Navy funded the end of the calendar year, or within ESA-Listed Salmonids in the Pacific research and development studies; (3) three months after the conclusion of the Northwest (ongoing and planned results from specific stranding monitoring year, to be determined by through 2022)—Objectives include: To investigations; (4) results from general the Adaptive Management process. use a combination of acoustic and pop- marine mammal and sound research; NMFS will submit comments or up satellite tagging technology to and (5) any information which reveals questions on the draft monitoring provide critical information on spatial that marine mammals may have been report, if any, within three months of and temporal distribution of salmonids taken in a manner, extent, or number receipt. The report will be considered to inform salmon management, U.S. not authorized by these regulations or final after the Navy has addressed Navy training activities, and Southern subsequent LOAs. The results from NMFS’ comments, or three months after Resident killer whale conservation. The monitoring reports and other studies submittal of the draft if NMFS does not study seeks to (1) determine the may be viewed at https:// provide comments on the draft report. occurrence and timing of salmonids www.navymarinespeciesmonitoring.us. The report will describe progress of

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72423

knowledge made with respect to Within the annual classified training Commission (recently modified to occur monitoring study questions across exercise and testing activity reports, in conjunction with the annual multiple Navy ranges associated with separate from the unclassified reports monitoring technical review meeting). the ICMP. Similar study questions will described above, the Navy will Analysis and Negligible Impact be treated together so that progress on specifically include the following Determination each topic is summarized across information: multiple Navy ranges. The report need • Total hours of authorized low- General Negligible Impact Analysis not include analyses and content that frequency, mid-frequency, and high- Introduction does not provide direct assessment of frequency active sonar (all bins, by bin) cumulative progress on the monitoring used during training and testing NMFS has defined negligible impact plan study question. This will allow the annually within the Olympic Coast as an impact resulting from the Navy to provide a cohesive monitoring National Marine Sanctuary; and specified activity that cannot be report covering multiple ranges (as per • Total hours of surface ship hull- reasonably expected to, and is not ICMP goals), rather than entirely mounted MF1 mid-frequency active reasonably likely to, adversely affect the separate reports for the MITT, HSTT, sonar used in the following mitigation species or stock through effects on NWTT, and GOA Study Areas. areas: annual rates of recruitment or survival 1. Testing annually in three combined (50 CFR 216.103). A negligible impact NWTT Annual Training Exercise Report areas: 20 nmi from shore in the Marine finding is based on the lack of likely and Annual Testing Activity Report Species Coastal Mitigation Area, the adverse effects on annual rates of Each year, the Navy will submit two Juan de Fuca Eddy Marine Species recruitment or survival (i.e., population- preliminary reports (Quick Look Mitigation Area, and the Olympic Coast level effects). An estimate of the number Reports) to NMFS detailing the status of National Marine Sanctuary Mitigation of takes alone is not enough information applicable sound sources within 21 Area. on which to base an impact days after the anniversary of the date of 2. Training and testing from May 1 to determination. In considering how issuance of the LOAs. The Navy will November 30 within the Stonewall and Level A harassment or Level B also submit detailed reports (NWTT Heceta Bank Humpback Whale harassment (as presented in Tables 32 Annual Training Exercise and Annual Mitigation Area. and 33), factor into the negligible impact Testing Activity Reports) to NMFS 3. Training and testing from July 1 to analysis, in addition to considering the within three months after the one-year November 30 within the Point St. number of estimated takes, NMFS anniversary of the date of issuance of George Humpback Whale Mitigation considers other factors, such as the the LOAs. If desired, the Navy may elect Area. likely nature of any responses (e.g., to consolidate the NWTT Annual The final annual reports at the intensity, duration) and the context of Training Exercise Report and the conclusion of the authorization period any responses (e.g., critical reproductive Annual Testing Activity Report with (year seven) will also serve as the time or location, migration), as well as other exercise and activity reports from comprehensive close-out report and effects on habitat and the likely other range complexes in the Pacific include both the final year annual use effectiveness of the mitigation. We also Ocean for a single Pacific Training compared to annual authorization as assess the number, intensity, and Exercise and Testing Activity Report. well as a cumulative seven-year annual context of estimated takes by evaluating NMFS will submit comments or use compared to seven-year this information relative to population questions on the reports, if any, within authorization. NMFS must submit status. Consistent with the 1989 one month of receipt. The reports will comments on the draft close-out report, preamble for NMFS’ implementing be considered final after the Navy has if any, within three months of receipt. regulations (54 FR 40338; September 29, addressed NMFS’ comments, or one The report will be considered final after 1989), the impacts from other past and month after submittal of the drafts if the Navy has addressed NMFS’ ongoing anthropogenic activities are NMFS does not provide comments on comments, or three months after the incorporated into this analysis via their the draft reports. The annual reports submittal of the draft if NMFS does not impacts on the environmental baseline will contain a summary of all sound provide comments. (e.g., as reflected in the regulatory status sources used (total hours or quantity of Information included in the annual of the species, population size, and each bin of sonar or other non- reports may be used to inform future growth rate where known). impulsive source; total annual number adaptive management of activities In the Estimated Take of Marine of each type of explosive; and total within the NWTT Study Area. Mammals section, we identified the annual expended/detonated rounds subset of potential effects that are (missiles, bombs, sonobuoys, etc.) for Other Reporting and Coordination expected to rise to the level of takes each explosive bin). The Navy will continue to report and both annually and over the seven-year Both reports will also contain both coordinate with NMFS for the period covered by this rule, and then current year’s sonar and explosive use following: identified the maximum number of data as well as cumulative sonar and • Annual marine species monitoring takes we believe could occur (mortality) explosive use quantity from previous technical review meetings (in-person or or are reasonably expected to occur years’ reports. Additionally, if there remote, as circumstances allow and (harassment) based on the methods were any changes to the sound source agreed upon by NMFS and the Navy) described. The impact that any given allowance in the reporting year, or that also include researchers and the take will have on an individual, and cumulatively, the report will include a Marine Mammal Commission ultimately the species or stock, is discussion of why the change was made (currently, every two years a joint dependent on many case-specific factors and include analysis to support how the Pacific-Atlantic meeting is held); and that need to be considered in the change did or did not affect the analysis • Annual Adaptive Management negligible impact analysis (e.g., the in the 2020 NWTT FSEIS/OEIS and meetings (in-person or remote, as context of behavioral exposures such as MMPA final rule. See the regulations circumstances allow and agreed upon duration or intensity of a disturbance, below for more detail on the content of by NMFS and the Navy) that also the health of impacted animals, the the annual report. include the Marine Mammal status of a species that incurs fitness-

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72424 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

level impacts to individuals, etc.). For specific information related to the response to sound—i.e., sounds of a this rule we evaluated the likely impacts anticipated effects on individuals of a similar level emanating from a more of the enumerated maximum number of specific stock or where there is distant source have been shown to be harassment takes that are reasonably information about the status or structure less likely to evoke a response of equal expected to occur, and are authorized, of any species or stock that would lead magnitude (DeRuiter 2012, Falcone et in the context of the specific to a differing assessment of the effects al., 2017). The estimated number of circumstances surrounding these on the species or stock. Organizing our takes by Level A harassment and Level predicted takes. We also specifically analysis by grouping species or stocks B harassment does not equate to the assessed serious injury or mortality that share common traits or that will number of individual animals the Navy (hereafter referred to as M/SI) takes that respond similarly to effects of the expects to harass (which is lower), but could occur, as well as considering the Navy’s activities and then providing rather to the instances of take (i.e., traits and statuses of the affected species species- or stock-specific information exposures above the Level A harassment and stocks. Last, we collectively allows us to avoid duplication while and Level B harassment threshold) that evaluated this information, as well as assuring that we have analyzed the are anticipated to occur annually and other more taxa-specific information effects of the specified activities on each over the seven-year period. These and mitigation measure effectiveness, in affected species or stock. instances may represent either brief group-specific assessments that support Harassment exposures (seconds or minutes) or, in our negligible impact conclusions for some cases, longer durations of each stock or species. Because all of the The Navy’s harassment take request is exposure within a day. Some Navy’s specified activities will occur based on a model that includes a individuals may experience multiple within the ranges of the marine mammal quantitative assessment of procedural instances of take (i.e., on multiple days) stocks identified in the rule, all mitigation, which NMFS reviewed and over the course of a year, which means negligible impact analyses and concurs appropriately predicts the that the number of individuals taken is determinations are at the stock level maximum amount of harassment that is smaller than the total estimated takes. (i.e., additional species-level likely to occur. The model calculates Generally speaking, the higher the determinations are not needed). sound energy propagation from sonar, number of takes as compared to the other active acoustic sources, and population abundance, the more The specified activities reflect explosives during naval activities; the representative levels of training and repeated takes of individuals are likely, sound or impulse received by animat and the higher the actual percentage of testing activities. The Description of the dosimeters representing marine individuals in the population that are Specified Activities section describes mammals distributed in the area around likely taken at least once in a year. We annual activities. There may be some the modeled activity; and whether the look at this comparative metric to give flexibility in the exact number of hours, sound or impulse energy received by a us a relative sense of where a larger items, or detonations that may vary from marine mammal exceeds the thresholds portion of a species or stock is being year to year, but take totals will not for effects. Assumptions in the Navy taken by Navy activities, where there is exceed the maximum annual totals and model intentionally err on the side of a higher likelihood that the same seven-year totals indicated in Tables 32 overestimation when there are individuals are being taken on multiple and 33. We base our analysis and unknowns. Naval activities are modeled days, and where that number of days negligible impact determination on the as though they would occur regardless maximum number of takes that are of proximity to marine mammals, might be higher or more likely reasonably expected to occur and are meaning that no mitigation is sequential. Where the number of authorized, although, as stated before, considered (e.g., no power down or shut instances of take is 100 percent or less the number of takes are only a part of down) and without any avoidance of the of the abundance and there is no the analysis, which includes extensive activity by the animal. The final step of information to specifically suggest that qualitative consideration of other the quantitative analysis of acoustic a small subset of animals will be contextual factors that influence the effects, which occurs after the modeling, repeatedly taken over a high number of degree of impact of the takes on the is to consider the implementation of sequential days, the overall magnitude affected individuals. To avoid mitigation and the possibility that is generally considered low, as it could repetition, we provide some general marine mammals would avoid on one extreme mean that every analysis in this General Negligible continued or repeated sound exposures. individual taken will be taken on no Impact Analysis section that applies to NMFS provided input to, independently more than one day annually (a very all the species listed in Tables 32 and reviewed, and concurred with the Navy minimal impact) or, more likely, that 33, given that some of the anticipated on this process and the Navy’s analysis, some smaller portion of individuals are effects of the Navy’s training and testing which is described in detail in Section taken on one day annually, some are activities on marine mammals are 6 of the Navy’s rulemaking/LOA taken on a few not likely sequential expected to be relatively similar in application, was used to quantify days annually, and some are not taken nature. Then, in the Group and Species- harassment takes for this rule. at all. Specific Analyses section, we subdivide Generally speaking, the Navy and In the ocean, the Navy’s use of sonar into discussions of Mysticetes, NMFS anticipate more severe effects and other active acoustic sources is Odontocetes, and pinnipeds, as there from takes resulting from exposure to often transient and is unlikely to are broad life history traits that support higher received levels (though this is in repeatedly expose the same individual an overarching discussion of some no way a strictly linear relationship for animals within a short period, for factors considered within the analysis behavioral effects throughout species, example within one specific exercise. for those groups (e.g., high-level individuals, or circumstances) and less However, for some individuals of some differences in feeding strategies). Last, severe effects from takes resulting from species or stocks repeated exposures we break our analysis into species (and/ exposure to lower received levels. across different activities could occur or stocks), or groups of species (and the However, there is also growing evidence over the year, especially where events associated stocks) where relevant of the importance of distance in occur in generally the same area with similarities exist, to provide more predicting marine mammal behavioral more resident species (e.g., pinnipeds in

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72425

inland waters). In short, for some environmental, and species-specific qualify as take) of a generally shorter species or stocks we expect that the total information to determine the likely duration. We anticipate more severe anticipated takes represent exposures of nature of the modeled behavioral effects from takes when animals are a smaller number of individuals of responses and the potential fitness exposed to higher received levels of which some will be exposed multiple consequences for affected individuals. sound or at closer proximity to the times, but based on the nature of the Use of sonar and other transducers source. However, depending on the Navy activities and the movement would typically be transient and context of an exposure (e.g., depth, patterns of marine mammals, it is temporary. The majority of acoustic distance, if an animal is engaged in unlikely that individuals from most effects to individual animals from sonar important behavior such as feeding), a stocks (with the exception of one stock and other active sound sources during behavioral response can vary between of harbor seals) will be taken over more training and testing activities would be species and individuals within a than a few non-sequential days and, as primarily from ASW events. Unlike species. Specifically, given a range of described elsewhere, the nature of the other Navy training and testing Study behavioral responses that may be majority of the exposures is expected to Areas, no major training exercises classified as Level B harassment, to the be of a less severe nature. (MTEs) are planned in the NWTT Study degree that higher received levels are Area. In the range of potential expected to result in more severe Physiological Stress Response behavioral effects that might expect to behavioral responses, only a smaller Some of the lower level physiological be part of a response that qualifies as an percentage of the anticipated Level B stress responses (e.g., orientation or instance of Level B harassment by harassment from Navy activities might startle response, change in respiration, behavioral disturbance (which by nature necessarily be expected to potentially change in heart rate) discussed in the of the way it is modeled/counted, result in more severe responses (see the proposed rule would likely co-occur occurs within one day), the less severe Group and Species-Specific Analyses with the predicted harassments, end might include exposure to section below for more detailed although these responses are more comparatively lower levels of a sound, information). To fully understand the difficult to detect and fewer data exist at a detectably greater distance from the likely impacts of the predicted/ relating these responses to specific animal, for a few or several minutes. A authorized take on an individual (i.e., received levels of sound. Takes by Level less severe exposure of this nature could what is the likelihood or degree of B harassment, then, may have a stress- result in a behavioral response such as fitness impacts), one must look closely related physiological component as avoiding an area that an animal would at the available contextual information, well; however, we would not expect the otherwise have chosen to move through such as the duration of likely exposures Navy’s generally short-term, or feed in for some amount of time or and the likely severity of the exposures intermittent, and (typically in the case breaking off one or a few feeding bouts. (e.g., whether they will occur for a of sonar) transitory activities to create More severe effects could occur if an longer duration over sequential days or conditions of long-term continuous animal gets close enough to the source the comparative sound level that will be noise leading to long-term physiological to receive a comparatively higher level, received). Ellison et al. (2012) and stress responses in marine mammals is exposed continuously to one source Moore and Barlow (2013), among others, that could affect reproduction or for a longer time, or is exposed emphasize the importance of context survival. intermittently to different sources (e.g., behavioral state of the animals, Behavioral Response throughout a day. Such effects might distance from the sound source.) in result in an animal having a more severe evaluating behavioral responses of The estimates calculated using the flight response and leaving a larger area marine mammals to acoustic sources. BRF do not differentiate between the for a day or more or potentially losing different types of behavioral responses feeding opportunities for a day. Diel Cycle that rise to the level of take by Level B However, such severe behavioral effects Many animals perform vital functions, harassment. As described in the Navy’s are expected to occur infrequently. such as feeding, resting, traveling, and application, the Navy identified (with To help assess this, for sonar (LFAS/ socializing on a diel cycle (24-hour NMFS’ input) the types of behaviors MFAS/HFAS) used in the NWTT Study cycle). Behavioral reactions to noise that would be considered a take: Area, the Navy provided information exposure, when taking place in a Moderate behavioral responses as estimating the percentage of animals biologically important context, such as characterized in Southall et al. (2007) that may be taken by Level B disruption of critical life functions, (e.g., altered migration paths or dive harassment under each BRF that would displacement, or avoidance of important profiles; interrupted nursing, breeding, occur within 6-dB increments habitat, are more likely to be significant or feeding; or avoidance) that also (percentages discussed below in the if they last more than one day or recur would be expected to continue for the Group and Species-Specific Analyses on subsequent days (Southall et al., duration of an exposure. The Navy then section). As mentioned above, all else 2007) due to diel and lunar patterns in compiled the available data indicating being equal, an animal’s exposure to a diving and foraging behaviors observed at what received levels and distances higher received level is more likely to in many cetaceans, including beaked those responses have occurred, and result in a behavioral response that is whales (Baird et al. 2008, Barlow et al. used the indicated literature to build more likely to lead to adverse effects, 2020, Henderson et al. 2016, Schorr et biphasic behavioral response curves and which could more likely accumulate to al. 2014). Henderson et al. (2016) found cutoff distances that are used to predict impacts on reproductive success or that ongoing smaller scale events had how many instances of Level B survivorship of the animal, but other little to no impact on foraging dives for harassment by behavioral disturbance contextual factors (such as distance) are Blainville’s beaked whale, while multi- occur in a day. Take estimates alone do also important. The majority of takes by day training events may decrease not provide information regarding the Level B harassment are expected to be foraging behavior for Blainville’s beaked potential fitness or other biological in the form of milder responses (i.e., whale (Manzano-Roth et al., 2016). consequences of the reactions on the lower-level exposures that still rise to Consequently, a behavioral response affected individuals. We therefore the level of take, but would likely be lasting less than one day and not consider the available activity-specific, less severe in the range of responses that recurring on subsequent days is not

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72426 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

considered severe unless it could be extended intervals of non-activity in exposed at all. Where the instances of directly affect reproduction or survival between active sonar periods. Because take exceed 100 percent of the (Southall et al., 2007). Note that there is of the need to train in a large variety of population (i.e., are over 100 percent), a difference between multiple-day situations, the Navy does not typically multiple takes of some individuals are substantive behavioral reactions and conduct successive ASW exercises in predicted and expected to occur within multiple-day anthropogenic activities. the same locations. Given the average a year. Generally speaking, the higher For example, just because an at-sea length of ASW exercises (times of sonar the number of takes as compared to the exercise lasts for multiple days does not use) and typical vessel speed, combined population abundance, the more necessarily mean that individual with the fact that the majority of the multiple takes of individuals are likely, animals are either exposed to those cetaceans would not likely remain in and the higher the actual percentage of exercises for multiple days or, further, proximity to the sound source, it is individuals in the population that are exposed in a manner resulting in a unlikely that an animal would be likely taken at least once in a year. We sustained multiple day substantive exposed to LFAS/MFAS/HFAS at levels look at this comparative metric to give behavioral response. Large multi-day or durations likely to result in a us a relative sense of where a larger Navy exercises such as ASW activities, substantive response that would then be portion of a species or stock is being typically include vessels that are carried on for more than one day or on taken by Navy activities and where continuously moving at speeds typically successive days. there is a higher likelihood that the 10–15 kn, or higher, and likely cover Most planned explosive events are same individuals are being taken across large areas that are relatively far from scheduled to occur over a short duration multiple days and where that number of shore (typically more than 3 nmi from (1–8 hours); however Mine days might be higher. It also provides a shore) and in waters greater than 600 ft Countermeasure and Neutralization relative picture of the scale of impacts deep. Additionally marine mammals are Testing would last 1–10 days (see to each species. moving as well, which would make it Tables 3 and 4). The explosive In the ocean, unlike a modeling unlikely that the same animal could component of these activities only lasts simulation with static animals, the use remain in the immediate vicinity of the for minutes. Although explosive of sonar and other active acoustic ship for the entire duration of the exercises may sometimes be conducted sources is often transient, and is exercise. Further, the Navy does not in the same general areas repeatedly, unlikely to repeatedly expose the same necessarily operate active sonar the because of their short duration and the individual animals within a short entire time during an exercise. While it fact that they are in the open ocean and period, for example within one specific is certainly possible that these sorts of animals can easily move away, it is exercise. However, some repeated exercises could overlap with individual similarly unlikely that animals would exposures across different activities marine mammals multiple days in a row be exposed for long, continuous could occur over the year with more at levels above those anticipated to amounts of time, or demonstrate resident species (e.g., pinnipeds in result in a take, because of the factors sustained behavioral responses. All of inland waters). In short, we expect that mentioned above, it is considered these factors make it unlikely that the total anticipated takes represent unlikely for the majority of takes. individuals would be exposed to the exposures of a smaller number of However, it is also worth noting that the exercise for extended periods or on individuals of which some could be Navy conducts many different types of consecutive days. exposed multiple times, but based on the nature of the Navy’s activities and noise-producing activities over the Assessing the Number of Individuals the movement patterns of marine course of the year and it is likely that Taken and the Likelihood of Repeated mammals, it is unlikely that any some marine mammals will be exposed Takes particular subset would be taken over to more than one and taken on multiple As described previously, Navy more than a few non-sequential days days, even if they are not sequential. modeling uses the best available science (with the exception of three harbor seal Durations of Navy activities utilizing to predict the instances of exposure stocks discussed in the species-specific tactical sonar sources and explosives above certain acoustic thresholds, analyses). vary and are fully described in which are equated, as appropriate, to When comparing the number of takes Appendix A (Navy Activity harassment takes (and, for PTS, further to the population abundance, which can Descriptions) of the 2020 NWTT FSEIS/ corrected to account for mitigation and be helpful in estimating both the OEIS. Sonar used during ASW would avoidance). As further noted, for active proportion of the population affected by impart the greatest amount of acoustic acoustics it is more challenging to parse takes and the number of days over energy of any category of sonar and out the number of individuals taken by which some individuals may be taken, other transducers analyzed in the Level B harassment and the number of it is important to choose an appropriate Navy’s rulemaking/LOA application and times those individuals are taken from population estimate against which to include hull-mounted, towed, line this larger number of instances. One make the comparison. The SARs, where array, sonobuoy, helicopter dipping, method that NMFS uses to help better available, provide the official and torpedo sonars. Most ASW sonars understand the overall scope of the population estimate for a given species are MFAS (1–10 kHz); however, some impacts is to compare these total or stock in U.S. waters in a given year sources may use higher or lower instances of take against the abundance (and are typically based solely on the frequencies. ASW training activities of that species (or stock if applicable). most recent survey data). When the using hull mounted sonar planned for For example, if there are 100 estimated stock is known to range well outside of the NWTT Study Area generally last for harassment takes in a population of 100, U.S. EEZ boundaries, population only a few hours (see Table 3). Some one can assume either that every estimates based on surveys conducted ASW training and testing activities individual will be exposed above only within the U.S. EEZ are known to range from several hours, to days, to up acoustic thresholds in no more than one be underestimates. The information to 3 weeks for Pierside-Sonar Testing day, or that some smaller number will used to estimate take includes the best and Submarine Sonar Testing/ be exposed in one day but a few of those available survey abundance data to Maintenance (see Table 4). For these individuals will be exposed multiple model density layers. Accordingly, in multi-day exercises there will typically days within a year and a few not calculating the percentage of takes

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72427

versus abundance for each species or sustained by an animal is primarily source or remain in the vicinity of the stock in order to assist in understanding classified by three characteristics: sound source appreciably longer to both the percentage of the species or 1. Frequency—Available data (of mid- increase the received SEL, which would stock affected, as well as how many frequency hearing specialists exposed to be difficult considering the Lookouts days across a year individuals could be mid- or high-frequency sounds; Southall and the nominal speed of an active taken, we use the data most appropriate et al., 2007) suggest that most TTS sonar vessel (10–15 kn) and the relative for the situation. For all species and occurs in the frequency range of the motion between the sonar vessel and the stocks except for a few stocks of harbor source up to one octave higher than the animal. In the TTS studies discussed in seals for which SAR data are source (with the maximum TTS at 1⁄2 the Potential Effects of Specified unavailable and Navy abundance octave above). The Navy’s MF sources, Activities on Marine Mammals and their surveys of the inland areas of the NWTT which are the highest power and most Habitat section of the proposed rule, Study Area are used, the most recent numerous sources and the ones that some using exposures of almost an hour NMFS SARs are used to calculate the cause the most take, utilize the 1–10 in duration or up to 217 SEL, most of proportion of a population affected by kHz frequency band, which suggests the TTS induced was 15 dB or less, takes. that if TTS were to be induced by any though Finneran et al. (2007) induced The stock abundance estimates in of these MF sources it would be in a 43 dB of TTS with a 64-second exposure NMFS’ SARs are typically generated frequency band somewhere between to a 20 kHz source. However, since any from the most recent shipboard and/or approximately 2 and 20 kHz, which is hull-mounted sonar, such as the SQS– aerial surveys conducted. In some cases, in the range of communication calls for 53, engaged in anti-submarine warfare NMFS’ abundance estimates show many odontocetes, but below the range training would be moving at between 10 substantial year-to-year variability. of the echolocation signals used for and 15 knots and nominally pinging However, for highly migratory species foraging. There are fewer hours of HF every 50 seconds, the vessel will have (e.g., large whales) or those whose source use and the sounds would traveled a minimum distance of geographic distribution extends well attenuate more quickly, plus they have approximately 257 m during the time lower source levels, but if an animal beyond the boundaries of the NWTT between those pings, and, therefore, were to incur TTS from these sources, Study Area (e.g., populations with incurring those levels of TTS is highly it would cover a higher frequency range distribution along the entire eastern unlikely. A scenario could occur where (sources are between 10 and 100 kHz, Pacific Ocean rather than just the NWTT an animal does not leave the vicinity of which means that TTS could range up Study Area), comparisons to the SAR a ship or travels a course parallel to the to 200 kHz), which could overlap with are appropriate. Many of the stocks ship, however, the close distances the range in which some odontocetes present in the NWTT Study Area have required make TTS exposure unlikely. communicate or echolocate. However, For a Navy vessel moving at a nominal ranges significantly larger than the HF systems are typically used less 10 knots, it is unlikely a marine NWTT Study Area and that abundance frequently and for shorter time periods mammal could maintain speed parallel is captured by the SAR. A good than surface ship and aircraft MF to the ship and receive adequate energy descriptive example is migrating large systems, so TTS from these sources is over successive pings to suffer TTS. whales, which traverse the NWTT Study unlikely. There are fewer LF sources In short, given the anticipated Area for several days to weeks on their and the majority are used in the more duration and levels of sound exposure, migrations. Therefore, at any one time readily mitigated testing environment, we would not expect marine mammals there may be a stable number of and TTS from LF sources would most to incur more than relatively low levels animals, but over the course of the likely occur below 2 kHz, which is in of TTS (i.e., single digits of sensitivity entire year the entire population may the range where many mysticetes loss). To add context to this degree of pass through the NWTT Study Area. communicate and also where other non- TTS, individual marine mammals may Therefore, comparing the estimated communication auditory cues are regularly experience variations of 6 dB takes to an abundance, in this case the located (waves, snapping shrimp, fish differences in hearing sensitivity across SAR abundance, which represents the prey). Also of note, the majority of sonar time (Finneran et al., 2000, 2002; total population, may be more sources from which TTS may be Schlundt et al., 2000). appropriate than modeled abundances incurred occupy a narrow frequency 3. Duration of TTS (recovery time)— for only the NWTT Study Area. band, which means that the TTS In the TTS laboratory studies (as Temporary Threshold Shift incurred would also be across a discussed in the Potential Effects of narrower band (i.e., not affecting the Specified Activities on Marine NMFS and the Navy have estimated majority of an animal’s hearing range). Mammals and their Habitat section of that multiple species and stocks of This frequency provides information the proposed rule), some using marine mammals may sustain some about the cues to which a marine exposures of almost an hour in duration level of TTS from active sonar. As mammal may be temporarily less or up to 217 SEL, almost all individuals discussed in the proposed rule in the sensitive, but not the degree or duration recovered within 1 day (or less, often in Potential Effects of Specified Activities of sensitivity loss. TTS from explosives minutes), although in one study on Marine Mammals and their Habitat would be broadband. (Finneran et al., 2007), recovery took 4 section, in general, TTS can last from a 2. Degree of the shift (i.e., by how days. few minutes to days, be of varying many dB the sensitivity of the hearing Based on the range of degree and degree, and occur across various is reduced)—Generally, both the degree duration of TTS reportedly induced by frequency bandwidths, all of which of TTS and the duration of TTS will be exposures to non-pulse sounds of determine the severity of the impacts on greater if the marine mammal is exposed energy higher than that to which free- the affected individual, which can range to a higher level of energy (which would swimming marine mammals in the field from minor to more severe. Tables 52– occur when the peak dB level is higher are likely to be exposed during LFAS/ 57 indicate the number of takes by TTS or the duration is longer). The threshold MFAS/HFAS training and testing that may be incurred by different for the onset of TTS was discussed exercises in the NWTT Study Area, it is species and stocks from exposure to previously in this rule. An animal unlikely that marine mammals would active sonar and explosives. The TTS would have to approach closer to the ever sustain a TTS from MFAS that

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72428 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

alters their sensitivity by more than 20 signals that are pertinent to that animal invertebrate prey, and geologic sounds dB for more than a few hours—and any in the given time period, (2) it overlaps that inform navigation. Masking is also incident of TTS would likely be far less parts of signals that are important to the more of a concern from continuous severe due to the short duration of the animal, but not in a manner that impairs sources (versus intermittent sonar majority of the events and the speed of interpretation, or (3) it reduces signals) where there is no quiet time a typical vessel, especially given the fact detectability of an important signal to a between pulses within which auditory that the higher power sources resulting small degree for a short amount of signals can be detected and interpreted. in TTS are predominantly intermittent, time—in which case the animal may be For these reasons, dense aggregations of, which have been shown to result in aware and be able to compensate (but and long exposure to, continuous LF shorter durations of TTS. Also, for the there may be slight energetic cost), or activity are much more of a concern for same reasons discussed in the Analysis the animal may have some reduced masking, whereas comparatively short- and Negligible Impact Determination— opportunities (e.g., to detect prey) or term exposure to the predominantly Diel Cycle section, and because of the reduced capabilities to react with intermittent pulses of often narrow short distance within which animals maximum effectiveness (e.g., to detect a frequency range MFAS or HFAS, or would need to approach the sound predator or navigate optimally). explosions are not expected to result in source, it is unlikely that animals would However, given the small number of a meaningful amount of masking. While be exposed to the levels necessary to times that any individual might incur the Navy occasionally uses LF and more induce TTS in subsequent time periods TTS, the low degree of TTS and the continuous sources, it is not in the such that their recovery is impeded. short anticipated duration, and the low contemporaneous aggregate amounts Additionally, though the frequency likelihood that one of these instances that would accrue to a masking concern. range of TTS that marine mammals would occur in a time period in which Specifically, the nature of the activities might sustain would overlap with some the specific TTS overlapped the entirety and sound sources used by the Navy do of the frequency ranges of their of a critical signal, it is unlikely that not support the likelihood of a level of vocalization types, the frequency range TTS of the nature expected to result masking accruing that would have the of TTS from MFAS would not usually from the Navy activities would result in potential to affect reproductive success span the entire frequency range of one behavioral changes or other impacts that or survival. Additional detail is vocalization type, much less span all would impact any individual’s (of any provided below. types of vocalizations or other critical hearing sensitivity) reproduction or Standard hull-mounted MFAS auditory cues for any given species. survival. typically pings every 50 seconds. Some hull-mounted anti-submarine sonars can Tables 52–57 indicate the maximum Auditory Masking or Communication also be used in an object detection mode number of incidental takes by TTS for Impairment known as ‘‘Kingfisher’’ mode (e.g., used each species or stock that are likely to The ultimate potential impacts of on vessels when transiting to and from result from the Navy’s activities. As a masking on an individual (if it were to port) where pulse length is shorter but general point, the majority of these TTS occur) are similar to those discussed for pings are much closer together in both takes are the result of exposure to hull- TTS, but an important difference is that time and space since the vessel goes mounted MFAS (MF narrower band masking only occurs during the time of slower when operating in this mode. sources), with fewer from explosives the signal, versus TTS, which continues Kingfisher mode is typically operated (broad-band lower frequency sources), beyond the duration of the signal. for relatively shorter durations. For the and even fewer from LFAS or HFAS Fundamentally, masking is referred to majority of other sources, the pulse sources (narrower band). As described as a chronic effect because one of the length is significantly shorter than hull- above, we expect the majority of these key potential harmful components of mounted active sonar, on the order of takes to be in the form of mild (single- masking is its duration—the fact that an several microseconds to tens of digit), short-term (minutes to hours), animal would have reduced ability to milliseconds. Some of the vocalizations narrower band (only affecting a portion hear or interpret critical cues becomes that many marine mammals make are of the animal’s hearing range) TTS. This much more likely to cause a problem less than one second long, so, for means that for one to several times per the longer it is occurring. Also inherent example with hull-mounted sonar, there year, for several minutes to maybe a few in the concept of masking is the fact that would be a 1 in 50 chance (and only if hours (high end) each, a taken the potential for the effect is only the source was in close enough individual will have slightly diminished present during the times that the animal proximity for the sound to exceed the hearing sensitivity (slightly more than and the source are in close enough signal that is being detected) that a natural variation, but nowhere near total proximity for the effect to occur (and single vocalization might be masked by deafness). More often than not, such an further, this time period would need to a ping. However, when vocalizations (or exposure would occur within a coincide with a time that the animal series of vocalizations) are longer than narrower mid- to higher frequency band was utilizing sounds at the masked the one-second pulse of hull-mounted that may overlap part (but not all) of a frequency). As our analysis has sonar, or when the pulses are only communication, echolocation, or indicated, because of the relative several microseconds long, the majority predator range, but sometimes across a movement of vessels and the sound of most animals’ vocalizations would lower or broader bandwidth. The sources primarily involved in this rule, not be masked. significance of TTS is also related to the we do not expect the exposures with the Most ASW sonars and auditory cues that are germane within potential for masking to be of a long countermeasures use MF frequencies the time period that the animal incurs duration. Masking is fundamentally and a few use LF and HF frequencies. the TTS. For example, if an odontocete more of a concern at lower frequencies, Most of these sonar signals are limited has TTS at echolocation frequencies, but because low frequency signals propagate in the temporal, frequency, and spatial incurs it at night when it is resting and significantly further than higher domains. The duration of most not feeding, it is not impactful. In short, frequencies and because they are more individual sounds is short, lasting up to the expected results of any one of these likely to overlap both the narrower LF a few seconds each. A few systems small number of mild TTS occurrences calls of mysticetes, as well as many non- operate with higher duty cycles or could be that (1) it does not overlap communication cues such as fish and nearly continuously, but they typically

