[Federal Register Volume 82, Number 80 (Thursday, April 27, 2017)]
[Rules and Regulations]
[Pages 19530-19607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08424]



[[Page 19529]]

Vol. 82

Thursday,

No. 80

April 27, 2017

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 218





Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy 
Training Activities in the Gulf of Alaska Temporary Maritime Activities 
Area; Final Rule

  Federal Register / Vol. 82 , No. 80 / Thursday, April 27, 2017 / 
Rules and Regulations  

[[Page 19530]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 141125997-7365-02]
RIN 0648-BE67


Takes of Marine Mammals Incidental to Specified Activities; U.S. 
Navy Training Activities in the Gulf of Alaska Temporary Maritime 
Activities Area

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: Upon application from the U.S. Navy (Navy), we (NMFS) are 
issuing regulations under the Marine Mammal Protection Act (MMPA) to 
govern the unintentional taking of marine mammals incidental to the 
training activities conducted in the Gulf of Alaska (GOA) Temporary 
Maritime Activities Area (TMAA) Study Area (hereafter referred to the 
Study Area) from May 2017 through May 2022. These regulations allow us 
to issue a Letter of Authorization (LOA) for the incidental take of 
marine mammals during the Navy's specified activities and timeframes, 
set forth the permissible methods of taking, set forth other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, and set forth requirements pertaining to 
the monitoring and reporting of the incidental take.

DATES: Effective April 26, 2017, through April 26, 2022.

ADDRESSES: To obtain an electronic copy of the Navy's LOA application 
or other referenced documents, visit the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm. Documents cited 
in this notice may also be viewed, by appointment, during regular 
business hours, at 1315 East-West Highway, SSMC III, Silver Spring, MD 
20912.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 427-8477.

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of the Navy's LOA application may be obtained by visiting 
the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm. The Navy's Final Supplemental Environmental Impact 
Statement/Overseas Environmental Impact Statement (FSEIS/OEIS) for the 
GOA TMAA Study Area, which also contains a list of the references used 
in this document, may be viewed at http://www.goaeis.com. Documents 
cited in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address (see ADDRESSES).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the Secretary sets forth permissible methods of 
taking and other means of effecting the least practicable impact on the 
species or stock and its habitat. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.''
    The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-
136) removed the ``small numbers'' and ``specified geographical 
region'' limitations indicated above and amended the definition of 
``harassment'' as applies to a ``military readiness activity'' to read 
as follows (section 3(18)(B) of the MMPA, 16 U.S.C. 1362(18)(B)): ``(i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild'' (Level A 
Harassment); or ``(ii) Any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing disruption 
of natural behavioral patterns, including, but not limited to, 
migration, surfacing, nursing, breeding, feeding, or sheltering, to a 
point where such behavioral patterns are abandoned or significantly 
altered'' (Level B Harassment).

Summary of Request

    On July 28, 2014, NMFS received an application from the Navy 
requesting an LOA for the take of 19 species of marine mammals, 
representing 27 stocks, incidental to Navy training activities to be 
conducted in the Study Area over 5 years. On October 14, 2014, the Navy 
submitted a revised LOA application to reflect minor changes in the 
number and types of training activities. To address minor 
inconsistencies with the draft SEIS/OEIS (DSEIS/OEIS), the Navy 
submitted a final revision to the LOA application (hereafter referred 
to as the LOA application) on January 21, 2015. In November 2016, the 
Navy requested that the final rule and LOA be issued for the training 
activities addressed by Alternative 1 of the FSEIS/OEIS. The Navy's LOA 
application was based on the training activities addressed by 
Alternative 2 of the DSEIS/OEIS; therefore, our proposed rule (81 FR 
9950; February 26, 2016) analyzed the level of activities as described 
by Alternative 2. Pursuant to the Navy's November 2016 request, the 
final rule now reflects the training activities addressed by 
Alternative 1 of the FSEIS/OEIS, which include a subset of the 
activities analyzed in the proposed rule. The change from Alternative 2 
to Alternative 1 results in a significant reduction in proposed 
training activities (see ``Training'' and ``Summary of Impulsive and 
Non-Impulsive Sources''), lessening the number of the Carrier Strike 
Group Events from 2 to 1 per year, and the number of SINKEXs from 2 to 
0 per year, which means that several types of explosives will no longer 
be used and there will be no live MISSILEX. This significantly 
decreases the number of anticipated and authorized takes for this 
activity (see ``Take Request'') compared to what was presented in the 
proposed rule.
    The Navy is requesting a five-year LOA for training activities to 
be conducted from May 2017 through May 2022. The Study Area is a 
polygon roughly the shape of a 300 nm by 150 nm rectangle oriented 
northwest to southeast in the long direction, located south of Prince 
William Sound and east of Kodiak Island, Alaska (see Figure 1-1 of the 
LOA application for a map of the Study Area). The activities conducted 
within the Study Area are classified as military readiness activities. 
The Navy states that these activities may expose some of the marine 
mammals present within the Study Area to sound from underwater acoustic 
sources and explosives. The Navy's request for authorization is for the 
incidental take of individuals of 19

[[Page 19531]]

species of marine mammals, representing 27 stocks, by Level B 
harassment and one species of marine mammal (Dall's porpoise) by Level 
A harassment. The Navy is not requesting mortality takes for any 
species.
    The LOA application, proposed rule (81 FR 9950; February 26, 2016), 
and GOA FSEIS/OEIS contain acoustic thresholds that, in some instances, 
represent changes from what NMFS has used to evaluate the Navy's 
activities for previous authorizations. These thresholds, which the 
Navy developed in coordination with NMFS, are based on the evaluation 
and inclusion of new information from recent scientific studies; a 
detailed explanation of how they were derived is provided in the GOA 
FSEIS/OEIS Criteria and Thresholds for U.S. Navy Acoustic and Explosive 
Effects Analysis Technical Report (available at http://www.goaeis.com).
    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(new Guidance). This new Guidance established new thresholds and 
associated weighting functions for predicting auditory injury, or 
permanent threshold shift (PTS), which equates to Level A harassment 
under the MMPA, and temporary threshold shift (TTS), which is 
considered Level B harassment under the MMPA. In the August 4, 2016, 
Federal Register notice announcing the new Guidance (81 FR 51694), NMFS 
explained the approach it would take during a transition period, during 
which we will balance the need to consider this new best available 
science with the fact that some applicants have already committed time 
and resources to the development of analyses based on our previous 
thresholds and have constraints that preclude the recalculation of take 
estimates, as well as consideration of where the action is in the 
agency's decision-making ``pipeline.'' In that notice, we included a 
non-exhaustive list of factors that would inform the most appropriate 
approach for considering the new Guidance, including: How far in the 
process the application or prospective application has progressed; when 
the activity is scheduled to begin or other timing constraints; the 
complexity of the analyses and the cost and practicality of redoing 
them; the temporal and spatial scope of anticipated effects; and the 
relative degree to which the new Guidance is expected to affect the 
results of the acoustic impact analyses.
    In developing the new Guidance, NMFS compiled, interpreted, and 
synthesized scientific information currently available on the effects 
of anthropogenic sound on marine mammals, including a recent Technical 
Report by Dr. James Finneran (U.S. Navy-SPAWAR Systems Center Pacific) 
that proposed new weighting functions and thresholds for predicting the 
onset of both PTS and temporary threshold shifts (TTS) in marine 
mammals (Finneran, 2016). The methodologies presented within this paper 
(and in NMFS' new Guidance) build upon the methodologies used to 
develop the criteria applied within the proposed rule and Navy's GOA 
FSEIS/OEIS (Finneran and Jenkins, 2012), and incorporate relevant 
auditory research made available since 2012 (e.g., Kastelein et al., 
2012a; Kastelein et al., 2012b; Finneran and Schlundt, 2013; Kastelein 
et al., 2013a; Kastelein et al., 2013b; Popov et al., 2013; Kastelein 
et al., 2014a; Kastelein et al., 2014b; Popov et al., 2014; Finneran et 
al., 2015; Kastelein et al., 2015a; Kastelein et al., 2015b; Popov et 
al., 2015). In light of limited data at the time, Finneran and Jenkins 
(2012) presented a conservative approach to development of auditory 
weighting functions. In 2016, with the benefit of newly-available data, 
Finneran was able to synthesize a wide range of auditory data, 
including newly-available studies, to predict refined auditory 
weighting functions and corresponding TTS and PTS thresholds across the 
complete hearing ranges of functional hearing groups. At the time of 
the release of the proposed rule and GOA FSEIS/OEIS, NMFS' new Guidance 
had not been issued. Further, the new criteria were not available for 
the Navy's acoustic effects modeling used to calculate distances to 
harassment thresholds and resulting take estimates. Therefore, the Navy 
did not directly use the new auditory weighting functions and PTS/TTS 
criteria in its GOA FSEIS/OEIS.
    In addition to the fact that it was possible to address the new 
Guidance adequately without remodeling it would have been impractical 
for the Navy to entirely re-model its proposed action based on the new 
Guidance. The Navy committed substantial time and resources to the 
development of acoustic analyses based on previous acoustic thresholds. 
Data and information (e.g., on marine species density) gathering for 
this second GOA rule (Phase II, 2017-2022) modeling began in November 
2011 and subsequent modeling occurred over a 20-month period from 
October 2012 to June 2014. The contract costs for modeling GOA events 
were significant, as was Navy Pacific Fleet staff labor. The underlying 
science contained within Finneran (2016) (upon which NMFS' new Guidance 
is based) has been addressed qualitatively within the applicable 
sections of the GOA FSEIS/OEIS and this final rulemaking. Further, 
although the writers of the base code for the model used for Phase II 
were not available to recode the model with the updated impulsive 
criteria in terms of weighting functions, the Navy was able to use the 
model to reprocess anticipated explosive ranges to effects for PTS 
based on the criteria presented in the new Guidance to assess if the 
new criteria could result in any additional species-specific injury 
exposures. In short, the Navy quantitatively reanalyzed PTS ranges and 
exposures from explosive sources using the new Guidance, from which TTS 
and behavioral exposures could be estimated, but the sonar exposures 
were not remodeled because a qualitative assessment of the new Guidance 
and the activities showed that it was not necessary in order to support 
the analysis, in addition to being impractical.
    For the sonar exposure estimates, if the new Guidance was 
quantitatively applied to the GOA TMAA effects analysis and new 
modeling conducted, predicted numbers of PTS and/or TTS would change to 
some small degree (even if only by fractions of a take). However, 
because the new Guidance relies on much of the same data as the 
auditory criteria presented in the proposed rule and the Navy's GOA 
FSEIS/OEIS, these changes would not be substantial (as described in 
more detail below), and in most cases would result in a reduction in 
the predicted impacts.
    Onset PTS thresholds for non-impulsive sound (sonar) are largely 
lower (i.e., are more conservative) in Finneran and Jenkins 2012 (used 
in GOA FSEIS/OEIS) compared to the new Guidance, while updated auditory 
weighting functions for most marine mammal hearing groups have changed 
minimally in the new Guidance. This means that the predicted ranges to 
PTS and TTS in the GOA FSEIS/OEIS and this final rule for non-impulsive 
sources would change only minimally (and for the most part are larger 
than what would result) if NMFS' new Guidance were quantitatively 
applied and new modeling conducted (i.e., estimated numbers of takes 
resulting in PTS and TTS from sonar are, for the most part, larger in 
this final rule than would be expected if the Navy's activities were 
re-modeled using the new Guidance). Specifically, PTS thresholds for 
non-impulsive sources for all taxa went up

[[Page 19532]]

(i.e., are less conservative), except for Otariids, for which they went 
down by one dB. Given that the PTS range to effects for Otariids was 
previously 10m, a 1 dB change in the PTS threshold would not change the 
PTS range to effects by more than a couple of meters for any acoustic 
source. For TTS, the onset thresholds for cetaceans in the new Guidance 
all went up (i.e., are less conservative) or stayed the same (i.e., 
ranges to effects and take estimates for TTS would go down or stay the 
same for cetaceans if the Navy's activities were re-modeled using the 
new Guidance). The onset thresholds for TTS for Phocids and Otariids 
went down by 2 dB and 7 dB, respectively. The previous range to effects 
was 70-1720m for Phocids and 230-570m for Otariids for the largest 
source (53C). If spherical spreading were conservatively considered, 
applying the new Guidance, the range to TTS for Phocids would likely be 
no more than approximately 100-2,200m and the range for Otariids would 
likely be no more than approximately 500-1,300m. The originally modeled 
TTS for pinnipeds was zero for all but one species. When the lower 
likelihood of overlap of most pinniped species (those with 0 TTS 
estimates) with these activities is considered in combination with 
their densities and the change in the size of the ensonified zone, our 
analysis still suggests that TTS take is not likely to occur, and those 
Level B take estimates have not been changed. Further, any small 
changes to predicted TTS takes for Northern elephant seals that might 
result from applying the new guidance, and specifically considering the 
slightly larger ensonified volume resulting from the 2 dB decrease in 
the threshold, would be expected to be in the form of changing a 
modeled behavioral harassment to a TTS, resulting in no net change in 
the Level B harassment take estimates.
    For impulsive sound (explosives), the Navy was able to reprocess 
anticipated ranges to effects for Level A harassment (PTS), and 
subsequently ranges to effects for TTS and behavioral exposures, based 
on the new Guidance to assess if the new impulsive criteria could 
result in any additional species-specific takes. The conclusion from 
that analysis was that the new impulsive criteria would not change 
previous species-specific quantities of impulsive PTS, TTS, or 
behavioral exposures for any species except Dall's porpoise, and the 
mitigation zones described in the proposed rule (as shown in Mitigation 
Zones) for each type of explosives training activity remain 
sufficiently protective (i.e., mitigation zones encompass newly 
calculated PTS zones for all explosive types and hearing groups). 
Consideration of the new Guidance results in an increase in take for 
Dall's porpoise by 3 Level A and 149 Level B harassment takes (12 TTS 
and 137 behavioral reactions) above what is described in Alternative 1 
of the FEIS/OEIS. These updated take numbers are included in the ``Take 
Request'' section.
    In summary, NMFS' consideration of the new Guidance does not 
substantially alter our assessment of the likely responses of marine 
mammals to acoustic sources employed by the Navy in the GOA TMAA Study 
Area (though take numbers have been altered slightly where appropriate 
as described above and in the Estimated Take section), or the likely 
fitness consequences of those responses. Overall, predicted auditory 
effects within this rulemaking would not change significantly. As 
described, application of the new Guidance represents only minor 
changes in take estimates, and would not change NMFS' final analysis 
and negligible impact determination. Further, the robust monitoring and 
mitigation measures in this final rule satisfy the ``least practicable 
adverse impact'' standard.
    Of additional note, the definition of an ``Unusual Mortality 
Event,'' which is necessary to the implementation of the Navy's 
Stranding Response Plan, has been added to the final regulations. This 
addition corrects an oversight in the proposed rule and does not 
represent a significant change.

Background of Request

    The Navy's mission is to organize, train, equip, and maintain 
combat-ready naval forces capable of winning wars, deterring 
aggression, and maintaining freedom of the seas. Consistent with this 
mission, 10 U.S.C. 5062 mandates that naval forces be trained and 
equipped for prompt and sustained combat incident to operations at sea, 
and that naval forces be prepared for the effective prosecution of 
war.\1\ The Navy executes this responsibility by establishing and 
executing training programs, including at-sea training and exercises, 
and ensuring naval forces have access to the ranges, operating areas 
(OPAREAs), and airspace needed to develop and maintain skills for 
conducting military readiness activities.
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    \1\ Title 10, Section 5062 of the U.S.C.
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    The Navy proposes to continue conducting training activities within 
the Study Area, which have been ongoing since the 1990s. The tempo and 
types of training activities have evolved and fluctuated to some degree 
because of the introduction of new technologies, the dynamic nature of 
international events, advances in war fighting doctrine and procedures, 
and force structure (organization of ships, submarines, aircraft, 
weapons, and personnel) changes. Such developments influence the 
frequency, duration, intensity, and location of required training 
activities, but the essential character and basic level of the military 
readiness activities conducted in the Study Area has remained largely 
unchanged. The Navy's LOA request covers training activities that would 
occur over a five-year period beginning in May 2017. NMFS' previous 
MMPA incidental take authorization for the GOA TMAA expired in May 
2016.

Description of the Specified Activity

    The proposed rule (81 FR 9950; February 26, 2016) and GOA FSEIS/
OEIS include a complete description of the Navy's specified training 
activities incidental to which NMFS is authorizing take of marine 
mammals in this final rule. Sonar use and underwater detonations are 
the stressors most likely to result in impacts on marine mammals that 
could rise to the level of harassment. Detailed descriptions of these 
activities are provided in the FSEIS/OEIS and in the LOA application 
(http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm) and are 
summarized here.

Overview of Training Activities

    The Navy routinely trains in the Study Area in preparation for 
national defense missions. Training activities and exercises covered in 
the Navy's LOA request are briefly described below, and in more detail 
within chapter 2 of the GOA FSEIS/OEIS. Each military training activity 
described meets a requirement that can be traced ultimately to 
requirements set forth by the National Command Authority.\2\
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    \2\ ``National Command Authority'' is a term used by the United 
States military and government to refer to the ultimate lawful 
source of military orders. The term refers collectively to the 
President of the United States (as commander-in-chief) and the 
United States Secretary of Defense.
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    The Navy categorizes training activities into eight functional 
warfare areas called primary mission areas: Anti-air warfare; 
amphibious warfare; strike warfare; Anti-surface warfare (ASUW); anti-
submarine warfare (ASW); electronic warfare; mine warfare (MIW); and 
naval special warfare (NSW). Most training activities are categorized 
under one of these primary mission areas; those activities that do not 
fall within one of these areas are in a separate

[[Page 19533]]

``other'' category. Each warfare community (surface, subsurface, 
aviation, and special warfare) may train within some or all of these 
primary mission areas. However, not all primary mission areas are 
conducted within the Study Area.
    The Navy described and analyzed the effects of its training 
activities within the GOA FSEIS/OEIS. In its assessment, the Navy 
concluded that of the activities conducted within the Study Area, sonar 
use and underwater detonations were the stressors resulting in impacts 
on marine mammals that could rise to the level of harassment as defined 
under the MMPA. Therefore, the LOA application provides the Navy's 
assessment of potential effects from these stressors. The specific 
acoustic sources used in the LOA application are contained in the GOA 
FSEIS/OEIS and are presented in the following sections based on the 
primary mission areas.
Anti-Surface Warfare (ASUW)
    The mission of ASUW is to defend against enemy ships or boats. In 
the conduct of ASUW, aircraft use cannons, air-launched cruise missiles 
or other precision-guided munitions; ships employ torpedoes, naval 
guns, and surface-to-surface (S-S) missiles; and submarines attack 
surface ships using torpedoes or submarine-launched, anti-ship cruise 
missiles.
    Anti-surface warfare training in the Study Area includes S-S 
gunnery and missile exercises (GUNEX and MISSILEX) and air-to-surface 
(A-S) bombing exercises (BOMBEX), GUNEX, and MISSILEX. Of note, the 
MISSILEX in GOA does not expend ordnance.
Anti-Submarine Warfare (ASW)
    The mission of ASW is to locate, neutralize, and defeat hostile 
submarine threats to surface forces. ASW is based on the principle of a 
layered defense of surveillance and attack aircraft, ships, and 
submarines all searching for hostile submarines. These forces operate 
together or independently to gain early warning and detection, and to 
localize, track, target, and attack hostile submarine threats.
    Anti-submarine warfare training addresses basic skills such as 
detection and classification of submarines, distinguishing between 
sounds made by enemy submarines and those of friendly submarines, 
ships, and marine life. ASW training evaluates the ability of fleet 
assets to use systems, for example, active and passive sonar and 
torpedo systems to counter hostile submarine threats. More advanced, 
integrated ASW training exercises are conducted in coordinated, at-sea 
training events involving submarines, ships, and aircraft. This 
training integrates the full spectrum of ASW from detecting and 
tracking a submarine to attacking a target using simulated weapons.

Description of Sonar, Ordnance, Targets, and Other Systems

    The Navy uses a variety of sensors, platforms, weapons, and other 
devices to meet its mission. Training with these systems and devices 
may introduce acoustic (sound) energy into the environment. The Navy's 
current LOA application describes underwater sound as one of two types: 
Impulsive and non-impulsive. Sonar and similar sound producing systems 
are categorized as non-impulsive sound sources. Underwater detonations 
of explosives and other percussive events are impulsive sounds.
Sonar and Other Active Acoustic Sources
    Modern sonar technology includes a variety of sonar sensor and 
processing systems. In concept, the simplest active sonar emits sound 
waves, or ``pings,'' sent out in multiple directions, and the sound 
waves then reflect off of the target object in multiple directions. The 
sonar source calculates the time it takes for the reflected sound waves 
to return; this calculation determines the distance to the target 
object. More sophisticated active sonar systems emit a ping and then 
rapidly scan or listen to the sound waves in a specific area. This 
provides both distance to the target and directional information. Even 
more advanced sonar systems use multiple receivers to listen to echoes 
from several directions simultaneously and provide efficient detection 
of both direction and distance. Active sonar is rarely used 
continuously throughout the listed activities. In general, when sonar 
is in use, the sonar ``pings'' occur at intervals, referred to as a 
duty cycle, and the signals themselves are very short in duration. For 
example, sonar that emits a 1-second ping every 10 seconds has a 10 
percent duty cycle. The Navy's largest hull-mounted mid-frequency sonar 
source typically emits a 1-second ping every 50 seconds representing a 
2 percent duty cycle. The Navy utilizes sonar systems and other 
acoustic sensors in support of a variety of mission requirements. 
Primary uses include the detection of and defense against submarines 
(ASW) and mines (MIW); safe navigation and effective communications; 
use of unmanned undersea vehicles; and oceanographic surveys. Sources 
of sonar and other active acoustic sources include surface ship sonar, 
sonobuoys, torpedoes, and unmanned underwater vehicles.
Ordnance and Munitions
    Most ordnance and munitions used during training events fall into 
three basic categories: Projectiles (such as gun rounds), missiles 
(including rockets), and bombs. Ordnance can be further defined by 
their net explosive weight (NEW), which considers the type and quantity 
of the explosive substance without the packaging, casings, bullets, 
etc. NEW is the trinitrotoluene (TNT) equivalent of energetic material, 
which is the standard measure of strength of bombs and other 
explosives. For example, a 5-inch shell fired from a Navy gun is 
analyzed at approximately 9.5 pounds (lb.) (4.3 kilograms (kg)) of NEW. 
The Navy also uses non-explosive ordnance in place of explosive 
ordnance in many training and testing events. Non-explosive ordnance 
look and perform similarly to explosive ordnance, but lack the main 
explosive charge.
Defense Countermeasures
    Naval forces depend on effective defensive countermeasures to 
protect themselves against missile and torpedo attack. Defensive 
countermeasures are devices designed to confuse, distract, and confound 
precision-guided munitions. Defensive countermeasures analyzed in this 
LOA application include acoustic countermeasures, which are used by 
surface ships and submarines to defend against torpedo attack. Acoustic 
countermeasures are either released from ships and submarines, or towed 
at a distance behind the ship.
Classification of Non-Impulsive and Impulsive Sources Analyzed
    In order to better organize and facilitate the analysis of 
approximately 300 individual sources of underwater acoustic sound or 
explosive energy, a series of source classifications, or source bins, 
were developed by the Navy. The use of source classification bins 
provides the following benefits:

     Provides the ability for new sensors or munitions to be 
covered under existing regulatory authorizations, as long as those 
sources fall within the parameters of a ``bin'';
     Simplifies the source utilization data collection and 
reporting requirements anticipated under the MMPA;
     Ensures a conservative approach to all impact analysis, 
as all sources in a single bin are modeled as the loudest source 
(e.g., lowest frequency, highest source level (the term ``source 
level'' refers to the loudness of a sound at its source), longest 
duty cycle, or largest NEW) within that bin, which:

[[Page 19534]]

    [cir] Allows analysis to be conducted more efficiently, without 
compromising the results; and
    [cir] Provides a framework to support the reallocation of source 
usage (hours/explosives) between different source bins, as long as 
the total number and severity of marine mammal takes remain within 
the overall analyzed and authorized limits. This flexibility is 
required to support evolving Navy training requirements, which are 
linked to real world events.

    There are two primary types of acoustic sources: Impulsive and non-
impulsive. A description of each source classification is provided in 
Tables 1 and 2. Impulsive source class bins are based on the NEW of the 
munitions or explosive devices or the source level for air and water 
guns. Non-impulsive acoustic sources are grouped into source class bins 
based on the frequency,\3\ source level,\4\ and, when warranted, the 
application in which the source would be used. The following factors 
further describe the considerations associated with the development of 
non-impulsive source bins.
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    \3\ Bins are based on the typical center frequency of the 
source. Although harmonics may be present, those harmonics would be 
several decibels (dB) lower than the primary frequency.
    \4\ Source decibel levels are expressed in terms of sound 
pressure level (SPL) and are values given in dB referenced to 1 
micropascal at 1 meter.

     Frequency of the non-impulsive source:
    [cir] Low-frequency sources operate below 1 kilohertz (kHz);
    [cir] Mid-frequency sources operate at and above 1 kHz, up to 
and including 10 kHz;
    [cir] High-frequency sources operate above 10 kHz, up to and 
including 100 kHz;
    [cir] Very high-frequency sources operate above 100 kHz but 
below 200 kHz.
     Source level of the non-impulsive source;
    [cir] Greater than 160 decibels (dB), but less than 180 dB;
    [cir] Equal to 180 dB and up to 200 dB;
    [cir] Greater than 200 dB.
     Application in which the source would be used;
    [cir] How a sensor is employed supports how the sensor's 
acoustic emissions are analyzed;
    [cir] Factors considered include pulse length (time source is 
on); beam pattern (whether sound is emitted as a narrow, focused 
beam or, as with most explosives, in all directions); and duty cycle 
(how often or how many times a transmission occurs in a given time 
period during an event).

    As described in the GOA FSEIS/OEIS, non-impulsive acoustic sources 
that have low source levels (not loud), narrow beam widths, downward 
directed transmission, short pulse lengths, frequencies beyond known 
hearing ranges of marine mammals, or some combination of these 
characteristics, are not anticipated to result in takes of protected 
species and therefore were not modeled. These sources generally meet 
one of the following criteria, are considered de mimimis sources, and 
are qualitatively analyzed in the GOA FSEIS/OEIS:
     Acoustic sources with frequencies greater than 200 kHz 
(based on known marine mammal hearing ranges); and
     Sources with source levels less than 160 dB.

Source Classes Analyzed for Training

    Table 1 shows the impulsive sources (e.g., underwater explosives) 
associated with training activities analyzed in the Study Area, as 
proposed in the Navy's LOA request and described in the proposed rule. 
Alternative 1 of the FSEIS/OEIS, the specific activity for which the 
incidental taking of marine mammals is authorized pursuant to this 
final rule, includes zero detonations from the E6, E7, E8, and E11 
source bins, as indicated in Table 1. Table 2 shows non-impulsive 
sources (e.g., sonar) associated with training activities analyzed in 
the Study Area, as proposed in the Navy's LOA request and described in 
the proposed rule. Alternative 1 of the FSEIS/OEIS includes zero 
torpedoes from the TORP2 category, as indicated in Table 2. 
Additionally, Alternative 1 does not include live MISSILEX exercises, 
which were included in the proposed rule.

     Table 1--Impulsive (Explosive) Training Source Classes Analyzed
                             Quantitatively
------------------------------------------------------------------------
                                   Representative        Net explosive
         Source class                munitions          weight  (lbs.)
------------------------------------------------------------------------
E5...........................  5-inch projectiles...  >5-10
E6 *.........................  AGM-114 Hellfire       >10-20
                                missile.
E7 *.........................  AGM-88 High-speed      >20-60
                                Anti-Radiation
                                Missile.
E8 *.........................  250 lb. bomb.........  >60-100
E9...........................  500 lb. bomb.........  >100-250
E10..........................  1,000 lb. bomb.......  >250-500
E11 *........................  MK-48 torpedo........  >500-650
E12..........................  2,000 lb. bomb.......  >650-1,000
------------------------------------------------------------------------
* Note--these bins are not covered by this final rule, since Navy
  reduced their proposed activity in their incidental take request.


 Table 2--Non-Impulsive Training Source Classes Analyzed Quantitatively
------------------------------------------------------------------------
                                                      Description of
      Source class category        Source class   representative sources
------------------------------------------------------------------------
Mid-Frequency (MF): Tactical and  MF1            Hull-mounted surface
 non-tactical sources that                        ship sonar (e.g., AN/
 produce mid-frequency (1-10                      SQS-53C and AN/SQS-
 kHz) signals.                                    60).
                                  MF3            Hull-mounted submarine
                                                  sonar (e.g., AN/BQQ-
                                                  10).
                                  MF4            Helicopter-deployed
                                                  dipping sonar (e.g.,
                                                  AN/AQS-22 and AN/AQS-
                                                  13).
                                  MF5            Active acoustic
                                                  sonobuoys (e.g.,
                                                  DICASS).
                                  MF6            Active underwater sound
                                                  signal devices (e.g.,
                                                  MK-84).
                                  MF11           Hull-mounted surface
                                                  ship sonar with an
                                                  active duty cycle
                                                  greater than 80%.
High-Frequency (HF): Tactical     HF1            Hull-mounted submarine
 and non-tactical sources that                    sonar (e.g., AN/BQQ-
 produce high[dash]frequency                      10).
 (greater than 10 kHz but less
 than 100 kHz) signals.
                                  HF6            Active sources (equal
                                                  to 180 dB and up to
                                                  200 dB).

[[Page 19535]]

 
Anti-Submarine Warfare (ASW):     ASW2           Mid-frequency
 Tactical sources such as active                  Multistatic Active
 sonobuoys and acoustic                           Coherent sonobuoy
 countermeasures systems used                     (e.g., AN/SSQ-125).
 during the conduct of ASW
 training activities.
                                  ASW3           Mid-frequency towed
                                                  active acoustic
                                                  countermeasure systems
                                                  (e.g., AN/SLQ-25).
                                  ASW4           Mid-frequency
                                                  expendable active
                                                  acoustic device
                                                  countermeasures (e.g.,
                                                  MK-3).
* Torpedoes (TORP): Source        TORP2          Heavyweight torpedo
 classes associated with the                      (e.g., MK-48, electric
 active acoustic signals                          vehicles).
 produced by torpedoes.
------------------------------------------------------------------------
Notes: dB = decibels, DICASS = Directional Command Activated Sonobuoy
  System, kHz = kilohertz.
* TORP not covered by this rule since Navy reduced their activities.

Training

    The training activities with potential impacts to marine mammals 
that the Navy proposes to conduct in the Study Area are described in 
Table 3. The table is organized according to primary mission areas and 
includes the activity name, associated stressor(s), description of the 
activity, the primary platform used (e.g., ship or aircraft type), 
duration of activity, type of non-impulsive or impulsive sources used 
in the activity, and the number of activities per year. More detailed 
activity descriptions can be found in chapter 2 of the GOA FSEIS/OEIS. 
The Navy's activities are anticipated to meet training needs in the 
years 2017-2022.

Table 3--Training Activities Within the Study Area. Activities Now Reflect Navy's Alternative 1, Which No Longer
                   Includes Sinking Exercises and Includes One, Instead of Two, CSG Exercises
----------------------------------------------------------------------------------------------------------------
                                                                                          Weapons/rounds/sound
             Category                 Training activity            Description                   source
----------------------------------------------------------------------------------------------------------------
                                           Anti-Surface Warfare (ASUW)
----------------------------------------------------------------------------------------------------------------
Impulsive.........................  Gunnery Exercise,      Ship crews engage surface   Small-, Medium-, and
                                     Surface-to-Surface     targets with ship's small-  Large-caliber high
                                     (Ship) (GUNEX-S-S      , medium-, and large-       explosive rounds.
                                     (Ship)).               caliber guns.
Impulsive.........................  Bombing Exercise (Air- Fixed-wing aircrews         High explosive bombs.
                                     to-Surface) (BOMBEX    deliver bombs against
                                     (A-S)).                surface targets.
----------------------------------------------------------------------------------------------------------------
                                          Anti-Submarine Warfare (ASW)
----------------------------------------------------------------------------------------------------------------
Non-impulsive.....................  Tracking Exercise--    Submarine searches for,     Mid- and high-frequency
                                     Submarine (TRACKEX--   detects, and tracks         submarine sonar.
                                     Sub).                  submarine(s) and surface
                                                            ship(s).
Non-impulsive.....................  Tracking Exercise--    Surface ship searches for,  Mid-frequency surface
                                     Surface (TRACKEX--     tracks, and detects         ship sonar, acoustic
                                     Surface).              submarine(s).               countermeasures, and
                                                                                        high-frequency active
                                                                                        sources.
Non-impulsive.....................  Tracking Exercise--    Helicopter searches,        Mid-frequency dipping
                                     Helicopter (TRACKEX--  tracks, and detects         sonar systems and
                                     Helo).                 submarine(s).               sonobuoys.
Non-impulsive.....................  Tracking Exercise--    Maritime patrol aircraft    Sonobuoys, such as DICASS
                                     Maritime Patrol        use sonobuoys to search     sonobuoys.
                                     Aircraft (TRACKEX--    for, detect, and track
                                     MPA).                  submarine(s).
Non-impulsive.....................  Tracking Exercise--    Maritime patrol aircraft    mid-frequency MAC
                                     Maritime Patrol        crews search for, detect    sonobuoys.
                                     Aircraft (MAC          and track submarines
                                     Sonobuoys).            using MAC sonobuoys.
----------------------------------------------------------------------------------------------------------------
Notes: DICASS = Directional Command Activated Sonobuoy System; MAC=Multistatic Active Coherent.

Summary of Impulsive and Non-Impulsive Sources

    Table 4 provides a quantitative annual summary of training 
activities by sonar and other active acoustic source class analyzed in 
the Navy's LOA request. Annual use has been updated since publication 
of the notice for the proposed rule and now reflects Navy's Alternative 
1, which results in a reduction of annual use by about half.

Table 4--Annual Hours and Units of Sonar and Other Active Acoustic Sources Used During Training Within the Study
                                                      Area
----------------------------------------------------------------------------------------------------------------
          Source class category                Source class                    Units                Annual use
----------------------------------------------------------------------------------------------------------------
Mid-Frequency (MF)......................  MF1                     Hours.........................             271
Active sources from 1 to 10 kHz.........  MF3                     Hours.........................              24
                                          MF4                     Hours.........................              26

[[Page 19536]]

 
                                          MF5 *                   Items.........................             126
                                          MF6                     Items.........................              11
                                          MF11                    Items.........................              39
High-Frequency (HF): Tactical and non-    HF1                     Hours.........................              12
 tactical sources that produce signals    HF6                     Hours.........................              40
 greater than 10 kHz but less than 100
 kHz.
Anti-Submarine Warfare (ASW)............  ASW2                    Hours.........................              40
Active ASW sources......................  ASW3                    Hours.........................             273
                                          ASW4 *                  Items.........................               6
Torpedoes (TORP) Source classes           TORP2                   Items.........................               0
 associated with active acoustic signals
 produced by torpedoes.
----------------------------------------------------------------------------------------------------------------
* Annual use for MF5 and ASW4 was incorrectly identified in the proposed rule as 25 and 4, respectively. Annual
  use for these source classes is 252 and 12, respectively, for Alternative 2--but is half that here, reflecting
  Alternative 1.

    Table 5 provides a quantitative annual summary of training 
explosive source classes analyzed in the Navy's LOA request. Annual 
number of in-water detonations has been updated since publication of 
the notice for the proposed rule and now reflects Navy's Alternative 1, 
which results in a reduction of detonations by at least half.

  Table 5--Annual Number of Training Explosive Source Detonations Used
                  During Training Within the Study Area
------------------------------------------------------------------------
                                                            Annual  in-
                                                               water
  Explosive class  net explosive weight  (pounds (lb.))     detonations
                                                             training
------------------------------------------------------------------------
E5 (>5-10 lb.)..........................................              56
E6 (>10-20 lb.).........................................               0
E7 (>20-60 lb.).........................................               0
E8 (>60-100 lb.)........................................               0
E9 (>100-250 lb.).......................................              64
E10 (>250-500 lb.)......................................               6
E11 (>500-650 lb.)......................................               0
E12 (>650-1,000 lb.)....................................               2
------------------------------------------------------------------------

Duration and Location

    Training activities would be conducted in the Study Area during one 
exercise of up to 21 days per year between the months of April and 
October to support a major joint training exercise in Alaska and off 
the Alaskan coast that involves the Departments of the Navy, the Army, 
Air Force, and the U.S. Coast Guard (Coast Guard). The Service 
participants report to a unified or joint commander who coordinates the 
activities planned to demonstrate and evaluate the ability of the 
services to engage in a conflict and carry out plans in response to a 
threat to national security. Take incidental to the annual exercise 
would be authorized between May 2017 and May 2022.
    The Study Area (see Figure 1-1 of the LOA application) is entirely 
at sea and is composed of the established GOA TMAA and a warning area 
in the Gulf of Alaska. The Navy uses ``at-sea'' to include its training 
activities in the Study Area that occur (1) on the ocean surface, (2) 
beneath the ocean surface, and (3) in the air above the ocean surface. 
Navy training activities occurring on or over the land outside the GOA 
TMAA are covered under previously prepared environmental documentation 
prepared by the U.S. Air Force and the U.S. Army. Gulf of Alaska 
Temporary Maritime Activities Area (GOA TMAA)
    The GOA TMAA is a temporary area established in conjunction with 
the Federal Aviation Administration (FAA) for one exercise period of up 
to 21 days, that is a surface, undersea space, and airspace maneuver 
area within the Gulf of Alaska for ships, submarines, and aircraft to 
conduct required training activities. The GOA TMAA is a polygon roughly 
resembling a rectangle oriented from northwest to southeast, 
approximately 300 nautical miles (nm) in length by 150 nm in width, 
located south of Prince William Sound and east of Kodiak Island.

Airspace of the GOA TMAA

    The airspace of the GOA TMAA overlies the surface and subsurface 
training area and is called an Altitude Reservation (ALTRV). This ALTRV 
is a temporary airspace designation, typically requested by the Alaskan 
Command (ALCOM) and coordinated through the FAA for the duration of the 
exercise. This overwater airspace supports the majority of aircraft 
training activities conducted by Navy and Joint aircraft throughout the 
joint training exercise. The ALTRV over the GOA TMAA typically extends 
from the ocean surface to 60,000 feet (ft) (18,288 meters (m)) above 
mean sea level and encompasses 42,146 square nautical miles (nm\2\) of 
airspace. For safety considerations, ALTRV information is sent via 
Notice to Airmen (NOTAM)/International NOTAM so that all pilots are 
aware of the area and that Air Traffic Control will keep known 
Instrument Flight Rules aircraft clear of the area.
    Additionally, the GOA TMAA overlies a majority of Warning Area W-
612 (W-612) located over Blying Sound, towards the northwestern 
quadrant of the GOA TMAA. When not included as part of the GOA TMAA, W-
612 provides 2,256 nm\2\ of special use airspace for the Air Force and 
Coast Guard to fulfill some of their training requirements. Air Force, 
Army, National Guard, and Coast Guard activities conducted as part of 
at-sea joint training within the GOA TMAA are included in the FSEIS/
OEIS analysis. No Navy training activities analyzed in this final rule 
occur in the area of W-612 that is outside of the GOA TMAA (see Figure 
1-1 of the LOA application).

Sea and Undersea Space of the GOA TMAA

    The GOA TMAA surface and subsurface areas are also depicted in 
Figure 1-1 of the LOA application. Total surface area of the GOA TMAA 
is 42,146 nm\2\. Due to weather conditions, annual joint training 
activities are typically conducted during the summer months (April-
October). The GOA TMAA undersea area lies beneath the surface area as 
depicted in Figure 1-1 of the LOA application. The undersea area 
extends to the seafloor.
    The complex bathymetric and oceanographic conditions, including a 
continental shelf, submarine canyons, numerous seamounts, and fresh 
water infusions from multiple sources, create a challenging environment 
in which to search for and detect submarines in ASW training 
activities. In the summer, the GOA TMAA provides a safe cold-water 
training environment that resembles other areas where Navy may need to 
operate in a real-world scenario.
    The GOA TMAA meets large-scale joint exercise training objectives 
to

[[Page 19537]]

support naval and joint operational readiness by providing a 
``geographically realistic'' training area for U.S. Pacific Command, 
Joint Task Force Commander scenario-based training, and supports the 
mission requirement of Alaskan Command (ALCOM) to conduct joint 
training for Alaska-based forces. The strategic vision of the 
Commander, U.S. Pacific Fleet is that the training area supports naval 
operational readiness by providing a realistic, live-training 
environment for forces assigned to the Pacific Fleet and other users 
with the capability and capacity to support current, emerging, and 
future training requirements.

Description of Marine Mammals in the Area of the Specified Activities

    Twenty-two marine mammal species have confirmed or possible 
occurrence within or adjacent to the Study Area, including seven 
species of baleen whales (mysticetes), eight species of toothed whales 
(odontocetes), six species of seals (pinnipeds), and the sea otter 
(mustelid). Three of these species (gray whale, sea otter, and ribbon 
seal) are not expected to be taken by the training activities, as 
discussed in Chapter 4 of the LOA application. Nine of these species 
are listed under the ESA: Blue whale, fin whale, humpback whale 
(Distinct Population Segment (DPS) and Western North Pacific DPS), sei 
whale, sperm whale, gray whale (Western North Pacific stock), North 
Pacific right whale, Steller sea lion (Western U.S. stock), and sea 
otter. The ``Description of Marine Mammals in the Area of the Specified 
Activities'' section was included in the proposed rule (81 FR 9950, 
9956-57; February 26, 2016). These descriptions have not changed, with 
the exception of the humpback whale. On September 8, 2016, NMFS revised 
the ESA listing for humpback whales to identify 14 DPSs, listing one as 
threatened, four as endangered, and identifying nine others as not 
warranted for listing (81 FR 40870). Humpback whales from the 
threatened Mexico DPS, endangered Western North Pacific DPS, and Hawaii 
DPS, which was identified as not warranted for listing, could all occur 
in the Study Area.
    Table 6 of the proposed rule provided a list of marine mammals with 
possible or confirmed occurrence within the GOA TMAA Study Area, 
including stock, abundance, and status. Information on the status, 
distribution, abundance, and vocalizations of marine mammal species in 
the Study Area may also be viewed in Chapter 4 of the LOA application 
(http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm). 
Additional information on the general biology and ecology of marine 
mammals is included in the GOA FSEIS/OEIS. In addition, NMFS annually 
publishes Stock Assessment Reports (SARs) for all marine mammals in 
U.S. EEZ waters, including stocks that occur within the Study Area 
(U.S. Pacific Marine Mammal Stock Assessments, Carretta et al., 2015; 
Alaska Marine Mammal Stock Assessments, Muto and Angliss, 2015).

Potential Effects of Specified Activities on Marine Mammals

    In the ``Potential Effects of Specified Activities on Marine 
Mammals'' section of the proposed rule (81 FR 9950; 9961-78; February 
26, 2016), we included a qualitative discussion of the different ways 
that Navy training activities may potentially affect marine mammals 
without consideration of mitigation and monitoring measures. With the 
exception of the new information related to thresholds for auditory 
injury described earlier in this document, that information has not 
changed in a manner that would affect our analysis or findings and is 
not repeated here.

Mitigation

    Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
``permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for subsistence uses'' (``least 
practicable adverse impact''). NMFS does not have a regulatory 
definition for least practicable adverse impact. The NDAA for FY 2004 
amended the MMPA as it relates to military readiness activities and the 
incidental take authorization process such that ``least practicable 
adverse impact'' shall include consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
``military readiness activity.''
    As discussed in the proposed rule, in Conservation Council for 
Hawaii v. National Marine Fisheries Service, 97 F. Supp.3d 1210, 1229 
(D. Haw. Mar. 31, 2015), the court stated that NMFS ``appear[s] to 
think [it] satisf[ies] the statutory `least practicable adverse impact' 
requirement with a `negligible impact' finding.'' Following publication 
of the proposed rule, the Ninth Circuit Court of Appeals in Natural 
Resources Defense Council v. Pritzker, 828 F.3d 1125, 1134 (9th Cir. 
July 15, 2016), expressing similar concerns in a challenge to our last 
SURTASS LFA sonar incidental take rule, stated, ``Compliance with the 
`negligible impact' requirement does not mean there [is] compliance 
with the `least practicable adverse impact standard [. . .] .'' As the 
Ninth Circuit noted in its opinion, however, the court was interpreting 
the statute without the benefit of NMFS' formal interpretation. We 
state here explicitly, as we have said in the past, that NMFS is in 
full agreement that the ``negligible impact'' and ``least practicable 
adverse impact'' requirements are distinct, even though both statutory 
standards refer to species and stocks. With that in mind, we provide 
further explanation of our interpretation of least practicable adverse 
impact, and explain what distinguishes it from the negligible impact 
standard. This discussion is consistent with, and expands upon, 
previous rules we have issued and the explanation provided in the 
proposed rule.
    Before NMFS can issue incidental take regulations under section 
101(a)(5)(A) of the MMPA, it must make a finding that the total taking 
will have a ``negligible impact'' on the affected ``species or stocks'' 
of marine mammals. NMFS' and U.S. Fish and Wildlife Service's joint 
implementing regulations for section 101(a)(5)(A) define ``negligible 
impact'' as ``an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.'' 50 CFR 216.103 and 50 CFR 18.27(c). 
Recruitment (i.e., reproduction) and survival rates are used to 
determine population growth rates \5\ and, therefore are considered in 
evaluating population level impacts.
---------------------------------------------------------------------------

    \5\ A growth rate can be positive, negative, or flat.
---------------------------------------------------------------------------

    As we stated in the preamble to the final rule for the joint 
implementing regulations, not every population-level impact violates 
the negligible impact requirement. The negligible impact standard does 
not require a finding that the anticipated take will have ``no effect'' 
on population numbers or growth rates: ``The statutory standard does 
not require that the same recovery rate be maintained, rather that no 
significant effect on annual rates of recruitment or survival occurs [. 
. .] . [T]he key factor is the significance of the level of impact on 
rates of recruitment or survival.'' See 54 FR 40338, 40341-42 
(September 29, 1989).
    While some level of impact on population numbers or growth rates of 
a species or stock may occur and still satisfy the negligible impact 
requirement--even without

[[Page 19538]]

consideration of mitigation--the least practicable adverse impact 
provision separately requires NMFS to prescribe the means of 
``effecting the least practicable adverse impact on such species or 
stock and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance [. . .].'' 6 7
---------------------------------------------------------------------------

    \6\ For purposes of this discussion we omit reference to the 
language in the standard for least practicable adverse impact that 
says we also must mitigate for subsistence impacts because they are 
not at issue in this action.
    \7\ NMFS' incidental take actions routinely refer to the least 
practicable adverse impact requirement in shorthand as 
``mitigation,'' a concept that broadly encompasses measures or 
practices that are reasonably designed to avoid, reduce, or minimize 
impacts.
---------------------------------------------------------------------------

    The negligible impact and least practicable adverse impact 
standards in the statute share a common reference to ``species or 
stocks.'' A ``species'' is defined as a group of animals or plants that 
are similar and can produce young animals or plants: a group of related 
animals or plants that is smaller than a genus (http://www.merriam-webster.com/dictionary/species). ``Population stock'' or ``stock'' 
means ``a group of marine mammals of the same species or smaller taxa 
in a common spatial arrangement, that interbreed when mature.'' 16 
U.S.C. 1362(11). We believe those terms indisputably refer to 
populations of animals, and that it is therefore appropriate to view 
both MMPA provisions as having a population-level focus. This is 
consistent with both the language of the statute and Congress' 
overarching conservation objective in enacting the MMPA. See 16 U.S.C. 
1361 (Congress' findings reflecting policy concerns about the 
extinction or depletion of certain marine mammal species or stocks and 
the goal of ensuring they are functioning elements of their 
ecosystems).
    Recognizing this common focus of the two provisions on ``species or 
stock'' does not mean we conflate the standards; despite some common 
statutory language, we recognize the two provisions are different in 
other ways and have different functions.\8\ First, a negligible impact 
finding is required before NMFS can issue an incidental take 
authorization. Although it is acceptable to use mitigation to reach a 
negligible impact finding, 50 CFR 216.104(c), no amount of mitigation 
can enable NMFS to issue an incidental take authorization for an 
activity that still would not meet the negligible impact standard. 
Moreover, even where NMFS can reach a negligible impact finding--which 
we emphasize does allow for the possibility of some ``negligible'' 
population-level impact--the agency must still prescribe practicable 
measures that will effect the least amount of adverse impact upon the 
affected species or stock.
---------------------------------------------------------------------------

    \8\ See also CBD v. Salazar, 695 F.3d 893 (9th Cir. 2012) 
(finding that some overlap between FWS' factors for determining 
negligible impact and small numbers was not an improper conflation 
of the two standards where the agency also considered other factors 
in reaching its conclusions).
---------------------------------------------------------------------------

    Further, section 101(a)(5)(A)(i)(II) requires NMFS to issue, in 
conjunction with its authorization, binding--and enforceable--
restrictions (in the form of regulations) setting forth how the 
activity must be conducted, thus ensuring the activity has the ``least 
practicable adverse impact'' on the affected species or stocks. In 
situations where mitigation is needed to reach a negligible impact 
determination, section 101(a)(5)(A)(i)(II) also provides a mechanism 
for ensuring compliance with the ``negligible impact'' requirement. 
Finally, we also reiterate that the ``least practicable adverse 
impact'' standard requires mitigation for marine mammal habitat, with 
particular attention to rookeries, mating grounds, and other areas of 
similar significance, and for mitigating subsistence impacts; whereas 
the negligible impact standard is concerned with conclusions about the 
impact of an activity on the affected populations.\9\
---------------------------------------------------------------------------

    \9\ Outside of the military readiness context, mitigation may 
also be appropriate to ensure compliance with the ``small numbers'' 
language in MMPA sections 101(a)(5)(A) and (D).
---------------------------------------------------------------------------

    In NRDC v. Pritzker, the court stated, ``[t]he statute is properly 
read to mean that even if population levels are not threatened 
significantly, still the agency must adopt mitigation measures aimed at 
protecting marine mammals to the greatest extent practicable in light 
of military readiness needs.'' Id. at 1134 (emphasis added). This 
statement is consistent with our understanding stated above that even 
when the effects of an action satisfy the negligible impact standard 
(i.e., in the court's words, ``population levels are not threatened 
significantly''), still the agency must prescribe mitigation under the 
least practicable adverse impact standard. However, as the statute 
indicates, the focus of both standards is ultimately the impact on the 
affected ``species or stock,'' and not solely focused on/directed at 
the impact on individual marine mammals.
    We have carefully reviewed and considered the Ninth Circuit's 
opinion in NRDC v. Pritzker in its entirety. While the court's 
reference to ``marine mammals'' rather than ``marine mammal species or 
stocks'' in the italicized language above might be construed as a 
holding that the least practicable adverse impact standard applies at 
the individual ``marine mammal'' level, i.e., that NMFS must require 
mitigation to minimize impacts to each individual marine mammal unless 
impracticable, we believe such an interpretation reflects an incomplete 
appreciation of the court's holding. In our view, the opinion as a 
whole turned on the court's determination that NMFS had not given 
separate and independent meaning to the least practicable adverse 
impact standard apart from the negligible impact standard, and further 
that the court's use of the term ``marine mammals'' was not addressing 
the question of whether the standard applies to individual animals as 
opposed to the species or stock as a whole. We recognize that while 
consideration of mitigation can play a role in a negligible impact 
determination, consideration of mitigation extends beyond that 
analysis. In evaluating what mitigation is appropriate, NMFS considers 
the impacts of the proposed action, the availability of measures to 
minimize those potential impacts, and the practicability of 
implementing those measures, as we describe below.

Implementation of Least Practicable Adverse Impact

    Given this most recent court decision, we further clarify how we 
determine whether a measure or set of measures meets the ``least 
practicable adverse impact'' standard. Our evaluation of potential 
mitigation measures includes consideration of two primary factors:
    (1) The manner in which, and the degree to which, implementation of 
the measure(s) is expected to reduce impacts to marine mammal species 
or stocks, their habitat, and their availability for subsistence uses 
(where relevant). Among other things, this analysis will consider the 
nature of the potential adverse impact (such as likelihood, scope, and 
range), the likelihood that the measure will be effective if 
implemented, and the likelihood of successful implementation.
    (2) The practicability of the measures for applicant 
implementation. Practicability of implementation may consider such 
things as cost, impact on operations, and, in the case of a military 
readiness activity, personnel safety, practicality of implementation, 
and impact on the effectiveness of the military readiness activity. 16 
U.S.C. 1371(a)(5)(A)(ii).
    While the language of the least practicable adverse impact standard

[[Page 19539]]

calls for minimizing impacts to affected species or stocks, we 
recognize that the reduction of impacts to those species or stocks 
accrues through the application of mitigation measures that limit 
impacts to individual animals. Accordingly, NMFS' analysis will focus 
on measures designed to avoid or minimize impacts on marine mammals 
from activities that are likely to increase the probability or severity 
of population-level effects. While direct evidence of impacts to 
species or stocks from a specified activity is rarely available, and 
additional study is still needed to describe how specific disturbance 
events affect the fitness of individuals of certain species, there have 
been improvements in understanding the process by which disturbance 
effects are translated to the population. With recent scientific 
advancements (both marine mammal energetic research and the development 
of energetic frameworks), the relative likelihood or degree of impacts 
on species or stocks may often be inferred given a detailed 
understanding of the activity, the environment, and the affected 
species or stocks. This same information is used in the development of 
mitigation measures and helps us understand how mitigation measures 
contribute to lessening species or stock effects.
    In the evaluation of specific measures, the details of the 
specified activity will necessarily inform each of the two factors and 
will be carefully considered to determine the types of mitigation that 
are appropriate under the least practicable adverse impact standard. 
The greater the likelihood that a measure will contribute to reducing 
the probability or severity of adverse impacts to the species or stock, 
the greater the weight that measure(s) is given when considered in 
combination with practicability to determine the appropriateness of the 
mitigation measure(s), and vice versa.
    Below we discuss how these factors are considered.
    1. Reduction of adverse impacts to species or stock. The emphasis 
given to a measure's ability to reduce the impacts on a species or 
stock considers the degree, likelihood, and context of the anticipated 
reduction of impacts to individuals as well as the status of the 
species or stock.
    The ultimate impact on any individual from a disturbance event 
(which informs the likelihood of adverse species or stock-level 
effects) is dependent on the circumstances and associated contextual 
factors, such as duration of exposure to stressors. Though any proposed 
mitigation needs to be evaluated in the context of the specific 
activity and the species or stocks affected, measures with the 
following types of goals are often applied to reduce the likelihood or 
severity of adverse species or stock-level impacts: Avoiding or 
minimizing injury or mortality; limiting interruption of known feeding, 
breeding, mother/young, or resting behaviors; minimizing the 
abandonment of important habitat (temporally and spatially); minimizing 
the number of individuals subjected to these types of disruptions; and 
limiting degradation of habitat. Mitigating these types of effects is 
intended to reduce the likelihood that the activity will result in 
energetic or other types of impacts that are more likely to result in 
reduced reproductive success or survivorship. It is also important to 
consider the degree of impacts that were expected in the absence of 
mitigation in order to assess the added value of any potential 
measures.
    The status of the species or stock is also relevant in evaluating 
the appropriateness of certain mitigation measures in the context of 
least practicable adverse impact. The following are examples of factors 
that may (either alone, or in combination) result in greater emphasis 
on the importance of a mitigation measure in reducing impacts on a 
species or stock: The stock is known to be decreasing or status is 
unknown, but believed to be declining; the known annual mortality (from 
any source) is approaching or exceeding the potential biological 
removal (PBR) level (as defined in 16 U.S.C. 1362(20)); the affected 
species or stock is a small, resident population; or the stock is 
involved in an unusual mortality event (UME) or has other known 
vulnerabilities, such as recovering from an oil spill.
    Reduction of habitat impacts. Habitat mitigation, particularly as 
it relates to rookeries, mating grounds, and areas of similar 
significance, is also relevant and can include measures, such as 
reducing impacts of the activity on known prey utilized in the activity 
area or reducing impacts on physical habitat.
    Likely effectiveness of the measure. We consider available 
information indicating the likelihood of any measure to accomplish its 
objective. If evidence shows that a measure has not typically been 
effective or successful, then either that measure should be modified, 
or the potential value of the measure to reduce effects is lowered.
    2. Practicability. Factors considered may include cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. 16 U.S.C. 
1371(a)(5)(A)(ii).
    The above section describes the factors considered in making a 
least practicable adverse impact finding. In summary, NMFS will 
carefully balance the likelihood and degree to which a measure(s) will 
reduce adverse impacts on species or stocks with the measure's 
practicability in determining appropriate mitigation measures.
    NMFS reviewed the proposed activities and the proposed mitigation 
measures as described in the Navy's LOA application to determine if 
they would result in the least practicable adverse effect on marine 
mammal species or stocks. NMFS described the Navy's proposed mitigation 
measures in detail in the proposed rule (81 FR 9950, 9978-86; February 
26, 2016). As described below and in responses to comments, and in the 
GOA FSEIS/OEIS, some additional measures were also considered and 
analyzed. Time/area specific mitigation measures considered by the Navy 
and NMFS for the Navy's low use of hull-mounted mid-frequency active 
sonar and explosives activities in certain areas of particular 
importance to specific marine mammals have been clarified and described 
below (see ``Consideration of Time/Area Limitations'') and in the 
``Comments and Responses'' section of this rule. This final rule 
includes the adoption of a new ``Cautionary Area'' for North Pacific 
right whales. This additional time/area specific measure is also 
included in the regulatory text (see Sec.  218.154 Mitigation) at the 
end of this rule. Other additional mitigation measures were considered 
but ultimately not chosen for implementation because they were unlikely 
to reduce impacts to marine mammals or implementation was considered 
unacceptable with regard to personal safety, practicality of 
implementation, and impact on effectiveness of the military readiness 
activity. Separately, as mentioned previously, live MISSILEX exercises 
were eliminated from the Navy's proposed activities covered under this 
Final Rule and, therefore, the associated mitigation measures for live 
MISSILEX exercises that were included in the proposed rule have been 
removed from the Final Rule. In addition, further details were added to 
one of the mitigation zones regarding close approaches to marine 
mammals by vessels to clarify when it is applicable.
    Below are the mitigation measures as agreed upon by the Navy and 
NMFS. For additional details regarding the Navy's mitigation measures, 
see the ``Proposed Mitigation'' section of the

[[Page 19540]]

proposed rule (81 FR 9950, 9978-86; February 26, 2016) and Chapter 5 in 
the GOA FSEIS/OEIS.

