[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)]
[Rules and Regulations]
[Pages 57076-57261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24042]



[[Page 57075]]

Vol. 83

Wednesday,

No. 220

November 14, 2018

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 218





 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to the U.S. Navy Training and Testing Activities in the Atlantic Fleet 
Training and Testing Study Area; Final Rule

  Federal Register / Vol. 83 , No. 220 / Wednesday, November 14, 2018 / 
Rules and Regulations  

[[Page 57076]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 170720687-8965-02]
RIN 0648-BH06


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the U.S. Navy Training and Testing Activities in the 
Atlantic Fleet Training and Testing Study Area

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

ACTION: Final rule.

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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these 
regulations pursuant to the Marine Mammal Protection Act (MMPA) to 
govern the taking of marine mammals incidental to the training and 
testing activities conducted in the Atlantic Fleet Training and Testing 
(AFTT) Study Area over the course of five years beginning in November. 
These regulations, which allow for the issuance of Letters of 
Authorization (LOA) for the incidental take of marine mammals during 
the described activities and timeframes, prescribe the permissible 
methods of taking and other means of effecting the least practicable 
adverse impact on marine mammal species or stocks and their habitat, 
and establish requirements pertaining to the monitoring and reporting 
of such taking.

DATES: Effective from November 14, 2018 through November 13, 2023.

ADDRESSES: A copy of the Navy's application and supporting documents, 
as well as a list of the references cited in this document, may be 
obtained online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these documents, please call 
the contact listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Purpose of Regulatory Action

    These regulations, issued under the authority of the MMPA (16 
U.S.C. 1361 et seq.), establish a framework for authorizing the take of 
marine mammals incidental to the Navy's training and testing activities 
(categorized as military readiness activities) from the use of sonar 
and other transducers, in-water detonations, air guns, impact pile 
driving/vibratory extraction, and potential vessel strikes based on 
Navy movement throughout the AFTT Study Area, which includes areas of 
the western Atlantic Ocean along the East Coast of North America, 
portions of the Caribbean Sea, and the Gulf of Mexico (GOMEX).
    We received an application from the Navy requesting five-year 
regulations and authorizations to incidentally take individuals of 
multiple species and stocks of marine mammals (``Navy's rulemaking/LOA 
application'' or ``Navy's application''). Take is anticipated to occur 
by Level A and Level B harassment as well as a very small number of 
serious injuries or mortalities incidental to the Navy's training and 
testing activities.
    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional taking of small numbers of 
marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity, as well as monitoring and reporting 
requirements. Section 101(a)(5)(A) of the MMPA and the implementing 
regulations at 50 CFR part 216, subpart I, provide the legal basis for 
issuing this final rule and the subsequent LOAs. As directed by this 
legal authority, this final rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Final Rule

    Following is a summary of the major provisions of this final rule 
regarding the Navy's activities. Major provisions include, but are not 
limited to:
    [ssquf] The use of defined powerdown and shutdown zones (based on 
activity);
    [ssquf] Measures to reduce or eliminate the likelihood of ship 
strikes, especially for North Atlantic right whales (Eubalaena 
glacialis) (NARW);
    [ssquf] Operational limitations in certain areas and times that are 
biologically important (i.e., for foraging, migration, reproduction) 
for marine mammals;
    [ssquf] Implementation of a Notification and Reporting Plan (for 
dead, live stranded, or marine mammals struck by a vessel); and
    [ssquf] Implementation of a robust monitoring plan to improve our 
understanding of the environmental effects resulting from Navy training 
and testing activities.
    Additionally, the rule includes an adaptive management component 
that allows for timely modification of mitigation or monitoring 
measures based on new information, when appropriate.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review and the opportunity 
to submit comments.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
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 permissible methods of taking, other means of 
effecting the least practicable adverse impact on the species or 
stocks, and requirements pertaining to the monitoring and reporting of 
such takings are set forth. The MMPA states that the term ``take'' 
means to harass, hunt, capture, kill or attempt to harass, hunt, 
capture, or kill any marine mammal.
    The National Defense Authorization Act of 2004 (2004 NDAA) (Pub. L. 
108-136) amended section 101(a)(5) of the MMPA to remove the ``small 
numbers'' and ``specified geographical region'' provisions indicated 
above and amended the definition of ``harassment'' as it applies to a 
``military readiness activity,'' along with certain research 
activities. The definitions of applicable MMPA statutory terms cited 
above are included in the relevant sections below.
    More recently, the John S. McCain National Defense Authorization 
Act for Fiscal Year 2019 (2019 NDAA) (Pub. L. 115-232) amended the MMPA 
to allow incidental take rules for military readiness activities to be 
issued for up to seven years. That recent amendment of the MMPA does 
not affect this final rule.