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72429

use lower power, which means that an of temporal and spatial overlap with any from mild to more serious dependent animal would have to be closer, or in individual animal and the spatially upon the degree of PTS and the the vicinity for a longer time, to be separated sources that the Navy uses are frequency band it is in. The majority of masked to the same degree as by a not expected to result in more than any PTS incurred as a result of exposure higher level source. Nevertheless, short-term, low impact masking that to Navy sources would be expected to masking could occasionally occur at will not affect reproduction or survival. be in the 2–20 kHz range (resulting from closer ranges to these high-duty cycle PTS From Sonar Acoustic Sources and the most powerful hull-mounted sonar) and continuous active sonar systems, Explosives and Tissue Damage From and could overlap a small portion of the but as described previously, it would be Explosives communication frequency range of expected to be of a short duration when many odontocetes, whereas other the source and animal are in close Tables 52 through 57 indicate the marine mammal groups have proximity. While data are limited on number of individuals of each species or communication calls at lower behavioral responses of marine stock for which Level A harassment in frequencies. Because of the broadband mammals to continuously active sonars, the form of PTS resulting from exposure nature of explosives, PTS incurred from mysticete species are known to be able to active sonar and/or explosives is exposure to explosives would occur to habituate to novel and continuous estimated to occur. The number of over a lower, but wider, frequency sounds (Nowacek et al., 2004), individuals to potentially incur PTS range. For all but harbor porpoises, suggesting that they are likely to have annually (from sonar and explosives) for annual PTS take resulting from similar responses to high-duty cycle each species/stock ranges from 0 to 180 exposure to explosives is 1–5 per sonars. Furthermore, most of these (the 180 is for the Inland Washington species or stock. For harbor porpoises, systems are hull-mounted on surface stock of harbor porpoise), but is more a fair portion of the takes by PTS result ships and ships are moving at least 10 typically 0 or 1. As described from explosive exposure. However, kn, and it is unlikely that the ship and previously, no species/stocks have the harbor porpoises are high frequency the marine mammal would continue to potential to incur tissue damage from specialists and minor hearing loss at move in the same direction with the sonar or explosives. lower frequencies is expected to be less Data suggest that many marine marine mammal subjected to the same impactful than at higher frequencies mammals would deliberately avoid exposure due to that movement. Most because it is less likely to overlap or exposing themselves to the received ASW activities are geographically interfere with the sounds produced by levels of active sonar necessary to dispersed and last for only a few hours, harbor porpoises for communication or induce injury by moving away from or often with intermittent sonar use even echolocation. Regardless of the at least modifying their path to avoid a within this period. Most ASW sonars frequency band, the more important close approach. Additionally, in the also have a narrow frequency band point in this case is that any PTS (typically less than one-third octave). unlikely event that an animal approaches the sonar-emitting vessel at accrued as a result of exposure to Navy These factors reduce the likelihood of activities would be expected to be of a sources causing significant masking. HF a close distance, NMFS has determined that the mitigation measures (i.e., small amount (single digits). Permanent signals (above 10 kHz) attenuate more loss of some degree of hearing is a rapidly in the water due to absorption shutdown/powerdown zones for active sonar) would typically ensure that normal occurrence for older animals, than do lower frequency signals, thus and many animals are able to producing only a very small zone of animals would not be exposed to injurious levels of sound. As discussed compensate for the shift, both in old age potential masking. If masking or or at younger ages as the result of communication impairment were to previously, the Navy utilizes both aerial (when available) and passive acoustic stressor exposure. While a small loss of occur briefly, it would more likely be in hearing sensitivity may include some the frequency range of MFAS (the more monitoring (during ASW exercises, passive acoustic detections are used as degree of energetic costs for powerful source), which overlaps with compensating or may mean some small some odontocete vocalizations (but few a cue for Lookouts’ visual observations when passive acoustic assets are already loss of opportunities or detection mysticete vocalizations); however, it capabilities, at the expected scale it would likely not mask the entirety of participating in an activity) in addition would be unlikely to impact behaviors, any particular vocalization, to Lookouts on vessels to detect marine opportunities, or detection capabilities communication series, or other critical mammals for mitigation to a degree that would interfere with auditory cue, because the signal length, implementation. As discussed reproductive success or survival. frequency, and duty cycle of the MFAS/ previously, these Level A harassment HFAS signal does not perfectly resemble take numbers represent the maximum The Navy implements mitigation the characteristics of any single marine number of instances in which marine measures (described in the Mitigation mammal species’ vocalizations. mammals would be reasonably expected Measures section) during explosive Other sources used in Navy training to incur PTS, and we have analyzed activities, including delaying and testing that are not explicitly them accordingly. detonations when a marine mammal is addressed above, many of either higher If a marine mammal is able to observed in the mitigation zone. Nearly frequencies (meaning that the sounds approach a surface vessel within the all explosive events will occur during generated attenuate even closer to the distance necessary to incur PTS in spite daylight hours to improve the source) or lower amounts of operation, of the mitigation measures, the likely sightability of marine mammals and are similarly not expected to result in speed of the vessel (nominally 10–15 thereby improve mitigation masking. For the reasons described here, kn) and relative motion of the vessel effectiveness. Observing for marine any limited masking that could would make it very difficult for the mammals during the explosive activities potentially occur would be minor and animal to remain in range long enough will include visual and passive acoustic short-term. to accumulate enough energy to result detection methods (when they are In conclusion, masking is more likely in more than a mild case of PTS. As available and part of the activity) before to occur in the presence of broadband, discussed previously in relation to TTS, the activity begins, in order to cover the relatively continuous noise sources such the likely consequences to the health of mitigation zones that can range from as from vessels, however, the duration an individual that incurs PTS can range 500 yd (457 m) to 2,500 yd (2,286 m)

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72430 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

depending on the source (e.g., explosive SI on a marine mammal species or stock fishing context under section 118, sonobuoy, explosive torpedo, explosive during the section 101(a)(5)(A) process. NMFS may develop a take reduction bombs; see Tables 38–44). For all of OSP is defined in section 3 of the plan, usually with the assistance of a these reasons, the mitigation measures MMPA as ‘‘the number of animals take reduction team. The take reduction associated with explosives are expected which will result in the maximum plan will include measures to reduce to be effective in preventing tissue productivity of the population or the and/or minimize the taking of marine damage to any potentially affected species, keeping in mind the carrying mammals by commercial fisheries to a species or stocks, and no species or capacity of the habitat and the health of level below the stock’s PBR. That is, stocks are anticipated to incur tissue the ecosystem of which they form a where the total annual human-caused damage during the period of the rule. constituent element.’’ Through section M/SI exceeds PBR, NMFS is not 2, an overarching goal of the statute is Serious Injury and Mortality required to halt fishing activities to ensure that each species or stock of contributing to total M/SI but rather NMFS is authorizing a very small marine mammal is maintained at or utilizes the take reduction process to number of serious injuries or mortalities returned to its OSP. further mitigate the effects of fishery that could occur in the event of a ship PBR values are calculated by NMFS as activities via additional bycatch strike. We note here that the takes from the level of annual removal from a stock reduction measures. In other words, potential ship strikes enumerated below that will allow that stock to equilibrate under section 118 of the MMPA, PBR could result in non-serious injury, but within OSP at least 95 percent of the does not serve as a strict cap on the their worst potential outcome time, and is the product of factors operation of commercial fisheries that (mortality) is analyzed for the purposes relating to the minimum population may incidentally take marine mammals. of the negligible impact determination. estimate of the stock (N ), the min Similarly, to the extent PBR may be In addition, we discuss here the productivity rate of the stock at a small relevant when considering the impacts connection, and differences, between population size, and a recovery factor. of incidental take from activities other the legal mechanisms for authorizing Determination of appropriate values for than commercial fisheries, using it as incidental take under section 101(a)(5) these three elements incorporates the sole reason to deny (or issue) for activities such as the Navy’s testing significant precaution, such that incidental take authorization for those and training in the NWTT Study Area, application of the parameter to the activities would be inconsistent with and for authorizing incidental take from management of marine mammal stocks Congress’s intent under section commercial fisheries. In 1988, Congress may be reasonably certain to achieve the amended the MMPA’s provisions for goals of the MMPA. For example, 101(a)(5), NMFS’ long-standing addressing incidental take of marine calculation of the minimum population regulatory definition of ‘‘negligible impact,’’ and the use of PBR under mammals in commercial fishing estimate (Nmin) incorporates the level of operations. Congress directed NMFS to precision and degree of variability section 118. The standard for develop and recommend a new long- associated with abundance information, authorizing incidental take for activities term regime to govern such incidental while also providing reasonable other than commercial fisheries under taking (see MMC, 1994). The need to assurance that the stock size is equal to section 101(a)(5) continues to be, among develop a system suited to the unique or greater than the estimate (Barlow et other things that are not related to PBR, circumstances of commercial fishing al., 1995), typically by using the 20th whether the total taking will have a operations led NMFS to suggest a new percentile of a log-normal distribution negligible impact on the species or conceptual means and associated of the population estimate. In general, stock. Nowhere does section regulatory framework. That concept, the three factors are developed on a 101(a)(5)(A) reference use of PBR to PBR, and a system for developing plans stock-specific basis in consideration of make the negligible impact finding or to containing regulatory and voluntary one another in order to produce authorize incidental take through multi- measures to reduce incidental take for conservative PBR values that year regulations, nor does its companion fisheries that exceed PBR were appropriately account for both provision at section 101(a)(5)(D) for incorporated as sections 117 and 118 in imprecision that may be estimated, as authorizing non-lethal incidental take the 1994 amendments to the MMPA. In well as potential bias stemming from under the same negligible-impact Conservation Council for Hawaii v. lack of knowledge (Wade, 1998). standard. NMFS’ MMPA implementing National Marine Fisheries Service, 97 F. Congress called for PBR to be applied regulations state that take has a Supp. 3d 1210 (D. Haw. 2015), which within the management framework for negligible impact when it does not concerned a challenge to NMFS’ commercial fishing incidental take ‘‘adversely affect the species or stock regulations and LOAs to the Navy for under section 118 of the MMPA. As a through effects on annual rates of activities assessed in the 2013–2018 result, PBR cannot be applied recruitment or survival’’—likewise HSTT MMPA rulemaking, the Court appropriately outside of the section 118 without reference to PBR. When ruled that NMFS’ failure to consider regulatory framework without Congress amended the MMPA in 1994 PBR when evaluating lethal takes in the consideration of how it applies within to add section 118 for commercial negligible impact analysis under section the section 118 framework, as well as fishing, it did not alter the standards for 101(a)(5)(A) violated the requirement to how the other statutory management authorizing non-commercial fishing use the best available science. frameworks in the MMPA differ from incidental take under section 101(a)(5), PBR is defined in section 3 of the the framework in section 118. PBR was implicitly acknowledging that the MMPA as ‘‘the maximum number of not designed and is not used as an negligible impact standard under animals, not including natural absolute threshold limiting commercial section 101(a)(5) is separate from the mortalities, that may be removed from a fisheries. Rather, it serves as a means to PBR metric under section 118. In fact, marine mammal stock while allowing evaluate the relative impacts of those in 1994 Congress also amended section that stock to reach or maintain its activities on marine mammal stocks. 101(a)(5)(E) (a separate provision optimum sustainable population’’ (OSP) Even where commercial fishing is governing commercial fishing incidental and, although not controlling, can be causing M/SI at levels that exceed PBR, take for species listed under the ESA) to one measure considered among other the fishery is not suspended. When M/ add compliance with the new section factors when evaluating the effects of M/ SI exceeds PBR in the commercial 118 but retained the standard of the

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72431

negligible impact finding under section inform the potential effects of M/SI rates of recruitment and survival. As 101(a)(5)(A) (and section 101(a)(5)(D)), requested to be authorized under such, this amount of M/SI would not be showing that Congress understood that section 101(a)(5)(A). As noted by NMFS expected to affect rates of recruitment or the determination of negligible impact and the U.S. Fish and Wildlife Service survival in a manner resulting in more and the application of PBR may share in our implementing regulations for the than a negligible impact on the affected certain features but are, in fact, 1986 amendments to the MMPA (54 FR stock unless there are other factors that different. 40341, September 29, 1989), the could affect reproduction or survival, Since the introduction of PBR in Services consider many factors, when such as Level A and/or Level B 1994, NMFS had used the concept available, in making a negligible impact harassment, or other considerations almost entirely within the context of determination, including, but not such as information that illustrates implementing sections 117 and 118 and limited to, the status of the species or uncertainty involved in the calculation other commercial fisheries management- stock relative to OSP (if known); of PBR for some stocks. In a few prior related provisions of the MMPA. Prior whether the recruitment rate for the incidental take rulemakings, this to the Court’s ruling in Conservation species or stock is increasing, threshold was identified as the Council for Hawaii v. National Marine decreasing, stable, or unknown; the size ‘‘significance threshold,’’ but it is more Fisheries Service and consideration of and distribution of the population; and accurately labeled an insignificance PBR in a series of section 101(a)(5) existing impacts and environmental threshold, and so we use that rulemakings, there were a few examples conditions. In this multi-factor analysis, terminology here, as we did in the where PBR had informed agency PBR can be a useful indicator for when, AFTT final rule (83 FR 57076; deliberations under other MMPA and to what extent, the agency should November 14, 2018), and two-year rule sections and programs, such as playing take an especially close look at the extension (84 FR 70712; December 23, a role in the issuance of a few scientific circumstances associated with the 2019), as well as the HSTT final rule (83 research permits and subsistence potential mortality, along with any other FR 66846; December 27, 2018) and two- takings. But as the Court found when factors that could influence annual rates year rule extension (85 FR 41780; July reviewing examples of past PBR of recruitment or survival. 10, 2020). Assuming that any additional consideration in Georgia Aquarium v. When considering PBR during incidental take by Level A or Level B Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. evaluation of effects of M/SI under harassment from the activities in 2015), where NMFS had considered section 101(a)(5)(A), we first calculate a question would not combine with the PBR outside the commercial fisheries metric for each species or stock that effects of the authorized M/SI to exceed context, ‘‘it has treated PBR as only one incorporates information regarding the negligible impact level, the ‘quantitative tool’ and [has not used it] ongoing anthropogenic M/SI from all anticipated M/SI caused by the as the sole basis for its impact sources into the PBR value (i.e., PBR activities being evaluated would have a analyses.’’ Further, the agency’s minus the total annual anthropogenic negligible impact on the species or thoughts regarding the appropriate role mortality/serious injury estimate in the stock. However, M/SI above the 10 of PBR in relation to MMPA programs SAR), which is called ‘‘residual PBR’’ percent insignificance threshold does outside the commercial fishing context (Wood et al., 2012). We first focus our not indicate that the M/SI associated have evolved since the agency’s early analysis on residual PBR because it with the specified activities is application of PBR to section 101(a)(5) incorporates anthropogenic mortality approaching a level that would decisions. Specifically, NMFS’ denial of occurring from other sources. If the necessarily exceed negligible impact. a request for incidental take ongoing human-caused mortality from Rather, the 10 percent insignificance authorization for the U.S. Coast Guard other sources does not exceed PBR, then threshold is meant only to identify in 1996 seemingly was based on the residual PBR is a positive number, and instances where additional analysis of potential for lethal take in relation to we consider how the anticipated or the anticipated M/SI is not required PBR and did not appear to consider potential incidental M/SI from the because the negligible impact standard other factors that might also have activities being evaluated compares to clearly will not be exceeded on that informed the potential for ship strike in residual PBR using the framework in the basis alone. relation to negligible impact (61 FR following paragraph. If the ongoing 54157; October 17, 1996). anthropogenic mortality from other Where the anticipated M/SI is near, The MMPA requires that PBR be sources already exceeds PBR, then at, or above residual PBR, consideration estimated in SARs and that it be used residual PBR is a negative number and of other factors (positive or negative), in applications related to the we consider the M/SI from the activities including those outlined above, as well management of take incidental to being evaluated as described further as mitigation is especially important to commercial fisheries (i.e., the take below. assessing whether the M/SI will have a reduction planning process described in When ongoing total anthropogenic negligible impact on the species or section 118 of the MMPA and the mortality from the applicant’s specified stock. PBR is a conservative metric and determination of whether a stock is activities does not exceed PBR and not sufficiently precise to serve as an ‘‘strategic’’ as defined in section 3), but residual PBR is a positive number, as a absolute predictor of population effects nothing in the statute requires the simplifying analytical tool we first upon which mortality caps would application of PBR outside the consider whether the specified activities appropriately be based. For example, in management of commercial fisheries could cause incidental M/SI that is less some cases stock abundance (which is interactions with marine mammals. than 10 percent of residual PBR (the one of three key inputs into the PBR Nonetheless, NMFS recognizes that as a ‘‘insignificance threshold,’’ see below). calculation) is underestimated because quantitative metric, PBR may be useful If so, we consider M/SI from the marine mammal survey data within the as a consideration when evaluating the specified activities to represent an U.S. EEZ are used to calculate the impacts of other human-caused insignificant incremental increase in abundance even when the stock range activities on marine mammal stocks. ongoing anthropogenic M/SI for the extends well beyond the U.S. EEZ. An Outside the commercial fishing context, marine mammal stock in question that underestimate of abundance could and in consideration of all known alone (i.e., in the absence of any other result in an underestimate of PBR. human-caused mortality, PBR can help take) will not adversely affect annual Alternatively, we sometimes may not

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72432 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

have complete M/SI data beyond the through effects on its rates of fisheries will have a negligible impact U.S. EEZ to compare to PBR, which recruitment or survival. Thus even in on the species or stock. As discussed could result in an overestimate of situations where the inputs to calculate earlier, the authorization of incidental residual PBR. The accuracy and PBR are thought to accurately represent take resulting from commercial fisheries certainty around the data that feed any factors such as the species’ or stock’s and authorization for activities other PBR calculation, such as the abundance abundance or productivity rate, it is still than commercial fisheries are under two estimates, must be carefully considered possible for incidental take to have a separate regulatory frameworks. to evaluate whether the calculated PBR negligible impact on the species or stock However, when it amended the statute accurately reflects the circumstances of even where M/SI exceeds residual PBR in 1994 to provide a separate incidental the particular stock. M/SI that exceeds or PBR. take authorization process for residual PBR or PBR may still As noted above, in some cases the commercial fisheries, Congress kept the potentially be found to be negligible in ongoing human-caused mortality from requirement of a negligible impact light of other factors that offset concern, activities other than those being determination for this one category of especially when robust mitigation and evaluated already exceeds PBR and, species, thereby applying the standard adaptive management provisions are therefore, residual PBR is negative. In to both programs. Therefore, while the included. these cases (such as is specifically structure and other standards of the two In Conservation Council for Hawaii v. discussed for the CA/OR/WA stock of programs differ such that evaluation of National Marine Fisheries Service, humpback whales below), any negligible impact under one program which involved the challenge to NMFS’ additional mortality, no matter how may not be fully applicable to the other issuance of LOAs to the Navy in 2013 small, and no matter how small relative program, guidance on determining for activities in the HSTT Study Area, to the mortality caused by other human negligible impact for commercial fishing the Court reached a different activities, would result in greater take authorizations can be informative conclusion, stating, ‘‘Because any exceedance of PBR. PBR is helpful in when considering incidental take mortality level that exceeds PBR will informing the analysis of the effects of outside the commercial fishing context. not allow the stock to reach or maintain mortality on a species or stock because In 1999, NMFS published criteria for its OSP, such a mortality level could not it is important from a biological making a negligible impact be said to have only a ‘negligible perspective to be able to consider how determination pursuant to section impact’ on the stock.’’ As described the total mortality in a given year may 101(a)(5)(E) of the MMPA in a notice of above, the Court’s statement affect the population. However, section proposed permits for certain fisheries fundamentally misunderstands the two 101(a)(5)(A) of the MMPA indicates that (64 FR 28800; May 27, 1999). Criterion terms and incorrectly indicates that NMFS shall authorize the requested 2 stated if total human-related serious these concepts (PBR and ‘‘negligible incidental take from a specified activity injuries and mortalities are greater than impact’’) are directly connected, when if we find that ‘‘the total of such taking PBR, and fisheries-related mortality is in fact nowhere in the MMPA is it [i.e., from the specified activity] will less than 0.1 PBR, individual fisheries indicated that these two terms are have a negligible impact on such species may be permitted if management equivalent. or stock.’’ In other words, the task under measures are being taken to address Specifically, PBR was designed as a the statute is to evaluate the applicant’s non-fisheries-related serious injuries tool for evaluating mortality and is anticipated take in relation to their and mortalities. Those criteria further defined as the number of animals that take’s impact on the species or stock, stated that when fisheries-related can be removed while ‘‘allowing that not other entities’ impacts on the serious injury and mortality is less than stock to reach or maintain its [OSP].’’ species or stock. Neither the MMPA nor 10 percent of the total, the appropriate OSP is defined as a population that falls NMFS’ implementing regulations call management action is to address within a range from the population level for consideration of other unrelated components that account for the major that is the largest supportable within the activities and their impacts on the portion of the total. Criterion 2 ecosystem to the population level that species or stock. In fact, in response to addresses when total human-caused results in maximum net productivity, public comments on the implementing mortality is exceeding PBR, but the and thus is an aspirational management regulations NMFS explained that such activity being assessed is responsible for goal of the overall statute with no effects are not considered in making only a small portion of the mortality. specific timeframe by which it should negligible impact findings under section be met. PBR is designed to ensure 101(a)(5), although the extent to which The analytical framework we use here minimal deviation from this overarching a species or stock is being impacted by incorporates elements of the 1999 goal, with the formula for PBR typically other anthropogenic activities is not criteria developed for use under section ensuring that growth towards OSP is not ignored. Such effects are reflected in the 101(a)(5)(E), and because the negligible reduced by more than 10 percent (or baseline of existing impacts as reflected impact determination under section equilibrates to OSP 95 percent of the in the species’ or stock’s abundance, 101(a)(5)(A) focuses on the activity time). Given that, as applied by NMFS, distribution, reproductive rate, and being evaluated, it is appropriate to PBR certainly allows a stock to ‘‘reach other biological indicators. utilize this parallel concept from the or maintain its [OSP]’’ in a conservative NMFS guidance for commercial framework for section 101(a)(5)(E). and precautionary manner—and we can fisheries provides insight when Accordingly, we are using a similar therefore clearly conclude that if PBR evaluating the effects of an applicant’s criterion in our negligible impact were not exceeded, there would not be incidental take as compared to the analysis under section 101(a)(5)(A) to adverse effects on the affected species or incidental take caused by other entities. evaluate the relative role of an stocks. Nonetheless, it is equally clear Parallel to section 101(a)(5)(A), section applicant’s incidental take when other that in some cases the time to reach this 101(a)(5)(E) of the MMPA provides that sources of take are causing PBR to be aspirational OSP level could be slowed NMFS shall allow the incidental take of exceeded, but the take of the specified by more than 10 percent (i.e., total ESA-listed endangered or threatened activity is comparatively small. Where human-caused mortality in excess of marine mammals by commercial this occurs, we may find that the PBR could be allowed) without fisheries if, among other things, the impacts of the taking from the specified adversely affecting a species or stock incidental M/SI from the commercial activity may (alone) be negligible even

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72433

when total human-caused mortality caused mortality is exceeding PBR but insignificant M/SI take. By considering from all activities exceeds PBR if (in the the specified activity being evaluated is the maximum potential incidental M/SI context of a particular species or stock): an incremental contributor, as described in relation to PBR and ongoing sources The authorized mortality or serious in the last paragraph) by some small of anthropogenic mortality, we begin injury would be less than or equal to 10 amount and still make a negligible our evaluation of whether the percent of PBR and management impact determination under section incremental addition of M/SI through measures are being taken to address 101(a)(5)(A). the Navy’s potential ship strikes may serious injuries and mortalities from the We note that on June 17, 2020 NMFS affect the species’ or stock’s annual rates other activities (i.e., other than the finalized new Criteria for Determining of recruitment or survival. We also specified activities covered by the Negligible Impact under MMPA section consider the interaction of those incidental take authorization under 101(a)(5)(E). The guidance explicitly mortalities with incidental taking of that consideration). In addition, we must notes the differences in the negligible species or stock by harassment pursuant also still determine that any impacts on impact determinations required under to the specified activity. the species or stock from other types of section 101(a)(5)(E), as compared to Based on the methods discussed take (i.e., harassment) caused by the sections 101(a)(5)(A) and 101(a)(5)(D), previously, NMFS believes that mortal applicant do not combine with the and specifies that the procedure in that takes of three large whales could occur impacts from mortality or serious injury document is limited to how the agency over the course of the seven-year rule. addressed here to result in adverse conducts negligible impact analyses for Of the three total M/SI takes, the rule effects on the species or stock through commercial fisheries under section authorizes no more than two from any effects on annual rates of recruitment or 101(a)(5)(E). In the proposed rule (and of the following species/stocks over the survival. above), NMFS has described its method seven-year period: Fin whale (which As discussed above, while PBR is for considering PBR to evaluate the may come from either the Northeast useful in informing the evaluation of the effects of potential mortality in the Pacific or CA/OR/WA stock) and effects of M/SI in section 101(a)(5)(A) negligible impact analysis. NMFS has humpback whale (which may come determinations, it is just one reviewed the 2020 guidance and from either the Central North Pacific or consideration to be assessed in determined that our consideration of CA/OR/WA stock). Of the three total M/ combination with other factors and is PBR in the evaluation of mortality as SI takes, the rule also authorizes no not determinative. For example, as described above and in the proposed more than one mortality from any of the explained above, the accuracy and rule remains appropriate for use in the following species/stocks over the seven- certainty of the data used to calculate negligible impact analysis for the Navy’s year period: Sperm whale (CA/OR/WA PBR for the species or stock must be activities in the NWTT Study Area stock), minke whale (CA/OR/WA stock), considered. And we reiterate the under section 101(a)(5)(A). and gray whale (Eastern North Pacific considerations discussed above for why Our evaluation of the M/SI for each of stock). We do not anticipate, nor it is not appropriate to consider PBR an the species and stocks for which authorize, M/SI takes from ship strikes absolute cap in the application of this mortality or serious injury could occur for blue whale (Eastern North Pacific guidance. Accordingly, we use PBR as a follows. No M/SI are anticipated from stock), minke whale (Alaska stock), or trigger for concern while also the Navy’s sonar activities or use of sei whale (Eastern North Pacific stock). considering other relevant factors to explosives. This means an annual average of 0.14 provide a reasonable and appropriate We first consider maximum potential whales from each species or stock where means of evaluating the effects of incidental M/SI from the Navy and one mortality may occur and an annual potential mortality on rates of NMFS’ ship strike analysis for the average of 0.29 whales from each recruitment and survival, while affected mysticetes and sperm whales species or stock where two mortalities acknowledging that it is possible to (see Table 51; updated from the may occur, as described in Table 51 (i.e., exceed PBR (or exceed 10 percent of proposed rule) in consideration of 1 or 2 takes over 7 years divided by 7 PBR in the case where other human- NMFS’ threshold for identifying to get the annual number). TABLE 51—SUMMARY INFORMATION RELATED TO MORTALITIES REQUESTED FOR SHIP STRIKE, 2020–2027

Residual Annual Fisheries Vessel Annual PBR–PBR authorized interactions collisions navy HSTT minus Recent UME Species Stock take by Total (Y/N); (Y/N); authorized annual (Y/N); number abundance annual annual rate annual rate PBR * Stock trend * 4 (stock) serious 2 take M/SI and and year (Nbest) * injury or M/SI * of M/SI from of M/SI from (2018– HSTT (since 2007) 1 fisheries vessel 5 mortality interactions * collision * 2025) authorized take 3

Fin whale (Northeast Pacific) ...... 3,168 0.29 0.4 N; 0 Y; 0.4 0 5.1 4.7 ↑ ...... N Fin whale (CA/OR/WA) ...... 9,029 0.29 ≥ 43.5 Y; ≥ 0.5 Y; 43 0.29 81 37.2 ↑ ...... N Humpback whale (Central North Pacific) 10,103 0.29 25 Y; 9.5 6 Y; 3.9 0.29 83 57.7 ↑ ...... N Humpback whale ...... 2,900 0.29 ≥ 42.1 Y; ≥ 17.3 Y; 22 0.14 33.4 -8.8 Stable (↑ (historically) ... N (CA/OR/WA) ...... Sperm whale (CA/OR/WA) ...... 1,997 0.14 0.6 Y; 0.6 N; 0 0 2.5 1.8 Unknown ...... N Minke whale (CA/OR/WA) ...... 636 0.14 ≥ 1.3 Y; ≥ 1.3 N; 0 0 3.5 2.2 Unknown...... N Gray whale (Eastern North Pacific) ...... 26,960 0.14 139 Y; 9.6 Y; 0.8 0.29 801 661.6 ↑ ...... Y, 384, 2019 *Presented in the 2019 SARs or most recent SAR. 1This column represents the annual take by serious injury or mortality by vessel collision and was calculated by the number of mortalities authorized divided by seven years (the length of the rule and LOAs). 2This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued from either NMFS Science Center research activities or Navy strikes authorized for training and testing activities. No NMFS Science Center or Navy M/SI takes for these stocks are recorded in the SARs and no NMFS Science Center M/SI incidental takes have been authorized. 3This value represents the calculated PBR minus the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI column and the annual authorized take from the HSTT column). This value represents the total PBR for the stock in the stock’s entire range. 4See relevant SARs for more information regarding stock status and trends. 5 This column represents annual M/SI take authorized through NMFS’ current HSTT regulations/LOAs (85 FR 41780). On July 10, 2020, NMFS effectively extended the current HSTT regula- tions by two years, replacing the five-year HSTT regulations with seven-year regulations. These regulations authorized the same number of M/SI for the same species/stocks, but over a seven- year period rather than a five-year period (resulting in slightly lower annual authorized take for each species/stock). See the 2020 HSTT final rule for more details (85 FR 41780, July 10, 2020). 6 This value represents average annual observed M/SI from ship strikes in Alaska (2.5) and Hawaii (1.4). For the purposes of analysis of potential ship strikes (see the Estimated Take of Ma- rine Mammals section) we incorporated only Alaska ship strikes as only these ship strikes have the potential to overlap with the NWTT Study Area.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72434 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Stocks With M/SI Below the evidence of poor to thin body condition. authorization under consideration). Insignificance Threshold The seasonal pattern of elevated When those considerations are applied As noted above, for a species or stock strandings in the spring and summer in the section 101(a)(5)(A) context here, with incidental M/SI less than 10 months is similar to that of the previous the authorized lethal take (0.29 percent of residual PBR, we consider M/ gray whale UME in 1999–2000, and the annually) of humpback whales from the SI from the specified activities to current UME is continuing to follow a CA/OR/WA stock is significantly less represent an insignificant incremental similar pattern with a decrease in than 10 percent of PBR (in fact less than increase in ongoing anthropogenic M/SI strandings in late summer and fall. 1 percent of 33.4) and there are that alone (i.e., in the absence of any However, combined with other annual management measures in place to other take and barring any other human-caused mortalities, and viewed address M/SI from activities other than through the PBR lens (for human-caused those the Navy is conducting (as unusual circumstances) will clearly not mortalities), total human-caused discussed below). adversely affect annual rates of mortality (inclusive of the potential for Based on identical simulations as recruitment and survival. In this case, as additional UME deaths) would still fall those conducted to identify Recovery shown in Table 51, the following well below residual PBR and the Factors for PBR in Wade et al. (1998), species or stocks have potential M/SI insignificance threshold. Because of the but where values less than 0.1 were from ship strike authorized below their abundance, population trend investigated (P. Wade, pers. comm.), we insignificance threshold: Fin whale (increasing, despite the UME in 1999– predict that where the mortality from a (both the Northeast Pacific and CA/OR/ 2000), and residual PBR (661.6) of this specified activity does not exceed Nmin WA stocks), humpback whale (Central stock, this UME is not expected to have * 1⁄2 Rmax * 0.013, the contemplated North Pacific stock), sperm whale (CA/ impacts on the population rate that, in mortality for the specific activity will OR/WA stock), minke whale (CA/OR/ combination with the effects of the not delay the time to recovery by more WA stock), and gray whale (Eastern authorized mortality, would affect than 1 percent. For this stock of North Pacific stock). While the annual rates of recruitment or survival. humpback whales, Nmin * 1⁄2 Rmax * authorized M/SI of gray whales (Eastern 0.013 = 1.45 and the annual mortality North Pacific stock) is below the Stocks with M/SI above the authorized is 0.29 (i.e., less than 1.45). insignificance threshold, because of the Insignificance Threshold This means that the mortality recent UME, we further address how the The CA/OR/WA stock of humpback authorized in this rule for NWTT authorized M/SI and the UME inform whales is the only stock with M/SI activities will not delay the time to the negligible impact determination above the insignificance threshold. For recovery to OSP by more than 1 percent. immediately below. For the other five this stock, PBR is currently set at 16.7 NMFS must also ensure that impacts stocks with authorized M/SI below the for U.S. waters and 33.4 for the stock’s by the applicant on the species or stock insignificance threshold, there are no entire range. The total annual M/SI is from other types of take (i.e., other known factors, information, or estimated at greater than or equal to harassment) do not combine with the unusual circumstances that indicate 42.1. Combined with 0.14 annual impacts from M/SI to adversely affect anticipated M/SI below the mortalities that have been authorized for the species or stock via impacts on insignificance threshold could have this same stock in the current incidental annual rates of recruitment or survival, adverse effects on annual rates of take regulations for Navy testing and which is discussed further below in the recruitment or survival and they are not training activities in the HSTT Study species- and stock-specific section. discussed further. For the remaining one Area (85 FR 41780; July 10, 2020), this In August 2020, NMFS published stock (CA/OR/WA stock of humpback yields a residual PBR of –8.8. NMFS is 2019 SARs in which PBR is reported as whales) with potential M/SI above the authorizing up to 2 M/SI takes over the 33.4 with the predicted average annual insignificance threshold, how that M/SI seven-year duration of this rule, which mortality greater than or equal to 42.1 compares to residual PBR, as well as is 0.29 M/SI takes annually for the (including 22 estimated from vessel additional factors, are discussed below purposes of comparing to PBR and collisions and greater than 17.3 as well. considering other possible effects on observed fisheries interactions). While annual rates of recruitment and the observed M/SI from vessel strikes Gray Whales (Eastern North Pacific survival. This means that with the remains low at 2.2 per year, the 2018 stock) additional 0.29 M/SI annual takes and 2019 SARs rely on a new method For this stock, PBR is currently set at authorized in this rule, residual PBR to estimate annual deaths by ship strike 801. The total annual M/SI from other would be exceeded by 9.1. utilizing an encounter theory model that sources of anthropogenic mortality is In the commercial fisheries setting for combined species distribution models of estimated to be 139. In addition, 0.29 ESA-listed marine mammals (which can whale density, vessel traffic annual mortalities have been authorized be informative for the non-fisheries characteristics, and whale movement for this same stock in the current incidental take setting, in that a patterns obtained from satellite-tagged incidental take regulations for Navy negligible impact determination is animals in the region to estimate testing and training activities in the required that is based on the assessment encounters that would result in HSTT Study Area (85 FR 41780; July 10, of take caused by the activity being mortality (Rockwood et al., 2017). The 2020). This yields a residual PBR of analyzed), NMFS may find the impact of model predicts 22 annual mortalities of 661.6. The additional 0.29 annual the authorized take from a specified humpback whales from this stock from mortalities that are authorized in this activity to be negligible even if total vessel strikes. The authors (Rockwood et rule are well below the insignificance human-caused mortality exceeds PBR, if al., 2017) do not suggest that ship strikes threshold (10 percent of residual PBR, the authorized mortality is less than 10 suddenly increased to 22. In fact, the in this case 66.2). Nonetheless, since percent of PBR and management model is not specific to a year, but January 2019, gray whale strandings measures are being taken to address rather offers a generalized prediction of along the west coast of North America serious injuries and mortalities from the ship strikes off the U.S. West Coast. have been significantly higher than the other activities causing mortality (i.e., Therefore, if the Rockwood et al. (2017) previous 18-year average. Preliminary other than the specified activities model is an accurate representation of findings from necropsies have shown covered by the incidental take vessel strike, then similar levels of ship