Lookouts

    The Navy shall have two types of Lookouts for the purposes of 
conducting visual observations: Those positioned on ships; and those 
positioned ashore, in aircraft, or on small boats. Lookouts positioned 
on ships shall diligently observe the air and surface of the water. 
They shall have multiple observation objectives, which include but are 
not limited to detecting the presence of biological resources and 
recreational or fishing boats, observing the mitigation zones, and 
monitoring for vessel and personnel safety concerns.
    Due to manning and space restrictions on aircraft, small boats, and 
some Navy ships, Lookouts for these platforms may be supplemented by 
the aircraft crew or pilot, boat crew, range site personnel, or shore-
side personnel. Lookouts positioned in minimally manned platforms may 
be responsible for tasks in addition to observing the air or surface of 
the water (e.g., navigation of a helicopter or small boat). However, 
all Lookouts shall, considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the activity, comply 
with the observation objectives described above for Lookouts positioned 
on ships.
    The procedural measures described in the remainder of this section 
primarily consist of having Lookouts during specific training 
activities.
    All personnel standing watch on the bridge, Commanding Officers, 
Executive Officers, maritime patrol aircraft aircrews, anti-submarine 
warfare helicopter crews, civilian equivalents, and Lookouts shall 
successfully complete the United States Navy Marine Species Awareness 
Training prior to standing watch or serving as a Lookout. Additional 
details on the Navy's Marine Species Awareness Training can be found in 
the GOA FSEIS/OEIS. The Navy shall use one or more Lookouts during the 
training activities described below, which are organized by stressor 
category.

Non-Impulsive Sound

Hull Mounted Mid-Frequency Active Sonar (MFAS)
    The Navy's previous Lookout mitigation measures during training 
activities involving hull-mounted MFAS in the GOA TMAA included 
requirements such as the number of personnel on watch and the manner in 
which personnel are to visually search the area in the vicinity of the 
ongoing activity. The Navy shall maintain the number of Lookouts 
required by the Phase I incidental take rule and LOA for the GOA TMAA 
for ships using hull-mounted MFAS.
    Ships using hull-mounted MFAS sources associated with ASW 
activities at sea (with the exception of ships less than 65 ft (20 m) 
in length, which are minimally manned) will have two Lookouts at the 
forward position. While using hull-mounted MFAS sources underway, 
vessels less than 65 ft (20 m) in length and ships that are minimally 
manned shall have one Lookout at the forward position due to space and 
manning restrictions.
High-Frequency and Non-Hull-Mounted Mid-Frequency Active Sonar
    The Navy plans to conduct activities using high-frequency and non-
hull-mounted MFAS in the Study Area. Non-hull-mounted MFAS training 
activities include the use of aircraft deployed sonobuoys, helicopter 
dipping sonar, and submarine sonar. During those activities, the Navy 
shall employ the following mitigation measures regarding Lookout 
procedures:
     Navy aircraft participating in exercises at sea shall 
conduct and maintain, when operationally feasible and safe, 
surveillance for marine species of concern as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties.
     Helicopters shall observe/survey the vicinity of an ASW 
training event for 10 minutes before the first deployment of active 
(dipping) sonar in the water.
    The Navy shall continue to use the number of Lookouts (one) 
required by the Phase I incidental take rule and LOA for the GOA TMAA 
for ships or aircraft conducting non-hull-mounted MFA sonar activities.
    The Phase I incidental take rule and LOA for the GOA TMAA did not 
include mitigation measures for other high-frequency active sonar 
activities associated with ASW, or for new platforms; therefore, the 
Navy shall add a new Lookout and other measures for these activities 
and on these platforms when conducted in the Study Area. The measure 
is: The Navy shall have one Lookout on ships conducting high-frequency 
or non-hull mounted mid-frequency active sonar activities associated 
with ASW activities at sea.

Explosives and Impulsive Sound

Improved Extended Echo Ranging Sonobuoys
    The Navy is not proposing use of Improved Extended Echo Ranging 
Sonobuoys during the GOA TMAA training activities.
Explosive Signal Underwater Sound Buoys Using >0.5-2.5 Pound Net 
Explosive Weight
    The previous, and first, incidental take rule and LOA (Phase I) for 
the GOA TMAA did not include lookout measures for explosive signal 
underwater sound (SUS) buoy activities using >0.5-2.5 pound (lb.) NEW. 
The Navy shall add this measure. Aircraft conducting SUS activities 
using >0.5-2.5 lb. NEW will have one Lookout.
Gunnery Exercises--Small-, Medium-, and Large-Caliber Using a Surface 
Target
    The following Lookout procedures during gunnery exercises are 
included:
     From the intended firing position, trained Lookouts shall 
survey the mitigation zone for marine mammals prior to commencement and 
during the exercise as long as practicable.
     Target towing vessels shall maintain a Lookout. If a 
marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    The Navy shall continue using these Lookout procedures previously 
implemented for this activity. The Navy shall have one Lookout on the 
vessel or aircraft conducting small-, medium-, or large-caliber gunnery 
exercises against a surface target. Towing vessels shall also maintain 
one Lookout.
Missile Exercises Using a Surface Target
    The following Lookout procedures during missile exercises are 
included:
     Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 ft (457 m) or lower, if safe to do so, and at slowest safe 
speed.
     Firing or range clearance aircraft must be able to 
actually see ordnance impact areas.
    The Navy shall continue using the Lookout procedures previously 
implemented for this activity. When aircraft are conducting missile 
exercises against a surface target, the Navy shall have one Lookout 
positioned in an aircraft.
Bombing Exercises (Explosive)
    The following Lookout procedures during bombing exercises are 
included:
     If surface vessels are involved, Lookouts shall survey for 
floating kelp and marine mammals.
     Aircraft shall visually survey the target and mitigation 
zone for marine

[[Page 19541]]

mammals prior to and during the exercise. The survey of the impact area 
shall be made by flying at 1,500 ft (460 m) or lower, if safe to do so, 
and at the slowest safe speed. Release of ordnance through cloud cover 
is prohibited: aircraft must be able to actually see ordnance impact 
areas. Survey aircraft should employ most effective search tactics and 
capabilities.
    The Navy shall continue implementing these measures for bombing 
exercises, and shall have one Lookout positioned in an aircraft 
conducting bombing exercises, and trained Lookouts in any surface 
vessels involved.
Weapons Firing Noise During Gunnery Exercises
    The Navy shall continue using the number of Lookouts previously 
required by the Phase I GOA incidental take rule and LOA for gunnery 
exercises. The Navy shall have one Lookout on the ship conducting 
explosive and non-explosive gunnery exercises. This may be the same 
Lookout described for Gunnery Exercises--Small-, Medium-, and Large-
Caliber Using a Surface Target when that activity is conducted from a 
ship against a surface target.
Physical Disturbance and Strike
Vessels
    The Navy shall employ the following Lookout procedures to avoid 
physical disturbance and strike of marine mammals during at-sea 
training:
     While underway, surface vessels shall have at least one 
Lookout with binoculars, and surfaced submarines shall have at least 
one Lookout with binoculars. Lookouts already posted for safety of 
navigation and man-overboard precautions may be used to fill this 
requirement. As part of their regular duties, Lookouts will watch for 
and report to the Officer of the Deck the presence of marine mammals.
Non-Explosive Practice Munitions
Gunnery Exercises--Small-, Medium-, and Large-Caliber Using a Surface 
Target
    The Navy employs the same mitigation measures for non-explosive 
practice munitions--small-, medium-, and large-caliber gunnery 
exercises--as described above for Gunnery Exercises--Small-, Medium-, 
and Large-Caliber Using a Surface Target.
    The Navy shall continue using the number of Lookouts previously 
implemented for these activities pursuant to the Phase I incidental 
take rule and LOA for the GOA TMAA. The Navy shall have one Lookout 
during activities involving non-explosive practice munitions (e.g., 
small-, medium-, and large-caliber gunnery exercises) against a surface 
target.
Missile Exercises Using a Surface Target
    No MISSILEX using live ordnance will be conducted in GOA. When 
aircraft are conducting non-explosive missile exercises (including 
exercises using rockets) against a surface target, the Navy shall have 
one Lookout positioned in an aircraft.
Bombing Exercises (Non-explosive)
    The Navy employs the same mitigation measures for non-explosive 
bombing exercises as described for Bombing Exercises (Explosive).
    The Navy shall continue using the same Lookout procedures 
previously implemented for these activities pursuant to the Phase I 
incidental take rule and LOA for the GOA TMAA. The Navy will have one 
Lookout positioned in an aircraft during non-explosive bombing 
exercises, and trained Lookouts in any surface vessels involved.
Mitigation Zones
    The Navy shall use mitigation zones to reduce the potential impacts 
to marine mammals from training activities. Mitigation zones are 
measured as the radius from a source. Unique to each activity category, 
each radius represents a distance that the Navy will visually observe 
to help reduce injury to marine species. Visual detections of 
applicable marine species will be communicated immediately to the 
appropriate watch station for information dissemination and appropriate 
action. If the presence of marine mammals is detected acoustically, 
Lookouts posted in aircraft and on surface vessels will increase the 
vigilance of their visual surveillance. As a reference, aerial surveys 
are typically made by flying at 1,500 ft (457 m) altitude or lower at 
the slowest safe speed.
    Many of the proposed activities have mitigation measures that were 
implemented during the Navy's Phase I activities in the GOA TMAA as 
required by previous environmental documents or consultations. Most of 
the mitigation zones for activities that involve the use of impulsive 
and non-impulsive sources were originally designed to reduce the 
potential for onset of TTS. For the GOA FSEIS/OEIS and the LOA 
application, the Navy updated the acoustic propagation modeling to 
incorporate updated hearing threshold metrics (i.e., upper and lower 
frequency limits), updated density data for marine mammals, and factors 
such as an animal's likely presence at various depths. An explanation 
of the acoustic propagation modeling process can be found in the 
Determination of Acoustic Effects on Marine Mammals for the Gulf of 
Alaska Training SEIS/OEIS Technical Report (Marine Species Modeling 
Team, 2015). Additionally, since publication of the proposed rule, the 
Navy re-evaluated the range to effects in consideration of the acoustic 
thresholds in NMFS' new Guidance, which resulted in larger ranges for 
some explosive sources.
    As a result of the updates described above, in some cases the 
ranges to onset of TTS effects are much larger than previous model 
outputs (i.e., those used in the first GOA rule (76 FR 25480; May 4, 
2011)). Due to the ineffectiveness and unacceptable operational impacts 
associated with enlarging the mitigation zones to alleviate impacts in 
these larger areas, the Navy is unable to mitigate for onset of TTS for 
every activity. For this GOA TMAA analysis, the Navy developed each 
recommended mitigation zone to avoid or reduce the potential for onset 
PTS, out to the predicted maximum range. In some cases, where the 
ranges to effects are smaller than previous models estimated, the 
mitigation zones were adjusted accordingly to provide consistency 
across the measures. Mitigating to the predicted maximum range to PTS 
consequently also mitigates to the predicted maximum range to onset 
mortality (1 percent mortality), onset slight lung injury, and onset 
slight gastrointestinal tract injury, since the maximum range to 
effects for these criteria are shorter than for PTS. Furthermore, in 
most cases, the predicted maximum range to PTS also consequently covers 
the predicted average range to TTS. Table 6 summarizes the predicted 
average range to TTS, average range to PTS, maximum range to PTS, and 
recommended mitigation zone for each activity category, based on the 
Navy's acoustic propagation modeling results and updated by 
consideration of the new acoustic guidance.
    The activity-specific mitigation zones are based on the longest 
range for all the functional hearing groups. The mitigation zone for a 
majority of activities is driven by either the high-frequency cetaceans 
or the sea turtles functional hearing groups. Therefore, the mitigation 
zones are even more protective for the remaining functional hearing 
groups (i.e., low-frequency cetaceans, mid-frequency cetaceans, and 
pinnipeds), and likely cover a larger

[[Page 19542]]

portion of the potential range to onset of TTS.
    Table 6 includes explosive ranges to TTS and the onset of auditory 
injury, non-auditory injury, slight lung injury, and mortality. For 
every source but one proposed for use by the Navy, the mitigation zones 
included in Table 6 exceed each of these ranges. The TTS range for 
BOMBEX is larger than the mitigation zone. The mitigation zones and 
their associated assessments are provided throughout the remainder of 
this section.

                            Table 6--Predicted Ranges to Effects and Recommended Mitigation Zones for Each Activity Category
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Representative source   Predicted  (longest)    Predicted  (longest)    Predicted  maximum
         Activity  category                 (Bin) \1\         average range to TTS    average range to PTS       range to PTS       Mitigation zone \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Non-Impulse Sound
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hull-Mounted Mid-Frequency Active    SQS-53 ASW hull-        3,821 yd. (3,493 m)     100 yd. (91 m) for     Not applicable.......  6 dB power down at
 Sonar.                               mounted sonar (MF1).    for one ping.           one ping.                                     1,000 yd. (914 m); 4
                                                                                                                                    dB power down at 500
                                                                                                                                    yd. (457 m); and
                                                                                                                                    shutdown at 200 yd.
                                                                                                                                    (183 m).
High-Frequency and Non-Hull Mounted  AQS-22 ASW dipping      230 yd. (210 m) for     20 yd. (18 m) for one  Not applicable.......  200 yd. (183 m).
 Mid-Frequency Active Sonar.          sonar (MF4).            one ping.               ping.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Explosive and Impulse Sound
--------------------------------------------------------------------------------------------------------------------------------------------------------
Signal Underwater Sound (SUS) buoys  Explosive sonobuoy      290 yd. (265 m).......  113 yd. (103 m)......  309 yd. (283 m)......  350 yd. (320 m).
 using >0.5-2.5 lb. NEW.              (E3).
Gunnery Exercises--Small- and        40 mm projectiles (E2)  190 yd. (174 m).......  83 yd. (76 m)........  182 yd. (167 m)......  200 yd. (183 m).
 Medium-Caliber (Surface Target).
Gunnery Exercises--Large-Caliber     5 in. projectiles (E5)  771 yd. (705 m).......  327 yd. (299 m)......  327 yd. (299 m)......  600 yd. (549 m).
 (Surface Target) \3\.
Bombing Exercises \4\..............  MK-84 2,000 lb. (E12).  5,430 yd. (4,965 m)...  1,772 yd. (1,620 m)..  1,851 yd. (1,693 m)..  2,500 yd. (2,286 m).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This table does not provide an inclusive list of all sources in a given bins; bins presented here represent the source bin with the largest range to
  effects within the given activity category.
\2\ Recommended mitigation zones are larger than the modeled injury zones to account for multiple types of sources or charges being used. See Section
  5.3.2 of the GOA FSEIS/OEIS and Section 11.2 of the LOA application (Mitigation Zone Procedural Measures) for a general discussion of mitigation
  zones, how they are implemented, and the potential effects they are designed to reduce; see Chapter 11 of the LOA application for a discussion of the
  biological effectiveness and operational assessments for each activity's recommended mitigation zone.
\3\ Bin E5 TTS Value corrected from Proposed Rule table to reflect correct GOA-specific value for average TTS (Table 3.8-18 of the GOA FSEIS/OEIS). PTS
  re-assessed using NOAA's August 2016 revised explosive acoustic criteria applicable to the most sensitive functional hearing group. PTS value for bin
  E5 was lower than previously modeled range, so TTS not recalculated and TTS value from previous model shown as conservative (over predictive) value.
  Lower weight bins re-assessed similarly did not result in any values larger than existing values shown.
\4\ Bin E12 PTS and TTS re-assessed using NOAA's August 2016 revised explosive acoustic criteria applicable to the most sensitive functional hearing
  group.
Notes: lb. = pounds, m = meters, yd. = yards; PTS = Permanent Threshold Shift, TTS = Temporary Threshold Shift.

    For some activities specified throughout the remainder of this 
section, Lookouts may be required to observe for concentrations of 
detached floating vegetation (Sargassum or kelp paddies), which are 
indicators of potential marine mammal presence within the mitigation 
zone. Those specified activities will not commence if floating 
vegetation (Sargassum or kelp paddies) is observed within the 
mitigation zone prior to the initial start of the activity. If floating 
vegetation is observed prior to the initial start of the activity, the 
activity will be relocated to an area where no floating vegetation is 
observed. Training will not cease as a result of floating vegetation 
entering the mitigation zone after activities have commenced. This 
measure is intended only for floating vegetation detached from the 
seafloor.
Non-Impulsive Sound
Hull-Mounted Mid-Frequency Active Sonar
    Activities that involve the use of hull-mounted MFA sonar will use 
Lookouts for visual observation from a ship immediately before and 
during the activity. Mitigation zones for these activities involve 
powering down the sonar by 6 dB when a marine mammal is sighted within 
1,000 yd (914 m) of the sonar dome, and by an additional 4 dB when 
sighted within 500 yd (457 m) from the source, for a total reduction of 
10 dB. Active transmissions will cease if a marine mammal is sighted 
within 200 yd (183 m). Active transmission will recommence if any one 
of the following conditions is met: (1) The animal is observed exiting 
the mitigation zone, (2) the animal is thought to have exited the 
mitigation zone based on its course and speed, (3) the mitigation zone 
has been clear from any additional sightings for a period of 30 
minutes, (4) the ship has transited more than 2,000 yd (1.8 km) beyond 
the location of the last sighting, or (5) the ship concludes that 
dolphins are deliberately closing in on the ship to ride the ship's bow 
wave (and there are no other marine mammal sightings within the 
mitigation zone). Active transmission may resume when dolphins are bow 
riding because they are out of the main transmission axis of the active 
sonar while in the shallow-wave area of the ship bow.
High-Frequency and Non-Hull-Mounted Mid-Frequency Active Sonar
    Mitigation will include visual observation from a vessel or 
aircraft (with the exception of platforms operating at high altitudes) 
immediately before and during active transmission within a mitigation 
zone of 200 yd (183 m) from the active sonar source. For activities 
involving helicopter deployed

[[Page 19543]]

dipping sonar, visual observation will commence 10 minutes before the 
first deployment of active dipping sonar. Helicopter dipping and 
sonobuoy deployment will not begin if concentrations of floating 
vegetation (kelp paddies), are observed in the mitigation zone. If the 
source can be turned off during the activity, active transmission will 
cease if a marine mammal is sighted within the mitigation zone. Active 
transmission will recommence if any one of the following conditions is 
met: (1) The animal is observed exiting the mitigation zone, (2) the 
animal is thought to have exited the mitigation zone based on its 
course and speed, (3) the mitigation zone has been clear from any 
additional sightings for a period of 10 minutes for an aircraft-
deployed source, (4) the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes for a vessel-deployed 
source, (5) the vessel or aircraft has repositioned itself more than 
400 yd (370 m) away from the location of the last sighting, or (6) the 
vessel concludes that dolphins are deliberately closing in to ride the 
vessel's bow wave (and there are no other marine mammal sightings 
within the mitigation zone).
Explosives and Impulsive Sound
Explosive Signal Underwater Sound Buoys Using >0.5-2.5 Pound Net 
Explosive Weight
    Mitigation will include pre-exercise aerial monitoring during 
deployment within a mitigation zone of 350 yd (320 m) around an 
explosive SUS buoy. Explosive SUS buoys will not be deployed if 
concentrations of floating vegetation (kelp paddies) are observed in 
the mitigation zone (around the intended deployment location). SUS 
deployment will cease if a marine mammal is sighted within the 
mitigation zone. Deployment will recommence if any one of the following 
conditions is met: (1) The animal is observed exiting the mitigation 
zone, (2) the animal is thought to have exited the mitigation zone 
based on its course and speed, or (3) the mitigation zone has been 
clear from any additional sightings for a period of 10 minutes.
    Passive acoustic monitoring will also be conducted with Navy 
assets, such as sonobuoys, already participating in the activity. These 
assets would only detect vocalizing marine mammals within the frequency 
bands monitored by Navy personnel. Passive acoustic detections would 
not provide range or bearing to detected animals, and therefore cannot 
provide locations of these animals. Passive acoustic detections would 
be reported to Lookouts posted in aircraft in order to increase 
vigilance of their visual surveillance.
Gunnery Exercises--Small- and Medium-Caliber Using a Surface Target
    Mitigation will include visual observation from a vessel or 
aircraft immediately before and during the exercise within a mitigation 
zone of 200 yd (183 m) around the intended impact location. Vessels 
will observe the mitigation zone from the firing position. When 
aircraft are firing, the aircrew will maintain visual watch of the 
mitigation zone during the activity. The exercise will not commence if 
concentrations of floating vegetation (kelp paddies) are observed in 
the mitigation zone. Firing will cease if a marine mammal is sighted 
within the mitigation zone. Firing will recommence if any one of the 
following conditions is met: (1) The animal is observed exiting the 
mitigation zone, (2) the animal is thought to have exited the 
mitigation zone based on its course and speed, (3) the mitigation zone 
has been clear from any additional sightings for a period of 10 minutes 
for a firing aircraft, (4) the mitigation zone has been clear from any 
additional sightings for a period of 30 minutes for a firing ship, or 
(5) the intended target location has been repositioned more than 400 yd 
(366 m) away from the location of the last sighting.
Gunnery Exercises--Large-Caliber Explosive Rounds Using a Surface 
Target
    Mitigation will include visual observation from a ship immediately 
before and during the exercise within a mitigation zone of 600 yd (549 
m) around the intended impact location. Ships will observe the 
mitigation zone from the firing position. The exercise will not 
commence if concentrations of floating vegetation (kelp paddies) are 
observed in the mitigation zone. Firing will cease if a marine mammal 
is sighted within the mitigation zone. Firing will recommence if any 
one of the following conditions is met: (1) The animal is observed 
exiting the mitigation zone, (2) the animal is thought to have exited 
the mitigation zone based on its course and speed, or (3) the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes.
Bombing Exercises (Explosive)
    During Phase I activities, the Navy employed the following 
mitigation zone procedures during bombing exercises:
     Explosive ordnance shall not be targeted to impact within 
2,500 yd (2.3 km) of known or observed floating kelp or marine mammals.
     A 2,500 yd (2.3 km) radius mitigation zone shall be 
established around the intended target.
     The exercise will be conducted only if marine mammals are 
not visible within the mitigation zone.
    The Navy will (1) maintain the previously required mitigation zone 
to be used for non-explosive bombing activities, (2) revise the 
mitigation zone procedures to account for predicted ranges to impacts 
to marine species when high explosive bombs are used, and (3) add a 
requirement to visually observe for kelp paddies.
    Mitigation will include visual observation from the aircraft 
immediately before the exercise and during target approach within a 
mitigation zone of 2,500 yd (2.3 km) around the intended impact 
location for explosive bombs and 1,000 yd (920 m) for non-explosive 
bombs. The exercise will not commence if concentrations of floating 
vegetation (kelp paddies) are observed in the mitigation zone. Bombing 
will cease if a marine mammal is sighted within the mitigation zone. 
Bombing will recommence if any one of the following conditions is met: 
(1) The animal is observed exiting the mitigation zone, (2) the animal 
is thought to have exited the mitigation zone based on its course and 
speed, or (3) the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes.
Weapons Firing Noise During Gunnery Exercises--Large-Caliber
    The Navy employed no mitigation zone procedures for this activity 
in the Study Area during Phase I training activities in the GOA TMAA.
    For Phase II activities, the Navy will adopt measures currently 
used during Navy gunnery exercises in other ranges outside of the Study 
Area. For all explosive and non-explosive large-caliber gunnery 
exercises conducted from a ship, mitigation will include visual 
observation immediately before and during the exercise within a 
mitigation zone of 70 yd (64 m) within 30 degrees on either side of the 
gun target line on the firing side. The exercise will not commence if 
concentrations of floating vegetation (kelp paddies) are observed in 
the mitigation zone. Firing will cease if a marine mammal is sighted 
within the mitigation zone. Firing will recommence if any one of the 
following conditions is met: (1) The animal is observed exiting the 
mitigation zone, (2) the animal is thought to have exited the 
mitigation zone based on its course and

[[Page 19544]]

speed, (3) the mitigation zone has been clear from any additional 
sightings for a period of 30 minutes, or (4) the vessel has 
repositioned itself more than 140 yd (128 m) away from the location of 
the last sighting.
Physical Disturbance and Strike
Vessels
    The Navy will use a 500 yd (457 m) mitigation zone for whales, and 
a 200 yd (183 m) mitigation zone for all other marine mammals. Vessels 
will avoid approaching marine mammals head on and will maneuver to 
maintain a mitigation zone of 500 yd (457 m) around observed whales and 
200 yd (183 m) around all other marine mammals (except bow-riding 
dolphins), providing it is safe to do so. These requirements will not 
apply if a vessel's safety is threatened, such as when change of course 
will create an imminent and serious threat to a person, vessel, or 
aircraft, and to the extent vessels are restricted in their ability to 
maneuver. Restricted maneuverability includes, but is not limited to, 
situations when vessels are engaged in dredging, submerged activities, 
launching and recovering aircraft or landing craft, minesweeping 
activities, replenishment while underway, and towing activities that 
severely restrict a vessel's ability to deviate course. While in 
transit, Navy vessels shall be alert at all times, use extreme caution, 
and proceed at a ``safe speed'' so that the vessel can take proper and 
effective action to avoid a collision with any sighted object or 
disturbance, including any marine mammal or sea turtle, and can be 
stopped within a distance appropriate to the prevailing circumstances 
and conditions.
Towed In-Water Devices
    The Navy employed no mitigation zone procedures for this activity 
in the Study Area during Phase I training activities in the GOA TMAA.
    During Phase II activities in the GOA TMAA, the Navy will adopt 
measures currently used in other ranges outside of the Study Area 
during activities involving towed in-water devices. The Navy will 
ensure that towed in-water devices being towed from manned platforms 
avoid coming within a mitigation zone of 250 yd (229 m) around any 
observed marine mammal, providing it is safe to do so.
Non-Explosive Practice Munitions
Gunnery Exercises--Small-, Medium-, and Large-Caliber Using a Surface 
Target
    The Navy will employ the same mitigation measures for non-explosive 
gunnery exercises as described above for Gunnery Exercises--Small-, 
Medium-, and Large-Caliber Using a Surface Target.
    Mitigation will include visual observation from a vessel or 
aircraft immediately before and during the exercise within a mitigation 
zone of 200 yd (183 m) around the intended impact location. The 
exercise will not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing will cease 
if a marine mammal is sighted within the mitigation zone. Firing will 
recommence if any one of the following conditions is met: (1) The 
animal is observed exiting the mitigation zone, (2) the animal is 
thought to have exited the mitigation zone based on its course and 
speed, (3) the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes for a firing aircraft, (4) the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes for a firing ship, or (5) the intended target 
location has been repositioned more than 400 yd (366 m) away from the 
location of the last sighting.
Bombing Exercises (Non-explosive)
    Mitigation will include visual observation from the aircraft 
immediately before the exercise and during target approach within a 
mitigation zone of 1,000 yd (914 m) around the intended impact 
location. The exercise will not commence if concentrations of floating 
vegetation (kelp paddies) are observed in the mitigation zone. Bombing 
will cease if a marine mammal is sighted within the mitigation zone. 
Bombing will recommence if any one of the following conditions is met: 
(1) The animal is observed exiting the mitigation zone, (2) the animal 
is thought to have exited the mitigation zone based on its course and 
speed, or (3) the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes.
Consideration of Time/Area Limitations
Biologically Important Areas
    The Navy's and NMFS' analysis of effects to marine mammals 
considers the best available science regarding locations where 
cetaceans are known to engage in specific activities (e.g., feeding, 
breeding/calving, or migration) at certain times of the year that are 
important to individual animals as well as populations of marine 
mammals or where small resident populations may be found (see 
discussion in Van Parijs, 2015). Where data were available, Van Parijs 
(2015) identified areas that are important in this way and named the 
areas Biologically Important Areas (BIAs). It is important to note that 
the BIAs were not meant to define exclusionary zones, nor were they 
meant to be locations that serve as sanctuaries from human activity, or 
areas analogous to marine protected areas (see Ferguson et al. (2015a) 
regarding the envisioned purpose for the BIA designations). NMFS' 
recognition of an area as biologically important for some species 
activity is not equivalent to designation of critical habitat under the 
Endangered Species Act (ESA). Furthermore, the BIAs identified by NMFS 
in and around the Study Area do not represent the totality of important 
habitat throughout the marine mammals' full range. The delineation of 
BIAs does not have direct or immediate regulatory consequences, 
although it is appropriate to consider them as part of the body of 
science that may inform mitigation decisions, depending on the 
circumstances. The intention was that the BIAs would serve as resource 
management tools and that they be considered along with, and not to the 
exclusion of, ``existing density estimates, range-wide distribution 
data, information on population trends and life history parameters, 
known threats to the population, and other relevant information'' (Van 
Parijs, 2015). The Navy and NMFS have supported and will continue to 
support the Cetacean and Sound Mapping project, including 
representation on the Cetacean Density and distribution Working Group 
(CetMap), which informed NMFS' identification of BIAs. The same marine 
mammal density data present in the Navy's Marine Species Density 
Database Technical Report (U.S. Department of the Navy, 2014) and used 
in the analysis for the GOA SEIS/OEIS was used in the development of 
BIAs. The final products, including the Gulf of Alaska BIAs, from this 
mapping effort were completed and published in March 2015 (Aquatic 
Mammals, 2015; Calambokidis et al., 2015; Ferguson et al., 2015a, 
2015b; Van Parijs, 2015). 131 BIAs for 24 marine mammal species, 
stocks, or populations in seven regions within U.S. waters were 
identified (Ferguson et al., 2015a). BIAs have been identified in the 
Gulf of Alaska and include migration and feeding areas for gray whale 
and North Pacific right whale, respectively. Fin whale feeding areas

[[Page 19545]]

(east, west, and southwest of Kodiak Island) occur to the west of the 
GOA TMAA and gray whale feeding areas occur both east (Southeast 
Alaska) and west (Kodiak Island) of the GOA TMAA; however, these 
feeding areas are located well outside of (>20 nautical miles) the 
Study Area and beyond the Navy's estimated range to effects for Level A 
and B harassment.
    NMFS' Office of Protected Resources routinely considers available 
information about marine mammal habitat use to inform discussions with 
applicants regarding potential spatio-temporal limitations on their 
activities that might help effect the least practicable adverse impact 
on species or stocks and their habitat. BIAs are useful tools for 
planning and impact assessments and are being provided to the public 
via this Web site: www.cetsound.noaa.gov. While these BIAs are useful 
tools for analysts, any decisions regarding protective measures based 
on these areas must go through the normal MMPA evaluation process (or 
any other statutory process that the BIAs are used to inform); the 
identification of a BIA does not pre-suppose any specific management 
decision associated with those areas, nor does it have direct or 
immediate regulatory consequences. NMFS and the Navy have discussed the 
BIAs listed above, what Navy activities take place in these areas (in 
the context of what their effects on marine mammals might be or whether 
additional mitigation is necessary), and what measures could be 
implemented to reduce impacts in these areas (in the context of their 
potential to reduce marine mammal species or stock-level impacts and 
their practicability). An assessment of the potential spatio-temporal 
and activity overlap of Navy training activities with the Gulf of 
Alaska BIAs listed above is included below and in Chapter 3.8 of the 
GOA FSEIS/OEIS. If, through the adaptive management process or 
otherwise, it becomes apparent that certain other time-area measures 
are warranted or are practicable, NMFS and Navy will evaluate these 
measures within the context of the least practicable impact 
requirement.
    Spatial and Temporal Overlap with North Pacific Right Whale Feeding 
Area--The feeding area for North Pacific right whales (see Ferguson et 
al., 2015b) overlaps slightly with the GOA TMAA's southwestern corner. 
This feeding area is applicable from June to September so there is 
temporal overlap with the proposed Navy training but there is minimal 
spatial overlap between this feeding area and the GOA TMAA (see Figure 
3.8-2 of the GOA FSEIS/OEIS).
    Given their current extremely low population numbers (the North 
Pacific right whale is one of the most endangered whale species in the 
world with approximately 31 individuals) and the general lack of 
sightings in the Gulf of Alaska, the occurrence of right whales in the 
GOA TMAA is considered rare. North Pacific right whales have not been 
visually detected in the GOA TMAA since at least the 1960s and there 
are no current known detections in the portion of the feeding area that 
overlaps with the GOA TMAA. The Quinn Seamount passive acoustic 
detections in summer 2013 ([Scaron]irovi[cacute] et al., 2014) are the 
only known potential occurrence records of this species in the GOA TMAA 
in recent years. The Navy's effects analysis predicts the potential for 
up to only three Level B behavioral takes annually to North Pacific 
right whales. These takes are reflected in this final rule. This 
analysis was based on assigning a nominal North Pacific right whale 
density to the entire GOA TMAA to account for historic and potential 
future occurrence in all areas of the TMAA both onshelf and offshelf, 
and not just associated with the feeding area. However, as discussed 
above, North Pacific right whales have only potentially been detected 
in a small portion of the GOA TMAA. Therefore, this predicted level of 
take is highly conservative.
    Spatial and Temporal Overlap with Gray Whale Migratory Area--The 
migration area for gray whales, which was bounded by the extent of the 
continental shelf (as provided in Ferguson et al., 2015b), has slight 
(approximately 1 percent) overlap with the GOA TMAA at its northernmost 
corner and western edge (see Ferguson et al., 2015b; See Figure 3.8-4 
of the GOA FSEIS/OEIS). However, this migration area is applicable only 
between March to May (Spring) and November to January (Fall) (Ferguson 
et al., 2015b). This gray whale migration area would not be applicable 
during the months when training has historically occurred (June/July) 
and would have minimal temporal overlap with most of the proposed 
timeframe (April to October; summer) for Navy training in the GOA TMAA. 
The Navy's acoustic analysis did not predict any takes of gray whales 
in the GOA TMAA based on acoustic effects modeling that considered gray 
whale occurrence and density as well as the types and quantities of 
Navy training being authorized, and NMFS is not authorizing any takes 
of this species (see Group and Species-Specific Analysis section later 
in this final rule).
    Analysis of Potential Training Overlap with BIAs--The Location of 
the GOA TMAA affords aircraft from Navy carrier strike groups 
supporting joint exercises with the Air Force ability to reach inland 
established Air Force and Army instrumented land ranges where they 
conduct air to air ground training. The location of the GOA TMAA also 
allows appropriate distance limitations to support Air Force aircraft 
reaching the TMAA without needing to refuel to conduct training at sea 
with the carrier strike group. Therefore, the GOA TMAA as currently 
sited is dependent on these location-specific factors to satisfy safety 
and practicality concerns. However, it is unlikely that Navy training 
using hull-mounted mid-frequency active sonar or explosives training 
would occur in these nearshore locations adjacent to the GOA TMAA 
boundary where the overlap with BIAs occurs. To ensure that the Navy is 
able to conduct realistic training, Navy units must maintain sufficient 
room to maneuver. Therefore, training activities using sonar and 
explosives will typically take place some distance away from an 
operating area boundary to ensure sufficient sea or air space is 
available for tactical maneuvers within an approved operating area such 
as the GOA TMAA. The Navy also does not typically train next to any 
limiting boundary of the GOA TMAA because it precludes tactical 
consideration of the adjacent sea space and airspace beyond the 
boundary from being a potential threat axis during activities such as 
anti-submarine warfare training. It is also the case that Navy training 
activities will generally not be located where it is likely there would 
be interference from civilian vessels and aircraft that are not 
participating in the training activity. The nearshore boundary of the 
GOA TMAA is the location for multiple commercial vessel transit lanes, 
ship traffic, and low-altitude air routes, which all pass through the 
feeding area and the migration area (see Figure 3.8-9 of the GOA FSEIS/
OEIS). This level of civilian activity may otherwise conflict with Navy 
training activities if those Navy activities were located at that 
margin of the GOA TMAA and as a result such an area is generally 
avoided. There are northeastern and northwestern areas of the GOA TMAA, 
portions of which overlap the BIAs, that could be used for other non-
acoustic and non-explosive Navy training events, including vessel 
movements. As detailed in the GOA FSEIS/OEIS, these could include up to 
24 Visit, Board,

[[Page 19546]]

Search, and Seizure training activities and 28 Maritime Interdiction 
training activities which often interact with participating contracted 
commercial vessels homeported out Gulf of Alaska ports (e.g., Kodiak, 
Homer, etc.).
    Conclusion for North Pacific Right Whale BIA--After evaluating the 
potential training overlap with the North Pacific right whale BIA and 
the activities expected to result in the take of this species, the 
endangered status of the species, the extremely small numbers of North 
Pacific right whales, and the practicability of implementation, NMFS is 
requiring--and Navy has agreed to--a North Pacific right whale 
``Cautionary Area'' between June and September in the overlapping 2,051 
km\2\ portion of the North Pacific right whale feeding area (See Figure 
3.8-4 of the GOA FSEIS/OEIS), in which the Navy would agree no hull-
mounted sonar or explosives would be used within the portion of the 
feeding area that overlaps the Navy's GOA TMAA during those months. In 
the event of national security needs, the Navy would be required to 
seek approval in advance from the Commander, U.S. Third Fleet prior to 
conducting training activities using sonar or explosives. NMFS believes 
that implementation of this North Pacific right whale Cautionary Area 
within the GOA TMAA may provide additional protection of this species 
and stock beyond the mitigation measures already proposed by the Navy 
in the proposed rule and GOA FSEIS/OEIS, especially when factoring in 
their small population size, the status and abundance of the stock 
(well below its Optimum Sustainable Population (Muto et al., 2016)), 
and the extremely limited current information about this species. NMFS 
believes that this additional mitigation measure may contribute to 
reducing the number of individual North Pacific right whales taken 
through exposure to MFAS/HFAS or underwater detonations in an area/time 
that is important for feeding, which could contribute to a reduction in 
the probability or severity of adverse impacts on the species or stock 
or their habitat.
    Conclusion for Gray Whale BIA--In the case of the gray whale 
migratory area, given the extremely minimal geographic and temporal 
overlap with Navy training activities in the GOA TMAA, coupled with the 
fact that no takes of gray whale are predicted to occur with the 
proposed level of training effort, NMFS has determined that additional 
mitigation measures related to time/area limitations of Navy training 
activities within the overlapping portion of the migratory area would 
not contribute to any lessening of the likelihood of adverse impacts on 
the species or stocks or their habitat, and are therefore not warranted 
in the context of the least practicable impact standard.
Marine Protected Areas
    Marine protected areas (MPAs) in the National System of MPAs 
potentially occurring within the Study Area are listed and described in 
Section 6.1.2 of the GOA FSEIS/OEIS (Marine Protected Areas, Table 6.1-
2). As shown in Figure 6.1-1 of the GOA FSEIS/OEIS very few MPA are 
located within the GOA TMAA. MPAs vary widely in purpose, level of 
protection, and restrictions on human uses. As discussed in the GOA 
FSEIS/OEIS, MPAs in the vicinity of the GOA TMAA generally focus on 
natural heritage, fishery management, and sustainable production. The 
GOA FSEIS/OEIS has been prepared in accordance with the requirements to 
avoid harm to the natural and cultural resources of existing National 
System MPAs. The identified impacts and purpose for the designation of 
these areas is to limit or restrict specific fishing activities. Navy 
activities, should they occur within or near a MPA, would fully abide 
by the regulations of the individual MPA, including designated fishery 
management habitat protection areas, and relevant resources (in the 
case of the GOA TMAA, mainly restrictions on commercial and 
recreational fishing) (see Table 6.1-2 of the GOA FSEIS/OEIS for more 
information). Further, NMFS' issuance of an authorization to the Navy 
to take marine mammals would not conflict with the management, 
protection, or conservation objectives of these MPAs. Therefore, NMFS 
has determined that Navy avoidance of these areas is not warranted, nor 
would it contribute to the least practicable impact standard or any 
lessening of the likelihood of adverse impacts on species or stocks or 
their habitat.
Seamounts
    As with previous Navy Phase II proposed rulemakings, commenters 
have requested that the Navy avoid training activities in the vicinity 
of seamounts or seamount chains, which represent potentially important 
habitat for marine species. Numerous seamounts are located partially or 
wholly within the TMAA, including seamount habitat protection areas 
designated by the North Pacific Fishery Management Council to help 
maintain productivity of fishery resources. However, NMFS does not 
believe that Navy avoidance of these areas is warranted, or will 
contribute to the least practicable impact standard or any lessening of 
the likelihood of adverse impacts on marine mammal species or stocks 
for the following reasons:
    If marine mammals are known to prefer certain types of areas (as 
opposed to specific areas) for certain functions, such as beaked whale 
use of seamounts or marine mammal use of other productive areas, it is 
less effective to require avoidance or limited use of a specific area 
because marine mammals may or may not be present. NMFS recognizes the 
generally biologically productive nature of seamounts; however, there 
are no data to suggest that biologically important or species-specific 
marine mammal habitat (rookeries, reproductive, feeding) exists along 
seamounts within the GOA TMAA. While seamounts may represent important 
habitat for multiple species, the major seamounts located within the 
TMAA (e.g., Dall, Quinn, and Giacomini seamounts) have been designated 
by NOAA as Gulf of Alaska Seamount Habitat Protection Areas 
specifically to help maintain productivity of fisheries resources 
through restrictions on bottom fishing. Moreover, NMFS' review of the 
passive acoustic monitoring results in the Navy's annual monitoring 
reports (2011-2015, available at the Navy's Marine Species Monitoring 
web portal (http://www.navymarinespeciesmonitoring.us/)) for GOA 
generally does not suggest significantly greater use of these seamounts 
by marine mammals (at least for those where high-frequency acoustic 
recording packages (HARPs) were deployed; it is also important to note 
that an animal may be located several miles away from where it is 
detected) compared to other locations (shelf and slope) where 
detections were recorded. Navy monitoring efforts indicate that beaked 
whales appear to use both shelf and seamount sites, although detections 
were generally low at the monitored seamount sites within the TMAA and 
may be more prevalent at the slope site. During a summer 2013 visual 
and passive acoustic survey of the entire GOA TMAA, beaked whale 
passive acoustic detections were just as frequent over deep water 
abyssal plain areas of the TMAA as compared to slopes and seamounts 
(Rone et al., 2014). Fin and humpback callings peaked in winter when 
Navy activities are not proposed to occur. Fin and sperm whale 
detections were generally more prevalent at shelf and slope sites, 
respectively, while blue whale calls were detected at all sites. North 
Pacific right whale calls were last detected in

[[Page 19547]]

2013, on the Quinn Seamount site; however, analysis of these detections 
indicated that the calls were detected from ranges on the order of 
roughly up to 50 nm to the east of the site; the calling animal was not 
in the vicinity of Quinn Seamount (Debich et al., 2014; 
[Scaron]irovi[cacute] et al., 2014).
    The Navy has been training with sonar and other systems for decades 
in locations having seamounts or slope areas, or that are adjacent to 
continental shelfs where, to date, there has been no evidence of any 
long-term consequences for individuals or populations of marine mammals 
generally or around seamounts. This finding is based on years of 
research and monitoring that show, for example, higher densities and 
long-term residency by species such as beaked whales in Southern 
California, where the Navy trains and tests, than in other adjacent 
areas (Falcone et al., 2009; Falcone and Schorr, 2012, 2014; Hildebrand 
and McDonald, 2009). Further, the Navy has identified the need to train 
in varied bathymetric conditions, including around seamounts 
specifically, to afford realistic training. Restricting Navy 
maneuvering or sonar/explosives training in these areas would alter 
realistic training to a degree that could impede ability to have 
sufficient sea or air space for the necessary tactical maneuvers.
    When the impact on the effectiveness of the training is considered 
along with the facts described above (i.e., the fact that Navy 
monitoring has not indicated a strong preference for the GOA TMAA 
seamounts by marine mammal species, indicating only limited potential 
to reduce impacts to marine mammal species or stocks and their 
habitat), we determined that avoidance of seamounts in the GOA TMAA is 
not warranted in this particular circumstance.
Stranding Response Plan
    NMFS and the Navy developed a Stranding Response Plan for GOA TMAA 
in 2011 as part of the previous (2011-2016) MMPA authorization and 
rulemaking process for the Study Area. The Stranding Response Plan is 
specifically intended to outline the applicable requirements in the 
event that a marine mammal stranding is reported in the complexes 
during a major training exercise. NMFS considers all plausible causes 
within the course of a stranding investigation and this plan in no way 
presumes that any strandings are related to, or caused by, Navy 
training activities, absent a determination made during investigation. 
The plan is designed to address mitigation, monitoring, and compliance. 
NMFS has updated the Stranding Response Plan for the GOA TMAA for 2017-
2022 training activities. The updated Stranding Response Plan can be 
found at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm#navy_goa2021. In addition, modifications to the Stranding 
Response Plan may also be made through the adaptive management process.
Mitigation Conclusions
    NMFS has carefully evaluated the Navy's proposed mitigation 
measures--many of which were developed with NMFS' input during the 
first phase of incidental take authorizations for the Navy's training 
activities--and considered a broad range of other measures in the 
context of ensuring that NMFS prescribes the means of effecting the 
least practicable adverse impact on the affected marine mammal species 
and stocks and their habitat. Our evaluation of potential measures 
included the manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, their habitat, and 
their availability for subsistence uses (where relevant). Among other 
things, this analysis considered the nature of the potential adverse 
impact (likelihood, scope, range), the likelihood that a measure would 
be effective if implemented, and the likelihood of effective successful 
implementation. Our evaluation of potential measures also considered 
the practicability of the measures for applicant implementation. 
Practicability of implementation includes consideration of such things 
as cost, impact on operations, and, in the case of a military readiness 
activity, personnel safety, practicality of implementation, and impact 
on the effectiveness of the military readiness activity.
    Based on our evaluation of the Navy's proposed measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures required by this rule are adequate means of 
effecting the least practicable adverse impacts on marine mammals 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that in order to issue an 
ITA for an activity, NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.

Integrated Comprehensive Monitoring Program (ICMP)

    The Navy's ICMP is intended to coordinate monitoring efforts across 
all regions and to allocate the most appropriate level and type of 
effort for each range complex based on a set of standardized 
objectives, and in acknowledgement of regional expertise and resource 
availability. The ICMP is designed to be flexible, scalable, and 
adaptable through the adaptive management and strategic planning 
processes to periodically assess progress and reevaluate objectives. 
Although the ICMP does not specify actual monitoring field work or 
projects, it does establish top-level goals that have been developed in 
coordination with NMFS. As the ICMP is implemented, detailed and 
specific studies will be developed which support the Navy's top-level 
monitoring goals. In essence, the ICMP directs that monitoring 
activities relating to the effects of Navy training and testing 
activities on marine species should be designed to contribute towards 
one or more of the following top-level goals:

     An increase in our understanding of the likely 
occurrence of marine mammals and/or ESA-listed marine species in the 
vicinity of the action (i.e., presence, abundance, distribution, 
and/or density of species);
     An increase in our understanding of the nature, scope, 
or context of the likely exposure of marine mammals and/or ESA-
listed species to any of the potential stressor(s) associated with 
the action (e.g., tonal and impulsive sound), through better 
understanding of one or more of the following: (1) The action and 
the environment in which it occurs (e.g., sound source 
characterization, propagation, and ambient noise levels); (2) the 
affected species (e.g., life history or dive patterns); (3) the 
likely co-occurrence of marine mammals and/or ESA-listed marine 
species with the action (in whole or part) associated with specific 
adverse effects; and/or (4) the likely biological or behavioral 
context of exposure to the stressor for the marine mammal and/or 
ESA-listed marine species (e.g., age class of exposed animals or 
known pupping, calving or feeding areas);
     An increase in our understanding of how individual 
marine mammals or ESA-listed

[[Page 19548]]

marine species respond (behaviorally or physiologically) to the 
specific stressors associated with the action (in specific contexts, 
where possible, e.g., at what distance or received level);
     An increase in our understanding of how anticipated 
individual responses, to individual stressors or anticipated 
combinations of stressors, may impact either: (1) The long-term 
fitness and survival of an individual; or (2) the population, 
species, or stock (e.g., through effects on annual rates of 
recruitment or survival);
     An increase in our understanding of the effectiveness 
of mitigation and monitoring measures;
     A better understanding and record of the manner in 
which the authorized entity complies with the ITA and Incidental 
Take Statement; and
     An increase in the probability of detecting marine 
mammals (through improved technology or methods), both specifically 
within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general, to better achieve 
the above goals.

    Monitoring would address the ICMP top-level goals through a 
collection of specific regional and ocean basin studies based on 
scientific objectives. Quantitative metrics of monitoring effort (e.g., 
20 days of aerial surveys) would not be a specific requirement. The 
adaptive management process and reporting requirements would serve as 
the basis for evaluating performance and compliance, primarily 
considering the quality of the work and results produced, as well as 
peer review and publications, and public dissemination of information, 
reports, and data. Details of the ICMP are available online (http://www.navymarinespeciesmonitoring.us/).

Strategic Planning Process for Marine Species Monitoring

    The Navy also developed the Strategic Planning Process for Marine 
Species Monitoring, which establishes the guidelines and processes 
necessary to develop, evaluate, and fund individual projects based on 
objective scientific study questions. The process uses an underlying 
framework designed around top-level goals, a conceptual framework 
incorporating a progression of knowledge, and in consultation with a 
Scientific Advisory Group and other regional experts. The Strategic 
Planning Process for Marine Species Monitoring would be used to set 
intermediate scientific objectives, identify potential species of 
interest at a regional scale, and evaluate and select specific 
monitoring projects to fund or continue supporting for a given fiscal 
year. This process would also address relative investments to different 
range complexes based on goals across all range complexes, and 
monitoring would leverage multiple techniques for data acquisition and 
analysis whenever possible. The Strategic Planning Process for Marine 
Species Monitoring is also available online (http://www.navymarinespeciesmonitoring.us/).

Past and Current Monitoring in the Study Area

    NMFS has received multiple years' worth of annual exercise and 
monitoring reports addressing active sonar use and explosive 
detonations within the GOA TMAA and other Navy range complexes. The 
data and information contained in these reports have been considered in 
developing mitigation and monitoring measures for the proposed training 
activities within the Study Area. The Navy's annual exercise and 
monitoring reports may be viewed at: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm and http://www.navymarinespeciesmonitoring.us.
    This section is a summary of Navy-funded compliance monitoring in 
the GOA TMAA since 2011. Additional Navy-funded monitoring outside of 
and in addition to the Navy's commitments to NMFS is provided later in 
this section.
    Gulf of Alaska Study Area Monitoring, 2011-2015--During the LOA 
development process for the 2011 GOA FEIS/OEIS, the Navy and NMFS 
agreed that monitoring in the Gulf of Alaska should focus on augmenting 
existing baseline data, since regional data on species occurrence and 
density are extremely limited. There have been several reports to date 
covering work in the Gulf of Alaska (U.S. Department of the Navy, 
2011c, 2011d, 2012, 2013f, 2014d, and 2015). Collecting baseline data 
was deemed a priority prior to focusing on exercise monitoring and 
behavioral response as is now being done in other Navy OPAREAs and 
ranges. There have been no previous dedicated monitoring efforts during 
Navy training activities in the GOA TMAA with the exception of deployed 
high-frequency acoustic recording packages (HARPs).
    In July 2011, the Navy funded deployment of two long-term bottom-
mounted passive acoustic monitoring buoys by Scripps Institute of 
Oceanography (Scripps). These HARPs were deployed southeast of Kenai 
Peninsula in the GOA TMAA with one on the shelf approximately 50 nm 
from land (in 111 fathoms (203 m) depth) and on the shelf-break slope 
approximately 100 nm from land (in 492 fathoms (900 m) depth). Intended 
to be collected annually, results from the first deployment (July 2011-
May 2012) included over 5,756 hours of passive acoustic data (Baumann-
Pickering et al., 2012b). Identification of marine mammal sounds 
included four baleen whale species (blue whales, fin whales, gray 
whales, and humpback whales) and at least six species of odontocetes 
(killer whale, sperm whale, Stejneger's beaked whale, Baird's beaked 
whale, Cuvier's beaked whale, and an unidentified porpoise presumed to 
be Dall's porpoise; Baumann-Pickering et al., 2012b). Researchers also 
noted the detection of anthropogenic sound from commercial shipping. 
There were no Navy activities or vessels in the area at any time during 
the recording period.
    Analysis of the passive acoustic detections made from May 2012 to 
June 2013 were presented in Baumann-Pickering et al. (2013), Debich et 
al. (2013), Debich et al. (2014), and the Navy's 2012, 2013, and 2014 
GOA TMAA annual monitoring report submitted to NMFS (U.S. Department of 
the Navy, 2012, 2013f, 2014d). Three baleen whale species were 
detected: blue whales, fin whales, and humpback whales. No North 
Pacific right whale calls were detected at either site during this 
monitoring period. At least seven species of odontocetes were detected: 
Risso's dolphins, killer whales, sperm whales, Baird's beaked whales, 
Cuvier's beaked whales, Stejneger's beaked whales, and unidentified 
porpoises (likely Dall's porpoise). Focused analysis of beaked whale 
echolocation recordings were presented in Baumann-Pickering et al. 
(2013).
    As also presented in Debich et al. (2013) and U.S. Department of 
the Navy (2013f), broadband ship noise was found to be more common at 
the slope and Pratt Seamount monitoring sites within the GOA TMAA than 
at the nearshore (on shelf) site. Sonar (a variety of frequencies, most 
likely fathometers and fish-finders), were more common on the shelf and 
slope sites. Very few explosions were recorded at any of the sites 
throughout the monitoring period. Origin of the few explosions detected 
are unknown, but there was no Navy explosive use in the GOA TMAA during 
this period, so these explosive-like events may be related to fisheries 
activity, lightning strikes, or some other unidentified source. There 
were no detections of Navy mid-frequency sonar use in the recordings 
(Debich et al., 2013, 2014; U.S. Department of the Navy 2013f, 2014d). 
In September 2012, an additional HARP buoy was deployed at Pratt 
Seamount (near the east end of the GOA TMAA) and in June 2013 two 
additional buoys were deployed in the GOA TMAA: One

[[Page 19549]]

at the shelf-break near the southwest corner of the GOA TMAA and one at 
Quinn Seamount (the approximate middle of the GOA TMAA's southeast 
boundary). This constitutes a total of five Navy-funded concurrent 
long-term passive acoustic monitoring packages present in the GOA TMAA 
through fall of 2014. Debich et al. (2013) reported the first detection 
of a North Pacific right whale at the Quinn Seamount site. Over two 
days between June and August 2013, the Quinn seamount HARP detected 
three hours of North Pacific right whale calls (Debich et al., 2014, 
[Scaron]irovi[cacute] et al., in press). Given the recording device 
location near the southwest border of the GOA TMAA, inability of the 
device as configured to determine call directionality, and likely 
signal propagation of several 10s of miles, it remains uncertain if the 
detected calls originated within or outside of the GOA TMAA. Previous 
related Navy funded monitoring at multiple sites within the Study Area 
reported no North Pacific right whale detections (Baumann-Pickering et 
al., 2012b, Debich et al., 2013).
    Additional monitoring conducted in the GOA TMAA through spring/
summer 2015 included the deployment of five HARPs to detect marine 
mammals and anthropogenic sounds (Rice et al., 2015), and a passive 
acoustic sensor-mounted Kongsberg SeagliderTM deployment 
along the continental slope within the TMAA (marine mammal vocalization 
and echolocation detections from the Seaglider deployment are still 
undergoing analysis and the technical report will be posted to the 
Navy's monitoring Web site: http://www.navymarinespeciesmonitoring.us/
). Four baleen whale species were recorded during the HARP deployment: 
Blue whales, fin whales, gray whales, and humpback whales. No North 
Pacific right whale calls were recorded. Across all sites, blue whales, 
fin whales, and humpback whales were commonly detected throughout the 
recordings, with fin whale detections generally more prevalent at the 
shelf site. Humpback whales were one of the most commonly detected 
baleen whales throughout the recordings. Blue whale calls were most 
prevalent during the summer and fall, while humpback detections were 
highest from December through March. Fin whale 20 Hz calls were the 
dominant call type, peaking from September to December, while 40 Hz 
calls peaked in the summer months. Signals from three known odontocete 
species were recorded: sperm whales, Cuvier's beaked whales, and 
Stejneger's beaked whales. Sperm whales were detected at every site, 
but were most prevalent at the continental slope site, with peak 
detections from June through late November 2014 and again in April to 
May 2015. Cuvier's beaked whales were detected in low numbers at the 
seamount sites. Stejneger's beaked whales were detected at the 
continental slope site, and the seamount sites, with most detections 
occurring at the continental slope site. The only anthropogenic sounds 
detected in the recordings were explosions, which Rice et al. (2015) 
attributed to fishery-related seal bombs based on the spectral 
properties of the signals.
    During review of Rice et al. (2015), personnel from NMFS' Alaska 
Fisheries Science Center questioned if some of the seal bomb-like 
passive acoustic explosive detections could not have been a variation 
of a North Pacific right whale ``gunshot'' call. Further explanation 
was subsequently provided by Scripps: the explosions recorded in the 
Gulf of Alaska and reported in Rice et al. (2015), as well as previous 
year's reports were broadband, impulsive sounds with a distinctive low 
frequency rumble. The signal parameters are very similar to seal bomb 
explosions detect in passive acoustic data from Southern California and 
the Pacific Northwest. Additionally, Scripps confirmed that from their 
experience with the detection of seal bombs signals in acoustic data 
from multiple locations including those outside of Alaska, seal bombs 
are frequently deployed in a sequence over a period of time, which may 
be similar to North Pacific right whale bouts. Therefore, Scripps 
remains confident that the overall patterns and distributions of this 
signal represent explosives (seal bombs) used in this region and that 
the likelihood of these explosions being North Pacific right whales is 
extremely low, even if they cannot absolutely fully discount the 
possibility that some of their reported explosions may in fact be 
``gunshot'' calls.
    No mid-frequency active (MFA) sonar events were detected throughout 
the 2014-2015 HARP recordings. Future monitoring will include varying 
numbers of HARPs or other passive acoustic technologies based on annual 
adaptive management and monitoring meeting discussions with NMFS.
    In the Gulf of Alaska, the Navy has also funded two previous marine 
mammal surveys to gather occurrence and density data. Although there 
was no regulatory requirement for the Navy to undertake either survey, 
the Navy funded the data collection to first support analysis of 
potential effects for the 2011 GOA FEIS/OEIS and again recently to 
support the current GOA SEIS/OEIS. The first Navy-funded survey (GOALS) 
was conducted by NMFS in April 2009 (see Rone et al., 2009). Line-
transect survey visual data was gathered to support distance sampling 
statistics and acoustic data were collected over a 10-day period both 
within and outside the GOA TMAA. This survey resulted in sightings of 
several species and allowed for the derivation of densities for fin and 
humpback whale that supplemented multiple previous survey efforts in 
the vicinity (Rone et al., 2009). In summer 2013, the Navy funded an 
additional visual line-transect survey (Gulf of Alaska Line-Transect 
Survey (GOALS II)) in the offshore waters of the Gulf of Alaska (Rone 
et al., 2014). The GOALS II survey was a 30-day visual line-transect 
survey supplemented by use of passive acoustics and was a follow-on 
effort to the previously Navy-funded GOALS survey in 2009. The primary 
objective for the GOALS II survey was to acquire baseline data to 
increase understanding of the likely occurrence (i.e., presence, 
abundance, distribution and/or density of species) of beaked whales and 
ESA-listed marine mammals in the Gulf of Alaska. Specific research 
objectives were:

     Assess the abundance, spatial distribution and/or 
density of marine mammals, with a focus on beaked whales and ESA-
listed cetacean species through visual line-transect surveys and 
passive acoustics using a towed hydrophone array and sonobuoys.
     Increase knowledge of species' vocal repertoire by 
linking visual sightings to vocally active cetaceans, in order to 
improve the effectiveness of passive acoustic monitoring.
     Attempt to photo-identify and biopsy sample individual 
whales opportunistically for analysis of population structure, 
genetics and habitat use.
     Attempt to locate whales for opportunistic satellite 
tagging using visual and passive acoustic methodology in order to 
provide information on both large- and fine-scale movements and 
habitat use of cetaceans.