[[Page 57077]]

Summary and Background of Request

    On June 16, 2017, NMFS received an application from the Navy for 
authorization to take marine mammals incidental to training and testing 
activities (categorized as military readiness activities) from the use 
of sonar and other transducers, in-water detonations, air guns, and 
impact pile driving/vibratory extraction in the AFTT Study Area. In 
addition, the Navy requested incidental take authorization for up to 
nine mortalities of four marine mammal species during ship shock 
trials, and authorization for up to three takes by serious injury or 
mortality from vessel strikes over the five-year period. On August 4, 
2017, the Navy sent an amendment to its application, and the 
application was found to be adequate and complete. On August 14, 2017 
(82 FR 37851), we published a notice of receipt of application (NOR) in 
the Federal Register, requesting comments and information related to 
the Navy's request for 30 days. On March 13, 2018, we published a 
notice of the proposed rulemaking (83 FR 10954) and requested comments 
and information related to the Navy's request for 45 days. On April 9, 
2018, a proposed rule correction (83 FR 15117), which corrected Table 
4. Proposed Training was published in the Federal Register. Sections of 
the table were missing from the preamble, specifically Amphibious 
Warfare, Anti-Submarine Warfare, Expeditionary Warfare, Mine Warfare, 
and a portion of Surface Warfare. Comments received during the NOR and 
the proposed rulemaking comment periods are addressed in this final 
rule. See further details addressing comments received in the Comments 
and Responses section. On September 13, 2018, Navy provided NMFS with a 
memorandum revising the takes by serious injury or mortality included 
in the Navy's rulemaking/LOA application (Chapter 5, Section 5.2 
Incidental Take Request from Vessel Strikes). Specifically, after 
further analysis, the Navy withdrew the inclusion of the Western North 
Atlantic stock of blue whale and the Northern GOMEX stock of sperm 
whale from its request for authorization for take of three (3) large 
whales by serious injury or mortality from vessel strike. The 
information and assessment that supports this change is included in the 
Estimated Take of Marine Mammals section.
    The Navy requested two five-year LOAs, one for training and one for 
testing activities to be conducted within the AFTT Study Area, which 
includes areas of the western Atlantic Ocean along the East Coast of 
North America, portions of the Caribbean Sea, and the GOMEX. Please 
refer to the Navy's rulemaking/LOA application, specifically Figure 
1.1-1 for a map of the AFTT Study Area and Figures 2.2-1 through Figure 
2.2-3 for additional maps of the range complexes and testing ranges.
    The following types of training and testing, which are classified 
as military readiness activities pursuant to the MMPA, as amended by 
the 2004 NDAA, will be covered under the regulations and associated 
LOAs: amphibious warfare (in-water detonations), anti-submarine warfare 
(sonar and other transducers, in-water detonations), expeditionary 
warfare (in-water detonations), surface warfare (in-water detonations), 
mine warfare (sonar and other transducers, in-water detonations), and 
other warfare activities (sonar and other transducers, impact pile 
driving/vibratory extraction, air guns). In addition, ship shock 
trials, a specific testing activity related to vessel evaluation, will 
be conducted. Also, ship strike by Navy vessels is addressed and 
covered, as appropriate.
    This will be NMFS' third series of rulemaking under the MMPA for 
activities in the AFTT Study Area. NMFS published the first rule 
effective from January 22, 2009 through January 22, 2014 on January 27, 
2009 (74 FR 4844) and the second rule effective from November 14, 2013 
through November 13, 2018 on December 4, 2013 (78 FR 73009). These 
regulations are also valid for five years, from November 14, 2018, 
through November 13, 2023.
    The Navy's mission is to organize, train, equip, and maintain 
combat-ready naval forces capable of winning wars, deterring 
aggression, and maintaining freedom of the seas. This mission is 
mandated by federal law (10 U.S.C. 5062), which ensures the readiness 
of the naval forces of the United States. The Navy executes this 
responsibility by establishing and executing training and testing 
programs, including at-sea training and testing exercises, and ensuring 
naval forces have access to the ranges, operating areas (OPAREAs), and 
airspace needed to develop and maintain skills for conducting naval 
activities.
    The Navy plans to conduct training and testing activities within 
the AFTT Study Area. The Navy has been conducting military readiness 
activities in the AFTT Study Area for well over a century and with 
active sonar for over 70 years. The tempo and types of training and 
testing activities have fluctuated because of the introduction of new 
technologies, the evolving nature of international events, advances in 
warfighting doctrine and procedures, and changes in force structure 
(organization of ships, weapons, and personnel). Such developments 
influenced the frequency, duration, intensity, and location of required 
training and testing activities. This rulemaking reflects the most up 
to date compilation of training and testing activities deemed necessary 
to accomplish military readiness requirements. The types and numbers of 
activities included in the rule accounts for fluctuations in training 
and testing in order to meet evolving or emergent military readiness 
requirements.
    These regulations cover training and testing activities that would 
occur for a five-year period following the expiration of the current 
MMPA authorization for the AFTT Study Area, which expires on November 
13, 2018.