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72435

strike have been occurring in past years ‘‘increasing risk from factors associated opc.ca.gov/risk-assessment-and- as well. Put another way, if the model with low abundance.’’ Further, the BRT mitigation-program-ramp/). is correct, for some number of years concluded that the DPS was unlikely to In early 2019, as a result of a litigation total human-caused mortality has been be declining because of the population settlement agreement, the California significantly underestimated, and PBR growth throughout most of its feeding Department of Fish and Wildlife has been similarly exceeded by a areas, in California/Oregon and the Gulf (CDFW) closed the Dungeness crab notable amount, and yet the CA/OR/WA of Alaska, but they did not have fishery three months early for the year, stock of humpback whales is considered evidence that the Mexico DPS was which is expected to reduce the number stable nevertheless. actually increasing in overall population of likely entanglements. The agreement The CA/OR/WA stock of humpback size. also limits the fishery duration over the whales experienced a steady increase As discussed earlier, we also take into next couple of years and has different from the 1990s through approximately consideration management measures in triggers to reduce or close it further. 2008, and more recent estimates through place to address M/SI caused by other Further, pursuant to the settlement, 2014 indicate a leveling off of the activities. Commercial fisheries such as CDFW is required to apply for a Section population size. This stock is comprised crab pot, gillnet, and prawn fisheries are 10 Incidental Take Permit under the of the feeding groups of three DPSs. a significant source of mortality and ESA to address protected species Two DPSs associated with this stock are serious injury for humpback whales and interactions with fishing gear and crab fishing gear (pots). Any request for such listed under the ESA as either other large whales and, unfortunately, a permit must include a Conservation endangered (Central America DPS) or have increased mortalities and serious Plan that specifies, among other things, threatened (Mexico DPS), while the injuries over recent years (Carretta et al., what steps the applicant will take to third (Hawaii DPS) is not listed. 2019). However, the 2019 draft SAR minimize and mitigate the impacts, and Humpback whales from the Hawaii DPS notes that a recent increase in the funding that will be available to are anticipated to be rare in the NWTT disentanglement efforts has resulted in implement such steps. On May 15, Study Area with a probability of the an increase in the fraction of cases that 2020, CDFW submitted a draft DPS foraging in the waters of the Study are reported as non-serious injuries as a Conservation Plan to NMFS and Area of 1.6 percent (including summer result of successful disentanglement. CDFW’s development of this plan areas of Oregon/California and Southern More importantly, since 2015, NMFS has engaged in a multi-stakeholder continues. The May 2020 draft plan may British Columbia/Washington from be viewed here: https://nrm.dfg.ca.gov/ Wade (2017)). Humpback whales from process in California (including California State resource managers, FileHandler.ashx? the Mexico DPS and Central America DocumentID=179066&inline. Additional DPS are anticipated to be more fishermen, non-governmental organizations (NGOs), and scientists) to information about CDFWs planned prevalent in the Study Area with application for an ITP can be accessed probabilities of the DPSs foraging in the identify and develop solutions and make recommendations to regulators at the CDFW Whale Safe Fisheries web waters of the Study Area of 31.7 and 100 page (https://wildlife.ca.gov/ and the fishing industry for reducing percent, respectively (including summer Conservation/Marine/Whale-Safe- whale entanglements (see http:// areas of Oregon/California and Southern Fisheries). A critical element of CDFW’s www.opc.ca.gov/whale-entanglement- British Columbia/Washington from approach to reducing the risk of working-group/), referred to as the Wade (2017)). As described in the final entanglement includes the Whale Entanglement Working Group. rule Identifying 14 DPSs of the implementation of RAMP regulations. The Whale Entanglement Working Humpback Whale and Revision of These proposed regulations may be Group has made significant progress Species-Wide Listing (81 FR 62260, found at: https://wildlife.ca.gov/Notices/ since 2015 and is tackling the problem September 8, 2016), the Mexico DPS Regulations/RAMP. was initially proposed not to be listed from multiple angles, including: • Regarding measures in place to reduce as threatened or endangered, but the Development of Fact Sheets and mortality from other sources, the final decision was changed in Best Practices (BMPs) for specific Channel Islands NMS staff coordinates, consideration of a new abundance Fisheries issues (e.g., California collects, and monitors whale sightings estimate using a new methodology that Dungeness Crab Fishing BMPs and the in and around a Whale Advisory Zone was more accurate (less bias from 2018–2019 Best Fishing Practices and the Channel Islands NMS region, capture heterogeneity and lower Guide); which is within the area of highest • coefficient of variation) and resulted in A Risk Assessment and Mitigation vessel strike mortality (90th percentile) a lower abundance than was previously Program (RAMP) to support the state of for humpback whales on the U.S. West estimated. To be clear, the new California in working collaboratively Coast (Rockwood et al., 2017). The abundance estimate did not indicate with experts (fishermen, researchers, seasonally established Whale Advisory that the numbers had decreased, but NGOs, etc.) to identify and assess Zone spans from Point Arguello to Dana rather, the more accurate new elevated levels of entanglement risk and Point, including the Traffic Separation abundance estimate (3,264), derived determine the need for management Schemes in the Santa Barbara Channel from the same data but based on an options to reduce risk of entanglement; and San Pedro Channel. Vessels integrated spatial multi-strata mark and transiting the area from June through recapture model (Wade et al., 2016), • Support of pilot studies to test new November are recommended to exercise was simply notably lower than earlier fisheries technologies to reduce take caution and voluntarily reduce speed to estimates, which were 6,000–7,000 from (e.g., exploring Ropeless Fishing 10 kn or less for blue, humpback, and the SPLASH project (Calambokidis et Technologies for the California fin whales. Channel Island NMS al., 2008) or higher (Barlow et al., 2011). Dungeness Crab Fishery). observers collect information from aerial The updated abundance was still higher The Working Group meets regularly, surveys conducted by NOAA, the U.S. than 2,000, which is the Biological posts reports and annual Coast Guard, California Department of Review Team’s (BRT) threshold between recommendations, and makes all of Fish and Game, and Navy chartered ‘‘not likely to be at risk of extinction due their products and guidance documents aircraft. Information on seasonal to low abundance alone’’ and readily accessible for the public (https:// presence, movement, and general

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72436 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

distribution patterns of large whales is rate. In situations like this where Group and Species-Specific Analyses shared with mariners, NMFS’ Office of potential M/SI is fractional, In this section, we build on the Protected Resources, the U.S. Coast consideration must be given to the general analysis that applies to all Guard, the California Department of lessened impacts anticipated due to the marine mammals in the NWTT Study Fish and Game, the Santa Barbara absence of any M/SI in five or six of the Area from the previous section, and Museum of Natural History, the Marine years and due to the fact that strikes include first information and analysis Exchange of Southern California, and could be males. that applies to mysticetes or, separately, whale scientists. Although well south of Lastly, we reiterate that PBR is a odontocetes, or pinnipeds, and then the NWTT Study Area, reduced vessel conservative metric and also not within those three sections, more strikes in this area benefit humpback sufficiently precise to serve as an specific information that applies to whales throughout the stock’s range. absolute predictor of population effects smaller groups, where applicable, and Real time and historical whale upon which mortality caps would the affected species or stocks. The observation data collected from multiple appropriately be based. Wade et al. specific authorized take numbers are sources can be viewed on the Point Blue (1998), authors of the paper from which also included in the analyses below, and Whale Database. the current PBR equation is derived, so here we provide some additional More recently, similar efforts to note that ‘‘Estimating incidental reduce entanglement risk and severity context and discussion regarding how mortality in one year to be greater than we consider the authorized take have also been initiated in Oregon and the PBR calculated from a single Washington. Both Oregon and numbers in those analyses. abundance survey does not prove the The maximum amount and type of Washington are developing applications mortality will lead to depletion; it incidental take by harassment of marine for ESA Incidental Take Permits for identifies a population worthy of careful mammals reasonably likely to occur their commercial crab fisheries, and all future monitoring and possibly from exposures to sonar and other active three West Coast states regularly indicates that mortality-mitigation acoustic sources and explosions and coordinate on their Conservation Plan efforts should be initiated.’’ proposals and schedules. Both states therefore authorized during the seven- The information included here advocate similar best practices for their year training and testing period are illustrates that this humpback whale fishermen as California, and they are shown in Tables 32 and 33. The vast stock is currently stable, the potential taking regulatory steps related to gear majority of predicted exposures (greater (and authorized) mortality is well below marking and pot limits. For example, than 99 percent) are expected to be they have recently implemented or 10 percent (0.87 percent) of PBR, and Level B harassment (TTS and behavioral proposed regulations intended to reduce management actions are in place to reactions) from acoustic and explosive entanglement risk or increase the minimize both fisheries interactions and sources during training and testing identification of fishing gear entangling ship strike from other vessel activity in activities at relatively low received whales. Additional information about one of the highest-risk areas for strikes. levels. Oregon’s efforts may be found at https:// More specifically, although the total In the discussions below, the www.dfw.state.or.us/MRP/shellfish/ human-caused mortality exceeds PBR, estimated takes by Level B harassment commercial/crab/whale_ the authorized mortality for the Navy’s represent instances of take, not the entanglement.asp. A summary of specified activities would incrementally number of individuals taken (the much WDFW whale entanglement risk contribute less than 1 percent of that lower and less frequent Level A reduction information may be found at: and, further, given the fact that it would harassment takes are far more likely to https://wdfw.wa.gov/sites/default/files/ occur in only one or two of the seven be associated with separate individuals), 2020-01/5_whale_ent_in_coastal_crab_ years with a 50 percent chance of the and in some cases individuals may be fishery_jan_2020_revised.pdf . take involving males (far less impactful taken more than one time. Below, we In this case, 0.29 M/SI annually to the population), the potential impacts compare the total take numbers means the potential for two mortalities on population rates are even less. Based (including PTS, TTS, and behavioral in one or two of the seven years and on all of the considerations described disturbance) for species or stocks to zero mortalities in five or six of those above, including consideration of the their associated abundance estimates to seven years. Therefore, the Navy will fact that the authorized M/SI of 0.29 evaluate the magnitude of impacts not be contributing to the total human- will not delay the time to recovery by across the species or stock and to caused mortality at all in at least five of more than 1 percent, the potential lethal individuals. Generally, when an the seven, or 71.4 percent, of the years take from Navy activities, alone, are abundance percentage comparison is covered by this rule. That means that unlikely to adversely affect the CA/OR/ below 100, it suggests the following: (1) even if a humpback whale from the CA/ WA stock of humpback whales through That not all of the individuals will be OR/WA stock were to be struck, in at effects on annual rates of recruitment or taken; (2) that, barring specific least five of the seven years there could survival. Nonetheless, the fact that total circumstances suggesting repeated takes be no effect on annual rates of human-caused mortality exceeds PBR of individuals (such as in circumstances recruitment or survival from Navy- necessitates close attention to the where all activities resulting in take are caused M/SI. Additionally, the loss of a remainder of the impacts (i.e., focused in one area and time where the male would have far less, if any, of an harassment) on the CA/OR/WA stock of same individual marine mammals are effect on population rates than the loss humpback whales from the Navy’s known to congregate, such as pinnipeds of a reproductive female (as males are activities to ensure that the total at a haulout), the average or expected known to mate with multiple females), authorized takes will have a negligible number of days for those individuals and absent any information suggesting impact on the species and stock. taken is one per year; and (3) that we that one sex is more likely to be struck Therefore, this information will be would not expect any individuals to be than another, we can reasonably assume considered in combination with our taken more than a few times in a year, that there is a 50 percent chance that the assessment of the impacts of authorized or for those days to be sequential. When strikes authorized by this rule would be harassment takes in the Group and it is more than 100 percent, it means males, thereby further decreasing the Species-Specific Analyses section that there will definitely be some number of likelihood of impacts on the population follows. repeated takes of individuals. For

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72437

example, if the percentage is 300, the primarily from ASW events. It is health to deteriorate. Also, the death of average would be each individual is important to note that unlike other Navy an adult female has significantly more taken on three days in a year if all were Training and Testing Study Areas, there impact on population growth rates than taken, but it is more likely that some are no MTEs planned for the NWTT reductions in reproductive success, number of individuals will be taken Study Area. On the less severe end, while the death of an adult male has more than three times and some number exposure to comparatively lower levels very little effect on population growth of individuals fewer or not at all. While of sound at a detectably greater distance rates. However, as explained earlier, it is not possible to know the maximum from the animal, for a few or several such severe impacts from the Navy’s number of days across which minutes, could result in a behavioral activities would be very infrequent and individuals of a stock might be taken, in response such as avoiding an area that not likely to occur at all for most species acknowledgement of the fact that it is an animal would otherwise have moved and stocks. Even for the one stock of more than the average, for the purposes through or fed in, or breaking off one or harbor seals where it is possible for a of this analysis, we assume a number a few feeding bouts. More severe small number of females to experience approaching twice the average. For behavioral effects could occur when an reproductive effects, we explain below example, if the percentage of take animal gets close enough to the source why there still will be no effect on rates compared to the abundance is 800, we to receive a comparatively higher level of recruitment or survival. estimate that some individuals might be of sound, is exposed continuously to The analyses below in some cases taken as many as 16 times. Those one source for a longer time, or is address species collectively if they comparisons are included in the exposed intermittently to different occupy the same functional hearing sections below. sources throughout a day. Such effects group (i.e., low, mid, and high- To assist in understanding what this might result in an animal having a more frequency cetaceans), share similar life analysis means, we clarify a few issues severe flight response and leaving a history strategies, and/or are known to related to estimated takes and the larger area for a day or more, or behaviorally respond similarly to analysis here. An individual that incurs potentially losing feeding opportunities acoustic stressors. Because some of a PTS or TTS take may sometimes, for for a day. However, such severe these groups or species share example, also be subject to behavioral behavioral effects are expected to occur characteristics that inform the impact disturbance at the same time. As infrequently. analysis similarly, it would be described above in this section, the Occasional, milder behavioral duplicative to repeat the same analysis degree of PTS, and the degree and reactions are unlikely to cause long-term for each species. In addition, similar duration of TTS, expected to be consequences for individual animals or species typically have the same hearing incurred from the Navy’s activities are populations, and even if some smaller capabilities and behaviorally respond in not expected to impact marine subset of the takes are in the form of a the same manner. mammals such that their reproduction longer (several hours or a day) and more Thus, our analysis below considers or survival could be affected. Similarly, severe response, if they are not expected the effects of the Navy’s activities on data do not suggest that a single to be repeated over sequential days, each affected species or stock even instance in which an animal accrues impacts to individual fitness are not where discussion is organized by PTS or TTS and is also subjected to anticipated. Nearly all studies and functional hearing group and/or behavioral disturbance would result in experts agree that infrequent exposures information is evaluated at the group impacts to reproduction or survival. of a single day or less are unlikely to level. Where there are meaningful Alternately, we recognize that if an impact an individual’s overall energy differences between a species or stock individual is subjected to behavioral budget (Farmer et al., 2018; Harris et al., that would further differentiate the disturbance repeatedly for a longer 2017; King et al., 2015; NAS 2017; New analysis, they are either described duration and on consecutive days, et al., 2014; Southall et al., 2007; within the section or the discussion for effects could accrue to the point that Villegas-Amtmann et al., 2015). those species or stocks is included as a reproductive success is jeopardized, If impacts to individuals are of a separate subsection. Specifically below, although those sorts of impacts are magnitude or severity such that either we first give broad descriptions of the generally not expected to result from repeated and sequential higher severity mysticete, odontocete, and pinniped these activities. Accordingly, in impacts occur (the probability of this groups and then differentiate into analyzing the number of takes and the goes up for an individual the higher further groups as appropriate. total number of takes it has) or the total likelihood of repeated and sequential Mysticetes takes, we consider the total takes, not number of moderate to more severe just the takes by Level B harassment by impacts occurs across sequential days, This section builds on the broader behavioral disturbance, so that then it becomes more likely that the discussion above and brings together the individuals potentially exposed to both aggregate effects could potentially discussion of the different types and threshold shift and behavioral interfere with feeding enough to reduce amounts of take that different species disturbance are appropriately energy budgets in a manner that could and stocks could potentially or will considered. The number of Level A impact reproductive success via longer likely incur, the applicable mitigation, harassment takes by PTS are so low (and cow-calf intervals, terminated and the status of the species and stocks zero in most cases) compared to pregnancies, or calf mortality. It is to support the negligible impact abundance numbers that it is considered important to note that these impacts determinations for each species or stock. highly unlikely that any individual only accrue to females, which only We have described (above in the would be taken at those levels more comprise a portion of the population General Negligible Impact Analysis than once. (typically approximately 50 percent). section) the unlikelihood of any Use of sonar and other transducers Based on energetic models, it takes masking having effects that will impact would typically be transient and energetic impacts of a significantly the reproduction or survival of any of temporary. The majority of acoustic greater magnitude to cause the death of the individual marine mammals affected effects to marine mammals from sonar an adult marine mammal, and females by the Navy’s activities. We have also and other active sound sources during will always terminate a pregnancy or described in the Potential Effects of testing and training activities would be stop lactating before allowing their Specified Activities on Marine

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72438 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Mammals and their Habitat section of reducing impacts to Mysticetes and stock-specific considerations as well as the proposed rule that the specified their habitat has been added, as M/SI take authorized for several stocks, activities would not have adverse or described in the Mitigation Measures at the end of the section we break out long-term impacts on marine mammal section. For mysticetes, there is no our findings on a species-specific and, habitat, and therefore the unlikelihood predicted PTS from sonar or explosives for one species, stock-specific basis. of any habitat impacts affecting the and no predicted tissue damage from In Table 52 below for mysticetes, we reproduction or survival of any explosives for any species or stock. indicate for each species and stock the individual marine mammals affected by Much of the discussion below focuses total annual numbers of take by the Navy’s activities. No new on the behavioral effects and the mortality, Level A and Level B information has been received that mitigation measures that reduce the harassment, and a number indicating affects this analysis and conclusion, probability or severity of effects. the instances of total take as a although additional mitigation further Because there are species-specific and percentage of abundane. TABLE 52—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR MYSTICETES AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF SPECIES ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Level B harassment Abundance Instances of Species Stock Level A harassment Total takes (NMFS total take as TTS SARs) * percentage of Behavioral (may also Mortality abundance disturbance include Tissue disturbance) PTS damage

Suborder Mysticeti (baleen whales) Family Balaenopteridae (roquals)

Blue whale ...... Eastern North Pacific 6 4 0 0 0 10 1,496 <1 Fin whale ...... Northeast Pacific ...... 1 1 0 0 0.29 2.29 3,168 <1 CA/OR/WA ...... 91 44 0 0 0.29 135.29 9,029 2 Humpback whale ...... Central North Pacific 47 68 0 0 0.29 115.29 10,103 1 CA/OR/WA ...... 40 53 0 0 0.29 93.29 2,900 3 Minke whale ...... Alaska ...... 1 1 0 0 0 2 1 389 <1 CA/OR/WA ...... 111 191 0 0 0.14 302.14 636 48 Sei whale ...... Eastern North Pacific 33 50 0 0 0 83 519 16

Family Eschrichtiidae

Gray whale ...... Eastern North Pacific 28 15 0 0 0.14 43.14 26,960 <1 * Presented in the 2019 SARs or most recent SAR. 1 The 2018 final SAR (most recent SAR) for the Alaska stock of minke whales reports the stock abundance as unknown because only a portion of the stock’s range has been surveyed. To be conservative, for this stock we report the smallest estimated abundance produced during recent surveys.

The majority of takes by harassment small number of takes by Level B on their migration route. Mysticetes of mysticetes in the NWTT Study Area harassment by behavioral disturbance disturbed while migrating could pause are caused by anti-submarine warfare (0–6 per stock) and TTS takes (0–2 per their migration or route around the (ASW) activities in the Offshore portion stock). Based on this information, the disturbance, while males en route to of the Study Area. Anti-submarine majority of the Level B harassment by breeding grounds have been shown to activities include sources from the behavioral disturbance is expected to be be less responsive to disturbances. MFAS bin (which includes hull- of moderate and sometimes lower Although some may pause temporarily, mounted sonar) because they are high severity and of a relatively shorter they will resume migration shortly after level, narrowband sources in the 1–10 duration. As noted above, no PTS or the exposure ends. Animals disturbed kHz range, which intersect what is tissue damage from training and testing while engaged in other activities such as estimated to be the most sensitive area activities is anticipated or authorized for feeding or reproductive behaviors may of hearing for mysticetes. They also are any species or stock. be more likely to ignore or tolerate the used in a large portion of exercises (see Research and observations show that disturbance and continue their natural Tables 3 and 4). Most of the takes (90 if mysticetes are exposed to sonar or behavior patterns. percent) from the MF1 bin in the NWTT other active acoustic sources they may Alternately, adult female mysticetes Study Area would result from received react in a number of ways depending on with calves may be more responsive to levels between 160 and 178 dB SPL, the characteristics of the sound source, stressors. An increase in the disturbance while another 9 percent would result their experience with the sound source, level from noise-generating human from exposure between 178 and 184 dB and whether they are migrating or on activities (such as sonar or explosives) SPL. For the remaining active sonar bin seasonal feeding or breeding grounds. may increase the risk of mother–calf types, the percentages are as follows: Behavioral reactions may include pair separation (reducing the time LF4 = 97 percent between 124 and 142 alerting, breaking off feeding dives and available for suckling) or require that dB SPL, MF4 = 95 percent between 136 surfacing, diving or swimming away, or louder contact calls are made which, in and 148 dB SPL, MF5 = 97 percent no response at all (DOD, 2017; turn, increases the possibility of between 112 and 142 dB SPL, and HF4 Nowacek, 2007; Richardson, 1995; detection. In either case, increased = 91 percent between 100 and 154 dB Southall et al., 2007). Overall, ambient noise could have negative SPL. For mysticetes, explosive training mysticetes have been observed to be consequences for calf fitness (Cartwright activities do not result in any take. more reactive to acoustic disturbance and Sullivan 2009; Craig et al., 2014). Explosive testing activities result in a when a noise source is located directly However, given the low number of

VerDate Sep<11>2014 22:27 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72439

predicted mysticete exposures and the mysticetes (especially given their large Study Area. The SAR identifies this absence of known calving areas, size) further reduces the potential for a stock as ‘‘stable.’’ We further note that exposure of younger, more vulnerable significant behavioral reaction or a this stock was originally listed under calves is considered to be unlikely in threshold shift to occur (i.e., shutdowns the ESA as a result of the impacts from the NWTT Study Area. are expected to be successfully commercial whaling, which is no longer As noted in the Potential Effects of implemented), which is reflected in the affecting the species. Blue whales are Specified Activities on Marine amount and type of incidental take that anticipated to be present in summer and Mammals and Their Habitat section of is anticipated to occur and authorized. winter months and only in the Offshore the proposed rule, while there are As noted previously, when an animal Area of the Study Area. No mortality multiple examples from behavioral incurs a threshold shift, it occurs in the from either explosives or vessel strike response studies of odontocetes ceasing frequency from that of the source up to and no Level A harassment is their feeding dives when exposed to one octave above. This means that the anticipated or authorized. sonar pulses at certain levels, vast majority of threshold shifts caused Regarding the magnitude of takes by alternately, blue whales (mysticetes) by Navy sonar sources will typically Level B harassment (TTS and behavioral were less likely to show a visible occur in the range of 2–20 kHz (from the disturbance), the number of estimated response to sonar exposures at certain 1–10 kHz MF1 bin, though in a specific total instances of take compared to the levels when feeding than when narrow band within this range as the abundance is less than 1 percent. Given traveling. However, Goldbogen et al. sources are narrowband), and if the range of blue whales, this (2013) indicated some horizontal resulting from hull-mounted sonar, will information indicates that only a very displacement of deep foraging blue be in the range of 3.5–7 kHz. The small portion of individuals in the stock whales in response to simulated MFAS. majority of mysticete vocalizations are likely impacted and repeated Southall et al. (2019b) observed that occur in frequencies below 1 kHz, exposures of individuals are not after exposure to simulated and which means that TTS incurred by anticipated (i.e., individuals are not operational mid-frequency active sonar, mysticetes will not interfere with expected to be taken on more than one more than 50 percent of blue whales in conspecific communication. day within a year). Regarding the deep-diving states responded to the Additionally, many of the other critical severity of those individual takes by sonar, while no behavioral response was sounds that serve as cues for navigation Level B harassment by behavioral observed in shallow-feeding blue and prey (e.g., waves, fish, disturbance, we have explained that the whales. Southall et al. (2019b) noted invertebrates) occur below a few kHz, duration of any exposure is expected to that the behavioral responses they which means that detection of these be between minutes and hours (i.e., observed were generally brief, of low to signals will not be inhibited by most relatively short) and the received sound moderate severity, and highly threshold shift either. When we look in levels largely below 172 dB with a small dependent on exposure context ocean areas where the Navy has been portion up to 184 dB (i.e., of a moderate (behavioral state, source-to-whale intensively training and testing with or sometimes lower level). Regarding horizontal range, and prey availability). sonar and other active acoustic sources the severity of TTS takes, we have Most Level B harassment by behavioral for decades, there is no data suggesting explained that they are expected to be disturbance of mysticetes is likely to be any long-term consequences to low-level, of short duration, and mostly short-term and of low to sometimes reproduction or survival rates of not in a frequency band that would be moderate severity, with no anticipated mysticetes from exposure to sonar and expected to interfere with blue whale effect on reproduction or survival. other active acoustic sources. communication or other important low- Richardson et al. (1995) noted that All the mysticete species discussed in frequency cues and that the associated avoidance (temporary displacement of this section will benefit from the lost opportunities and capabilities are an individual from an area) reactions are procedural mitigation measures not at a level that will impact the most obvious manifestations of described earlier in the Mitigation reproduction or survival. disturbance in marine mammals. Measures section. Additionally, the Altogether, although the species is Avoidance is qualitatively different Navy will limit activities and employ listed as endangered under the ESA, this from the startle or flight response, but other measures in mitigation areas that population is stable, only a very small also differs in the magnitude of the will avoid or reduce impacts to portion of the stock is anticipated to be response (i.e., directed movement, rate mysticetes utilizing those areas. Where impacted, and any individual blue of travel, etc.). Oftentimes avoidance is these mitigation areas are designed to whale is likely to be disturbed at a low- temporary, and animals return to the mitigate impacts to particular species or moderate level. No mortality and no area once the noise has ceased. Some stocks (gray whales and humpback Level A harassment is anticipated or mysticetes may avoid larger activities as whales), they are discussed in detail authorized. The low magnitude and they move through an area, although the below. Below we compile and moderate-lower severity of harassment Navy’s activities do not typically use the summarize the information that effects is not expected to result in same training locations day-after-day supports our determination that the impacts on the reproduction or survival during multi-day activities, except Navy’s activities will not adversely of any individuals, let alone have periodically in instrumented ranges. affect any species or stock through impacts on annual rates of recruitment Therefore, displaced animals could effects on annual rates of recruitment or or survival. For these reasons, we have return quickly after a large activity is survival for any of the affected mysticete determined, in consideration of all of completed. In the ocean, the use of Navy stocks. the effects of the Navy’s activities sonar and other active acoustic sources combined, that the authorized take will Blue Whale (Eastern North Pacific is transient and is unlikely to expose the have a negligible impact on the Eastern Stock) same population of animals repeatedly North Pacific stock of blue whales. over a short period of time, especially Blue whales are listed as endangered given the broader-scale movements of under the ESA throughout their range, Fin Whale (Northeast Pacific Stock and mysticetes. but there is no ESA designated critical California/Oregon/Washington Stock) The implementation of procedural habitat or biologically important area Fin whales are listed as endangered mitigation and the sightability of identified for this species in the NWTT under the ESA throughout their range,