    The Navy-funded GOALS II survey also sampled four distinct habitat 
areas (shelf, slope, offshore, and seamounts) which were partitioned 
into four strata. The survey design was intended to provide uniform 
coverage within the Gulf of Alaska. However, given the overall limited 
knowledge of beaked whales within the Gulf of Alaska, the survey was 
also designed to provide coverage of potential beaked whale habitat and 
resulted in 13 encounters with beaked whales numbering 67 individual 
animals (Rone et al., 2014). The following additional details are

[[Page 19550]]

summarized from the presentation in Rone et al. (2014). The visual 
survey consisted of 4,504 km (2,431 nm) of `full-effort' and included 
349 km (188 nm) of `transit-effort.' There was an additional 375 km 
(202 nm) of `fog-effort' (transect and transit). Based on total effort, 
there were 802 sightings (1,998 individuals) identified to species, 
with an additional 162 sightings (228 individuals) of unidentified 
cetaceans and pinnipeds. Acoustic surveying was conducted round-the-
clock with a towed-hydrophone array for 6,304 km (3,997 nm) of line-
transect effort totaling 426 hours of `standard' monitoring, with an 
additional 374 km (202 nm) of approximately 30 hours of `non-standard' 
and `chase' effort. There were 379 acoustic detections and 267 
localizations of 6 identified cetacean species. Additionally, 186 
acoustic sonobuoys were deployed with 7 identified cetacean species 
detected. Two satellite transmitter tags were deployed; a tag on a blue 
whale (B. musculus) transmitted for 9 days and a tag on a Baird's 
beaked whale (Berardius bairdii) transmitted for 15 days. Based on 
photo-identification matches, the tagged blue whale had been previously 
identified off Baja California, Mexico, in 2005. Photographs of five 
cetacean species were collected for photo-identification purposes: Fin, 
humpback, blue, killer (Orcinus orca), and Baird's beaked whales. The 
estimates of abundance and density for five species were obtained for 
the first time for the central Gulf of Alaska. Overall, the Navy funded 
GOALS II survey provided one of the most comprehensive datasets on 
marine mammal occurrence, abundance, and distribution within that 
rarely surveyed area (Rone et al., 2014).
    Pacific Northwest Cetacean Tagging--A Navy-funded effort in the 
Pacific Northwest is ongoing and involves attaching long-term satellite 
tracking tags to migrating gray whales off the coast of Oregon and 
northern California (U.S. Department of the Navy, 2013e). This study is 
being conducted by the University of Oregon and has also included 
tagging of other large whale species such as humpback whales, fin 
whales, and killer whales when encountered. This effort is not 
programmed, affiliated, or managed as part of the GOA TMAA monitoring, 
and is a separate regional project, but has provided information on 
marine mammals and their movements that has application to the Gulf of 
Alaska.
    In one effort between May 2010 and May 2013, satellite tracking 
tags were placed on three gray whales, 11 fin whales, five humpback 
whales, and two killer whales off the Washington coast (Schorr et al., 
2013). One tag on an Eastern North Pacific Offshore stock killer whale, 
in a pod encountered off Washington at Grays Harbor Canyon, remained 
attached and continued to transmit for approximately three months. In 
this period, the animal transited a distance of approximately 4,700 nm, 
which included time spent in the nearshore margins of the TMAA in the 
Gulf of Alaska where it would be considered part of the Offshore stock 
(for stock designations, see Muto and Angliss, 2015). In a second 
effort between 2012 and 2013, tags were attached to 11 Pacific Coast 
Feeding Group gray whales near Crescent City, California; in general, 
the tag-reported positions indicated these whales were moving southward 
at this time of year (Mate, 2013). The Navy's 2013 annual monitoring 
report for the Northwest Training and Testing Range contains the 
details of the findings from both research efforts described above 
(U.S. Department of the Navy, 2013e).

Monitoring for the GOA TMAA Study Area 2017-2022

    Based on the NMFS-Navy adaptive management meeting in June 2015 and 
the annual monitoring meeting in March 2016, future Navy compliance 
monitoring, including ongoing monitoring, will address ICMP top-level 
goals through a series of regional and ocean basin study questions with 
a prioritization and funding focus on species of interest as identified 
for each range complex. The ICMP will also address relative investments 
to different range complexes based on goals across all range complexes, 
and monitoring will leverage multiple techniques for data acquisition 
and analysis whenever possible.
    Within the GOA TMAA Study Area, the Navy's monitoring for GOA TMAA 
under this LOA authorization and concurrently in other areas of the 
Pacific Ocean will therefore be structured to address region-specific 
species-specific study questions in consultation with NMFS. The 2015 
annual monitoring report submitted by the Navy to NMFS concludes the 
Navy's monitoring within the GOA TMAA under the 2011-2016 MMPA 
authorization. The HARPs used as part of that monitoring effort are 
currently being retrieved and returned to Scripps Institution of 
Oceanography for refurbishment. In consultation with NMFS during the 
June 2015 adaptive management meeting, the Navy and NMFS agreed that 
Navy-funded monitoring within the GOA TMAA would be revisited during 
subsequent adaptive management meetings in 2017 and 2018. Given four 
years of constant 24/7 passive acoustic marine mammal baseline 
monitoring through the years 2011-2015, scientifically significant 
ambient background data for a region used infrequently by the Navy has 
been sufficiently obtained under the 2011-2016 authorization. 
Therefore, the Navy, with NMFS' concurrence, did not fund GOA TMAA 
marine mammal monitoring in 2016.
    For 2017, Navy will deploy minimum of two bottom-mounted passive 
acoustic devices with an option for third deep-water buoy passive 
acoustic device. Devices will be High-frequency acoustic recording 
packages (HARP) and, for consistency and comparison with past efforts, 
will be deployed at the same sites as previously. The third planned 
option consists of a new deep-water open ocean site, on line with the 
shallower sites, and will include deployment of both a HARP and a new 
buoy. Scripps will conduct post-deployment of marine mammal 
vocalizations, ambient sounds and anthropogenic sounds.
    Additional Navy monitoring projects proposed during the 2017-2022 
GOA TMAA rulemaking period will be posted on the Navy's marine species 
monitoring Web site (http://www.navymarinespeciesmonitoring.us/regions/pacific/current-projects/). NMFS has acknowledged that the Navy's GOA 
TMAA monitoring will enhance understanding of marine mammal 
vocalizations and distributions within the offshore waters of the Gulf 
of Alaska. Additionally, information gained from the Navy's monitoring 
may be used in the adaptive management of monitoring measures in 
subsequent NMFS authorizations, if appropriate and in consultation with 
NMFS. The Navy is committed to structuring the Navy-sponsored research 
and monitoring program to address both NMFS' regulatory requirements as 
part of any MMPA authorizations while at the same time making 
significant contributions to the greater body of marine mammal science 
(see U.S. Department of the Navy, 2013f).

Ongoing Navy Research

    The U.S. Navy is one of the world's leading organizations in 
assessing the effects of human activities on the marine environment 
including marine mammals. From 2004 through 2013, the Navy has funded 
over $240 million specifically for marine mammal research. Navy 
scientists work cooperatively with other government researchers and 
scientists, universities, industry, and non-governmental conservation 
organizations in collecting, evaluating, and modeling information

[[Page 19551]]

on marine resources. They also develop approaches to ensure that these 
resources are minimally impacted by existing and future Navy 
operations. It is imperative that the Navy's research and development 
(R&D) efforts related to marine mammals are conducted in an open, 
transparent manner with validated study needs and requirements. The 
goal of the Navy's R&D program is to enable collection and publication 
of scientifically valid research as well as development of techniques 
and tools for Navy, academic, and commercial use. Historically, R&D 
programs are funded and developed by the Navy's Chief of Naval 
Operations Energy and Environmental Readiness Division (OPNAV N45) and 
Office of Naval Research (ONR), Code 322 Marine Mammals and Biological 
Oceanography Program. The primary focus of these programs since the 
1990s is on understanding the effects of sound on marine mammals, 
including physiological, behavioral, and ecological effects.
    ONR's current Marine Mammals and Biology Program thrusts include, 
but are not limited to: (1) Monitoring and detection research, (2) 
integrated ecosystem research including sensor and tag development, (3) 
effects of sound on marine life (such as hearing, behavioral response 
studies, physiology (diving and stress), and population consequences of 
acoustic disturbance (PCAD)), and (4) models and databases for 
environmental compliance.
    To manage some of the Navy's marine mammal research programmatic 
elements, OPNAV N45 developed in 2011 a new Living Marine Resources 
(LMR) Research and Development Program (http://www.lmr.navy.mil/). The 
goal of the LMR Research and Development Program is to identify and 
fill knowledge gaps and to demonstrate, validate, and integrate new 
processes and technologies to minimize potential effects to marine 
mammals and other marine resources. Key elements of the LMR program 
include:

     Providing science-based information to support Navy 
environmental effects assessments for research, development, 
acquisition, testing and evaluation as well as Fleet at-sea 
training, exercises, maintenance, and support activities.
     Improving knowledge of the status and trends of marine 
species of concern and the ecosystems of which they are a part.
     Developing the scientific basis for the criteria and 
thresholds to measure the effects of Navy generated sound.
     Improving understanding of underwater sound and sound 
field characterization unique to assessing the biological 
consequences resulting from underwater sound (as opposed to tactical 
applications of underwater sound or propagation loss modeling for 
military communications or tactical applications).
     Developing technologies and methods to monitor and, 
where possible, mitigate biologically significant consequences to 
living marine resources resulting from naval activities, emphasizing 
those consequences that are most likely to be biologically 
significant.

Navy Research and Development

    Navy Funded--Both the LMR and ONR Research and Development Programs 
periodically fund projects within the Study Area. Some data and 
results, when available from these R&D projects, are typically 
summarized in the Navy's annual range complex Monitoring Reports that 
are currently submitted to NMFS each year. In addition, the Navy's 
Range Complex monitoring during training and testing activities is 
coordinated with the R&D monitoring in a given region to leverage 
research objectives, assets, and studies where possible under the ICMP.
    The integration between the Navy's new LMR Research and Development 
Program and related range complex monitoring will continue and improve 
during this LOA application period with applicable results presented in 
GOA TMAA annual monitoring reports.
    Other National Department of Defense Funded Initiatives--Strategic 
Environmental Research and Development Program (SERDP) and 
Environmental Security Technology Certification Program (ESTCP) are the 
DoD's environmental research programs, harnessing the latest science 
and technology to improve environmental performance, reduce costs, and 
enhance and sustain mission capabilities. The Programs respond to 
environmental technology requirements that are common to all of the 
military Services, complementing the Services' research programs. SERDP 
and ESTCP promote partnerships and collaboration among academia, 
industry, the military Services, and other Federal agencies. They are 
independent programs managed from a joint office to coordinate the full 
spectrum of efforts, from basic and applied research to field 
demonstration and validation.

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy training activities in the Study Area contain an 
adaptive management component, as did previous authorizations. The 
reporting requirements associated with this final rule are designed to 
provide NMFS with monitoring data from the previous year to allow NMFS 
to consider whether any changes are appropriate. NMFS and the Navy 
would meet to discuss the monitoring reports, Navy R&D developments, 
and current science and whether mitigation or monitoring modifications 
are appropriate. The use of adaptive management allows NMFS to consider 
new information from different sources to determine (with input from 
the Navy regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions). Mitigation measures could be modified if new 
data suggests that such modifications would have a reasonable 
likelihood of reducing adverse effects to marine mammal species or 
stocks and their habitat and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring and exercises reports, as required by MMPA 
authorizations; (2) compiled results of Navy funded R&D studies; (3) 
results from specific stranding investigations; (4) results from 
general marine mammal and sound research; and (5) any information which 
reveals that marine mammals may have been taken in a manner, extent, or 
number not authorized by these regulations or subsequent LOA.

Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' Effective reporting is 
critical both to compliance as well as ensuring that the most value is 
obtained from the required monitoring. NMFS described the proposed Navy 
reporting requirements in the proposed rule (81 FR 9950, 9991-92; 
February 26, 2016). Reports from individual monitoring events, results 
of analyses, publications, and periodic progress reports for specific 
monitoring projects will be posted to the Navy's Marine Species 
Monitoring web portal: http://www.navymarinespeciesmonitoring.us and 
NMFS' Web site: http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm. There are several different reporting requirements that 
are further detailed in the regulatory text at the end of this document 
and summarized below. Of note, a notification requirement for Major 
Training Exercises that was included in the proposed rule has been 
modified to be a 72-hour pre-notice, which aligns better with 
requirements in other training areas and better supports NMFS' 
management needs.

[[Page 19552]]

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (the appropriate Regional 
Stranding Coordinator) is notified immediately (or as soon as clearance 
procedures allow) if an injured or dead marine mammal is found during 
or shortly after, and in the vicinity of, any Navy training exercise 
utilizing MFAS, HFAS, or underwater explosive detonations. The Navy 
will provide NMFS with species identification or a description of the 
animal(s), the condition of the animal(s) (including carcass condition 
if the animal is dead), location, time of first discovery, observed 
behaviors (if alive), and photographs or video (if available). The Navy 
shall consult the Stranding Response Plan to obtain more specific 
reporting requirements for specific circumstances.

Vessel Strike

    NMFS has developed the following language to address monitoring and 
reporting measures specific to vessel strike. Most of this language 
comes directly from the Stranding Response Plan for other Navy training 
and testing rulemakings. This section has also been included in the 
regulatory text at the end of this final rule. Vessel strike during 
Navy training activities in the Study Area is not anticipated; however, 
in the event that a Navy vessel strikes a whale, the Navy shall do the 
following:

    Immediately report to NMFS (pursuant to the established 
Communication Protocol) the:
     Species identification (if known);
     Location (latitude/longitude) of the animal (or 
location of the strike if the animal has disappeared);
     Whether the animal is alive or dead (or unknown); and
     The time of the strike.
    As soon as feasible, the Navy shall report to or provide to 
NMFS, the:
     Size, length, and description (critical if species is 
not known) of animal;
     An estimate of the injury status (e.g., dead, injured 
but alive, injured and moving, blood or tissue observed in the 
water, status unknown, disappeared, etc.);
     Description of the behavior of the whale during event, 
immediately after the strike, and following the strike (until the 
report is made or the animal is no longer sighted);
     Vessel class/type and operational status;
     Vessel length;
     Vessel speed and heading; and
     To the best extent possible, obtain a photo or video of 
the struck animal, if the animal is still in view.
    Within 2 weeks of the strike, provide NMFS:
     A detailed description of the specific actions of the 
vessel in the 30-minute timeframe immediately preceding the strike, 
during the event, and immediately after the strike (e.g., the speed 
and changes in speed, the direction and changes in direction, other 
maneuvers, sonar use, etc., if not classified); and
     A narrative description of marine mammal sightings 
during the event and immediately after, and any information as to 
sightings prior to the strike, if available; and use established 
Navy shipboard procedures to make a camera available to attempt to 
capture photographs following a ship strike.

    NMFS and the Navy will coordinate to determine the services the 
Navy may provide to assist NMFS with the investigation of the strike. 
The response and support activities to be provided by the Navy are 
dependent on resource availability, must be consistent with military 
security, and must be logistically feasible without compromising Navy 
personnel safety. Assistance requested and provided may vary based on 
distance of strike from shore, the nature of the vessel that hit the 
whale, available nearby Navy resources, operational and installation 
commitments, or other factors.

Annual GOA TMAA Monitoring Report

    The Navy shall submit an annual report of the GOA TMAA monitoring 
describing the implementation and results from the previous calendar 
year. Data collection methods will be standardized across range 
complexes and study areas to allow for comparison in different 
geographic locations. Although additional information will be gathered, 
Navy Lookouts collecting marine mammal data pursuant to the GOA TMAA 
monitoring plan shall, at a minimum, provide the same marine mammal 
observation data required in Sec.  218.155. The report shall be 
submitted either 90 days after the calendar year, or 90 days after the 
conclusion of the monitoring year to be determined by the adaptive 
management process. The GOA TMAA Monitoring Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
reports from multiple range complexes and study areas (the multi-Range 
Complex Annual Monitoring Report). Such a report would describe 
progress of knowledge made with respect to monitoring plan study 
questions across all Navy ranges associated with the Integrated 
Comprehensive Monitoring Program. Similar study questions shall be 
treated together so that progress on each topic shall be summarized 
across all Navy ranges. The report need not include analyses and 
content that does not provide direct assessment of cumulative progress 
on the monitoring plan study questions.

Annual GOA TMAA Exercise Report

    Each year, the Navy shall submit a preliminary report detailing the 
status of authorized sound sources within 21 days after the anniversary 
of the date of issuance of the LOA. Each year, the Navy shall submit a 
detailed report within 3 months after the anniversary of the date of 
issuance of the LOA. The annual report shall contain information on 
Major Training Exercises (MTEs), and a summary of all sound sources 
used (total hours or quantity (per the LOA) of each bin of sonar or 
other non-impulsive source; total annual number of each type of 
explosive exercises; and total annual expended/detonated rounds 
(missiles, bombs, etc.) for each explosive bin). The analysis in the 
detailed report will be based on the accumulation of data from the 
current year's report and data collected from previous reports for the 
rule. Information included in the classified annual reports may be used 
to inform future adaptive management of activities within the GOA TMAA.

Sonar Exercise Notification

    MTE Prior Notification. The Navy shall submit to NMFS (contact as 
specified in the LOA and Stranding Plan) an electronic notice of 
pending MTEs 72 hours prior to the start of the MTE indicating: 
Location of the exercise, beginning and end dates of the exercise, type 
of exercise.

Five-Year Close-Out Exercise Report

    This report will be included as part of the 2022 annual exercise 
report. This report will provide the annual totals for each sound 
source bin with a comparison to the annual allowance and the 5-year 
total for each sound source bin with a comparison to the 5-year 
allowance. Additionally, if there were any changes to the sound source 
allowance, this report will include a discussion of why the change was 
made and include the analysis to support how the change did or did not 
result in a change in the SEIS and final rule determinations. The 
report will be submitted 3 months after the expiration of the rule. 
NMFS will submit comments on the draft close-out report, if any, within 
3 months of receipt. The report will be considered final after the Navy 
has addressed NMFS' comments, or 3 months after the submittal of the 
draft if NMFS does not provide comments.

Comments and Responses

    On February 26, 2016, NMFS published a proposed rule (81 FR 9950) 
in response to the Navy's request to take marine mammals incidental to 
training

[[Page 19553]]

activities in the GOA TMAA Study Area and requested comments, 
information, and suggestions concerning the request. During the 30-day 
public comment period, NMFS received comments from the Marine Mammal 
Commission (Commission), non-governmental organizations, and private 
citizens. Numerous comments were collectively submitted in a letter on 
behalf of the Natural Resources Defense Council (NRDC), Animal Welfare 
Institute, Center for Biological Diversity, Cetacean Society 
International, Cook Inletkeeper, Copper River Watershed Project, 
Defenders of Wildlife, Eyak Preservation Council, Eye of the Whale 
Research, The Humane Society of the United States, International Fund 
for Animal Welfare, Oasis Earth, Ocean Conservation Research, 
OceanCare, Peaceful Skies Coalition, Prince William Soundkeeper, Public 
Employees for Environmental Responsibility (PEER), Tucson Forward, 
Inc., West Coast Action Alliance, and Whale and Dolphin Conservation 
(hereinafter referred to as NRDC et al.). Several of NRDC et al.'s 
comments, specifically those related to mitigation recommendations (see 
Comment 23-49), were the same or similar to comments made on the 
proposed rule for Navy training and testing in the Northwest Training 
and Testing (NWTT) Study Area and which were addressed by NMFS in the 
final rule for NWTT (80 FR 73556, 73575-98; November 24, 2015, Comments 
and Responses). NMFS also received an online petition, titled ``Stop 
Sonar and Underwater Explosions in Gulf of Alaska,'' which originated 
from a non-governmental organization (Eye of the Whale Research) and 
was circulated by MoveOn.org petitions. The petition contained 58 
signatures at the close of the comment period. NMFS has responded to 
the petition below.
    Comments specific to section 101(a)(5)(A) of the MMPA and NMFS' 
analysis of impacts to marine mammals are summarized, sorted into 
general topic areas, and addressed below and/or throughout the final 
rule. Comments specific to the GOA FSEIS/OEIS, which NMFS participated 
in developing as a cooperating agency and adopted, or that were also 
submitted to the Navy during the GOA DSEIS/OEIS public comment period 
are addressed in Appendix D (Public Participation) of the GOA FSEIS/
OEIS. Some commenters presented technical comments on the general 
behavioral risk function that are largely identical to those posed 
during the comment period for proposed rules for the Atlantic Fleet 
Training and Testing (AFTT), Hawaii-Southern California Training and 
Testing (HSTT), Mariana Islands Training and Testing (MITT), and NWTT 
study areas--Phase II predecessors to the GOA TMAA rule. The behavioral 
risk function remains unchanged since then, and here we incorporate our 
responses to those initial technical comments (78 FR 73010, 73038 
(December 3, 2013), Acoustic Thresholds; 78 FR 78106, 78129 (December 
24, 2013), Acoustic Thresholds; 80 FR 46112, 46146 (August 3, 2015), 
Criteria and Thresholds; 80 FR 73556, 73579 (November 24, 2015)). Full 
copies of the comment letters may be accessed at http://www.regulations.gov.

General Opposition

    Comment 1: The vast majority of comments received by NMFS were from 
commenters expressing general opposition to Navy training activities in 
the GOA TMAA and NMFS' issuance of an MMPA authorization. Many 
commenters claimed that the Navy's activities would result in the 
``killing,'' ``blowing up,'' or ``deaths'' of marine mammals during GOA 
training activities using sonar.
    Response: NMFS appreciates the commenters' concern for the marine 
environment. However, the commenters' assertion that the Navy's 
activities in the GOA TMAA Study Area will result in the killing or 
deaths of marine mammals is incorrect. As discussed throughout this 
rule and in the GOA FSEIS/OEIS, the vast majority of predicted takes 
are by Level B harassment (behavioral reactions and TTS), and there are 
no mortality takes predicted or authorized for any training activities 
in the Study area. Further, any impacts from the Navy's activities are 
expected to be short term and would not result in significant changes 
in behavior, growth, survival, annual reproductive success, lifetime 
reproductive success (fitness), or species recruitment. The Navy has 
conducted active sonar training activities in the Study Area for years, 
and there is no evidence that routine Navy training and testing has 
negatively impacted marine mammal populations in the Study Area or at 
any Navy Range Complex. As described in more detail later in this 
document, based on the best available science, NMFS has determined that 
the Navy's training activities will have a negligible impact on the 
affected species or stocks and, therefore, we plan to issue the 
requested MMPA authorization.
    Comment 2: An online petition, titled ``Stop Sonar and Underwater 
Explosions in Gulf of Alaska,'' was created by Eye of the Whale 
Research and circulated via MoveOn.org petitions. The petition is for 
NMFS' denial of the Navy's LOA application based on sonar and 
explosives use that could potentially hurt marine mammals in Alaska 
waters.
    Response: The Navy and NMFS are aware that even with implemented 
mitigations, Navy training in the GOA TMAA Study Area will result in 
behavioral impacts to a number of marine mammals of multiple species 
and injurious impacts to a small number of Dall's porpoises, which is 
precisely why those predicted effects are quantified and have been 
requested pursuant to the MMPA and ESA. Section 101(a)(5)(A) of the 
MMPA directs the Secretary of Commerce to allow, upon request, the 
incidental taking of small numbers of marine mammals if certain 
findings are made and regulations are issued. NMFS has made the 
requisite findings and therefore must issue regulations and an LOA for 
the Navy's activities.

Activity

    Comment 3: Several commenters pointed out the importance of 
salmonid and other fisheries resources in Alaska and expressed concerns 
with Navy training impacts to commercial, recreational, and subsistence 
fishing in the Study Area.
    Response: Regarding impacts to salmon, fish in general, and the 
commercial fishers, as presented in Section 3.6 (Fish) and Section 3.12 
(Socioeconomics) of the 2011 GOA FEIS/OEIS and the GOA FSEIS/OEIS, NMFS 
and the Navy are aware of the importance of fisheries in Alaska. The 
proposed training activities are predicted to have no impact on fish 
populations, the health of fisheries, or socioeconomic conditions in 
Alaska.
    Regarding concerns over subsistence resources, the proposed action 
is the continuation of the types of training activities that have been 
ongoing for more than a decade. No impacts to traditional subsistence 
practices or resources are predicted to result from the proposed 
activities. Further, after consultations with Alaska Native tribes from 
the Kodiak and Kenai Peninsula region, the Navy has confirmed that 
training events in the TMAA would not involve the use of any explosives 
in one particular and well-defined fishing area known as Portlock Bank.
    Also note that as described in the 2011 GOA FEIS/OEIS, sonar use is 
unlikely to disturb fish since most fish cannot hear sonar at the 
frequencies in the proposed action and science indicates that the few 
fish that can hear in those frequencies have no significant, if any, 
reaction to sonar. Please also see the GOA FSEIS/OEIS Section 3.8.5 
(Summary of Observations During

[[Page 19554]]

Previous Navy Activities), where over eight years of monitoring effort 
has found no evidence that Navy training activities have had any impact 
on fish populations in the Pacific in areas such as Southern California 
or Hawaii where Navy training has been occurring year-round for 
decades.
    Additionally, the effects on marine mammal prey species were 
addressed in the proposed rule and deemed not to be significant and, 
further, NMFS' biological opinion analyzing the Navy's activities found 
that they were not likely to jeopardize any listed fish species or 
destroy or adversely modify any designated critical habitat for ESA-
listed fish.
    Comment 4: Some commenters expressed concern with potential Navy 
training impacts to endangered or threatened species within the Study 
Area.
    Response: As discussed in the proposed rule, there are eight marine 
mammal species under NMFS' jurisdiction that are listed as endangered 
or threatened under the ESA with confirmed or possible occurrence in 
the Study Area: Blue whale, fin whale, humpback whale (Mexico DPS and 
Western North Pacific DPS), sei whale, sperm whale, gray whale (Western 
North Pacific stock), North Pacific right whale, and Steller sea lion 
(Western U.S. stock). Pursuant to the MMPA, NMFS found that the take 
authorized for the Navy's training activities in the GOA TMAA would 
have a negligible impact on these ESA-listed species. Further, the Navy 
consulted with NMFS pursuant to section 7 of the ESA, and NMFS also 
consulted internally on the issuance of a rule and LOA under section 
101(a)(5)(A) of the MMPA for GOA activities. NMFS issued a Biological 
Opinion concluding that the issuance of the rule and subsequent LOA are 
likely to adversely affect, but are not likely to jeopardize, the 
continued existence of the threatened and endangered species under 
NMFS' jurisdiction and are not likely to result in the destruction or 
adverse modification of critical habitat in the GOA TMAA Study Area. 
The Biological Opinion for this action is available on NMFS' Web site 
(http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm).
    Additionally, we note here that since the publication of the 
proposed rule, the Navy chose to reduce the proposed amount of activity 
significantly, lessening the number of the Carrier Strike Group Events 
from two to one per year, and the number of SINKEXs from two to zero 
per year. This significantly decreases (by about half) the number of 
anticipated and authorized takes for this activity.
    Comment 5: Several commenters requested that the Navy change the 
timing of operations from summer (April to October) to winter (November 
to March), in order to minimize effects on migratory whales and 
fisheries in the area in summer.
    Response: Comments that suggest restricting or scheduling the 
training so it will occur in the winter provide as partial rationale 
that the mitigation is needed to avoid whales that migrate to Alaska. 
Navy training is proposed to occur between April to October for the 
safety of the exercise participants and due to the severe conditions in 
the winter months. Due to the high sea states and cloud cover in the 
TMAA during winter months, training in the TMAA has historically 
occurred in the summer (June-July). These factors were a consideration 
in the Alternatives Development of the 2011 GOA FEIS/OEIS (Chapter 2, 
Section 2.3). As detailed in Section 3.8 (Marine Mammals) of the GOA 
FSEIS/OEIS, there are marine mammals present year-round in the Gulf of 
Alaska (e.g., humpback whales, blue whales, fin whales, gray whales, 
and pinnipeds). Additionally, the majority of the migratory species and 
many of the species feeding in the area in the summer (e.g., fin whale, 
humpback whales, gray whales) are typically found in high numbers much 
closer to shore than in the waters that constitute the majority of the 
TMAA (see Ferguson et al., 2015; Rone et al., 2014; Witteveen, 2014). 
Generally, Navy training activities are not likely to affect animals in 
nearshore locations given that the TMAA boundary nearest to land is 
approximately 25 nm from the Kenai Peninsula and the center of the TMAA 
is approximately 140 nm offshore. Any effects to whales in Alaska from 
Navy training are most likely to result from acoustic sources 
associated with events occurring in the deep water areas and away from 
the edges of the TMAA boundary. It is also important to note that the 
available scientific information does not provide evidence that 
exposure to acoustic stressors from Navy training activities are likely 
to impact the fitness of individual whales and are not likely to result 
in adverse population level or species level impacts. For the reasons 
outlined above, training in the winter would not be expected to 
meaningfully reduce impacts to marine mammal species or stocks and 
their habitat, while it would be impracticable and would unnecessarily 
increase risk and threaten the safety of Navy personnel engaged in 
training.
    Comments suggesting not holding the training activities during the 
summer period have also been predicated on avoiding impacts to 
fisheries during the fishing season and the livelihood of fishermen and 
fishing communities. As detailed in Section 3.6 (Fish) of the GOA 
FSEIS/OEIS, based on the best available science, the continuation of 
training in the GOA TMAA would not have an impact on populations of 
fish, the health of the fisheries, or the ability of fishermen to fish. 
It is also important to note that training has been conducted for many 
years in the GOA TMAA and there have been no reported impacts to any 
fish populations or fishery activities. Therefore, training in the 
winter would not be practicable and would not be effective in avoiding 
impacts to fish or fisheries but would unnecessarily increase risk and 
threaten the safety of the Navy personnel engaged in training.
    NMFS is charged with promulgating regulations and issuing LOAs for 
the requested activity, provided we find that the authorized take will 
have a negligible impact on the effected marine mammal species or stock 
and that we ensure that measures are required that ensure the least 
practicable adverse impact on the species or stocks and their habitat--
which we have. The specific activity that the Navy requested was to 
conduct these activities for 21 days (initially two times, now lowered 
to one time) between the months of April and October--requiring them to 
conduct the exercise outside of these dates is not mitigation within 
the context of the requested action, but rather asking them to change 
their requested activity.
    Comment 6: NRDC et al. commented that NMFS' proposed rule ``green-
lights dangerous levels of harm, including population-level harm, to 
marine mammals in the face of both increased scientific certainty 
related to the sensitivity of marine mammals to Navy sonar and 
increased scientific concern regarding the population-level, long-term, 
and ecosystem effects of Navy sonar on marine mammal species.''
    NRDC et al. also comment that Navy training activities would 
subject relatively na[iuml]ve marine mammal species to sonar and 
explosives effects. Beaked whales are provided as an example of species 
that may be particularly at risk, and NRDC et al. references well-
documented beaked whale stranding events in their assertion that beaked 
whales may be particularly vulnerable to the effects of active sonar. 
NRDC et al. and other commenters also expressed concern with the 
potential for overlap between Navy activities within the GOA

[[Page 19555]]

TMAA and important feeding areas for endangered North Pacific right 
whale and migratory and feeding areas for gray whale.
    Response: The Navy has been conducting largely the same training 
activities using the same type of equipment in the GOA TMAA Study Area 
for over a decade, and has been authorized to use sonar in training 
events in the Study Area since 2011, without any evidence of harm to 
marine species as a result of those activities. The activities will 
occur over the course of no more than 21 days per year. No mortality is 
anticipated or authorized and only a small number (4) of level A 
Harassment takes (PTS) are authorized for one species (Dall's 
porpoise). As described in the GOA FSEIS/OEIS and this final rule, the 
overwhelming majority of takes predicted for all species are expected 
to be short-term behavioral responses to relatively short-term 
activities (Level B harassment). The takes authorized by this rule are 
less than (i.e., reduced by half with Alternative 1) what was 
previously authorized for the same training activities that have been 
occurring for years in the Study Area, and are far less than what is 
authorized in other Navy training and testing areas (e.g., AFTT, HSTT, 
NWTT). In particular, see Section 3.8.5 (Summary of Observations During 
Previous Navy Activities) of the GOA FSEIS/OEIS and the ``Long Term 
Consequences'' section of this rule regarding the likely long-term 
consequences from those activities.
    NMFS notes that legislative history suggests that Congress intended 
that Level B harassment be limited to behavioral disturbances that have 
``demographic consequences to reproduction or survivability of the 
species.'' H.R. Conf. Rep. 108-354 (2003), 108th Cong., 1st Sess., 
reprinted in 2004 U.S.C.C.A.N. 1407, 1447. However, no methodology 
currently exists that would allow the Navy to estimate each type of 
potential response to sonar, predict any long-term consequences for the 
affected mammals, and limit its take request to only the most severe 
responses that would have demographic consequences to reproduction or 
survivability of the species. Therefore, as described in the ``Analysis 
and Negligible Impact Determination'' section of this rule, the Navy's 
take estimates capture a wider range of less significant effects. NMFS 
considers the available scientific evidence to determine the likely 
nature of the modeled behavioral responses and the potential fitness 
consequences for affected individuals in evaluating whether the 
proposed activities will have a negligible impact on the affected 
marine mammal species or stocks. As analyzed in the ``Analysis and 
Negligible Impact Determination'' section of this final rule, the 
majority of the authorized Level B harassment takes are expected to be 
in the form of milder responses (i.e., lower-level exposures that still 
rise to the level of take, but would be less severe in the ranges of 
responses that qualify as a take), and are not expected to have 
deleterious impacts on the fitness of any individuals or long-term 
consequences to populations of marine mammals.
    Effects on marine mammals will be minimized through the Navy's 
implementation of the following mitigation measures (among others): (1) 
The use of lookouts to monitor for marine mammals and begin powerdown 
and shutdown of sonar when marine mammals are detected within ranges 
where the received sound level is likely to result in PTS or other 
injury; (2) the use of mitigation zones that avoid exposing marine 
mammals to levels of explosives likely to result in injury or death of 
marine mammals; (3) vessel maneuvering protocols; and (4) operational 
restrictions in a North Pacific right whale Cautionary Area. NMFS and 
the Navy have also worked to develop a robust monitoring plan to 
improve our understanding of the environmental effects resulting from 
the use of active sonar and underwater explosives. Additionally, the 
final rule includes an adaptive management component that allows for 
timely modification of mitigation or monitoring measures based on new 
information, when appropriate.
    Given the number of commercial and private vessels using sonar for 
fishing, navigation, and research in the Gulf of Alaska and the Navy's 
authorized use of sonar in training events since 2011, it is unlikely 
that there are ``marine mammal populations in the Gulf of Alaska that 
are na[iuml]ve to an acoustic stressor,'' especially in the Navy's 
historically used GOA TMAA.
    The facts regarding the beaked whales found stranded in 2004 were 
presented in the 2011 GOA FEIS/OEIS and are also presented in the 
referenced technical report accompanying the FSEIS/OEIS. In 2004, 
between June 27 and July 19, five beaked whales were discovered 
stranded at various locations along 1,600 mi (2,625 km) of the Alaskan 
coastline and one was found floating (dead) at sea. Sonar training 
events had not been part of an exercise which took place in that 
general timeframe in the TMAA and there are no Navy vessels stationed 
in Alaska or otherwise using those waters for training purposes. Beaked 
whale strandings do occur routinely in Alaska waters and NMFS did not 
consider these strandings unusual or otherwise declare them to be a 
UME.
    Regarding the presence of North Pacific right whale and gray whale 
and associated biologically important habitat adjacent to, and within, 
the GOA TMAA, please refer to the ``Consideration of Time/Area 
Limitations'' section of this rule for a complete discussion and 
evaluation of the spatio-temporal overlap of Navy activities and 
important feeding and migratory areas for these species. NMFS' 
consideration of additional mitigation (time/area closures) in these 
areas is also discussed in that section, and later in the ``Response to 
Comments'' section. To summarize, NMFS is requiring a North Pacific 
right whale ``Cautionary Area'' between June and September in the 
overlapping 2,051 km\2\ portion of the North Pacific right whale 
feeding area, in which no hull-mounted sonar or explosives would be 
used within the portion of the feeding area that overlaps the Navy's 
GOA TMAA during those months, except when required by national security 
needs. In the event of national security needs, the Navy would be 
required to seek approval in advance from the Commander, U.S. Third 
Fleet prior to conducting training activities using sonar or 
explosives. NMFS believes that implementation of this North Pacific 
Right Whale Cautionary Area within the GOA TMAA may provide additional 
protection of this species and stock beyond the mitigation measures 
already proposed by the Navy. In the case of the gray whale migratory 
area, given the extremely minimal geographic and temporal overlap with 
Navy training activities in the GOA TMAA, coupled with the fact that no 
takes of gray whale are predicted to occur with the proposed level of 
training effort, NMFS has determined that additional mitigation 
measures related to time/area limitations of Navy training activities 
within the overlapping portion of the migratory area would not 
contribute to any lessening of the likelihood of adverse impacts on the 
species or stocks or their habitat, and are therefore not warranted in 
the context of the least practicable impact standard.

Marine Mammal Density Estimates

    Comment 7: The Commission recommended that if the Navy requests 
authorization to conduct training activities from April to October, 
then it include the appropriate environmental parameters in its 
acoustic modeling based on those months rather than

[[Page 19556]]

assuming the activities would occur only during July.
    Response: The factor having the most effect on the modeling is 
marine mammal density. Detailed information on the Navy's selection 
protocol, datasets, and specific density values, is presented in 
Section 3.8.2.5 (Marine Mammal Density Estimates) in the GOA FSEIS/OEIS 
and the Pacific Navy Marine Species Density Database GOA Technical 
Report (U.S. Department of the Navy, 2014). In some cases, use of 
multiple surveys may provide the best density estimates. For example, 
data from Rone et al. (2009), consisting of an April 2009 marine mammal 
survey conducted by NMFS in the Study Area, was one data source. 
Another NMFS survey was conducted from June to July 2013 (Rone et al., 
2014) and was also incorporated. Data from both surveys were used to 
derive marine mammal densities and vetted through NMFS subject matter 
experts. As noted in the Technical Report, density estimates used in 
the modeling were more heavily influenced by the 2013 survey, where 
greater effort was conducted over a better representative stratified 
area (Rone et al., 2014). More sightings of more species were obtained 
in the June-July 2013 survey verses the April 2009 survey. NMFS or 
other academic agencies have not done extensive surveys within the 
Study Area at other times of the year and monthly or sub-season 
sighting data are not available for the entire suite of marine mammal 
species potentially present. The data provided for GOA modeling are the 
best available density estimates and sufficiently representative for 
the summer period.
    Because the proposed training (Northern Edge) has historically 
occurred in the May to July timeframe, the proposed training in the GOA 
TMAA is different from other Navy range complexes such as the Northwest 
Training and Testing Range Complex, where there is year-round unit 
level training. Therefore, a seasonal analysis is called for in 
modeling activities in the GOA TMAA; modeling for GOA was not done for 
year-round continuous activity because the Navy's training activities 
do not occur year-round in the GOA TMAA. To provide for future 
flexibility if needed, the GOA FSEIS/OEIS indicated that the proposed 
activities could occur during the summer months (April-October); 
however, they are most likely to occur in the May-July timeframe. 
Overall, any monthly differences in marine mammal densities from July 
to October is likely to be very similar to the July data used for 
density derivation in the GOA analysis. Five years (2011-2015) of year-
round Navy funded passive acoustic monitoring in GOA found higher 
likelihood for more species, including ESA listed marine mammals, in 
mid-summer to late summer (July-October) as compared to early summer 
(May-June). Therefore, the current density estimates used for the GOA 
FSEIS/OEIS are equivalent for species abundance in the July to October 
timeframe, and likely over predictive for the more probably time in 
which an actual Northern Edge exercise would be expected to occur (May-
July).
    The use of these densities is scientifically valid, representative 
of expected densities for all species over the proposed date range, and 
based on the best available science. Monthly seasonal densities are not 
available for the Study Area, and even if they were, they would not 
likely change any of the conclusions in the FSEIS/OEIS or this final 
rule.
    Comment 8: The Commission stated that it was unsure how the Navy 
determined that extrapolated densities better represent expected 
densities than densities from relevant environmental suitability (RES) 
models in the absence of density data. The Commission recommended that 
NMFS require the Navy to (1) account for uncertainty in extrapolated 
density estimates for all species by using the upper limit of the 95 
percent confidence interval or the arithmetic mean plus two standard 
deviations and (2) then re-estimate the numbers of takes accordingly.
    Response: The Navy coordinated with scientists at the Northwest 
Fisheries Science Center (NWFSC) and the National Marine Mammal 
Laboratory (NMML) to help identify the best available density estimates 
for marine mammals occurring in the Study Area. As the commenter points 
out, there is uncertainty in estimating marine mammal densities, and 
for some species very little data are available. See the previous 
comment response for an explanation of why the density data collected 
in July (Rone et al., 2014) is scientifically valid, representative of 
expected densities for all species over the proposed date range, and 
based on the best available science.
    Using the mean value to estimate densities is a reasonable and 
scientifically acceptable approach. While the mean may underestimate a 
species' density, by definition, it is equally probable that it could 
overestimate a species' density. The mean density estimate is the best 
value to use as input into the Navy's acoustic effects model to 
minimize the influence of uncertainty inherent in the science. Also, 
the future application of this survey data as representative for year-
round densities has no bearing on the GOA FSEIS/OEIS, because the 
proposed action does not occur year-round. Furthermore, the use of the 
mean density estimate is consistent with the approach taken by NMFS to 
estimate and report the populations of marine mammals in NMFS' Stock 
Assessment Reports. For these reasons, the mean density estimate is 
thus considered the ``best available data.''
    Using the upper limit of the 95 percent confidence interval or 
adjusting the mean estimates as suggested would result in unreasonable 
and unrealistic estimates of species densities, particularly given the 
very high coefficients of variation (CVs) associated with most marine 
mammal density estimates. A confidence interval is only meant to be an 
indication of the uncertainty associated with a point estimate, and 
should not be used to derive any absolute number within the confidence 
interval. Using the upper limit of the range as an input would do 
nothing to decrease the level of uncertainty. Implementing the 
recommendation would result in an unrepresentative overestimate of the 
expected effects (takes) from the proposed action. Further, as detailed 
in Section 3.8.3.1.6.3 (Navy Acoustic Effects Model) of the GOA FSEIS/
OEIS, the Navy's acoustic model already includes conservative 
assumptions (e.g., assumes that the animals do not move horizontally, 
assumes they are always head-on to the sound source so that they 
receive the maximum amount of energy, etc.), resulting in a more 
conservative (i.e., greater) assessment of potential impacts.
    Comment 9: The Commission commented that the Rone et al. (2014) 
data used by the Navy to estimate densities of northern fur seals 
likely under-represent densities for the summer timeframe in which 
training activities are likely to occur. The Commission believes that 
the densities would be underestimated even if the Navy incorporated the 
CVs from the Rone et al. (2014) data.
    Response: The Navy consulted with scientists from the NWFSC and 
NMML to help identify the best available density estimates for marine 
mammals occurring in the Study Area. The timeframe for when the 
activities have historically occurred, and for when they would be 
expected to occur predominantly over the course of the rule, are well 
represented by the June to July timeframe. Data collected from Rone et 
al. (2014) in the summer of 2014 resulting in 69 on-effort northern fur 
seal sightings (74 individuals) in the

[[Page 19557]]

Study Area is representative of the presence of northern fur seals in 
the Study Area. The Rone et al. (2014) survey occurred in approximately 
the same month when previous Navy training events have occurred and are 
most likely to occur in the future. The Rone et al. (2014) data is 
therefore the most representative for use in the assessment of impacts. 
As noted in the GOA FSEIS/OEIS, tagging data presented by Ream et al. 
(2005) indicate the main foraging areas and the main migration route 
through the Gulf of Alaska are located far to the west of the Study 
Area, so the movement of animals involving the larger expanse of the 
Gulf of Alaska at other times of the year and outside the Study Area 
are not relevant.
    Further, we note that although modeled take estimates are our best 
attempt at quantifying the impacts of the proposed action, they do not 
represent the entirety of our analysis. For the Gulf of Alaska 
specifically, we have described elsewhere the context and nature of the 
anticipated impacts on marine mammals, which are expected to be of 
short duration and a comparatively small degree--meaning that a small 
number of additional Level B harassment takes would not be expected to 
change our assessment of the effects on the population.
    Comment 10: The Commission recommended that NMFS require the Navy 
to (1) revise its Steller sea lion abundance estimate to include 
updated abundance data from Allen and Angliss (2015) (the Navy used 
abundance data from Allen and Angliss (2009) to estimate Steller sea 
lion densities) and consult with scientists at NMML regarding 
unpublished data to revise its Steller sea lion densities, and (2) 
revise its northern elephant seal abundance estimate to include both 
updated abundance data from Allen and Angliss (2015) and data for 
female elephant seals and incorporate data from Robinson et al. (2012) 
into its estimates of northern elephant seal densities.
    Response: We note, first, that Allen and Angliss (2015) was 
published approximately a year after GOA densities were derived and 
modeled for the GOA SEIS/OEIS. Prior to that, the Navy coordinated with 
scientists at NMML to help identify the best available density 
estimates for marine mammals occurring in the Study Area at the 
beginning of the density derivation process. For Steller sea lions, 
rookeries on both sides of the 144 [deg]W longitude line dividing the 
two stocks (DPSs) were used in the estimate of density, with Allen and 
Angliss (2009) and associated references consulted. The abundance 
increase in the Stock Assessment Report (Allen and Angliss, 2015) is a 
trend characterizing the 12-year period between 2000 and 2012. The most 
recent Alaska Stock Assessment Report (Muto et al., 2016, which cites 
Johnson and Fritz 2014, Fritz et al., 2015) continued the trend 
analysis to 2014. While Muto et al. (2016) and associated references 
allude to a small percent increase in some regional Steller sea lion 
abundances after the date range used by the Navy for GOA densities, the 
increases are relatively small and also subject to variation by region. 
Furthermore, given the way modeling occurs in NAEMO, slight increases 
to density for a species do not always lead to corresponding linear 
increase in modeled takes because there are other statistical factors 
of the model as well (see Navy's Acoustic Effects 2015 Technical 
Report).
    As currently modeled, the estimated takes of the two DPSs of 
Steller sea lions are relatively small compared to estimated takes for 
other species under Alternative 1 (i.e., a total of 621 takes for the 
two Steller sea lion DPSs). The potential addition of a small number of 
additional Level B harassment takes based on small density changes 
would not be significant. Modeled take estimates are our best attempt 
at quantifying the impacts of the proposed action, but they do not 
represent the entirety of our analysis. For the Gulf of Alaska 
specifically, we have described elsewhere the context and nature of the 
anticipated impacts on marine mammals, which are expected to be of 
short duration and a comparatively small degree--meaning that a small 
number of additional Level B harassment takes would not be expected to 
change our assessment of the effects on the population.
    For elephant seals, the text presented in the GOA FSEIS/OEIS does 
not indicate absolute geographic presence or absence of elephant seals, 
but is presented as a generalization based on findings presented in the 
three references cited (Le Boeuf et al., 2000; Stewart and DeLong, 
1995; and Stewart and Huber, 1993). Tag data from Robinson et al. 
(2012) was considered in the analysis and clearly shows that the 
females mostly range east to about 173 [deg]W, between the latitudes of 
40 [deg]N and 45 [deg]N, consistent with the presentation in the GOA 
FSEIS/OEIS. The kernel density distribution presented by Robinson et 
al. (2012) confirms most of the tagged elephant seals foraged outside 
of the Study Area. Furthermore, Robinson et al. (2012) provides density 
only in relative terms of high or low, and not with the statistical 
calculations needed to derive exact at-sea densities as required by 
NMFS. By and large, the presence of elephant seals in the Study Area 
would likely be limited and transitory. The derived density of elephant 
seals in the Study Area as explained in the Navy's density technical 
report therefore remains a conservative over-estimate for purposes of 
acoustic effect modeling.