Description of the Specified Activity

    Additional detail regarding the specified activity was provided in 
our Federal Register notice of proposed rulemaking (83 FR 10954; March 
13, 2018); please see that proposed rule or the Navy's application for 
more information. Since the proposed rule, the Navy has removed one of 
its testing activities in the Northeast Range Complex (four events for 
Undersea Warfare Testing (USWT), which decreased the number of takes by 
Level B harassment for the NARW by 115 takes annually. This change also 
decreased take by Level B harassment by approximately 200 takes 
annually for Endangered Species Act (ESA)-listed fin whale and 20 takes 
annually for sei whales as well as approximately 10,000 takes annually 
for harbor porpoise. NMFS and the Navy have also reached agreement on 
additional mitigation measures since the proposed rule, which are 
summarized below and discussed in greater detail in the Mitigation 
Measures section of this rule.
    The Navy agrees to implement pre- and post-event observations as 
part of all in-water explosive event mitigations in the AFTT Study 
Area. The Navy has expanded the Northeast (NE) NARW Mitigation Area to 
match the updated NE NARW ESA-designated critical habitat. The Navy has 
agreed to broadcast awareness notification messages with NARW Dynamic 
Management Area information (e.g., location and dates) to alert vessels 
to the possible presence of a NARW to further reduce the potential for 
a vessel strike. The Navy has agreed to additional coordination to aid 
in the implementation of procedural mitigation to minimize potential 
interactions with NARW in the

[[Page 57078]]