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72440 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

but no ESA designated critical habitat or or survival. For these reasons, we have Northern Washington humpback whale biologically important areas are determined, in consideration of all of biologically important area and the identified for this species in the NWTT the effects of the Navy’s activities northern boundary of the NWTT Study Area. The SAR identifies these combined, that the authorized take will Offshore Area are included in the Juan stocks as ‘‘increasing.’’ NMFS is have a negligible impact on both the de Fuca Eddy Marine Species Mitigation authorizing two mortalities of fin Northeast Pacific and CA/OR/WA stocks Area. The mitigation measures whales over the seven years covered by of fin whales. implemented in each of these areas, this rule, but because it is not possible including but not limited to, no MF1 Humpback Whale (Central North Pacific to determine from which stock these MFAS use seasonally or limited MFAS Stock) potential takes would occur, that is 0.29 use year round, no explosive training, mortality annually for each stock. The The Central North Pacific stock of and no explosive testing or restrictions addition of this 0.29 annual mortality humpback whales consists of winter/ on explosive testing (see details of all still leaves the total annual human- spring humpback whale populations of mitigation measures for each area in the caused mortality well under residual the Hawaiian Islands which migrate Mitigation Measures section), will PBR (37.2 for the CA/OR/WA stock and primarily to foraging habitat in northern reduce the severity of impacts to 4.7 for the Northeast Pacific stock) and British Columbia/Southeast Alaska, the humpback whales by reducing below the insignificance threshold for Gulf of Alaska, and the Bering Sea/ interference in feeding that could result both stocks. No mortality from Aleutian Islands (Muto et al. 2019). in lost feeding opportunities or explosives and no Level A harassment Three Feeding Area biologically necessitate additional energy is anticipated or authorized. important areas for humpback whales expenditure to find other good Regarding the magnitude of takes by overlap with the NWTT Study Area: opportunities. Level B harassment (TTS and behavioral Northern Washington Feeding Area for The SAR identifies this stock as disturbance), the number of estimated humpback whales (May-November); ‘‘increasing’’ and the associated Hawaii total instances of take compared to the Stonewall and Heceta Bank Feeding DPS is not listed as endangered or abundance is less than 1 percent for the Area for humpback whales (May– threatened under the ESA. No mortality Northeast Pacific stock and 1.5 percent November); and Point St. George from explosives and no Level A for the CA/OR/WA stock. This Feeding Area for humpback whales harassment is anticipated or authorized. information indicates that only a very (July-November) (Calambokidis et al., NMFS is authorizing two mortalities of small portion of individuals in each 2015). The Marine Species Coastal, humpback whales over the seven years stock are likely impacted and repeated Olympic Coast National Marine covered by this rule, but because it is exposures of individuals are not Sanctuary, Stonewall and Heceta Bank not possible to determine from which anticipated (i.e., individuals are not Humpback Whale, and Point St. George stock these potential takes would occur, expected to be taken on more than one Humpback Whale Mitigation Areas that is 0.29 mortality annually for both day within a year). Regarding the overlap with these important foraging this stock and the CA/OR/WA stock severity of those individual takes by areas. The Marine Species Coastal (discussed separately below). The Level B harassment by behavioral Mitigation Area 50 nmi from shore zone addition of this 0.29 annual mortality disturbance, the duration of any includes the entirety of all three BIAs. still leaves the total annual human- exposure is expected to be between The Stonewall and Heceta Bank caused mortality well under both the minutes and hours (i.e., relatively short) Humpback Whale Mitigation Area insignificance threshold and residual and the received sound levels largely includes the entire Stonewall and PBR (57.7). below 172 dB with a small portion up Heceta Bank Feeding Area for Regarding the magnitude of takes by to 184 dB (i.e., of a moderate or humpback whales. The Point St. George Level B harassment (TTS and behavioral sometimes lower level). Regarding the Humpback Whale Mitigation Area and disturbance), the number of estimated severity of TTS takes, they are expected the 20 nmi from shore zone in the instances of take compared to the to be low-level, of short duration, and Marine Species Coastal Mitigation Area abundance is 1 percent. This mostly not in a frequency band that both include the entire Point St. George information and the far-ranging nature would be expected to interfere with fin Feeding Area for humpback whales. of the stock structure indicates that only whale communication or other Additionally, the new Juan de Fuca a very small portion of the stock is important low-frequency cues—and the Eddy Marine Species Coastal Mitigation likely impacted and repeated exposures associated lost opportunities and area will also benefit humpback whale of individuals are not anticipated (i.e., capabilities are not at a level that will feeding. The full extent of the Juan de individuals are not expected to be taken impact reproduction or survival. Fuca Eddy is not incorporated into the on more than one day within a year). Altogether, although the species is Northern Washington humpback whale Regarding the severity of those listed as endangered under the ESA, biologically important feeding area individual takes by Level B harassment these populations are increasing, only a because the development of biologically by behavioral disturbance, we have very small portion of each stock is important areas was restricted to U.S. explained that the duration of any anticipated to be impacted, and any waters only. Therefore, the Northern exposure is expected to be between individual fin whale is likely to be Washington biologically important minutes and hours (i.e., relatively short) disturbed at a low-moderate level. No humpback whale feeding area extends and the received sound levels largely Level A harassment is anticipated or northward to the boundary of the U.S. below 172 dB with a small portion up authorized. This low magnitude and Exclusive Economic Zone to 184 dB (i.e., of a moderate or moderate-lower severity of harassment (Calambokidis et al., 2015; Ferguson et sometimes lower level). Regarding the effects is not expected to result in al., 2015a; Ferguson et al., 2015b). severity of TTS takes, they are expected impacts on individual reproduction or However, humpback whale aggregations to be low-level, of short duration, and survival for any individuals, nor are feed across this political boundary in mostly not in a frequency band that these harassment takes combined with the nutrient rich waters throughout the would be expected to interfere with the authorized mortality expected to Juan de Fuca Eddy from May to humpback whale communication or adversely affect these stocks through November. Therefore, waters within the other important low-frequency cues, impacts on annual rates of recruitment Juan de Fuca Eddy between the and that the associated lost

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72441

opportunities and capabilities are not at Eddy Marine Species Coastal Mitigation authorized mortality of 0.29 will not a level that will impact reproduction or area will also benefit humpback whale delay the time to recovery by more than survival. feeding. The full extent of the Juan de 1 percent. Given these factors, the Altogether, this population is Fuca Eddy is not incorporated into the incremental addition of two mortalities increasing and the associated DPS is not Northern Washington humpback whale over the course of the seven-year Navy listed as endangered or threatened biologically important feeding area rule is not expected to, alone (i.e., in the under the ESA. Only a very small because the development of biologically absence of any other take and barring portion of the stock is anticipated to be important areas was restricted to U.S. any other unusual circumstances), lead impacted and any individual humpback waters only. Therefore, the Northern to adverse impacts on the stock through whale is likely to be disturbed at a low- Washington biologically important effects on annual rates of recruitment or moderate level. No Level A harassment humpback whale feeding area extends survival. No mortality from explosives is anticipated or authorized. This low northward to the boundary of the U.S. and no Level A harassment is magnitude and moderate-lower severity Exclusive Economic Zone anticipated or authorized. of harassment effects is not expected to (Calambokidis et al., 2015; Ferguson et Regarding the magnitude of takes by result in impacts on individual al., 2015a; Ferguson et al., 2015b). Level B harassment (TTS and behavioral reproduction or survival, nor are these However, humpback whale aggregations disturbance), the number of estimated harassment takes combined with the feed across this political boundary in total instances of take compared to the authorized mortality expected to the nutrient rich waters throughout the abundance is 3 percent (Table 52). adversely affect this stock through Juan de Fuca Eddy from May to Given the range of humpback whales, effects on annual rates of recruitment or November. Therefore, waters within the this information suggests that only a survival. For these reasons, we have Juan de Fuca Eddy between the small portion of individuals in the stock determined, in consideration of all of Northern Washington humpback whale are likely impacted and repeated the effects of the Navy’s activities biologically important area and the exposures of individuals are not combined, that the authorized take will northern boundary of the NWTT anticipated (i.e., individuals are not have a negligible impact on the Central Offshore Area are included in the Juan expected to be taken on more than one North Pacific stock of humpback de Fuca Eddy Marine Species Mitigation day within a year). Regarding the whales. Area. The mitigation measures severity of those individual takes by Level B harassment by behavioral Humpback Whale (California/Oregon/ implemented in each of these areas, disturbance, we have explained that the Washington Stock) including but not limited to, no MF1 MFAS use seasonally or limited MFAS duration of any exposure is expected to The CA/OR/WA stock of humpback use year round, no explosive training, be between minutes and hours (i.e., whales includes individuals from three and no explosive testing or restrictions relatively short) and the received sound ESA DPSs: Central America levels largely below 172 dB with a small (endangered), Mexico (threatened), and on explosive testing (see details of all mitigation measures for each area in the portion up to 184 dB (i.e., of a moderate Hawaii (not listed). There is no ESA- or sometimes lower level). Regarding designated critical habitat for humpback Mitigation Measures section), will reduce the severity of impacts to the severity of TTS takes, they are whales, however NMFS has proposed to expected to be low-level, of short designate critical habitat for humpback humpback whales by reducing interference in feeding that could result duration, and mostly not in a frequency whales (84 FR 54354; October 9, 2019). band that would be expected to interfere in lost feeding opportunities or Three Feeding Area biologically with humpback whale communication necessitate additional energy important areas for humpback whales or other important low-frequency cues. expenditure to find other good overlap with the NWTT Study Area: Therefore, the associated lost opportunities. Northern Washington Feeding Area for opportunities and capabilities are not at humpback whales (May–November); The SAR identifies this stock as stable a level that will impact reproduction or Stonewall and Heceta Bank Feeding (having shown a long-term increase survival. Area for humpback whales (May– from 1990 and then leveling off between Altogether, this population is stable November); and Point St. George 2008 and 2014). NMFS is authorizing and even though two of the three Feeding Area for humpback whales two mortalities over the seven years associated DPSs are listed as (July–November) (Calambokidis et al., covered by this rule, or 0.29 mortality endangered or threatened under the 2015). The Marine Species Coastal, annually. With the addition of this 0.29 ESA, only a small portion of the stock Olympic Coast National Marine annual mortality, the total annual is anticipated to be impacted, and any Sanctuary, Stonewall and Heceta Bank human-caused mortality exceeds individual humpback whale is likely to Humpback Whale, and Point St. George residual PBR by 9.1. However, as be disturbed at a low-moderate level. No Humpback Whale Mitigation Areas described in more detail in the Serious Level A harassment is anticipated or overlap with these important foraging Injury or Mortality subsection, when authorized. This low magnitude and areas. The Marine Species Coastal total human-caused mortality exceeds moderate-lower severity of harassment Mitigation Area 50 nmi from shore zone PBR, we consider whether the effects is not expected to result in includes the entirety of all three BIAs. incremental addition of a small amount impacts on the reproduction or survival The Stonewall and Heceta Bank of mortality from the specified activity of any individuals and, therefore, when Humpback Whale Mitigation Area may still result in a negligible impact, combined with the authorized mortality includes the entire Stonewall and in part by identifying whether it is less (which our earlier analysis indicated Heceta Bank Feeding Area for than 10 percent of PBR, which is 3.3. In will not, alone, have more than a humpback whales. The Point St. George this case, the authorized mortality is negligible impact on this stock of Humpback Whale Mitigation Area and well below 10 percent of PBR (less than humpback whales), is not expected to the 20 nmi from shore zone in the one percent, in fact) and management adversely affect this stock through Marine Species Coastal Mitigation Area measures are in place to reduce impacts on annual rates of recruitment both include the entire Point St. George mortality from other sources. More or survival. For these reasons, we have Feeding Area for humpback whales. importantly, as described above in the determined, in consideration of all of Additionally, the new Juan de Fuca Serious Injury or Mortality section, the the effects of the Navy’s activities

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72442 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

combined, that the authorized take will listed under the ESA as endangered or the stock is anticipated to be impacted have a negligible impact on the CA/OR/ threatened, only a smaller portion of and any individual sei whale is likely to WA stock of humpback whales. these stocks is anticipated to be be disturbed at a low-moderate level. No impacted, and any individual minke mortality and no Level A harassment is Minke Whale (Alaska and California/ whale is likely to be disturbed at a low- anticipated or authorized. This low Oregon/Washington Stocks) moderate level. No Level A harassment magnitude and moderate-lower severity The status of these stocks is unknown is anticipated or authorized. This low of harassment effects is not expected to and the species is not listed under the magnitude and moderate-lower severity result in impacts on the reproduction or ESA. No biologically important areas of harassment effects is not expected to survival of any individuals, let alone have been identified for this species in result in impacts on individual have impacts on annual rates of the NWTT Study Area. NMFS is reproduction or survival for either stock, recruitment or survival. Therefore, the authorizing one mortality over the seven nor are these harassment takes total take will not adversely affect this years covered by this rule, or 0.14 combined with the authorized mortality stock through impacts on annual rates of mortality annually, for the CA/OR/WA expected to adversely affect the CA/OR/ recruitment or survival. For these stock, and no mortality is anticipated or WA stock through effects on annual reasons, we have determined, in authorized for the Alaska stock. The rates of recruitment or survival. For consideration of all of the effects of the addition of this 0.14 annual mortality these reasons, we have determined, in Navy’s activities combined, that the still leaves the total annual human- consideration of all of the effects of the authorized take will have a negligible caused mortality well under the residual Navy’s activities combined, that the impact on the Eastern North Pacific PBR (2.2) and below the insignificance authorized take will have a negligible stock of sei whales. threshold. No mortality from explosives impact on the Alaska and CA/OR/WA Gray Whale (Eastern North Pacific and no Level A harassment is stocks of minke whales. anticipated or authorized for either Stock) stock. Sei Whale (Eastern North Pacific Stock) The SAR identifies this stock as Regarding the magnitude of takes by The status of this stock is unknown, ‘‘increasing’’ and the associated DPS is Level B harassment (TTS and behavioral however sei whales are listed as not listed under the ESA. The NWTT disturbance), the number of estimated endangered under the ESA throughout Study Area overlaps with the offshore total instances of take compared to the their range. There is no ESA designated Northwest Feeding Area for gray whales abundance is less than 1 percent for the critical habitat or biologically important and the Northern Puget Sound Feeding Alaska stock (based on, to be areas identified for this species in the Area for gray whales, both identified as conservative, the smallest available NWTT Study Area. No mortality from biologically important areas. In provisional estimate in the SAR, which either explosives or vessel strikes and addition, a portion of the Northwest is derived from surveys that cover only no Level A harassment is anticipated or coast of Washington, approximately a portion of the stock’s range) and 47.5 authorized. from Pacific Beach (WA) and extending percent for the CA/OR/WA stock. Given Regarding the magnitude of takes by north to the Strait of Juan de Fuca, the range of minke whales, this Level B harassment (TTS and behavioral overlaps with the gray whale migration information indicates that only a very disturbance), the number of estimated corridor biologically important areas small portion of individuals in the total instances of take compared to the (Northbound and Southbound). The Alaska stock are likely to be impacted abundance is 16 percent (Table 52). This Marine Species Coastal, Olympic Coast and repeated exposures of individuals information and the large range of sei National Marine Sanctuary, Stonewall are not anticipated (i.e., individuals are whales suggests that only a small and Heceta Bank Humpback Whale, not expected to be taken on more than portion of individuals in the stock are Point St. George Humpback Whale, one day within a year). For the CA/OR/ likely impacted and repeated exposures Puget Sound and Strait of Juan de Fuca, WA stock, fewer than half of the of individuals are not anticipated (i.e., and Northern Puget Sound Gray Whale individuals in the stock will likely be individuals are not expected to be taken Mitigation Areas overlap with these taken, with those individuals disturbed on more than one day within a year). important foraging and migration areas. on likely one, but not more than a few Regarding the severity of those The Marine Species Coastal Mitigation non-sequential days within a year. individual takes by Level B harassment Area (all distances—50 nmi, 20 nmi, Regarding the severity of those by behavioral disturbance, we have and 12 nmi from shore) include the individual takes by Level B harassment explained that the duration of any entire offshore Northwest Feeding Area by behavioral disturbance, we have exposure is expected to be between for gray whales as well as the explained that the duration of any minutes and hours (i.e., relatively short) Northbound Phase A, Northbound exposure is expected to be between and the received sound levels largely Phase B, and Southbound gray whale minutes and hours (i.e., relatively short) below 172 dB with a small portion up migration corridor BIAs. The Olympic and the received sound levels largely to 184 dB (i.e., of a moderate or Coast National Marine Sanctuary below 172 dB with a small portion up sometimes lower level). Regarding the Mitigation Area overlaps with each of to 184 dB (i.e., of a moderate or severity of TTS takes, they are expected these BIAs by 96–100 percent. The sometimes lower level). Regarding the to be low-level, of short duration, and Stonewall and Heceta Bank Humpback severity of TTS takes, they are expected mostly not in a frequency band that Whale Mitigation Area and the Point St. to be low-level, of short duration, and would be expected to interfere with sei George Humpback Whale Mitigation mostly not in a frequency band that whale communication or other Area overlap minimally with the gray would be expected to interfere with important low-frequency cues. whale potential presence migration BIA minke whale communication or other Therefore the associated lost (5 percent overlap or less). The Puget important low-frequency cues—and the opportunities and capabilities are not at Sound and Strait of Juan de Fuca associated lost opportunities and a level that will impact reproduction or Mitigation Area and the Northern Puget capabilities are not at a level that will survival. Sound Gray Whale Mitigation Area both impact reproduction or survival. Altogether, the status of the stock is include the entire Northern Puget Altogether, although the status of the unknown and the species is listed as Sound Feeding Area for gray whales. stocks is unknown, the species is not endangered, but only a small portion of The mitigation measures implemented

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72443

in each of these areas, including but not reproduction or survival for any frequency (in the 1–10 kHz range) that limited to, no MF1 MFAS use individuals, nor are these harassment overlaps a more sensitive portion seasonally or limited MFAS use year takes combined with the authorized (though not the most sensitive) of the round, no explosive training, and no mortality of one whale over the seven- MF hearing range and they are used in explosive testing or restrictions on year period expected to adversely affect a large portion of exercises (see Tables explosive testing (see details of all this stock through impacts on annual 3 and 4). For odontocetes other than mitigation measures for each area in the rates of recruitment or survival. For beaked whales and porpoises (for which Mitigation Measures section), will these reasons, we have determined, in these percentages are indicated reduce the severity of impacts to gray consideration of all of the effects of the separately in those sections), most of the whales by reducing interference in Navy’s activities combined, that the takes (96 percent) from the MF1 bin in feeding and migration that could result authorized take will have a negligible the NWTT Study Area would result in lost feeding opportunities or impact on the Eastern North Pacific from received levels between 160 and necessitate additional energy stock of gray whales. 172 dB SPL. For the remaining active expenditure to find other good foraging sonar bin types, the percentages are as Odontocetes opportunities or move migration routes. follows: LF4 = 99 percent between 124 NMFS is authorizing one mortality This section builds on the broader and 154 dB SPL, MF4 = 99 percent over the seven years covered by this discussion above and brings together the between 136 and 166 dB SPL, MF5 = 98 rule, or 0.14 mortality annually. The discussion of the different types and percent between 112 and 148 dB SPL, addition of this 0.14 annual mortality amounts of take that different species and HF4 = 95 percent between 100 and still leaves the total annual human- and stocks could potentially or will 160 dB SPL. Based on this information, caused mortality well under both the likely incur, the applicable mitigation, the majority of the takes by Level B insignificance threshold and residual and the status of the species and stock harassment by behavioral disturbance PBR (661.6). No mortality from to support the negligible impact are expected to be low to sometimes explosives and no Level A harassment determinations for each species or stock. moderate in nature, but still of a is anticipated or authorized. We have described (above in the generally shorter duration. Regarding the magnitude of takes by General Negligible Impact Analysis For all odontocetes, takes from Level B harassment (TTS and behavioral section) the unlikelihood of any explosives (Level B harassment by disturbance), the number of estimated masking having effects that will impact behavioral disturbance, TTS, or PTS) total instances of take compared to the the reproduction or survival of any of comprise a very small fraction (and low abundance is less than 1 percent. This the individual marine mammals affected number) of those caused by exposure to information indicates that only a very by the Navy’s activities. We have also active sonar. For the following small portion of individuals in the stock described in the Potential Effects of odontocetes, zero takes from explosives are likely to be impacted and repeated Specified Activities on Marine are expected to occur: Common exposures of individuals are not Mammals and their Habitat section of bottlenose dolphins, killer whales, anticipated (i.e., individuals are not the proposed rule that the specified short-beaked common dolphins, short- expected to be taken on more than one activities would not have adverse or finned pilot whales, the Alaska stock of day within a year). Regarding the long-term impacts on marine mammal Dall’s porpoises, Southeast Alaska stock severity of those individual takes by habitat, and therefore the unlikelihood of harbor porpoises, sperm whales, Level B harassment by behavioral of any habitat impacts affecting the Baird’s beaked whale, Cuvier’s beaked disturbance, we have explained that the reproduction or survival of any whale, and Mesoplodon species. For duration of any exposure is expected to individual marine mammals affected by Level B harassment by behavioral be between minutes and hours (i.e., the Navy’s activities. No new disturbance from explosives, with the relatively short) and the received sound information has been received that exception of porpoises, one take is levels largely below 172 dB with a small affects this analysis and conclusion, anticipated for the remaining species/ portion up to 184 dB (i.e., of a moderate although mitigation measures have been stocks. For the CA/OR/WA stock of or sometimes lower level). Regarding added that will further reduce impacts Dall’s porpoise and the remaining three the severity of TTS takes, they are to Southern Resident killer whales, harbor porpoise stocks, 1–91 takes by expected to be low-level, of short other odontocetes, and their habitat. For Level B harassment by behavioral duration, and mostly not in a frequency odontocetes, there is no anticipated M/ disturbance from explosives are band that would be expected to interfere SI or tissue damage from sonar or anticipated. Similarly the instances of with gray whale communication or explosives for any species or stock. TTS and PTS expected to occur from other important low-frequency cues and Here, we include information that explosives for all remaining species/ that the associated lost opportunities applies to all of the odontocete species, stocks, with the exception of porpoises, and capabilities are not at a level that which are then further divided and are anticipated to be low (1–3 for TTS will impact reproduction or survival. discussed in more detail in the and 1 for PTS). Because of the lower Altogether, while we have considered following subsections: Sperm whales, TTS and PTS thresholds for HF the impacts of the gray whale UME, this dwarf sperm whales, and pygmy sperm odontocetes, for the CA/OR/WA stock of population of gray whales is not whales; beaked whales; dolphins and Dall’s porpoise and the remaining three endangered or threatened under the small whales; and porpoises. These harbor porpoise stocks, TTS takes range ESA and the stock is increasing. No subsections include more specific from 61–214 and PTS takes range from Level A harassment is anticipated or information about the groups, as well as 27–86. authorized. Only a very small portion of conclusions for each species or stock Because the majority of harassment the stock is anticipated to be impacted represented. takes of odontocetes result from the by Level B harassment and any The majority of takes by harassment sources in the MFAS bin, the vast individual gray whale is likely to be of odontocetes in the NWTT Study Area majority of threshold shift would occur disturbed at a low-moderate level. This are caused by sources from the MFAS upon receipt of a single frequency low magnitude and moderate-lower bin (which includes hull-mounted within the 1–10 kHz range and, severity of harassment effects is not sonar) because they are high level, therefore, the vast majority of threshold expected to result in impacts to typically narrowband sources at a shift caused by Navy sonar sources

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72444 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

would be at a single frequency within communication calls, for several a geographic location at a specific time the range of 2–20 kHz. The frequency minutes to hours (if temporary) or of the year to take advantage of range within which any of the permanently. There is no reason to ephemeral large abundances of prey anticipated narrowband threshold shift think that any of the individual (i.e., invertebrates or small fish, which would occur would fall directly within odontocetes taken by TTS would incur they eat by the thousands), odontocetes the range of most odontocete these types of takes over more than one forage more homogeneously on one fish vocalizations (2–20 kHz). For example, day, or over a few days at most, and or squid at a time. Therefore, if the most commonly used hull-mounted therefore they are unlikely to incur odontocetes are interrupted while sonar has a frequency around 3.5 kHz, impacts on reproduction or survival. feeding, it is often possible to find more and any associated threshold shift The number of PTS takes from these prey relatively nearby. would be expected to be at around 7 sources are very low, and while All the Odontocete species discussed kHz. However, odontocete vocalizations spanning a wider frequency band, are in this section will benefit from the typically span a much wider range than still expected to be of a low degree (i.e., procedural mitigation measures this, and alternately, threshold shift low amount of hearing sensitivity loss) described earlier in the Mitigation from active sonar will often be in a and unlikely to affect reproduction or Measures section. Additionally, the narrower band (reflecting the narrower survival. Navy will limit activities and employ band source that caused it), which The range of potential behavioral other measures in mitigation areas that means that TTS incurred by odontocetes effects of sound exposure on marine will avoid or reduce impacts to would typically only interfere with mammals generally, and odontocetes Odonticetes utilizing those areas, as communication within a portion of their specifically, has been discussed in discussed in more detail below. range (if it occurred during a time when detail previously. There are behavioral communication with conspecifics was patterns that differentiate the likely Sperm Whale, Dwarf Sperm Whale, and occurring) and, as discussed earlier, it impacts on odontocetes as compared to Pygmy Sperm Whale would only be expected to be of a short mysticetes. First, odontocetes This section builds on the broader duration and relatively small degree. echolocate to find prey, which means odontocete discussion above and brings Odontocete echolocation occurs that they actively send out sounds to together the discussion of the different predominantly at frequencies detect their prey. While there are many types and amounts of take that different significantly higher than 20 kHz, though strategies for hunting, one common species and stocks could potentially or there may be some small overlap at the pattern, especially for deeper diving will likely incur, any additional lower part of their echolocating range species, is many repeated deep dives applicable mitigation, and the status of for some species, which means that within a bout, and multiple bouts the species and stocks to support the there is little likelihood that threshold within a day, to find and catch prey. As negligible impact determinations for shift, either temporary or permanent, discussed above, studies demonstrate each species or stock. For sperm whales, would interfere with feeding behaviors. that odontocetes may cease their there is no predicted PTS from sonar or Many of the other critical sounds that foraging dives in response to sound explosives and no predicted tissue serve as cues for navigation and prey exposure. If enough foraging damage from explosives. For dwarf (e.g., waves, fish, invertebrates) occur interruptions occur over multiple sperm whales and pygmy sperm whales below a few kHz, which means that sequential days, and the individual (described as Kogia species for the detection of these signals will not be either does not take in the necessary reasons explained below) no mortality inhibited by most threshold shift either. food, or must exert significant effort to or tissue damage from sonar or The low number of takes by threshold find necessary food elsewhere, energy explosives is anticipated or authorized shift that might be incurred by budget deficits can occur that could and only one PTS take is predicted. individuals exposed to explosives potentially result in impacts to In Table 53 below for sperm whales would likely be lower frequency (5 kHz reproductive success, such as increased and Kogia species, we indicate the total or less) and spanning a wider frequency cow/calf intervals (the time between annual numbers of take by mortality, range, which could slightly lower an successive calving). Second, while Level A and Level B harassment, and a individual’s sensitivity to navigational many mysticetes rely on seasonal number indicating the instances of total or prey cues, or a small portion of migratory patterns that position them in take as a percentage of abundance. TABLE 53—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR SPERM WHALES AND KOGIA SPP. (DWARF SPERM WHALES, AND PYGMY SPERM WHALES) IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Suborder Odontoceti (toothed whales) Family Physeteridae (sperm whale)

Sperm whale* ...... CA/OR/WA ...... 834 5 0 0 0.14 839 1,997 42

Family Kogiidae (sperm whales)

Kogia Species ...... CA/OR/WA ...... 365 517 2 0 0 884 4,111 22 * Presented in the 2019 SARs or most recent SAR. Note: As indicated in Table 32 and Table 33, the Kogia Spp. take estimates were updated to reflect clarifications due to rounding errors in the proposed rule.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72445

As discussed above, the majority of disturbance), the number of estimated from tissue damage are anticipated or takes by Level B harassment by total instances of take compared to the authorized, and two PTS Level A behavioral disturbance of odontocetes, abundance is 42 percent for sperm harassment takes are expected and and thereby sperm whales and Kogia whales. Given the range of this stock authorized. species, is expected to be in the form of (which extends the entire length of the Due to their pelagic distribution, low to occasionally moderate severity of U.S. West Coast, as well as beyond the small size, and cryptic behavior, pygmy a generally shorter duration. As U.S. EEZ boundary), this information sperm whales and dwarf sperm whales discussed earlier in this section, we indicates that notably fewer than half (Kogia species) are rarely sighted during anticipate more severe effects from takes the individuals in the stock are likely to at-sea surveys and are difficult to when animals are exposed to higher be taken annually and with those distinguish between when visually received levels or for longer durations. individuals disturbed on likely one, but observed in the field. Many of the Occasional milder Level B harassment not more than a few non-sequential days relatively few observations of Kogia by behavioral disturbance, as is within a year. Additionally, while species off the U.S. West Coast were not expected here, is unlikely to cause long- interrupted feeding bouts are a known identified to species. All at-sea sightings term consequences for either individual response and concern for odontocetes, of Kogia species have been identified as animals or populations, even if some we also know that there are often viable pygmy sperm whales or Kogia species smaller subset of the takes are in the alternative habitat options in the generally. Stranded dwarf sperm and form of a longer (several hours or a day) relative vicinity. Regarding the severity pygmy sperm whales have been found and more moderate response. of those individual takes by Level B on the U.S. West Coast, however dwarf We note that Kogia species (dwarf and harassment by behavioral disturbance, sperm whale strandings are rare. NMFS pygmy sperm whales), as HF-sensitive we have explained that the duration of SARs suggest that the majority of Kogia species, have a lower PTS threshold any exposure is expected to be between sighted off the U.S. West Coast were than all other groups and therefore are minutes and hours (i.e., relatively short) likely pygmy sperm whales. As such, generally likely to experience larger and the received sound levels largely the stock estimate in the NMFS SAR for amounts of TTS and PTS, and NMFS below 172 dB (i.e., of a lower, to pygmy sperm whales is the estimate accordingly has evaluated and occasionally moderate, level and less derived for all Kogia species in the authorized higher numbers. Also, likely to evoke a severe response). region (Barlow, 2016), and no separate however, regarding PTS from sonar Regarding the severity of TTS takes, abundance estimate can be determined exposure, Kogia whales are still likely to they are expected to be low-level, of for dwarf sperm whales, though some avoid sound levels that would cause short duration, and mostly not in a low number likely reside in the U.S. higher levels of TTS (greater than 20 dB) frequency band that would be expected EEZ. Due to the lack of an abundance or PTS. Therefore, even though the to interfere with sperm whale estimate it is not possible to predict the number of TTS takes are higher than for communication or other important low- amount of Level A and Level B other odontocetes, any PTS is expected frequency cues. Therefore, the harassment take of dwarf sperm whales to be at a lower level and for all of the associated lost opportunities and and therefore take estimates are reasons described above, TTS and PTS capabilities are not at a level that will identified as Kogia whales (including are not expected to impact reproduction impact reproduction or survival. both pygmy and dwarf sperm whales). or survival of any individual. Altogether, this population is stable We assume only a small portion of those Below we compile and summarize the (even though the species is listed under takes are likely to be dwarf sperm information that supports our the ESA), only a portion (notably less whales as the available information determination that the Navy’s activities than half) of the stock is anticipated to indicates that the density and will not adversely affect sperm whales be impacted, and any individual sperm abundance in the U.S. EEZ is low. and pygmy and dwarf sperm whales whale is likely to be disturbed at a low- Regarding the magnitude of takes by through effects on annual rates of moderate level. No Level A harassment Level B harassment (TTS and behavioral recruitment or survival. is anticipated or authorized. This low disturbance), the number of estimated magnitude and low-moderate severity of total instances of take compared to the Sperm Whale (California/Oregon/ harassment effects is not expected to abundance is 21 percent. Given the Washington Stock) result in impacts on the reproduction or range of these stocks (which extends the The SAR identifies the CA/OR/WA survival for any individuals, nor are entire length of the West Coast, as well stock of sperm whales as ‘‘stable’’ these harassment takes combined with as beyond the U.S. EEZ boundary), this although the species is listed as the authorized mortality expected to information indicates that only a small endangered under the ESA. No critical adversely affect this stock through portion of the individuals in the stocks habitat has been designated for sperm impacts on annual rates of recruitment are likely to be impacted and repeated whales under the ESA and no or survival. For these reasons, we have exposures of individuals are not biologically important areas have been determined, in consideration of all of anticipated (i.e., individuals are not identified for sperm whales in the the effects of the Navy’s activities expected to be taken on more than one NWTT Study Area. NMFS is authorizing combined, that the authorized take will day within a year). Additionally, while one mortality for the CA/OR/WA stock have a negligible impact on the CA/OR/ interrupted feeding bouts are a known of sperm whales over the seven years WA stock of sperm whales. response and concern for odontocetes, covered by this rule, or 0.14 mortality we also know that there are often viable annually. The addition of this 0.14 Kogia Species (California/Oregon/ alternative habitat options in the annual mortality still leaves the total Washington Stocks) relative vicinity. Regarding the severity human-caused mortality under residual The status of the CA/OR/WA stocks of of those individual takes by Level B PBR (1.8) and below the insignificance pygmy and dwarf sperm whales (Kogia harassment by behavioral disturbance, threshold. No mortality from explosives species) is unknown and neither are we have explained that the duration of and no Level A harassment is listed under the ESA. No biologically any exposure is expected to be between anticipated or authorized. important areas have been identified for minutes and hours (i.e., relatively short) Regarding the magnitude of takes by Kogia species in the NWTT Study Area. and the received sound levels largely Level B harassment (TTS and behavioral No mortality or Level A harassment below 172 dB (i.e., of a lower, to

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72446 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

occasionally moderate, level and less Altogether, although the status of the Beaked Whales likely to evoke a severe response). stocks is unknown, these species are not Regarding the severity of TTS takes, listed under the ESA as endangered or This section builds on the broader they are expected to be low-level, of threatened, only a small portion of these odontocete discussion above (i.e., that short duration, and mostly not in a stocks are anticipated to be impacted, information applies to beaked whales as frequency band that would be expected and any individual Kogia whale is likely well), and brings together the discussion to interfere with dwarf or pygmy sperm to be disturbed at a low-moderate level. of the different types and amounts of whale communication or other This low magnitude and low-moderate take that different beaked whale species important low-frequency cues. severity of harassment effects is not and stocks will likely incur, any Therefore, the associated lost expected to result in impacts on the additional applicable mitigation, and opportunities and capabilities are not at reproduction or survival of any the status of the species and stocks to a level that will impact reproduction or individuals, let alone have impacts on support the negligible impact survival. A small permanent loss of determinations for each species or stock. hearing sensitivity (PTS) may include annual rates of recruitment or survival. Two individuals could be taken by PTS For beaked whales, there is no some degree of energetic costs for anticipated Level A harassment by PTS compensating or may mean some small annually of likely low severity, the impact of which also is not expected to or tissue damage from sonar or loss of opportunities or detection explosives, and no mortality is capabilities, but at the expected degree affect reproduction or survival, alone or anticipated or authorized. the estimated two Level A harassment in combination with the authorized takes by PTS are unlikely to impact Level B harassment. For these reasons, In Table 54 below for beaked whales, behaviors, opportunities, or detection we have determined, in consideration of we indicate the total annual numbers of capabilities to a degree that will all of the effects of the Navy’s activities take by mortality, Level A and Level B interfere with reproductive success or combined, that the authorized take will harassment, and a number indicating survival of the affected individuals, let have a negligible impact on the CA/OR/ the instances of total take as a alone affect annual rates of recruitment WA stocks of Kogia whales. percentage of abundance. or survival for the stock. TABLE 54—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR BEAKED WHALES IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Suborder Odontoceti (toothed whales) Family Ziphiidae (beaked whales)

Baird’s beaked whale CA/OR/WA ...... 976 0 0 0 0 976 2,697 36 Cuvier’s beaked CA/OR/WA ...... 2,535 4 0 0 0 2,539 3,274 78 whale. Mesoplodont beaked CA/OR/WA ...... 1,119 3 0 0 0 1,122 3,044 37 whales. * Presented in the 2019 SARs or most recent SAR.