Criteria and Thresholds

    Comment 11: The Commission recommended that NMFS require the Navy 
to update Finneran and Jenkins (2012) to include the appropriate 
justification for its use of the 6-dB extrapolation factor between 
explosive and acoustic sources; use 151 dB rather than 152 dB re 1 
[mu]Pa2-sec as the TTS threshold for high-frequency cetaceans exposed 
to acoustic sources; use 145 dB rather than 146 dB re 1 [mu]Pa2-sec as 
the TTS threshold for high-frequency cetaceans for explosive sources; 
and based on these changes to the TTS thresholds, adjust the PTS 
thresholds for high-frequency cetaceans by increasing the amended TTS 
threshold by 20 dB for acoustic sources and 15 dB for explosive 
sources, and adjust the behavioral thresholds by decreasing the amended 
TTS thresholds by 5 dB for explosive sources.
    Response: NMFS participated in the development of the acoustic 
thresholds used in the FSEIS/OEIS. As detailed in Finneran and Jenkins 
(2012), the thresholds presented in the FSEIS/OEIS incorporate new 
findings since the publication of Southall et al. (2007) and the 
evolution of scientific understanding since that time. Dr. Finneran was 
one of the authors for Southall et al. (2007) and, as such, is familiar 
with the older conclusions present in the 2007 publication and 
therefore was able to integrate that knowledge into the development of 
the refined approach that was presented in Finneran and Jenkins (2012) 
and based on evolving science since 2007. Details regarding the process 
are provided in Section 3.8.3.1.6 (Quantitative Analysis) of the GOA 
FSEIS/OEIS. Also, see the summary of the thresholds used in the 
analysis as presented in Section 3.8.3.1.4 (Thresholds and Criteria for 
Predicting Acoustic and Explosive Impacts on Marine Mammals).
    Briefly, the original experimental data is weighted using the 
prescribed weighting function to determine the numerical threshold 
value. The Commission did not consider the appropriate weighting 
schemes when comparing thresholds presented in Southall et al. (2007) 
and those presented in Finneran and Jenkins (2012). TTS thresholds 
presented in

[[Page 19558]]

Finneran and Jenkins (2012) are appropriate when the applicable 
weighting function (Type II) is applied to the original TTS data; TTS 
thresholds in Southall et al. (2007) were based on M-weighting. For 
example, while it is true that there is an unweighted 12-dB difference 
for onset-TTS between beluga watergun (Finneran et al., 2002) and tonal 
exposures (Schlundt et al., 2000), the difference after weighting with 
the Type II MF-cet weighting function (from Finneran and Jenkins, 2012) 
is 6 dB. The Commission has confused (a) the 6 dB difference in PTS and 
TTS thresholds based on peak pressure described in Southall et al., 
2007 with (b) the difference between impulsive and non-impulsive 
thresholds in Finneran and Jenkins (2012), which is coincidentally 6 
dB. In summary, the values derived for impulsive and non-impulsive TTS 
and for determining PTS and impulsive behavior thresholds from TTS 
thresholds are correct based on the data presented.
    More importantly, the Navy and NMFS have continued to revise 
acoustic thresholds based on emergent research. In August 2016, NOAA 
released its Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing, which established new 
thresholds for predicting auditory injury (i.e., PTS). In developing 
the new Guidance, NMFS compiled, interpreted, and synthesized 
scientific information currently available on the effects of 
anthropogenic sound on marine mammals, including a recent Technical 
Report by Dr. James Finneran (U.S. Navy-SPAWAR Systems Center Pacific) 
that proposed new weighting functions and thresholds for predicting the 
onset of both PTS and TTS in marine mammals (Finneran, 2016). The 
methodologies presented within this paper build upon the methodologies 
used to develop the criteria applied within the proposed rule and 
Navy's GOA FSEIS/OEIS (Finneran and Jenkins, 2012), and incorporate 
relevant auditory research made available since 2012 (e.g., Kastelein 
et al., 2012a; Kastelein et al., 2012b; Finneran and Schlundt, 2013; 
Kastelein et al., 2013a; Kastelein et al., 2013b; Popov et al., 2013; 
Kastelein et al., 2014a; Kastelein et al., 2014b; Popov et al., 2014; 
Finneran et al., 2015; Kastelein et al., 2015a; Kastelein et al., 
2015b; Popov et al., 2015). In light of limited data at the time, 
Finneran and Jenkins (2012) presented a conservative approach to 
development of auditory weighting functions. In 2016, with the benefit 
of newly-available data, Finneran was able to synthesize a wide range 
of auditory data, including newly-available studies, to predict refined 
auditory weighting functions and corresponding TTS thresholds across 
the complete hearing ranges of functional hearing groups.
    The specific recommendations made by the Commission in its comments 
on the proposed rule were overcome by events when Finneran (2016) was 
published and adopted by NMFS in its new Guidance. All the methods used 
for synthesizing and interpreting new data sets into thresholds data 
were shared with the public and all comments were addressed prior to 
finalizing the Guidance. NMFS' new Guidance uses 153 dB for TTS for HF 
species from non-impulsive sources (1 dB less conservative than 
Finneran (2012) and 2 dB less conservative than the Commission 
recommended) and uses 140 dB for TTS for HF species from impulsive 
sources (6 dB more conservative than Finneran (2012) and 5 dB more 
conservative than the Commission recommends). Further, as recommended, 
20 dB was added to the TTS value to get the PTS value for the non-
impulsive sources, and 15 dB was added for the explosive source 
threshold.
    At the time of the release of the proposed rule and GOA FSEIS/OEIS, 
NMFS' final Guidance had not been issued. Further, the new criteria 
were not available for the Navy's acoustic effects modeling used to 
calculate distances to harassment thresholds and resulting take 
estimates. Therefore, the Navy did not use the new auditory weighting 
functions and PTS/TTS criteria in its GOA FSEIS/OEIS. However, the 
underlying science contained within Finneran (2016) has been addressed 
qualitatively within the applicable sections of the GOA FSEIS/OEIS and 
this final rulemaking. Further, although the writers of the base code 
for the model used for Phase II were not available to recode the model 
with the updated impulsive criteria in terms of weighting functions, 
the Navy was able to use the model to reprocess anticipated explosive 
ranges to effects for PTS based on the criteria presented in the new 
Guidance, from which TTS and behavioral exposures could be estimated, 
to assess if the new criteria could result in any additional species-
specific injury exposures. For more information on this analysis, see 
the ``Summary of Request'' section in this final rule.
    Comment 12: NRDC et al. commented that the Navy and NMFS failed to 
set proper thresholds for threshold shift and injury. They assert the 
following as reasons, referencing several articles, for their belief 
that the thresholds are improper: First, NMFS' direct extrapolation of 
data from bottlenose dolphins and belugas to low-frequency cetaceans is 
not justifiable and insufficiently conservative. Second, NMFS makes no 
attempt to account for the potential bias in Space and Naval Warfare 
Systems Command's (SPAWAR) bottlenose dolphin data, particularly the 
age of the subjects used in these influential studies and their 
situation for years within a noisy bay. Third, NMFS' weighting curve 
for high-frequency cetaceans is not sufficiently conservative in light 
of ongoing studies, as by Ron Kastelein. Fourth, NMFS' analysis fails 
to incorporate empirical data on both humans and marine mammals 
indicating that PTS can occur at levels previously thought to cause 
temporary threshold shift only.
    Response: NMFS disagrees. The criteria and thresholds for 
determining potential effects on marine species used in the GOA FSEIS/
OEIS, the LOA application, and the proposed rule were developed based 
on best available science. See the cited Finneran and Jenkins (2012; 
Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects 
Analysis Technical Report), which can be found at http://www.goaeis.com. Moreover, as described previously, the thresholds 
outlined in Finneran and Jenkins (2012) (and used in the GOA FSEIS/
OEIS) were updated with new data in Finneran (2016), which was adopted 
by NMFS for use in its new Guidance, following an opportunity for 
public comment in which NMFS addressed all comments on data and methods 
(including points that are raised here, such as the reference to Wright 
(2015)).
    As described in the ``Summary of Request'' section of this rule, 
NMFS and the Navy assessed the training activities in the GOA TMAA in 
the context of the new Guidance and all of the associated new data that 
support it (see previous comment response) and made changes to the take 
estimates where appropriate. As described, although most thresholds 
changed a little in one direction or the other (including going down 
for LF and HF species by 4 and 6 dB, respectively, for explosives), and 
the weighting functions for all taxa changed, when considered together 
and in the context of the proposed activities, the changes in the take 
estimates were relatively small (increasing takes only for Dall's 
porpoise, by 3 Level A and 149 Level B harassments). In short, much of 
this comment has been overcome by events, but nonetheless, we address 
some of the details below. Although the commenter is not specifically 
commenting on it

[[Page 19559]]

here, we note that some similar issues were raised in the context of 
the new 2016 Acoustic Guidance, and NMFS responded to those concerns in 
our Federal Register notice announcing the finalization of the Guidance 
(81 FR 51693; August 4, 2016; https://www.federalregister.gov/documents/2016/08/04/2016-18462/technical-guidance-for-assessing-the-effects-of-anthropogenic-sound-on-marine-mammal).
    Regarding the commenters' first point, NMFS disagrees that the 
thresholds are unjustified and insufficiently conservative. The 
discussion presented in the GOA FSEIS/OEIS Section 3.8.2.3.3 (Low-
Frequency Cetaceans) and Section 3.8.3.1.11 (Frequency Weighting) 
describes the derivation of the thresholds and criteria for low 
frequency cetaceans that were used in take calculations in the proposed 
rule. Specifically, it was the low- and high-frequency cetacean 
weighting functions (see Southall et al., 2007) that were extrapolated 
from the dolphin data because of the suspected similarities of greatest 
susceptibility at best frequencies of hearing consistent with the best 
available science. The Navy used experimentally derived mid-frequency 
cetacean thresholds to assess PTS and TTS for low-frequency cetaceans, 
since mid-frequency cetaceans are the most similar to the low frequency 
group (see Southall et al., 2007; Finneran and Jenkins, 2012). Although 
the mid-frequency criteria and thresholds are applied to low frequency 
cetaceans, exposures and threshold sound exposure levels are weighted 
using the low frequency cetacean weighting function rather than the 
mid-frequency, which provides higher susceptibility to low frequency 
sound, consistent with their inferred frequencies of best hearing. Data 
for low frequency cetaceans considered in the analysis also includes 
that from Ketten (2014) for blue whales and minke whales, Ketten and 
Mountain (2014) for humpback whales, and Cranford and Krysl (2015) for 
fin whales. Observed vocalization frequencies, observed reactions to 
playback of sounds, anatomical analyses of the auditory system 
(Cranford and Krysl, 2015; Houser et al., 2001; Ketten, 2014; Ketten 
and Mountain, 2014; Parks et al., 2007), and a general understanding of 
mammalian hearing are the reasons and science behind why the 
methodology in the GOA FSEIS/OEIS and the proposed rule is justifiable. 
NMFS disagrees that the approach was not conservative given that low 
frequency cetaceans do not echolocate and that the physiology of 
mysticetes indicates a lack of sensitivity to high frequency sound.
    NMFS disagrees with the commenters' second point, as the data used 
in the Navy's and NMFS' analyses included many animals and species at 
multiple experimental facilities around the world as well as auditory 
measurements on wild animals that had stranded, in addition to 
anatomical analyses of the auditory system of mysticetes (Cranford and 
Krysl, 2015; Houser et al., 2001; Ketten, 2014; Ketten and Mountain, 
2014; Parks et al., 2007). Direct measurement of hearing sensitivity 
exists for approximately 25 species of marine mammals, including the 
following cetacean species: Atlantic white-sided dolphins (Houser et 
al., 2010a), common dolphins (Houser, Dankiewicz-Talmadge et al., 
2010), Atlantic bottlenose dolphins (Johnson, 1967), Indo-Pacific 
bottlenose dolphins (Houseret et al., 2010a), Black Sea bottlenose 
dolphins (Popov et al., 2007), striped dolphins (Kastelein et al., 
2003), white-beaked dolphins (Nachtigall et al., 2008), Risso's 
dolphins (Nachtigall et al., 2005), belugas (Finneran et al., 2005; 
White et al., 1977), long-finned pilot whales (Pacini et al., 2010), 
false killer whales (Yuen et al., 2005), killer whales (Szymanski et 
al., 1999), Gervais' beaked whales (Finneran et al., 2009), and 
Blainville's beaked whales (Pacini et al., 2011).
    Regarding the commenters' third point, the most recent publications 
by Dr. Kastelein are cited and were considered in the analysis 
presented in the GOA FSEIS/OEIS (see Kastelein et al., 2014a, 2014b, 
2015). In reference to the most recent publication involving non-pulse 
sources (sonar) from Kastelein et al. (2015), the authors found that 
the threshold shift criteria proposed by Southall et al. (2007) for 
cetaceans echolocating at high frequency (SEL 215 dB re 1 lPa2s) was 
too high for the harbor porpoise when considering high duty cycle 
sonars. Kastelein et al. (2015) documented fatiguing sounds at duty 
cycles of 10 percent (one sonar ping every 10 seconds) and 100 percent 
(one ping immediately followed by another). The high duty cycle sonar 
used in Kastelein's study were a different frequency (6-7 kHz) and 
produce sound at a higher rate than the Navy's hull-mounted mid-
frequency anti-submarine sonar, which nominally produces one ping every 
45 seconds. Therefore, the Kastelein (2015) study and its findings do 
not relate to the Navy's proposed action or the sonar sources proposed 
for use in the GOA TMAA Study Area.
    Additionally, TTS represents a physiological metric for a 
behavioral reaction and an exposure resulting in TTS has been and is 
considered an MMPA Level B harassment take. As presented in Section 
3.8.3.1.5 (Sonar and Other Active Acoustic Sources, Subsection Harbor 
Porpoises) of the GOA FSEIS/OEIS, the Navy and NMFS are aware of the 
sensitivity of harbor porpoises and have established a sound pressure 
level of 120 dB re 1 [micro]Pa as a threshold for predicting behavioral 
responses in harbor porpoises and Level B harassment takes pursuant to 
the MMPA.
    The reference to Tougaard et al. (2014) cited by the commenters has 
been considered in the GOA FSEIS/OEIS. The point raised in that 
reference was that the Southall et al. (2007) weighting functions need 
updating given there have been new studies that have since become 
available. The Navy's analysis is in fact based on an update to 
Southall et al. (2007) as detailed in Finneran and Jenkins (2012). In 
the opinion of the authors, the net result from revisions to the 
weighting functions like that used by the Navy (Finneran and Jenkins, 
2012) is that they are not guaranteed to be conservative enough 
specifically with regard to sound sources such as pile driving, ``seal 
scarers,'' and high-frequency pingers. With the exception of high 
frequency pingers, these sources are not part of the Navy's proposed 
action. As detailed in Section 3.8.3.1.2.3 (Hearing Loss; see reference 
to Finneran (2015)) in the GOA FSEIS/OEIS, the Navy and NMFS are in the 
process of reviewing the latest and best available science to further 
refine future acoustic analyses using weighting functions.
    Regarding the commenters' fourth point, NMFS and the Navy have 
incorporated empirical data on humans (see the GOA FSEIS/OEIS citations 
to Ward et al., 1958, 1959a, b; and Miller et al., 1963).
    With regard to the references cited by the commenters: Kastak et 
al. (2008) reported PTS in a harbor seal after an exposure of 202 dB 
SEL at 4.1 kHz. This exposure level is 5 dB above the PTS onset 
criteria used by the Navy in its Phase II modeling, and thus the Navy 
would have predicted PTS for this exposure. The Kastak et al. (2008) 
data are therefore consistent with the criteria and thresholds used by 
the Navy (as described in the FSEIS/OEIS). Kujawa and Liberman (2009) 
reported TTS in mice of 40 dB measured 24 hours after exposure. 
Thresholds were found to recover completely (thus there was no PTS) but 
other signs of auditory damage were found, such as neural degeneration 
and a decrease in suprathreshold evoked response amplitudes. A similar 
study by Lin et al. (2011) with guinea

[[Page 19560]]

pigs found similar results after TTS of greater than 50 dB measured 24 
hours after exposure. Since no lower level exposures were utilized, it 
is not known if the suite of auditory damage observed by Kujawa and 
Liberman (2009) and Lin et al. (2011) would have occurred with lesser 
exposures. The Navy's analyses assumed PTS (and thus injury) would 
occur after exposures producing TTS of 40 dB or more measured 
approximately 4 minutes after exposure. Therefore, the exposures used 
by Kujawa and Liberman (2009) and Lin et al. (2011) would have been 
considered injurious by the Navy criteria. Therefore, both the Kastak 
et al. (2008) and Kujawa and Liberman (2009) studies are consistent 
with the Navy's use of TTS of 40 dB, measured approximately 4 minutes 
after exposure, as an indicator for auditory injury.
    Comment 13: NRDC et al. provided several comments, which were 
originally set forth in a detailed critique by Dr. David Bain, that 
were critical of the acoustic risk function used by the Navy and NMFS 
to estimate the probability of behavioral effects that NMFS would 
classify as harassment. The commenters assert that these risk functions 
are flawed and underestimate take.
    Response: Dr. Bain's critique is not directly relevant to the 
proposed action in the GOA TMAA Study Area. It is in reference to older 
Navy EISs (2007 Hawaii Range Complex (HRC) Navy DEIS/OEIS; 2006 
Undersea Warfare Training Range (USWTR) DEIS/OEIS) that analyze 
different actions in another geographic location, and is no longer 
current as the science has evolved over the last nine years. The 
criteria and thresholds for determining potential effects on marine 
species used in the Navy's GOA FSEIS/OEIS and related consultation 
documents have been appropriately revised based on the best available 
science since the 2006 and 2007 Draft EISs, which Dr. Bain reviewed 
(see Finneran and Jenkins, 2012). Dr. Bain's critique is therefore 
dated and not directly relevant to the proposed rule or the Navy's 
analysis for the GOA TMAA Study Area as presented in the GOA FSEIS/
OEIS. Please also note that all comments from Dr. Bain's critique were 
previously responded to in the 2009 Hawaii Range Complex FEIS/OEIS and 
in more recent Navy FEIS/OEISs. Particular aspects of Dr. Bain's 
critique highlighted by the commenters are discussed in Comments and 
Responses 14 through 18.
    Comment 14: NRDC et al. commented that NMFS and the Navy rely on 
studies of temporary threshold shift in captive animals for one of 
their primary sources of data for the development of behavioral 
thresholds.
    Response: As described in the FSEIS/OEIS section 3.8.3.1.5, the 
captive behavioral data gathered while conducting TTS studies is one of 
three data sources used to inform the behavioral response function 
generated to predict takes by Level B harassment--the other two studies 
are based on observations in the wild of killer whales and North 
Atlantic right whales. In order to generate a quantitative curve to 
predict behavioral responses, very specific information is needed 
regarding what levels of sound were received that are associated with 
the specific behavioral changes observed. While not appropriate to use 
to the exclusion of wild data, captive studies provide valuable insight 
into behavioral response and support the types of precise acoustic 
measurements that are necessary for generating behavioral response 
functions. Comparatively few field studies documenting marine mammal 
responses to MFAS include the specificity of data needed to 
appropriately inform a quantitative curve. Some field studies with 
informative results have been conducted subsequent to the generation of 
the behavioral response function used here to estimate take, and these 
studies have been assessed qualitatively in our analysis and NMFS and 
Navy have determined that the behavioral response curve used here still 
represents a reasonable mechanism for estimating behavioral responses 
that rise to the level of take given the body of science available at 
this time.
    Comment 15: NRDC et al. commented that NMFS and the Navy appear to 
have misused data garnered from the Haro Strait incident by including 
only those levels of sound received by the ``J'' pod of killer whales 
when the USS Shoup was at its closest approach. They further request 
the Navy's propagation analysis for the Haro Strait event.
    Response: Details of the analysis of the Haro Strait event were 
presented in the GOA FSEIS/OEIS Section 3.8.3.1.2.6 (Behavioral 
Reactions to Sonar and Other Active Acoustic Sources; Subsection 
Odontocetes). The propagation analysis is available from the Navy upon 
request. The Navy and NMFS reviewed testimony, video, and all field 
notes from the time of the event, and have accurately used that 
documented data in the analysis for the GOA activities and the Navy 
addressed this identical comment in more detail in its response to 
comments on the Hawaii Range Complex in 2007. That data clearly 
indicated that the behaviors observed were within the species' normal 
range of behaviors and there were no immediate or general overt 
negative behavioral reactions observed at the time of the exposure. 
Furthermore, the presence of numerous small motor vessels maneuvering 
in close proximity to the orca further complicated the assessment of 
possible reactions related to sonar from a vessel and, specifically, 
the agencies determined that it was most appropriate to use the 
received levels at the closest approach of the USS Shoup because the 
effects when the whales were farther from the Shoup could not be 
deconflicted from the effects of the nearby whale-watching boats.
    Comment 16: NRDC et al. commented that NMFS and the Navy exclude a 
substantial body of controlled exposure research and opportunistic 
studies on wild animals (and some research on other experimental 
animals as well, within a behavioral experimental protocol). For 
example, NMFS and the Navy fail to include data from the July 2004 
Hanalei Bay event, in which 150-200 melon-headed whales were embayed 
for more than 24 hours during the Navy's Rim of the Pacific exercise.
    Response: NMFS disagrees. The studies cited by the commenters are 
cited in the proposed rule and in the GOA FSEIS/OEIS and were fully 
considered in the analysis. Section 3.4 of the GOA FSEIS/OEIS contains 
citations to additional controlled exposure research on wild animals 
including, for example, DeRuiter et al. (2013a, b), Defence Science and 
Technology Laboratory (2007); Claridge and Durban (2009); McCarthy et 
al. (2011); Melcon et al., 2012); Miller et al. (2011, 2012); Moretti 
et al. (2009); Southhall et al. (2011, 2012a, 2012b, 2013, 2014); 
Stimpert et al. (2014); and Tyack et al. (2011). As noted previously, 
not all studies contain the level of detailed data to be quantitatively 
incorporated into a behavioral response curve, and some of these 
studies occurred after the Navy began its modeling. However, all of the 
referenced studies have been considered qualitatively in the agency's 
analyses and our impact analyses and determinations are supported by 
the body of science on this topic.
    Regarding the Hanalei Bay event, NMFS included an extensive 
analysis of this event in the ``Stranding and Mortality'' section of 
the proposed rule (81 FR 9950, 9970-76; February 26, 2016). Please see 
that section for further information regarding NMFS' assessment and 
consideration of that event. It should be noted that NMFS considered 
active sonar transmissions a plausible, if not likely, contributing

[[Page 19561]]

factor in the Hanalei stranding in what may have been a ``confluence of 
events,'' including a unique interaction of biological and physical 
factor--most of which are not expected to occur in the Study Area or 
during GOA activities. The biological factors may have included the 
presence of an apparently uncommon, deep-diving cetacean species (and 
possibly an offshore, non-resident group), social interactions among 
the animals before or after they entered the Bay, and/or unknown 
predator or prey conditions. The physical factors may have included the 
presence of nearby deep water, multiple vessels transiting in a 
directed manner while transmitting active sonar over a sustained 
period, the presence of surface sound ducting conditions, and/or 
intermittent and random human interactions while the animals were in 
the Bay.
    Comment 17: NRDC et al. commented that NMFS and the Navy also fail 
to incorporate data on harbor porpoises and beaked whales in their 
dataset.
    Response: NMFS disagrees with the commenters' assessment. The Navy 
and NMFS have used studies on harbor porpoises and beaked whales in the 
data sets used for analysis. Please see Section 3.8.3.1.5 (Sonar and 
Other Active Acoustic Source) of the GOA FSEIS/OEIS where this 
information is presented. The analysis includes, for example, data from 
both captive and wild harbor porpoises (see Kastelein et al. (2000, 
2005b) and Johnston (2002)) and behavioral responses from a wild 
population of beaked whales as documented by Tyack et al. (2011). 
Please also refer to the cited Finneran and Jenkins (2012) for 
additional details. Finally, please see the discussions presented in 
Section 3.8.3.1.6.4 of the GOA FSEIS/OEIS (Model Assumptions and 
Limitations), which describes the numerous conservative assumptions 
incorporated into the Navy's model.
    Last, in further and more specific quantitative acknowledgement of 
the sensitivity of these species, more conservative step functions are 
used to evaluate behavioral disturbance (i.e., estimate take) to beaked 
whales and harbor porpoises (140 and 120 dB, respectively).
    Comment 18: NRDC et al. commented that the risk function should 
have taken into account the social ecology of some marine mammal 
species.
    Response: The Navy and NMFS have taken these factors into account 
to the best extent practical given limitations in the model and 
available science. Although the state of science is not complete in 
terms of group response by species, life stage, or even behavioral 
context in which an individual or group experiences an anthropogenic 
sound, as detailed in the GOA FSEIS/OEIS Section 3.8.3.1.6.3 (Navy 
Acoustic Effects Model) and the Navy's Determination of Acoustic 
Effects Technical Report (Marine Species Modeling Team, 2015), group 
size is accounted for in the modeling of acoustic effects, not in the 
risk function. The risk function predicts the percentage of the number 
of individuals exposed above a given level that will be taken. The 
model deals with the distribution of animats (virtual representations 
of animals) derived from density, associated group size, and depth 
distribution, and, therefore, the model is where group size can be 
addressed. Furthermore, just as one could hypothesize a na[iuml]ve 
animal on its own could potentially influence the behavior of the whole 
group with negative effect (resulting in a group behavioral reaction), 
so might an experienced individual influence the behavior of the whole 
group with positive effect and calm the pod so there is no reaction 
rising to the level of a take in any individual or the pod as a whole. 
In summary, the current model process (risk function, modeling) does 
the best job of averaging multiple inputs as well as estimating the 
most representative take possible.
    Comment 19: NRDC et al. commented that NMFS' threshold is applied 
in such a way as to preclude any assessment of long-term behavioral 
impacts on marine mammals. It does not account, to any degree, for the 
problem of repetition: The way that apparently insignificant impacts, 
such as subtle changes in dive times or vocalization patterns, can 
become significant if experienced repeatedly or over time.
    Response: NMFS disagrees. Specifically, NMFS' thresholds are not 
designed to analyze long-term impacts or repetition; they are designed 
to predict individual acute behavioral responses. Assessments of long-
term impacts are addressed qualitatively in the narrative. This 
analysis is presented in the GOA FSEIS/OEIS in Section 3.8.3.1.3 (Long-
Term Consequences to the Individual and the Population) and Section 
3.8.4 (Summary of Impacts (Combined Impacts of all Stressors) on Marine 
Mammals) where cumulative impacts are addressed, as well as in the 
Analysis and Negligible Impact Determination section of this rule. 
Assessment of long-term cumulative impacts to species and stocks is 
also represented by the discussion in Section 3.8.5 of the GOA FSEIS/
OEIS (Summary of Observations During Previous Navy Activities). Of 
note, NMFS finds that the vast majority of impacts expected from sonar 
exposure and underwater detonations will be behavioral in nature, 
temporary and comparatively short in duration, relatively infrequent, 
and specifically not of the type or severity that would be expected to 
be additive for the small portion of the stocks and species likely to 
be exposed.
    This analysis is further corroborated by the healthy, and in some 
locations, increasing marine mammal populations, where sonar use has 
been occurring for decades and is frequently in use on an annual basis, 
such as on instrumented ranges. As noted previously, there is no 
evidence that Navy activities have had or are having any long-term 
impact on marine mammal populations or stocks. For more information, 
see the Long-Term Consequences discussion in the ``Analysis and 
Negligible Impact Determination'' section of this rule.
    Finally, the proposed Navy training activities will occur over a 
short period of time (up to 21 days) once a year. Further, with the 
change in preferred alternative to Alternative 1, the Navy activities, 
and resulting predicted takes, have essentially been reduced by half 
and consist of mainly low-level behavioral responses and occasional 
occurrences of TTS, with only 4 Level A harassment takes estimated for 
one species. As a result, long-term behavioral impacts on marine 
mammals within the GOA TMAA during the Northern Edge exercise are 
unlikely to occur.
    Comment 20: NRDC et al. commented that while NMFS and the Navy have 
assigned a specific threshold to beaked whales, in light of Tyack et 
al. (2011), it is clear that some beaked whales are taken on exposure 
to mid frequency sonar at levels below 140 decibels (SPL).
    Response: The Navy and NMFS specifically considered the Tyack et 
al. (2011) study, which was cited in the GOA FSEIS/OEIS and proposed 
rule, and its findings were incorporated into the threshold for beaked 
whales (see the GOA FSEIS/OEIS Section 3.4.3.1.6 (Behavioral 
Reactions)). During Tyack et al.'s (2011) research at the Navy's fixed 
tracking range in the Bahamas, animals were observed to leave the 
immediate area of the anti-submarine warfare training exercise 
(avoiding the sonar acoustic footprint at a distance where the received 
level was ``around 140 dB'' SPL. Further, Moretti et al. (2014) 
recently derived an empirical risk function for Blainville's beaked 
whale that predicts there is a 0.5 probability of disturbance at a 
received level of 150 dB SPL, suggesting that in some cases the current 
step function may over-estimate

[[Page 19562]]

the effects of an activity using sonar on beaked whales. Therefore, 
NMFS has concluded that, based on the best available science, 140 dB re 
1[mu]Pa (root mean square) is a conservative and appropriate threshold 
for predicting potential behavioral effects on beaked whales from sonar 
signals.
    Comment 21: NRDC et al. commented that there are additional flaws 
in the Navy's acoustic effects modeling, which include: a lack of any 
indication that the Navy has accounted for reverberation effects in its 
modeling, or that its modeling sufficiently represents areas in which 
the risk of reverberation is greatest; and a failure to consider the 
possible synergistic effects on marine mammal physiology and behavior 
of using multiple acoustic sources in spatial and temporal proximity.
    Response: NMFS disagrees. As presented in the Section 3.8.3.1.6.3 
(Navy Acoustic Effects Model) of the GOA FSEIS/OEIS and in the 
referenced modeling technical report (Marine Species Modeling Team, 
2015), the Navy's acoustic effects modeling incorporates the most up to 
date marine mammal density data and oceanographic data for the 
quantification of predicted acoustic impacts to marine mammals. 
Contrary to the assertions in the comment, the model does account for a 
fully three-dimensional environment in calculating sound propagation 
and exposures incorporating site-specific bathymetry, sound speed 
profiles, wind speed, and bottom properties into the propagation 
modeling process. As noted in the GOA FSEIS/OEIS, the modeling accounts 
for all sources within a scenario simultaneously, so this modeling 
approach specifically accounts for the combined (additive) effects from 
using multiple acoustic sources in spatial and temporal proximity 
(i.e., the cumulative SEL is a composite of all sources received by the 
animat). Multiple conservative assumptions are incorporated into the 
model.
    Comment 22: The Commission recommended that NMFS require the Navy 
to provide the predicted average and maximum ranges for all impact 
criteria (i.e., behavioral response, TTS, PTS, onset slight lung 
injury, onset slight gastrointestinal injury, and onset mortality), for 
all activities (i.e., based on the activity category and representative 
source bins and including ranges for more than 1 ping), and for all 
functional hearing groups of marine mammals within the GOA TMAA.
    Response: Ranges to effects for all criteria and functional hearing 
groups are provided for representative active sonars and explosives 
(Section 3.8.3.3.1.1, Range to Effects) in the GOA FSEIS/OEIS. Table 6 
in this rule provides updated ranges to PTS and TTS for the major 
activity types in the context of the applicable mitigation measures. 
Changes for different taxa were described in more detail in the 
``Summary of Request'' section of this Notice. See the ``Summary of 
Request'' section for further detail.
    Generally speaking, for the modeled ranges, the representative 
sources include the most powerful active sonar source and the charge 
with the largest net explosive weight analyzed. NMFS believes that 
these representative sources provide adequate information to analyze 
potential effects on marine mammals. Because the Navy conducts training 
in a variety of environments having variable acoustic propagation 
conditions, variations in acoustic propagation conditions are 
considered in the Navy's acoustic modeling and the quantitative 
analysis of acoustic impacts. Average ranges to effect are provided in 
the GOA FSEIS/OEIS to show the reader typical zones of impact around 
representative sources rather than an inclusive list of source bins. As 
presented in Chapter 5 of the GOA FSEIS/OEIS, the mitigation is the 
same for all bins within the activity category. The presentation of a 
maximum range based on a worst case analysis under extreme conditions 
would fail to be representative and therefore potentially confuse 
readers by presentation of a range to effects that are extremely 
unlikely to ever be present in actual real world conditions.
    Because the ranges to PTS for acoustic sources are relatively 
short, the ranges to PTS presented in the GOA FSEIS/OEIS are 
representative of the ranges for purposes of the discussion. In short, 
the information provided in the GOA FSEIS/OEIS (and updated in Table 6 
here) should be considered applicable to the GOA TMAA Study Area. The 
approximate maximum ranges to TTS provided in the GOA FSEIS/OEIS (Table 
3.8-12) are also representative of the ranges to effect and are 
provided in the FSEIS/OEIS to show the typical zones of impact around 
representative sources.
    As explained in the GOA FSEIS/OEIS in Section 3.8.3.3.1.1 (Range to 
Effects), there is no reason to show a PTS range for more than one ping 
because of the short distances over which a PTS has the potential to 
occur. For the case of the most powerful hull-mounted source (hull-
mounted mid-frequency anti-submarine warfare sonar) the ship moves 
beyond the PTS zone for each successive ping and there is no difference 
in magnitude of successive pings. Refer to Section 3.8.3.1.1 (Non-
impulsive and Impulsive Sound Sources) of the GOA FSEIS/OEIS. Pings 
occur approximately every 50 seconds, and each subsequent ping has the 
same approximate range to PTS from the bow of the ship as the first 
ping. Therefore, there is not sufficient overlapping energy from one 
ping to the next to make presentation of multiple pings useful. As 
noted in the comment and presented in the GOA FSEIS/OEIS, an animal 
would have to be exposed at the TTS level by the first ping and then 
continue parallel to the ship within close proximity for 50 seconds to 
receive a second ping, potentially resulting in a PTS level exposure. 
Given the science detailed in the GOA FSEIS/OEIS (see Section 
3.8.3.1.7, Marine Mammal Avoidance of Sound Exposures) indicating that 
marine mammals will behaviorally avoid high levels of sound, the 
assumption that a marine mammal would not remain alongside a pinging 
vessel is a simple but reasonable assumption. The GOA FSEIS/OEIS and 
this final rule conclude that it is unlikely for an animal to maintain 
a speed of 10 knots and stay in close proximity to a vessel using 
active sonar. As presented in the GOA FSEIS/OEIS (see Section 
3.8.3.3.1.1, Range to Effects), while 10 knots was the ship's speed 
used in the model, a ship engaged in anti-submarine warfare training 
could be moving at between 10 and 15 knots. For a Navy vessel moving at 
a nominal 10 knots, it is unlikely a marine mammal could maintain the 
speed to parallel the ship and receive adequate energy over successive 
pings to result in a PTS exposure.

Mitigation and Monitoring

    Comment 23: The Commission and other commenters recommended that 
NMFS require the Navy to use passive and active acoustics, whenever 
practicable, to supplement visual monitoring during the implementation 
of its mitigation measures for all activities that could cause PTS, 
injury, or mortality beyond those explosive activities for which 
passive acoustics already was proposed (commenters also specifically 
suggested modifying sonobuoys for this purpose). NRDC et al. also 
suggested use of dedicated passive acoustic monitoring to detect 
vocalizing species, through established and portable range 
instrumentation and the use of hydrophone arrays off instrumented 
ranges. The Commission also questioned why passive and active acoustic 
monitoring used during the Navy's Surveillance Towed Array Sensory 
System Low Frequency Active

[[Page 19563]]

(SURTASS LFA) activities is not applied here.
    Response: The primary purpose of the mitigation shutdowns is to 
avoid injury, most TTS, and more severe instances of behavioral 
disturbance. We note that in the current mitigation paradigm, without 
additional PAM or active acoustic detection as recommended by the 
Commission and other commenters, only four individual Dall's porpoises 
are anticipated to incur PTS, Level B harassment resulting in TTS is 
anticipated for a small number of marine mammals from a few species, 
and modeling predicts that zero percent of the Level B harassment takes 
result from exposure at closer than 1,825 m (less than 1-2 percent at 
closer than 4 km), which is where the mitigation shutdowns would apply. 
For the reasons described below, when the minimal potential likelihood 
of reducing impacts to marine mammal species or stocks and their 
habitat is weighed along with the degree of impracticability for 
implementing the measures suggested by commenters, NMFS finds that 
requiring such additional mitigation is unwarranted.
    Passive acoustic monitoring is already and will continue to be 
implemented. As mentioned in Chapter 5 (Standard Operating Procedures, 
Mitigation, and Monitoring) of the GOA FSEIS/OEIS and the 
``Mitigation'' section of this final rule, passive acoustic monitoring 
would be conducted with Navy assets, such as passive ships sonar 
systems or sonobuoys, already participating in the activity. The Navy 
does not have the resources to construct and maintain passive acoustic 
monitoring (PAM) systems for each training and testing activity. 
Discussion in the GOA FSEIS/OEIS Section 5.3.3.1.11 (Increasing Visual 
and Passive Acoustic Observations) further articulates why increased 
use of passive acoustics for the purpose of mitigation would be 
impractical with regard to implementation of military readiness 
activities and result in an unacceptable impact on readiness. 
Additionally, mitigation measures were developed based on predicted 
potential impacts; therefore, the use of acoustic monitoring is not 
always warranted, nor practicable from an operational standpoint (GOA 
FSEIS/OEIS Section 5.3.2.1, Acoustic Stressors). The Navy's visual 
mitigation has been demonstrated to be effective over the 8 years of 
monitoring associated with Navy training and testing at sea as 
reflected in publically available reports submitted to NMFS since 2006 
and accessible on the NMFS Office of Protected Resources Web site 
(http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm) (see 
Section 3.8.5, Summary of Observations During Previous Navy Activities, 
of the GOA FSEIS/OEIS, for more information in this regard).
    Regarding its effectiveness, passive, and active in specific cases, 
acoustic detection can increase the likelihood of detecting marine 
mammals for the purposes of implementing mitigation, although passive 
acoustic detection can only be effective when animals are vocalizing, 
and when they are vocalizing at a level and in a direction that will be 
detected and recognized by the sensor (only a subset of the time). 
Also, with the exception of the largest sound sources, the size of any 
ensonified zone combined with the density of marine mammals and the 
likelihood that they avoid loud sounds, there is only a relatively 
small number of times (compared to overall scope of exercises) that we 
would predict that animals would come within distances that require 
shutdowns (as noted above), and that would be further improved by the 
use of PAM. Additionally, sophisticated use of multiple sensors is 
needed in order to predict the distance and bearing of the vocalizing 
animals that is needed to justify implementing a shutdown. The 
effectiveness of PAM for mitigation implementation is somewhat further 
impeded by fast moving sources because of the constantly changing 
location of the marine mammal in relation to the moving source combined 
with the inability to detect the direction of movement of the animal in 
the moment it is detected. PAM is expensive and operationally 
challenging (or impossible) to implement in many cases and the Navy 
uses thousands of sound sources across its exercises. As described 
above, Navy uses PAM in certain activities where the risk is higher 
(e.g., explosives or some hull-mounted sonar), and/or where it is 
notably much more practicable to use (e.g., for stationary sources such 
as the Improved Extending Echo-ranging (IEER) system, which is a field 
of multiple sources). However, given the limited added conservation 
value added by using PAM to implement mitigation, combined with the 
impracticability of doing so in many cases, NMFS does not believe that 
additional use of PAM is warranted for all sources and we believe that 
the PAM use required by these regulations contributes to ensuring the 
least practicable adverse impact on the effected marine mammal species 
and stocks and their habitat.
    The SURTASS LFA platforms are slow moving and deploy a high 
frequency active sonar (HF/M3) to identify marine mammals in close 
proximity (2 km) to the SURTASS LFA vessel. The active sonar system 
used by SURTASS LFA is built into the system's vertical array and can 
only be employed in this fashion from a slow-moving or stationary 
platform. It is not possible to employ this system on the types of 
vessels used for the GOA training activities because a vertical array 
cannot be used on other ship classes whose mission includes speed and 
tactical movement while protecting aircraft carriers and other high 
value units. Further, in addition to the difficulty in implementation, 
NMFS does not generally support the use of active acoustic monitoring 
except in cases where it is mitigating an effect of potentially very 
high or singular severity and there is a high likelihood of successful 
use (stationery or slow-moving platforms), as it essentially equates to 
harassing marine mammals by putting the active detection signal in the 
water in order to prevent harassing marine mammals with the main sound 
source for which takes are being authorized. NMFS has only previously 
considered the use of active acoustic detection in a few situations, 
one for SURTASS LFA (actually implemented), in which the HF active 
acoustics are used from a slow-moving platform to implement mitigation 
and avoid impacts from a very high-level LF source, and two other 
situations that were never implemented--one from a dock for testing a 
very loud source in port, and one from a large piece of heavy machinery 
wherein bodily injury was a possibility.
    Modifying sonobuoys to increase their bandwidth is considered 
impractical for the Navy because it would require significant 
modification to the sonobuoy receiving equipment at a substantial cost 
and reduce the effectiveness of the sonobuoy system's ability to detect 
submarines. See section 5.3.3.1.13 of the GOA FSEIS/OEIS (Increasing 
Visual and Passive Acoustic Observations) for further information 
regarding the use of passive sensors.
    Comment 24: NRDC et al. commented that NMFS should restrict the 
Navy's active sonar and explosives training activities around certain 
important habitat areas--specifically, marine protected areas (MPAs) 
and recently identified and published biologically important areas (see 
Ferguson et al., 2015) located within or in close proximity to the GOA 
TMAA. NRDC et al. also recommended that NMFS identify other time/area 
closures as informed by the following: (1) Temporally and spatially 
well-defined phytoplankton blooms occurring in portions of the TMAA and 
driven by the

[[Page 19564]]

tides, bathymetry, and eddy systems of the northern and central Gulf of 
Alaska; (2) relative densities of large whales within the April to 
October period as informed by BIA and call rate data; (3) temporal and 
spatial differences in the depth of the mixed layer and the sonic layer 
which can create different surface ducting conditions; and (4) review 
of major seamounts, representing potentially biologically important 
habitat for multiple species, within the GOA TMAA.
    Other commenters recommended similar time/area-specific mitigation 
for Navy training activities, including avoidance of seamounts and 
BIAs, and restriction of training during the spring/summer time period.
    Response: Mitigation measures that include spatio-temporal 
avoidance of biologically important areas, MPAs, and other marine 
species habitat (e.g., seamounts) within the GOA TMAA Study Area were 
fully considered and are discussed in the ``Consideration of Time/Area 
Limitations'' section of this final rule.
    As discussed in the proposed and final rules and in the GOA FSEIS/
OEIS, biologically important feeding areas for North Pacific right 
whale and migration areas for gray whale (Ferguson et al., 2015) 
overlap small portions of the western edge/corners of the TMAA. The 
overlap is small both spatially for both, and temporally for gray whale 
migration (November through January and March through May; Navy 
activities within the TMAA have historically occurred in summer 
months). As discussed in ``Consideration of Time/Area Limitations,'' it 
is unlikely that Navy explosive and sonar training would occur in these 
nearshore locations adjacent to the GOA TMAA boundary where the overlap 
with BIAs occurs. Therefore, North Pacific right whales and gray whales 
in the feeding or migration areas at these boundaries of the GOA TMAA 
are unlikely to have their feeding or migration activities affected by 
Navy training activities using sonar and other active acoustic sources. 
However, after considering the small population size of North Pacific 
right whales, the rarity of their detections and general lack of 
sightings within the GOA TMAA, and the extremely limited current 
information about this species, NMFS is requiring a North Pacific right 
whale ``Cautionary Area'' between June and September in the overlapping 
2,051 km\2\ portion of the North Pacific right whale feeding area (See 
Figure 3.8-4 of the GOA FSEIS/OEIS), in which no hull-mounted sonar or 
explosives would be used within the portion of the feeding area that 
overlaps the Navy's GOA TMAA during those months, except when required 
by national security needs. In the event of national security needs, 
the Navy would be required to seek approval in advance from the 
Commander, U.S. Third Fleet prior to conducting training activities 
using sonar or explosives. NMFS believes that implementation of this 
North Pacific right whale Cautionary Area within the GOA TMAA may 
provide additional protection of this species and stock beyond the 
mitigation measures already proposed by the Navy in the proposed rule 
and GOA FSEIS/OEIS. In the case of the gray whale migratory area, given 
the extremely minimal spatio-temporal overlap with Navy training 
activities in the GOA TMAA, coupled with the fact that no takes of gray 
whale are predicted to occur with the proposed level of training 
effort, NMFS has determined that additional mitigation measures related 
to time/area limitations of Navy training activities within the 
overlapping portion of the migratory area are not warranted, nor would 
avoidance of this area contribute to the least practicable impact 
standard or any lessening of the likelihood of adverse impacts on the 
species or stocks.
    Very few MPAs are located near or within the GOA TMAA. MPAs vary 
widely in purpose, level of protection, and restrictions on human uses. 
As discussed in ``Consideration of Time/Area Limitations'' and in the 
GOA FSEIS/OEIS, MPAs in the vicinity of the GOA TMAA generally focus on 
natural heritage, fishery management, and sustainable production. The 
identified impacts and purpose for the designation of these areas is to 
limit or restrict specific fishing activities, and the Navy would fully 
abide by the regulations (mainly restrictions on commercial and 
recreational fishing) of the individual MPA and relevant resources. 
Since the Navy does not engage in fishing activities, restricting Navy 
training activities in these areas would be ineffective at preventing 
the identified impacts caused by fishing. Our issuance of an 
authorization to take marine mammals would not conflict with the 
management, protection, or conservation objectives of these MPAs. 
Therefore, NMFS has determined that Navy avoidance of these areas is 
not warranted, nor would it contribute to the least practicable impact 
standard or any lessening of the likelihood of adverse impacts on 
species or stocks.
    While seamounts may represent important habitat for multiple 
species (including marine mammals), the major seamounts located within 
the TMAA (e.g., Dall, Quinn, and Giacomini seamounts) have been 
designated by NOAA as Gulf of Alaska Seamount Habitat Protection Areas 
specifically to help maintain productivity of fisheries resources 
through restrictions on bottom fishing. Moreover, NMFS' review of the 
passive acoustic monitoring results in the Navy's annual monitoring 
reports (2011-2015) for GOA generally does not suggest significantly 
greater use of these seamounts by marine mammals (at least for those 
where HARPS were deployed; it is also important to note that an animal 
may be located several miles away from where it is detected) compared 
to other locations (shelf and slope) where detections were recorded. 
Navy monitoring efforts indicate that beaked whales appear to use both 
shelf and seamount sites, although detections were generally low at the 
monitored seamount sites within the TMAA and may in fact be more 
prevalent at the slope site. Fin and humpback callings peaked in winter 
when Navy activities are not proposed to occur. Fin and sperm whale 
detections were generally more prevalent at shelf and slope sites, 
respectively. Blue whale calls were detected at all sites. North 
Pacific right whale calls were last detected in 2013, on the Quinn 
Seamount site; however, analysis of these detections indicated that the 
calls were detected from ranges on the order of roughly up to 50 nm to 
the east of the site; the calling animal was not in the vicinity of 
Quinn Seamount (Debich et al., 2014; [Scaron]irovi[cacute] et al., 
2014). The Navy has been training with sonar and other systems for 
decades in locations having seamounts or slope areas, or that are 
adjacent to continental shelfs where, to date, there has been no 
evidence of any long-term consequences for individuals or populations 
of marine mammals. This finding is based on years of research and 
monitoring that show, for example, higher densities and long-term 
residency by species such as beaked whales in Southern California, 
where the Navy trains and tests, than in other adjacent areas. Further, 
the Navy has identified the need to train in varied bathymetric 
conditions, including around seamounts specifically. Restricting Navy 
training to areas away from these bathymetric features would eliminate 
the ability to train as needed in these complex environments and would 
reduce the realism of the military readiness activity, while 
simultaneously providing limited protective value.
    It is not practicable to require limited activity during 
phytoplankton blooms. The key consideration is these features are 
highly variable temporally and spatially throughout the entire Gulf of

[[Page 19565]]

Alaska both inside and outside of the TMAA. Monthly, annual, inter-
annual, and decadal oceanographic conditions will drive the 
establishment and disestablishment of these areas which cannot be 
predicted in terms of the GOA TMAA authorization. In review of 15 years 
of oceanographic data from 1992-2006, Henson and Thomas (2008) for 
instance discuss how anticyclonic oceanographic eddies that pull most 
of the near shelf nutrients into offshore waters can have substantial 
inter-annual variability in number and propagation paths from east to 
west. These eddy zones and entrained nutrients would highly influence 
phytoplankton blooms. Henson and Thomas (2008) also showed seasonal 
patterns with strongest spring and summer eddy zones likely to be in 
the north-northeast slope area of the Gulf of Alaska, in areas outside 
of the GOA TMAA. Late spring and early summer (May to July) is the most 
likely period for any Navy major training event. Given this degree of 
variability, it would be impractical to consider on an annual basis 
which areas would likely contain the presence of these phytoplankton 
blooms, or how long a given bloom would persist even if an eddy were 
present.
    NMFS notes that the call rate data cited by the commenters, as well 
as the Navy's more recent and more robust passive acoustic data from 
2011-2015, only provide occurrence specifically for that part of a 
given species' population that may be calling at a particular time. The 
Navy data set alone represents over 58,953 hours or 2,456 days' worth 
of passive acoustic data that has been collected, analyzed, and results 
reported. The science of density and relative density estimation from 
passive acoustic data is still being researched under funding from 
several different Navy programs. For example, the current Navy funded 
research is focusing on aspects such as the proper characterization of 
calling rates, range of detection, and group size, all of which can 
vary by species, region, time of year/day, sex, etc. All of these 
variables can impact the resulting density estimate, and therefore the 
method of incorporating these variables needs to be investigated 
further. Meanwhile, the best available density data (available at 
https://www.goaeis.com/Documents/SupplementalEISOEISDocumentsandReferences/SupportingTechnicalDocuments.aspx), which was used in the Navy's FSEIS/
OEIS and this rule to calculate take, does not support the designation 
of restricted areas within the TMAA. First, density estimates for many 
of the species are uniform across the entire TMAA (e.g., Cuvier's 
beaked whales, Minke whales, gray whales) and other species have simple 
models with only a few strata (meaning that there is one uniform 
density value in a zone, with a few zones: Typically shelf, slope, 
deep, and sometimes a differential at the southern edge of the deep 
water that is closer to the sea mounts), but different strata are high-
density for different species. For example, fin whales are densest on 
the shelf, decreasing in slope strata, with lowest density in deep 
water, while sei whales are densest in the deep waters and least dense 
on the shelf. This means that restricting activities in one area that 
is important to one species would intensify activities in an area that 
is important to another species. Additionally, the Navy has 
specifically noted the importance of training across these multiple 
bathymetric features, so creating a time/area closure that mirrors a 
bathymetric strata (e.g., the whole slope, or the whole shelf) is 
inherently detrimental to the Navy's mission. Separately, though, the 
Navy has also noted in the description of its action that more 
hazardous activities, such as those that use explosives, are generally 
not conducted on the edges of the TMAA, due to safety and proximity to 
coastal areas.
    With respect to surface ducting conditions, environmental 
conditions in the Gulf of Alaska during the timeframe when Navy 
training activities would generally occur do not support surface 
ducting conditions. A surface duct requires cold water at the surface 
with warmer water at deeper depths which is highly unlikely during the 
warmer summer months in the Gulf of Alaska when training has 
historically occurred. In addition, there has been no indication that 
mixed layer depth has any direct influence on marine mammal behavior or 
response to anthropogenic sounds.
    Regarding the benefits of the proposed time/area limitations that 
NMFS has decided not to require, it is possible that the application of 
one or more of these areas could potentially decrease the number of 
takes of one species or another, depending on when and where the 
exercise ended up taking place. However, as we have explained, due to 
the nature of the exercise (short duration) and the effectiveness of 
the existing mitigation measures, the anticipated impacts are already 
expected to be primarily lower-level behavioral responses and are not 
anticipated to occur in times or places where impacts would be more 
likely to lead to fitness effects on individuals. When the limited 
anticipated potential benefit to marine mammal species and stocks of 
applying these measures is combined with the impracticability of 
implementation, NMFS has concluded that requiring these measures is not 
warranted. NMFS has determined that the mitigation measures required by 
this rule, including those clarified or updated above (see 
``Consideration of Time/Area Limitation''), are adequate means of 
effecting the least practicable adverse impacts on marine mammals 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.
    NMFS agrees with NRDC and other commenters that there continues to 
be a need to better understand the spatial distribution and occurrence 
of marine mammals within the Gulf of Alaska, including the use of 
potentially important habitat areas within the GOA TMAA. Therefore, 
NMFS envisions a more focused monitoring effort in the GOA TMAA during 
the Phase II training activities. Objectives of any future monitoring 
in the GOA TMAA will be discussed during upcoming NMFS-Navy adaptive 
management meetings in 2017.
    Comment 25: NRDC et al. suggested the use of sonar and other active 
acoustic systems at the lowest practicable source level, with clear 
standards and reporting requirements for different testing and training 
scenarios.
    Response: The Navy uses active sonar at the lowest practicable 
source level consistent with mission requirements. See Section 
5.3.3.1.3 of the GOA FSEIS/OEIS (Reducing Sonar Source Levels and Total 
Number of Hours) for further information.
    Comment 26: NRDC et al. suggested expansion of the marine species 
``safety zone'' to a 4 km shutdown, reflecting international best 
practice, or 2 km, reflecting the standard prescribed by the California 
Coastal Commission for similar activities in Southern California.
    Response: Section 5.3.3.1.14 of the GOA FSEIS/OEIS (Increasing the 
Size of Observed Mitigation Zones) discusses mitigation zone expansion. 
See also Section 5.3.3.1.16 of the GOA FSEIS/OEIS (Adopting Mitigation 
Measures of Foreign Navies). There is no internationally recognized 
best practice with regard to mitigation zone distance. The Navy 
developed activity-specific mitigation zones based on the Navy's 
acoustic propagation model. As described previously, each recommended 
mitigation zone is

[[Page 19566]]

intended to avoid or reduce the potential for onset of the lowest level 
of injury, PTS, out to the predicted maximum range. Mitigating to the 
predicted maximum range to PTS consequently also mitigates to the 
predicted maximum range to onset mortality (1 percent mortality), onset 
slight lung injury, and onset slight gastrointestinal tract injury, 
since the maximum range to effects for these criteria are shorter than 
for PTS. Furthermore, in many cases, the mitigation zone actually 
covers the TTS zone.
    Implementation of mitigation measures is most effective when the 
mitigation zone is appropriately sized to be realistically observed. 
The mitigation zones contained in this final rule represent the maximum 
area the Navy can effectively observe based on the platform of 
observation, number of personnel that will be involved, and the number 
and type of assets and resources available. As mitigation zone sizes 
increase, the potential for reducing impacts decreases. For instance, 
if a mitigation zone increases from 1,000 to 4,000 yd (914 to 3,658 m), 
the area that must be observed increases sixteen-fold, which is not 
practicable. The Navy does not have the resources to maintain 
additional Lookouts or observer platforms that would be needed to 
effectively observe mitigation zones of increased size. The mitigation 
zones contained in this final rule balance the need to reduce potential 
impacts with the Navy's ability to provide effective observations 
throughout a given area.
    Comment 27: NRDC et al. suggested that the Navy delay or relocate 
activities when beaked whales are detected through passive acoustic 
monitoring and when significant aggregations of any species or 
particularly vulnerable or endangered species (or even sightings of 
single North Pacific right whales) are detected by any means in the 
vicinity of an exercise, even if potentially occurring beyond the 
established mitigation zone.
    Response: Mitigation will be implemented within the mitigation zone 
for all marine mammals regardless of species or numbers of animals if 
they approach or enter a mitigation zone. NMFS disagrees that it is 
necessary to delay or relocate activities when beaked whales, North 
Pacific right whales, other sensitive species, or significant 
aggregations of marine mammals are detected outside the mitigation 
zones. For the GOA activities, the Navy developed each recommended 
mitigation zone to avoid or reduce the potential for onset of the 
lowest level of injury, PTS, out to the predicted maximum range. 
Furthermore, in many cases, the predicted maximum range to PTS also 
consequently covers the predicted average range to TTS and further 
alleviates the likelihood of more severe behavioral responses that 
might be anticipated at higher level exposures. The activity-specific 
mitigation zones are based on the longest range for all the functional 
hearing groups. The mitigation zone for a majority of activities is 
driven by either the high-frequency cetaceans or the sea turtle 
functional hearing groups. Therefore, the mitigation zones are even 
more protective for the remaining functional hearing groups (i.e., low-
frequency cetaceans, mid-frequency cetaceans, and pinnipeds). The 
predicted ranges are based on local environmental conditions and are 
unique to the GOA TMAA Study Area.
    With respect to passive acoustic monitoring, all passive acoustic 
detections will be reported to Lookouts to increase vigilance of the 
visual surveillance. However, as stated previously, passive acoustic 
monitoring can neither provide range or bearing to detected animals, 
and therefore cannot provide locations of these animals.
    As described previously, Navy watchstanders report both inanimate 
objects and marine mammals. Although they attend training to understand 
more about marine mammals, they are not expected to be able to identify 
animals at the species level and they report only with the specificity 
that they can (typically whether the marine mammal observed was a 
whale, dolphin, or pinniped). Therefore, they would not be able to 
implement mitigation measures that require identification of specific 
species (and we have described previously why the Navy cannot utilize 
non-Navy trained observers). Moreover, the 2011 and 2015 exercise 
reports for GOA indicate that during these previous training exercises, 
watchstanders had a total of 4 and 31 sightings, respectively (10 and 
68 marine mammals). Only 2 sightings occurred when sonar was operating. 
Only 5 sightings included more than 3 animals, and the vast majority 
were of a single animal. This data suggests that shutting down for 
aggregations would not actually occur with any regularity and would 
not, therefore, be expected to contribute to any meaningful reduction 
of impacts on marine mammals.
    The additional mitigation measure recommended by commenters is 
designed to further reduce the numbers of takes by Level B harassment, 
focusing on aggregations or endangered species. One point that is often 
overlooked is that when a training exercise is interrupted for a 
shutdown, it does not just start back up; training exercises often 
involve a series of actions and movements that develop over a period of 
time. Also, the effectiveness of some of the exercises involving 
certain types of targets with a limited battery life can be jeopardized 
if restarts result in the exercise length exceeding the needed battery 
life. It is difficult to predict how much of an exercise will need to 
be redone, but it is safe to say that shutting down will typically 
result in a longer total duration of sound source operation as 
operators reacquire targets or otherwise get back to where they were 
before the shutdown--potentially increasing impacts.
    In short, the existing mitigation measures for marine mammals 
minimize the likelihood of PTS, TTS, or more severe behavioral 
responses and, with the addition of the North Pacific Right Whale 
Cautionary Area, ensure that takes are not occurring in particularly 
important areas or times that would be more likely to result in impacts 
on individual fitness. Additionally, as explained throughout this final 
rule, the predicted Level B harassment authorized is expected to be of 
a lower level type of effect, of short duration, and unlikely to 
adversely impact reproductive success or survivorship of any 
individuals (the type of effects that would lead to population-level 
impacts). Further, there are comparatively low numbers of Level B 
harassment authorized for endangered and threatened whales, and only 
three annual takes of North Pacific right whales. In addition to the 
fact that the current watchstander requirements do not support the 
implementation of any measures that require species identification, 
shutdowns beyond those currently recommended to minimize more severe 
effects will have limited, if any, ability to reduce impacts on marine 
mammal species or stocks and their habitat, while being disruptive to 
Navy training and potentially lengthening the overall time that sound 
sources are operating. For these reasons, NMFS does not believe that 
these measures are warranted.
    Comment 28: NRDC et al. suggested use of simulated geography (and 
other work-arounds) to reduce or eliminate chokepoint exercises in 
near-coastal environments, particularly within canyons and channels, 
and use of other important habitat. Other commenters recommended Navy 
simulation of training activities as well.
    Response: There are no chokepoint exercises in the Study Area. 
Further, the Navy does have a particular set of monitoring measures 
(intended to help

[[Page 19567]]

reduce the chance of a stranding) that would be applied if a 
combination of circumstances exist that are thought to make a stranding 
more likely (e.g., steep bathymetry, multiple vessels using sonar in a 
single area over an extended period of time, constricted channels or 
embayments). However, a combination of these environmental and 
operational features is not present in the GOA TMAA Study Area.
    As discussed in Section 2.3.2.4 (Simulated Training) of the 2011 
GOA FEIS/OEIS and Section 5.3.3.1.2 (Replacing Training with Simulated 
Activities) of the GOA FSEIS/OEIS, the Navy uses computer simulation 
for training whenever possible. However, training in near-coastal 
environments is an essential component to maintaining military 
readiness. Computer simulation can provide familiarity and complement 
live training; however, it cannot provide the fidelity and level of 
training necessary to prepare naval forces for deployment. Sound 
propagates differently in shallower water and operators must learn to 
train in this environment. Additionally, submarines have become quieter 
through the use of improved technology and have learned to hide in the 
higher ambient noise levels of the shallow waters of coastal 
environments. In real world events, it is highly likely Sailors would 
be working in, and therefore must train in, these types of areas. The 
littoral water space is also the most challenging area to operate in 
due to a diverse acoustic environment. It is not realistic or 
practicable to refrain from training in the areas that are the most 
challenging and operationally important. Operating in near-costal 
environments is essential in order to provide realistic training on 
real world combat conditions with regard to shallow water sound 
propagation.
    Comment 29: NRDC et al. suggested avoidance or reduction of 
training during months with historically significant surface ducting 
conditions; delay of activities or use of power-downs during 
significant surface ducting conditions; and use of additional power-
downs when significant surface ducting conditions coincide with other 
conditions that elevate risk.
    Response: As discussed in a previous response to comments above, 
environmental conditions in the Gulf of Alaska during the timeframe 
when Navy training activities would generally occur do not support 
surface ducting conditions. A surface duct requires cold water at the 
surface with warmer water at deeper depths which is highly unlikely 
during the warmer summer months in the Gulf of Alaska when training has 
historically occurred. In addition, although it is possible that a 
higher number of animals might be taken by Level B harassment in those 
moments when Navy training overlaps with surface ducting condition or 
be exposed to slightly higher levels than otherwise as the sound from 
nearby sources might propagate farther, there has been no indication 
that mixed layer depth has any direct influence on marine mammal 
behavior or response to anthropogenic sounds.
    NMFS also notes that avoiding or reducing active sonar during 
surface ducts for the purpose of mitigation would increase safety risks 
to personnel, be impractical with regard to implementation of military 
readiness activities, and result in unacceptable impacts on readiness 
for the following reasons: The Navy must train in the same manner as it 
will fight. Submarines have long been known to exploit the phenomena 
associated with surface ducting. Therefore, training in surface ducting 
conditions is a critical component to military readiness because sonar 
operators need to learn how sonar transmissions are altered due to 
surface ducting, how submarines may take advantage of them, and how to 
operate sonar effectively in this environment. Avoiding activities 
during periods with surface ducting conditions or requiring the use of 
power-downs during surface ducting conditions would reduce a sonar 
operator's ability to effectively operate in a real world combat 
situation, thereby resulting in an unacceptable increased risk to 
personnel safety and the ability to achieve military readiness. 
Furthermore, avoiding surface ducting would be impractical to implement 
because ocean conditions contributing to surface ducting change 
frequently, and surface ducts can be of varying duration. See section 
5.3.3.1.9 of the GOA FSEIS/OEIS for more information on avoiding or 
reducing activities during surface ducting conditions.
    In conclusion, in the case of a Navy operation overlapping with a 
surface duct, it is possible that some higher number of animals might 
be taken by Level B harassment in those moments, or exposed to slightly 
higher levels than otherwise as the sound from nearby sources might 
propagate farther--and therefore, numbers of Level B harassment might 
be lowered slightly by avoiding a surface duct. However, a slight 
reduction in takes of this sort would not be expected to contribute 
meaningfully to a reduction in adverse impacts on species or stocks 
given the already low number and level of takes anticipated and the 
fact that the existing measures are expected to minimize the likelihood 
of injury, TTS or more severe behavioral responses, and impacts to 
North Pacific Right Whales in a known feeding area. When the minimal 
potential likelihood of reducing impacts to marine mammal species or 
stocks and their habitat is weighed along with the degree of 
impracticability for implementing this measure, NMFS finds that 
requiring it is unwarranted.
    Comment 30: NRDC et al. suggested that the Navy plan their ship 
tracks to avoid embayments and provide escape routes for marine 
mammals.
    Response: First, the GOA TMAA is an open water area that does not 
include any embayments and, therefore, operations are not expected to 
block escape routes for marine mammals. Further, NMFS notes that the 
Navy has a particular set of monitoring measures (intended to help 
reduce the chance of a stranding) that would be applied if a 
combination of circumstances exist that are thought to make a stranding 
more likely (e.g., steep bathymetry, multiple vessels in a single area 
over an extended period of time, and in areas of constricted channels 
or embayments). However, a combination of these environmental and 
operational features is not present in the GOA TMAA Study Area.
    The majority of Navy training activities involving ``ship tracks'' 
would occur in the offshore portion of the Study Area and therefore 
would not involve embayments. In inland waters where there may be areas 
that could be considered embayments, ship tracks are generally 
constrained by the vessel traffic separation scheme, safety of 
operation, and mission requirements. See Section 5.3.3.1.6 of the GOA 
FSEIS/OEIS (Limiting Access to Training Locations) for further 
information regarding limiting the location of activities.
    Comment 31: Several commenters suggested that the Navy limit their 
activities to periods of good visibility. More specifically, NRDC et 
al. suggested that all weapons firing in missile and bombing exercises 
involving detonations exceeding 20 lb. net explosive weight take place 
during the period 1 hour after sunrise to 30 minutes before sunset.
    Response: NMFS believes that effective mitigation measures are 
already in place to address missile and bombing exercises. 
Specifically, explosive activities are already expected to only result 
in small amounts of take of one species (Dall's porpoise). Further, 
since the proposed rule, Navy has eliminated two SINKEXs from the