This first paragraph provides specific MF4 = 97 percent between 124 and 148 human activity or respond to vessel information that is in lieu of the parallel dB SPL, MF5 = 99 percent between 100 presence (Pirotta et al., 2012). Beaked information provided for odontocetes as and 148 dB SPL, and HF4 = 97 percent whales were observed to react a whole. The majority of takes by between 100 and 154 dB SPL. Given the negatively to survey vessels or low harassment of beaked whales in the levels they are exposed to and their altitude aircraft by quick diving and NWTT Study Area are caused by sensitivity, some responses would be of other avoidance maneuvers, and none sources from the MFAS bin (which a lower severity, but many would likely were observed to approach vessels includes hull-mounted sonar) because be considered moderate, but still of (Wursig et al., 1998). It has been they are high level narrowband sources generally short duration. speculated for some time that beaked that fall within the 1–10 kHz range, Research has shown that beaked whales might have unusual sensitivities which overlap a more sensitive portion whales are especially sensitive to the to sonar sound due to their likelihood (though not the most sensitive) of the presence of human activity (Pirotta et of stranding in conjunction with MFAS MF hearing range. Also, of the sources al., 2012; Tyack et al., 2011) and use, although few definitive causal expected to result in take, they are used therefore have been assigned a lower relationships between MFAS use and in a large portion of exercises (see harassment threshold, with lower strandings have been documented (see Tables 3 and 4). Most of the takes (95 received levels resulting in a higher Potential Effects of Specified Activities percent) from the MF1 bin in the NWTT percentage of individuals being on Marine Mammals and their Habitat Study Area would result from received harassed and a more distant distance section in the proposed rule). However, levels between 142 and 160 dB SPL. For cutoff (50 km for high source level, 25 as described in the Estimated Take of the remaining active sonar bin types, the km for moderate source level). Marine Mammals section of this final percentages are as follows: LF4 = 99 Beaked whales have been rule and further addressed in the percent between 118 and 148 dB SPL, documented to exhibit avoidance of response to Comment 19, NMFS neither

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72447

anticipates nor authorizes the mortality also been documented. For example, animals may routinely move hundreds of beaked whales (or other species or Blainville’s beaked whales showed of kilometers as part of their normal stocks) resulting from exposure to active decreased group vocal periods after pattern, leaving an area where sonar or sonar. biannual multi-day Navy training other anthropogenic sound is present Research and observations show that activities (Henderson et al.2016). Tyack may have little, if any, cost to such an if beaked whales are exposed to sonar or et al. (2011) report that, in reaction to animal. Photo identification studies in other active acoustic sources, they may sonar playbacks, most beaked whales the SOCAL Range Complex, a Navy startle, break off feeding dives, and stopped echolocating, made long slow range that is utilized for training and avoid the area of the sound source to ascent to the surface, and moved away testing, have identified approximately levels of 157 dB re: 1 mPa, or below from the sound. A similar behavioral 100 Cuvier’s beaked whale individuals (McCarthy et al., 2011). For example, response study conducted in Southern with 40 percent having been seen in one after being exposed to 1–2 kHz upsweep California waters during the 2010–2011 or more prior years, with re-sightings up naval sonar signals at a received SPL of field season found that Cuvier’s beaked to seven years apart (Falcone and 107 dB re 1 mPa, Northern bottlenose whales exposed to MFAS displayed Schorr, 2014). These results indicate whales began moving in an unusually behavior ranging from initial orientation long-term residency by individuals in straight course, made a near 180° turn changes to avoidance responses an intensively used Navy training and away from the source, and performed characterized by energetic fluking and testing area, which may also suggest a the longest and deepest dive (94 min, swimming away from the source lack of long-term consequences as a 2339 m) recorded for this species (Miller (DeRuiter et al., 2013b). However, the result of exposure to Navy training and et al. 2015). Wensveen et al. (2019) also authors did not detect similar responses testing activities. More than eight years documented avoidance behaviors in to incidental exposure to distant naval of passive acoustic monitoring on the Northern bottlenose whales exposed to sonar exercises at comparable received Navy’s instrumented range west of San 1–2 kHz tonal sonar signals with SPLs levels, indicating that context of the Clemente Island documented no ranging between 117–126 dB re: 1 mPa, exposures (e.g., source proximity, significant changes in annual and including interrupted diving behaviors, controlled source ramp-up) may have monthly beaked whale echolocation elevated swim speeds, directed been a significant factor. The study itself clicks, with the exception of repeated movements away from the sound found the results inconclusive and fall declines likely driven by natural source, and cessation of acoustic signals meriting further investigation. Falcone beaked whale life history functions throughout exposure periods. Acoustic et al. (2017) however, documented that (DiMarzio et al., 2018). Finally, results monitoring during actual sonar Cuvier’s beaked whales had longer dives from passive acoustic monitoring exercises revealed some beaked whales and surface durations after exposure to estimated that regional Cuvier’s beaked continuing to forage at levels up to 157 mid-frequency active sonar, with the whale densities were higher than dB re: 1 mPa (Tyack et al., 2011). longer surface intervals contributing to indicated by NMFS’ broad scale visual Stimpert et al. (2014) tagged a Baird’s a longer interval between deep dives, a surveys for the U.S. West Coast beaked whale, which was subsequently proxy for foraging disruption in this (Hildebrand and McDonald, 2009). exposed to simulated MFAS. Changes in species. Cuvier’s beaked whale Below we compile and summarize the the animal’s dive behavior and responses suggested particular information that supports our locomotion were observed when sensitivity to sound exposure consistent determination that the Navy’s activities received level reached 127 dB re: 1 mPa. with results for Blainville’s beaked will not adversely affect beaked whales However, Manzano-Roth et al. (2013) whale. through effects on annual rates of found that for beaked whale dives that Populations of beaked whales and recruitment or survival. continued to occur during MFAS other odontocetes on the Bahamas and Baird’s and Cuvier’s Beaked Whales and activity, differences from normal dive other Navy fixed ranges that have been Mesoplodon Species profiles and click rates were not operating for decades appear to be detected with estimated received levels stable. Behavioral reactions (avoidance California/Oregon/Washington Stocks up to 137 dB re: 1 mPa while the animals of the area of Navy activity) seem likely Baird’s beaked whale, Cuvier’s beaked were at depth during their dives. In in most cases if beaked whales are whale, and the Mesoplodon species are research done at the Navy’s fixed exposed to anti-submarine sonar within not listed as endangered or threatened tracking range in the Bahamas, animals a few tens of kilometers, especially for species under the ESA, and the CA/OR/ were observed to leave the immediate prolonged periods (a few hours or more) WA stocks have been identified as area of the anti-submarine warfare since this is one of the most sensitive ‘‘stable,’’ ‘‘decreasing,’’ and training exercise (avoiding the sonar marine mammal groups to ‘‘increasing,’’ respectively, in the SARs. acoustic footprint at a distance where anthropogenic sound of any species or No biologically important areas have the received level was ‘‘around 140 dB group studied to date and research been identified for beaked whales in the SPL’’, according to Tyack et al. (2011)), indicates beaked whales will leave an NWTT Study Area. No mortality or but return within a few days after the area where anthropogenic sound is Level A harassment from sonar or event ended (Claridge and Durban, present (De Ruiter et al., 2013; explosives is expected or authorized. 2009; McCarthy et al., 2011; Moretti et Manzano-Roth et al., 2013; Moretti et No methods are available to al., 2009, 2010; Tyack et al., 2010, al., 2014; Tyack et al., 2011). Research distinguish between the six species of 2011). Joyce et al. (2019) found that involving tagged Cuvier’s beaked whales Mesoplodon beaked whales from the Blainville’s beaked whales moved up to in the SOCAL Range Complex reported CA/OR/WA stocks (Blainville’s beaked 68 km away from an Atlantic Undersea on by Falcone and Schorr (2012, 2014) whale (M. densirostris), Perrin’s beaked Test and Evaluation Center site and indicates year-round prolonged use of whale (M. perrini), Lesser beaked whale reduced time spent on deep dives after the Navy’s training and testing area by (M. peruvianus), Stejneger’s beaked the onset of mid-frequency active sonar these beaked whales and has whale (M. stejnegeri), Gingko-toothed exposure; whales did not return to the documented movements in excess of beaked whale (M. gingkodens), and site until 2–4 days after the exercises hundreds of kilometers by some of those Hubbs’ beaked whale (M. carlhubbsi)) ended. Changes in acoustic activity have animals. Given that some of these when observed during at-sea surveys

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72448 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

(Carretta et al., 2019). Bycatch and relatively short) and the received sound survival. No mortality or Level A stranding records from the region levels largely below 166 dB, though harassment is anticipated or authorized. indicate that Hubb’s beaked whale is the with beaked whales, which are For these reasons, we have determined, most commonly encountered (Carretta considered somewhat more sensitive, in consideration of all of the effects of et al., 2008, Moore and Barlow, 2013). this could mean that some individuals the Navy’s activities combined, that the As indicated in the SAR, no species- will leave preferred habitat for a day authorized take will have a negligible specific abundance estimates are (i.e., moderate level takes). However, impact on the CA/OR/WA stocks of available, the abundance estimate while interrupted feeding bouts are a beaked whales. includes all CA/OR/WA Mesoplodon known response and concern for Dolphins and Small Whales species, and the six species/stocks are odontocetes, we also know that there are managed as one unit. Due to the lack of often viable alternative habitat options This section builds on the broader species-specific abundance estimates it nearby. Regarding the severity of TTS odontocete discussion above and brings is not possible to predict the take of takes, they are expected to be low-level, together the discussion of the different individual species for each stock and of short duration, and mostly not in a types and amounts of take that different take estimates are identified as frequency band that would be expected dolphin and small whale species and Mesoplodon species. Therefore our to interfere with beaked whale stocks are likely to incur, any additional analysis considers these Mesoplodon communication or other important low- applicable mitigation, and the status of species together. frequency cues, and that the associated the species and stocks to support the Regarding the magnitude of takes by lost opportunities and capabilities are negligible impact determinations for Level B harassment (TTS and behavioral not at a level that will impact each species or stock. For all dolphin disturbance), the number of estimated reproduction or survival. As mentioned and small whale stocks discussed here, total instances of take compared to the earlier in the odontocete overview, we no mortality or tissue damage from abundance is 36 to 78 percent. This anticipate more severe effects from takes sonar or explosives is anticipated or information indicates that potentially when animals are exposed to higher authorized. No PTS from sonar or half or more (but no more than 78 received levels or sequential days of explosives is predicted, except for the percent) of the individuals in these impacts. CA/OR/WA stocks of Northern right stocks may be impacted, depending on Altogether, none of these species are whale dolphin and Pacific white-sided the stock, though the more likely listed as threatened or endangered dolphin, for which one Level A scenario is that a smaller portion than under the ESA, only a portion of the harassment by PTS from testing that would be taken, and a subset of stocks are anticipated to be impacted, activities is predicted for each stock. them would be taken on a few days, and any individual beaked whale is In Table 55 below for dolphins and with no indication that these days likely to be disturbed at a moderate or small whales, we indicate for each would be sequential. Regarding the sometimes low level. This low species and stock the total annual severity of those individual takes by magnitude and moderate to lower numbers of take by mortality, Level A Level B harassment by behavioral severity of harassment effects is not harassment and Level B harassment, disturbance, we have explained that the expected to result in impacts on and a number indicating the instances duration of any exposure is expected to individual reproduction or survival, let of total take as a percentage of be between minutes and hours (i.e., alone annual rates of recruitment or abundance. TABLE 55—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR DOLPHINS AND SMALL WHALES IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Family Delphinidae (dolphins) Family Ziphiidae (beaked whales)

Common bottlenose CA/OR/WA Offshore 8 0 0 0 0 8 1,924 <1 dolphin. Killer whale ...... Eastern North Pacific 34 0 0 0 0 34 2,347 1 Alaska Resident. West Coast Tran- 210 22 0 0 0 232 243 95 sient. Eastern North Pacific 152 5 0 0 0 157 300 52 Offshore. Eastern North Pacific 49 2 0 0 0 51 75 68 Southern Resident. Northern right whale CA/OR/WA ...... 20,671 1,029 1 0 0 21,701 26,556 82 dolphin. Pacific white-sided North Pacific ...... 101 0 0 0 0 101 26,880 <1 dolphin. CA/OR/WA ...... 19,593 1,372 1 0 0 20,966 26,814 78 Risso’s dolphin ...... CA/OR/WA ...... 6,080 275 0 0 0 6,355 6,336 100 Short-beaked com- CA/OR/WA ...... 2,103 46 0 0 0 2,149 969,861 <1 mon dolphin. Short-finned pilot CA/OR/WA ...... 87 1 0 0 0 88 836 11 whale.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72449

TABLE 55—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR DOLPHINS AND SMALL WHALES IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE—Continued

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Striped dolphin ...... CA/OR/WA ...... 763 20 0 0 0 783 29,211 3 * Presented in the 2019 SARs or most recent SAR.

As described above, the large majority described above in the odontocete Mitigation Area is designed to help of Level B harassment by behavioral overview. avoid any potential impacts from disturbance to odontocetes, and thereby Below we compile and summarize the training and testing on Southern dolphins and small whales, from hull- information that supports our Resident killer whales in NWTT Inland mounted sonar (MFAS) in the NWTT determination that the Navy’s activities Waters. With implementation of these Study Area would result from received will not adversely affect dolphins and new mitigation measures, we do not levels between 160 and 172 dB SPL. small whales through effects on annual anticipate any take of Southern Resident Therefore, the majority of takes by Level rates of recruitment or survival. killer whales in NWTT Inland Waters B harassment for dolphins and small due to NWTT training and testing Killer Whales (Eastern North Pacific whales are expected to be in the form activities. Southern Resident Stock) of low to occasionally moderate Additionally, this final rule includes responses of a generally shorter The Eastern North Pacific Southern a new mitigation area, the Juan de Fuca duration. As mentioned earlier in this Resident stock (Southern Resident killer Eddy Marine Species Mitigation Area, section, we anticipate more severe whale DPS) is listed as endangered in which MF1 MFAS will be restricted effects from takes when animals are under the ESA. ESA-designated critical and explosives prohibited. Waters exposed to higher received levels or for habitat for the Southern Resident killer within the Juan de Fuca Eddy Marine longer durations. Occasional milder whale DPS overlaps with the NWTT Species Mitigation Area (including areas occurrences of Level B harassment by Study Area in the Strait of Juan de Fuca off Cape Flattery) are important behavioral disturbance, as is expected and Washington inland waters. No other migration habitat for Eastern North here, are unlikely to cause long-term biologically important areas for killer Pacific Southern Resident killer whales consequences for individual animals or whales have been identified in the as they transit between Inland Waters populations that have any effect on NWTT Study Area. The Eastern North and the Offshore Area. In addition, reproduction or survival. Pacific Southern Resident stock is small Eastern North Pacific Southern Resident Research and observations show that (75 individuals) and has been killer whales will benefit from the if delphinids are exposed to sonar or decreasing in recent years. No mortality procedural mitigation measures other active acoustic sources they may or Level A harassment is anticipated or described earlier in the Mitigation react in a number of ways depending on authorized for the Eastern North Pacific Measures section. All of these measures their experience with the sound source Southern Resident stock of killer will reduce the severity of impacts to and what activity they are engaged in at whales. Eastern North Pacific Southern Resident the time of the acoustic exposure. The Marine Species Coastal, Olympic (Southern Resident DPS) killer whales Delphinids may not react at all until the Coast National Marine Sanctuary, by reducing interference in feeding and sound source is approaching within a Stonewall and Heceta Bank Humpback migration that could result in lost few hundred meters to within a few Whale, Point St. George Humpback feeding opportunities or necessitate kilometers depending on the Whale, and Puget Sound and Strait of additional energy expenditure to find environmental conditions and species. Juan de Fuca Mitigation Areas overlap other good foraging opportunities or Some dolphin species (the more surface- with important Eastern North Pacific migration routes. Altogether, the dwelling taxa—typically those with Southern Resident (Southern Resident mitigation measures in this final rule ‘‘dolphin’’ in the common name, such DPS) killer whale foraging and result in a significant reduction in as bottlenose dolphins, spotted migration habitat, as described in the activities likely to disturb Eastern North dolphins, spinner dolphins, rough- proposed rule and this final rule. The Pacific Southern Resident killer whales toothed dolphins, etc., but not Risso’s mitigation measures implemented in across a large portion of their range dolphin), especially those residing in each of these areas include, but are not within the NWTT Study Area, and more industrialized or busy areas, have limited to, no MF1 MFAS use especially within inland waters. demonstrated more tolerance for seasonally or limited MFAS use year Regarding the magnitude of takes by disturbance and loud sounds and many round, no explosive training or Level B harassment (TTS and behavioral of these species are known to approach restrictions on explosive training, and disturbance), the number of estimated vessels to bow-ride. These species are no explosive testing or restrictions on total instances of take compared to the often considered generally less sensitive explosive testing. For complete details abundance for the Eastern North Pacific to disturbance. Dolphins and small on mitigation measures for each area, Southern Resident stock is 68 percent. whales that reside in deeper waters and see Table 50 and discussion in the This information indicates that generally have fewer interactions with Mitigation Measures section of this rule. potentially half or more of the human activities are more likely to As stated in the Mitigation Areas section individuals in this stock may be demonstrate more typical avoidance of this final rule, new mitigation in the impacted, though the more likely reactions and foraging interruptions as Puget Sound and Strait of Juan de Fuca scenario is that a smaller portion than

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72450 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

that will be taken, and a subset of them Regarding the magnitude of takes by All Other Dolphin and Small Whale will be taken multiple days with no Level B harassment (TTS and behavioral Stocks indication that these days will be disturbance), the number of estimated None of these stocks is listed under sequential. total instances of take compared to the the ESA and their stock statuses are Regarding the severity of those abundance ranges from 1 percent considered ‘‘unknown,’’ except for the individual takes by Level B harassment (Eastern North Pacific Alaska Resident) CA/OR/WA stock of short-beaked by behavioral disturbance, we have to 95 percent (West Coast Transient). common dolphin which is described as explained that the duration of any This information indicates that only a ‘‘increasing.’’ No biologically important exposure is expected to be between very small portion of the Eastern North areas for these stocks have been minutes and hours (i.e., relatively short) Pacific Alaska Resident stock is likely identified in the NWTT Study Area. No and the received sound levels largely mortality or serious injury is anticipated below 172 dB (i.e., of a lower, to impacted and repeated exposures of or authorized. With the exception of one occasionally moderate, level and less individuals are not anticipated (i.e., Level A harassment PTS take each for likely to evoke a severe response). individuals are not expected to be taken Regarding the severity of TTS takes, on more than one day within a year). the CA/OR/WA stocks of Northern right they are expected to be low-level, of This information also indicates that whale dolphin and Pacific white-sided short duration, and mostly not in a potentially half or more of the dolphin, no Level A harassment by PTS frequency band that would be expected individuals in the other two stocks may or tissue damage is expected or to interfere with killer whale be impacted, though the more likely authorized for these stocks. Regarding the magnitude of takes by communication or other important low- scenario is that a smaller portion than Level B harassment (TTS and behavioral frequency cues. Therefore, the that will be taken, and a subset of them disturbance), the number of estimated associated lost opportunities and will be taken multiple days with no capabilities are not at a level that will total instances of take compared to the indication that these days will be abundance ranges from less than 1 impact reproduction or survival. sequential. Altogether, the Eastern North Pacific percent (North Pacific stock of Pacific Southern Resident killer whale stock is Regarding the severity of those white-sided dolphins, CA/OR/WA listed as endangered under the ESA. individual takes by Level B harassment Offshore stock of common bottlenose Only a portion of this killer whale stock by behavioral disturbance, we have dolphins, and CA/OR/WA stock of is anticipated to be impacted, and any explained that the duration of any short-beaked common dolphins) to 100 individual is likely to be disturbed at a exposure is expected to be between percent (CA/OR/WA stock of Risso’s low-moderate level, with those minutes and hours (i.e., relatively short) dolphins). All stocks except for the CA/ individuals likely not disturbed on more and the received sound levels largely OR/WA stocks of Risso’s dolphin, than a few non-sequential days within below 172 dB (i.e., of a lower, to Pacific white-sided dolphin, and a year. Even acknowledging the small occasionally moderate, level and less Northern right whale dolphin have and declining stock size of the Eastern likely to evoke a severe response). estimated total instances of take North Pacific Southern Resident stock, Regarding the severity of TTS takes, compared to the abundances less than this low magnitude and severity of they are expected to be low-level, of or equal to 11 percent. This information harassment effects is unlikely to result short duration, and mostly not in a indicates that only a small portion of these stocks is likely impacted and in impacts on individual reproduction frequency band that would be expected repeated exposures of individuals are or survival, let alone have impacts on to interfere with killer whale not anticipated. The CA/OR/WA stocks annual rates of recruitment or survival communication or other important low- of the stock. No mortality or Level A of Risso’s dolphins, Pacific white-sided frequency cues. Therefore, the dolphin, and Northern right whale harassment is anticipated or authorized associated lost opportunities and for the stock. For these reasons, we have dolphin have estimated total instances capabilities are not at a level that will determined, in consideration of all of of take compared to the abundances that the effects of the Navy’s activities impact reproduction or survival. range from 78 to 100 percent. This combined, that the authorized take will Altogether, these killer whale stocks information indicates that up to half or have a negligible impact on the Eastern are not listed under the ESA. Only a more of the individuals of these stocks North Pacific Southern Resident killer portion of each killer whale stock is could be impacted, though the more whale stock. anticipated to be impacted, and any likely scenario is that a smaller portion individual is likely to be disturbed at a than that will be taken, and a subset of Killer Whales (Eastern North Pacific them will be taken on a few days, with Alaska Resident, West Coast Transient, low-moderate level, with the taken individuals likely not disturbed on more no indication that these days will be and Eastern North Pacific Offshore sequential. Stocks) than a few non-sequential days within a year. This low magnitude and severity Regarding the severity of those None of these killer whale stocks are of harassment effects is unlikely to individual takes by Level B harassment listed under the ESA. No biologically by behavioral disturbance, we have result in impacts on individual important areas for killer whales have explained that the duration of any reproduction or survival, let alone have been identified in the NWTT Study exposure is expected to be between Area, other than the Southern Resident impacts on annual rates of recruitment minutes and hours (i.e., relatively short) ESA-designated critical habitat or survival of any of the stocks. No and the received sound levels largely discussed above. The Eastern North mortality or Level A harassment is below 172 dB (i.e., of a lower, to Pacific Offshore stock is reported as anticipated or authorized for any of the occasionally moderate, level and less ‘‘stable,’’ while the Eastern North Pacific stocks. For these reasons, we have likely to evoke a severe response). Alaska Resident and West Coast determined, in consideration of all of However, while interrupted feeding Transient stocks have unknown the effects of the Navy’s activities bouts are a known response and concern population trends. No mortality or Level combined, that the authorized take will for odontocetes, we also know that there A harassment is anticipated or have a negligible impact on these killer are often viable alternative habitat authorized for any of these stocks. whale stocks. options nearby. Regarding the severity

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72451

of TTS takes, they are expected to be stocks is listed under the ESA and any anticipated or authorized. For these low-level, of short duration, and mostly individual is likely to be disturbed at a reasons, we have determined, in not in a frequency band that would be low to occasionally moderate level, with consideration of all of the effects of the expected to interfere with dolphin and the taken individuals likely exposed on Navy’s activities combined, that the small whale communication or other one to a few days. This low magnitude authorized take will have a negligible important low-frequency cues, and that and severity of harassment effects is not impact on these stocks of small whales the associated lost opportunities and expected to result in impacts on and dolphins. capabilities are not at a level that will individual reproduction or survival. impact reproduction or survival. For One individual each from the CA/OR/ Porpoises these same reasons (low level and WA stocks of Northern right whale frequency band), while a small dolphin and Pacific white-sided This section builds on the broader permanent loss of hearing sensitivity dolphin could be taken by PTS annually odontocete discussion above and brings (PTS) may include some degree of of likely low severity. A small together the discussion of the different energetic costs for compensating or may permanent loss of hearing sensitivity types and amounts of take that different mean some small loss of opportunities (PTS) may include some degree of porpoise species or stocks will likely or detection capabilities, at the expected energetic costs for compensating or may incur, any additional applicable scale the estimated one Level A mean some small loss of opportunities mitigation, and the status of the species harassment take by PTS for the CA/OR/ or detection capabilities, but at the and stocks to support the negligible WA stocks of Northern right whale expected scale the estimated Level A impact determinations for each species dolphin and Pacific white-sided harassment takes by PTS for the CA/OR/ or stock. For porpoises, there is no dolphin is unlikely to impact behaviors, WA stocks of Northern right whale anticipated M/SI or tissue damage from opportunities, or detection capabilities dolphin and Pacific white-sided sonar or explosives for any species. to a degree that will interfere with dolphin is unlikely to impact behaviors, In Table 56 below for porpoises, we reproductive success or survival of that opportunities, or detection capabilities indicate the total annual numbers of individual. Thus the one Level A to a degree that will interfere with harassment take by PTS for these stocks reproductive success or survival of take by mortality, Level A harassment is unlikely to affect rates of recruitment those individuals, let alone annual rates and Level B harassment, and a number and survival for the stock. of recruitment or survival, either alone, indicating the instances of total take as Altogether, though the status of these or in combination with the authorized a percentage of abundance. stocks is largely unknown, none of these Level B harassment. No mortality is TABLE 56—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR POR- POISES IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Family Phocoenidae (porpoises)

Dall’s porpoise ...... Alaska ...... 179 459 0 0 0 638 83,400 <1 CA/OR/WA ...... 13,407 20,290 98 0 0 33,795 25,750 131 Harbor porpoise ...... Southeast Alaska ..... 92 38 0 0 0 130 1,354 10 Nothern OR/WA 31,602 20,810 103 0 0 52,515 21,487 244 Coast. Northern CA/South- 1,691 348 86 0 0 2,125 24,195 9 ern OR. Washington Inland 15,146 14,397 180 0 0 29,723 11,233 265 Waters. * Presented in the 2019 SARs or most recent SAR, including updates since publication of the proposed rule.