[[Page 19568]]

proposed actions and MISSILEX in the GOA TMAA do not utilize live 
ordnance.
    The Navy must train at night and in low-visibility conditions to 
ensure personnel may operate in similar conditions when required for 
actual operations. After sunset and prior to sunrise, watch personnel 
employ night visual search techniques, which could include the use of 
night vision devices. Please see the ``Mitigation'' section of the rule 
for further information. Section 5.3.3.1.8 of the GOA FSEIS/OEIS 
(Avoiding or Reducing Active Sonar at Night and During Periods of Low 
Visibility) also discusses activities conducted during varying 
environmental conditions.
    In conclusion, the anticipated impacts from explosives are already 
low and there are detection techniques in place that are expected to 
avoid some of the nighttime exposures of marine mammals. It is 
difficult to predict the added value of avoiding nighttime explosive 
exercises completely above the exposures that will be avoided by 
implementing nighttime detection techniques--and further, how this 
might translate to any reduction in the already low explosive take 
numbers for Dall's porpoise. At any rate, when this small potential 
benefit is weighed against the impracticability of the Navy being 
unable to train in realistic environments, NMFS finds that this measure 
is unwarranted.
    Comment 32: NRDC et al. suggested suspension or postponement of 
chokepoint exercises during surface ducting conditions and scheduling 
of such exercises during daylight hours.
    Response: There are no chokepoint exercises in the GOA TMAA Study 
Area. See our response to the comment above regarding avoiding or 
reducing activities during surface ducting conditions. Also, see our 
response to the comment above regarding avoidance of activities at 
night.
    Comment 33: NRDC et al. suggested use of dedicated aerial monitors 
during chokepoint exercises, major exercises, and near-coastal 
exercises.
    Response: There are no chokepoints proposed for the Study Area. 
Please refer to Section 2 of the GOA FSEIS/OEIS for a detailed 
description of the action. As described throughout Chapter 5 of the GOA 
FSEIS/OEIS and in this rule (see ``Mitigation'' section), visual 
observation (aerial and vessel-based) would be conducted in association 
with Navy activities. With respect to the potential benefits of 
specific aerial monitoring, the point of such monitoring would be to 
augment detection of marine mammals for the implementation of shutdown 
measures, which are designed to prevent PTS, minimize TTS, and minimize 
more severe behavioral responses. NMFS' response to Comment 23 
describes the minimal additional reduction of adverse impacts to marine 
mammal species or stocks that is likely to be gained by further 
increasing the effectiveness of shutdown measures. In short, zero 
percent of Level B harassment takes are expected to occur within 
approximately 1,825 m (which encompasses the shutdown area), and only 4 
injurious (PTS) takes are expected to occur to one species.
    With respect to practicability, specific aerial monitoring is not 
typically feasible given the limited duration of typical monitoring 
flights (less than four hours). In addition, there are significant 
flight safety considerations and airspace restrictions during many Navy 
exercises when larger groups of military aircraft are present in high 
numbers at various altitudes. When the minimal potential benefit of 
this measure is weighed along with the impracticability, NMFS believes 
that the measure is not warranted.
    Comment 34: NRDC et al. suggested use of aerial surveys and ship-
based surveys before, during, and after multi-unit exercises.
    Response: As described throughout Chapter 5 of the GOA FSEIS/OEIS 
and in the ``Mitigation'' section of this rule, visual observation 
(aerial and vessel-based) would be conducted in association with Navy 
activities. The commenter did not describe what the purpose of these 
surveys would be (e.g., to collect information, to delay or shutdown 
activities, etc.) and therefore it is difficult to evaluate how these 
suggested measures may or may not reduce adverse impacts to marine 
mammal species or stocks. However, please see other comment responses 
addressing the limited value of augmenting detection to facilitate 
shutdowns.
    With respect to practicability, specific aerial monitoring is not 
typically effective or feasible given the limited duration of typical 
monitoring flights (less than four hours). In addition, there are 
significant flight safety considerations and airspace restrictions 
during Navy training when military aircraft are present in high numbers 
at various altitudes. Ship-based surveys before, during, and after 
multi-unit exercises are impractical due to the large amount of 
resources required and the significant impact such a requirement would 
have on readiness. In addition to the mitigation and monitoring 
required by this rule, which have proven to be effective, the Navy is 
also committed to a robust marine mammal monitoring program designed to 
answer specific questions about the effects of the Navy's activities on 
marine mammals.
    Comment 35: NRDC et al. suggested use of all available range assets 
for marine mammal monitoring.
    Response: The commenter did not specify the purpose of this 
monitoring or the specific assets referred to, so it is difficult to 
evaluate any potential benefits to marine mammal species or stocks 
along with any specific practicability issues; however, please see 
responses to other comments in this section recommending methods for 
augmenting detection. NMFS has worked with the Navy over the years to 
help develop the most effective mitigation protocols using the 
platforms and assets that are available for monitoring. The required 
mitigation measures in this document represent the maximum level of 
effort (e.g., numbers of Lookouts and passive sonobuoys) that the Navy 
can commit to observing mitigation zones given the number of personnel 
that will be involved and the number and type of assets and resources 
available. Furthermore, there are no permanent Navy range assets or 
supporting infrastructure established in or near the GOA TMAA, which is 
a temporarily used area only.
    Comment 36: Some commenters believe that using Lookouts as the 
primary strategy for limiting potential impacts from Navy activities is 
inadequate. NRDC et al. suggested the use of additional Lookouts, and 
the use of NMFS-certified observers for marine mammal detection. Other 
commenters recommended use of independent observers on all Navy 
vessels. Several commenters requested further information on the Navy's 
Lookout effectiveness study. More specifically, NRDC et al. suggested 
that the Navy complete a Lookout effectiveness study comparing the 
abilities of Navy vessel-based Lookouts and experienced marine mammal 
observers (MMOs), and a requirement for NMFS-certified lookouts or 
other monitoring enhancements if Navy observers are significantly less 
likely to detect marine mammals.
    Response: One key component of the monitoring and mitigation 
required by this rule is the shipboard Lookouts (also known as 
watchstanders), who are part of the standard operating procedure that 
ships use to detect objects (including marine mammals) within a 
specific area around the ship during events. The Lookouts are an 
element of the Navy's monitoring plan, as required by NMFS

[[Page 19569]]

and specified in the LOA. The goal of Lookouts is to detect marine 
mammals entering ranges of 200, 500, and 1,000 yd (183, 457, and 914 m) 
around the vessel, which correspond to distances at which various 
mitigation actions should be performed. In addition to the Lookouts, 
officers on the bridge search visually and sonar operators listen for 
marine mammal vocalizations.
    NMFS disagrees that using Lookouts as the primary strategy for 
limiting potential impacts from Navy activities is inadequate. Navy 
Lookouts are qualified and experienced observers of the marine 
environment. All Lookouts take part in Marine Species Awareness 
Training so that they are better prepared to spot marine mammals. Their 
duties require that they report all objects sighted in the water to the 
Office of the Deck (OOD) and all disturbances that may be indicative of 
a threat to the vessel and its crew. Lookouts are on duty at all times, 
day and night, when a ship or surfaced submarine is moving through the 
water. Visual detections of marine mammals would be communicated 
immediately to a watch station for information disseminations and 
appropriate mitigation action. The number of Lookouts required for each 
activity represents the maximum level of effort (e.g., numbers of 
Lookouts and passive sonobuoys) that the Navy can commit to observing 
mitigation zones given the number of personnel that will be involved in 
an activity and the number and type of assets and resources available. 
The number of Lookouts that the Navy uses for each activity often 
represents the maximum capacity based on limited resources (e.g., space 
and manning restrictions). NMFS has carefully considered Navy's use of 
Lookouts and determined that, in combination with the other mitigation 
measures identified, the Navy's mitigation plan will effect the least 
practicable adverse impacts on marine mammal species or stocks and 
their habitat.
    Navy personnel are extensively trained in spotting items on or near 
the water surface. The use of third-party observers (e.g., NMFS-
certified protected species observers) in air or on surface platforms 
in lieu of or in addition to existing Navy Lookouts for the purposes of 
mitigation is impractical for the following reasons: The use of third-
party observers would compromise security for some activities involving 
active sonar due to the requirement to provide advance notification of 
specific times and locations of Navy platforms; reliance on the 
availability of third-party personnel could impact training and testing 
flexibility; the presence of additional aircraft in the vicinity of 
naval activities would raise safety concerns; and there is limited 
space aboard Navy vessels.
    In 2010, the Navy initiated a study designed to evaluate the 
effectiveness of the Navy Lookout team versus experienced MMOs. The 
University of St. Andrews, Scotland, under contract to the Navy, 
developed an initial data collection protocol for use during the study. 
Between 2010 and 2012, trained Navy marine mammal observers collected 
data during nine field trials as part of a ``proof of concept'' phase. 
The goal of the proof of concept phase was to develop a statistically 
valid protocol for quantitatively analyzing the effectiveness of 
Lookouts during Navy training exercises. Field trials were conducted in 
the HRC, SOCAL Range Complex, and Jacksonville Range Complex onboard 
one frigate, one cruiser, and seven destroyers. Preliminary analysis of 
the proof of concept data is ongoing. The Navy is also working to 
finalize the data collection process for use during the next phase of 
the study. While data was collected as part of this proof of concept 
phase, those data are not fairly comparable because protocols were 
being changed and assessed, nor are those data statistically 
significant. Therefore, it is improper to use these data to draw any 
conclusions on the effectiveness of Navy Lookouts at this time.
    Comment 37: NRDC et al. suggested the use of dedicated aerial 
monitoring for all Navy explosive activities using time-delay firing 
devices and/or all activities involving explosives greater than 20 lb 
net explosive weight.
    Response: There are no time-delay devices proposed for use in the 
Study Area. More importantly, with the existing mitigation, only one 
species (Dall's porpoise) is expected to be taken by exposure to 
explosives, and for that species only 4 takes resulting in PTS are 
expected, leaving very few impacts that could potentially be mitigated. 
In addition, it is difficult to know what additional value will be 
added by the aerial observers beyond the existing ship-based observers. 
When the potential benefits of this measure are considered along with 
the cost, safety, and impracticality issues laid out in response to 
Comment 33, NMFS does not believe this measure is warranted.
    Comment 38: NRDC et al. suggested the use of gliders or other 
platforms for pre-activity monitoring to avoid significant aggregations 
of marine mammals.
    Response: The development of passive acoustic detectors on gliders 
and other platforms is still in the research and development stages 
under funding from the Office of Naval Research and the Navy's Living 
Marine Resources programs. While promising, many of the various 
technologies are still being tested and not ready for transition to 
compliance monitoring where a higher degree of performance is needed. 
Gliders, even if able to report in real-time or delayed near real-time, 
would only be able to document the presence of marine mammals, not the 
distance of the marine mammals from the glider or individual animal 
movement, and therefore would not be fully effective in supporting 
mitigation that results in delayed operations or shutdowns. Moreover, 
gliders would only provide an indication that animals are in the area, 
but these same animals could easily move substantial distances over the 
course of just a few hours. In some cases, use of gliders in and around 
where Navy submarines also operate is an underwater safety hazard to 
the submarine and to the glider. Gliders and other passive acoustic 
platforms, therefore, are more appropriate for broad area searches 
within Navy ranges to document marine mammal seasonal occurrence, but 
are not practical as a mitigation tool.
    Additionally, as noted previously, the higher level effects that 
shutdowns mitigate (PTS, TTS, and more severe behavioral effects) are 
already minimal as modeled. Further, in the two previous exercises for 
which we have reports (2011 and 2015), only two observations of marine 
mammals occurred when sonar was in operation, suggesting that 
augmentation of detection capabilities would not necessarily result in 
fewer exposures to marine mammals. For these reasons, NMFS has not 
required the use of these additional platforms.
    Comment 39: NRDC et al. recommended that the Navy comply with 
underwater detonation and gunnery exercise mitigation measures as set 
forth in NMFS' 2009 final rule (74 FR 3882; January 21, 2009) for the 
SOCAL Range Complex.
    Response: The commenters do not elaborate on why the mitigation 
measures for underwater explosives and gunnery exercises--which are 
unrelated activities--for the SOCAL Range Complex would be more 
protective than those currently proposed for similar activities in the 
GOA TMAA Study Area. Moreover, mitigation measures designed for 
training and testing activities in the SOCAL Range Complex are not 
directly applicable to GOA activities. Mitigation measures for 
underwater detonations and gunnery

[[Page 19570]]

exercises for GOA are described in the ``Mitigation section'' and 
regulatory text of this rule. NMFS has determined that these mitigation 
measures are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat
    Comment 40: NRDC et al. recommended avoidance and reduction in the 
use of timer delays in favor of explosives with positive controls.
    Response: There are no time-delay devices proposed for use in the 
Study Area. Please see Chapter 2 of the GOA FSEIS/OEIS for a detailed 
description of the action.
    Comment 41: NRDC et al. recommended application of ship-speed 
restriction (e.g., of 10 knots) for support vessels and/or other 
vessels while transiting high-value habitat for baleen whales and 
endangered species, or other areas of biological significance, and/or 
shipping lanes.
    Response: The Navy typically chooses to run vessels at slower 
speeds for efficiency to conserve fuel when possible, which may include 
speeds less than 5 knots or completely stopped for launching small 
boats, certain tactical maneuvers, target launch, or retrievals of 
unmanned underwater vehicles, etc. However, some operational 
requirements mean that Navy vessels must exceed 10 knots due to unique 
training, testing, or safety requirements for a given event. Further, 
imposing an artificial speed restriction only on Navy vessels, which 
represent an extremely small percentage of ship traffic, particularly 
in areas of high commercial traffic where no other limits exist, could 
create safety or navigation concerns where Navy vessels are not 
traveling at speeds consistent with surrounding traffic.
    As discussed earlier in this rule in the ``Mitigation'' section and 
in Section 5.3.2.2 of the GOA FSEIS/OEIS (Physical Disturbance and 
Strike), the Navy's speed protocol is as follows: While in transit, 
Navy vessels shall be alert at all times, use extreme caution, and 
proceed at a ``safe speed'' so that the vessel can take proper and 
effective action to avoid a collision with any sighted object or 
disturbance, including any marine mammal or sea turtle and can be 
stopped within a distance appropriate to the prevailing circumstances 
and conditions. Other mitigation measures will be implemented to avoid 
vessel strikes, such as maneuvering to keep at least 500 yards from 
whales observed in a vessel's path, and not approaching whales head-on, 
provided it is safe to do so. The Navy will also be required to report 
any vessel strike.
    Navy ship speed has not been implicated in impacts to marine 
mammals in the GOA TMAA Study Area. As discussed in the ``Take 
Request'' section and elsewhere in this rule, there has never been a 
recorded vessel strike of marine mammals during any training activities 
in the Study Area. The Navy's proposed actions would not result in any 
appreciable changes in locations or frequency of vessel activity in the 
GOA TMAA. The manner in which the Navy has trained would remain 
consistent with the range of variability observed over the last decade, 
so neither the Navy nor NMFS anticipate that vessel strikes would occur 
within the Study Area during training events, and NMFS has not 
authorized take by ship strike.
    While NMFS would never say that a ship strike is absolutely 
impossible where vessels are in use, the probability here given 
historical data in the region and the comparatively small number of 
vessels is considered to so small as to be discountable. Therefore, 
ship speed restrictions would not be expected to reduce adverse impacts 
on marine mammal species or stocks and their habitat in any measurable 
manner. When this is coupled with the operational challenges of 
reducing speed (navigational and safety hazards or training impacts), 
the measure is not warranted.
    Comment 42: NRDC et al. recommended application of mitigation 
prescribed by state regulators, by the courts, by other navies or 
research centers, or by the U.S. Navy in the past or in other contexts.
    Response: NRDC did not mention any specific measures and therefore 
this recommendation cannot be evaluated in the context of the least 
practicable adverse impact standard. NMFS and the Navy worked together 
on developing a comprehensive set of mitigation measures to reduce the 
impacts from Navy training and testing activities on marine mammal 
species or stocks and their habitat. During the process of developing 
mitigation measures, NMFS and the Navy considered all potentially 
applicable mitigation measures. Evaluation of past and present Navy 
mitigation measures, alternative mitigation measures, and mitigation 
measures of foreign navies is discussed in Chapter 5 of the GOA FSEIS/
OEIS. As discussed in the Mitigation section, NMFS has determined that 
the mitigation measures required by this rule are adequate means of 
effecting the least practicable adverse impacts on marine mammal 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, while 
also considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.
    Comment 43: NRDC et al. recommended avoidance of fish spawning 
grounds and of important habitat for fish species potentially 
vulnerable to significant behavioral change, such as wide-scale 
displacement within the water column or changes in breeding behavior.
    Response: NMFS considered impacts to marine mammal prey species as 
a component of marine mammal habitat. Please see the ``Marine Mammal 
Habitat'' section of the proposed rule, which included an extensive 
discussion of the potential impact of the Navy's activities on fish. In 
summary, long-term consequences to fish populations are not expected. 
Impacts to fish spawning grounds and habitat use are also considered 
under the Magnuson-Stevens Fishery Conservation and Management Act as 
it relates to Essential Fish Habitat (EFH). The effect of the Navy's 
activities on threatened and endangered fish was also addressed in 
NMFS' Biological Opinion, which concluded that the Navy's activities 
would not reasonably be expected to reduce appreciably the likelihood 
of the survival and recovery of any listed fish species.
    Section 5.3.1.1.11 of the GOA FSEIS/OEIS (Avoiding Marine Species 
Habitats and Biologically Important Areas) discusses habitat avoidance. 
Section 3.6 of the GOA FSEIS/OEIS (Fish) provides the effects 
determinations on fish. As noted in Section 3.6 of the GOA FSEIS/OEIS, 
the current science regarding behavioral impacts to fish from sonar is 
that the potential for effects within the near field (within few tens 
of meters of the source), intermediate, or far distances is low (Popper 
et al., 2014). For explosives, the potential for behavioral effects is 
high within a few tens of meters from the source, moderate to high 
within intermediate distances (hundreds of meters from the source), and 
low within the far field (thousands of meters from the source) (Popper 
et al., 2014). Therefore, the type of wide-scale displacement being 
described by the commenter is unlikely to occur based on the current 
state of the science.
    In short, NMFS does not anticipate serious, focused, or long-term 
effects on any species of fish, especially in the context of their 
importance to marine mammal species or stocks and their habitat. 
Therefore, NMFS does not expect the effects of Navy activities on 
marine mammal prey to result in effects on feeding that would have 
negative

[[Page 19571]]

energetic impacts on individuals that would be expected to negatively 
affect reproductive success or survivorship. NRDC did not recommend 
protection of any particular areas, rendering this recommendation 
difficult to assess. NMFS has described in responses to other comments 
the practicability concerns associated with avoiding training 
activities during certain areas and times. When the limited likelihood 
of reducing adverse effects on marine mammal species or stocks is 
considered in combination with the practicability challenges of 
implementing the recommendation, NMFS finds that the measure is not 
warranted.
    Comment 44: NRDC et al. recommended evaluating before each multi-
unit exercise whether reductions in sonar use are possible, given the 
readiness status of the units involved.
    Response: The Navy uses active sonar at the lowest practicable 
source level consistent with mission requirements. See Section 
5.3.3.1.3 of the GOA FSEIS/OEIS (Reducing Sonar Source Levels and Total 
Number of Hours) for more information.
    Comment 45: NRDC et al. recommended dedicated research and 
development of technology to reduce impacts of active acoustic sources 
on marine mammals.
    Response: The Navy has provided a significant amount of funding for 
marine mammal research. For example, from 2004 to 2012, the Navy 
provided over $230 million for marine species research and currently 
sponsors 70 percent of all U.S. research concerning the effects of 
human-generated sound on marine mammals and 50 percent of such research 
conducted worldwide. The Navy's research and development efforts have 
significantly improved our understanding of the effects of Navy-
generated sound in the marine environment. These studies have supported 
the modification of acoustic criteria to more accurately assess 
behavioral impacts to beaked whales and the thresholds for auditory 
injury for all species, and the adjustment of mitigation zones to 
better avoid injury. In addition, Navy scientists work cooperatively 
with other government researchers and scientists, universities, 
industry, and non-governmental conservation organizations in 
collecting, evaluating, and modeling information on marine resources. 
Navy scientists work cooperatively with other government researchers 
and scientists, universities, industry, and nongovernmental 
conservation organizations in collecting, evaluating, and modeling 
information on marine resources. Further, the adaptive management 
process required by this rule regularly considers and evaluates the 
development and use of new science and technologies for Navy 
applications. For additional information on the Navy's marine mammal 
monitoring efforts, see http://www.navymarinespeciesmonitoring.us/. For 
the Navy's Living Marine Resources Applied Research Program see http://www.lmr.navy.mil. For the Office of Naval Research's Marine Mammals and 
Biology Basic Research Program see http://www.onr.navy.mil/Science-Technology/Departments/Code-32/All-Programs/Atmosphere-Research-322/Marine-Mammals-Biology.aspx.
    Comment 46: NRDC et al. recommended establishment of a plan and a 
timetable for maximizing synthetic training in order to reduce the use 
of active sonar training.
    Response: Section 5.3.3.1.2 of the GOA FSEIS/OEIS (Replacing 
Training with Simulated Activities) discusses simulated activities. As 
described in the GOA FSEIS/OEIS, the Navy currently uses computer 
simulation for training whenever possible. Computer simulation can 
provide familiarity and complement live training and testing; however, 
it cannot provide the fidelity and level of training necessary to 
prepare naval forces for deployment. The Navy is required to provide a 
ready and capable force. In doing so, the Navy must operationally test 
major platforms, systems, and components of these platforms and systems 
in realistic combat conditions before full-scale production can occur. 
Substituting simulation for live training and testing fails to meet the 
Navy's statutory requirement to properly prepare forces for national 
defense.
    Comment 47: NRDC et al. recommended prescription of specific 
mitigation requirements for individual classes (or sub-classes) of 
testing and training activities, in order to maximize mitigation given 
varying sets of operational needs.
    Response: The Navy and NMFS have already developed mitigation 
requirements by activity type. Chapter 5 of the GOA FSEIS/OEIS and the 
``Mitigation'' section of this final rule discuss these mitigation 
measures. NMFS has determined that the mitigation measures contained in 
this rule are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, while also considering personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity.
    Comment 48: NRDC et al. recommended timely, regular reporting to 
NOAA, state coastal management authorities, and the public to describe 
and verify use of mitigation measures during testing and training 
activities.
    Response: NMFS has long required the Navy to submit timely, regular 
reports regarding the use of mitigation measures during training and 
testing activities. Section 3.8.5 (Summary of Observations During 
Previous Navy Activities) provides the results from regular reporting 
that has occurred since 2006. These reports are publically available at 
the Navy Web site (http://www.navymarinespeciesmonitoring.us/) and at 
the NMFS Office of Protected Resources Web site (www.nmfs.noaa.gov/pr/
permits/incidental/military.htm). Navy reporting requirements, 
including exercise and monitoring reporting, are described in the 
``Monitoring'' and ``Reporting'' sections of this final rule and in 
Section 5.5 of the GOA FSEIS/OEIS (Monitoring and Reporting).
    Comment 49: NRDC et al. and other commenters recommended that the 
Navy agree to additional clean-up and retrieval of discarded debris and 
expended materials associated with its proposed activities.
    Response: The Navy conducted a full analysis of the potential 
impacts of military expended materials on marine mammals and will 
implement several mitigation measures to help avoid or reduce those 
impacts. As presented in the 2011 GOA Final EIS/OEIS (Section 3.2 
Expended Materials), no biologically meaningful impacts related to 
expended materials would occur as a result of the proposed action and 
the way those materials are used. There are numerous studies involving 
the fate of expended munitions, including locations where the expended 
materials are much more concentrated and have been in place for many 
decades. Those studies do not indicate there is any significant impact 
on the environment or the sea life living in proximity to those 
materials.
    The Navy has standard operating procedures in place to reduce the 
amount of military expended materials to the maximum extent practical, 
including recovering targets and associated parachutes (see Section 5.1 
of the GOA FSEIS/OEIS (Standard Operating Procedures).

Effects Analysis/Takes

    Comment 50: The Commission recommended that NMFS require the Navy 
to request the total numbers of model-estimated Level A harassment

[[Page 19572]]

and mortality takes rather than reducing the estimated numbers of Level 
A harassment and mortality takes based on the Navy's proposed post-
model analysis. Other commenters, including NRDC et al., were also 
critical of the Navy's post-model analysis, claiming that post-model 
adjustments in takes resulted in underrepresented total takes. NRDC et 
al. and other commenters requested further explanation of, or more 
information on, the post-model reduction process. Both the Commission 
and NRDC et al. expressed concern with observer effectiveness in the 
Navy's development of mitigation effectiveness scores or g(0) values.
    Response: See Section 3.8.3.1.6 (Behavioral Reactions) of the GOA 
FSEIS/OEIS for the discussion of the science regarding the avoidance of 
sound sources by marine mammals. With regard to concerns over long term 
consequences, Section 3.8.3.1.3. (Long-Term Consequences to the 
Individual and the Population) and Section 3.8.5 (Summary of 
Observations During Previous Navy Activities) in the GOA FSEIS/OEIS 
provide a discussion on this topic and the reasons why the Navy does 
not expect marine mammals to abandon important habitat on a long-term 
or permanent basis. In addition, the Post-Model Quantitative Analysis 
of Animal Avoidance Behavior and Mitigation Effectiveness for GOA 
Training Activities Technical Report, available at http://www.goaeis.com, provides additional details regarding how the avoidance 
and mitigation factors were used and provides scientific support from 
peer-reviewed research. A comprehensive discussion of the Navy's 
quantitative analysis of acoustic impacts, including the post-model 
analysis to account for mitigation and avoidance, is also presented in 
Chapter 6 of the LOA application.
    NMFS believes that the post-modeling analysis is an effective 
method for quantifying the implementation of mitigation measures to 
reduce impacts on marine mammals and the science regarding the 
avoidance of sound sources by marine mammals which cannot be captured 
within the modeling process itself, and that the resulting exposure 
estimates are, nevertheless, a conservative estimate of impacts on 
marine mammals from the Navy's proposed activities. As explained in the 
above-referenced documents, as part of the post-modeling analysis the 
Navy reduced some predicted Level A (PTS) exposures based on the 
potential for marine mammals to be detected and mitigation implemented, 
and the potential for marine mammals to avoid a sound source. Given 
this potential, not taking into account some possible reduction in 
Level A exposures would result in a less realistic, overestimation of 
possible Level A harassment takes, as if there were no mitigation 
measures implemented. For example, with respect to mitigation 
effectiveness, the period of time between clearing the impact area of 
any non-participants or marine mammals and weapons release is on the 
order of minutes, making it highly unlikely that a marine mammal would 
enter the mitigation zone. Information provided in Section 3.8.3.1.8 
(Implementing Mitigation to Reduce Sound Exposures) of the GOA FSEIS/
OEIS indicates how much of a reduction each factor represents for 
specific activities. As explained in the documents referenced above, 
the adjustments move a percentage of the model predicted Level A (PTS) 
effects at close range to more likely behavioral effects (Level B 
harassment) and do not conclude that all modeled mortalities or non-PTS 
injuries will be avoided. This process represents peer-reviewed and 
accepted scientific process.
    The assignment of mitigation effectiveness scores and the 
appropriateness of consideration of sightability using detection 
probability, g(0), when assessing the mitigation in the quantitative 
analysis of acoustic impacts is discussed in the GOA FSEIS/OEIS 
(Section 3.8.3.1.8, Implementing Mitigation to Reduce Sound Exposures). 
Additionally, the activity category, mitigation zone size, and number 
of Lookouts are provided in the proposed rule (81 FR 9950, 9978-87; 
February 26, 2016) and GOA FSEIS/OEIS (Section 5, Tables 5.3-2 and 5.4-
1). In addition to the information already contained within the GOA 
FSEIS/OEIS, the Post-Model Quantitative Analysis of Animal Avoidance 
Behavior and Mitigation Effectiveness for GOA Training Activities 
Technical Report (http://www.goateis.com) and Chapter 6 of the Navy's 
LOA application describe the process for the post-modeling analysis in 
further detail. There is also information on visual detection leading 
to the implementation of mitigation in the annual exercise reports 
provided to NMFS and briefed annually to NMFS and the Commission. These 
annual exercise reports have been made available and can be found at 
http://www.navymarinespeciesmonitoring.us/ in addition to http://www.nmfs.noaa/pr/permits/incidental.
    The Navy is in the process of assessing Lookout effectiveness at 
detecting marine mammals during Navy exercises. Lookouts will not 
always be effective at avoiding impacts on all species. However, 
Lookouts are expected to increase the overall likelihood that certain 
marine mammal species and some sea turtles will be detected at the 
surface of the water, when compared to the likelihood that these same 
species would be detected if Lookouts are not used. The continued use 
of Lookouts contributes to helping reduce potential impacts on these 
species from training and testing activities. Results from the Lookout 
effectiveness study will be reviewed and any recommendations for 
improving Lookout effectiveness will be considered at that time. In 
summary, NMFS and the Navy believe that consideration of marine mammal 
sightability and activity-specific mitigation effectiveness is 
appropriate in the Navy's quantitative analysis in order to provide 
decision makers a reasonable assessment of potential impacts from the 
Navy's proposed activities.
    Comment 51: The Commission commented on possible errors in the take 
tables for Dall's and harbor porpoise provided in the Navy's GOA DSEIS/
OEIS, LOA application, and Pacific Navy Marine Species Density Database 
GOA Technical Report (U.S. Department of the Navy, 2014) that includes 
the actual modeled data. The Commission suggested one possible 
explanation that the Navy used the behavioral response functions 
(BRF1(for low-frequency cetaceans) and BRF2 (for 
mid- and high-frequency cetaceans--excluding beaked whales and harbor 
porpoises--and pinnipeds)) from Finneran and Jenkins (2012) without 
updating them with the new weighted TTS thresholds.
    Response: NMFS notes that the final authorized take estimates for 
Dall's porpoises changed slightly from what was presented in the GOA 
DSEIS/OEIS based on consideration of NMFS' new Guidance. However, the 
take estimates contained in the Navy's LOA application and GOA DSEIS/
OEIS were not in error for Dall's and harbor porpoise. Most of the 
differences in takes between the two species can be directly tied to 
the differences in both species-specific densities as well as how that 
density was distributed within the GOA TMAA (U.S. Department of the 
Navy, 2014). Basically, Dall's porpoise density is higher than harbor 
porpoise and spread by strata over all of the GOA TMAA. Based on how 
acoustic impact modeling was done for the GOA TMAA (U.S. Department of 
the Navy, 2015), more Dall's porpoise would conceivably be exposed to 
sonar training events at closer range than harbor porpoise with 
resulting higher Dall's porpoise potential takes. Harbor porpoises on 
the

[[Page 19573]]

other hand have a documented coastal and at most a limited on shelf 
occurrence which is reflected in the harbor porpoise densities for the 
GOA TMAA (U.S. Department of the Navy, 2014). These harbor porpoise 
density areas are sufficiently distant from likely Navy sonar training 
as reflected in the modeling areas used (U.S. Department of the Navy, 
2015) that only a limited number of behavioral exposures could occur.
    Comment 52: The Commission recommended that NMFS require the Navy 
to: (1) Describe the upper limit of BRF1 and BRF2, including whether it 
assumed a 1-sec ping for all sources; (2) explain how 0 TTS and up to 
7,000 behavioral takes were model-estimated for harbor porpoises; (3) 
adjust BRF1 and BRF2 with appropriate K and A parameters based on the 
basement parameter and the weighted TTS thresholds; and (4) recalculate 
its behavioral take estimates for all marine mammals exposed to 
acoustic sources based on those revised BRFs.
    Response: The Navy has described the derivation of the BRF in 
Section 3.8.3.1.5 (Behavioral Responses) of the GOA FSEIS/OEIS and in 
Finneran and Jenkins (2012). The upper end of the BRFs (at levels 
approaching 100 percent probability of response) are not correlated or 
anchored at any TTS threshold. The values used in the BRFs are based on 
correlations of behavioral reactions with highest received sound 
pressure level from the three sources of data discussed in Finneran and 
Jenkins (2012). The ping lengths used within the Navy's model to assess 
potential impacts are representative of the different sonars and 
modalities and are not necessarily one second. The predicted higher 
order effect (i.e. TTS over behavioral) is what is reported in the 
impact analysis; however, it is important to note that both TTS and 
behavioral harassment are considered Level B under MMPA.
    After consideration of the frequency weighting, the functional TTS 
threshold for high frequency cetaceans (which includes both harbor 
porpoise and Dall's porpoise) at 3.5 kHz is a sound exposure level of 
169 dB re 1[micro]Pa\2\[middot]s. For harbor porpoises the behavioral 
threshold is a step function of sound pressure level 120 dB re 1[mu]Pa; 
the effect is predicted based on the loudest received ping regardless 
of individual ping duration or the number of pings received. From a 
SQS-53 with a nominal source level of 235 dB re 1[mu]Pa, the range to 
169 dB re 1[micro]Pa\2\[middot]s varies with ping duration and the 
number of pings received by an animal, but is on the order of a few 
kilometers. On the other hand, the range to the 120 dB re 1[micro]Pa 
behavioral threshold from a SQS-53 source can be greater than 100 km. 
The GOA TMAA itself, where Navy activities are modeled/analyzed, 
contains very low to no harbor porpoise densities (0.0000 to 0.0259 
animals/km\2\) and is greater than 50 km from areas on the continental 
shelf that contain higher densities of harbor porpoise. Based on the 
range to TTS versus behavioral responses, and the fact that sonar 
training activities within the GOA TMAA are greater than 50 km from 
harbor porpoise habitat, 7,000 predicted behavioral responses and no 
TTS is a valid result. Behavioral response for Dall's porpoise is based 
on BRF2 which predicts a decreasing probability of response 
to a basement level of 120 dB re 1[mu]Pa. Densities of Dall's porpoise 
within the TMAA are up to 0.1854 animals/km\2\. Therefore, the sonar 
sources within the proposed activities would be within range to TTS for 
Dall's porpoise.
    NMFS does not agree with the Commission that the Navy should adjust 
behavioral response functions based on TTS thresholds as there is no 
consistent correlation between sound levels known to induce hearing 
loss and those with a specific probability of behavioral reaction. 
Therefore, the take estimates in the Navy's GOA SEIS/OEIS and LOA 
application are correct based on species densities used, species 
occurrence distribution within the TMAA, and modeling results.
    Comment 53: The Commission recommended that NMFS require the Navy 
to round its takes based on model-estimated takes to the nearest whole 
number or zero in all of its take tables.
    Response: In April 2011 at the start of Phase II process, the Navy 
and NMFS (as a cooperating agency for NEPA purposes) had a meeting at 
NMFS headquarters and agreed to the rounding process presented in the 
GOA FSEIS/OEIS, and other Phase II EISs. The final modeling numbers 
presented in the GOA FSEIS/OEIS were rounded down at the sub-total 
stage so those totals in the GOA SEIS/OEIS based on the various effect 
criteria and the totals presented in the LOA application based on Level 
A and Level B harassment as grand totals would sum consistently. 
Specifically, all fractional post-processed exposures for a species/
stock across all events within each category sub-total (Impulse and 
Non-Impulse) are summed to provide an annual total predicted number of 
effects. The options for rounding had been to round up, to round down, 
or to manually change the conventionally rounded numbers so that the 
sub-total and grand totals matched. Given the conservative factors in 
the modeling (described in the GOA FSEIS/OEIS Section 3.8.3.1.6.3 (Navy 
Acoustic Effects Model, sub-section Model Assumptions and Limitations)) 
that produce an overestimate in the predicted effects, using the 
Microsoft Excel rounddown function at this final stage of number 
presentation was considered to be the most consistent and 
representative means of producing the final numbers presented in the 
analyses. More importantly, the differences in alternative rounding 
procedures would be negligible and would have no consequences related 
to the analysis of impacts to populations of marine mammals or the 
likely long term consequences resulting from the proposed action.
    Comment 54: NRDC et al. commented that NMFS failed to properly 
analyze the potential for serious injury and mortality, particularly 
with regard to sonar-related injury and mortality (i.e., strandings) 
during the Navy's use of mid-frequency active sources and other 
sources. The commenters cited several stranding events (e.g., Bahamas, 
2000; Washington State, 2003) that they assert occurred coincident with 
military mid-frequency sonar use. NRDC et al. commented that these 
events have involved beaked whales, minke whales, kogia, and harbor 
porpoises, and states that most beaked whale casualties are likely to 
go undetected.
    Response: NMFS uses the best available science to analyze the 
Navy's activities. The ``Stranding and Mortality'' section of the 
proposed rule (81 FR 9950, 9970-76; February 26, 2016) summarized the 
stranding events referenced in NRDC et al.'s comment, including the 
association between stranding events and exposure to MFAS. Also, see 
the GOA FSEIS/OEIS Section 3.8.3.1.2.8 (Stranding) and the U.S. 
Department of the Navy (2013c) ``Marine Mammal Strandings Associated 
with U.S. Navy Sonar Activities'' technical report available at http://www.goaeis.com. The modeling of acoustic effects takes into 
consideration all applicable environmental factors and all applicable 
sound sources to predict the likely effects to beaked whales and all 
other species. Please also see Southall et al. (2007), Finneran and 
Jenkins (2012), and the GOA FSEIS/OEIS Section 3.8.3.1.4.1 (Frequency 
Weighting) to understand the implementation of frequency weighting as 
it applies to the analysis of effects from mid-frequency and high 
frequency sound sources.
    The environmental conditions in the GOA TMAA Study Area and the 
types of activities proposed in the GOA

[[Page 19574]]

FSEIS/OEIS have no relationship to those present in the Bahamas 
incident fourteen years ago in unique and warm tropical waters. The 
environmental conditions otherwise differentiating the Atlantic 
tropical Bahamas environment present in 2000 from the GOA TMAA Study 
Area include the unique bathymetry of the Bahamas Providence Channels 
that are steep sided, narrow, and very deep--ranging from approximately 
2,000 to 12,000 in depth. On that day in 2000 in the Bahamas, there was 
also a 200-meter-thick layer of near constant water temperature, calm 
seas, as well as the presence of beaked whales.
    With regard to the harbor porpoise strandings in Washington State 
(2003), NMFS has since determined that these strandings were unrelated 
to Navy sonar use. There was a lack of evidence of any acoustic trauma 
among the harbor porpoises, and the identification of probable causes 
(e.g., entanglement in a fishing net, disease processes) of stranding 
or death in several animals supports the conclusion that the harbor 
porpoise strandings were unrelated to the sonar activities by the USS 
SHOUP. Refer to the discussion in the ``Stranding and Mortality'' 
section of the proposed rule (81 FR 9950, 9970-79; February 26, 2016) 
and the GOA FSEIS/OEIS Section 3.8.3.1.2.8 (Stranding) and the U.S. 
Department of the Navy (2013c) ``Marine Mammal Strandings Associated 
with U.S. Navy Sonar Activities'' technical report (available at http://www.goaeis.com) for a discussion of other previous strandings and note 
that the other stranding events in this comment did not occur in, and 
were not associated with, the GOA TMAA Study Area and did not involve 
any of the training scenarios proposed for the GOA TMAA Study Area.
    Lastly, while not referenced by the commenters and not related to 
active sonar exposure, NMFS considered an investigation into a long-
finned pilot whale mass stranding event at Kyle of Durness, Scotland, 
on July 22, 2011 (Brownlow et al., 2015). The investigation considered 
unexploded ordnance detonation activities at a Ministry of Defense 
bombing range, conducted by the Royal Navy prior to and during the 
strandings, as a plausible contributing factor in the mass stranding 
event. While Brownlow et al. (2015) concluded that the serial 
detonations of underwater ordnance were an influential factor in the 
mass stranding event (along with presence of a potentially compromised 
animal and navigational error in a topographically complex region) they 
also suggest that mitigation measures--which included observations from 
a zodiac only and by personnel not experienced in marine mammal 
observation, among other deficiencies--were likely insufficient to 
assess if cetaceans were in the vicinity of the detonations. The 
authors also cite information from the Ministry of Defense indicating 
``an extraordinarily high level of activity'' (i.e., frequency and 
intensity of underwater explosions) on the range in the days leading up 
to the stranding.
    The GOA FSEIS/OEIS provides an analysis of potential impacts 
occurring in the GOA TMAA Study Area. While most of the world's 
coastlines lack coverage by a stranding network, the Navy's analysis of 
impacts has focused on scientific data collected in and around the Navy 
range complexes, which are the proposed locations for the continuation 
of historically occurring training and testing activities including the 
use of sonar. A summary of the compendium of the research in that 
regard is presented in the GOA FSEIS/OEIS in Section 3.8.5 (Summary of 
Observations During Previous Navy Activities). Unlike the rest of the 
world's oceans, there has not been an absence of observation where the 
U.S. Navy has been routinely training and testing for years. In 
particular, and as ongoing for approximately the last 8 years, the 
Navy, NMFS, and an independent group of scientists have been engaged in 
implementing a comprehensive monitoring program and associated research 
that includes monitoring before, during, and after Navy activities on 
U.S. Navy range complexes. In short, the research and monitoring 
associated with Navy training and testing activities makes the Navy 
range complexes different than the remainder of the world's oceans.
    There have been no mortalities or strandings associated with Navy 
sonar use during the past approximately 8 years of monitoring, but to 
the contrary there has been overwhelming evidence from research and 
monitoring indicating the continued presence or residence of 
individuals and populations in Navy range complexes and no clear 
evidence indicating long-term effects from Navy training and testing in 
those locations. For example, photographic records spanning more than 
two decades demonstrated re-sightings of individual beaked whales (from 
two species: Cuvier's and Blainville's beaked whales), suggesting long-
term site fidelity to the area west of the Island of Hawaii where 
intensive swept-channel exercises historically occurred (McSweeney et 
al., 2007). In the most intensively used training and testing ranges in 
the Pacific, photo identification of animals associated with the SOCAL 
Range Complex have identified approximately 100 individual Cuvier's 
beaked whale individuals with 40 percent having been seen in one or 
more prior years, with re-sightings up to 7 years apart (Falcone and 
Schorr, 2014). Data from visual surveys documenting the presence of 
Cuvier's beaked whales for the ocean basin west of San Clemente Island 
(Falcone et al., 2009; Falcone and Schorr, 2012, 2014; Smultea and 
Jefferson, 2014) is also consistent with concurrent results from 
passive acoustic monitoring that estimated regional Cuvier's beaked 
whale densities were higher than indicated by NMFS' broad scale visual 
surveys for the United States west coast (Hildebrand and McDonald, 
2009). Falcone and Schorr (2012) suggested that these beaked whales may 
have population sub-units with higher than expected residency to the 
Navy's instrumented Southern California Anti-Submarine Warfare Range in 
particular. For over three decades, this ocean area west of San 
Clemente has been the location of the Navy's instrumented training 
range and is one of the most intensively used training and testing 
areas in the Pacific, given the proximity to the Naval installations in 
San Diego. In summary, the best available science indicates the Navy's 
continued use of Navy range complexes have not precluded beaked whales 
from also continuing to inhabit areas where sonar use has been 
occurring, and there is no evidence to suggest that undocumented 
mortalities are occurring in the GOA TMAA or on the range complexes 
where the U.S. Navy routinely conducts training and testing activities.
    In the GOA FSEIS/OEIS, the sensitivity of beaked whales is taken 
into consideration both in the application of Level B harassment 
thresholds and in how beaked whales are expected to avoid sonar sources 
at higher levels. No beaked whales were predicted in the acoustic 
analysis to be exposed to sound levels associated with PTS, other 
injury, or mortality (note: There is no data from which to develop or 
set a mortality criterion and there is no evidence that sonar can lead 
to a direct mortality due to lack of a shock wave). After years of the 
Navy conducting similar activities in the Study Area without incident, 
NMFS does not expect strandings, injury, or mortality of beaked whales 
or any other species to occur as a result of training activities. 
Additionally, through the MMPA rulemaking (which allows for adaptive 
management), NMFS and the Navy will determine the appropriate

[[Page 19575]]

way to proceed in the event that a causal relationship were to be found 
between Navy activities and a future stranding.
    NMFS has considered the body of science regarding strandings that 
have occurred coincident with Naval training exercises, paying 
particular attention to the few instances where scientific review has 
concluded that the exercises may have had a causal contribution. In 
short, the strandings that have been more conclusively linked to Naval 
activities in some way have largely been associated with certain 
environmental and/or operational factors that the Navy has addressed 
through preventative monitoring measures to be implemented when the 
factors may be present in an operational area. In general, there seems 
to be a low probability that strandings could occur in any Navy 
training areas, and in the GOA this probability is considered 
discountable because none of the complicating environment factors are 
present, because of short duration and comparatively low volume of 
potential tactical sonar use, and because of the historical absence of 
Navy-associated strandings in the area. NMFS and the Navy have 
adequately considered the science on this topic and applied it to 
actions where appropriate.
    Comment 55: NRDC et al. commented that NMFS dismisses the leading 
explanation about the mechanism of sonar-related injuries--that whales 
suffer from bubble growth in organs that is similar to decompression 
sickness, or ``the bends'' in human divers--as one of several 
controversial hypotheses. They cite numerous papers in support of this 
explanation.
    Response: NMFS explicitly addresses acoustically mediated bubble 
growth in the Potential Effects section of the proposed rule. 
Additionally, please see the Navy's GOA FSEIS/OEIS Section 3.8.3.1.2.1 
(Direct Injury) in general and specifically Section 3.8.3.1.2.2 
(Nitrogen Decompression) where the latest scientific findings have been 
presented. As noted above, NMFS and the Navy have reviewed the body of 
science on this topic and applied it, where applicable, to the proposed 
action.
    Comment 56: Citing several references, NRDC et al. commented that 
the Navy and NMFS failed to adequately assess the impacts of stress on 
marine mammals.
    Response: NMFS fully considered in the proposed rule the potential 
for physiological responses, particularly stress responses, that could 
potentially result from exposure to MFAS/HFAS or underwater explosive 
detonations (see Stress Response in the ``Potential Effects'' section 
of the proposed rule). NMFS' analysis identifies the probability of 
lethal responses, physical trauma, sensory impairment (permanent and 
temporary threshold shifts and acoustic masking), physiological 
responses (including stress responses), behavioral disturbance (that 
rises to the level of harassment), and social responses (effects to 
social relationships) that would be classified as a take and whether 
such take would have a negligible impact on such species or stocks. 
This analysis is included in the Analysis and Negligible Impact 
Determination in this final rule, and results of the analysis of 
physiological stress responses are summarized below. The Navy's 
analysis also considered secondary and indirect impacts, including 
impacts from stress (see the GOA FSEIS/OEIS Section 3.8 (Marine 
Mammals)). See for example, Section 3.8.3.1.2.5 (Physiological Stress) 
presenting Rolland et al. (2012) and other similar research regarding 
chronic stressors, and Section 3.8.3.1.3 (Long-Term Consequences to the 
Individual and the Population). For a discussion of biotoxins, see 
Section 3.8.2.4 (General Threats).
    The referenced studies of North Atlantic right whales (e.g., 
Rolland et al., 2012) impacted by chronic noise were cited and 
considered in the Navy's and NMFS' analysis, as well as similar studies 
such as Hatch et al. (2012) and Parks et al. (2007) (see Section 
3.8.3.1, Acoustic Stressors in the GOA FSEIS/OEIS; see ``Potential 
Effects of Specified Activities'' on Marine Mammals in the proposed 
rule (81 FR 9950, 9961-78; February 26, 2016)). Similar findings for 
blue whales from the Pacific (Melcon et al., 2012) were also considered 
for mysticetes, as well as similar findings for other marine mammal 
groups with regard to potential chronic stressors. Note, however, that 
these studies (and similar studies from the Pacific Northwest such as 
Williams et al. (2013)) involve chronic noise resulting from the 
pervasive presence of commercial vessels. The Navy activities in the 
GOA TMAA Study Area involving active sonar or underwater detonations 
are infrequent and short-term. Even though an animal's exposure to 
active sonar may be more than one time, the intermittent nature of the 
sonar signal, its low duty cycle, and the fact that both the vessel and 
animal are moving provide a very small chance that exposure to active 
sonar for individual animals and stocks would be repeated over extended 
periods of time. Since the impact from noise exposure and the Navy's 
training events in general should be transitory given the movement of 
the participants, any stress responses should be short in duration and 
have less than biologically significant consequences. Consequently, 
NMFS has determined that the Navy's activities in the GOA TMAA Study 
Area do not create conditions of chronic, continuous underwater noise 
and are unlikely to lead to habitat abandonment or long-term hormonal 
or physiological stress responses in marine mammals.
    The opinion on how stress affects individuals and more importantly 
marine mammal stocks or populations is still under scientific review 
and research. The Navy via the ONR basic research program is a leading 
sponsor of ongoing stress related studies. These include but are not 
limited to: Development and Validation of a Technique for Detection of 
Stress and Pregnancy in Large Whales (multiple academic performers); 
Validating the Novel Method of Measuring Cortisol Levels in Cetacean 
Skin by Use of an ACTH Challenge in Bottlenose Dolphins (Aarhus 
University); Measuring and Validating Levels of Steroid Hormones in the 
Skin of Bottlenose Dolphins (Tursiops truncatus) (Aarhus University); 
Quantifying Stress in Marine Mammals: Measuring Biologically Active 
Cortisol in Cetaceans and Pinnipeds (University of Toronto 
Scarborough); Behavioral and Physiological Response of Baleen Whales to 
Ships and Ship Noise (multiple performers); Stress Hormones and their 
Regulation in a Captive Dolphin Population (National Marine Mammal 
Foundation); Molecular Indicators of Chronic Stress in a Model 
Pinniped--the Northern Elephant Seal (National Marine Mammal 
Foundation); Variability of Hormonal Stress Markers and Stress 
Responses in a Large Cross-Sectional Sample of Elephant Seals (Sonoma 
State University); Development of Novel Noninvasive Methods of Stress 
Assessment in Baleen Whales (New England Aquarium); Understanding the 
Onset of Health Impacts Caused by Disturbance (University of Aberdeen); 
Tag-based Heart Rate Measurements of Harbor Porpoises During Normal and 
Noise-exposed Dives to Study Stress Responses (Aarhus University); 
Markers of Decompression Stress of Mass Stranded/Live Caught and 
Released vs. Single Stranded Marine Mammals (Woods Hole Oceanographic 
Institution); Investigation of the Molecular Response in Blood and Skin 
of Belugas in Response to ``Stressors'' (Sea Research Foundation, 
Inc.); Assessing Stress Responses in Beaked and Sperm Whales in the 
Bahamas

[[Page 19576]]

(New England Aquarium/Bahamas Marine Mammal Research Organization); and 
Determining Baseline Stress-Related Hormone Values in Large Cetaceans 
(Baylor University). This body of work is ongoing and will be 
supplemented by new studies in future years.
    NMFS and the Navy have reviewed the large body of science on this 
issue and summarized the more salient articles in the proposed rule and 
the FSEIS/OEIS. We address the known risks of stress impacts and 
highlight the need for more work on the subject, while acknowledging 
that there are no specific actions (beyond the sorts of mitigation 
already included) that would be expected to effectively reduce these 
risks.
    Comment 57: NRDC et al. commented that the Navy would release a 
host of toxic chemicals, hazardous materials and waste into the marine 
environment that could pose a threat to marine mammals over the life of 
the range. They also commented that the Navy plans to abandon cables, 
wires, and other items including parachutes that could entangle marine 
wildlife.
    Response: Please see the 2011 GOA FEIS/OEIS for analysis of impacts 
other than acoustic stressors. The GOA FEIS/OEIS analysis concluded 
that most of the material expended during training would be inert and 
degrade slowly. A small amount of chemicals would be considered 
hazardous--predominantly residual explosives, which break down slowly--
but any small amount of leaching sediment would be dispersed quickly by 
the currents. The GOA FSEIS/OEIS analysis concluded that the material 
expended during training would not result in water or sediment 
toxicity, and that no adverse effects on marine organisms would be 
expected. Please see the GOA FSEIS/OEIS Section 3.2 (Expended Material) 
for details in this regard.
    Comment 58: NRDC et al. commented that NMFS failed to evaluate and 
authorize vessel strike with large cetaceans or the potential 
harassment of harbor porpoises by vessel noise. NRDC et al. further 
commented that not only are whales at risk of being struck by Navy 
vessels in the normal course of activities, but also that the use of 
active acoustics exacerbates the potential for collision. NRDC et al. 
comments that the failure to examine the risk of ship strikes is 
particularly troubling given the Large Whale UME underway in the 
Western Gulf of Alaska.
    Response: Please see Section 3.8.2.4 (General Threats) of the GOA 
FSEIS/OEIS for a discussion of the potential for ship strike in 
general. Individual species-specific analyses in Section 3.8.2 
(Affected Environment) of the FSEIS/OEIS also discuss the threat of 
ship strikes on a species level. To date, there has not been a Navy 
ship strike in the GOA over 20 years of infrequent use of the GOA TMAA. 
Navy ships always move at the safest practical speed based on a given 
training objective and schedule, operational need, and safety of 
navigation. The Navy has had a longstanding policy that requires ships 
to report any ship strikes to NMFS. With respect to the Navy's proposed 
activities for 2017 to 2022, there is no large increase in training 
activities proposed over and above historic use. Therefore, past real-
world results (no strikes) is just as valid, if not more so than 
speculative modeling.
    Navy vessels operate differently from commercial vessels in ways 
important to the prevention of whale collisions. Surface ships operated 
by or for the Navy have personnel assigned to stand watch at all times, 
day and night, when a ship or surfaced submarine is moving through the 
water (underway). A primary duty of personnel standing watch on surface 
ships is to detect and report all objects and disturbances sighted in 
the water that may indicate a threat to the vessel and its crew, such 
as debris, a periscope, surfaced submarine, or surface disturbance. Per 
vessel safety requirements, personnel standing watch also report any 
marine mammals sighted in the path of the vessel as a standard 
collision avoidance procedure. All vessels use extreme caution and 
proceed at a safe speed so they can take proper and effective action to 
avoid a collision with any sighted object or disturbance, and can be 
stopped within a distance appropriate to the prevailing circumstances 
and conditions. Further, this rule requires vessels to avoid 
approaching marine mammals head on and to maneuver to maintain a 
mitigation zone of 500 yd (457 m) around observed whales and 200 yd 
(183 m) around all other marine mammals (except bow-riding dolphins), 
providing it is safe to do so.
    The research by Nowacek et al. (2004) cited by NRDC et al. is 
discussed in the GOA FSEIS/OEIS in the context of behavioral reactions 
to vessels and in the GOA FSEIS/OEIS Section 3.8.3.1.2.6 (Behavioral 
Reactions). Nowacek et al. (2004) used an alarm signal purposefully 
designed to provoke a response from the whales. The signal, which was 
long in duration, lasting several minutes, was intended to protect the 
whales from ship strikes. The frequency, duration, and temporal pattern 
of sound sources affected the whale's responses. The right whales did 
not respond to playbacks of either right whale social sounds or vessel 
noise, highlighting the importance of the sound characteristics, 
species differences, and individual sensitivity in producing a 
behavioral reaction. Navy activities using sonar would not be used in 
the same way as the sound source used by Nowacek et al. (2004), and 
similar reactions occurring miles from the sound source are not 
anticipated.
    In addition, there is no scientific basis for the suggestion that 
animals exposed to sonar would have ``greater susceptibility to vessel 
strike.'' Navy sonar is used intermittently for short durations, and is 
not aimed at or designed to be an alarm signal for low frequency 
mysticetes or other cetaceans. Further, studies where experimental 
sound source are used have had an extremely different frequency, 
duration, and temporal pattern of signal presentation from anything 
used by or proposed for use by the Navy. Of note, and in contrast to 
the comment's assertion, an equally plausible interpretation of the 
study is that an active mid-frequency sound source could potentially 
alert marine mammals to the presence of a Navy vessel and therefore 
reduce the potential for ship strikes. There has never been any 
association with Navy sonar use and ship strikes in over 30 years of 
worldwide Navy ship strike reporting to NMFS. Therefore, it is 
erroneous to assume Navy sonar use in the GOA TMAA would increase 
marine mammal vulnerability to Navy ship strike. Further, there has 
been no indication from more frequent Navy sonar use in other areas of 
the Pacific outside of the GOA TMAA of significant large whale 
reactions such that ship strike risk would increase.
    Unusual Mortality Events (see ``Strandings in the GOA TMAA'' in the 
proposed rule (81 FR 9950, 9976; February 26, 2016)) and any ship 
strikes that have been reported in and outside of the GOA are not from 
Navy activities. The 2015 GOA strandings discussed in the proposed rule 
may be correlated with Pacific coast wide toxic algal poisoning. The 
large whale UME in the GOA is still under investigation, with the 
causes currently listed as ``undetermined, possible ecological 
causes.''
    In summary, both NMFS and the Navy fully evaluated the potential 
effects of ship strike. While the possibility of ship strike can never 
by fully ruled out where vessels are involved, the history and limited 
use of Navy vessels in the GOA, combined with the training, safety, and 
mitigation

[[Page 19577]]

protocols, makes the probability of a ship strike so small as to be 
discountable, and no ship strikes are anticipated or authorized in the 
final rule.
    Regarding vessel noise, both NMFS and the Navy have considered, and 
addressed in the proposed rule and the FSEIS/OEIS, the body of science 
indicating that harbor porpoises are generally more sensitive to sound 
exposure than other species, typically avoid human activities at larger 
distances than other species, and have been documented responding to 
vessel noise. Because of this, we use a lower behavioral threshold, 
120dB, to predict when harbor porpoises will be taken by Level B 
harassment by Navy's sound sources. We believe that this approach 
allows for us to fully capture the extent of meaningful effects and 
take of harbor porpoises resulting from Navy activities.
    Comment 59: NRDC et al. commented that NMFS does not adequately 
analyze the potential for and impact of oil spills (the commenters make 
reference to the Exxon Valdez and Cosco Busan oil spill incidents)., 
including the potential for collisions between Navy vessels and oil 
tankers.
    Response: The Navy's proposed action would not transport large 
amounts of oil, as did those ships involved in prior spills in Alaska, 
or interact with the production or transportation of oil for commercial 
sale while training in the TMAA. Moreover, the Exxon Valdez spill 
occurred as a result of improper ship manning and handling, and the 
Cosco Busan incident that occurred in San Francisco resulted from an 
impaired pilot. Neither incident is connected to Navy training or 
testing. Nevertheless, oil spill prevention is a high priority for the 
Navy. Throughout its spill prevention program, the Navy concentrates on 
the entire spectrum of oil handling. The Navy maintains in house 
capability to respond to spills of all sizes. Every ship is equipped 
with an oil spill kit that is designed to prevent spills from entering 
the water. Navy activities report oil spills through the Navy chain to 
the National Response Center. Navy personnel are highly trained in 
containment and cleanup of spills and equipment is pre-staged worldwide 
should it be necessary. The Navy conducts periodic training with all 
response agencies, federal, state, and local. A search of the USCG's 
National Response Center Annual reports indicates that out of the 
countless number of reported spills in the state of Alaska, from small 
amounts of oil sheen to large spills, there have been very few from 
government vessels (predominately USCG vessels) in Alaska. The 
probability of a Navy ship oil spill is extremely minimal given 
standard operating procedures.
    Regarding the potential for collision with oil tankers, the Navy 
does not restrict commercial vessel traffic in the TMAA during 
exercises but it does publish Notices to Mariners (NTMs) prior to an 
exercise alerting vessels to the presence of Navy ships for the 
exercise. While the Navy does not publish daily NTMs, USCG District 17, 
Juneau, Alaska, communicates any active Navy training activity to 
shipping vessels through broadcast NTMs on VHF-FM Channel 16 and 22A 
(Navy 2016. During the exercise, consistent with standard practice for 
Navy training worldwide, the Navy avoids areas, to the extent 
practicable, with high concentrations of commercial vessels (e.g., 
shipping lanes). The Navy has extensive experience and procedures 
(radar, lookouts, etc.) during training and transit in avoiding 
commercial vessels, fishing boats, and recreational boats. For 
instance, in other Pacific range areas, some of which serve as the 
homeport concentrations for the majority of Navy ships (e.g., San 
Diego, Pearl Harbor), there have been no such collisions with any 
commercial shipping vessels. Therefore, the probability of such an 
incident (Navy-civilian ship strike) in the TMAA is extremely remote, 
further reduced by the low level of Navy activities (one exercise per 
year). Furthermore, the actual quantity of Navy surface ships 
participating in an individual GOA exercise is typically rather small 
(0-4). These Navy ships are present in the TMAA for only short 
durations up to 21-days, with shorter periods being more typical (10-14 
days).
    Comment 60: NRDC et al. commented that NMFS' analysis cannot be 
limited only to direct effects, i.e., effects that occur at the same 
time and place as the training exercises that would be authorized, but 
must also take into account the activity's indirect effects. The 
commenters assert that this requirement is critical given the potential 
for sonar exercises to cause significant long-term impacts not clearly 
observable in the short term.
    Response: NMFS and the Navy analyzed both direct and indirect 
effects from Navy training activities. A discussion of potential 
indirect effects may be found in the proposed rule (81 FR 9950, 9961-
78; February 26, 2016) (see ``Potential Effects of Specified Activities 
on Marine Mammals'' and the ``Habitat'' section) and this final rule 
(see ``Analysis and Negligible Impact Determination''). As discussed in 
Section 3.8.3.1.3 (Long-Term Consequences to the Individual and the 
Population) of the GOA FSEIS/OEIS, the Navy's analysis also considers 
all potential impacts resulting from exposure to acoustic sources, 
including indirect effects. With respect to long-term impacts, see the 
discussion in Section 3.8.3.1.3 of the GOA FSEIS/OEIS (Long-Term 
Consequences to the Individual and the Population) and the Long-Term 
Consequences section of this rule. For marine mammals in particular, 
see the GOA FSEIS/OEIS Section 3.8.4 (Summary of Impacts (Combined 
Impacts of All Stressors) on Marine Mammals) and Section 3.8.5 (Summary 
of Observations During Previous Navy Activities), presenting the 
evidence collected from the intensive monitoring of Navy training and 
testing at range complexes nationwide since 2006 which provides support 
for the conclusions that it is unlikely there would be any population 
level or long-term consequences resulting from the proposed training 
activities and implementation of this final rule. The scientific 
authorities presented in the comment (the National Research Council) 
are discussed in the GOA FSEIS/OEIS, and do not support the contention 
that there is a link between the use of sonar and any population-level 
effects. For example, the number of blue whales has been increasing at 
3 percent annual rate in the Southern California waters where the most 
frequent and intensive sonar use occurs in the Pacific (Calambokidis et 
al., 2009a).
    Comment 61: NRDC et al. commented that NMFS failed to adequately 
assess the cumulative impacts of the Navy's activities in its 
negligible impact determination. More specifically, see the commenters' 
four comments (62-65) below.
    Response: Section 101(a)(5)(A) of the MMPA requires NMFS to make a 
determination that the take incidental to a specified activity will 
have a negligible impact on the affected species or stocks of marine 
mammals, and will not result in an unmitigable adverse impact on the 
availability of marine mammals for taking for subsistence uses. Neither 
the MMPA nor NMFS' implementing regulations specify how to consider 
other activities and their impacts on the same populations. However, 
consistent with the preamble for NMFS' implementing regulations (54 FR 
40338; September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into the negligible impact 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the density/distribution and

[[Page 19578]]

status of the species, population size and growth rate, and ambient 
noise).
    As discussed in the ``Analysis and Negligible Impact 
Determination'' section of this final rule, Chapter 4 of the GOA FSEIS/
OEIS contains a comprehensive assessment of potential cumulative 
impacts, including analyzing the potential for cumulatively significant 
impacts to the marine environment and marine mammals. The Navy used the 
best available science and a comprehensive review of past, present, and 
reasonably foreseeable actions to develop a robust cumulative impacts 
analysis. The cumulative impacts analysis focused on impacts that are 
``truly meaningful.'' This was accomplished by reviewing the direct and 
indirect impacts that have the potential to occur on each resource 
under each of the alternatives. Key factors considered were the current 
status and sensitivity of the resource and the intensity, duration, and 
spatial extent of the impacts of each potential stressor. In general, 
long-term rather than short-term impacts and widespread rather than 
localized impacts were considered more likely to contribute to 
cumulative impacts. As required under NEPA, the level and scope of the 
analysis are commensurate with the potential impacts of the action as 
reflected in the resource-specific discussions in Chapter 3 of the GOA 
FSEIS/OEIS. The GOA FSEIS/OEIS considered its activities alongside 
those of other activities in the region whose impacts are truly 
meaningful to the analysis.
    In addition, NMFS' Biological Opinion concludes that NMFS' proposed 
rulemaking and LOA and any take associated with activities authorized 
by the rulemaking and LOA are not likely to jeopardize the continued 
existence of threatened or endangered species (or species proposed for 
listing) in the action area during any single year or as a result of 
the cumulative impacts of a 5-year authorization.
    Comment 62: NRDC et al. assert that there is a lack of any 
population analysis or quantitative assessment of long-term effects in 
the proposed rule.
    Response: NMFS and the Navy fully considered potential long-term 
and population-level effects. Analysis of these effects is presented in 
the GOA FSEIS/OEIS in Section 3.8.3.1.3 (Long-Term Consequences to the 
Individual and the Population) and in the ``Analysis and Negligible 
Impact Determination'' section in this final rule (see Long-Term 
Consequences and Final Determination sections). NMFS' assessment is 
that the Navy training activities involving active sonar or underwater 
detonations are infrequent and short-term (as a reminder, the GOA TMAA 
training activities will not occur continuously throughout the year, 
but rather, for a maximum of 21 days annually). Consequently, the 
Navy's activities do not create conditions of chronic, continuous 
underwater noise and are unlikely to lead to habitat abandonment or 
long-term hormonal or physiological stress responses in marine mammals. 
Based on the findings from research efforts and monitoring before, 
during, and after training and testing events across the Navy since 
2006, NMFS' assessment is that it is unlikely there would be impacts to 
populations of marine mammals having any long-term consequences as a 
result of the proposed continuation of training and testing in the 
ocean areas historically used by the Navy, including the GOA TMAA Study 
Area. NMFS concludes that exposures to marine mammal species and stocks 
due to GOA training activities would result in primarily short-term 
(temporary and short in duration) and relatively infrequent Level B 
harassment of most individuals exposed, and not of the type or severity 
that would be expected to be additive for the portion of the stocks and 
species likely to be exposed. Level A harassment, of a small degree, 
could be incurred by no more than 4 Dall's porpoise.
    Additionally, NMFS notes that, even in areas where the Navy uses 
sonar frequently, such as instrumented ranges, marine mammal 
populations are present, not diminishing, and in some cases, thriving. 
NMFS and the Navy relied on actual trends in marine mammal populations 
and the best available science regarding marine mammals, including 
behavioral response studies and the satellite tracking of tagged marine 
mammals in areas of higher sonar use.
    NMFS has reporting and monitoring data from the Navy on training 
and testing events occurring around the U.S. since 2006. For example, 
results from 2 years (2009-2010) of intensive monitoring by independent 
scientists and Navy observers in Southern California Range Complex and 
Hawaii Range Complex recorded an estimated 161,894 marine mammals with 
no evidence of distress or unusual behavior observed during Navy 
activities. Additional information and data summarized in the GOA 
FSEIS/OEIS Section 3.8.5 (Summary of Observations During Previous Navy 
Activities) provide support for the conclusions that it is unlikely 
there would be any population level or long-term consequences resulting 
from implementation of this final rule.
    Comment 63: NRDC et al. commented that NMFS does not consider the 
potential for acute synergistic effects from multiple Navy activities 
taking place at one time, or from Navy activities in combination with 
other actions. As an example, the commenters state that NMFS does not 
consider the greater susceptibility to vessel strike of animals that 
have been temporarily harassed or disoriented. The commenters cite a 
Nowacek et al. (2004) study in which exposure to a mid-frequency sound 
source provoked interruption of foraging dives and the surfacing of 
five North Atlantic right whales and presumably increased risk of 
vessel strike.
    Response: As presented in the GOA FSEIS/OEIS Section 3.8.3.1.4.2 
(Summation of Energy from Multiple Sources) the Navy's and NMFS' 
analysis and acoustic impact modeling does consider and quantify the 
potential for additive effects from multiple activities involving 
acoustic stressors. Unlike the method used previously that modeled 
acoustic sources individually, the Navy's acoustic effects model 
(NAEMO) has the capability to run all sound sources within a scenario 
simultaneously, which accounts for accumulative sound and provides a 
more realistic depiction of the additive effects from using multiple 
acoustic sources in spatial and temporal proximity (i.e., the 
cumulative SEL is a composite of all sources received by the animat) 
(See Section 3.8.3.1.6.3 (Navy Acoustic Effects Model) of the GOA 
FSEIS/OEIS). Additionally, Section 3.8.3.1.7 (Marine Mammal Avoidance 
of Sound Exposures) and the following sub-sections of the GOA FSEIS/
OEIS consider likely marine mammal behavior in the analysis of impacts.
    In addition, and as explained in response to a previous comment 
above, there is no scientific basis for the suggestion that animals 
taken by harassment would have ``greater susceptibility to vessel 
strike.'' NMFS considered Nowacek et al. (2004), cited by the 
commenters, which is discussed in the GOA FSEIS/OEIS (Section 
3.8.3.1.2.6, Behavioral Reactions). Nowacek et al. (2004) used an alarm 
signal purposefully designed to provoke a response from the whales. The 
signal, which was long in duration, lasting several minutes, was 
intended to protect the whales from ship strikes. The frequency, 
duration, and temporal pattern of sound sources affected the whale's 
responses. The right whales did not respond to playbacks of either 
right whale social sounds or vessel noise,

[[Page 19579]]

highlighting the importance of the sound characteristics, species 
differences, and individual sensitivity in producing a behavioral 
reaction. Navy activities using sonar would not be used in the same way 
as the sound source used by Nowacek et al. (2004), and similar 
reactions occurring miles from the sound source are not anticipated. Of 
note, and in contrast to the comment's assertion, an equally plausible 
interpretation of the study is that an active mid-frequency sound 
source could potentially alert marine mammals to the presence of a Navy 
vessel and therefore reduce the potential for ship strikes.
    Comment 64: NRDC et al. commented that the proposed rule makes no 
attempt to analyze the cumulative and synergistic effects of mortality, 
injury, masking, energetic costs, stress, hearing loss, or any 
mechanism of cumulative impact, whether for its proposed training or 
for its training combined with other activities affecting the same 
marine mammal species and populations; and NMFS makes no attempt to 
incorporate the effects of reasonably foreseeable activities impacting 
the same species and populations into its impact analysis.
    Response: Noting our response to Comment 63 regarding the 
cumulative effects of the Navy activity in combination with other 
activities, please see the Analysis and Negligible Impact Determination 
section of this final rule, which addresses all of the combined 
anticipated impacts from the Navy's GOA activities. Also, see Chapter 4 
(Cumulative Impacts) of the GOA FSEIS/OEIS and the response above 
regarding assessing the impacts of stress on marine mammals. In 
particular, and to understand the potential for population-level 
impact, see Section 3.8.5 (Summary of Observations During Previous Navy 
Activities) of the GOA FSEIS/OEIS. For masking effects see the 
discussion in Section 3.8.3.1.2.4 (Auditory Masking), and for energetic 
models, foraging, chronic noise and stress, see the discussion in 
3.8.3.1.2.5 (Physiological Stress) in the GOA FSEIS/OEIS. The proposed 
actions are very limited in time and space and will not constitute 
``chronic noise and stress'' analogous or comparable to the citations 
presented in the comment involving commercial shipping, seismic 
surveys, or whale watching.
    The Navy's acoustic impact modeling does consider and quantify the 
potential for additive effects from multiple activities involving 
acoustic stressors by modeling all sound sources within a scenario 
simultaneously, which accounts for accumulative sound and provides a 
more realistic depiction of the potential effects of an activity. 
Further, as explained throughout this rule, NMFS' assessment is that 
the cumulative impacts of active sonar would be extremely small because 
the exercises would occur for relatively short periods of time; the 
sources of active sonar would most often not be stationary; and the 
effects of any LF/MFAS/HFAS exposure would stop when transmissions 
stop. Additionally, the vast majority of impacts expected from sonar 
exposure and underwater detonations are behavioral in nature, temporary 
and comparatively short in duration, relatively infrequent, and not of 
the type or severity that would be expected to be additive for the 
portion of the stocks and species likely to be exposed. NMFS' final 
rule is specifically designed to reduce the effects of the Navy's 
activity on marine mammal species and stocks to the least practicable 
impact, through the inclusion of appropriate mitigation and monitoring 
measures, and the issuance of an Authorization with those conditions 
does not result in significant cumulative impacts when considered with 
all other past, present, and reasonably foreseeable projects.
    Chapter 4 of the GOA FSEIS/OEIS contains a comprehensive assessment 
of potential cumulative impacts, including analyzing the potential for 
cumulatively significant impacts to the marine environment and marine 
mammals. Specifically, the Navy concluded, and NMFS concurs, that its 
proposed action is likely to result in generally no more than temporary 
changes to the noise environment and sediment and water quality. 
Therefore, there is limited potential for those effects to interact 
cumulatively with the effects of other past, present, and reasonably 
foreseeable projects. Implementation of the proposed action, in 
conjunction with other past, present, and reasonably foreseeable future 
actions, would not be expected to result in significant cumulative 
impacts to the environment. As such, the proposed action will not 
result in cumulative adverse effects that could have a substantial 
effect on species and populations in the action area.
    In addition, we note that the Navy has been training in the same 
relative area for years using substantially similar training systems, 
and coupled with the multitude of other activities taking place in the 
area, there is no evidence of long term consequences to marine mammal 
populations or stocks.
    Comment 65: NRDC et al. commented that NMFS must account for the 
additive impact of its activities in light of entanglement, harmful 
algal blooms, and changing ocean conditions.
    Response: Please see the response above to comments 61-64 regarding 
how NMFS and the Navy have considered cumulative effects, such as those 
from entanglements, algal blooms, or other stressors resulting from 
actions other than the Navy's training. NMFS and the Navy have 
considered changing ocean conditions. As discussed in the GOA FSEIS/
OEIS Section 3.4 (Marine Mammals), NMFS and the Navy are aware that 
marine mammals will shift their habitat based on changing ocean 
conditions. Please see specifically Section 3.8.2.5 (Marine Mammal 
Density Estimates) of the GOA FSEIS/OEIS discussing the integration of 
habitat modeling into the analysis; also see the Navy's Pacific Marine 
Species Density Database Technical Report. The predictive habitat 
models reflect the interannual variability and associated 
redistribution of marine mammals as a result of changing environmental 
conditions during the survey years used to develop the models. The 
analysis presented in the Navy' Pacific Marine Species Density Database 
Technical Report includes density data for periods of warmer water and 
potentially shifting ranges of marine mammals as a result of those 
conditions.
    While climate change may result in changes in the distribution of 
marine mammals, it is currently not possible to predict how or under 
what conditions such changes might occur without engaging in 
unsupported conjecture. Therefore, it is not possible to reasonably 
determine what hypothetical future marine mammal distributions may look 
like as a result of climate change or otherwise factor such changes 
into an analysis of resulting potential effects and impacts from Navy 
activities.
    Comment 66: NRDC et al. commented that the proposed rule does not 
adequately assess impacts to EFH and other habitat, fish, and other 
prey species. NRDC et al. also commented that the proposed rule is 
inconsistent with NMFS' findings in its Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) consultation with the Navy.
    Response: The commenters refer to the Navy's analysis of potential 
impacts to fish and EFH contained in the GOA 2011 FEIS/OEIS. It is 
important to note that the analysis referred to was conducted in the 
context of the MSA, the ESA, and Executive Order 12114. The factors 
used to assess the significance of effects vary under these Acts, and 
are also different from those applied to the MMPA's effects analysis. 
The purpose of this comment period

[[Page 19580]]

was for the public to provide comments on the proposed rule, which is 
being promulgated under the authority of the MMPA. NMFS fully 
considered impacts to fish and other prey species as a component of 
marine mammal habitat. Please see the ``Marine Mammal Habitat'' section 
of the proposed rule (81 FR 9950, 10000-03; February 26, 2016), which 
included an extensive discussion of the potential impact of the Navy's 
activities on fish and invertebrates. Potential impacts to marine 
mammal food resources within the GOA TMAA are negligible given both the 
lack of hearing sensitivity to mid-frequency sonar, the very limited 
spatial and temporal scope of most Navy activities at sea including 
underwater detonations, and the high biological productivity of these 
resources. NMFS concludes that no short- or long-term effects to marine 
mammal food resources from Navy activities are anticipated within the 
GOA TMAA. The effect of the Navy's activities on threatened and 
endangered fish was also addressed in NMFS' Biological Opinion, which 
concluded that the Navy's activities would not reasonably be expected 
to reduce appreciably the likelihood of the survival and recovery of 
any listed fish species.
    Section 5.3.1.1.11 of the GOA FSEIS/OEIS (Avoiding Marine Species 
Habitats and Biologically Important Areas) discusses habitat avoidance. 
Section 3.6 of the GOA FSEIS/OEIS (Fish) provides the effects 
determinations on fish. As noted in Chapter 3.6 of the GOA FSEIS/OEIS, 
the current science regarding behavioral impacts to fish from sonar is 
that the potential for effects within the near field (within few tens 
of meters of the source), intermediate, or far distances is low (Popper 
et al., 2014). For explosives, the potential for behavioral effects is 
high within a few tens of meters from the source, moderate to high 
within intermediate distances (100s of meters from the source), and low 
within the far field (thousands of meters from the source) (Popper et 
al., 2014).
    As described in the GOA FSEIS/OEIS, there is updated information 
such as fish stock assessment reports and information on fish hearing 
since the publication of the 2011 FEIS/OEIS. However, upon a 
comprehensive review of this new information, there are no changes to 
the affected environment (e.g. species present) or to the impact 
conclusions, which forms the environmental baseline of the fish 
analysis in the 2011 GOA FEIS/OEIS. Instead, a review of best available 
science on fish hearing indicates that most species are less likely to 
be affected than previously thought. The Navy and NMFS reviewed Popper 
et al. (2014) and other sources of best available science in the fall 
of 2015 and determined sonar and explosive criteria for fishes based on 
taxonomy which represents all fish species including salmon (refer to 
``Navy's Northwest Training and Testing Phase II Sonar and Explosive 
Criteria for Fishes'' in the NWTT FEIS/OEIS). In summary, salmon and 
the majority of other fish species cannot hear mid-frequency sonar and 
therefore would not elicit a behavioral response. For fish species that 
can hear mid-frequency sonar, such as herring, a recent study concluded 
that the use of naval sonar poses little to no risk to populations of 
herring regardless of season, even when an entire population is 
aggregated during sonar exposure (Sivle et al., 2015). Therefore, 
effects from sonar are not likely to any fish species, even those who 
have the ability to hear mid-frequency sonar. Sonar has not been known 
to cause mortality, mortal injury, or recoverable injury in the wild 
due to lack of fast rise times, lack of high peak pressures, and lack 
of high acoustic impulse. In addition, the potential for exposure to 
high levels is unlikely due to the very small area of effect around the 
source, and the inability for individuals or schools of fish to remain 
in that zone of effect while simultaneously maintaining a swim speed 
that can match ship speed for a long enough duration of time to 
accumulate energy. Effects from explosives are limited to the surface 
waters and the area in the immediate vicinity of the explosion. Deep 
water fish would not be affected based on their distance from the 
source and the lack of a developed swim bladder. No spawning areas or 
early life stages would be affected as they are not located in or near 
the TMAA. Finally, effects to habitat from temporal sound does not 
render the habitat unsuitable to support fish populations. In 
conclusion, the small scale of the potential effects on fish (including 
disturbance, injury, or mortality) are not expected to have any 
meaningful impact on the ability of marine mammals to acquire the prey 
that they need or fish populations in general.

Negligible Impact Determination and Analysis

    Comment 67: NRDC et al. commented that NMFS should set the 
following research priorities with the Navy to address data gaps and to 
better inform its analysis and negligible impact determination: (1) 
Increased data collection and survey efforts to derive abundance 
estimates and improve knowledge on year-round and seasonal 
distribution; (2) research into sonar signal modifications; (3) thermal 
detection systems; and (4) research on Navy ship speeds during transit.
    Response: Increased data collection and survey efforts--NMFS relied 
on the best available science to make all required findings under the 
MMPA prior to issuing an incidental take authorization to the Navy for 
training activities in the GOA TMAA. To be supportive of NMFS' mission, 
the Navy funded two previous GOA surveys, a visual line transect survey 
in 2009, and a visual and passive acoustic line-transect survey in 2013 
(estimated cost $1.1 million for 2013 survey). With only 3-years 
between surveys (2009, 2013), this periodicity is more frequent than 
what NMFS schedules for almost any other area of the Pacific having 
equal limited data at present.
    Visual line-transect surveys using medium to large oceanographic 
vessels is the current scientific gold standard promoted by NMFS for 
deriving marine mammal density. Successive data collection from these 
vessels is highly dependent on sea state with limited sightings 
available during higher sea states. This limitation means bad weather, 
a significant potential anytime in the offshore waters of GOA, can 
serious degrade the amount of data collected. For instance, the 2013 
GOA line-transect survey was scheduled in July, the most optimum at-sea 
time in which to survey the GOA. However, only 59 percent (4,504) of 
the proposed pre-survey proposed tracks (7,644 km) could be realized. 
Additional future vessel use for visual surveys and towed passive 
acoustic surveys would likely have similar limitations.
    The Navy-funded 2013 GOA survey provided the most current 
scientific sighting and density data available for GOA marine mammals. 
Over 164,953 km\2\ of GOA were surveyed including strata reflecting 
specific oceanographic and biological regimes (shelf, slope, offshore, 
and seamounts). The strata development and sampling design presented by 
Rone et al. (2014) was generated and approved by NMFS' Alaska Fisheries 
Science Center. The scale of strata is representative of how NMFS 
designs all large area surveys to balance scientific need and at-sea 
survey costs as compared to available funding. Similar spatial survey 
scales are found in almost all NMFS offshore visual line-transect 
surveys for the Atlantic and Pacific Oceans. In fact, Rone et al. 
(2014) was more novel than many NMFS surveys in use of four unique 
biogeographic areas within the GOA. Given the large ranges that

[[Page 19581]]

constitute most offshore marine mammal distributions at daily, 
seasonal, and between year intervals, very small scale surveys and 
associated density estimation could conceivably: (a) Not provide enough 
species-specific sightings over a given survey or even a group of 
similar surveys that meet the statistical requirements for deriving 
density, and: (b) May not adequately represent a given species' total 
range. In general, visual or passive acoustic detection of some 
individuals of a species in one area does not necessarily preclude that 
all individuals or even a substantial part of a stock or species use 
the same small geographic area. During the survey, there were 964 
visual detections of 2,266 individual marine mammals from 13 species. 
In addition, there were 345 passive acoustic detections of marine 
mammals from nine species. This sighting data from the 2013 survey was 
used to update marine mammal density by strata for those animals with 
sufficient sightings from which a statistically valid calculation could 
be determined (seven species). Densities derived from these sightings 
were in turn used in the Navy's impact assessment for GOA training.
    The Navy has already funded over $2.6 million in new marine mammal 
monitoring within the GOA from 2011-2015. This included a 2013 visual 
line-transect and passive acoustic survey, up to five long-term (365 
days/year) bottom-mounted passive acoustic devices on the shelf, slope, 
and seamounts, and a slope deployment of an underwater glider with 
passive acoustic sensors. The bottom-mounted devices deployed year-
round have contributed valuable new science as to the occurrence and 
seasonality of GOA marine mammals, including blue whales, fin whales, 
gray whales, humpback whales, sperm whales, and beaked whales. To date, 
over 58,953 hours or 2,456 days' worth of passive acoustic data over 
all seasons have been collected, analyzed, and results reported through 
annual monitoring reports.
    The Navy and NMFS believe that marine mammal density estimation 
from passive acoustic monitoring data is a promising field, which is 
why the Navy is a leader in funding new research to advance the state 
of the science. The Office of Naval Research (ONR) and the Living 
Marine Resources (LMR) program are currently funding multiple projects 
focused on the development and validation of statistical tools and 
analysis processes. To date, this field is very much in its infancy, 
and there are a number of unresolved issues that the current research 
is working to address. For example, the current Navy-funded research is 
focusing on aspects such as the proper characterization of calling 
rates, range of detection, and group size, all of which can vary by 
species, region, time of year/day, sex, etc. All of these variables can 
impact the resulting density estimate, and therefore the method of 
incorporating these variables needs to be investigated further. Once 
these methods are further developed and validated, marine mammal 
density estimation from passive acoustic monitoring data will be a 
promising tool to help characterize population abundance and 
distribution. Therefore, with few exceptions, universal density 
derivation from additional passive acoustic monitoring in the GOA over 
the next 3-5 years is premature given the science underlying this 
protocol is still in development.
    The Navy currently has an ongoing satellite tagging project for 
blue and fin whales on the US West Coast (2014-2017). These are long-
term tags reporting individual movement for a period of several weeks 
in a worst case scenario, and up to a year in a best case scenario. 
These are highly mobile species that could conceivably move through 
portions of the GOA TMAA and if applicable, those results will be 
highlighted in the Navy's future GOA monitoring reports. There has 
already been non-Navy funded satellite tagging of select Gulf of Alaska 
species separate and unrelated to Navy funded monitoring in the same 
region. Pacific Life Foundation funded the Marine Mammal Institute of 
Oregon State University to attach long-term satellite tracking tags to 
humpback whales adjacent to the Gulf of Alaska from 2014 to 2015. To 
date, 40 animals have been tagged and results are currently under 
analysis. Tagged humpback whales have been successfully tracked whales 
across the Gulf of Alaska to winter reproductive areas around Hawaii 
and through more coastal routes along the eastern North Pacific 
(including the Gulf) to the tip of Baja and nearshore regions off 
mainland Mexico.
    See the ``Monitoring'' section of this final rule for more 
information on monitoring activities planned for 2017 to 2022. Through 
the adaptive management process, NMFS and Navy will work together to 
define future GOA TMAA monitoring in consideration of achievable 
scientific objectives, and in terms of logistical considerations 
including but not limited to funding availability, applicability of one 
technology in GOA vs. another, and other Navy monitoring commitments in 
other regions of the Pacific.
    Sonar signal modifications--The Navy's suite of sonar systems have 
been designed and optimized for submarine and mine detection over 50 
years of research and actual application. Individual signal 
characteristics are used because they are proven to work, otherwise the 
system would not be in use and would hamper Navy's effectiveness in 
capabilities to find and locate adversary submarines and to also 
protect Navy ships and submarines. Unwarranted signal modifications are 
impractical to implement, and would not allow the Navy to meet its 
Title 10 national defense obligations.
    Thermal detection systems--The German Federal Ministry of Education 
and Research funded initial development of a cryogenically cooled 
thermal imaging device mounted on a stabilized gimbal and associated 
computer software (designed and built by Ocean Acoustics Lab, Alfred 
Wegener Institute Helmholtz-Zentrum for Polar and Marine Research and 
University of Erlangen-Nuremberg, Erlangen, Germany). The camera and 
detection software was initially field tested in the Arctic and 
Southern Ocean (Zitterbart et al., 2013). In a follow-on project, the 
Navy's Office of Naval Research has continued funding development, at-
sea testing and validation of this system from 2014-2016 in temperate 
waters off Australia and tropical waters off Hawaii. However, this 
system is still in an intermediate stage of development and not ready 
for a full-fledged sea trial of the commercially available stand-alone 
system. In addition, costs just for the camera system itself are still 
exceedingly large, on the order of $980,000, making the system better 
suited for future monitoring applications.
    Integration of a non-Navy designed system into the sensor suite of 
a modern Navy ship is not a trivial task, and given the complexity of 
this or similar thermal imaging systems, would not be practical as a 
Navy surface ship mitigation. There are issues of quantity available to 
account for the several hundred Navy ships stationed in the Pacific, 
the overall costs for that many units, the concerns with lifecycle 
maintenance and upkeep with a system on ships deployed for long periods 
of time, ability to keep spare parts and critical components in stock 
and supplied as needed, and the issue of electromagnetic interference 
and engineering considerations when any new technology is proposed for 
a Navy ship. Some new technologies can take five to ten years to 
resolve all these issues, and in some cased may never be safely or

[[Page 19582]]

logistically integrated for just some of the above considerations.
    Navy ship speeds during transit--To date, there has not been a Navy 
ship strike in the GOA over 20 years of infrequent use of the GOA TMAA. 
Navy ships always move at the safest practical speed based on a given 
training objective and schedule, operational need, and safety of 
navigation. Navy ships are required to report ship strikes to NMFS. 
Slow speeds are just as likely as and more probable than high speed 
maneuvers by surface vessels in many of the exercise event scenarios.
    Vessel operators need to be able to react to changing tactical 
situations and evaluate system capabilities in training as they would 
in actual combat. Widespread speed restrictions would not allow the 
Navy to properly test vessel capabilities or train to react to these 
situations. Speed restrictions during some activities (e.g., flight 
operations, underway replenishment, etc.) would also add unacceptable 
risk and decrease safety of personnel and vessels.
    Collection of Navy ship speed data would not inform or improve the 
GOA FSEIS/OEIS analysis or NMFS' negligible impact determination for 
the GOA TMAA given the relative different speeds of vessels depending 
on activities and the lack of such impacts in the past that would 
suggest ship strikes are reasonably likely to occur.
    Navy vessels operate differently from commercial vessels in ways 
important to the prevention of whale collisions. Surface ships operated 
by or for the Navy have personnel assigned to stand watch at all times, 
day and night, when a ship or surfaced submarine is moving through the 
water (underway). A primary duty of personnel standing watch on surface 
ships is to detect and report all objects and disturbances sighted in 
the water that may indicate a threat to the vessel and its crew, such 
as debris, a periscope, surfaced submarine, or surface disturbance. Per 
vessel safety requirements, personnel standing watch also report any 
marine mammals sighted in the path of the vessel as a standard 
collision avoidance procedure. All vessels use extreme caution and 
proceed at a safe speed so they can take proper and effective action to 
avoid a collision with any sighted object or disturbance, and can be 
stopped within a distance appropriate to the prevailing circumstances 
and conditions.
    Comment 68: NRDC comments that our negligible impact determination 
is unsupported because of the lack of abundance data for certain 
species, including minke whales, sperm whales, and several species of 
beaked whales.
    Response: NMFS is responsible for making a finding based on the 
best available science. The lack of recent abundance data for the 
species identified by the commenters does not preclude us from making 
the necessary findings for these species. As described in the Analysis 
and Negligible Impact Determination section, the nature and duration of 
the activities, combined with the mitigation requirements, are such 
that we anticipate only short-term and lower-level Level B harassment 
of the affected individuals. In short, there is very little likelihood 
that any individuals will suffer fitness-level effects that threaten 
their reproductive success or survivorship. Because of the anticipated 
lack of fitness-level effects to any individuals, species or stock 
abundance is less of a factor in the analysis of population-level 
effects. Nonetheless, information has been added to the negligible 
impact analysis section that describes the abundance information we do 
have for species without recent abundance estimates, which allows for 
at least a broad-scale relative understanding of abundance.

NEPA

    Comment 69: NRDC et al. commented that NMFS cannot rely on adoption 
of the Navy's GOA FSEIS/OEIS to fulfill its obligation under NEPA due 
to the inadequacy of the document.
    Response: NMFS disagrees with the commenters' assertion that the 
GOA FSEIS/OEIS is inadequate for our adoption and to meet our 
responsibilities under NEPA for the issuance of regulations and LOA, or 
that NMFS has not fulfilled its NEPA obligations. NMFS notes that 
comments submitted on the GOA DSEIS/OEIS during its public comment 
period are addressed by the Navy in Appendix D of the GOA FSEIS/OEIS.
    NMFS' Office of Protected Resources has thoroughly reviewed the 
Navy's GOA FSEIS/OEIS and concluded that the impacts evaluated by the 
Navy are substantially the same as the impacts of NMFS' proposed action 
to issue regulations (and associated LOA) governing the take of marine 
mammals incidental to Navy training activities in the GOA TMAA Study 
Area from May 2017 through May 2022. In addition, the Office of 
Protected Resources has evaluated the GOA FSEIS/OEIS and found that it 
includes all required components for adoption by NOAA including: A 
discussion of the purpose and need for the action; a listing of the 
alternatives to the proposed action; a description of the affected 
environment; a succinct description of the environmental impacts of the 
proposed action and alternatives, including cumulative impacts; and a 
listing of agencies and persons consulted, and to whom copies of the 
GOA FSEIS/OEIS are sent.
    Per the cooperating agency commitment, the Navy provided NMFS with 
early preliminary drafts of the GOA DSEIS/OEIS and the FSEIS/OEIS and a 
designated (and adequate) timeframe within which NMFS could provide 
comments. The Office of Protected Resources circulated the Navy's 
preliminary NEPA documents to other interested NOAA line offices and 
NMFS' regional and science center offices, compiled any comments 
received, and submitted them to the Navy. Subsequently, the Navy and 
NMFS participated in comment resolution meetings, in which the Navy 
addressed NMFS' comments, and in which any outstanding issues were 
resolved. The Navy has incorporated the majority of NMFS' comments into 
the GOA FSEIS/OEIS, and adequately addressed those comments that were 
not incorporated. As a result of this review, the Office of Protected 
Resources has determined that it is not necessary to prepare a separate 
Environmental Assessment or EIS to issue regulations or LOA authorizing 
the incidental take of marine mammals pursuant to the MMPA, and that 
adoption of the Navy's GOA FSEIS/OEIS is appropriate. Based on NMFS' 
review of the FSEIS, NMFS has adopted the FSEIS under the Council on 
Environmental Quality's Regulations for Implementing the National 
Environmental Policy Act (40 CFR 1506.3). Furthermore, in accordance 
with NEPA, its implementing regulations, and the NOAA's Administrative 
Order (NAO) 216-6A and Companion Manual, we have prepared a Record of 
Decision (ROD) which addresses NMFS' determination to issue regulations 
and LOA to the Navy pursuant to section 101(a)(5)(A) of the MMPA, for 
the taking of marine mammals incidental to the conduct of the Navy's 
training activities.

Estimated Take of Marine Mammals

    In the ``Estimated Take of Marine Mammals'' section of the proposed 
rule, NMFS described the potential effects to marine mammals from 
active sonar and underwater detonations in relation to the MMPA 
regulatory definitions of Level A and Level B harassment (81 FR 9950, 
9992-97; February 26, 2016). Much of that information has not changed 
and is not repeated here; however, two changes to the input into take 
estimates have occurred and are

[[Page 19583]]

described both in the ``Summary of Request'' and the ``Take Request'' 
immediately below.
    It is important to note that, as Level B harassment is interpreted 
here and quantified by the behavioral thresholds described below, the 
fact that a single behavioral pattern (of unspecified duration) is 
abandoned or significantly altered and classified as a Level B 
harassment take does not mean, necessarily, that the fitness of the 
harassed individual is affected either at all or significantly, or 
that, for example, a preferred habitat area is abandoned. Further 
analysis of context and duration of likely exposures and effects is 
necessary to determine the impacts of the estimated effects on 
individuals and how those may translate to population-level impacts, 
and is included in the Analysis and Negligible Impact Determination.
    Tables 7 and 8 provide a summary of non-impulsive and impulsive 
thresholds to TTS and PTS for marine mammals, reflecting the acoustic 
thresholds used by the Navy for its acoustic effects model (NAEMO) in 
the Navy's FEIS/OEIS and reflected in the proposed rule. Behavioral 
thresholds for impulsive sources are summarized in Table 9. A detailed 
explanation of how these thresholds were derived is provided in the 
Criteria and Thresholds Technical Report (Finneran and Jenkins, 2012) 
and summarized in Chapter 6 of the LOA application (http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm). As described in 
detail elsewhere, NMFS' new Acoustic Guidance, and the associated 
thresholds (http://www.nmfs.noaa.gov/pr/acoustics/Acoustic%20Guidance%20Files/opr-55_acoustic_guidance_tech_memo.pdf) 
have also been considered in this final rule.

                           Table 7--Onset TTS and PTS Thresholds for Non-Impulse Sound
----------------------------------------------------------------------------------------------------------------
                Group                          Species                 Onset TTS                Onset PTS
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans..............  All mysticetes.........  178 dB re 1[micro]Pa2-   198 dB re 1[micro]Pa2-
                                                                 sec(LFII).               sec(LFII).
Mid-Frequency Cetaceans..............  Most delphinids, beaked  178 dB re 1[micro]Pa2-   198 dB re 1[micro]Pa2-
                                        whales, medium and       sec(MFII).               sec(MFII).
                                        large toothed whales.
High-Frequency Cetaceans.............  Porpoises, Kogia spp...  152 dB re 1[micro]Pa2-   172 dB re 1[micro]Pa2-
                                                                 sec(HFII).              secSEL (HFII).
Phocidae In-water....................  Harbor, Hawaiian monk,   183 dB re 1[micro]Pa2-   197 dB re 1[micro]Pa2-
                                        elephant seals.          sec(PWI).                sec(PWI).
Otariidae & Obodenidae In-water......  Sea lions and fur seals  206 dB re 1[micro]Pa2-   220 dB re 1[micro]Pa2-
                                                                 sec(OWI).                sec(OWI).
Mustelidae In-water..................  Sea otters.............
----------------------------------------------------------------------------------------------------------------
LFII, MFII, HFII: New compound Type II weighting functions; PWI, OWI: Original Type I (Southall et al., 2007)
  for pinniped and mustelid in water.

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[[Page 19584]]

[GRAPHIC] [TIFF OMITTED] TR27AP17.004

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           Table 9--Behavioral Thresholds for Impulsive Sound
------------------------------------------------------------------------
                                       Impulsive
                                      behavioral
          Hearing group            threshold for >2        Onset TTS
                                    pulses/24 hours
------------------------------------------------------------------------
Low-Frequency Cetaceans.........  167 dB SEL (LFII).  172 dB SEL (MFII)
                                                       or 224 dB Peak
                                                       SPL.
Mid-Frequency Cetaceans.........  167 dB SEL (MFII).
High-Frequency Cetaceans........  141 dB SEL (HFII).  146 dB SEL (HFII)
                                                       or 195 dB Peak
                                                       SPL.
Phocid Seals (in water).........  172 dB SEL (PWI)..  177 dB SEL (PWI)
                                                       or 212 dB Peak
                                                       SPL.

[[Page 19585]]

 
Otariidae & Mustelidae (in        195 dB SEL (OWI)..  200 dB SEL (OWI)
 water).                                               or 212 dB Peak
                                                       SPL.
------------------------------------------------------------------------
Notes: (1) LFII, MFII, HFII are New compound Type II weighting
  functions; PWI, OWI = Original Type I (Southall et al., 2007) for
  pinniped and mustelid in water (see Finneran and Jenkins 2012). (2)
  SEL = re 1 [mu]Pa\2\-s; SPL = re 1 [mu]Pa, SEL = Sound Exposure Level,
  dB = decibel, SPL = Sound Pressure Level.

Take Request

    The GOA FSEIS/OEIS considered all training activities proposed to 
occur in the Study Area that have the potential to result in the take 
of marine mammals as defined by the MMPA. The stressors associated with 
these activities included the following:

     Acoustic (sonar and other active non-impulse sources, 
explosives, swimmer defense airguns, weapons firing, launch and 
impact noise, vessel noise, aircraft noise);
     Energy (electromagnetic devices);
     Physical disturbance or strikes (vessels, in-water 
devices, military expended materials, seafloor devices);
     Entanglement (fiber optic cables, guidance wires, 
parachutes);
     Ingestion (munitions, military expended materials other 
than munitions); and
     Secondary stressors (sediments and water quality).

    The Navy determined, and NMFS agrees, that two stressors could 
potentially result in the incidental taking of marine mammals from 
training activities within the Study Area: (1) Non-impulsive stressors 
(sonar and other active acoustic sources) and (2) impulsive stressors 
(explosives). Non-impulsive and impulsive stressors have the potential 
to result in incidental takes of marine mammals by harassment, injury, 
or mortality. Explanation of why the other stressors listed above are 
unlikely to result in the incidental taking of marine mammals is 
provided in the FSEIS/OEIS and the proposed rule.

Training Activities

    Based on the Navy's model and post-model analysis, modified as 
described below, Table 10 summarizes the Navy's final take request for 
training activities for a year (1 exercise occurring over a 7-month 
period (April-October) and the summation over a 5-year period (1 
exercise occurring over a 7-month period (April-October) for a total of 
5 exercises).

    Table 10--Summary of Annual and 5-Year Take Requests for GOA TMAA
                           Training Activities
------------------------------------------------------------------------
                                              Training activities
                                     -----------------------------------
   MMPA category         Source            Annual            5-Year
                                        authorization     authorization
                                           sought            sought
------------------------------------------------------------------------
Mortality.........  Explosives......  0...............  0.
Level A...........  Sonar and other   4 (Dall's         20 (Dall's
                     active acoustic   porpoise only     porpoise only
                     sources;          as shown in       as shown in
                     explosives.       Table 11).        Table 11).
Level B...........  Sonar and other   18,250 (Species   91,250 (Species
                     active acoustic   specific data     specific data
                     sources;          shown in Table    shown in Table
                     explosives.       11).              11).
------------------------------------------------------------------------

Impulsive and Non-Impulsive Sources

    Table 11 provides details on the Navy's final take request for 
training activities by species from the acoustic effects modeling 
estimates. There are no mortalities predicted for any species 
incidental to the proposed training activities. Only four Level A 
harassment takes are predicted to occur for one species (i.e., Dall's 
porpoises).
    Derivations of the numbers presented in Table 11 are described in 
more detail within Chapter 6 of the LOA application, but modified as 
described in the ``Summary of Request'' section. As described in that 
section, take estimates have changed since publication of proposed rule 
based on the following:
    (1) The Navy modified its incidental take request to reflect the 
level of activities described by Alternative 1 of the FSEIS/OEIS (as 
opposed to Alternative 2) following a reassessment of reasonably 
foreseeable training requirements for the GOA TMAA. This change in 
alternative will reduce the total anticipated amount of annual training 
activities by reducing the number of annual Carrier Strike Group 
Exercises from 2 to 1 and the number of SINKEXs from 2 to 0 (see 
``Summary of Request''), ultimately reducing the take authorized. Thus, 
the take estimates shown in Table 11 reflect those presented for 
Alternative 1 in the GOA FSEIS/OEIS and are greatly reduced from what 
was presented in the proposed rule and the Navy's application.
    (2) Level A and Level B harassment takes shown in Table 11 are 
slightly different for one species (i.e., for Dall's porpoise only) 
from what is described in Alternative 1 of the FSEIS/OEIS. This change 
is a result of the Navy's reprocessing of anticipated explosive ranges 
to effects for Level A and Level B harassment based on NMFS' new 
Guidance to assess if the new acoustic thresholds in the Guidance could 
result in any additional species-specific injury exposures when applied 
to GOA Phase II training activities. The Navy's analysis found that 
applying the new thresholds to the training activities addressed by 
Alternative 1 would result in an additional three Dall's porpoise Level 
A harassment (PTS) takes from explosives and an additional 149 Level B 
harassment takes (TTS and behavioral responses) compared to the take 
numbers presented in Alternative 1 of the FSEIS/OEIS. The Navy's 
analysis concluded that applying the new acoustic criteria would result 
in no additional anticipated explosive takes to any other species.

[[Page 19586]]



       Table 11--Species-Specific Take Requests From Modeling Estimates of Impulsive and Non-Impulsive Source Effects for All Training Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Annual                          5-year
                    Species                                       Stock                  ---------------------------------------------------------------
                                                                                              Level B         Level A         Level B         Level A
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale......................  Eastern North Pacific..................               3               0              15               0
Humpback whale *...............................  Central North Pacific..................              61               0             305               0
                                                 California, Washington, Oregon.........               7               0              35               0
                                                 Western North Pacific..................               1               0               5               0
Blue whale.....................................  Eastern North Pacific..................              47               0             235               0
                                                 Central North Pacific..................               0               0               0               0
Fin whale......................................  Northeast Pacific......................           1,291               0           6,455               0
Sei whale......................................  Eastern North Pacific..................               6               0              30               0
Minke whale....................................  Alaska.................................              43               0             215               0
Gray whale.....................................  Eastern North Pacific..................               0               0               0               0
                                                 Western North Pacific..................               0               0               0               0
Sperm whale....................................  North Pacific..........................              98               0             490               0
Killer whale...................................  Alaska Resident........................             281               0           1,405               0
                                                 Eastern North Pacific Offshore.........              26               0             130               0
                                                 AT1 Transient..........................               0               0               0               0
                                                 GOA, Aleutian Island, and Bearing Sea                72               0             360               0
                                                  Transient.
Pacific white-sided dolphin....................  North Pacific..........................             981               0           4,905               0
Harbor porpoise................................  Gulf of Alaska.........................           2,742               0          13,710               0
                                                 Southeast Alaska.......................             963               0           4,815               0
Dall's porpoise **.............................  Alaska.................................           8,270            ** 4          41,350              20
Cuvier's beaked whale..........................  Alaska.................................           1,271               0           6,355               0
Baird's beaked whale...........................  Alaska.................................             200               0           1,000               0
Stejneger's beaked whale.......................  Alaska.................................             576               0           2,880               0
Steller sea lion...............................  Eastern U.S............................             335               0           1,675               0
                                                 Western U.S............................             286               0           1,430               0
California sea lion............................  U.S....................................               2               0              10               0
Northern fur seal..............................  Eastern Pacific-Alaska.................             713               0           3,565               0
Northern elephant seal.........................  California Breeding....................             122               0             610               0
Harbor seal....................................  Aleutian Islands.......................               0               0               0               0
                                                 Pribilof Islands.......................               0               0               0               0
                                                 Bristol Bay............................               0               0               0               0
                                                 North Kodiak...........................               0               0               0               0
                                                 South Kodiak...........................               1               0               5               0
                                                 Prince William Sound...................               1               0               5               0
                                                 Cook Inlet/Shelikof....................               0               0               0               0
                                                 Glacier Bay/Icy Strait.................               0               0               0               0
                                                 Sitka/Chatham..........................               0               0               0               0
                                                 Dixon/Cape Decision....................               0               0               0               0
Ribbon seal....................................  Alaska.................................               0               0               0               0
                                                                                         ---------------------------------------------------------------
    Totals.....................................  .......................................          18,250               4          91,250              20
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Since the publication of the proposed rule, NMFS requested that the Navy include an additional ESA-listed stock of humpback whale (CA/OR/WA stock)
  that could have some elements of its population in or transiting the GOA TMAA. NMFS agreed with the Navy's assessment that the most accurate approach
  would be to re-proportion total modeled humpback whale takes to all three stocks based on best available science. The Navy prorated existing modeled
  humpback whale takes into three parts based on relative abundance between the Central North Pacific stock, the CA/OR/WA stock, and the Western North
  Pacific stock as detailed in scientific sighting and genetic studies (Calambokidis et al., 2008). Thus, Table 11 shows the revised prorated breakdown
  of Level B harassment takes by humpback whale stocks. Total number of takes does not differ from what was determined for the proposed rule, nor does
  our negligible impact determination for this species change, as discussed below.
** The Navy, at NMFS' request, provided a quantitative analysis of how explosive takes could change if the new NMFS acoustic criteria were applied
  retroactively to GOA Phase II results. The Navy's analysis concluded that changes in the take estimate would occur for only one species (Dall's
  porpoise) under this assessment (+3 Level A PTS and +149 Level B (TTS and behavior) takes as compared to Alternative 1 of the FSEIS/OEIS).

Marine Mammal Habitat

    The Navy's proposed training activities could potentially affect 
marine mammal habitat through the introduction of sound into the water 
column, impacts to the prey species of marine mammals, bottom 
disturbance, or changes in water quality. Each of these components was 
considered in Chapter 3 of the GOA FSEIS/OEIS. Based on the information 
in the ``Marine Mammal Habitat'' section of the proposed rule (81 FR 
9950, 10000-03; February 26, 2016) and the supporting information 
included in the GOA FSEIS/OEIS, NMFS has determined that training 
activities would not have adverse or long-term impacts on marine mammal 
habitat. In summary, expected effects to marine mammal habitat will 
include transitory elevated levels of anthropogenic sound in the water 
column; short-term physical alteration of the water column or bottom 
topography; brief disturbances to marine invertebrates; localized and 
infrequent disturbance to fish; a limited number of fish mortalities; 
and temporary marine mammal avoidance.

[[Page 19587]]

Analysis and Negligible Impact Determination (NID)

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes, alone, is not 
enough information on which to base an impact determination, as the 
severity of harassment may vary greatly depending on the context and 
duration of the behavioral response, many of which would not be 
expected to have deleterious impacts on the fitness of any individuals. 
In determining whether the expected takes will have a negligible 
impact, in addition to considering estimates of the number of marine 
mammals that might be ``taken,'' NMFS must consider other factors, such 
as the likely nature of any responses (their intensity, duration, 
etc.), the context of any responses (critical reproductive time or 
location, migration, etc.), as well as the number and nature (e.g., 
severity) of estimated Level A harassment takes, the number of 
estimated mortalities, and the status of the species. As a reminder, 
the GOA TMAA training activities will not occur continuously throughout 
the year, but rather, for a maximum of 21 days once annually between 
April and October.
    The Navy's specified activities have been described based on best 
estimates of the maximum amount of sonar and other acoustic source use 
or detonations that the Navy would conduct. There may be some 
flexibility in that the exact number of hours, items, or detonations 
may vary from year to year, but the total amount of incidental take is 
not authorized to exceed the 5-year totals indicated in Table 11. We 
base our analysis and NID on the maximum number of takes authorized, 
although, as stated before, the number of takes are only a part of the 
analysis, which includes extensive qualitative consideration of other 
contextual factors that influence the degree of impact of the takes on 
the effected individuals. To avoid repetition, we provide some general 
analysis immediately below that applies to all the species listed in 
Table 11, given that some of the anticipated effects (or lack thereof) 
of the Navy's training activities on marine mammals are expected to be 
relatively similar in nature. However, below that, we break our 
analysis into species, or groups of species where relevant similarities 
exist, to provide more specific information related to the anticipated 
effects on individuals or where there is information about the status 
or structure of any species that would lead to a differing assessment 
of the effects on the population.
    The Navy's take request is based on its model and post-model 
analysis, modified as described in the ``Summary of Request'' and 
``Take Request'' sections. In the discussions below, the ``acoustic 
analysis'' refers to the Navy's modeling results and post-model 
analysis. The model calculates sound energy propagation from sonar, 
other active acoustic sources, and explosives during naval activities; 
the sound or impulse received by animat dosimeters representing marine 
mammals distributed in the area around the modeled activity; and 
whether the sound or impulse received by a marine mammal exceeds the 
thresholds for effects. The model estimates are then further analyzed 
to consider animal avoidance and implementation of highly effective 
mitigation measures to prevent Level A harassment, resulting in final 
estimates of effects due to Navy training. NMFS provided input to the 
Navy on this process and the Navy's qualitative analysis is described 
in detail in Chapter 6 of its LOA application (http://www.nmfs.noaa.gov/pr/permits/incidental/militry.htm).
    Generally speaking, and especially with other factors being equal, 
the Navy and NMFS anticipate more severe effects from takes resulting 
from exposure to higher received levels (although this is in no way a 
strictly linear relationship throughout species, individuals, or 
circumstances) and less severe effects from takes resulting from 
exposure to lower received levels. The requested number of Level B 
harassment takes does not equate to the number of individual animals 
the Navy expects to harass (which is lower), but rather to the 
instances of take (i.e., exposures above the Level B harassment 
threshold) that would occur. These instances may represent either a 
very brief exposure (seconds) or, in some cases, longer durations of 
exposure within a day. Depending on the location, duration, and 
frequency of activities, along with the distribution and movement of 
marine mammals, individual animals may be exposed to impulse or non-
impulse sounds at or above the Level B harassment threshold on multiple 
days. However, the Navy is currently unable to estimate the number of 
individuals that may be taken during training activities. Therefore, 
the model results estimate the total number of takes that may occur to 
a smaller number of individuals. While the model shows that an 
increased number of exposures may take place due to an increase in 
events/activities and ordnance, the types and severity of individual 
responses to training and activities are not expected to change.

Behavioral Responses

    As discussed in the proposed rule, marine mammals can respond to 
LF/MFAS/HFAS in many different ways, a subset of which qualifies as 
Level B harassment. As described in the proposed rule, the Navy uses 
the behavioral response function to quantify the number of behavioral 
responses that would qualify as Level B harassment under the MMPA. As 
the statutory definition is currently applied, a wide range of 
behavioral reactions may qualify as Level B harassment under the MMPA, 
including but not limited to avoidance of the sound source, temporary 
changes in vocalizations or dive patterns, temporary avoidance of an 
area, or temporary disruption of feeding, migrating, or reproductive 
behaviors. The estimates calculated using the behavioral response 
function do not differentiate between the different types of potential 
reactions. Nor do the estimates provide information regarding the 
potential fitness or other biological consequences of the reactions on 
the affected individuals. We therefore consider the available 
scientific evidence to determine the likely nature of the modeled 
behavioral responses and the potential fitness consequences for 
affected individuals.
    For LF/MFAS/HFAS use in the GOA TMAA, the Navy provided information 
(Table 12) estimating the percentage of Level B harassment that would 
occur within the 6-dB bins (without considering mitigation or 
avoidance). As mentioned above, an animal's exposure to a higher 
received level is more likely to result in a behavioral response that 
is more likely to adversely affect the health of the animal. As 
illustrated below, the majority (including about 65-72 percent for the 
most powerful ASW hull-mounted sonar, which is responsible for a large 
portion of the sonar takes) of calculated takes from MFAS result from 
exposures less than 162 dB and more than 20km away. Less than 1-2 
percent of the takes are expected to result from exposures above 168 dB 
or closer than 4km. Specifically, given a range of behavioral responses 
that may be classified as Level B harassment, to the degree that higher 
received levels are expected to result in more severe behavioral 
responses, only

[[Page 19588]]

a small percentage of the anticipated Level B harassment from Navy 
activities might necessarily be expected to potentially result in more 
severe responses, especially when the distance from the source at which 
the levels below are received is considered (see Table 12). Marine 
mammals are able to discern the distance of a given sound source, and 
given other equal factors (including received level), they have been 
reported to respond more to sounds that are closer (DeRuiter et al., 
2013). Further, the estimated number of responses do not reflect either 
the duration or context of those anticipated responses, some of which 
will be of very short duration, and other factors should be considered 
when predicting how the estimated takes may affect individual fitness. 
A recent study by Moore and Barlow (2013) emphasizes the importance of 
context (e.g., behavioral state of the animals, distance from the sound 
source, etc.) in evaluating behavioral responses of marine mammals to 
acoustic sources.