The majority of takes by harassment the remaining active sonar bin types, the 2012). The information currently of harbor porpoises in the NWTT Study percentages are as follows: LF4 = 99 available regarding harbor porpoises Area are caused by sources from the percent between 124 and 142 dB SPL, suggests a very low threshold level of MFAS bin (which includes hull- MF4 = 97 percent between 124 and 148 response for both captive (Kastelein et mounted sonar) because they are high dB SPL, MF5 = 97 percent between 118 al., 2000; Kastelein et al., 2005) and level sources at a frequency (1–10 kHz) and 142 dB SPL, and HF4 = 97 percent wild (Johnston, 2002) animals. Southall which overlaps a more sensitive portion between 118 and 160 dB SPL. Given the et al. (2007) concluded that harbor (though not the most sensitive) of the levels they are exposed to and harbor porpoises are likely sensitive to a wide HF hearing range, and of the sources porpoise sensitivity, some responses range of anthropogenic sounds at low expected to result in take, they are used would be of a lower severity, but many received levels (approximately 90 to 120 in a large portion of exercises (see would likely be considered moderate, dB). Research and observations of Tables 3 and 4). Most of the takes (90 but still of generally short duration. harbor porpoises for other locations percent) from the MF1 bin in the NWTT Harbor porpoises have been shown to show that this species is wary of human Study Area would result from received be particularly sensitive to human activity and will display profound levels between 148 and 166 dB SPL. For activity (Tyack et al., 2011; Pirotta et al., avoidance behavior for anthropogenic

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72452 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

sound sources in many situations at in the form of milder responses disturbed on more than one day a year). levels down to 120 dB re: 1 mPa compared to higher level exposures. As The CA/OR/WA stock of Dall’s (Southall, 2007). Harbor porpoises mentioned earlier in this section, we porpoises and the Northern routinely avoid and swim away from anticipate more severe effects from takes Washington/Oregon Coast and large motorized vessels (Barlow et al., when animals are exposed to higher Washington Inland Waters stocks of 1988; Evans et al., 1994; Palka and received levels. harbor porpoises have estimated total Hammond, 2001; Polacheck and We note that both Dall’s and harbor instances of take compared to the Thorpe, 1990). Harbor porpoises may porpoises, as HF-sensitive species, have abundances that range from 131 to 265 startle and temporarily leave the a lower PTS threshold than other groups percent. This information indicates that immediate area of the training or testing and therefore are generally likely to likely half or more, and potentially the until after the event ends. Accordingly, experience larger amounts of TTS and majority of the individuals of these harbor porpoises have been assigned a PTS, and NMFS accordingly has stocks could be impacted, though the lower behavioral harassment threshold, evaluated and authorized higher more likely scenario is that a smaller i.e., a more distant distance cutoff (40 numbers. Also, however, regarding PTS portion will be taken, and a subset of km for high source level, 20 km for from sonar exposure, porpoises are still those will be taken on up to 5 or 6 days, moderate source level) and, as a result, likely to avoid sound levels that would with no indication that these days will the number of harbor porpoise taken by cause higher levels of TTS (greater than be sequential. In the proposed rule, we Level B harassment by behavioral 20 dB) or PTS. Therefore, even though stated that due to the potential number disturbance through exposure to LFAS/ the number of TTS takes are higher than of repeated takes of some individuals it MFAS/HFAS in the NWTT Study Area for other odontocetes, any PTS is was possible that some small number of is generally higher than the other expected to be at a lower level and for females could forego reproduction for a species. As mentioned earlier in the all of the reasons described above, TTS year. Since the proposed rule, we have odontocete overview, we anticipate and PTS takes are not expected to reevaluated the estimated number of more severe effects from takes when impact reproduction or survival of any harassment takes, where the potential animals are exposed to higher received individual. number of repeated takes annually is levels or sequential days of impacts; All Porpoise Stocks limited to 5 or 6 days with no indication occasional low to moderate behavioral of take on sequential days, and These Dall’s and harbor porpoise reactions are unlikely to affect determined that foregone reproduction stocks are not listed under the ESA and reproduction or survival. Some takes by is unlikely to occur. the status of these stocks is considered Level B harassment by behavioral Regarding the severity of those ‘‘unknown.’’ No biologically important disturbance could be in the form of a individual takes by Level B harassment areas have been identified for Dall’s and by behavioral disturbance for harbor longer (several hours or a day) and more harbor porpoises in the NWTT Study moderate response, but unless they are porpoises, we have explained that the Area. However, a known important duration of any exposure is expected to repeated over more than several feeding area for harbor porpoises sequential days, impacts to be between minutes and hours (i.e., overlaps with the Stonewall and Heceta relatively short) and the received sound reproduction or survival are not Bank Humpback Whale Mitigation Area. anticipated. levels largely below 166 dB, which for No MF1 MFAS or explosives will be harbor porpoise (which have a lower While harbor porpoises have been used in this mitigation area from May threshold for Level B harassment by observed to be especially sensitive to 1—November 30, which will reduce the disturbance) would be considered a human activity, the same types of severity of impacts to harbor porpoises moderate level. Regarding the severity responses have not been observed in by reducing interference in feeding that of those individual takes by Level B Dall’s porpoises. Dall’s porpoises are could result in lost feeding harassment by behavioral disturbance typically notably longer than, and weigh opportunities or necessitate additional for Dall’s porpoises, we have explained more than twice as much as, harbor energy expenditure to find other good that the duration of any exposure is porpoises, making them generally less opportunities. No mortality or Level A expected to be between minutes and likely to be preyed upon and likely harassment from tissue damage is hours (i.e., relatively short) and the differentiating their behavioral expected or authorized for any of these received sound levels largely below 172 repertoire somewhat from harbor stocks. dB (i.e., of a lower, to occasionally porpoises. Further, they are typically Regarding the magnitude of takes by moderate, level and less likely to evoke seen in large groups and feeding Level B harassment (TTS and behavioral a severe response). Regarding the aggregations, or exhibiting bow-riding disturbance), the number of estimated severity of TTS takes, they are expected behaviors, which is very different from total instances of take compared to the to be low-moderate level, of short the group dynamics observed in the abundance ranges from less than 1 duration, and mostly not in a frequency more typically solitary, cryptic harbor percent for the Alaska stock of Dall’s band that would be expected to interfere porpoises, which are not often seen porpoises to 265 percent for the with communication or other important bow-riding. For these reasons, Dall’s Washington Inland Waters stock of low-frequency cues. The associated lost porpoises are not treated as an harbor porpoises. The Alaska stock of opportunities and capabilities are not at especially sensitive species (versus Dall’s porpoises, and the Southeast a level that will impact reproduction or harbor porpoises which have a lower Alaska and Northern California/ survival. behavioral harassment threshold and Southern Oregon stocks of harbor No Level A harassment by PTS is more distant cutoff) but, rather, are porpoises have estimated total instances anticipated or authorized for the analyzed similarly to other odontocetes of take compared to the abundances less Southeast Alaska stock of harbor (with takes from the sonar bin in the than or equal to 10 percent. This porpoise or the Alaska stock of Dall’s NWTT Study Area resulting from the information indicates that only a small porpoise. For the remaining porpoise same received levels reported in the portion of these stocks is likely stocks, for the same reasons explained Odontocete section above). Therefore, impacted and repeated exposures of above for TTS (low level and the likely the majority of Level B harassment by individuals are not anticipated (i.e., frequency band), while a small behavioral disturbance is expected to be individuals are not expected to be permanent loss of hearing sensitivity

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72453

may include some degree of energetic Altogether, the status of the Dall’s and no Level A harassment from tissue costs for compensating or may mean porpoise stocks is unknown, however damage from sonar or explosives some small loss of opportunities or Dall’s porpoises are not listed as anticipated or authorized for any detection capabilities, the estimated endangered or threatened under the species. Here, we include information annual Level A harassment takes by PTS ESA. Any individual Dall’s porpoise is that applies to all of the pinniped for these three stocks of harbor likely to be disturbed at a low-moderate species and stocks. porpoises and one stock of Dall’s level, with the taken individuals likely In Table 57 below for pinnipeds, we porpoises (86 to 180) will be unlikely to exposed on one to a few days. This low indicate the total annual numbers of impact behaviors, opportunities, or magnitude and low-moderate severity of take by mortality, Level A harassment detection capabilities to a degree that Level B harassment effects is not and Level B harassment, and a number will interfere with reproductive success expected to result in impacts on indicating the instances of total take as or survival. In the proposed rule, we individual reproduction or survival, a percentage of abundance. stated that due to the estimated number much less annual rates of recruitment or This final rule reflects an updated of PTS takes it was possible that some survival. Some individuals (98) from the abundance estimate for the Washington small number of females could incur a CA/OR/WA stock of Dall’s porpoises Northern Inland Waters stock, Hood higher degree of PTS that could interfere could be taken by PTS annually of likely Canal stock, and Southern Puget Sound with their successful reproduction and low severity. A small permanent loss of stock of harbor seal. The Navy derived growth. Since the proposed rule, we hearing sensitivity (PTS) may include an in-water harbor seal abundance of have reevaluated the likelihood of PTS some degree of energetic costs for 3,116 for Washington Northern Inland impacts of a higher degree and compensating or may mean some small Waters by summing abundances for determined that they are unlikely to loss of opportunities or detection Admiralty Inlet (516), East Whidbey occur, given the anticipated avoidance capabilities, but at the expected scale (1,926), and South Whidbey (674) from of loud sounds at the distances and the estimated Level A harassment takes Smultea et al., (2017). Smultea et al. durations necessary to incur more by PTS for this stock are unlikely, alone (2017) did not provide an abundance or severe PTS. or in combination with the Level B correction factor for animals hauled out harassment take by behavioral of the water in these locations. Altogether, the status of the harbor disturbance, to impact behaviors, Therefore, the Navy utilized a correction porpoise stocks is unknown, however opportunities, or detection capabilities factor of 1.53 (Huber et al., 2001), but it harbor porpoises are not listed as to a degree that will interfere with is important to note that this correction endangered or threatened under the reproductive success or survival of any factor applies for counts of hauled-out ESA. Because harbor porpoises are individuals, let alone annual rates of animals (e.g., animals hauled out particularly sensitive, it is likely that a recruitment or survival. No mortality is multiplied by the correction factor for fair number of the Level B harassment anticipated or authorized. For these animals in-water = total abundance). behavioral responses of individuals will reasons, we have determined, in Therefore, the Navy applied a ‘‘reverse’’ be of a moderate nature. Additionally, consideration of all of the effects of the correction factor (3,116/0.53 = 5,879) to as noted, some portion of the stocks may Navy’s activities combined, that the account for hauled-out animals. In be taken repeatedly on up to 5 or 6 non- authorized take will have a negligible addition, Smultea et al. (2017) did not sequential days within a year, however impact on these two stocks of Dall’s survey the Strait of Juan de Fuca and this is not anticipated to affect the porpoises. San Juan Islands for harbor seals. stocks’ annual rates of recruitment or However, NMFS includes the Strait and survival. Some individuals (86 to 180) Pinnipeds San Juan Islands as part of the WA from the Northern Oregon/Washington This section builds on the broader Northern Inland Waters stock in the Coast, Northern California/Southern discussion above and brings together the SAR. Thus, the abundance (13,775 Oregon, and Washington Inland Waters discussion of the different types and seals) calculated to estimate a density, stocks of harbor porpoises could be amounts of take that different species based on haul-out counts by S. Jeffries taken by PTS annually of likely low and stocks of pinnipeds will likely in summer 2013 and 2014, is added to severity. A small permanent loss of incur, the applicable mitigation, and the the Smultea et al. total abundance. hearing sensitivity (PTS) may include status of the species and stocks to Therefore, the total stock abundance some degree of energetic costs for support the negligible impact estimate is equal to the sum of the in- compensating or may mean some small determinations for each species or stock. water abundance plus the estimated loss of opportunities or detection We have described (above in the abundance of hauled-out animals, plus capabilities, but at the expected scale General Negligible Impact Analysis the abundance for the Strait of Juan de the estimated Level A harassment takes section) the unlikelihood of any Fuca and San Juan Islands, (3,116 + by PTS for these stocks is unlikely, masking having effects that will impact 5,879 + 13,775 = 22,770 total harbor alone or in combination with the Level the reproduction or survival of any of seals in Washington Northern Inland B harassment take by behavioral the individual marine mammals affected Waters). NMFS concurs with this disturbance, to impact behaviors, by the Navy’s activities. We have also assessment and uses 22,770 as the opportunities, or detection capabilities described in the Potential Effects of abundance estimate for the Washington to a degree that will interfere with Specified Activities on Marine Northern Inland Waters stock of harbor reproductive success or survival of any Mammals and their Habitat section of seal in this final rule. individuals, let alone annual rates of the proposed rule that the specified Regarding the Hood Canal stock, recruitment or survival. No mortality is activities would not have adverse or Jefferson et al. (2017) estimates an in- anticipated or authorized. For these long-term impacts on marine mammal water abundance of 2,009 harbor seals reasons, we have determined, in habitat, and therefore the unlikelihood in the Hood Canal study region. The in- consideration of all of the effects of the of any habitat impacts affecting the water abundance provided in Jefferson Navy’s activities combined, that the reproduction or survival of any et al. (2017) did not provide an authorized take will have a negligible individual marine mammals affected by abundance or correction factor for impact on all four stocks of harbor the Navy’s activities. For pinnipeds, animals hauled out of the water. porpoises. there is no mortality or serious injury Therefore, the Navy utilized a correction

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72454 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

factor of 1.53 (Huber et al., 2001), but, Hood Canal stock of harbor seal in this animals (e.g., animals hauled out × the as explained above, this correction final rule. correction factor for animals in-water = factor applies for counts of hauled-out The Navy derived an in-water harbor total abundance). Therefore, the Navy animals (e.g., animals hauled out seal abundance estimate of 4,042 for the applied the same ‘‘reverse’’ correction multiplied by the correction factor for Southern Puget Sound stock by factor (4,042/0.53 = 7,626), to account animals in-water = total abundance). summing in-water abundances for for hauled-out animals. Therefore, the Therefore, the Navy applied the same Bainbridge (301), Seattle (252), Southern total stock abundance estimate is equal ‘‘reverse’’ correction factor (2,009/0.53 = Puget Sound (2,905), and Vashon (584) to the sum of the in-water abundance 3,791) to account for animals hauled included in Smultea et al. (2017). plus the estimated abundance of hauled- out. Therefore, the total stock Smultea et al. (2017) did not provide an out animals (4,042 + 7,626 = 11,668 abundance estimate is equal to the sum abundance or correction factor for total harbor seals in WA Southern Puget of the in-water abundance plus the animals hauled out of the water in these Sound). NMFS concurs with this estimated abundance of hauled-out locations. Therefore, the Navy utilized animals (2,009 + 3,791 = 5,800 total the same correction factor of 1.53 assessment and uses 11,668 as the Hood Canal harbor seals). NMFS (Huber et al., 2001). But as with the two abundance estimate for the Southern concurs with this assessment and uses stocks discussed above, the correction Puget Sound stock of harbor seal in this 5,800 as the abundance estimate for the factor applies for counts of hauled-out final rule. TABLE 57—ANNUAL ESTIMATED TAKES BY LEVEL B HARASSMENT, LEVEL A HARASSMENT, AND MORTALITY FOR PINNIPEDS IN THE NWTT STUDY AREA AND NUMBER INDICATING THE INSTANCES OF TOTAL TAKE AS A PERCENTAGE OF STOCK ABUNDANCE

Instances of indicated types of incidental take (not all takes represent separate individuals, especially for disturbance) Instances Abundance of total Species Stock Level B harassment Level A harassment Total takes (NMFS take as TTS (may Mortality SARs) * percentage of Behavioral also include Tissue abundance disturbance disturbance) PTS damage

Suborder Pinnipedia Family Phocidae (eared seals and sea lions)

California sea lion ..... U.S...... 23,756 342 1 0 0 24,099 257,606 9 Guadelupe fur seal ... Mexico to California 1,482 13 0 0 0 1,495 34,187 4 Northern fur seal ...... Eastern Pacific ...... 11,462 130 0 0 0 11,592 620,660 2 California ...... 231 1 0 0 0 232 14,050 2 Steller sea lion ...... Eastern U.S...... 2,231 7 0 0 0 2,238 43,201 5

Family Phocidae (true seals)

Harbor seal ...... Southeast Alaska 2,077 275 0 0 0 2,352 27,659 9 (Clarence Strait). OR/WA Coast ...... 540 640 2 0 0 1,182 24,732 5 Washington Northern 870 377 5 0 0 1,252 1 22,770 5 Inland Waters. Hood Canal ...... 38,430 23,040 1 0 0 61,471 1 5,800 1,060 Southern Puget 3,274 3,564 4 0 0 6,842 1 11,668 59 Sound. Northern Elephant California ...... 4,134 710 4 0 0 4,848 179,000 3 seal. * Presented in the 2019 SARs or most recent SAR except where noted otherwise. 1 Recent survey data in the inland waters has not been incorporated into the SARs for these specific stocks, therefore we have used recent Navy abundance esti- mates for these stocks for the negligible impact analysis. These abundance estimates are described in detail in this section of the rule.

As described above, the majority of and 172 dB SPL, MF5 = 97 percent days. For all pinnipeds, harassment takes by harassment of pinnipeds in the between 130 and 160 dB SPL, and HF4 takes from explosives (behavioral NWTT Study Area are caused by = 99 percent between 100 and 172 dB disturbance, TTS, or PTS if present) sources from the MFAS bin (which SPL. Given the levels they are exposed comprise a very small fraction of those includes hull-mounted sonar) because to and pinniped sensitivity, most caused by exposure to active sonar. they are high level sources at a responses will be of a lower severity, Because the majority of harassment frequency (1–10 kHz) which overlaps with only occasional responses likely to take of pinnipeds results from the most sensitive portion of the be considered moderate, but still of narrowband sources in the range of 1– pinniped hearing range, and of the generally short duration. 10 kHz, the vast majority of threshold sources expected to result in take, they As mentioned earlier in this section, shift caused by Navy sonar sources will are used in a large portion of exercises we anticipate more severe effects from typically occur in the range of 2–20 kHz. (see Tables 3 and 4). Most of the takes takes when animals are exposed to This frequency range falls within the (97 percent) from the MF1 bin in the higher received levels. Occasional range of pinniped hearing, however, NWTT Study Area would result from milder takes by Level B harassment by pinniped vocalizations typically span a received levels between 166 and 178 dB behavioral disturbance are unlikely to somewhat lower range than this (<0.2 to SPL. For the remaining active sonar bin cause long-term consequences for 10 kHz) and threshold shift from active types, the percentages are as follows: individual animals or populations, sonar will often be in a narrower band LF4 = 97 percent between 130 and 160 especially when they are not expected (reflecting the narrower band source dB SPL, MF4 = 99 percent between 142 to be repeated over multiple sequential that caused it), which means that TTS

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72455

incurred by pinnipeds will typically increased surfacing time, or decreased measures described earlier in the only interfere with communication foraging (if such activity were Mitigation Measures section. within a portion of a pinniped’s range occurring). Most likely, individuals will Regarding the magnitude of takes by (if it occurred during a time when simply move away from the sound Level B harassment (TTS and behavioral communication with conspecifics was source and be temporarily displaced disturbance), with the exception of the occurring). As discussed earlier, it from those areas, or not respond at all, Hood Canal and Southern Puget Sound would only be expected to be of a short both of which will have no effect on stocks of harbor seals, the number of duration and relatively small degree. reproduction or survival of the estimated total instances of take Many of the other critical sounds that individuals. In areas of repeated and compared to the abundance is 2–9 serve as cues for navigation and prey frequent acoustic disturbance, some percent. Given this information and the (e.g., waves, fish, invertebrates) occur animals may habituate or learn to ranges of these stocks (i.e., large ranges, below a few kHz, which means that tolerate the new baseline or fluctuations but with individuals often staying in the detection of these signals will not be in noise level. Habituation can occur vicinity of haulouts), only a small portion of individuals in the stock are inhibited by most threshold shifts when an animal’s response to a stimulus likely impacted and repeated exposures either. The very low number of takes by wanes with repeated exposure, usually of individuals are not anticipated (i.e., threshold shifts that might be incurred in the absence of unpleasant associated by individuals exposed to explosives individuals are not expected to be taken events (Wartzok et al., 2003). While on more than one day within a year). will likely be lower frequency (5 kHz or some animals may not return to an area, less) and spanning a wider frequency For the Southern Puget Sound stock of or may begin using an area differently harbor seals, the number of estimated range, which could slightly lower an due to training and testing activities, individual’s sensitivity to navigational total instances of take compared to the most animals are expected to return to abundance is 59 percent. This or prey cues, or a small portion of their usual locations and behavior. communication calls, for several information indicates that fewer than Given their documented tolerance of half of the individuals in this stock are minutes to hours (if temporary) or anthropogenic sound (Richardson et al., permanently. likely impacted, with those individuals 1995 and Southall et al., 2007), repeated likely not disturbed on more than a few Regarding behavioral disturbance, exposures of individuals of any of these non-sequential days a year. research and observations show that species to levels of sound that may For the Hood Canal stock of harbor pinnipeds in the water may be tolerant cause Level B harassment are unlikely seals, the number of estimated total of anthropogenic noise and activity (a to result in permanent hearing instances of take compared to the review of behavioral reactions by impairment or to significantly disrupt abundance is 1,060 percent. This pinnipeds to impulsive and non- (through direct disturbance or information indicates that all impulsive noise can be found in opportunities lost during TTS) foraging, individuals of this stock could be Richardson et al. (1995) and Southall et resting, or reproductive behaviors in a impacted, though the more likely al. (2007)). Available data, though manner that would reduce reproductive scenario is that some individuals may limited, suggest that exposures between success or health. Thus, even repeated not be taken at all, some may be taken approximately 90 and 140 dB SPL do Level B harassment of some subset of on 10 or fewer days per year, and some not appear to induce strong behavioral individuals of an overall stock is could be taken on more than 10 and up responses in pinnipeds exposed to non- unlikely to result in any significant to 21 days a year. For those individuals pulse sounds in water (Costa et al., realized decrease in fitness to those taken on a higher number of days, some 2003; Jacobs and Terhune, 2002; individuals that would result in any of those days may be sequential. Though Kastelein et al., 2006c). Based on the effect on rates of recruitment or survival the majority of impacts are expected to limited data on pinnipeds in the water for the stock as a whole. be of a lower to sometimes moderate exposed to multiple pulses (small severity, the repeated takes over some Of these stocks, only Guadalupe fur explosives, impact pile driving, and number of sequential days for some seismic sources), exposures in the seals are listed under the ESA (as individuals in the Hood Canal stock of approximately 150 to 180 dB SPL range threatened), with the SAR indicating the harbor seals makes it more likely that generally have limited potential to stock is ‘‘increasing.’’ No critical habitat some small number of individuals could induce avoidance behavior in pinnipeds is designated under the ESA for the be interrupted during foraging in a (Blackwell et al., 2004; Harris et al., Guadalupe fur seal. The other stocks are manner and amount such that impacts 2001; Miller et al., 2004). If pinnipeds not ESA-listed. There is an active UME to the energy budgets of females (from are exposed to sonar or other active for Guadalupe fur seals. Since 2015 either losing feeding opportunities or acoustic sources they may react in a there have been 400 strandings of expending considerable energy to find number of ways depending on their Guadalupe fur seals (including live and alternative feeding options) could cause experience with the sound source and dead seals). The California sea lion UME them to forego reproduction for a year what activity they are engaged in at the was recently closed as elevated (energetic impacts to males are generally time of the acoustic exposure. Pinnipeds strandings occurred from 2013–2016. meaningless to population rates unless may not react at all until the sound All of the other pinniped stocks are they cause death, and it takes extreme source is approaching within a few considered ‘‘increasing,’’ ‘‘stable,’’ or energy deficits beyond what would ever hundred meters and then may alert, ‘‘unknown’’ except for Northern fur be likely to result from these activities ignore the stimulus, change their seals (Eastern Pacific stock), which is to cause the death of an adult marine behaviors, or avoid the immediate area considered to be ‘‘declining.’’ There are mammal). We note, though, that there is by swimming away or diving. Effects on no known biologically important areas documented evidence of an increasing pinnipeds in the NWTT Study Area that for any of the pinniped stocks. No population for Hood Canal harbor seals, are taken by Level B harassment, on the mortality or Level A harassment from despite high levels of acoustic activity basis of reports in the literature as well tissue damage is anticipated or in their habitat, including pile driving, as Navy monitoring from past activities, authorized. All the pinniped species pierside sonar maintenance/testing, and will likely be limited to reactions such and stocks discussed in this section will testing activities in Dabob Bay. This as increased swimming speeds, benefit from the procedural mitigation documented expansion includes, for

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72456 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

example, pupping on the Naval Base of likely low severity, annually. Subsistence Harvest of Marine Kitsap Bangor waterfront in recent Additionally, no PTS is expected for Mammals years. As noted previously, however, Guadalupe fur seal, Northern fur seal, In order to issue an incidental take foregone reproduction (especially for Steller sea lion, and the Southeast authorization, NMFS must find that the only one year within seven, which is the Alaska (Clarence Strait) stock of harbor total estimated take will not have an maximum predicted because the small seal. A small permanent loss of hearing ‘‘unmitigable adverse impact’’ on the number anticipated in any one year sensitivity (PTS) may include some availability of the affected marine makes the probability that any degree of energetic costs for mammal species or stocks for taking for individual will be impacted in this way compensating or may mean some small subsistence uses by Alaskan Natives. twice in seven years very low) has far loss of opportunities or detection NMFS has defined ‘‘unmitigable adverse less of an impact on population rates capabilities, but at the expected scale impact’’ in 50 CFR 216.103 as an impact than mortality and the relatively small the estimated Level A harassment takes resulting from the specified activity: (1) number of instances of foregone by PTS for these stocks are unlikely, That is likely to reduce the availability reproduction that could occur are not alone or in combination with the Level of the species to a level insufficient for expected to adversely affect the stock B harassment take, to impact behaviors, a harvest to meet subsistence needs by: through effects on annual rates of opportunities, or detection capabilities (i) Causing the marine mammals to recruitment or survival. Regarding the to a degree that will interfere with abandon or avoid hunting areas; (ii) severity of those individual takes by reproductive success or survival of any Directly displacing subsistence users; or Level B harassment by behavioral individuals, let alone annual rates of (iii) Placing physical barriers between disturbance for all pinniped stocks, we recruitment or survival. For nearly all the marine mammals and the have explained that the duration of any pinniped stocks (with the exception of exposure is expected to be between subsistence hunters; and (2) That cannot the Hood Canal stock of harbor seals) be sufficiently mitigated by other minutes and hours (i.e., relatively short) only a portion of the stocks are and the received sound levels largely measures to increase the availability of anticipated to be taken by Level B marine mammals to allow subsistence below 178 dB, which is considered a harassment and any individual is likely relatively low to occasionally moderate needs to be met. to be disturbed at a low-moderate level When applicable, NMFS must level for pinnipeds. However, as noted, on no more than a few non-sequential for the Hood Canal stock of harbor seals, prescribe means of effecting the least days per year. Even considering the practicable adverse impact on the some of these takes could occur on some effects of the UME on the Guadalupe fur number of sequential days. availability of the species or stocks for seal, this low magnitude and severity of subsistence uses. As discussed in the Regarding the severity of TTS takes, harassment effects will not result in they are expected to be low-level, of Mitigation Measures section, evaluation impacts on individual reproduction or of potential mitigation measures short duration, and mostly not in a survival, much less annual rates of frequency band that would be expected includes consideration of two primary recruitment or survival. For the Hood factors: (1) The manner in which, and to interfere with pinniped Canal stock of harbor seals, a fair communication or other important low- the degree to which, implementation of portion of individuals will be taken by the potential measure(s) is expected to frequency cues. Therefore, the Level B harassment (at a moderate or associated lost opportunities and reduce adverse impacts on the sometimes low level) over a availability of species or stocks for capabilities are not at a level that will comparatively higher number of days impact reproduction or survival. For subsistence uses, and (2) the within a year, and some smaller portion these same reasons (low level and practicability of the measure(s) for of those individuals may be taken on frequency band), while a small applicant implementation. sequential days. However, we do not permanent loss of hearing sensitivity Subsistence harvest in Southeast anticipate the relatively small number of may include some degree of energetic Alaska is primarily focused on harbor individual harbor seals that might be costs for compensating or may mean seals, with occasional harvest of sea taken over repeated days within the year some small loss of opportunities or lions (Wolfe et al. 2013). To our in a manner that results in one year of detection capabilities, the 1–5 estimated knowledge, no whaling occurs in the foregone reproduction to adversely takes by Level A harassment by PTS for NWTT Study Area. Testing activities in affect the stock through effects on rates California sea lions, Northern elephant Western Behm Canal are the only seals, and the Washington Northern of recruitment or survival, given the activities within the NWTT Study Area Inland Waters, Hood Canal, OR/WA status of the stock. For these reasons, in that have the potential to overlap with Coast, and Southern Puget Sound stocks consideration of all of the effects of the subsistence uses of marine mammals. of harbor seals is unlikely to impact Navy’s activities combined, we have Four Alaskan Native communities are behaviors, opportunities, or detection determined that the authorized take will located in the Behm Canal area: Central capabilities to a degree that will have a negligible impact on all stocks of Council of the Tlingit and Haida Indian interfere with reproductive success or pinnipeds. Tribes, Ketchikan Indian Corporation, survival of any individuals. Determination Organized Village of Saxman, and Altogether, all pinniped stocks are Metlakatla Indian Community, Annette considered ‘‘increasing,’’ ‘‘stable,’’ or Based on the analysis contained Island Reserve. ‘‘unknown’’ except for Northern fur herein of the likely effects of the The Tlingit and Haida people retain a seals (Eastern Pacific stock), which is specified activity on marine mammals life that is strongly based on considered ‘‘declining’’ but is not listed and their habitat, and taking into subsistence, including the use of harbor under the ESA. Only the Guadalupe fur consideration the implementation of the seals and sea lions for food and raw seal is listed under the ESA, with a monitoring and mitigation measures, materials (Wolfe et al. 2013). Harbor population that is considered NMFS finds that the total marine seals are taken during all months; peak increasing. No mortality for pinnipeds is mammal take from the specified harvests occur during spring and during anticipated or authorized. No more than activities will have a negligible impact fall/early winter. The lowest harvest five individuals from any pinniped on all affected marine mammal species occurs in the summer months (Wolfe et stock are estimated to be taken by PTS, or stocks. al. 2013). In most communities, hunters

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72457

use the waters and coastlines adjacent to not expect these impacts to cause the Metlakatla Indian Community, Annette their home to harvest seals, with travel animals to avoid or abandon an area Island Reserve, as well as the U.S. Coast ranging from 5 to 32.6 mi (8 to 52.5 km) where subsistence harvest typically Guard, Ketchikan Gateway Borough (Davis 1999). While there is large occurs. Planning Department, Harbor Master, overlap in the core use areas of the The Navy’s testing area in Western Alaska Department of Fish and Game, Ketchikan and Saxman communities, Behm Canal includes five restricted KRBD radio, KTKN radio, and the harvest of seals within Western Behm areas (see Figure 2–4 in the Navy’s Ketchikan Daily News. Canal is more common from the rulemaking/LOA application); the NMFS expects that subsistence Ketchikan community (Davis 1999). largest, Area 5, spans the width of harvest activities would most likely Hunters from the Ketchikan community Western Behm Canal and encompasses occur close to the shoreline along Betton primarily take seals off Revillagigedo Areas 1, 2, and 3. During operations, the Island, as well as some of the Island. They also harvest seals in areas Navy can close the restricted areas to all neighboring smaller islands (including north of Ketchikan into the northern vessel traffic. Typically, such closures Back Island), when receding tidal waters mouth of Western Behm Canal near do not exceed 20 minutes. Public expose the shoreline, and animals Betton Island (Davis, 1999). The notifications (Notices to Mariners) haulout. There are no Navy activities Metlakatla Indian Community is located announcing restricted access have been that would create a physical barrier on Annette Island, in the Clarence Strait issued 10 times per year on average; between subsistence users and marine opposite of Ketchikan. NMFS is about 8–12 events occur annually that mammals in nearshore areas. In the unaware of any harvest of harbor seals require restrictions on vessel traffic to offshore area, the temporary presence of within Western Behm Canal from ensure that the Navy vessel (usually a vessels (boats, submarines, etc.) and hunters in Metlakatla Indian submarine, which is out of the visual operational equipment needed to Community. observation of small boat operators) has conduct the testing activities may block No information has been provided by a clear sea space to navigate safely. preferred navigational paths; however, these communities regarding how the Notices to Mariners usually extend for the presence of vessels and equipment Navy’s activities may impact the a period of four or five days, but will be temporary, and easy to navigate availability of marine mammals for limitations on vessel traffic typically around. Therefore, we do not expect the Alaskan Native subsistence uses. The last for 20 minutes and occur up to presence of these vessels and equipment Navy sent communications to the four twice per hour. During these times, to create a physical barrier between tribes at both the regional and small vessels (30 ft or less) transiting subsistence hunters and marine community level at multiple stages through Western Behm Canal are mammals. throughout the NWTT rulemaking and required to stay within 1,000 yd. of the Further offshore within Western SEIS/OEIS processes, including an shoreline, maintain a maximum speed Behm Canal, the Navy has in-water invitation to initiate government to of 5 knots, and be in radio contact with structures which include two sites: the government consultation. Additionally, SEAFAC. The Navy uses the radio underway site and the static site, the Installation Environmental Director contact to ensure that all vessels comply located in the five restricted areas for Naval Base Kitsap, who oversees with the navigation rules during these discussed above. The underway site and natural resources management at the critical periods. On occasion, the engine static site are existing testing structures Navy’s Southeast Alaska Acoustic of a transiting vessel may create noise that are required for conducting testing Facility (SEAFAC), met with that interferes with data collection representatives from the Ketchikan during a test. When this occurs, operations. The in-water structures Indian Corporation and the Organized SEAFAC may request that the vessel located at the underway site and static Village of Saxman to discuss the Facility operator voluntarily turn off the engine site are easy to navigate around, and we and its operations in March 2019. during the period of data collection. do not expect their presence to impact During this face to face meeting and tour Alternatively, SEAFAC may delay data subsistence harvests. of the facility, the Tribes did not raise collection until the vessel has cleared Overall, physical barriers associated concern regarding their ability to the area. When testing is not being with the Navy’s activities will be harvest marine mammals. conducted, vessel traffic is not limited to the temporary presence of In addition to these communications, restricted, but permanent restrictions on additional vessels (boats, submarines, the Navy followed up in April 2020 anchors, nets, towing, and dumping etc.) and other operational equipment with a specific request to the four remain in force. Additional information needed to conduct the testing activities, communities for any concerns regarding on transiting the restricted areas in including the reading of those vessels’ potential impacts of the Navy’s Western Behm Canal is provided in 33 acoustic signatures. Vessels will only be proposed activities in the Western Behm CFR 334.1275 (Western Behm Canal, present temporarily and are easy to Canal on the availability of marine Ketchikan, Alaska, restricted areas). navigate around and avoid. Therefore, mammal species or stocks for Alaska NMFS does not expect that these we do not expect the Navy’s action to Native subsistence use. The Navy again occasional 20-minute closures and create a physical barrier that will limit contacted the tribes in May 2020, associated restrictions will displace the ability of subsistence harvest by following up on their request. To date, subsistence users, as the closures are Alaskan Natives. neither the Navy nor NMFS have limited, short term, and affect a limited Based on NMFS having no received correspondence from Alaska portion of Western Behm Canal. information indicating that the Navy’s Native groups regarding subsistence use, The Notice to Mariners notifying activity in Western Behm Canal will or any other concern with the MMPA government agencies and the public that affect Alaskan Native subsistence rulemaking and authorizations. the Navy will conduct operations and activities and the location and nature of In Western Behm Canal, seals and sea restrict access in Western Behm Canal the Navy’s activity, NMFS has lions are estimated to be taken by Level will be provided at least 72 hours in determined that the total taking of B harassment by behavioral disturbance advance to the Central Council of the affected species or stocks will not have and TTS only. Given the minor and Tlingit and Haida Indian Tribes, an unmitigable adverse impact on the temporary nature of the takes, and the Ketchikan Indian Corporation, availability of the species or stocks for temporary nature of the activity, we do Organized Village of Saxman, and taking for subsistence uses.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72458 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

Classification proposed MMPA regulations and impact on a substantial number of small associated LOAs that would allow the entities. The factual basis for the Endangered Species Act Navy to incidentally take marine certification was published in the There are seven marine mammal mammals include a subset of those proposed rule and is not repeated here. species under NMFS jurisdiction that impacts that could occur to NMS No comments were received regarding are listed as endangered or threatened resources. this certification. As a result, a under the ESA (16 U.S.C. 1531 et seq.) After discussions with the ONMS, regulatory flexibility analysis was not with confirmed or possible occurrence NMFS and the Navy submitted a revised required and none was prepared. in the NWTT Study Area: blue whale, SRS on July 8, 2020. ONMS reviewed fin whale, humpback whale (Mexico the SRS, and on July 15, 2020, ONMS Waiver of Delay in Effective Date and Central America DPSs), sei whale, found the SRS sufficient for the NMFS has determined that there is sperm whale, killer whale (Southern purposes of making an injury Resident killer whale DPS), and determination and developing good cause under the Administrative Guadalupe fur seal. The Southern recommended alternatives as required Procedure Act (APA; 5 U.S.C. 553(d)(3)) Resident killer whale has critical habitat by the NMSA. On August 28, 2020, to waive the 30-day delay in the designated under the ESA in the NWTT ONMS provided its injury effective date of this final rule. No Study Area. On September 19, 2019, determination and three recommended individual or entity other than the Navy NMFS proposed to revise ESA- alternatives to minimize injury and to is affected by the provisions of these designated critical habitat for Southern protect sanctuary resources. NMFS and regulations. The Navy has requested Resident killer whales (84 FR 49214). In the Navy submitted a joint response to that this final rule take effect on or addition, on October 9, 2019, NMFS the ONMS recommended alternatives. before November 9, 2020, to published a proposed rule to designate Consultation under the NMSA is now accommodate the Navy’s LOAs that ESA critical habitat for the Central concluded. expire on November 8, 2020, so as to not America, Mexico, and Western North cause a disruption in training and Pacific DPSs of humpback whales (84 National Environmental Policy Act testing activities. The waiver of the 30- FR 54354). Neither ESA critical habitat To comply with the National day delay of the effective date of the rule has been finalized. Environmental Policy Act of 1969 final rule will ensure that the MMPA The Navy consulted with NMFS (NEPA; 42 U.S.C. 4321 et seq.) and final rule and LOAs are in place by the pursuant to section 7 of the ESA for NOAA Administrative Order (NAO) time the previous authorizations expire. NWTT activities, and NMFS also 216–6A, NMFS must evaluate our Any delay in effectiveness of the final consulted internally on the proposed actions and alternatives with rule would result in either: (1) A promulgation of this rule and the respect to potential impacts on the suspension of planned naval training issuance of LOAs under section human environment. NMFS and testing, which would disrupt vital 101(a)(5)(A) of the MMPA. NMFS issued participated as a cooperating agency on training and testing essential to national a biological opinion concluding that the the 2020 NWTT FSEIS/OEIS, which was security; or (2) the Navy’s procedural promulgation of the rule and issuance of published on September 18, 2020, and non-compliance with the MMPA subsequent LOAs are not likely to is available at https://nwtteis.com/. In (should the Navy conduct training and jeopardize the continued existence of accordance with 40 CFR 1506.3, NMFS testing without LOAs), thereby resulting threatened and endangered species independently reviewed and evaluated in the potential for unauthorized takes under NMFS’ jurisdiction and are not the 2020 NWTT FSEIS/OEIS and of marine mammals. Moreover, the likely to result in the destruction or determined that it is adequate and Navy is ready to implement the adverse modification of designated or sufficient to meet our responsibilities regulations immediately. For these proposed critical habitat in the NWTT under NEPA for the issuance of this rule reasons, NMFS finds good cause to Study Area. The biological opinion is and associated LOAs. NOAA therefore, waive the 30-day delay in the effective available at https:// has adopted the 2020 NWTT FSEIS/ date. In addition, the rule authorizes www.fisheries.noaa.gov/national/ OEIS. NMFS has prepared a separate incidental take of marine mammals that marine-mammal-protection/incidental- Record of Decision. NMFS’ Record of would otherwise be prohibited under take-authorizations-military-readiness- Decision for adoption of the 2020 the statute. Therefore, by granting an activities. NWTT FSEIS/OEIS and issuance of this exception to the Navy, the rule relieves final rule and subsequent LOAs can be National Marine Sanctuaries Act restrictions under the MMPA, which found at https:// provides a separate basis for waiving the Federal agency actions that are likely www.fisheries.noaa.gov/national/ 30-day effective date for the rule under to injure sanctuary resources are subject marine-mammal-protection/incidental- section 553(d)(1) of the APA. to consultation with NOAA’s Office of take-authorizations-military-readiness- National Marine Sanctuaries (ONMS) activities. List of Subjects in 50 CFR Part 218 under section 304(d) of the National Marine Sanctuaries Act (NMSA; 16 Regulatory Flexibility Act Exports, Fish, Imports, Incidental U.S.C. 1431 et seq.). The Office of Management and Budget take, Indians, Labeling, Marine On April 29, 2020, NMFS and the has determined that this rule is not mammals, Navy, Penalties, Reporting Navy jointly requested consultation significant for purposes of Executive and recordkeeping requirements, with ONMS and submitted a Sanctuary Order 12866. Seafood, Sonar, Transportation. Resource Statement (SRS), as the Navy Pursuant to the Regulatory Flexibility Dated: October 20, 2020. concluded that their training and testing Act (RFA; 5 U.S.C. 601 et seq.), the Samuel D. Rauch, III, activities in the NWTT Study Area may Chief Counsel for Regulation of the Deputy Assistant Administrator for incidentally expose sanctuary resources Department of Commerce has certified Regulatory Programs, National Marine that reside within Olympic Coast to the Chief Counsel for Advocacy of the Fisheries Service. National Marine Sanctuary (NMS) to Small Business Administration during sound and other environmental the proposed rule stage that this action For reasons set forth in the preamble, stressors, and NMFS concluded that would not have a significant economic 50 CFR part 218 is amended as follows:

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72459

PART 218—REGULATIONS NWTT Study Area. The NWTT Study locations where sonar maintenance and GOVERNING THE TAKING AND Area is composed of established testing occurs as part of overhaul, IMPORTING OF MARINE MAMMALS maritime operating and warning areas in modernization, maintenance, and repair the eastern North Pacific Ocean region, activities at Naval Base Kitsap, ■ 1. The authority citation for part 218 including areas of the Strait of Juan de Bremerton; Naval Base Kitsap, Bangor; continues to read as follows: Fuca, Puget Sound, and Western Behm and Naval Station Everett. Authority: 16 U.S.C. 1361 et seq., unless Canal in southeastern Alaska. The Study (c) The taking of marine mammals by otherwise noted. Area includes air and water space the Navy is only authorized if it occurs ■ 2. Revise subpart O to part 218 to read within and outside Washington state incidental to the Navy conducting as follows: waters, and outside state waters of training and testing activities, including: Oregon and Northern California. The (1) Anti-submarine warfare; Subpart O—Taking and Importing Marine Mammals; U.S. Navy’s Northwest Training eastern boundary of the Offshore Area (2) Mine warfare; and Testing (NWTT) portion of the Study Area is 12 nautical (3) Surface warfare; miles (nmi) off the coastline for most of Sec. (4) Unmanned systems; 218.140 Specified activity and geographical the Study Area starting south of W–237, (5) Vessel evaluation; and region. including southern Washington, (6) Other training and testing 218.141 Effective dates. Oregon, and Northern California. The activities. 218.142 Permissible methods of taking. Offshore Area includes the ocean all the 218.143 Prohibitions. way to the coastline only along that part § 218.141 Effective dates. 218.144 Mitigation requirements. of the Washington coast that lies Regulations in this subpart are 218.145 Requirements for monitoring and beneath the airspace of W–237 and the reporting. effective from November 9, 2020, 218.146 Letters of Authorization. Olympic Military Operations Area. The through November 8, 2027. 218.147 Renewals and modifications of Quinault Range Site is a defined area of Letters of Authorization. sea space where training and testing is § 218.142 Permissible methods of taking. 218.148 [Reserved] conducted. The Quinault Range Site (a) Under LOAs issued pursuant to coincides with the boundaries of W– §§ 216.106 of this chapter and 218.146, Subpart O—Taking and Importing 237A and also includes a surf zone the Holder of the LOAs (hereinafter Marine Mammals; U.S. Navy’s component. The surf zone component ‘‘Navy’’) may incidentally, but not Northwest Training and Testing extends north to south 5 nmi along the intentionally, take marine mammals (NWTT) eastern boundary of W–237A, extends within the area described in § 218.140 Specified activity and approximately 3 nmi to shore along the § 218.140(b) by Level A harassment and geographical region. mean lower low water line, and Level B harassment associated with the (a) Regulations in this subpart apply encompasses 1 mile (1.6 kilometers) of use of active sonar and other acoustic only to the U.S. Navy (Navy) for the shoreline at Pacific Beach, Washington. sources and explosives, as well as taking of marine mammals that occurs The Study Area includes four existing serious injury or mortality associated in the area described in paragraph (b) of range complexes and facilities: the with vessel strikes, provided the activity this section and that occurs incidental Northwest Training Range Complex is in compliance with all terms, to the activities listed in paragraph (c) (NWTRC), the Keyport Range Complex, conditions, and requirements of this of this section. the Carr Inlet Operations Area, and the subpart and the applicable LOAs. (b) The taking of marine mammals by Southeast Alaska Acoustic (b) The incidental take of marine the Navy under this subpart may be Measurement Facility (SEAFAC). In mammals by the activities listed in authorized in Letters of Authorization addition to these range complexes, the § 218.140(c) is limited to the following (LOAs) only if it occurs within the Study Area also includes Navy pierside species:

TABLE 1 TO PARAGRAPH (b)

Species Stock

Blue whale ...... Eastern North Pacific. Fin whale ...... Northeast Pacific. Fin whale ...... California/Oregon/Washington. Sei whale ...... Eastern North Pacific. Minke whale ...... Alaska. Minke whale ...... California/Oregon/Washington. Humpback whale ...... Central North Pacific. Humpback whale ...... California/Oregon/Washington. Gray whale ...... Eastern North Pacific. Bottlenose dolphin ...... California/Oregon/Washington Offshore. Killer whale ...... Alaska Resident. Killer whale ...... Eastern North Pacific Offshore. Killer whale ...... West Coast Transient. Killer whale ...... Southern Resident. Northern right whale dolphin ...... California/Oregon/Washington. Pacific white-sided dolphin ...... North Pacific. Pacific white-sided dolphin ...... California/Oregon/Washington. Risso’s dolphin ...... California/Oregon/Washington. Short-beaked common dolphin ...... California/Oregon/Washington. Short-finned pilot whale ...... California/Oregon/Washington. Striped dolphin ...... California/Oregon/Washington. Pygmy sperm whale ...... California/Oregon/Washington. Dwarf sperm whale ...... California/Oregon/Washington.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72460 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

TABLE 1 TO PARAGRAPH (b)—Continued

Species Stock

Dall’s porpoise ...... Alaska. Dall’s porpoise ...... California/Oregon/Washington. Harbor porpoise ...... Southeast Alaska. Harbor porpoise ...... Northern Oregon & Washington Coast. Harbor porpoise ...... Northern California/Southern Oregon. Harbor porpoise ...... Washington Inland Waters. Sperm whale ...... California/Oregon/Washington. Baird’s beaked whale ...... California/Oregon/Washington. Cuvier’s beaked whale ...... California/Oregon/Washington. Mesoplodon species ...... California/Oregon/Washington. California sea lion ...... U.S. Stock. Steller sea lion ...... Eastern U.S. Guadalupe fur seal ...... Mexico. Northern fur seal ...... Eastern Pacific. Northern fur seal ...... California. Harbor seal ...... Southeast Alaska—Clarence Strait. Harbor seal ...... Oregon & Washington Coastal. Harbor seal ...... Washington Northern Inland Waters. Harbor seal ...... Hood Canal. Harbor seal ...... Southern Puget Sound. Northern elephant seal ...... California.

§ 218.143 Prohibitions. activities, mine neutralization involving platforms using active sonar while (a) Notwithstanding incidental takings Navy divers), and physical disturbance moored or at anchor (including contemplated in § 218.142(a) and and strike stressors (i.e., vessel pierside), and two Lookouts for authorized by LOAs issued under movement, towed in-water devices, platforms without space or manning §§ 216.106 of this chapter and 218.146, small-, medium-, and large-caliber non- restrictions while underway (at the no person in connection with the explosive practice munitions, non- forward part of the ship). activities listed in § 218.140(c) may: explosive missiles, non-explosive (B) Number of Lookouts and (1) Violate, or fail to comply with, the bombs and mine shapes). observation platform for sources not terms, conditions, and requirements of (i) Environmental awareness and hull-mounted. For sources that are not this subpart or an LOA issued under education. Appropriate Navy personnel hull-mounted, the Navy must have one §§ 216.106 of this chapter and 218.146; (including civilian personnel) involved Lookout on the ship or aircraft (2) Take any marine mammal not in mitigation and training or testing conducting the activity. specified in § 218.142(b); activity reporting under the specified (C) Prior to activity. Prior to the initial (3) Take any marine mammal activities will complete the start of the activity (e.g., when specified in § 218.142(b) in any manner environmental compliance training maneuvering on station), Navy other than as specified in the LOAs; or modules identified in their career path personnel must observe the mitigation (4) Take a marine mammal specified training plan, as specified in the LOAs. zone for floating vegetation and marine in § 218.142(b) if NMFS determines (ii) Active sonar. Active sonar mammals; if floating vegetation or a such taking results in more than a includes low-frequency active sonar, marine mammal is observed, Navy negligible impact on the species or stock mid-frequency active sonar, and high- personnel must relocate or delay the of such marine mammal. start of active sonar transmission until (b) [Reserved] frequency active sonar. For vessel-based active sonar activities, mitigation the mitigation zone is clear of floating § 218.144 Mitigation requirements. applies only to sources that are vegetation or until the conditions in (a) When conducting the activities positively controlled and deployed from paragraph (a)(1)(ii)(F) are met for marine identified in § 218.140(c), the mitigation manned surface vessels (e.g., sonar mammals. measures contained in any LOAs issued sources towed from manned surface (D) During activity for low-frequency under §§ 216.106 of this chapter and platforms). For aircraft-based active active sonar at 200 decibels (dB) and 218.146 must be implemented. These sonar activities, mitigation applies only hull-mounted mid-frequency active mitigation measures include, but are not to sources that are positively controlled sonar. During the activity, for low- limited to: and deployed from manned aircraft that frequency active sonar at 200 dB and (1) Procedural mitigation. Procedural do not operate at high altitudes (e.g., hull-mounted mid-frequency active mitigation is mitigation that the Navy rotary-wing aircraft). Mitigation does sonar, Navy personnel must observe the must implement whenever and not apply to active sonar sources following mitigation zones for marine wherever an applicable training or deployed from unmanned aircraft or mammals. testing activity takes place within the aircraft operating at high altitudes (e.g., (1) Powerdowns for marine mammals. NWTT Study Area for each applicable maritime patrol aircraft). Navy personnel must power down activity category or stressor category and (A) Number of Lookouts and active sonar transmission by 6 dB if includes acoustic stressors (i.e., active observation platform for hull-mounted marine mammals are observed within sonar, weapons firing noise), explosive sources. For hull-mounted sources, the 1,000 yard (yd) of the sonar source; stressors (i.e., sonobuoys, torpedoes, Navy must have one Lookout for Navy personnel must power down an medium-caliber and large-caliber platforms with space or manning additional 4 dB (10 dB total) if marine projectiles, missiles, bombs, Mine restrictions while underway (at the mammals are observed within 500 yd of Countermeasure and Neutralization forward part of a small boat or ship) and the sonar source.

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72461

(2) Shutdowns for marine mammals. concludes that dolphins are deliberately (A) Number of Lookouts and Navy personnel must cease transmission closing in on the ship to ride the ship’s observation platform. One Lookout must if cetaceans are observed within 200 yd bow wave, and are therefore out of the be positioned in an aircraft or on a small of the sonar source in any location in main transmission axis of the sonar (and boat. If additional platforms are the Study Area; Navy personnel must there are no other marine mammal participating in the activity, Navy cease transmission if pinnipeds in the sightings within the mitigation zone). personnel positioned in those assets NWTT Offshore Area or Western Behm (iii) Weapons firing noise. Weapons (e.g., safety observers, evaluators) must Canal are observed within 200 yd of the firing noise associated with large-caliber support observing the mitigation zone sonar source and cease transmission if gunnery activities. for applicable biological resources, pinnipeds in NWTT Inland Waters are (A) Number of Lookouts and including marine mammals, while observed within 100 yd of the sonar observation platform. One Lookout must performing their regular duties. source (except if hauled out on, or in the be positioned on the ship conducting (B) Mitigation zone. 600 yd around an water near, man-made structures and the firing. Depending on the activity, the explosive sonobuoy. vessels). Lookout could be the same as the one (C) Prior to activity. Prior to the initial (E) During activity for low-frequency described for ‘‘Explosive medium- start of the activity (e.g., during active sonar below 200 dB, mid- caliber and large-caliber projectiles’’ or deployment of a sonobuoy field, which frequency active sonar not hull- for ‘‘Small-, medium-, and large-caliber typically lasts 20–30 min), Navy mounted, and high-frequency sonar. non-explosive practice munitions’’ in personnel must conduct passive During the activity, for low-frequency paragraphs (a)(1)(vi)(A) and acoustic monitoring for marine active sonar below 200 dB, mid- (a)(1)(xiii)(A) of this section. mammals; personnel must use frequency active sonar sources that are (B) Mitigation zone. Thirty degrees on information from detections to assist not hull-mounted, and high-frequency either side of the firing line out to 70 yd visual observations. Navy personnel sonar, Navy personnel must observe the from the muzzle of the weapon being also must visually observe the following mitigation zones for marine fired. mitigation zone for floating vegetation mammals. Navy personnel must cease (C) Prior to activity. Prior to the initial and marine mammals; if floating transmission if cetaceans are observed start of the activity, Navy personnel vegetation or a marine mammal is within 200 yd of the sonar source in any must observe the mitigation zone for observed, Navy personnel must relocate location in the Study Area. Navy floating vegetation and marine or delay the start of sonobuoy or source/ personnel must cease transmission if mammals; if floating vegetation or a receiver pair detonations until the pinnipeds in the NWTT Offshore Area marine mammal is observed, Navy mitigation zone is clear of floating or Western Behm Canal are observed personnel must relocate or delay the vegetation or until the conditions in within 200 yd of the sonar source. Navy start of weapons firing until the paragraph (a)(1)(iv)(E) of this section are personnel must cease transmission if mitigation zone is clear of floating met for marine mammals. (D) During activity. During the pinnipeds in NWTT Inland Waters are vegetation or until the conditions in activity, Navy personnel must observe observed within 100 yd of the sonar paragraph (a)(1)(iii)(E) of this section are the mitigation zone for marine source (except if hauled out on, or in the met for marine mammals. mammals; if marine mammals are water near, man-made structures and (D) During activity. During the observed, Navy personnel must cease vessels). activity, Navy personnel must observe (F) Commencement/recommencement sonobuoy or source/receiver pair the mitigation zone for marine conditions after marine mammal detonations. mammals; if marine mammals are sighting before or during activity. Navy (E) Commencement/recommencement observed, Navy personnel must cease personnel must allow a sighted marine conditions after marine mammal weapons firing. mammal to leave the mitigation zone sighting before or during activity. Navy (E) Commencement/recommencement prior to the initial start of the activity personnel must allow a sighted marine conditions after marine mammal (by delaying the start) or during the mammal to leave the mitigation zone sighting before or during activity. Navy activity (by not recommencing or prior to the initial start of the activity personnel must allow a sighted marine powering up active sonar transmission) (by delaying the start) or during the mammal to leave the mitigation zone until one of the following conditions activity (by not recommencing prior to the initial start of the activity has been met: detonations) until one of the following (1) Observed exiting. The animal is (by delaying the start) or during the conditions has been met: observed exiting the mitigation zone; activity (by not recommencing weapons (1) Observed exiting. The animal is (2) Thought to have exited. The firing) until one of the following observed exiting the mitigation zone; animal is thought to have exited the conditions has been met: (2) Thought to have exited. The mitigation zone based on a (1) Observed exiting. The animal is animal is thought to have exited the determination of its course, speed, and observed exiting the mitigation zone; mitigation zone based on a movement relative to the sonar source; (2) Thought to have exited. The determination of its course, speed, and (3) Clear from additional sightings. animal is thought to have exited the movement relative to the sonobuoy; or The mitigation zone has been clear from mitigation zone based on a (3) Clear from additional sightings. any additional sightings for 10 minutes determination of its course, speed, and The mitigation zone has been clear from (min) for aircraft-deployed sonar movement relative to the firing ship; any additional sightings for 10 min sources or 30 min for vessel-deployed (3) Clear from additional sightings. when the activity involves aircraft that sonar sources; The mitigation zone has been clear from have fuel constraints, or 30 min when (4) Sonar source transit. For mobile any additional sightings for 30 min; or the activity involves aircraft that are not activities, the active sonar source has (4) Firing ship transit. For mobile typically fuel constrained. transited a distance equal to double that activities, the firing ship has transited a (F) After activity. After completion of of the mitigation zone size beyond the distance equal to double that of the the activity (e.g., prior to maneuvering location of the last sighting; or mitigation zone size beyond the location off station), Navy personnel must, when (5) Bow-riding dolphins. For activities of the last sighting. practical (e.g., when platforms are not using hull-mounted sonar, the Lookout (iv) Explosive sonobuoys. constrained by fuel restrictions or

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72462 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

mission-essential follow-on any additional sightings for 10 min (E) Commencement/recommencement commitments), observe for marine when the activity involves aircraft that conditions after marine mammal mammals in the vicinity of where have fuel constraints, or 30 min when sighting before or during activity. Navy detonations occurred; if any injured or the activity involves aircraft that are not personnel must allow a sighted marine dead marine mammals are observed, typically fuel constrained. mammal to leave the mitigation zone Navy personnel must follow established (F) After activity. After completion of prior to the initial start of the activity incident reporting procedures. If the activity (e.g., prior to maneuvering (by delaying the start) or during the additional platforms are supporting this off station), Navy personnel must, when activity (by not recommencing firing) activity (e.g., providing range clearance), practical (e.g., when platforms are not until one of the following conditions Navy personnel on these assets must constrained by fuel restrictions or has been met: assist in the visual observation of the mission-essential follow-on (1) Observed exiting. The animal is area where detonations occurred. commitments), observe for marine observed exiting the mitigation zone; (v) Explosive torpedoes. mammals in the vicinity of where (2) Thought to have exited. The (A) Number of Lookouts and detonations occurred; if any injured or animal is thought to have exited the observation platform. One Lookout must dead marine mammals are observed, mitigation zone based on a be positioned in an aircraft. If additional Navy personnel must follow established determination of its course, speed, and platforms are participating in the incident reporting procedures. If movement relative to the intended activity, Navy personnel positioned in additional platforms are supporting this impact location; those assets (e.g., safety observers, activity (e.g., providing range clearance), (3) Clear of additional sightings. The evaluators) must support observing the Navy personnel on these assets must mitigation zone has been clear from any mitigation zone for applicable biological assist in the visual observation of the additional sightings for 30 min for resources, including marine mammals, area where detonations occurred. vessel-based firing; or while performing their regular duties. (vi) Explosive medium-caliber and (4) Impact location transit. For (B) Mitigation zone. 2,100 yd around large-caliber projectiles. Gunnery activities using mobile targets, the the intended impact location. activities using explosive medium- intended impact location has transited a (C) Prior to activity. Prior to the initial caliber and large-caliber projectiles. distance equal to double that of the start of the activity (e.g., during Mitigation applies to activities using a mitigation zone size beyond the location deployment of the target), Navy surface target. of the last sighting. personnel must conduct passive (A) Number of Lookouts and (F) After activity. After completion of acoustic monitoring for marine observation platform. One Lookout must the activity (e.g., prior to maneuvering mammals; personnel must use the be on the vessel conducting the activity. off station), Navy personnel must, when information from detections to assist For activities using explosive large- practical (e.g., when platforms are not visual observations. Navy personnel caliber projectiles, depending on the constrained by fuel restrictions or also must visually observe the activity, the Lookout could be the same mission-essential follow-on mitigation zone for floating vegetation as the one described for ‘‘Weapons commitments), observe for marine and marine mammals; if floating firing noise’’ in paragraph (a)(1)(iii)(A) mammals in the vicinity of where vegetation or a marine mammal is of this section. If additional platforms detonations occurred; if any injured or observed, Navy personnel must relocate are participating in the activity, Navy dead marine mammals are observed, or delay the start of firing until the personnel positioned in those assets Navy personnel must follow established mitigation zone is clear of floating (e.g., safety observers, evaluators) must incident reporting procedures. If vegetation or until the conditions in support observing the mitigation zone additional platforms are supporting this paragraph (a)(1)(v)(E) of this section are for applicable biological resources, activity (e.g., providing range clearance), met for marine mammals. including marine mammals, while Navy personnel on these assets must (D) During activity. During the performing their regular duties. assist in the visual observation of the activity, Navy personnel must observe (B) Mitigation zones. 600 yd around area where detonations occurred. the mitigation zone for marine the intended impact location for (vii) Explosive missiles. Aircraft- mammals; if marine mammals are explosive medium-caliber projectiles. deployed explosive missiles. Mitigation observed, Navy personnel must cease 1,000 yd around the intended impact applies to activities using a surface firing. location for explosive large-caliber target. (E) Commencement/recommencement projectiles. (A) Number of Lookouts and conditions after marine mammal (C) Prior to activity. Prior to the initial observation platform. One Lookout must sighting before or during activity. Navy start of the activity (e.g., when be positioned in an aircraft. If additional personnel must allow a sighted marine maneuvering on station), Navy platforms are participating in the mammal to leave the mitigation zone personnel must observe the mitigation activity, Navy personnel positioned in prior to the initial start of the activity zone for floating vegetation and marine those assets (e.g., safety observers, (by delaying the start) or during the mammals; if floating vegetation or a evaluators) must support observing the activity (by not recommencing firing) marine mammal is observed, Navy mitigation zone for applicable biological until one of the following conditions personnel must relocate or delay the resources, including marine mammals, has been met: start of firing until the mitigation zone while performing their regular duties. (1) Observed exiting. The animal is is clear of floating vegetation or until the (B) Mitigation zone. 2,000 yd around observed exiting the mitigation zone; conditions in paragraph (a)(1)(vi)(E) of the intended impact location. (2) Thought to have exited. The this section are met for marine (C) Prior to activity. Prior to the initial animal is thought to have exited the mammals. start of the activity (e.g., during a fly- mitigation zone based on a (D) During activity. During the over of the mitigation zone), Navy determination of its course, speed, and activity, Navy personnel must observe personnel must observe the mitigation movement relative to the intended the mitigation zone for marine zone for floating vegetation and marine impact location; or mammals; if marine mammals are mammals; if floating vegetation or a (3) Clear from additional sightings. observed, Navy personnel must cease marine mammal is observed, Navy The mitigation zone has been clear from firing. personnel must relocate or delay the

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72463

start of firing until the mitigation zone on station), Navy personnel must on a small boat) when implementing the is clear of floating vegetation or until the observe the mitigation zone for floating larger mitigation zone. If additional conditions in paragraph (a)(1)(vii)(E) of vegetation and marine mammals; if platforms are participating in the this section are met for marine floating vegetation or a marine activity, Navy personnel positioned in mammals. mammals is observed, Navy personnel those assets (e.g., safety observers, (D) During activity. During the must relocate or delay the start of bomb evaluators) must support observing the activity, Navy personnel must observe deployment until the mitigation zone is mitigation zone for applicable biological the mitigation zone for marine clear of floating vegetation or until the resources, including marine mammals, mammals; if marine mammals are conditions in paragraph (a)(1)(viii)(E) of while performing their regular duties. observed, Navy personnel must cease this section are met for marine (B) Mitigation zones. 600 yd around firing. mammals. the detonation site for activities using (E) Commencement/recommencement (D) During activity. During the activity ≤5 lb net explosive weight. 2,100 yd conditions after marine mammal (e.g., during target approach), Navy around the detonation site for activities sighting before or during activity. Navy personnel must observe the mitigation using >5–60 lb net explosive weight. personnel must allow a sighted marine zone for marine mammals; if marine (C) Prior to activity. Prior to the initial mammal to leave the mitigation zone mammals are observed, Navy personnel start of the activity (e.g., when prior to the initial start of the activity must cease bomb deployment. maneuvering on station; typically, 10 (by delaying the start) or during the (E) Commencement/recommencement min when the activity involves aircraft activity (by not recommencing firing) conditions after marine mammal that have fuel constraints, or 30 min until one of the following conditions sighting before or during activity. Navy when the activity involves aircraft that has been met: personnel must allow a sighted marine are not typically fuel constrained), Navy (1) Observed exiting. The animal is mammal to leave the mitigation zone personnel must observe the mitigation observed exiting the mitigation zone; prior to the initial start of the activity zone for floating vegetation and marine (2) Thought to have exited. The (by delaying the start) or during the mammals; if floating vegetation or a animal is thought to have exited the activity (by not recommencing bomb marine mammal is observed, Navy mitigation zone based on a deployment) until one of the following personnel must relocate or delay the determination of its course, speed, and conditions has been met: start of detonations until the mitigation movement relative to the intended (1) Observed exiting. The animal is zone is clear of floating vegetation or impact location; or observed exiting the mitigation zone; until the conditions in paragraph (3) Clear of additional sightings. The (2) Thought to have exited. The (a)(1)(ix)(E) are met for marine mitigation zone has been clear from any animal is thought to have exited the mammals. additional sightings for 10 min when mitigation zone based on a (D) During activity. During the the activity involves aircraft that have determination of its course, speed, and activity, Navy personnel must observe fuel constraints, or 30 min when the movement relative to the intended the mitigation zone for marine activity involves aircraft that are not target; mammals; if marine mammals are typically fuel constrained. (3) Clear from additional sightings. observed, Navy personnel must cease (F) After activity. After completion of The mitigation zone has been clear from detonations. Navy personnel must use the activity (e.g., prior to maneuvering any additional sightings for 10 min; or the smallest practicable charge size for off station), Navy personnel must, when (4) Intended target transit. For each activity. Navy personnel must practical (e.g., when platforms are not activities using mobile targets, the conduct activities in daylight hours only constrained by fuel restrictions or intended target has transited a distance and in Beaufort Sea state number 3 mission-essential follow-on equal to double that of the mitigation conditions or less. commitments), observe for marine zone size beyond the location of the last (E) Commencement/recommencement mammals in the vicinity of where sighting. conditions after marine mammal detonations occurred; if any injured or (F) After activity. After completion of sighting before or during activity. Navy dead marine mammals are observed, the activity (e.g., prior to maneuvering personnel must allow a sighted marine Navy personnel must follow established off station), Navy personnel must, when mammal to leave the mitigation zone incident reporting procedures. If practical (e.g., when platforms are not prior to the initial start of the activity additional platforms are supporting this constrained by fuel restrictions or (by delaying the start) or during the activity (e.g., providing range clearance), mission-essential follow-on activity (by not recommencing Navy personnel on these assets must commitments), observe for marine detonations) until one of the following assist in the visual observation of the mammals in the vicinity of where conditions has been met: area where detonations occurred. detonations occurred; if any injured or (1) Observed exiting. The animal is (viii) Explosive bombs. dead marine mammals are observed, observed exiting the mitigation zone; (A) Number of Lookouts and Navy personnel must follow established (2) Thought to have exited. The observation platform. One Lookout must incident reporting procedures. If animal is thought to have exited the be positioned in an aircraft conducting additional platforms are supporting this mitigation zone based on a the activity. If additional platforms are activity (e.g., providing range clearance), determination of its course, speed, and participating in the activity, Navy Navy personnel on these assets must movement relative to the detonation personnel positioned in those assets assist in the visual observation of the site; or (e.g., safety observers, evaluators) must area where detonations occurred. (3) Clear from additional sightings. support observing the mitigation zone (ix) Explosive Mine Countermeasure The mitigation zone has been clear from for applicable biological resources, and Neutralization activities. any additional sightings for 10 min including marine mammals, while (A) Number of Lookouts and when the activity involves aircraft that performing their regular duties. observation platform. One Lookout must have fuel constraints, or 30 min when (B) Mitigation zone. 2,500 yd around be positioned on a vessel or in an the activity involves aircraft that are not the intended target. aircraft when implementing the smaller typically fuel constrained. (C) Prior to activity. Prior to the initial mitigation zone. Two Lookouts must be (F) After activity. After completion of start of the activity (e.g., when arriving positioned (one in an aircraft and one the activity (typically 10 min when the