   Table 12--Non-Impulsive Ranges to Received Sound Pressure Levels in 6-dB Bins and Percentage of Level B Harassments for Three Representative Sonar
                                                                         Systems
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Sonar Bin MF1  (e.g., SQS-53; ASW     Sonar Bin MF4  (e.g., AQS-22; ASW     Sonar Bin MF5  (e.g., SSQ-62; ASW
                                                 hull mounted sonar)                     dipping sonar)                           sonobuoy)
                                       -----------------------------------------------------------------------------------------------------------------
                                                             Percentage of                         Percentage of                         Percentage of
            Received level              Distance at which      behavioral     Distance at which      behavioral     Distance at which      behavioral
                                           levels occur       harassments        levels occur       harassments        levels occur       harassments
                                         within radius of     occurring at     within radius of     occurring at     within radius of     occurring at
                                           source  (m)        given levels       source  (m)        given levels       source  (m)        given levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Low Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
120 <= SPL < 126......................    185,400-160,325                  0      91,363-70,650                  0      20,463-12,725                  0
126 <= SPL < 132......................    160,325-138,400                  0      70,650-49,125                  0       12,725-7,575                  0
132 <= SPL < 138......................    138,400-118,100                  0      49,125-28,950                  4        7,575-3,813                  5
138 <= SPL < 144......................     118,100-85,400                  2      28,950-10,800                 29        3,813-2,200                 15
144 <= SPL < 150......................      85,400-61,288                  7       10,800-4,250                 29          2,200-638                 51
150 <= SPL < 156......................      61,288-42,750                 19        4,250-2,013                 19            638-250                 18
156 <= SPL < 162......................      42,750-20,813                 43          2,013-638                 16            250-100                  9
162 <= SPL < 168......................       20,813-4,375                 26            638-200                  3            100-<50                  3
168 <= SPL < 174......................        4,375-1,825                  1            200-100                  0                <50                  0
174 <= SPL < 180......................          1,825-750                  0            100-<50                  0                <50                  0
180 <= SPL < 186......................            750-375                  0                <50                  0                <50                  0
186 <= SPL < 192......................            375-200                  0                <50                  0                <50                  0
192 <= SPL < 198......................            200-100                  0                <50                  0                <50                  0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Odontocetes and Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
120 <= SPL < 126......................    185,450-160,475                  0      93,075-71,275                  0      21,288-14,200                  0
126 <= SPL < 132......................    160,475-138,750                  0       71,275-50938                  0       14,200-8,238                  0
132 <= SPL < 138......................    138,750-123,113                  0      50,938-29,075                  1        8,238-4,350                  1
138 <= SPL < 144......................     123,113-85,450                  1      29,075-11,050                 14        4,350-2,425                  6
144 <= SPL < 150......................      85,450-61,363                  4       11,050-4,250                 25        2,425-1,213                 24
150 <= SPL < 156......................      61,363-42,763                 14        4,250-2,013                 24          1,213-250                 54
156 <= SPL < 162......................      42,763-21,025                 44          2,013-638                 28            250-150                  7
162 <= SPL < 168......................       21,025-4,475                 35            638-200                  7            150-<50                  9
168 <= SPL < 174......................        4,475-1,850                  2            200-100                  1                <50                  0
174 <= SPL < 180......................          1,850-763                  0            100-<50                  0                <50                  0
180 <= SPL < 186......................            763-400                  0                <50                  0                <50                  0
186 <= SPL < 192......................            400-200                  0                <50                  0                <50                  0
192 <= SPL < 198......................            200-100                  0                <50                  0                <50                  0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: (1) ASW = anti-submarine warfare, m = meters, SPL = sound pressure level; (2) Odontocete behavioral response function is also used for high-
  frequency cetaceans, phocid seals, otariid seals and sea lions, and sea otters.

    Although the Navy has been monitoring to discern the effects of LF/
MFAS/HFAS on marine mammals since 2006, and research on the effects of 
MFAS is advancing, our understanding of exactly how marine mammals in 
the Study Area will respond to LF/MFAS/HFAS is still improving. 
However, the Navy has submitted more than 80 reports, including Major 
Exercise Reports, Annual Exercise Reports, and Monitoring Reports, 
documenting hundreds of thousands of marine mammals across Navy range 
complexes, and there are only two instances of overt behavioral 
disturbances that have been observed. One cannot conclude from these 
results that marine mammals were not harassed from MFAS/HFAS, as a 
portion of animals within the area of concern were not seen (especially 
those more cryptic, deep-diving species, such as beaked whales or Kogia 
spp.), the full series of behaviors that would more accurately show an 
important change is not typically seen (i.e., only the surface 
behaviors are observed), and some of the non-biologist watchstanders 
might not be well-qualified to characterize behaviors. However, one can 
say that the animals that were observed did not respond in any of the 
obviously more severe ways, such as panic, aggression, or anti-predator 
response.
    Some of the lower level physiological stress responses discussed in 
the Potential Effects section of the proposed rule would also likely 
co-occur with the predicted harassments, although these responses are 
more difficult to detect and fewer data exist relating these responses 
to specific received levels of sound. Level B harassment takes, then, 
may have a stress-related physiological component as well; however, we 
would

[[Page 19589]]

not expect the Navy's generally short-term, intermittent, and (in the 
case of sonar) transitory activities to create conditions of long-term, 
continuous noise leading to long-term physiological stress responses in 
marine mammals.

Diel Cycle

    As noted in the Potential Effects section of the proposed rule, 
many animals perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure (when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat) are more likely to be 
significant if they last more than one diel cycle or recur on 
subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered severe unless it could directly affect reproduction 
or survival (Southall et al., 2007). Note that there is a difference 
between multiple-day substantive behavioral reactions and multiple-day 
anthropogenic activities. For example, just because an at-sea exercise 
lasts for multiple days does not necessarily mean that individual 
animals are either exposed to those exercises for multiple days or, 
further, exposed in a manner resulting in a sustained multiple day 
substantive behavioral response. Large multi-day Navy exercises, such 
as those proposed in the GOA TMAA, typically include vessels that are 
continuously moving at speeds typically 10-15 knots, or higher, and 
likely cover large areas that are relatively far from shore, in 
addition to the fact that marine mammals are moving as well, which 
would make it unlikely that the same animal could remain in the 
immediate vicinity of the ship for the entire duration of the exercise. 
Additionally, the Navy does not necessarily operate active sonar the 
entire time during an exercise (though exercise reports are classified, 
the unclassified report for the 2011 training events indicated that 
sonar was operated for a total of 67 minutes in the 12-day exercise). 
While it is certainly possible that these sorts of exercises could 
overlap with individual marine mammals multiple days in a row at levels 
above those anticipated to result in a take, because of the factors 
mentioned above, it is considered unlikely for the majority of takes. 
Even if an exercise overlaps with an individual marine mammal multiple 
days in a rule, this does not mean that a behavioral response is 
necessarily sustained for multiple days, but instead necessitates the 
consideration of likely duration and context to assess any effects on 
the individual's fitness.
    Durations for non-impulsive activities utilizing tactical sonar 
sources vary and are fully described in Appendix A of the GOA FSEIS/
OEIS. ASW training exercises using MFAS/HFAS proposed for the GOA TMAA 
generally last for 2-16 hours, and may have intervals of non-activity 
in between. Because of the need to train in a large variety of 
situations (in the case of the GOA TMAA, complex bathymetric and 
oceanographic conditions include a continental shelf, submarine 
canyons, seamounts, and fresh water infusions from multiple sources), 
the Navy does not typically conduct successive ASW exercises in the 
same locations. Given the average length of ASW exercises (times of 
continuous sonar use) and typical vessel speed, combined with the fact 
that the majority of the cetaceans in the GOA TMAA Study Area would not 
likely remain in an area for successive days, it is unlikely that an 
animal would be exposed to MFAS/HFAS at levels likely to result in a 
substantive response that would then be carried on for more than one 
day or on successive days.
    Planned explosive exercises for the GOA TMAA are of a short 
duration (1-6 hours). Although explosive exercises may sometimes be 
conducted in the same general areas repeatedly, because of their short 
duration and the fact that they are in the open ocean and animals can 
easily move away, it is similarly unlikely that animals would be 
exposed for long, continuous amounts of time.

Temporary Threshold Shifts (TTS)

    As mentioned previously, TTS can last from a few minutes to days, 
be of varying degree, and occur across various frequency bandwidths, 
all of which determine the severity of the impacts on the affected 
individual, which can range from minor to more severe. The TTS 
sustained by an animal is primarily classified by three 
characteristics:
    1. Frequency--Available data (of mid-frequency hearing specialists 
exposed to mid- or high-frequency sounds; Southall et al., 2007) 
suggest that most TTS occurs in the frequency range of the source up to 
one octave higher than the source (with the maximum TTS at \1/2\ octave 
above). The more powerful MF sources used have center frequencies 
between 3.5 and 8 kHz and the other unidentified MF sources are, by 
definition, less than 10 kHz, which suggests that TTS induced by any of 
these MF sources would be in a frequency band somewhere between 
approximately 2 and 20 kHz. There are fewer hours of HF source use and 
the sounds would attenuate more quickly. They also have lower source 
levels, but if an animal were to incur TTS from these sources, it would 
cover a higher frequency range (sources are between 20 and 100 kHz, 
which means that TTS could range up to 200 kHz; however, HF systems are 
typically used less frequently and for shorter time periods than 
surface ship and aircraft MF systems, so TTS from these sources is even 
less likely). TTS from explosives would be broadband. Vocalization data 
for each species, which would inform how TTS might specifically 
potentially interfere with communications with conspecifics, was 
provided in the LOA application.
    2. Degree of the shift (i.e., by how many dB the sensitivity of the 
hearing is reduced)--Generally, both the degree of TTS and the duration 
of TTS will be greater if the marine mammal is exposed to a higher 
level of energy (which would occur when the peak dB level is higher or 
the duration is longer). The threshold for the onset of TTS was 
discussed previously in this final rule. An animal would have to 
approach closer to the source or remain in the vicinity of the sound 
source appreciably longer to increase the received SEL, which would be 
difficult considering the Lookouts and the nominal speed of an active 
sonar vessel (10-15 knots). In the TTS studies (see Threshold Shift 
section of the proposed rule), some using exposures of almost an hour 
in duration or up to 217 SEL, most of the TTS induced was 15 dB or 
less, though Finneran et al. (2007) induced 43 dB of TTS with a 64-
second exposure to a 20 kHz source. However, MFAS emits a short ping 
typically every 50 seconds, and TTS incurred from these activities 
would likely be of smaller degree and shorter duration.
    3. Duration of TTS (recovery time)--In the TTS laboratory studies 
(see Threshold Shift section of the proposed rule), some using 
exposures of almost an hour in duration or up to 217 SEL, almost all 
individuals recovered within 1 day (or less, often in minutes), 
although in one study (Finneran et al., 2007), recovery took 4 days. In 
this case, because of the likely SEL exposure, TTS incurred would be 
expected to be less and recovery time would be shorter.
    Based on the range of degree and duration of TTS reportedly induced 
by exposures to non-pulse sounds of energy higher than that to which 
free-swimming marine mammals in the field are likely to be exposed 
during MFAS/HFAS training exercises in the GOA TMAA, it is unlikely 
that marine mammals would ever sustain a TTS from MFAS that alters 
their sensitivity

[[Page 19590]]

by more than 20 dB for more than a few days (and any incident of TTS 
would likely be far less severe due to the short duration of the 
majority of the exercises and the speed of a typical vessel). Also, for 
the same reasons discussed in the Diel Cycle section, and because of 
the short distance within which animals would need to approach the 
sound source, it is unlikely that animals would be exposed to the 
levels necessary to induce TTS in subsequent time periods such that 
their recovery is impeded. Additionally, though the frequency range of 
TTS that marine mammals might sustain would overlap with some of the 
frequency ranges of their vocalization types, the frequency range of 
TTS from MFAS (the source from which TTS would most likely be sustained 
because the higher source level and slower attenuation make it more 
likely that an animal would be exposed to a higher received level) 
would not usually span the entire frequency range of one vocalization 
type, much less span all types of vocalizations or other critical 
auditory cues. If impaired, marine mammals would typically be aware of 
their impairment and are sometimes able to implement behaviors to 
compensate (see Acoustic Masking or Communication Impairment section), 
though these compensations may incur energetic costs. Because of the 
low levels and short duration of TTS expected to result from these 
activities, little, if any, energetic costs would be expected to be 
incurred.

Acoustic Masking or Communication Impairment

    Masking only occurs during the time of the signal (and potential 
secondary arrivals of indirect rays), versus TTS, which continues 
beyond the duration of the signal. Standard MFAS typically pings every 
50 seconds for hull-mounted sources. For the sources for which we know 
the pulse length, most are significantly shorter than hull-mounted 
active sonar, on the order of several microseconds to tens of 
microseconds. For hull-mounted active sonar, though some of the 
vocalizations that marine mammals make are less than one second long, 
there is only a 1 in 50 chance that they would occur exactly when the 
ping was received, and when vocalizations are longer than one second, 
only parts of them are masked. Alternately, when the pulses are only 
several microseconds long, the majority of most animals' vocalizations 
would not be masked. Masking effects from MFAS/HFAS are expected to be 
minimal. If masking or communication impairment were to occur briefly, 
it would be in the frequency range of MFAS, which overlaps with some 
marine mammal vocalizations; however, it would likely not mask the 
entirety of any particular vocalization, communication series, or other 
critical auditory cue, because the signal length, frequency, and duty 
cycle of the MFAS/HFAS signal does not perfectly mimic the 
characteristics of any marine mammal's vocalizations. The other sources 
used in Navy training, many of either higher frequencies (meaning that 
the sounds generated attenuate even closer to the source) or lower 
amounts of operation, are similarly not expected to result in masking.

PTS, Injury, or Mortality

    NMFS believes that many marine mammals would deliberately avoid 
exposing themselves to the received levels of active sonar necessary to 
induce injury by moving away from or at least modifying their path to 
avoid a close approach. Additionally, in the unlikely event that an 
animal approaches the sonar vessel at a close distance, NMFS believes 
that the mitigation measures (i.e., shutdown/powerdown zones for MFAS/
HFAS) would typically ensure that animals would not be exposed to 
injurious levels of sound. As discussed previously, the Navy utilizes 
both aerial (when available) and passive acoustic monitoring (during 
all ASW exercises) in addition to watchstanders on vessels to detect 
marine mammals for mitigation implementation. There was no modeled 
prediction of mortality to any species that occurs in the Study Area as 
a result of the Navy's training activities.
    If a marine mammal is able to approach a surface vessel within the 
distance necessary to incur PTS, the likely speed of the vessel 
(nominal 10-15 knots) would make it very difficult for the animal to 
remain in range long enough to accumulate enough energy to result in 
more than a mild case of PTS. As mentioned previously and in relation 
to TTS, the likely consequences to the health of an individual that 
incurs PTS can range from mild to more serious dependent upon the 
degree of PTS and the frequency band it is in, and many animals are 
able to compensate for the shift, although it may include energetic 
costs. Because of the small degree of PTS that would likely result, if 
it occurs, any energetic costs incurred by four Dall's porpoises would 
be expected to be relatively small.
    No Level A harassment takes are predicted to occur to any species 
from exposure to non-impulsive sound. As mentioned previously, the Navy 
reprocessed anticipated ranges to PTS for impulsive sources 
(explosives) based on NMFS' new Guidance to assess if the new acoustic 
criteria could result in any additional species-specific injury 
exposures. The Navy did not reprocess anticipated sonar ranges to 
effects for PTS because the acoustic thresholds used in the Navy's 
modeling are largely more conservative that the new Guidance, and NMFS 
and the Navy qualitatively evaluated (described earlier) the effects 
the change would have on our analyses. The Navy's analysis concluded 
that only four Level A (PTS) takes per year to one species (Dall's 
porpoise) are predicted to occur from GOA training activities. No 
species other than Dall's porpoise would be expected to incur PTS from 
explosives if the new Guidance was applied to the Navy's activities.
    We assume that the acoustic exposures sufficient to trigger onset 
PTS (or TTS) would be accompanied by behavioral responses and/or 
physiological stress responses, although the sound characteristics that 
correlate with specific stress responses in marine mammals are poorly 
understood. However, as discussed above in the ``Behavioral Responses'' 
section, we would not expect the Navy's generally short-term, 
intermittent, and (in the case of sonar) transitory activities to 
create conditions of long-term, continuous noise leading to long-term 
physiological stress responses in marine mammals.
    As discussed previously, marine mammals (especially beaked whales) 
could potentially respond to MFAS at a received level lower than the 
injury threshold in a manner that indirectly results in the animals 
stranding. The exact mechanism of this potential response, behavioral 
or physiological, is not known. When naval exercises have been 
associated with strandings in the past, it has typically been when 
three or more vessels are operating simultaneously, in the presence of 
a strong surface duct, and in areas of constricted channels, semi-
enclosed areas, and/or steep bathymetry. While these features certainly 
do not define the only factors that can contribute to a stranding, and 
while they need not all be present in their aggregate to increase the 
likelihood of a stranding, it is worth noting that they are not all 
present in the GOA TMAA, which only has a strong surface duct present 
during the winter, and does not have bathymetry or constricted channels 
of the type that have been present in the sonar associated strandings. 
When this is combined with consideration of the number of hours of 
active sonar training that will be conducted and the total

[[Page 19591]]

duration of all training exercises (a maximum of 21 days once a year), 
we believe that the probability that this will occur is small and we 
have not authorized this type of take to occur. Lastly, an active sonar 
shutdown protocol for strandings involving live animals milling in the 
water minimizes the chances that these types of events turn into 
mortalities.
    As stated previously, there have been no recorded Navy vessel 
strikes of any marine mammals during training in the GOA Study Area to 
date, nor were takes by injury or mortality resulting from vessel 
strike predicted in the Navy's analysis.

Group and Species-Specific Analysis

    Predicted effects on marine mammals from exposures to sonar and 
other active acoustic sources and explosions during annual training 
activities are shown in Table 11. The vast majority of predicted 
exposures (greater than 99 percent) are expected to be Level B 
harassment (non-injurious TTS and behavioral reactions) from sonar and 
other active acoustic sources at relatively low received levels (Table 
12). The acoustic analysis predicts the majority of marine mammal 
species in the Study Area would not be exposed to explosive (impulsive) 
sources associated with training activities. Only Dall's porpoise is 
predicted to have Level B (TTS) exposures resulting from explosives, 
and only a limited number (4) of Dall's porpoise are expected to have 
injurious take (PTS), which are from explosions. There are no lethal 
takes predicted for any marine mammal species for the GOA activities.
    The analysis below may in some cases (e.g., mysticetes, porpoises, 
pinnipeds) address species collectively if they occupy the same 
functional hearing group (i.e., low, mid, and high-frequency cetaceans 
and pinnipeds in water), have similar hearing capabilities, and/or are 
known to generally behaviorally respond similarly to acoustic 
stressors. Where there are meaningful differences between species or 
stocks in anticipated individual responses to activities, impact of 
expected take on the population due to differences in population 
status, or impacts on habitat, they will either be described within the 
section or the species will be included as a separate sub-section.
    Mysticetes--The Navy's acoustic analysis predicts that 2,923 
instances of Level B harassment of mysticete whales may occur in the 
Study Area each year from sonar and other active acoustic sources 
during training activities. Annual species-specific take estimates are 
as follows: 3 North Pacific right whales (Eastern North Pacific stock), 
69 humpback whales (Central North Pacific, Western North Pacific, and 
CA/OR/WA stocks), 47 blue whales (Eastern North Pacific stock), 1,291 
fin whales (Northeast Pacific stock), 6 sei whales (Eastern North 
Pacific stock), and 43 minke whales (Alaska stock). Of these species, 
humpback (Western North Pacific DPS and Mexico DPS), blue, fin, sei, 
and North Pacific right whales are listed as threatened or endangered 
under the ESA and depleted under the MMPA. NMFS issued a Biological 
Opinion concluding that the issuance of the rule and subsequent LOA are 
likely to adversely affect, but are not likely to jeopardize, the 
continued existence of the threatened and endangered species under 
NMFS' jurisdiction and are not likely to result in the destruction or 
adverse modification of critical habitat in the GOA TMAA Study Area 
(there is no designated critical habitat for mysticetes in the Study 
Area.). Based on the distribution information presented in the LOA 
application, it is highly unlikely that gray whales would be 
encountered in the Study Area during events involving use of sonar and 
other active acoustic sources. The acoustic analysis did not predict 
any takes of gray whales and NMFS is not authorizing any takes of this 
species.
    Generally, these represent a limited number of takes relative to 
population estimates for most mysticete stocks in the Study Area. When 
the numbers of behavioral takes are compared to the estimated stock 
abundance and if one assumes that each take happens to a separate 
animal, less than approximately 10 percent of each of these stocks, 
with the exception of the Northeast Pacific stock of fin whale and the 
Alaska stock of minke whale, would be behaviorally harassed during the 
course of a year. There currently are no reliable population estimates 
for the Northeast Pacific stock of fin whale and the Alaska stock of 
minke whale because only portions of the stocks' range have been 
surveyed (Muto and Angliss, 2016). However, NMFS believes the portion 
of these stocks expected to be taken is relatively small. Older 
provisional surveys in small subsets of the Minke range (Bering shelf 
and shelf and nearshore waters from Kenai Fjords to the Aleutians) 
showed partial abundances or 389-2,020 and 1,233, respectively, 
suggesting numbers larger than the sum of those if all areas in the 
Alaska range were surveyed. A provisional estimate of the minimum 
population of portion of the fin whale range west of the Kenai 
peninsula (about a third of the range) is 1,368 and earlier estimates 
of multiple subsets of the portion of the population east of the Kenai 
peninsula were in the thousands, suggesting that the abundance of the 
full population is at least more than several thousand. Because the 
estimates given above represent the total number of exposures and not 
necessarily the number of individuals exposed, it is more likely that 
fewer individuals would be taken, but a subset would be taken more than 
one time per year. In the ocean, the use of sonar and other active 
acoustic sources is transient and is unlikely to repeatedly expose the 
same population of animals over a short period.
    Level B harassment takes are anticipated to be in the form of TTS 
and behavioral reactions and no injurious takes of North Pacific right, 
humpback, blue, fin, minke, or sei whales from sonar and other active 
acoustic stressors or explosives are expected. The majority of acoustic 
effects to mysticetes from sonar and other active sound sources during 
training activities would be primarily from anti-submarine warfare 
events involving surface ships and hull mounted sonar. Research and 
observations show that if mysticetes are exposed to sonar or other 
active acoustic sources they may react in a number of ways depending on 
the characteristics of the sound source, their experience with the 
sound source, and whether they are migrating or on seasonal grounds 
(i.e., breeding or feeding). Reactions may include alerting, breaking 
off feeding dives and surfacing, diving or swimming away, or no 
response at all (Richardson, 1995; Nowacek, 2007; Southall et al., 
2007; Finneran and Jenkins, 2012). Richardson et al. (1995) noted that 
avoidance (temporary displacement of an individual from an area) 
reactions are the most obvious manifestations of disturbance in marine 
mammals. Avoidance is qualitatively different from the startle or 
flight response, but also differs in the magnitude of the response 
(i.e., directed movement, rate of travel, etc.). Oftentimes avoidance 
is temporary, and animals return to the area once the noise has ceased. 
Additionally, migrating animals may ignore a sound source, or divert 
around the source if it is in their path.
    Specific to U.S. Navy systems using low frequency sound, studies 
were undertaken in 1997-98 pursuant to the Navy's Low Frequency Sound 
Scientific Research Program. These studies found only short-term 
responses to low frequency sound by mysticetes (fin, blue, and humpback 
whales) including changes in vocal activity and avoidance

[[Page 19592]]

of the source vessel (Clark, 2001; Miller et al., 2000; Croll et al., 
2001; Fristrup et al., 2003; Nowacek et al., 2007). Baleen whales 
exposed to moderate low-frequency signals demonstrated no variation in 
foraging activity (Croll et al., 2001). Low-frequency signals of the 
Acoustic Thermometry of Ocean Climate sound source were not found to 
affect dive times of humpback whales in Hawaiian waters (Frankel and 
Clark, 2000).
    Specific to mid-frequency sound, studies by Melc[oacute]n et al. 
(2012) in the Southern California Bight found that the likelihood of 
blue whale low-frequency calling (usually associated with feeding 
behavior) decreased with an increased level of MFAS, beginning at a SPL 
of approximately 110-120 dB re 1 [mu]Pa. However, it is not known 
whether the lower rates of calling actually indicated a reduction in 
feeding behavior or social contact since the study used data from 
remotely deployed, passive acoustic monitoring buoys. Results from a 
behavioral response study in Southern California waters indicated that 
in some cases and at low received levels, tagged blue whales responded 
to MFAS but that those responses were mild and there was a quick return 
to their baseline activity (Southall et al., 2011; Southall et al., 
2012b). Blue whales responded to a mid-frequency sound source, with a 
source level between 160 and 210 dB re 1 [mu]Pa at 1 m and a received 
sound level up to 160 dB re 1 [mu]Pa, by exhibiting generalized 
avoidance responses and changes to dive behavior during the exposure 
experiments (CEE) (Goldbogen et al., 2013). However, reactions were not 
consistent across individuals based on received sound levels alone, and 
likely were the result of a complex interaction between sound exposure 
factors such as proximity to sound source and sound type (MFAS 
simulation vs. pseudo-random noise), environmental conditions, and 
behavioral state. Surface feeding whales did not show a change in 
behavior during CEEs, but deep feeding and non-feeding whales showed 
temporary reactions that quickly abated after sound exposure. Distances 
of the sound source from the whales during CEEs were sometimes less 
than a mile. Blue whales have been documented exhibiting a range of 
foraging strategies for maximizing feeding dependent on the density of 
their prey at a given location (Goldbogen et al., 2015), so it may be 
that a temporary behavioral reaction or avoidance of a location where 
feeding was occurring is not meaningful to the life history of an 
animal. The findings from Goldbogen et al. (2013) and Melc[oacute]n et 
al. (2012) are generally consistent with the Navy's criteria and 
thresholds for predicting behavioral effects to mysticetes from sonar 
and other active acoustic sources used in the quantitative acoustic 
effects analysis for GOA. The Navy's behavioral response function 
predicts the probability of a behavioral response that rises to a Level 
B harassment take for individuals exposed to a received SPL of 120 dB 
re 1 [mu]Pa or greater, with an increasing probability of reaction with 
increased received level as demonstrated in Melc[oacute]n et al. 
(2012).
    High-frequency systems are notably outside of mysticetes' ideal 
hearing and vocalization range. Therefore, mysticetes are unlikely to 
be able to detect higher-frequency systems and these systems would not 
interfere with their communication or detection of biologically 
relevant sounds or cause a significant behavioral reaction.
    Most Level B harassments to mysticetes from sonar in the Study Area 
would result from received levels less than 156 dB SPL. Therefore, the 
majority of Level B harassment takes are expected to be in the form of 
milder responses (i.e., lower-level exposures that still rise to the 
level of take, but would likely be less severe in the range of 
responses that qualify as take) of a generally short duration. As 
mentioned earlier in this section, we anticipate more severe effects 
from takes when animals are exposed to higher received levels. Most 
low-frequency (mysticetes) cetaceans observed in studies usually 
avoided sound sources at levels of less than or equal to 160 dB re 
1[mu]Pa. Occasional milder behavioral reactions are unlikely to cause 
long-term consequences for individual animals or populations. Even if 
sound exposure were to be concentrated in a relatively small geographic 
area over a long period of time (e.g., days or weeks during major 
training exercises), we would expect that some individual whales would 
avoid areas where exposures to acoustic stressors are at higher levels. 
For example, Goldbogen et al. (2013) indicated some horizontal 
displacement of deep foraging blue whales in response to simulated MFA 
sonar. Given these animals' mobility and large ranges, we would expect 
these individuals to temporarily select alternative foraging sites 
nearby until the exposure levels in their initially selected foraging 
area have decreased. Therefore, even temporary displacement from 
initially selected foraging habitat is not expected to impact the 
fitness of any individual animals because we would expect equivalent 
foraging to be available in close proximity. Because we do not expect 
any fitness consequences any individual animals, we do not expect any 
population level effects from these behavioral responses.
    As explained above, recovery from a threshold shift (TTS) can take 
a few minutes to a few days, depending on the exposure duration, sound 
exposure level, and the magnitude of the initial shift, with larger 
threshold shifts and longer exposure durations requiring longer 
recovery times (Finneran et al., 2005; Finneran and Schlundt, 2010; 
Mooney et al., 2009a; Mooney et al., 2009b). However, any threshold 
shifts experienced would be expected to be relatively small because of 
the unlikelihood that animals will remain within the ensonified area 
(due to the short duration of the majority of exercises, the speed of 
the vessels, and the short distance within which the animal would need 
to approach the sound source) at high levels for the duration necessary 
to induce larger threshold shifts. Threshold shifts do not necessarily 
affect all hearing frequencies equally, so some threshold shifts may 
not interfere with an animal's hearing of biologically relevant sounds. 
Furthermore, the implementation of mitigation and the sightability of 
mysticetes (due to their large size) reduces the potential for a 
significant behavioral reaction or a threshold shift to occur.
    Overall, the number of predicted behavioral reactions is low and 
occasional behavioral reactions are unlikely to cause long-term 
consequences for individual animals or populations. This assessment of 
long-term consequences is based in part on findings from ocean areas 
where the Navy has been intensively training and testing with sonar and 
other active acoustic sources for decades. While there are many factors 
such as the end of large-scale commercial whaling complicating any 
analysis, there is no data suggesting any long-term consequences to 
mysticetes from exposure to sonar and other active acoustic sources. On 
the contrary, there are findings suggesting mysticete populations are 
increasing in the two primary locations (Southern California and 
Hawaii) where the Navy's most intensively used range complexes are 
located. These findings include: (1) Calambokidis et al. (2009b) 
indicating a significant upward trend in abundance of blue whales in 
Southern California; (2) the recovery of gray whales that migrate 
through the Navy's SOCAL Range Complex twice a year; (3) work by Moore 
and Barlow (2011) indicating evidence of increasing fin whale abundance 
in the California Current

[[Page 19593]]

area, which includes the SOCAL Range Complex; (4) the range expansion 
and increasing presence of Bryde's whales south of Point Conception in 
Southern California (Kerosky et al., 2012); and (5) the ocean area 
contained within the Hawaii Range Complex continuing to function as a 
critical breeding, calving, and nursing area to the point at which the 
overall humpback whale population in the North Pacific is now greater 
than some prior estimates of pre-whaling abundance (Barlow et al., 
2011).
    As discussed in the ``Consideration of Time/Area Limitations'' 
section of this rule, a biologically important feeding area has been 
identified for North Pacific right whale (feeding area) within a small 
portion of the GOA TMAA (Ferguson et al., 2015). The Navy and NMFS 
anticipate that proposed training activities likely would have temporal 
overlap but limited spatial overlap with this BIA. Given the limited 
spatial overlap, it is unlikely that Navy training would have any 
biologically meaningful effect on North Pacific right whale feeding 
behavior in these areas. However, given their small population size, 
the rarity of their detections and general lack of sightings within the 
GOA TMAA, and the extremely limited current information about this 
species, NMFS is requiring a North Pacific right whale ``Cautionary 
Area'' between June and September in the overlapping 2,051 km\2\ 
portion of the North Pacific right whale feeding area, in which no 
hull-mounted sonar or explosives would be used within the portion of 
the feeding area that overlaps the Navy's GOA TMAA during those months. 
In the event of national security needs, the Navy would be required to 
seek approval in advance from the Commander, U.S. Third Fleet prior to 
conducting training activities using sonar or explosives. NMFS believes 
that implementation of this North Pacific right whale Cautionary Area 
within the GOA TMAA may provide additional protection of this species 
and stock beyond the mitigation measures already proposed by the Navy, 
potentially lessening the anticipated impacts even further.
    In summary, the GOA TMAA activities are not expected to adversely 
impact annual rates of recruitment or survival of mysticete whales.
    Sperm Whales--The Navy's acoustic analysis indicates that 98 
instances of Level B harassment of sperm whales (North Pacific stock) 
may occur in the Study Area each year from sonar or other active 
acoustic stressors during training activities. Sperm whales are listed 
as endangered under the ESA and depleted under the MMPA. There are 
currently no reliable abundance estimates for this stock (Muto and 
Angliss, 2016). Although they believed it to be positively biased, the 
last estimate (Kato and Miyashita (1998)) was 102,112 sperms whales in 
the western North Pacific; the number in Alaska waters is unknown. 
These Level B harassment takes are anticipated to be in the form of TTS 
and behavioral reactions and no injurious takes of sperm whales from 
sonar and other active acoustic stressors or explosives were requested 
or authorized. Sperm whales have shown resilience to acoustic and human 
disturbance, although they may react to sound sources and activities 
within a few kilometers. Sperm whales that are exposed to activities 
that involve the use of sonar and other active acoustic sources may 
alert, ignore the stimulus, avoid the area by swimming away or diving, 
or display aggressive behavior (Richardson, 1995; Nowacek, 2007; 
Southall et al., 2007; Finneran and Jenkins, 2012). Some (but not all) 
sperm whale vocalizations might overlap with the MFAS/HFAS TTS 
frequency range, which could temporarily decrease an animal's 
sensitivity to the calls of conspecifics or returning echolocation 
signals. However, as noted previously, NMFS does not anticipate TTS of 
a long duration or severe degree to occur as a result of exposure to 
MFAS/HFAS. Recovery from a threshold shift (TTS) can take a few minutes 
to a few days, depending on the exposure duration, sound exposure 
level, and the magnitude of the initial shift, with larger threshold 
shifts and longer exposure durations requiring longer recovery times 
(Finneran et al., 2005; Mooney et al., 2009a; Mooney et al., 2009b; 
Finneran and Schlundt, 2010). Here, any threshold shifts experienced 
would be expected to be relatively small because of the unlikelihood 
that animals will remain within the ensonified area (due to the short 
duration of the majority of exercises, the speed of the vessels, and 
the short distance within which the animal would need to approach the 
sound source) at high levels for the duration necessary to induce 
larger threshold shifts. Threshold shifts do not necessarily affect all 
hearing frequencies equally, so some threshold shifts may not interfere 
with an animal's hearing of biologically relevant sounds. No sperm 
whales are predicted to be exposed to MFAS/HFAS sound levels associated 
with PTS or injury.
    The majority of Level B harassment takes are expected to be in the 
form of mild responses (low-level exposures) and of a generally short 
duration. Relative to the last known population size, the number of 
anticipated Level B harassment takes is very limited. Because the 
estimates given above represent the total number of exposures and not 
necessarily the number of individuals exposed, it is more likely that 
fewer individuals would be taken, but a subset would be taken more than 
one time per year. In the ocean, the use of sonar and other active 
acoustic sources is transient and is unlikely to repeatedly expose the 
same population of animals over a short period. Overall, the number and 
nature of predicted behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations. The GOA 
activities are not expected to occur in an area/time of specific 
importance for reproductive, feeding, or other known critical behaviors 
for sperm whales, and there is no designated critical habitat in the 
Study Area. Consequently, the activities are not expected to adversely 
impact annual rates of recruitment or survival of sperm whales.
    Dolphins and Small Whales--The Navy's acoustic analysis predicts 
the following instances of Level B harassment of delphinids (dolphins 
and small whales) each year from sonar, other active acoustic sources, 
and explosives associated with training activities in the Study Area: 
389 killer whales (Alaska Resident; Eastern North Pacific Offshore; AT1 
Transient; and GOA, Aleutian Island, and Bearing Sea Transient stocks) 
and 981 Pacific white-sided dolphins (North Pacific stock). These 
represent a limited number of takes relative to population estimates 
for delphinid stocks in the Study Area. When the numbers of behavioral 
takes are compared to the estimated stock abundance and if one assumes 
that each take happens to a separate animal, less than 15 percent of 
each of the killer whale stocks and less than 5 percent of the North 
Pacific stock of Pacific white-sided dolphin would be behaviorally 
harassed during the course of a year. More likely, slightly fewer 
individuals would be harassed, but a subset would be harassed more than 
one time during the course of the year.
    All of these takes are anticipated to be in the form of Level B 
harassment (TTS and behavioral reaction) and no injurious takes of 
delphinids from sonar and other active acoustic stressors or explosives 
are requested or proposed for authorization. Further, the majority of 
takes are anticipated to be by Level B harassment in the form of mild 
responses. Research and observations show that if delphinids are 
exposed to

[[Page 19594]]

sonar or other active acoustic sources they may react in a number of 
ways depending on their experience with the sound source and what 
activity they are engaged in at the time of the acoustic exposure. 
Delphinids may not react at all until the sound source is approaching 
within a few hundred meters to within a few kilometers depending on the 
environmental conditions and species. Delphinids that are exposed to 
activities that involve the use of sonar and other active acoustic 
sources may alert, ignore the stimulus, change their behaviors or 
vocalizations, avoid the sound source by swimming away or diving, or be 
attracted to the sound source (Richardson, 1995; Nowacek, 2007; 
Southall et al., 2007; Finneran and Jenkins, 2012).
    Research has demonstrated that Alaska Resident killer whales may 
routinely move over long large distances (Andrews and Matkin, 2014; 
Fearnbach et al., 2013). In a similar documented long-distance 
movement, an Eastern North Pacific Offshore stock killer whale tagged 
off San Clemente Island, California, moved (over a period of 147 days) 
to waters off northern Mexico, then north to Cook Inlet, Alaska, and 
finally (when the tag ceased transmitting) to coastal waters off 
Southeast Alaska (Falcone and Schorr, 2014). Given these findings, 
temporary displacement due to avoidance of training activities is 
therefore unlikely to have biological significance to individual 
animals.
    Delphinid species generally travel in large pods and should be 
visible from a distance, allowing for a high level of mitigation 
effectiveness, which has been considered quantitatively in the 
calculation of Level A harassment take, but is also expected to 
potentially reduce the occurrences of more severe behavioral impacts 
resulting from higher level exposures. Many of the recorded delphinid 
vocalizations overlap with the MFAS/HFAS TTS frequency range (2-20 
kHz); however, as noted above, NMFS does not anticipate TTS of a 
serious degree or extended duration to occur as a result of exposure to 
MFAS/HFAS. Recovery from a threshold shift (TTS) can take a few minutes 
to a few days, depending on the exposure duration, sound exposure 
level, and the magnitude of the initial shift, with larger threshold 
shifts and longer exposure durations requiring longer recovery times 
(Finneran et al., 2005; Finneran and Schlundt, 2010; Mooney et al., 
2009a; Mooney et al., 2009b). Here, any threshold shifts experienced 
would be expected to be relatively small because of the unlikelihood 
that animals will remain within the ensonified area (due to the short 
duration of the majority of exercises, the speed of the vessels, and 
the short distance within which the animal would need to approach the 
sound source) at high levels for the duration necessary to induce 
larger threshold shifts. Threshold shifts do not necessarily affect all 
hearing frequencies equally, so some threshold shifts may not interfere 
with an animal's hearing of biologically relevant sounds.
    The predicted effects to delphinids are unlikely to cause long-term 
consequences for individual animals or populations. The GOA TMAA 
activities are not expected to occur in an area/time of specific 
importance for reproductive, feeding, or other known critical behaviors 
for delphinids. Stocks of delphinid species found in the Study Area are 
not depleted under the MMPA, nor are they listed under the ESA. 
Consequently, the activities are not expected to adversely impact rates 
of recruitment or survival of delphinid species.
    Porpoises--The Navy's acoustic analysis predicts that 8,270 
instances of Level B harassment (TTS and behavioral reactions) of 
Dall's porpoise (Alaska stock) and 3,705 instances of Level B 
harassment of harbor porpoise (GOA and Southeast Alaska stocks) may 
occur each year from sonar and other active acoustic sources and 
explosives associated with training activities in the Study Area. 
Acoustic analysis also predicted that 4 Dall's porpoises might be 
exposed to sound levels from sonar and other active acoustic stressors 
and explosives likely to result in PTS or injury (Level A harassment). 
These represent a limited number of takes relative to population 
estimates for porpoise stocks in the Study Area (Table 6 of the 
proposed rule (81 FR 9957)). When the numbers of takes for Dall's and 
harbor porpoise are compared to their respective estimated stock 
abundances and if one assumes that each take happens to a separate 
animal, less than 10 percent of the Alaska stock of Dall's porpoise, 
and less than 10 percent of the GOA and Southeast Alaska stocks of 
harbor porpoise would be harassed (behaviorally) during the course of a 
year. Because the estimates given above represent the total number of 
exposures and not necessarily the number of individuals exposed, it is 
more likely that fewer individuals would be taken, but a subset would 
be taken more than one time per year.
    Behavioral responses can range from a mild orienting response, or a 
shifting of attention, to flight and panic (Richardson, 1995; Nowacek, 
2007; Southall et al., 2007). The number of Dall's and harbor porpoise 
behaviorally harassed by exposure to MFAS/HFAS in the Study Area is 
generally higher than the other species. For Dall's porpoise, this is 
due to their high density in the area. For harbor porpoises, this is 
due to the low Level B harassment threshold (we assume for the purpose 
of estimating take that all harbor porpoises exposed to 120 dB or 
higher MFAS/HFAS will be taken by Level B harassment), which 
essentially makes the ensonified area of effects significantly larger 
than for the other species. However, the fact that the threshold is a 
step function and not a curve (and assuming uniform density) means that 
the vast majority of the takes occur in the very lowest levels that 
exceed the threshold (it is estimated that approximately 80 percent of 
the takes are from exposures to 120 dB-126 dB), which means that 
anticipated behavioral effects are not expected to be severe (e.g., 
temporary avoidance). As mentioned above, an animal's exposure to a 
higher received level is more likely to result in a behavioral response 
that is more likely to adversely affect the health of an animal. 
Animals that do not exhibit a significant behavioral reaction would 
likely recover from any incurred costs, which reduces the likelihood of 
long-term consequences, such as reduced fitness, for the individual or 
population.
    Animals that experience hearing loss (TTS or PTS) may have reduced 
ability to detect relevant sounds such as predators, prey, or social 
vocalizations. Some porpoise vocalizations might overlap with the MFAS/
HFAS TTS frequency range (2-20 kHz). Recovery from a threshold shift 
(TTS; partial hearing loss) can take a few minutes to a few days, 
depending on the exposure duration, sound exposure level, and the 
magnitude of the initial shift, with larger threshold shifts and longer 
exposure durations requiring longer recovery times (Finneran et al., 
2005; Mooney et al., 2009a; Mooney et al., 2009b; Finneran and 
Schlundt, 2010). More severe shifts may not fully recover and thus 
would be considered PTS. However, here, any threshold shifts 
experienced would be expected to be relatively small because of the 
unlikelihood that animals will remain within the ensonified area (due 
to the short duration of the majority of exercises, the speed of the 
vessels, and the short distance within which the animal would need to 
approach the sound source) at high levels for the duration necessary to 
induce larger threshold shifts. Threshold shifts do not necessarily 
affect all hearing frequencies

[[Page 19595]]

equally, so some threshold shifts may not interfere with an animal 
hearing biologically relevant sounds. The likely consequences to the 
health of an individual that incurs PTS can range from mild to more 
serious, depending upon the degree of PTS and the frequency band it is 
in, and many animals are able to compensate for the shift, although it 
may include energetic costs. Furthermore, likely avoidance of intense 
activity and sound coupled with mitigation measures would further 
reduce the potential for severe PTS exposures to occur. If a marine 
mammal is able to approach a surface vessel within the distance 
necessary to incur PTS, the likely speed of the vessel (nominal 10-15 
knots) would make it very difficult for the animal to remain in range 
long enough to accumulate enough energy to result in more than a mild 
case of PTS.
    Harbor porpoises have been observed to be especially sensitive to 
human activity (Tyack et al., 2011; Pirotta et al., 2012). The 
information currently available regarding harbor porpoises suggests a 
very low threshold level of response for both captive (Kastelein et 
al., 2000; Kastelein et al., 2005) and wild (Johnston, 2002) animals. 
Southall et al. (2007) concluded that harbor porpoises are likely 
sensitive to a wide range of anthropogenic sounds at low received 
levels (approximately 90 to 120 dB). Research and observations of 
harbor porpoises for other locations show that this small species is 
wary of human activity and will display profound avoidance behavior for 
anthropogenic sound sources in many situations at levels down to 120 dB 
re 1 [micro]Pa (Southall, 2007). Harbor porpoises routinely avoid and 
swim away from large motorized vessels (Barlow et al., 1988; Evans et 
al., 1994; Palka and Hammond, 2001; Polacheck and Thorpe, 1990). The 
vaquita, which is closely related to the harbor porpoise in the Study 
Area, appears to avoid large vessels at about 2,995 ft (913 m) 
(Jaramillo-Legorreta et al., 1999). The assumption is that the harbor 
porpoise would respond similarly to large Navy vessels, possibly prior 
to commencement of sonar or explosive activity (i.e., pre-activity 
avoidance). Harbor porpoises may startle and temporarily leave the 
immediate area of the training until after the event ends.
    ASW training exercises using MFAS/HFAS generally last for 2-16 
hours, and may have intervals of non-activity in between. In addition, 
the Navy does not typically conduct ASW exercises in the same 
locations. Given the average length of ASW exercises (times of 
continuous sonar use) and typical vessel speed, combined with the fact 
that the majority of porpoises in the Study Area would not likely 
remain in an area for successive days, it is unlikely that an animal 
would be exposed to MFAS/HFAS at levels likely to result in a 
substantive response (e.g., interruption of feeding) that would then be 
carried on for more than one day or on successive days. Thompson et al. 
(2013) showed that seismic surveys conducted over a 10-day period in 
the North Sea did not result in the broad-scale displacement of harbor 
porpoises away from preferred habitat. The harbor porpoises were 
observed to leave the area at the onset of survey, but returned within 
a few hours, and the overall response of the porpoises decreased over 
the 10-day period.
    Considering the information above, the predicted effects to Dall's 
and harbor porpoise are unlikely to cause significant long-term 
consequences for individual animals or the population (the 4 potential 
takes by PTS for Dall's porpoise are anticipated to be of a small 
degree in a narrow frequency band that that would not have significant 
impacts on individual fitness). The Navy's training activities in the 
GOA TMAA are not expected to occur in an area/time of specific 
importance for reproductive, feeding, or other known critical behaviors 
for Dall's and harbor porpoise. Stocks of Dall's and harbor porpoise 
are not listed as depleted under the MMPA. Consequently, the activities 
are not expected to adversely impact annual rates of recruitment or 
survival of porpoises.
    Beaked Whales--Acoustic analysis predicts that 200 Baird's beaked 
whales (Alaska stock), 1,271 Cuvier's beaked whales (Alaska stock), and 
576 Stejneger's beaked whales (Alaska stock) will be taken annually by 
Level B harassment from exposure to sonar and other active acoustic 
stressors. These takes are anticipated to be in the form of Level B 
harassment (mainly all behavioral reaction and only 2 TTS (Cuvier's 
beaked whale)) and no injurious takes of beaked whales from sonar and 
other active acoustic stressors or explosives are requested or 
authorized. Because the estimates given above represent the total 
number of exposures and not necessarily the number of individuals 
exposed, it is more likely that fewer individuals would be taken, but a 
subset would be taken more than one time per year. There are currently 
no reliable abundance estimates for Alaska stocks of Baird's, Cuvier's, 
and Stejner's beaked whales (Muto and Angliss, 2016). However, the 
ranges of all three stocks are very large compared to the TMAA 
(Cuvier's is the smallest, occupying all of the GOA and south of the 
Canadian border and west past the southern edge of the Kenai peninsula, 
while Baird's and Stejner's range even farther south and also cross 
north over the Kenai peninsula), which means that the impacts 
anticipated within a miniscule portion of the stocks' ranges and 
accrued over no more than 21 days would be expected to be relatively 
small compared to the population.
    As is the case with harbor porpoises, beaked whales have been shown 
to be particularly sensitive to sound and therefore have been assigned 
a lower harassment threshold based on observations of wild animals by 
McCarthy et al. (2011) and Tyack et al. (2011). The fact that the Level 
B harassment threshold is a step function (the Navy has adopted an 
unweighted 140 dB re 1 [micro]Pa SPL threshold for significant 
behavioral effects for all beaked whales) and not a curve (and assuming 
uniform density) means that the vast majority of the takes expected to 
occur in the very lowest levels that exceed the threshold (it is 
estimated that approximately 80 percent of the takes are from exposures 
to 140 dB to 146 dB), which means that the anticipated effects for the 
majority of exposures are not expected to be severe (as mentioned 
above, an animal's exposure to a higher received level is more likely 
to result in a behavioral response that is more likely to adversely 
affect the health of an animal). Further, Moretti et al. (2014) 
recently derived an empirical risk function for Blainville's beaked 
whale that predicts there is a 0.5 probability of disturbance at a 
received level of 150 dB (confidence interval: 144-155), suggesting 
that in some cases the current Navy step function may over-estimate the 
effects of an activity using sonar on beaked whales. Irrespective of 
the Moretti et al. (2014) risk function, NMFS' analysis assumes that 
all of the beaked whale Level B harassment takes that were proposed for 
authorization will occur, and we base our negligible impact 
determination, in part, on the fact that these exposures would mainly 
occur at the very lowest end of the 140-dB Level B harassment threshold 
where behavioral effects are expected to be much less severe and 
generally temporary in nature.
    Behavioral responses can range from a mild orienting response, or a 
shifting of attention, to flight and panic (Richardson, 1995; Nowacek, 
2007; Southall et al., 2007; Finneran and Jenkins, 2012). Research has 
also shown that beaked whales are especially sensitive to the presence 
of human activity (Tyack et al., 2011; Pirotta et al.,

[[Page 19596]]

2012). Beaked whales have been documented to exhibit avoidance of human 
activity or respond to vessel presence (Pirotta et al., 2012). Beaked 
whales were observed to react negatively to survey vessels or low 
altitude aircraft by quick diving and other avoidance maneuvers, and 
none were observed to approach vessels (Wursig et al., 1998). Some 
beaked whale vocalizations may overlap with the MFAS/HFAS TTS frequency 
range (2-20 kHz); however, as noted above, NMFS does not anticipate TTS 
of a serious degree or extended duration to occur as a result of 
exposure to MFA/HFAS. Recovery from a threshold shift (TTS) can take a 
few minutes to a few days, depending on the exposure duration, sound 
exposure level, and the magnitude of the initial shift, with larger 
threshold shifts and longer exposure durations requiring longer 
recovery times (Finneran et al., 2005; Mooney et al., 2009a; Mooney et 
al., 2009b; Finneran and Schlundt, 2010). Here, any threshold shifts 
experienced would be expected to be relatively small because of the 
unlikelihood that animals will remain within the ensonified area (due 
to the short duration of the majority of exercises, the speed of the 
vessels, and the short distance within which the animal would need to 
approach the sound source) at high levels for the duration necessary to 
induce larger threshold shifts. Threshold shifts do not necessarily 
affect all hearing frequencies equally, so some threshold shifts may 
not interfere with an animal's hearing of biologically relevant sounds.
    It has been speculated for some time that beaked whales might have 
unusual sensitivities to sonar sound due to their likelihood of 
stranding in conjunction with MFAS use. Research and observations show 
that if beaked whales are exposed to sonar or other active acoustic 
sources they may startle, break off feeding dives, and avoid the area 
of the sound source to levels of 157 dB re 1 [micro]Pa, or below 
(McCarthy et al., 2011). Acoustic monitoring during actual sonar 
exercises revealed some beaked whales continuing to forage at levels up 
to 157 dB re 1 [micro]Pa (Tyack et al., 2011). Stimpert et al. (2014) 
tagged a Baird's beaked whale, which was subsequently exposed to 
simulated MFAS. Changes in the animal's dive behavior and locomotion 
were observed when received level reached 127 dB re 1[mu]Pa. However, 
Manzano-Roth et al. (2013) found that for beaked whale dives that 
continued to occur during MFAS activity, differences from normal dive 
profiles and click rates were not detected with estimated received 
levels up to 137 dB re 1 [micro]Pa while the animals were at depth 
during their dives. And in research done at the Navy's fixed tracking 
range in the Bahamas, animals were observed to leave the immediate area 
of the anti-submarine warfare training exercise (avoiding the sonar 
acoustic footprint at a distance where the received level was ``around 
140 dB'' SPL, according to Tyack et al. (2011)) but return within a few 
days after the event ended (Claridge and Durban, 2009; Moretti et al., 
2009, 2010; Tyack et al., 2010, 2011; McCarthy et al., 2011). Tyack et 
al. (2011) report that, in reaction to sonar playbacks, most beaked 
whales stopped echolocating, made long slow ascent to the surface, and 
moved away from the sound. A similar behavioral response study 
conducted in Southern California waters during the 2010-2011 field 
season found that Cuvier's beaked whales exposed to MFAS displayed 
behavior ranging from initial orientation changes to avoidance 
responses characterized by energetic fluking and swimming away from the 
source (DeRuiter et al., 2013b). However, the authors did not detect 
similar responses to incidental exposure to distant naval sonar 
exercises at comparable received levels, indicating that context of the 
exposures (e.g., source proximity, controlled source ramp-up) may have 
been a significant factor. The study itself found the results 
inconclusive and meriting further investigation. Cuvier's beaked whale 
responses suggested particular sensitivity to sound exposure as 
consistent with results for Blainville's beaked whale.
    Populations of beaked whales and other odontocetes on the Bahamas 
and other Navy fixed ranges that have been operating for decades, 
appear to be stable. Behavioral reactions (avoidance of the area of 
Navy activity) seem likely in most cases if beaked whales are exposed 
to anti-submarine sonar within a few tens of kilometers, especially for 
prolonged periods (a few hours or more) since this is one of the most 
sensitive marine mammal groups to anthropogenic sound of any species or 
group studied to date and research indicates beaked whales will leave 
an area where anthropogenic sound is present (Tyack et al., 2011; De 
Ruiter et al., 2013; Manzano-Roth et al., 2013; Moretti et al., 2014). 
Research involving tagged Cuvier's beaked whales in the SOCAL Range 
Complex reported on by Falcone and Schorr (2012, 2014) indicates year-
round prolonged use of the Navy's training and testing area by these 
beaked whales and has documented movements in excess of hundreds of 
kilometers by some of those animals. Given that some of these animals 
may routinely move hundreds of kilometers as part of their normal 
pattern, leaving an area where sonar or other anthropogenic sound is 
present may have little, if any, cost to such an animal. Photo 
identification studies in the SOCAL Range Complex, a Navy range that is 
utilized for training and testing more frequently than the GOA TMAA 
Study Area, have identified approximately 100 individual Cuvier's 
beaked whale individuals with 40 percent having been seen in one or 
more prior years, with re-sightings up to 7 years apart (Falcone and 
Schorr, 2014). These results indicate long-term residency by 
individuals in an intensively used Navy training and testing area, 
which may also suggest a lack of long-term consequences as a result of 
exposure to Navy training and testing activities.
    Based on the findings above, it is clear that the Navy's long-term 
ongoing use of sonar and other active acoustic sources has not 
precluded beaked whales from also continuing to inhabit those areas. In 
summary, based on the best available science, the Navy and NMFS believe 
that any TTS or behavioral responses of beaked whales due to sonar and 
other active acoustic training activities would generally not have 
long-term consequences for individuals or populations. NMFS notes that 
Claridge (2013) speculated that sonar use in a Bahamas range could have 
``a possible population-level effect'' on beaked whales based on lower 
abundance in comparison to control sites. In summary, Claridge 
suggested that lower reproductive rates observed at the Navy's Atlantic 
Undersea Test and Evaluation Center (AUTEC), when compared to a control 
site, were due to stressors associated with frequent and repeated use 
of Navy sonar. However, it is important to note that there were some 
relevant shortcomings of this study. For example, all of the re-sighted 
whales during the 5-year study at both sites were female, which 
Claridge acknowledged can lead to a negative bias in the abundance 
estimation. There was also a reduced effort and shorter overall study 
period at the AUTEC site that failed to capture some of the emigration/
immigration trends identified at the control site. Furthermore, 
Claridge assumed that the two sites were identical and therefore should 
have equal potential abundances, when in reality, there were notable 
physical differences. The author also acknowledged that ``information

[[Page 19597]]

currently available cannot provide a quantitative answer to whether 
frequent sonar use at (the Bahamas range) is causing stress to resident 
beaked whales,'' and cautioned that the outcome of ongoing studies ``is 
a critical component to understanding if there are population-level 
effects.'' It is also worth noting that the frequency and intensity of 
sonar activity at the Bahamas range is greater than in the GOA TMAA, 
and the bathymetry and other physical characteristics of the training 
area are different.
    Moore and Barlow (2013) have noted a decline in beaked whale 
populations in a broad area of the Pacific Ocean area out to 300 nm 
from the coast and extending from the Canadian-U.S. border to the tip 
of Baja Mexico. There are scientific caveats and limitations to the 
data used for that analysis, as well as oceanographic and species 
assemblage changes on the U.S. Pacific coast not thoroughly addressed. 
Although Moore and Barlow (2013) have noted a decline in the overall 
beaked whale population along the Pacific coast, in the small fraction 
of that area where the Navy has been training and testing with sonar 
and other systems for decades (the Navy's SOCAL Range Complex), higher 
densities and long-term residency by individual Cuvier's beaked whales 
suggest that the decline noted elsewhere is not apparent where Navy 
sonar use is most intense. Navy sonar training and testing is not 
conducted along a large part of the U.S. west coast from which Moore 
and Barlow (2013) drew their survey data. In Southern California, based 
on a series of surveys from 2006 to 2008 and a high number encounter 
rate, Falcone et al. (2009) suggested the ocean basin west of San 
Clemente Island may be an important region for Cuvier's beaked whales 
given the number of animals encountered there. Follow-up research 
(Falcone and Schorr, 2012, 2014) in this same location suggests that 
Cuvier's beaked whales may have population sub-units with higher than 
expected residency, particularly in the Navy's instrumented Southern 
California Anti-Submarine Warfare Range. Encounters with multiple 
groups of Cuvier's and Baird's beaked whales indicated not only that 
they were prevalent on the range where Navy routinely trains and tests, 
but also that they were potentially present in much higher densities 
than had been reported for anywhere along the U.S. west coast (Falcone 
et al., 2009, Falcone and Schorr, 2012). This finding is also 
consistent with concurrent results from passive acoustic monitoring 
that estimated regional Cuvier's beaked whale densities were higher 
where Navy trains in the SOCAL training and testing area than indicated 
by NMFS' broad scale visual surveys for the U.S. west coast (Hildebrand 
and McDonald, 2009).
    NMFS also considered New et al. (2013) and their mathematical model 
simulating a functional link between foraging energetics and 
requirements for survival and reproduction for 21 species of beaked 
whales. However, NMFS concluded that the New et al. (2013) model lacks 
critical data and accurate inputs necessary to form valid conclusions 
specifically about impacts of anthropogenic sound from Navy activities 
on beaked whale populations. The study itself notes the need for 
``future research,'' identifies ``key data needs'' relating to input 
parameters that ``particularly affected'' the model results, and states 
only that the use of the model ``in combination with more detailed 
research'' could help predict the effects of management actions on 
beaked whale species. In short, information is not currently available 
to specifically support the use of this model in a project-specific 
evaluation of the effects of Navy activities on the impacted beaked 
whale species in GOA.
    No beaked whales are predicted in the acoustic analysis to be 
exposed to sound levels associated with PTS, other injury, or 
mortality. After years of the Navy conducting similar activities in the 
GOA Study Area without incident, NMFS does not expect strandings, 
injury, or mortality of beaked whales to occur as a result of training 
activities. Stranding events coincident with Navy MFAS use in which 
exposure to sonar is believed to have been a contributing factor were 
detailed in the ``Stranding and Mortality'' section of the proposed 
rule (81 FR 9950, 9970-76; February 26, 2016). However, for some of 
these stranding events, a causal relationship between sonar exposure 
and the stranding could not be clearly established (Cox et al., 2006). 
In other instances, sonar was considered only one of several factors 
that, in their aggregate, may have contributed to the stranding event 
(Freitas, 2004; Cox et al., 2006). Because of the association between 
tactical MFAS use and a small number of marine mammal strandings, the 
Navy and NMFS have been considering and addressing the potential for 
strandings in association with Navy activities for years. In addition 
to effective mitigation measures intended to more broadly minimize 
impacts to marine mammals, the reporting requirements set forth in this 
rule ensure that NMFS is notified immediately (or as soon as clearance 
procedures allow) if a stranded marine mammal is found during or 
shortly after, and in the vicinity of, any Navy training exercise 
utilizing MFAS, HFAS, or underwater explosive detonations (see General 
Notification of Injured or Dead Marine Mammals and the Stranding 
Response Plan in the regulatory text below). Additionally, through the 
MMPA process (which allows for adaptive management), NMFS and the Navy 
will determine the appropriate way to proceed in the event that a 
causal relationship were to be found between Navy activities and a 
future stranding.
    The GOA training activities are not expected to occur in an area/
time of specific importance for reproductive, feeding, or other known 
critical behaviors for beaked whales. None of the Pacific stocks for 
beaked whale species found in the Study Area are depleted under the 
MMPA. The degree of predicted Level B harassment is expected to be 
mild, and no beaked whales are predicted in the acoustic analysis to be 
exposed to sound levels associated with PTS, other injury, or 
mortality. Consequently, the activities are not expected to adversely 
impact annual rates of recruitment or survival of beaked whales.
    Pinnipeds--The Navy's acoustic analysis predicts that the following 
numbers of Level B harassment (TTS and behavioral reaction) may occur 
annually from sonar and other active acoustic stressors associated with 
training activities: 621 Steller sea lions (Eastern U.S. and Western 
U.S. stocks); 5 California sea lions (U.S. stock); 713 northern fur 
seals (Eastern Pacific stock); 122 northern elephant seals (California 
Breeding stock); and 2 harbor seals (South Kodiak, and Prince William 
Sound stocks). These represent a limited number of takes relative to 
population estimates for pinniped stocks in the Study Area. When the 
numbers of behavioral takes are compared to the estimated stock 
abundances, less than 1 percent of each of these stocks would be 
behaviorally harassed during the course of a year. These estimates 
represent the total number of exposures and not necessarily the number 
of individuals exposed, as a single individual may be exposed multiple 
times over the course of a year. Based on the distribution information 
presented in the LOA application, it is highly unlikely that ribbon 
seals would be encountered in the Study Area during events involving 
use of sonar and other active acoustic sources or explosives. The 
acoustic analysis did not predict any takes of ribbon seals and NMFS is 
not authorizing any takes of this species.

[[Page 19598]]

    Research has demonstrated that for pinnipeds, as for other mammals, 
recovery from a threshold shift (TTS) can take a few minutes to a few 
days, depending on the exposure duration, sound exposure level, and the 
magnitude of the initial shift, with larger threshold shifts and longer 
exposure durations requiring longer recovery times (Finneran et al., 
2005; Finneran and Schlundt, 2010; Mooney et al., 2009a; Mooney et al., 
2009b). However, here, any threshold shifts experienced would be 
expected to be relatively small because of the unlikelihood that 
animals will remain within the ensonified area (due to the short 
duration of the majority of exercises, the speed of the vessels, and 
the short distance within which the animal would need to approach the 
sound source) at high levels for the duration necessary to induce 
larger threshold shifts. Threshold shifts do not necessarily affect all 
hearing frequencies equally, so threshold shifts may not necessarily 
interfere with an animal's ability to hear biologically relevant 
sounds.
    Research and observations show that pinnipeds in the water may be 
tolerant of anthropogenic noise and activity (a review of behavioral 
reactions by pinnipeds to impulsive and non-impulsive noise can be 
found in Richardson et al., 1995 and Southall et al., 2007). Available 
data, though limited, suggest that exposures between approximately 90 
and 140 dB SPL do not appear to induce strong behavioral responses in 
pinnipeds exposed to nonpulse sounds in water (Jacobs and Terhune, 
2002; Costa et al., 2003; Kastelein et al., 2006c). Based on the 
limited data on pinnipeds in the water exposed to multiple pulses 
(small explosives, impact pile driving, and seismic sources), exposures 
in the approximately 150 to 180 dB SPL range generally have limited 
potential to induce avoidance behavior in pinnipeds (Harris et al., 
2001; Blackwell et al., 2004; Miller et al., 2004). Zero percent of the 
takes estimated incidental to the Navy's training activities in the GOA 
TMAA are expected to result from exposures above 180 dB.
    If pinnipeds are exposed to sonar or other active acoustic sources 
they may react in a number of ways depending on their experience with 
the sound source and what activity they are engaged in at the time of 
the acoustic exposure. Pinnipeds may not react at all until the sound 
source is approaching within a few hundred meters and then may alert, 
ignore the stimulus, change their behaviors, or avoid the immediate 
area by swimming away or diving. Houser et al. (2013) performed a 
controlled exposure study involving California sea lions exposed to a 
simulated MFAS signal. The purpose of this Navy-sponsored study was to 
determine the probability and magnitude of behavioral responses by 
California sea lions exposed to differing intensities of simulated MFAS 
signals. Behavioral reactions included increased respiration rates, 
prolonged submergence, and refusal to participate, among others. 
Younger animals were more likely to respond than older animals, while 
some sea lions did not respond consistently at any level. Houser et 
al.'s findings are consistent with current scientific studies and 
criteria development concerning marine mammal reactions to MFAS. 
Effects on pinnipeds in the Study Area that are taken by Level B 
harassment, on the basis of reports in the literature as well as Navy 
monitoring from past activities, will likely be limited to reactions 
such as increased swimming speeds, increased surfacing time, or 
decreased foraging (if such activity were occurring). Most likely, 
individuals will simply move away from the sound source and be 
temporarily displaced from those areas, or not respond at all.
    Although less of an issue here because of the short duration of the 
activity, it is still worth noting that in areas of repeated and 
frequent acoustic disturbance, some pinnipeds may habituate or learn to 
tolerate the new baseline or fluctuations in noise level. Habituation 
can occur when an animal's response to a stimulus wanes with repeated 
exposure, usually in the absence of unpleasant associated events 
(Wartzok et al., 2003). While some animals may not return to an area, 
or may begin using an area differently due to training and testing 
activities, most animals are expected to return to their usual 
locations and behavior. Given their documented tolerance of 
anthropogenic sound (Richardson et al., 1995 and Southall et al., 
2007), repeated exposures of individuals (e.g., harbor seals) to levels 
of sound that may cause Level B harassment are unlikely to result in 
hearing impairment or to significantly disrupt foraging behavior. As 
stated above, pinnipeds may habituate to or become tolerant of repeated 
exposures over time, learning to ignore a stimulus that in the past has 
not accompanied any overt threat.
    Thus, even repeated Level B harassment of some small subset of an 
overall stock is unlikely to result in any significant realized 
decrease in fitness to those individuals, and would not result in any 
adverse impact to the stock as a whole. Evidence from areas where the 
Navy extensively trains and tests provides some indication of the 
possible consequences resulting from those proposed activities. In the 
confined waters of Washington State's Hood Canal where the Navy has 
been training and intensively testing for decades and harbor seals are 
present year-round, the population level has remained stable suggesting 
the area's carrying capacity likely has been reached (Jeffries et al., 
2003; Gaydos et al., 2013). Within Puget Sound there are several 
locations where pinnipeds use Navy structures (e.g., submarines, 
security barriers) for haulouts. Given that animals continue to choose 
these areas for their resting behavior, it would appear there are no 
long-term effects or consequences to those animals as a result of 
ongoing and routine Navy activities.
    Generally speaking, most pinniped stocks in the Study Area are 
thought to be stable or increasing (Carretta et al., 2014, 2015). No 
areas of specific importance for reproduction or feeding for pinnipeds 
have been identified in the Study Area. Western U.S. stocks of Steller 
sea lions are listed as endangered under the ESA; however, there is no 
designated critical habitat for Steller sea lions in the Study Area. As 
a conservative measure, the GOA TMAA boundary zone was specifically 
drawn to exclude any nearby critical habitat and associated 
terrestrial, air, or aquatic zones.
    In summary, the activities are not expected to adversely impact 
annual rates of recruitment or survival of pinniped species.

Long-Term Consequences

    The best assessment of long-term consequences from training 
activities will be to monitor the populations over time within a given 
Navy range complex. A U.S. workshop on Marine Mammals and Sound (Fitch 
et al., 2011) indicated a critical need for baseline biological data on 
marine mammal abundance, distribution, habitat, and behavior over 
sufficient time and space to evaluate impacts from human-generated 
activities on long-term population survival. The Navy has developed 
monitoring plans for protected marine mammals occurring on Navy ranges 
with the goal of assessing the impacts of training and testing 
activities on marine species and the effectiveness of the Navy's 
current mitigation practices. Continued monitoring efforts over time 
will be necessary to completely evaluate the long-term consequences of 
exposure to noise sources.
    Since 2006 across all Navy range complexes (in the Atlantic, Gulf 
of

[[Page 19599]]

Mexico, and the Pacific), there have been more than 80 reports, 
including Major Exercise Reports, Annual Exercise Reports, and 
Monitoring Reports. For the Pacific since 2011, there have been 29 
monitoring and exercise reports submitted to NMFS to further research 
goals aimed at understanding the Navy's impact on the environment as it 
carries out its mission to train and test.
    In addition to this multi-year record of reports from across the 
Navy, there have also been ongoing Behavioral Response Study research 
efforts (in Southern California and the Bahamas) specifically focused 
on determining the potential effects from Navy mid-frequency sonar 
(Southall et al., 2011, 2012; McCarthy et al., 2011; Tyack et al., 
2011; DeRuiter et al., 2013b; Goldbogen et al., 2013; Moretti et al., 
2014). This multi-year compendium of monitoring, observation, study, 
and broad scientific research is informative with regard to assessing 
the effects of Navy training and testing in general. Given that this 
record involves many of the same Navy training activities being 
considered for the Study Area and because it includes all the marine 
mammal taxonomic families and many of the same species, this compendium 
of Navy reporting is directly applicable to assessing locations such as 
the GOA TMAA.
    In the Hawaii and Southern California Navy training and testing 
ranges from 2009 to 2012, Navy-funded marine mammal monitoring research 
completed over 5,000 hours of visual survey effort covering over 65,000 
nautical miles, sighted over 256,000 individual marine mammals, took 
over 45,600 digital photos and 36 hours of digital video, attached 70 
satellite tracking tags to individual marine mammals, and collected 
over 40,000 hours of passive acoustic recordings. In Hawaii alone 
between 2006 and 2012, there were 21 scientific marine mammal surveys 
conducted before, during, or after major exercises. This monitoring 
effort is consistent with other research from these areas in that there 
have been no direct evidence demonstration that routine Navy training 
and testing has negatively impacted marine mammal populations 
inhabiting these Navy ranges. Continued monitoring efforts over time 
will be necessary to completely evaluate the long-term consequences of 
exposure to noise sources. Other research findings related to the 
general topic of long-term impacts are discussed above in the Species-
Specific Analysis.
    Based on monitoring conducted before, during, and after Navy 
training and testing events since 2006, NMFS' assessment is that it is 
unlikely there will be impacts having any long-term consequences to 
populations of marine mammals as a result of the proposed continuation 
of training activities in the Study Area. In addition to the analysis 
presented above, this assessment of likelihood is based on four 
indicators from areas in the Pacific where Navy training and testing 
has been ongoing for decades: (1) Evidence suggesting or documenting 
increases in the numbers of marine mammals present (Calambokidis and 
Barlow, 2004; Falcone et al., 2009; Hildebrand and McDonald, 2009; 
Falcone and Shorr, 2012; Calambokidis et al., 2009a; Berman-Kowalewski 
et al., 2010; Moore and Barlow, 2011; Barlow et al., 2011; Kerosky et 
al., 2012; Smultea et al., 2013; [Scaron]irovi[cacute] et al., 2015), 
(2) examples of documented presence and site fidelity of species and 
long-term residence by individual animals of some species (Hooker et 
al., 2002; McSweeney et al., 2007; McSweeney et al., 2010; Martin and 
Kok, 2011; Baumann-Pickering et al., 2012; Falcone and Schorr, 2014), 
(3) use of training and testing areas for breeding and nursing 
activities (Littnan, 2010), and (4) 6 years of comprehensive monitoring 
data indicating a lack of any observable effects to marine mammal 
populations as a result of Navy training and testing activities.
    To summarize, while the evidence covers most marine mammal 
taxonomic suborders, it is limited to a few species and only suggestive 
of the general viability of those species in intensively used Navy 
training and testing areas (Barlow et al., 2011; Calambokidis et al., 
2009b; Falcone et al., 2009; Littnan, 2011; Martin and Kok, 2011; 
McCarthy et al., 2011; McSweeney et al., 2007; McSweeney et al., 2009; 
Moore and Barlow, 2011; Tyack et al., 2011; Southall et al., 2012a; 
Melcon, 2012; Goldbogen, 2013; Baird et al., 2013). However, there is 
no direct evidence that routine Navy training and testing spanning 
decades has negatively impacted marine mammal populations at any Navy 
Range Complex. Although there have been a few strandings associated 
with use of sonar in other locations (see U.S. Department of the Navy, 
2013b), Ketten (2012) has recently summarized, ``to date, there has 
been no demonstrable evidence of acute, traumatic, disruptive, or 
profound auditory damage in any marine mammal as the result of 
anthropogenic noise exposures, including sonar.'' Therefore, based on 
the best available science (Barlow et al., 2011; Carretta et al., 2011; 
Falcone et al., 2009; Falcone and Schorr, 2012, 2014; Jeffries et al., 
2003; Littnan, 2011; Martin and Kok, 2011; McCarthy et al., 2011; 
McSweeney et al., 2007; McSweeney et al., 2009; Moore and Barlow, 2011; 
Tyack et al., 2011; Southall et al., 2012, 2013, 2014; Manzano-Roth et 
al., 2013; DeRuiter et al., 2013b; Goldbogen et al., 2013; Moretti et 
al., 2014; Smultea and Jefferson, 2014; [Scaron]irovi[cacute] et al., 
2015), including data developed in the series of more than 80 reports 
submitted to NMFS, we believe that long-term consequences for 
individuals or populations are unlikely to result from Navy training 
activities in the Study Area.

Final Determination

    Training activities proposed in the GOA TMAA Study Area would 
result in mainly Level B and a very small number of Level A harassment 
takes (for one species), as summarized in Tables 10 and 11. Based on 
best available science, NMFS concludes that exposures to sound by 
marine mammal species or stocks due to GOA TMAA activities would result 
in individuals experiencing primarily short-term (temporary and short 
in duration) and relatively infrequent effects of the type or severity 
not expected to be additive. In addition, only a generally small 
portion of the stocks and species are likely to be exposed.
    Marine mammal takes from Navy activities are not expected to impact 
annual rates of recruitment or survival and will therefore not result 
in population-level impacts for the following reasons, in summary:

     No mortality is anticipated or authorized, only 4 
instances of Level A harassment (resulting in low-level PTS) to 
Dall's porpoise are likely to occur, and remaining impacts would be 
within the non-injurious TTS or behavioral effects zones (Level B 
harassment consisting of generally temporary modifications in 
behavior).
     As mentioned earlier, an animal's exposure to a higher 
received level is more likely to result in a behavioral response 
that is more likely to adversely affect the health of the animal. 
For low frequency cetaceans (mysticetes) in the Study Area, the 
majority (73%) of Level B exposures from hull-mounted sonar (which 
is responsible for most of the take) will occur at received levels 
less than 162 dB and from sources over 20km away. Only less than 1% 
of the takes are expected to result from exposures above 174 dB and 
closer than 4 km. The majority (63%) of estimated odontocete and 
pinniped takes from hull-mounted MFAS/HFAS result from exposures to 
received levels less than 162 dB and from sources over 20 km away. 
Only less than 2% of the takes are expected to result from exposures 
above 174 dB and closer than 4 km. For other sonar sources, 98% of 
the takes result from exposures below 168 dB for

[[Page 19600]]

all taxa. As noted previously, in addition to received level, the 
context of exposures (such as the distance) influences how animals 
respond--for example, beaked whales exposed to the same received 
level at a greater distance exhibited a lesser behavioral response 
(DeRuiter et al., 2012). In short, primarily because of the lower 
levels and greater distances over which most animals are exposed, 
the majority of Level B harassment takes are expected to be in the 
form of milder responses (i.e., lower-level exposures that still 
rise to the level of a take, but would likely be in the less severe 
range of responses that qualify as a take), and are not expected to 
have deleterious impacts on the fitness of any individuals.
     Acoustic disturbances caused by Navy sonar and 
explosives are short-term, intermittent, and (in the case of sonar) 
transitory. Even when an animal may be exposed to active sonar more 
than one time, the intermittent nature of the sonar signal, the 
signal's low duty cycle (MFAS has a typical ping of every 50 
seconds), and the fact that both the vessel and animal are moving, 
provide only a very small chance that exposure to active sonar for 
individual animals and stocks would be repeated over extended 
periods of time. Additionally, the exercises will not last more than 
a total of 21 days annually. Consequently, we would not expect the 
Navy's activities to create conditions of long-term, continuous 
underwater noise leading to habitat abandonment or long-term 
hormonal or physiological stress responses in marine mammal species 
or stocks.
     Range complexes where intensive training and testing 
have been occurring for decades have populations of multiple species 
with strong site fidelity (including highly sensitive resident 
beaked whales at some locations) and increases in the number of some 
species. Populations of beaked whales and other odontocetes in the 
Bahamas, and in other Navy fixed ranges that have been operating for 
tens of years, appear to be stable.
     Navy monitoring of Navy-wide activities since 2006 has 
documented hundreds of thousands of marine mammals on the range 
complexes and there are only two instances of overt behavioral 
change that have been observed.
     Navy monitoring of Navy-wide activities since 2006 has 
documented no demonstrable instances of injury to marine mammal 
species or stocks as a result of non-impulsive acoustic sources.
     In at least three decades of similar Navy activities, 
only one instance of injury to one species type of marine mammal (In 
March 2011; three long-beaked common dolphins off Southern 
California) has occurred as a known result of training or testing 
using an impulsive source (underwater explosion). Of note, the time-
delay firing underwater explosive training activity implicated in 
the March 2011 incident was not proposed for the training activities 
in the GOA Study Area.
     The protective measures described in the ``Mitigation'' 
section above are designed, and expected, to avoid vessel strike, 
sound exposures that may cause serious injury, minimize the 
likelihood of PTS, TTS, or more severe behavioral responses, further 
minimize the likelihood of take of North Pacific Right Whales in 
important feeding areas, and overall to result in the least 
practicable adverse effect on marine mammal species or stocks.

    Based on this analysis of the likely effects of the specified 
activity on marine mammal species or stocks and their habitat, which 
includes consideration of the materials provided in the Navy's LOA 
application and GOA FSEIS/OEIS, and dependent upon the implementation 
of the mitigation and monitoring measures, NMFS finds that the total 
marine mammal take from the Navy's training activities in the GOA Study 
Area will have a negligible impact on the affected marine mammal 
species or stocks through effects on annual rates of recruitment or 
survival. NMFS is issuing regulations for these activities in order to 
prescribe the means of effecting the least practicable adverse impact 
on marine mammal species or stocks and their habitat, and to set forth 
requirements pertaining to the monitoring and reporting of that taking.

Subsistence Harvest of Marine Mammals

    The Tribes nearest the GOA TMAA include the Sun'aq Tribe of Kodiak, 
the Native Village of Eyak, and the Yakutat Tlingit Tribe; however, 
these Tribes do not use the TMAA for subsistence. In January 2013, the 
Navy sent letters to 12 Alaska Native federally-recognized Tribes, 
including those listed above, with the assistance of the Alaskan 
Command's Tribal liaison, requesting government-to-government 
consultation pursuant to Executive Order 13175. The Navy conducted a 
government-to-government consultation with the Native Village of Eyak 
and addressed many of the Village's concerns regarding the potential 
impacts from training activities. All 12 Tribes were also provided a 
copy of the GOA DSEIS/OEIS for review and comment. Comments on the GOA 
DSEIS/OEIS were received from the Native Village of Eyak Tribe. In July 
2016, Navy held government-to-government consultation with five (5) 
Alaska Native Tribes in the Kodiak area regarding tribal comments and 
concerns of the Proposed Action. The Navy considered the concerns of 
the five Tribes regarding fishery resources and agreed to include a 
mitigation that precludes the use of ordnance in the Portlock Bank 
area. The Navy will continue to keep the Tribes informed of the 
timeframes of future joint training exercises.
    There are no relevant subsistence uses of marine mammals implicated 
by this action. None of the training activities in the Study Area occur 
where traditional Arctic subsistence hunting exists. Therefore, NMFS 
has determined that the total taking would not have an unmitigable 
adverse impact on the availability of such species or stocks for taking 
for subsistence purposes.

Endangered Species Act

    There are eight marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA with confirmed or 
possible occurrence in the Study Area: Blue whale, fin whale, humpback 
whale (Western North Pacific DPS and Mexico DPS), sei whale, sperm 
whale, gray whale (Western North Pacific stock), North Pacific right 
whale, and Steller sea lion (Western U.S. stock). The Navy consulted 
with NMFS pursuant to section 7 of the ESA, and NMFS also consulted 
internally on the issuance of a rule and LOA under section 101(a)(5)(A) 
of the MMPA for GOA activities. NMFS issued a Biological Opinion 
concluding that the issuance of the rule and subsequent LOA are likely 
to adversely affect, but are not likely to jeopardize, the continued 
existence of the threatened and endangered species under NMFS' 
jurisdiction and are not likely to result in the destruction or adverse 
modification of critical habitat in the GOA TMAA Study Area. The 
Biological Opinion for this action is available on NMFS' Web site 
(http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm).

National Environmental Policy Act

    NMFS participated as a cooperating agency on the GOA FSEIS/OEIS, 
which was published on July 9, 2016, and is available on the Navy's Web 
site: http://www.goaeis.com. NMFS determined that the GOA FSEIS/OEIS is 
adequate and appropriate to meet our responsibilities under NEPA for 
the issuance of regulations and LOA and adopted the Navy's GOA FSEIS/
OEIS.

Classification

    The Office of Management and Budget has determined that this final 
rule is not significant for purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel 
for Regulation of the Department of Commerce certified to the Chief 
Counsel for Advocacy of the Small Business Administration at the 
proposed rule stage that this rule would not have a significant 
economic impact on a substantial number of small entities. The Navy is 
the sole entity that would be affected by this rulemaking, and the

[[Page 19601]]

Navy is not a small governmental jurisdiction, small organization, or 
small business, as defined by the RFA. Any requirements imposed by an 
LOA issued pursuant to these regulations, and any monitoring or 
reporting requirements imposed by these regulations, would be 
applicable only to the Navy. NMFS does not expect the issuance of these 
regulations or the associated LOA to result in any impacts to small 
entities pursuant to the RFA. Because this action directly affects the 
Navy and not a small entity, NMFS concludes the action will not result 
in a significant economic impact on a substantial number of small 
entities. No comments were received regarding this certification. As a 
result, a regulatory flexibility analysis is not required and none has 
been prepared.
    The Assistant Administrator for Fisheries has determined that there 
is good cause under the Administrative Procedure Act (5 U.S.C 
553(d)(3)) to waive the 30-day delay in the effective date of the 
measures contained in the final rule. NMFS is unable to accommodate the 
30-day delay of effectiveness due to delays resulting from: Late 
changes in the action (reductions in activity levels), the need for new 
impact analyses to address policy changes initiated by NMFS (new 
Acoustic Guidance), and the need to analyze a recent Ninth Circuit 
opinion regarding section 101(a)(5)(A) of the MMPA. The Navy is the 
only entity subject to the regulations, and it has informed NMFS that 
it requests that this final rule take effect by April 2017 to 
accommodate a Navy training exercise in the GOA planned for May 1, 
2017. A waiver of the 30-day delay of the effective date of the final 
rule will allow the Navy to finalize operational procedures to ensure 
compliance with required mitigation, monitoring, and reporting 
requirements, and have MMPA authorization in place to support at-sea 
joint exercises in the GOA scheduled for May 2017. Any delay of 
enacting the final rule would result in either: (1) A suspension of 
planned naval training, which would disrupt vital training essential to 
national security; or (2) the Navy's procedural non-compliance with the 
MMPA (should the Navy conduct training without an LOA), thereby 
resulting in the potential for unauthorized takes of marine mammals. 
Moreover, the Navy is ready to implement the rule immediately. For 
these reasons, the Assistant Administrator finds good cause to waive 
the 30-day delay in the effective date.

List of Subjects in 50 CFR Part 218

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine 
mammals, Navy, Penalties, Reporting and recordkeeping requirements, 
Seafood, Sonar, Transportation.

    Dated: April 21, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 218 is amended 
as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.

0
2. Subpart P is added to part 218 to read as follows:

Subpart P--Taking and Importing Marine Mammals; U.S. Navy's Gulf of 
Alaska Temporary Maritime Activities Area (GOA TMAA) Study Area

Sec.
218.150 Specified activity and specified geographical region.
218.151 Effective dates and definitions.
218.152 Permissible methods of taking.
218.153 Prohibitions.
218.154 Mitigation.
218.155 Requirements for monitoring and reporting.
218.156 Applications for letters of authorization (LOA).
218.157 Letters of authorization (LOA).
218.158 Renewal and modifications of letters of authorization (LOA) 
and adaptive management.

Subpart P--Taking and Importing Marine Mammals; U.S. Navy's Gulf of 
Alaska Temporary Maritime Activities Area (GOA TMAA) Study Area


Sec.  218.150  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy for the 
taking of marine mammals that occurs in the area outlined in paragraph 
(b) of this section and that occurs incidental to the activities 
described in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the GOA TMAA Study Area, which is bounded by a hexagon 
with the following six corners: 57[deg]30'[deg] N. lat., 
141[deg]30'[deg] W. long.; 59[deg]36'[deg] N. lat., 148[deg]10'[deg] W. 
long.; 58[deg]57'[deg] N. lat., 150[deg]04'[deg] W. long.; 
58[deg]20'[deg] N. lat., 151[deg]00'[deg] W. long.; 57[deg]16'[deg] N. 
lat., 151[deg]00'[deg] W. long.; and 55[deg]30'[deg] N. lat., 
142[deg]00'[deg] W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities:
    (1) Sonar and other active sources used during training--(i) Mid-
frequency (MF) source classes. (A) MF1--an average of 271 hours per 
year.
    (B) MF3--an average of 24 hours per year.
    (C) MF4--an average of 26 hours per year.
    (D) MF5--an average of 126 items per year.
    (E) MF6--an average of 11 items per year.
    (F) MF11--an average of 39 hours per year.
    (ii) High-frequency (HF) source classes. (A) HF1--an average of 12 
hours per year.
    (B) HF6--an average of 40 items per year.
    (iii) Anti-Submarine Warfare (ASW) source classes. (A) ASW2--an 
average of 40 hours per year.
    (B) ASW3--an average of 273 hours per year.
    (C) ASW4--an average 6 items per year.
    (iv) Torpedoes (TORP). (A) TORP2--an average of 0 items per year.
    (B) [Reserved]
    (2) Impulsive source detonations during training--(i) Explosive 
classes. (A) E5 (>5 to 10 pound (lb) net explosive weight (NEW))--an 
average of 56 detonations per year.
    (B) E9 (>100 to 250 lb NEW)--an average of 64 detonations per year.
    (C) E10 (>250 to 500 lb NEW)--an average of 6 detonations per year.
    (D) E12 (>650 to 1,000 lb NEW)--an average of 2 detonations per 
year.
    (ii) [Reserved]


Sec.  218.151  Effective dates and definitions.

    (a) Regulations in this subpart are effective April 26, 2017 
through April 26, 2022.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE). A stranding event that takes 
place during a Major Training Exercise (MTE) and involves any one of 
the following:
    (i) Two or more individuals of any cetacean species (i.e., could be 
two different species, but not including mother/calf pairs, unless of 
species of concern listed in next bullet) found dead or live on shore 
within a three- to four-day period and within 10 miles of one another.
    (ii) A single individual or mother/calf pair of any of the 
following marine mammals of concern: beaked whale of any species, North 
Pacific right whale, humpback whale, sperm whale, blue

[[Page 19602]]

whale, fin whale, sei whale, Cook Inlet beluga whale, Northern fur 
seal, and Steller sea lion.
    (iii) A group of two or more cetaceans of any species exhibiting 
indicators of distress.
    (2) [Reserved]


Sec.  218.152  Permissible methods of taking.

    (a) Under letter of authorization (LOA) issued pursuant to Sec.  
216.106 of this chapter and Sec.  218.157, the holder of the LOA may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.150, provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the LOA.
    (b) The activities identified in Sec.  218.150(c) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammal species or stocks and their habitat.
    (c) The incidental take of marine mammals under the activities 
identified in Sec.  218.150(c) is limited to the following species, by 
the identified method of take and the indicated number of times:
    (1) Level B harassment for all training activities--(i) Mysticetes. 
(A) Blue whale (Balaenoptera musculus), Eastern North Pacific--235 (an 
average of 47 per year).
    (B) Fin whale (Balaenoptera physalus), Northeast Pacific--6,455 (an 
average of 1,291 per year).
    (C) Humpback whale (Megaptera novaeangliae), Central North 
Pacific--305 (an average of 61 per year).
    (D) Humpback whale (Megaptera novaeangliae), Western North 
Pacific--5 (an average of 1 per year).
    (E) Humpback whale (Megaptera novaeangliae), CA/OR/WA--35 (an 
average of 7 per year).
    (F) Minke whale (Balaenoptera acutorostrata), Alaska--215 (an 
average of 43 per year).
    (G) North Pacific right whale (Eubalaena japonica), Eastern North 
Pacific--15 (an average of 3 per year).
    (H) Sei whale (Balaenoptera borealis), Eastern North Pacific--30 
(an average of 6 per year).
    (ii) Odontocetes. (A) Baird's beaked whale (Berardius bairdii), 
Alaska--1,000 (an average of 200 per year).
    (B) Cuvier's beaked whale (Ziphius cavirostris), Alaska--6,355 (an 
average of 1,271 per year).
    (C) Dall's porpoise (Phocoenoidea dalli), Alaska--41,350 (an 
average of 8,270 per year).
    (D) Harbor porpoise (Phocoena phocoena), GOA--13,710 (an average of 
2,742 per year).
    (E) Harbor porpoise (Phocoena phocoena), Southeast Alaska--4,815 
(an average of 963 per year).
    (F) Killer whale (Orcinus orca), Alaska Resident--1,405 (an average 
of 281 per year).
    (G) Killer whale (Orcinus orca), Eastern North Pacific Offshore--
130 (an average of 26 per year).
    (H) Killer whale (Orcinus orca), GOA, Aleutian Island, and Bearing 
Sea Transient--360 (an average of 72 per year).
    (I) Pacific white-sided dolphin (Lagenorhynchus obliquidens), North 
Pacific--4,905 (an average of 981 per year).
    (J) Stejneger's beaked whale (Mesoplodon stejnegeri), Alaska--2,880 
(an average of 576 per year).
    (K) Sperm whale (Physeter macrocephalus), North Pacific--490 (an 
average of 98 per year).
    (iii) Pinnipeds. (A) California sea lion (Zalophus californianus), 
U.S.--10 (an average of 2 per year).
    (B) Steller sea lion (Eumetopias jubatus), Eastern U.S.--1,675 (an 
average of 335 per year).
    (C) Steller sea lion (Eumetopias jubatus), Western U.S.--1,430 (an 
average of 286 per year).
    (D) Harbor seal (Phoca vitulina), South Kodiak--5 (an average of 1 
per year).
    (E) Harbor seal (Phoca vitulina), Prince William Sound--5 (an 
average of 1 per year).
    (F) Northern elephant seal (Mirounga angustirostris), California 
Breeding--610 (an average of 122 per year).
    (G) Northern fur seal (Callorhinus ursinus), Eastern Pacific--3,565 
(an average of 713 per year).
    (2) Level A harassment for all training activities--(i) 
Odontocetes. (A) Dall's porpoise (Phocoenoidea dalli), Alaska--12 (an 
average of 4 per year).
    (B) [Reserved]
    (ii) [Reserved]


Sec.  218.153  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.152 and 
authorized by an LOA issued under Sec.  216.106 of this chapter and 
Sec.  218.157, no person in connection with the activities described in 
Sec.  218.150 may:
    (a) Take any marine mammal not specified in Sec.  218.152(c);
    (b) Take any marine mammal specified in Sec.  218.152(c) other than 
by incidental take as specified in Sec.  218.152(c);
    (c) Take a marine mammal specified in Sec.  218.152(c) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or an LOA issued under Sec.  216.106 
of this chapter and Sec.  218.157.


Sec.  218.154  Mitigation.

    (a) After review of best available science, the following 
mitigation was determined to result in the least practicable adverse 
effect on marine mammal species or stocks. When conducting training 
activities, as identified in Sec.  218.150, the mitigation measures 
contained in the LOA issued under Sec.  216.106 of this chapter and 
Sec.  218.157 must be implemented. These mitigation measures include, 
but are not limited to:
    (1) Lookouts. The Navy shall have two types of lookouts for the 
purposes of conducting visual observations: Those positioned on ships; 
and those positioned ashore, in aircraft, or on boats. The following 
are protective measures concerning the use of lookouts.
    (i) Lookouts positioned on surface ships shall be dedicated solely 
to diligent observation of the air and surface of the water. Their 
observation objectives shall include, but are not limited to, detecting 
the presence of biological resources and recreational or fishing boats, 
observing mitigation zones, and monitoring for vessel and personnel 
safety concerns.
    (ii) Due to manning and space restrictions on aircraft, small 
boats, and some Navy ships, lookouts for these platforms may be 
supplemented by the aircraft crew or pilot, boat crew, range site 
personnel, or shore-side personnel. Lookouts positioned in minimally 
manned platforms may be responsible for tasks in addition to observing 
the air or surface of the water (e.g., navigation of a helicopter or 
small boat). However, all lookouts shall, considering personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
activity, comply with the observation objectives described in paragraph 
(a)(1)(i) of this section for lookouts positioned on ships.
    (iii) All personnel standing watch on the bridge, Commanding 
Officers, Executive Officers, maritime patrol aircraft aircrews, anti-
submarine warfare helicopter crews, civilian equivalents, and lookouts 
shall successfully complete the United States Navy Marine Species 
Awareness Training prior to standing watch or serving as a lookout.
    (iv) Lookout measures for non-impulsive sound. (A) With the 
exception of vessels less than 65 ft (20 m) in length, ships using 
hull-mounted mid-frequency active sonar sources

[[Page 19603]]

associated with anti-submarine warfare activities at sea shall have two 
Lookouts at the forward position of the vessel.
    (B) While using hull-mounted mid-frequency active sonar sources 
associated with anti-submarine warfare activities at sea, vessels less 
than 65 ft (20 m) in length shall have one lookout at the forward 
position of the vessel due to space and manning restrictions.
    (C) During non-hull mounted mid-frequency active sonar training 
activities, Navy aircraft participating in exercises at sea shall 
conduct and maintain, when operationally feasible and safe, 
surveillance for marine species of concern as long as it does not 
violate safety constraints or interfere with the accomplishment of 
primary operational duties. Helicopters shall observe/survey the 
vicinity of an anti-submarine warfare training event for 10 minutes 
before the first deployment of active (dipping) sonar in the water.
    (D) Ships or aircraft conducting non-hull-mounted mid-frequency 
active sonar, such as helicopter dipping sonar systems, shall maintain 
one lookout.
    (E) Ships conducting high-frequency active sonar shall maintain one 
lookout.
    (v) Lookout measures for explosives and impulsive sound. (A) 
Aircraft conducting explosive signal underwater sound buoy activities 
using >0.5-2.5 lb. NEW shall have one lookout.
    (B) Surface vessels or aircraft conducting small-, medium-, or 
large-caliber gunnery exercises against a surface target shall have one 
Lookout. From the intended firing position, trained Lookouts shall 
survey the mitigation zone for marine mammals prior to commencement and 
during the exercise as long as practicable. Towing vessels, if 
applicable, shall also maintain one Lookout. If a marine mammal is 
sighted in the vicinity of the exercise, the tow vessel shall 
immediately notify the firing vessel in order to secure gunnery firing 
until the area is clear.
    (C) Aircraft conducting explosive bombing exercises shall have one 
lookout and any surface vessels involved shall have trained Lookouts. 
If surface vessels are involved, Lookouts shall survey for floating 
kelp and marine mammals. Aircraft shall visually survey the target and 
buffer zone for marine mammals prior to and during the exercise. The 
survey of the impact area shall be made by flying at 1,500 ft (460 m) 
or lower, if safe to do so, and at the slowest safe speed. Release of 
ordnance through cloud cover is prohibited: Aircraft must be able to 
actually see ordnance impact areas. Survey aircraft should employ most 
effective search tactics and capabilities.
    (D) When aircraft are conducting missile exercises against a 
surface target, the Navy shall have one Lookout positioned in an 
aircraft. Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying 
at 1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas.
    (E) Ships conducting explosive and non-explosive gunnery exercises 
shall have one Lookout on the ship. This may be the same lookout 
described in paragraph (a)(1)(v)(B) of this section for surface vessels 
conducting small-, medium-, or large-caliber gunnery exercises when 
that activity is conducted from a ship against a surface target.
    (vi) Lookout measures for physical strike and disturbance. (A) 
While underway, surface ships shall have at least one Lookout with 
binoculars, and surfaced submarines shall have at least one Lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, Lookouts will watch for and report to the 
Officer of the Deck the presence of marine mammals.
    (B) [Reserved]
    (vii) Lookout measures for non-explosive practice munitions. (A) 
Gunnery exercises using non-explosive practice munitions (e.g., small-, 
medium-, and large-caliber) using a surface target shall have one 
Lookout.
    (B) During non-explosive bombing exercises one Lookout shall be 
positioned in an aircraft and trained lookouts shall be positioned in 
any surface vessels involved.
    (C) When aircraft are conducting non-explosive missile exercises 
(including exercises using rockets) against a surface target, the Navy 
shall have one Lookout positioned in an aircraft.
    (2) Mitigation zones. The following are protective measures 
concerning the implementation of mitigation zones.
    (i) Mitigation zones shall be measured as the radius from a source 
and represent a distance to be monitored.
    (ii) Visual detections of marine mammals or sea turtles within a 
mitigation zone shall be communicated immediately to a watch station 
for information dissemination and appropriate action.
    (iii) Mitigation zones for non-impulsive sound. (A) The Navy shall 
ensure that hull-mounted mid-frequency active sonar transmission levels 
are limited to at least 6 dB below normal operating levels if any 
detected marine mammals or sea turtles are within 1,000 yd (914 m) of 
the sonar dome (the bow).
    (B) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are limited to at least 10 dB below the equipment's 
normal operating level if any detected marine mammals or sea turtles 
are within 500 yd (457 m) of the sonar dome.
    (C) The Navy shall ensure that hull-mounted mid-frequency active 
sonar transmissions are ceased if any detected cetaceans or sea turtles 
are within 200 yd (183 m) and pinnipeds are within 100 yd (90 m) of the 
sonar dome. Transmissions shall not resume until the marine mammal has 
been observed exiting the mitigation zone, is thought to have exited 
the mitigation zone based on its course and speed, has not been 
detected for 30 minutes, the vessel has transited more than 2,000 yd 
(1830 m) beyond the location of the last detection, or the ship 
concludes that dolphins are deliberately closing in on the ship to ride 
the ship's bow wave (and there are no other marine mammal sightings 
within the mitigation zone). Active transmission may resume when 
dolphins are bow riding because they are out of the main transmission 
axis of the active sonar while in the shallow-wave area of the ship 
bow.
    (D) The Navy shall ensure that high-frequency and non-hull-mounted 
mid-frequency active sonar transmission levels are ceased if any 
detected cetaceans are within 200 yd (183 m) and pinnipeds are within 
100 yd (90 m) of the source. Transmissions shall not resume until the 
marine mammal has been observed exiting the mitigation zone, is thought 
to have exited the mitigation zone based on its course and speed, the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes for an aircraft-deployed source, the mitigation 
zone has been clear from any additional sightings for a period of 30 
minutes for a vessel-deployed source, the vessel or aircraft has 
repositioned itself more than 400 yd (370 m) away from the location of 
the last sighting, or the vessel concludes that dolphins are 
deliberately closing in to ride the vessel's bow wave (and there are no 
other marine mammal sightings within the mitigation zone).
    (iv) Mitigation zones for explosive and impulsive sound. (A) A 
mitigation zone with a radius of 350 yd (320 m) shall be established 
for explosive signal underwater sonobuoys using >0.5 to 2.5 lb NEW. 
Explosive signal underwater sonobuoys shall not be deployed if 
concentrations of floating vegetation (kelp paddies) are observed in 
the mitigation zone (around the intended

[[Page 19604]]

deployment location). Explosive signal underwater sonobuoy deployment 
shall cease if a marine mammal is sighted within the mitigation zone. 
Detonations shall recommence if any one of the following conditions is 
met: The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and 
speed, or the mitigation zone has been clear from any additional 
sightings for a period of 10 minutes. Passive acoustic monitoring shall 
also be conducted with Navy assets, such as sonobuoys, already 
participating in the activity. These assets would only detect 
vocalizing marine mammals within the frequency bands monitored by Navy 
personnel. Passive acoustic detections would not provide range or 
bearing to detected animals, and therefore cannot provide locations of 
these animals. Passive acoustic detections would be reported to 
Lookouts posted in aircraft in order to increase vigilance of their 
visual surveillance.
    (B) A mitigation zone with a radius of 200 yd (183 m) shall be 
established for small- and medium-caliber gunnery exercises with a 
surface target. The exercise shall not commence if concentrations of 
floating vegetation (kelp paddies) are observed in the mitigation zone. 
Firing shall cease if a marine mammal is sighted within the mitigation 
zone. Firing shall recommence if any one of the following conditions is 
met: The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and 
speed, the mitigation zone has been clear from any additional sightings 
for a period of 10 minutes for a firing aircraft, the mitigation zone 
has been clear from any additional sightings for a period of 30 minutes 
for a firing ship, or the intended target location has been 
repositioned more than 400 yd (370 m) away from the location of the 
last sighting.
    (C) A mitigation zone with a radius of 600 yd (549 m) shall be 
established for large-caliber gunnery exercises with a surface target. 
The exercise shall not commence if concentrations of floating 
vegetation (kelp paddies) are observed in the mitigation zone. Firing 
shall cease if a marine mammal is sighted within the mitigation zone. 
Firing shall recommence if any one of the following conditions is met: 
The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and 
speed, or the mitigation zone has been clear from any additional 
sightings for a period of 30 minutes.
    (D) A mitigation zone with a radius of 2,500 yd (2.3 km) around the 
intended impact location for explosive bombs and 1000 yd (920 m) for 
non-explosive bombs shall be established for bombing exercises. The 
exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Bombing shall cease 
if a marine mammal is sighted within the mitigation zone. Bombing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, or the 
mitigation zone has been clear from any additional sightings for a 
period of 10 minutes.
    (E) A mitigation zone of 70 yd (64 m) shall be established for all 
explosive large-caliber gunnery exercises conducted from a ship. The 
exercise shall not commence if concentrations of floating vegetation 
(kelp paddies) are observed in the mitigation zone. Firing shall cease 
if a marine mammal is sighted within the mitigation zone. Firing shall 
recommence if any one of the following conditions is met: The animal is 
observed exiting the mitigation zone, the animal is thought to have 
exited the mitigation zone based on its course and speed, the 
mitigation zone has been clear from any additional sightings for a 
period of 30 minutes, or the vessel has repositioned itself more than 
140 yd (128 m) away from the location of the last sighting.
    (v) Mitigation zones for vessels and in-water devices. (A) Vessels 
shall avoid approaching marine mammals head on and shall maneuver to 
keep at least 500 yd (457 m) away from observed whales and 200 yd (183 
m) away from all other marine mammals (except bow riding dolphins), 
providing it is safe to do so. These requirements shall not apply if a 
vessel's safety is threatened and to the extent that vessels are 
restricted in their ability to maneuver. Restricted maneuverability 
includes, but is not limited to, situations when vessels are engaged in 
dredging, submerged activities, launching and recovering aircraft or 
landing craft, minesweeping activities, replenishment while underway 
and towing activities that severely restrict a vessel's ability to 
deviate course.
    (B) A mitigation zone of 250 yd (229 m) shall be established for 
all towed in-water devices, providing it is safe to do so.
    (vi) Mitigation zones for non-explosive practice munitions. (A) A 
mitigation zone of 200 yd (183 m) shall be established for small-, 
medium-, and large-caliber gunnery exercises using a surface target. 
The exercise shall not commence if concentrations of floating 
vegetation (kelp paddies) are observed in the mitigation zone. Firing 
shall cease if a marine mammal is sighted within the mitigation zone. 
Firing shall recommence if any one of the following conditions is met: 
The animal is observed exiting the mitigation zone, the animal is 
thought to have exited the mitigation zone based on its course and 
speed, the mitigation zone has been clear from any additional sightings 
for a period of 10 minutes for a firing aircraft, the mitigation zone 
has been clear from any additional sightings for a period of 30 minutes 
for a firing ship, or the intended target location has been 
repositioned more than 400 yd (370 m) away from the location of the 
last sighting.
    (B) A mitigation zone of 1,000 yd (920 m) shall be established for 
bombing exercises. Bombing shall cease if a marine mammal is sighted 
within the mitigation zone. The exercise shall not commence if 
concentrations of floating vegetation (kelp paddies) are observed in 
the mitigation zone. Bombing shall recommence if any one of the 
following conditions is met: the animal is observed exiting the 
mitigation zone, the animal is thought to have exited the mitigation 
zone based on its course and speed, or the mitigation zone has been 
clear from any additional sightings for a period of 10 minutes.
    (3) Cautionary Areas. The following are additional measures the 
Navy shall comply with when conducting training activities in the GOA 
TMAA Study Area:
    (i) The Navy shall avoid training activities using hull-mounted 
surface ship active sonar and explosive detonations within the North 
Pacific Right Whale Cautionary Area, defined as the portion of the 
NMFS-identified biologically important feeding area for North Pacific 
right whale overlapping the GOA TMAA, except when required by national 
security needs.
    (ii) In the event of national security needs, the Navy shall seek 
approval in advance from the Commander, U.S. Third Fleet, prior to 
conducting training activities using hull-mounted active sonar or 
explosive detonations within the Cautionary Area.
    (4) Stranding response plan. (i) The Navy shall abide by the letter 
of the ``Stranding Response Plan for the Gulf of Alaska Temporary 
Maritime Activities Area,'' to include the following measures:
    (A) Shutdown procedures. When an Uncommon Stranding Event (USE--
defined in Sec.  218.151) occurs during an MTE in the Study Area, the 
Navy shall

[[Page 19605]]

implement the procedures described in paragraphs (a)(4)(i)(A)(1) 
through (4) of this section:
    (1) The Navy shall implement a shutdown when advised by a NMFS 
Office of Protected Resources Headquarters Senior Official designated 
in the GOA TMAA Study Area Stranding Communication Protocol that a USE 
involving live animals has been identified and that at least one live 
animal is located in the water. NMFS and the Navy shall maintain a 
dialogue, as needed, regarding the identification of the USE and the 
potential need to implement shutdown procedures.
    (2) Any shutdown in a given area shall remain in effect in that 
area until NMFS advises the Navy that the subject(s) of the USE at that 
area die or are euthanized, or that all live animals involved in the 
USE at that area have left the area (either of their own volition or 
herded).
    (3) If the Navy finds an injured or dead animal floating at sea 
during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s), including carcass condition if the animal(s) is/are dead, 
location, time of first discovery, observed behavior (if alive), and 
photo or video (if available). Based on the information provided, NFMS 
shall determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (4) In the event, following a USE, that qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of mid-frequency 
active sonar training activities or explosive detonations, though 
farther than 14 nautical miles from the distressed animal(s), is likely 
contributing to the animals' refusal to return to the open water. If 
so, NMFS and the Navy shall further coordinate to determine what 
measures are necessary to improve the probability that the animals will 
return to open water and implement those measures as appropriate.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the GOA 
TMAA Study Area Communication Protocol) regarding the location, number 
and types of acoustic/explosive sources, direction and speed of units 
using mid-frequency active sonar, and marine mammal sightings 
information associated with training activities occurring within 80 
nautical miles (148 km) and 72 hours prior to the USE event. 
Information not initially available regarding the 80-nautical miles 
(148-km), 72-hour period prior to the event shall be provided as soon 
as it becomes available. The Navy shall provide NMFS investigative 
teams with additional relevant unclassified information as requested, 
if available.
    (ii) [Reserved]
    (b) [Reserved]


Sec.  218.155  Requirements for monitoring and reporting.

    (a) The Holder of the Authorization must notify NMFS immediately 
(or as soon as operational security considerations allow) if the 
specified activity identified in Sec.  218.150 is thought to have 
resulted in the mortality or injury of any marine mammals, or in any 
take of marine mammals not identified in Sec.  218.152(c).
    (b) The Holder of the LOA must conduct all monitoring and required 
reporting under the LOA, including abiding by the GOA TMAA monitoring 
plan.
    (c) General notification of injured or dead marine mammals. Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as soon as operational security considerations 
allow) if an injured or dead marine mammal is found by Navy personnel 
during or shortly after, and in the vicinity of, a Navy training 
activity utilizing mid- or high-frequency active sonar, or underwater 
explosive detonations. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available). In the event that an injured, stranded, or dead marine 
mammal is found by the Navy that is not in the vicinity of, or during 
or shortly after, MFAS, HFAS, or underwater explosive detonations, the 
Navy shall report the same information as listed in this paragraph (c) 
as soon as operationally feasible and clearance procedures allow.
    (d) General notification of ship strike. In the event of a ship 
strike by any Navy vessel, at any time or place, the Navy shall do the 
following:
    (1) Immediately report to NMFS the species identification (if 
known), location (lat/long) of the animal (or the strike if the animal 
has disappeared), and whether the animal is alive or dead (or unknown), 
and the time of the strike.
    (2) Report to NMFS as soon as operationally feasible the size and 
length of animal, an estimate of the injury status (ex., dead, injured 
but alive, injured and moving, unknown, etc.), vessel class/type and 
operational status.
    (3) Report to NMFS the vessel length, speed, and heading as soon as 
feasible.
    (4) Provide NMFS a photo or video, if equipment is available.
    (5) Within 2 weeks of the strike, provide NMFS with a detailed 
description of the specific actions of the vessel in the 30-minute 
timeframe immediately preceding the strike, during the event, and 
immediately after the strike (e.g., the speed and changes in speed, the 
direction and changes in direction, other maneuvers, sonar use, etc., 
if not classified); a narrative description of marine mammal sightings 
during the event and immediately after, and any information as to 
sightings prior to the strike, if available; and use established Navy 
shipboard procedures to make a camera available to attempt to capture 
photographs following a ship strike.
    (e) Communication plan. The Navy and NMFS shall develop a 
communication plan that will include all of the communication protocols 
(phone trees, etc.) and associated contact information required for 
NMFS and the Navy to carry out the necessary expeditious communication 
required in the event of a stranding or ship strike, including 
information described in the notification measures in paragraphs (c) 
and (d) of this section.
    (f) Annual GOA TMAA monitoring report. The Navy shall submit an 
annual report of the GOA TMAA monitoring describing the implementation 
and results from the previous calendar year. Data collection methods 
shall be standardized across range complexes and study areas to allow 
for comparison in different geographic locations. The report shall be 
submitted either 90 days after the calendar year, or 90 days after the 
conclusion of the monitoring year to be determined by the adaptive 
management process. The GOA TMAA Monitoring Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
reports from multiple range complexes and study areas (the multi-Range 
Complex Annual Monitoring Report). Such a report would describe 
progress of knowledge made with respect to monitoring plan study 
questions across all Navy ranges associated with the Integrated 
Comprehensive Monitoring Program. Similar study questions shall

[[Page 19606]]

be treated together so that progress on each topic shall be summarized 
across all Navy ranges. The report need not include analyses and 
content that does not provide direct assessment of cumulative progress 
on the monitoring plan study questions.
    (g) Annual GOA TMAA exercise reports. Each year, the Navy shall 
submit a preliminary report detailing the status of authorized sound 
sources within 21 days after the anniversary of the date of issuance of 
the LOA. Each year, the Navy shall submit a detailed report within 3 
months after the anniversary of the date of issuance of the LOA. The 
annual report shall contain information on Major Training Exercises 
(MTEs) and a summary of all sound sources used, as described in 
paragraph (g)(3) of this section. The analysis in the detailed report 
shall be based on the accumulation of data from the current year's 
report and data collected from previous the report. The detailed 
reports shall contain information identified in paragraphs (g)(1) 
through (4) of this section.
    (1) MFAS/HFAS Major Training Exercises. This section shall contain 
the following information for Major Training Exercises conducted in the 
GOA TMAA:
    (i) Exercise Information (for each MTE):
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location.
    (D) Number and types of active sources used in the exercise.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (G) Total hours of observation by lookouts.
    (H) Total hours of all active sonar source operation.
    (I) Total hours of each active sonar source bin.
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting information for each 
sighting in each exercise when mitigation occurred:
    (A) Date/Time/Location of sighting.
    (B) Species (if not possible, indication of whale/dolphin/
pinniped).
    (C) Number of individuals.
    (D) Initial Detection Sensor.
    (E) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel or testing 
platform).
    (F) Length of time observers maintained visual contact with marine 
mammal.
    (G) Sea state.
    (H) Visibility.
    (I) Sound source in use at the time of sighting.
    (J) Indication of whether animal is <200 yd, 200 to 500 yd, 500 to 
1,000 yd, 1,000 to 2,000 yd, or >2,000 yd from sonar source.
    (K) Mitigation implementation. Whether operation of sonar sensor 
was delayed, or sonar was powered or shut down, and how long the delay 
was.
    (L) If source in use is hull-mounted, true bearing of animal from 
ship, true direction of ship's travel, and estimation of animal's 
motion relative to ship (opening, closing, parallel).
    (M) Observed behavior. Lookouts shall report, in plain language and 
without trying to categorize in any way, the observed behavior of the 
animals (such as animal closing to bow ride, paralleling course/speed, 
floating on surface and not swimming, etc.) and if any calves present.
    (iii) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to minimize the 
received level to which marine mammals may be exposed. This evaluation 
shall identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (2) Summary of sources used. (i) This section shall include the 
following information summarized from the authorized sound sources used 
in all training events:
    (A) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other non-impulsive source; and
    (B) Total annual number of each type of explosive exercises and 
total annual expended/detonated rounds (missiles, bombs, sonobuoys, 
etc.) for each explosive bin.
    (ii) [Reserved]
    (3) Geographic information presentation. The reports shall present 
an annual (and seasonal, where practical) depiction of training 
exercises and testing bin usage geographically across the Study Area.
    (h) MTE prior notification. The Navy shall submit to NMFS (contact 
as specified in the LOA and Stranding Plan) an electronic notice of 
pending MTEs 72 hours prior to the start of the MTE indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.
    (i) Five-year close-out exercise report. This report shall be 
included as part of the 2021 annual exercise report. This report shall 
provide the annual totals for each sound source bin with a comparison 
to the annual allowance and the 5-year total for each sound source bin 
with a comparison to the 5-year allowance. Additionally, if there were 
any changes to the sound source allowance, this report shall include a 
discussion of why the change was made and include the analysis to 
support how the change did or did not result in a change in the SEIS 
and final rule determinations. The report shall be submitted 3 months 
after the expiration of this subpart. NMFS shall submit comments on the 
draft close-out report, if any, within 3 months of receipt. The report 
shall be considered final after the Navy has addressed NMFS' comments, 
or 3 months after the submittal of the draft if NMFS does not provide 
comments.


Sec.  218.156  Applications for letters of authorization (LOA).

    To incidentally take marine mammals pursuant to the regulations in 
this subpart, the U.S. citizen (as defined by Sec.  216.106 of this 
chapter) conducting the activity identified in Sec.  218.150(c) (the 
U.S. Navy) must apply for and obtain either an initial LOA in 
accordance with Sec.  218.157 or a renewal under Sec.  218.158.


Sec.  218.157  Letters of authorization (LOA).

    (a) An LOA, unless suspended or revoked, shall be valid for a 
period of time not to exceed the period of validity of this subpart.
    (b) Each LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the LOA shall be based on a 
determination that the total number of marine mammals taken by the 
activity as a whole shall have no more than a negligible impact on the 
affected species or stock of marine mammal(s).


Sec.  218.158  Renewals and modifications of letters of authorization 
(LOA) and adaptive management.

    (a) A letter of authorization issued under Sec.  216.106 of this 
chapter and Sec.  218.157 for the activity identified in Sec.  
218.150(c) shall be renewed or modified upon request of the applicant, 
provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made

[[Page 19607]]

pursuant to the adaptive management provision of this chapter); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision of this chapter) that do not change the findings made for the 
regulations or result in no more than a minor change in the total 
estimated number of takes (or distribution by species or years), NMFS 
may publish a notice of proposed LOA in the Federal Register, including 
the associated analysis illustrating the change, and solicit public 
comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
218.157 for the activity identified in Sec.  218.154 may be modified by 
NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify and augment the existing 
mitigation, monitoring, or reporting measures (after consulting with 
the Navy regarding the practicability of the modifications) if doing so 
creates a reasonable likelihood of more effectively accomplishing the 
goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, and reporting measures in an LOA:
    (A) Results from Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by these regulations or 
subsequent LOA.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
would publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  218.152(c), an LOA may be modified 
without prior notification and an opportunity for public comment. 
Notification would be published in the Federal Register within 30 days 
of the action.

[FR Doc. 2017-08424 Filed 4-26-17; 8:45 am]
 BILLING CODE 3510-22-P