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72464 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

activity involves aircraft that have fuel requirements, safety, and environmental based on mission requirements (e.g., constraints, or 30 min when the activity conditions, Navy personnel must during test body retrieval by range involves aircraft that are not typically position boats near the midpoint of the craft). fuel constrained), Navy personnel must mitigation zone radius (but outside of (A) Number of Lookouts and observe for marine mammals in the the detonation plume and human safety observation platform. One Lookout must vicinity of where detonations occurred; zone), must position themselves on be on the vessel that is underway. if any injured or dead marine mammals opposite sides of the detonation (B) Mitigation zones. are observed, Navy personnel must location, and must travel in a circular (1) Whales. 500 yd around whales. follow established incident reporting pattern around the detonation location (2) Marine mammals other than procedures. If additional platforms are with one Lookout observing inward whales: Surface vessels. 200 yd around supporting this activity (e.g., providing toward the detonation site and the other marine mammals other than whales range clearance), Navy personnel on observing outward toward the perimeter (except bow-riding dolphins and these assets must assist in the visual of the mitigation zone. Navy personnel pinnipeds hauled out on man-made observation of the area where must only use positively controlled navigational structures, port structures, detonations occurred. charges (i.e., no time-delay fuses). Navy and vessels) for surface vessels (which (x) Explosive mine neutralization personnel must use the smallest do not include small boats). activities involving Navy divers. practicable charge size for each activity. (3) Marine mammals other than (A) Number of Lookouts and All activities must be conducted in whales: Small boats. 100 yd around observation platform. Beaufort sea state number 2 conditions marine mammals other than whales (1) Lookouts on small boats. Two or better and must not be conducted in (except bow-riding dolphins and Lookouts on two small boats with one low visibility conditions. pinnipeds hauled out on man-made Lookout each, one of which must be a (E) Commencement/recommencement navigational structures, port structures, Navy biologist. conditions after marine mammal and vessels) for small boats, such as (2) Divers. All divers placing the sighting before or during activity. Navy range craft. charges on mines must support the personnel must allow a sighted animal (C) During activity. When underway, Lookouts while performing their regular to leave the mitigation zone prior to the Navy personnel must observe the duties and report applicable sightings to initial start of the activity (by delaying mitigation zone for marine mammals; if the lead Lookout, the supporting small the start to ensure the mitigation zone marine mammals are observed, Navy boat, or the Range Safety Officer. is clear for 30 min) or during the activity personnel must maneuver to maintain (3) Additional platforms. If additional (by not recommencing detonations) distance. platforms are participating in the until one of the following conditions (D) Incident reporting procedures. If a activity, Navy personnel positioned in has been met: marine mammal vessel strike occurs, those assets (e.g., safety observers, (1) Observed exiting. The animal is Navy personnel must follow the evaluators) must support observing the observed exiting the mitigation zone; established incident reporting mitigation zone for applicable biological (2) Thought to have exited. The procedures. resources, including marine mammals, animal is thought to have exited the (xii) Towed in-water devices. while performing their regular duties. mitigation zone based on a Mitigation applies to devices that are (B) Mitigation zone. 500 yd around determination of its course, speed, and towed from a manned surface platform the detonation site during activities movement relative to the detonation or manned aircraft, or when a manned using > 0.5–2.5 lb net explosive weight. site; or support craft is already participating in (C) Prior to activity. Prior to the initial (3) Clear from additional sightings. an activity involving in-water devices start of the activity (starting 30 min The mitigation zone has been clear from being towed by unmanned platforms. before the first planned detonation), any additional sightings for 30 min. The mitigation will not be applied if the Navy personnel must observe the (F) After activity. After each safety of the towing platform or in-water mitigation zone for floating vegetation detonation and completion of an device is threatened. and marine mammals; if floating activity, the Navy must observe for (A) Number of Lookouts and vegetation or a marine mammal is marine mammals for 30 min in the observation platform. One Lookout must observed, Navy personnel must relocate vicinity of where detonations occurred be positioned on a manned towing or delay the start of detonations until and immediately downstream of the platform or support craft. the mitigation zone is clear of floating detonation location; if any injured or (B) Mitigation zones. vegetation or until the conditions in dead marine mammals are observed, (1) Mitigation zone: In-water devices paragraph (a)(1)(x)(E) are met for marine Navy personnel must follow established towed by aircraft or surface ships. 250 mammals. A Navy biologist must serve incident reporting procedures. If yd around marine mammals (except as the lead Lookout and must make the additional platforms are supporting this bow-riding dolphins and pinnipeds final determination that the mitigation activity (e.g., providing range clearance), hauled out on man-made navigational zone is clear of any floating vegetation Navy personnel on these assets must structures, port structures, and vessels) or marine mammals, prior to the assist in the visual observation of the for in-water devices towed by aircraft or commencement of a detonation. The area where detonations occurred. surface ships. Navy biologist must maintain radio (xi) Vessel movement. The mitigation (2) Mitigation zone: In-water devices communication with the unit will not be applied if: The vessel’s towed by small boats. 100 yd around conducting the event and the other safety is threatened; the vessel is marine mammals (except bow-riding Lookout. restricted in its ability to maneuver (e.g., dolphins and pinnipeds hauled out on (D) During activity. During the during launching and recovery of man-made navigational structures, port activity, Navy personnel must observe aircraft or landing craft, during towing structures, and vessels) for in-water the mitigation zone for marine activities, when mooring, and during devices towed by small boats, such as mammals; if marine mammals are Transit Protection Program exercises or range craft. observed, Navy personnel must cease other events involving escort vessels); (C) During activity. During the activity detonations. To the maximum extent the vessel is submerged or operated (i.e., when towing an in-water device), practicable depending on mission autonomously; or when impractical Navy personnel must observe the

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72465

mitigation zone for marine mammals; if (xiv) Non-explosive missiles. Aircraft- relocate or delay the start of bomb marine mammals are observed, Navy deployed non-explosive missiles. deployment or mine laying until the personnel must maneuver to maintain Mitigation applies to activities using a mitigation zone is clear of floating distance. surface target. vegetation or until the conditions in (xiii) Small-, medium-, and large- (A) Number of Lookouts and paragraph (a)(1)(xv)(E) of this section caliber non-explosive practice observation platform. One Lookout must are met for marine mammals. munitions. Gunnery activities using be positioned in an aircraft. (D) During activity. During the activity small-, medium-, and large-caliber non- (B) Mitigation zone. 900 yd around (e.g., during approach of the target or explosive practice munitions. Mitigation the intended impact location. intended minefield location), Navy applies to activities using a surface (C) Prior to activity. Prior to the initial personnel must observe the mitigation target. start of the activity (e.g., during a fly- zone for marine mammals; if marine (A) Number of Lookouts and over of the mitigation zone), Navy mammals are observed, Navy personnel observation platform. One Lookout must personnel must observe the mitigation must cease bomb deployment or mine be positioned on the platform zone for floating vegetation and marine laying. conducting the activity. Depending on mammals; if floating vegetation or a (E) Commencement/recommencement the activity, the Lookout could be the marine mammal is observed, Navy conditions after marine mammal same as the one described for ‘‘Weapons personnel must relocate or delay the sighting prior to or during activity. Navy firing noise’’ in paragraph (a)(1)(iii)(A) start of firing until the mitigation zone personnel must allow a sighted marine of this section. is clear of floating vegetation or until the mammal to leave the mitigation zone (B) Mitigation zone. 200 yd around conditions in paragraph (a)(1)(xiv)(E) of prior to the initial start of the activity the intended impact location. this section are met for marine (by delaying the start) or during the (C) Prior to activity. Prior to the initial mammals. activity (by not recommencing bomb start of the activity (e.g., when (D) During activity. During the deployment or mine laying) until one of maneuvering on station), Navy activity, Navy personnel must observe the following conditions has been met: personnel must observe the mitigation the mitigation zone for marine (1) Observed exiting. The animal is zone for floating vegetation and marine mammals; if marine mammals are observed exiting the mitigation zone; mammals; if floating vegetation or a observed, Navy personnel must cease (2) Thought to have exited. The marine mammal is observed, Navy firing. animal is thought to have exited the personnel must relocate or delay the (E) Commencement/recommencement mitigation zone based on a start until the mitigation zone is clear of conditions after marine mammal determination of its course, speed, and floating vegetation or until the sighting prior to or during activity. Navy movement relative to the intended target conditions in paragraph (a)(1)(xiii)(E) personnel must allow a sighted marine or minefield location; (3) Clear from additional sightings. are met for marine mammals. mammal to leave the mitigation zone prior to the initial start of the activity The mitigation zone has been clear from (D) During activity. During the (by delaying the start) or during the any additional sightings for 10 min; or activity, Navy personnel must observe activity (by not recommencing firing) (4) Intended target transit. For the mitigation zone for marine until one of the following conditions activities using mobile targets, the mammals; if marine mammals are has been met: intended target has transited a distance observed, Navy personnel must cease (1) Observed exiting. The animal is equal to double that of the mitigation firing. observed exiting the mitigation zone; zone size beyond the location of the last (E) Commencement/recommencement (2) Thought to have exited. The sighting. conditions after marine mammal animal is thought to have exited the (2) Mitigation areas. In addition to sighting before or during activity. Navy mitigation zone based on a procedural mitigation, Navy personnel personnel must allow a sighted marine determination of its course, speed, and must implement mitigation measures mammal to leave the mitigation zone movement relative to the intended within mitigation areas to avoid or prior to the initial start of the activity impact location; or reduce potential impacts on marine (by delaying the start) or during the (3) Clear from additional sightings. mammals. activity (by not recommencing firing) The mitigation zone has been clear from (i) Marine Species Coastal Mitigation until one of the following conditions any additional sightings for 10 min Area (year round unless specified as has been met: when the activity involves aircraft that seasonal). (1) Observed exiting. The animal is have fuel constraints, or 30 min when (A) Within 50 nmi from shore in the observed exiting the mitigation zone; the activity involves aircraft that are not Marine Species Coastal Mitigation Area. (2) Thought to have exited. The typically fuel constrained. (1) Prohibited activities. The Navy animal is thought to have exited the (xv) Non-explosive bombs and mine must not conduct: Explosive training mitigation zone based on a shapes. Non-explosive bombs and non- activities; explosive testing activities determination of its course, speed, and explosive mine shapes during mine (with the exception of explosive Mine movement relative to the intended laying activities. Countermeasure and Neutralization impact location; (A) Number of Lookouts and Testing activities); and non-explosive (3) Clear of additional sightings. The observation platform. One Lookout must missile training activities. mitigation zone has been clear from any be positioned in an aircraft. (2) Seasonal awareness notification additional sightings for 10 min for (B) Mitigation zone. 1,000 yd around messages. The Navy must issue annual aircraft-based firing or 30 min for vessel- the intended target. seasonal awareness notification based firing; or (C) Prior to activity. Prior to the initial messages to alert Navy ships and aircraft (4) Impact location transit. For start of the activity (e.g., when arriving to the possible presence of increased activities using a mobile target, the on station), Navy personnel must concentrations of Southern Resident intended impact location has transited a observe the mitigation zone for floating killer whales from December 1 to June distance equal to double that of the vegetation and marine mammals; if 30, humpback whales from May 1 to mitigation zone size beyond the location floating vegetation or a marine mammal December 31, and gray whales from May of the last sighting. is observed, Navy personnel must 1 to November 30. For safe navigation

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72466 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

and to avoid interactions with large Torpedo Exercise—Submarine training Countermeasure and Neutralization whales, the Navy must instruct vessels activities (which involve the use of mid- Testing activities. to remain vigilant to the presence of frequency or high-frequency active (E) National security exception. Southern Resident killer whales, sonar). Should national security require that the humpback whales, and gray whales that (2) Unmanned Underwater Vehicle Navy cannot comply with the may be vulnerable to vessel strikes or Training. The Navy must not conduct restrictions in paragraphs (a)(2)(ii)(A), potential impacts from training and more than one Unmanned Underwater (B), (C), or (D) of this section, Navy testing activities. Platforms must use the Vehicle Training event within 12 nmi personnel must obtain permission from information from the awareness from shore at the Quinault Range Site. the appropriate designated Command notification messages to assist their In addition, Unmanned Underwater authority prior to commencement of the visual observation of applicable Vehicle Training events within 12 nmi activity. Navy personnel must provide mitigation zones during training and from shore at the Quinault Range Site NMFS with advance notification and testing activities and to aid in the must be cancelled or moved to another include information about the event in implementation of procedural training location if Southern Resident its annual activity reports to NMFS. mitigation. killer whales are detected at the planned (iii) Juan de Fuca Eddy Marine (B) Within 20 nmi from shore in the training location during the event Species Mitigation Area (year-round). Marine Species Coastal Mitigation Area. planning process, or immediately prior (A) Surface ship hull-mounted MF1 (1) Surface ship hull-mounted MF1 to the event, as applicable. mid-frequency active sonar during mid-frequency active sonar. The Navy (3) Explosive use during Mine testing. The Navy must not conduct must not conduct more than a total of Countermeasure and Neutralization more than a total of 33 hours of surface 33 hours of surface ship hull-mounted testing. During explosive Mine ship hull-mounted MF1 mid-frequency MF1 mid-frequency active sonar during Countermeasure and Neutralization active sonar during testing annually testing annually within 20 nmi from Testing, the Navy must not use within 20 nmi from shore in the Marine shore in the Marine Species Coastal explosives in bin E7 closer than 6 nmi Species Coastal Mitigation Area, in the Mitigation Area, in the Juan de Fuca from shore in the Quinault Range Site. Juan de Fuca Eddy Marine Species Eddy Marine Species Mitigation Area, (4) Non-explosive small- and Mitigation Area, and in the Olympic and in the Olympic Coast National medium-caliber gunnery training. The Coast National Marine Sanctuary Marine Sanctuary Mitigation Area Navy must not conduct non-explosive Mitigation Area combined. combined. small- and medium-caliber gunnery (B) Explosive Mine Countermeasure (2) Mine Countermeasure and training activities. and Neutralization testing. The Navy Neutralization Testing from July 1 to (D) National security exception. must not conduct explosive Mine September 30. To the maximum extent Should national security require that the Countermeasure and Neutralization practical, the Navy must conduct Navy cannot comply with the Testing activities. explosive Mine Countermeasure and restrictions in paragraphs (a)(2)(i)(A)(1); (C) National security exception. Neutralization Testing from July 1 to (a)(2)(i)(B); or (a)(2)(i)(C) of this section, Should national security require that the September 30 when operating within 20 Navy personnel must obtain permission Navy cannot comply with the nmi from shore. from the appropriate designated restrictions in paragraphs (a)(2)(iii)(A) (3) Mine Countermeasure and Command authority prior to or (B) of this section, Navy personnel Neutralization Testing from October 1 to commencement of the activity. Navy must obtain permission from the June 30. From October 1 to June 30, the personnel must provide NMFS with appropriate designated Command Navy must not conduct more than one advance notification and include authority prior to commencement of the explosive Mine Countermeasure and information about the event in its activity. Navy personnel must provide Neutralization Testing event, not to annual activity reports to NMFS. NMFS with advance notification and exceed the use of 20 explosives from bin (ii) Olympic Coast National Marine include information about the event in E4 and 3 explosives from bin E7 Sanctuary Mitigation Area (year-round). its annual activity reports to NMFS. annually, and not to exceed the use of (A) Surface ship hull-mounted MF1 (iv) Stonewall and Heceta Bank 60 explosives from bin E4 and 9 mid-frequency active sonar during Humpback Whale Mitigation Area (May explosives from bin E7 over the seven- training. The Navy must not conduct 1–November 30). year period of the rule. more than 32 hours of surface ship hull- (A) Surface ship hull-mounted MF1 (4) Large-caliber gunnery training mounted MF1 mid-frequency active mid-frequency active sonar. The Navy activities and non-explosive bombing sonar during training annually. must not use surface ship hull-mounted training. The Navy must not conduct (B) Non-explosive bombing training. MF1 mid-frequency active sonar during non-explosive large-caliber gunnery The Navy must not conduct non- training and testing from May 1 to training activities and non-explosive explosive bombing training activities. November 30. bombing training activities. (C) Surface ship hull-mounted MF1 (B) Explosive Mine Countermeasure (C) Within 12 nmi from shore in the mid-frequency active sonar during and Neutralization testing. The Navy Marine Species Coastal Mitigation Area. testing. The Navy must not conduct must not conduct explosive Mine (1) Anti-submarine warfare tracking more than a total of 33 hours of surface Countermeasure and Neutralization exercise—helicopter,—maritime patrol ship hull-mounted MF1 mid-frequency testing from May 1 to November 30. aircraft,—ship, or—submarine training active sonar during testing annually (C) National security exception. and anti-submarine warfare torpedo within 20 nmi from shore in the Marine Should national security require that the exercise—submarine training. The Navy Species Coastal Mitigation Area, in the Navy cannot comply with the must not conduct Anti-Submarine Juan de Fuca Eddy Marine Species restrictions in paragraphs (a)(2)(iv)(A) or Warfare Tracking Exercise— Mitigation Area, and in the Olympic (B) of this section, Navy personnel must Helicopter,—Maritime Patrol Aircraft,— Coast National Marine Sanctuary obtain permission from the appropriate Ship, or—Submarine training activities Mitigation Area combined. designated Command authority prior to (which involve the use of mid-frequency (D) Explosive Mine Countermeasure commencement of the activity. Navy or high-frequency active sonar) or non- and Neutralization testing. The Navy personnel must provide NMFS with explosive Anti-Submarine Warfare must not conduct explosive Mine advance notification and include

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72467

information about the event in its (3) Activities conducted by Naval Sea torpedo exercises, bombing exercises, annual activity reports to NMFS. Systems Command at designated and Kinetic Energy Weapon Testing. (v) Point St. George Humpback Whale locations. (F) Coordination with Navy biologists. Mitigation Area (July 1–November 30). (4) Pierside sonar maintenance or Navy event planners must coordinate (A) Surface ship hull-mounted MF1 testing at designated locations. with Navy biologists during the event mid-frequency active sonar. The Navy (B) Active sonar source levels. The planning process prior to conducting must not use surface ship hull-mounted Navy must use the lowest active sonar the activities listed in paragraphs MF1 mid-frequency active sonar during source levels practical to successfully (a)(2)(vii)(F)(1), (2), (3), and (4) of this training or testing from July 1 to accomplish each event. Naval units section. Navy biologists must work with November 30. must obtain permission from the NMFS and must initiate communication (B) Explosive Mine Countermeasure appropriate designated Command with the appropriate marine mammal and Neutralization testing. The Navy authority prior to commencing pierside detection networks to determine the must not conduct explosive Mine maintenance or testing with hull- likelihood of applicable marine Countermeasure and Neutralization mounted mid-frequency active sonar. mammal species presence in the Testing from July 1 to November 30. (C) Unmanned underwater vehicle planned training location. Navy (C) National security exception. training. The Navy must not conduct biologists must notify event planners of Should national security require that the more than one Unmanned Underwater the likelihood of species presence. To Navy cannot comply with the Vehicle Training activity annually at the the maximum extent practical, Navy restrictions in paragraphs (a)(2)(v)(A) or Navy 3 OPAREA, Navy 7 OPAREA, and planners must use this information (B) of this section, Navy personnel must Manchester Fuel Depot (i.e., a maximum when planning specific details of the obtain permission from the appropriate of one event at each location). event (e.g., timing, location, duration) to designated Command authority prior to (D) Use of explosives—(1) Explosives avoid planning activities in locations or commencement of the activity. Navy during testing. The Navy must not use seasons where species presence is personnel must provide NMFS with explosives during testing. expected. The Navy must ensure advance notification and include (2) Explosives during training. The environmental awareness of event information about the event in its Navy must not use explosives during participants. Environmental awareness annual activity reports to NMFS. training except at the Hood Canal EOD will help alert participating crews to the Range and Crescent Harbor EOD Range possible presence of applicable species (vi) Northern Puget Sound Gray during explosive mine neutralization in the training location. Lookouts must Whale Mitigation Area (March 1–May activities involving the use of Navy use the information to assist visual 31). divers. observation of applicable mitigation (A) Civilian port defense—homeland (3) Explosives in bin E4 or above. The zones and to aid in the implementation security anti-terrorism/force protection Navy must not use explosives in bin E4 of procedural mitigation. Unmanned exercises. The Navy must not conduct (>2.5–5 lb. net explosive weight) or Underwater Vehicle Training events at Civilian Port Defense–Homeland above, and must instead use explosives the Navy 3 OPAREA, Manchester Fuel Security Anti-Terrorism/Force in bin E0 (< 0.1 lb. net explosive weight) Depot, Crescent Harbor Explosive Protection Exercises from March 1 to or bin E3 (>0.5–2.5 lb. net explosive Ordnance Disposal Range, and Navy 7 May 31. weight). OPAREA must be cancelled or moved to (B) National security exception. (4) Explosives in bin E3 during another training location if the presence Should national security require that the February, March, and April at the Hood of Southern Resident killer whales is Navy cannot comply with the Canal EOD Range. During February, reported through available monitoring restrictions in paragraph (a)(2)(vi)(A) of March, and April at the Hood Canal networks during the event planning this section, Navy personnel must EOD Range, the Navy must not use process, or immediately prior to the obtain permission from the appropriate explosives in bin E3 (>0.5–2.5 lb. net event, as applicable. designated Command authority prior to explosive weight), and must instead use (1) Unmanned underwater vehicle commencement of the activity. Navy explosives in bin E0 (< 0.1 lb. net training. Unmanned Underwater personnel must provide NMFS with explosive weight). Vehicle Training at the Navy 3 advance notification and include (5) Explosives in bin E3 during OPAREA, Manchester Fuel Depot, information about the event in its August, September, and October at the Crescent Harbor Explosive Ordnance annual activity reports to NMFS. Hood Canal EOD Range. During August, Disposal Range, and Navy 7 OPAREA (vii) Puget Sound and Strait of Juan September, and October at the Hood (for Southern Resident killer whales); de Fuca Mitigation Area (year-round Canal EOD Range, the Navy must not (2) Civilian port defense—homeland unless specified as seasonal). use explosives in bin E3 (>0.5–2.5 lb. security anti-terrorism/force protection (A) Active sonar use. The Navy must net explosive weight) and must instead exercises. Civilian Port Defense— not use low-frequency, mid-frequency, use explosives in bin E0 (< 0.1 lb. net Homeland Security Anti-Terrorism/ or high-frequency active sonar during explosive weight) to the maximum Force Protection Exercises (for Southern training or testing within the Puget extent practical unless necessitated by Resident killer whales and gray whales); Sound and Strait of Juan de Fuca mission requirements. (3) Explosive mine neutralization Mitigation Area, unless a required (6) Explosives at the Crescent Harbor activities involving the use of Navy element (i.e., a criterion necessary for EOD Range. At the Crescent Harbor EOD divers. Explosive mine neutralization the success of the event) necessitates Range, the Navy must conduct explosive activities involving the use of Navy that the activity be conducted in NWTT activities at least 1,000 m from the divers (for Southern Resident killer Inland Waters during: closest point of land. whales); and (1) Unmanned underwater vehicle (E) Non-explosive live fire events. The (4) Small boat attack exercises. Small training. Navy must not conduct non-explosive Boat Attack Exercises, which involve (2) Civilian port defense—homeland live fire events in the mitigation area firing blank small-caliber weapons (for security anti-terrorism/force protection (except firing blank weapons), including Southern Resident killer whales and exercises. gunnery exercises, missile exercises, gray whales).

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 72468 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations

(G) Seasonal awareness notification under the LOAs, including abiding by reports for the NWTT, HSTT, GOA, and messages. The Navy must issue annual the U.S. Navy’s Marine Species MITT Study Areas. seasonal awareness notification Monitoring Program. Details on program (e) NWTT Annual Training Exercise messages to alert Navy ships and aircraft goals, objectives, project selection Report and Annual Testing Activity operating within the Puget Sound and process, and current projects are Report. Each year, the Navy must Strait of Juan de Fuca Mitigation Area available at submit two preliminary reports (Quick to the possible presence of www.navymarinespeciesmonitoring.us. Look Reports) detailing the status of concentrations of Southern Resident (c) Notification of injured, live applicable sound sources within 21 killer whales from July 1 to November stranded, or dead marine mammals. days after the anniversary of the date of 30 in Puget Sound and the Strait of Juan The Navy must consult the Notification issuance of each LOA to the Director, de Fuca, and concentrations of gray and Reporting Plan, which sets out Office of Protected Resources, NMFS. whales from March 1 to May 31 in the notification, reporting, and other The Navy must also submit detailed Strait of Juan de Fuca and northern requirements when dead, injured, or reports (NWTT Annual Training Puget Sound. For safe navigation and to live stranded marine mammals are Exercise Report and Annual Testing avoid interactions with large whales, the detected. The Notification and Activity Report) to the Director, Office Navy must instruct vessels to remain Reporting Plan is available at https:// of Protected Resources, NMFS, within vigilant to the presence of Southern www.fisheries.noaa.gov/national/ three months after the one-year Resident killer whales and gray whales marine-mammal-protection/incidental- anniversary of the date of issuance of that may be vulnerable to vessel strikes take-authorizations-military-readiness- the LOAs. NMFS will submit comments activities. or potential impacts from training and or questions on the reports, if any, (d) Annual NWTT Study Area marine testing activities. Platforms must use the within one month of receipt. The species monitoring report. The Navy information from the awareness reports will be considered final after the notification messages to assist their must submit an annual report of the NWTT Study Area monitoring, which Navy has addressed NMFS’ comments, visual observation of applicable or one month after submittal of the draft mitigation zones during training and will be included in a Pacific-wide monitoring report including results if NMFS does not provide comments on testing activities and to aid in the the draft reports. The NWTT Annual implementation of procedural specific to the NWTT Study Area, describing the implementation and Training Exercise Report and Annual mitigation. Testing Activity Report can be (H) National security exception. results from the previous calendar year. Data collection methods must be consolidated with other exercise and Should national security require that the activity reports from other range Navy cannot comply with the standardized across Pacific Range Complexes including the Mariana complexes in the Pacific Ocean for a restrictions in paragraphs (a)(2)(vii)(A), single Pacific Training Exercise and (B), (C), (D), or (E) of this section, Navy Islands Training and Testing (MITT), Hawaii-Southern California Training Testing Activity Report, if desired. The personnel must obtain permission from annual reports must contain a summary the appropriate designated Command and Testing (HSTT), NWTT, and Gulf of Alaska (GOA) Study Areas to allow for of all sound sources used (total hours or authority prior to commencement of the quantity of each bin of sonar or other activity. Navy personnel must provide comparison in different geographic locations. The report must be submitted non-impulsive source; total annual NMFS with advance notification and number of each type of explosive; and include information about the event in to the Director, Office of Protected Resources, NMFS, either within three total annual expended/detonated its annual activity reports to NMFS. rounds (missiles, bombs, sonobuoys, (3) Availability for Subsistence Use. months after the end of the calendar year, or within three months after the etc.) for each explosive bin). The annual The Navy must notify the following reports will also contain both the Alaskan Native communities of the conclusion of the monitoring year, to be determined by the adaptive current year’s sonar and explosive use issuance of Notices to Mariners of Navy data as well as cumulative sonar and operations that involve restricting management process. NMFS will submit comments or questions on the report, if explosive use quantity from previous access in the Western Behm Canal at years’ reports. Additionally, if there least 72 hours in advance: Central any, within three months of receipt. The report will be considered final after the were any changes to the sound source Council of the Tlingit and Haida Indian allowance in a given year, or Tribes, Ketchikan Indian Corporation, Navy has addressed NMFS’ comments, or three months after submittal of the cumulatively, the report must include a Organized Village of Saxman, and discussion of why the change was made Metlakatla Indian Community, Annette draft if NMFS does not provide comments on the draft report. This and include analysis to support how the Island Reserve. change did or did not affect the analysis (b) [Reserved] report will describe progress of knowledge made with respect to in the 2020 NWTT FSEIS/OEIS and § 218.145 Requirements for monitoring intermediate scientific objectives within MMPA final rule. The annual report and reporting. the NWTT Study Area associated with must also include details regarding (a) Notification of take. Navy the Integrated Comprehensive specific requirements associated with personnel must notify NMFS Monitoring Program (ICMP). Similar the mitigation areas listed in immediately (or as soon as operational study questions must be treated together § 218.144(a)(2). The final annual/close- security considerations allow) if the so that progress on each topic can be out report at the conclusion of the specified activity identified in § 218.140 summarized across all Navy ranges. The authorization period (year seven) will is thought to have resulted in the report need not include analyses and serve as the comprehensive close-out mortality or serious injury of any marine content that does not provide direct report and include both the final year mammals, or in any Level A harassment assessment of cumulative progress on annual incidental take compared to or Level B harassment of marine the monitoring plan study questions. annual authorized incidental take as mammals not identified in this subpart. This will continue to allow the Navy to well as cumulative seven-year (b) Monitoring and reporting under provide a cohesive monitoring report incidental take compared to seven-year the LOAs. The Navy must conduct all covering multiple ranges (as per ICMP authorized incidental take. The Annual monitoring and reporting required goals), rather than entirely separate Training Exercise Report and Annual

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations 72469

Testing Activity Report must include submittal of the draft if NMFS does not (b) For LOA modification or renewal the following information. provide comments. requests by the applicant that include (1) Summary of sources used. This changes to the activity or to the section of the report must include the § 218.146 Letters of Authorization. mitigation, monitoring, or reporting following information summarized from (a) To incidentally take marine measures (excluding changes made the authorized sound sources used in all mammals pursuant to the regulations in pursuant to the adaptive management training and testing events: this subpart, the Navy must apply for provision in paragraph (c)(1) of this (i) Sonar and other transducers. Total and obtain LOAs in accordance with section) that do not change the findings annual hours or quantity (per the LOA) § 216.106 of this chapter. made for the regulations or result in no of each bin of sonar or other (b) An LOA, unless suspended or more than a minor change in the total transducers, and revoked, may be effective for a period of estimated number of takes (or (ii) Explosives. Total annual time not to exceed the expiration date distribution by species or stock or expended/detonated ordinance of this subpart. years), NMFS may publish a notice of (missiles, bombs, sonobuoys, etc.) for (c) If an LOA expires prior to the planned LOA in the Federal Register, each explosive bin. expiration date of this subpart, the Navy including the associated analysis of the (2) [Reserved] may apply for and obtain a renewal of change, and solicit public comment (f) Annual classified reports. Within the LOA. before issuing the LOA. the annual classified training exercise (d) In the event of projected changes (c) An LOA issued under §§ 216.106 and testing activity reports, separate to the activity or to mitigation, of this chapter and 218.146 may be from the unclassified reports described monitoring, or reporting (excluding modified by NMFS under the following in paragraphs (a) through (e) of this changes made pursuant to the adaptive circumstances: section, the Navy must specifically management provision of (1) After consulting with the Navy include the information described in § 218.147(c)(1)) required by an LOA regarding the practicability of the paragraphs (f)(1) and (2) of this section. issued under this subpart, the Navy modifications, NMFS may modify (1) Olympic Coast National Marine must apply for and obtain a (including adding or removing Sanctuary Mitigation Area. Total hours modification of the LOA as described in measures) the existing mitigation, of authorized low-frequency, mid- § 218.147. monitoring, or reporting measures if frequency, and high-frequency active (e) Each LOA will set forth: doing so creates a reasonable likelihood (1) Permissible methods of incidental sonar (all bins, by bin) used during of more effectively accomplishing the taking; training and testing annually within the goals of the mitigation and monitoring, (2) Geographic areas for incidental Olympic Coast National Marine as part of an adaptive management taking; Sanctuary Mitigation Area; and (3) Means of effecting the least process. (2) Surface ship hull-mounted MF1 practicable adverse impact (i.e., (i) Possible sources of data that could mid-frequency active sonar. Total hours mitigation) on the species and stocks of contribute to the decision to modify the of surface ship hull-mounted MF1 mid- marine mammals and their habitat; and mitigation, monitoring, or reporting frequency active sonar used in the (4) Requirements for monitoring and measures in an LOA include: following mitigation areas: reporting. (A) Results from the Navy’s (i) Testing annually in three combined (f) Issuance of the LOA(s) must be monitoring report and annual exercise areas. Testing annually within 20 nmi based on a determination that the level reports from the previous year(s); from shore in the Marine Species of taking is consistent with the findings (B) Results from other marine Coastal Mitigation Area, the Juan de made for the total taking allowable mammal and/or sound research or Fuca Eddy Marine Species Mitigation under the regulations in this subpart. studies; or Area, and the Olympic Coast National (g) Notice of issuance or denial of the (C) Any information that reveals Marine Sanctuary Mitigation Area LOA(s) will be published in the Federal marine mammals may have been taken combined; Register within 30 days of a in a manner, extent, or number not (ii) Stonewall and Heceta Bank determination. authorized by this subpart or Humpback Whale Mitigation Area. subsequent LOAs. Training and testing from May 1 to § 218.147 Renewals and modifications of (ii) If, through adaptive management, November 30 within the Stonewall and Letters of Authorization. the modifications to the mitigation, Heceta Bank Humpback Whale (a) An LOA issued under §§ 216.106 monitoring, or reporting measures are Mitigation Area; and of this chapter and 218.146 for the substantial, NMFS will publish a notice (iii) Point St. George Humpback activity identified in § 218.140(c) may of planned LOA in the Federal Register Whale Mitigation Area. Training and be renewed or modified upon request by and solicit public comment. testing from July 1 to November 30 the applicant, provided that: (2) If NMFS determines that an within the Point St. George Humpback (1) The planned specified activity and emergency exists that poses a significant Whale Mitigation Area. mitigation, monitoring, and reporting risk to the well-being of the species or (g) Final close-out report. The final measures, as well as the anticipated stocks of marine mammals specified in (year seven) draft annual/close-out impacts, are the same as those described LOAs issued pursuant to §§ 216.106 of report must be submitted within three and analyzed for the regulations in this this chapter and 218.146, an LOA may months after the expiration of this subpart (excluding changes made be modified without prior notice or subpart to the Director, Office of pursuant to the adaptive management opportunity for public comment. Notice Protected Resources, NMFS. NMFS will provision in paragraph (c)(1) of this would be published in the Federal submit comments on the draft close-out section); and Register within 30 days of the action. report, if any, within three months of (2) NMFS determines that the receipt. The report will be considered mitigation, monitoring, and reporting § 218.148 [Reserved] final after the Navy has addressed measures required by the previous [FR Doc. 2020–23757 Filed 11–5–20; 8:45 am] NMFS’ comments, or three months after LOAs were implemented. BILLING CODE 3510–22–P

VerDate Sep<11>2014 21:15 Nov 10, 2020 Jkt 253001 PO 00000 Frm 00159 Fmt 4701 Sfmt 9990 E:\FR\FM\12NOR4.SGM 12NOR4 jbell on DSKJLSW7X2PROD with RULES4