Jacksonville Operating Area. The Navy will also report the total hours 
and counts of active sonar and in-water explosives used in a Southeast 
(SE) NARW Critical Habitat Special Reporting Area in its annual 
training and testing activity reports submitted to NMFS. The Navy will 
minimize use of explosives (March to September) in the Navy Cherry 
Point Range Complex Nearshore Mitigation Area to the extent 
practicable.
    In addition, the Navy will not conduct major training exercises 
(MTE) in the Gulf of Maine Planning Awareness Mitigation Area and the 
GOMEX Planning Awareness Mitigation Area. The Navy will also implement 
a 200 hour (hr)/year hull-mounted mid-frequency active sonar (MFAS) cap 
in the Gulf of Maine Planning Awareness Mitigation Area. The Navy has 
added a year-round, Bryde's Whale Mitigation Area, which will cover the 
biologically important area (BIA) as described in NMFS' 2016 Status 
Review (NMFS 2016) and implement a 200 hr/year hull-mounted MFAS cap 
and restrict all explosives except for mine warfare activities events 
in this mitigation area. The Navy has assessed and agreed to move the 
ship shock trial box east of the Mid-Atlantic Planning Awareness 
Mitigation Areas and move the northern GOMEX ship shock trial west of 
the Bryde's Whale Mitigation Area, including five nmi buffers from the 
mitigation areas.
    The Navy has also revised its estimated serious injury or mortality 
takes of large whales and, as a result, withdrawn its request for 
serious injury or mortality incidental take for the Western North 
Atlantic stock of blue whale and Northern GOMEX stock of sperm whale 
due to the extremely low probability that vessel strike incidental to 
the training and testing activities in the AFTT Study Area would occur.

Overview of Training and Testing Activities

    The Navy routinely trains and tests in the AFTT Study Area in 
preparation for national defense missions. Training and testing 
activities and exercises covered in these regulations are summarized 
below.
Primary Mission Areas
    The Navy categorizes its activities into functional warfare areas 
called primary mission areas. These activities generally fall into the 
following seven primary mission areas: Air warfare; amphibious warfare; 
anti-submarine warfare (ASW); electronic warfare; expeditionary 
warfare; mine warfare (MIW); and surface warfare (SUW). Most activities 
addressed in the AFTT Final Environmental Impact Statement/Overseas 
Environmental Impact Statement (FEIS/OEIS) are categorized under one of 
the primary mission areas; the testing community has three additional 
categories of activities for vessel evaluation (including ship shock 
trials), unmanned systems, and acoustic and oceanographic science and 
technology. Activities that do not fall within one of these areas are 
listed as ``other warfare activities.'' Each warfare community 
(surface, subsurface, aviation, and expeditionary warfare) may train in 
some or all of these primary mission areas. The testing community also 
categorizes most, but not all, of its testing activities under these 
primary mission areas.
    The Navy describes and analyzes the impacts of its training and 
testing activities within the AFTT FEIS/OEIS and the Navy's rulemaking/
LOA application (documents available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities). In its assessment, the Navy concluded 
that sonar and other transducers, in-water detonations, air guns, and 
pile driving/extraction were the stressors that would result in impacts 
on marine mammals that could rise to the level of harassment (also 
serious injury or mortality in ship shock trials or by vessel strike) 
as defined under the MMPA. Therefore, the rulemaking/LOA application 
provides the Navy's assessment of potential effects from these 
stressors in terms of the various warfare mission areas in which they 
would be conducted. In terms of Navy's primary warfare areas, this 
includes:
     Amphibious warfare (in-water detonations);
     anti-submarine warfare (sonar and other transducers, in-
water detonations);
     expeditionary warfare (in-water detonations);
     surface warfare (in-water detonations);
     mine warfare (sonar and other transducers, in-water 
detonations); and
     other warfare activities (sonar and other transducers, 
impact pile driving/vibratory extraction, air guns).
Overview of Training Activities and Exercises Within the AFTT Study 
Area
    An MTE is comprised of several ``unit level'' range exercises 
conducted by several units operating together while commanded and 
controlled by a single commander. These exercises typically employ an 
exercise scenario developed to train and evaluate the strike group in 
naval tactical tasks. In a MTE, most of the activities being directed 
and coordinated by the strike group commander are identical in nature 
to the activities conducted during individual, crew, and smaller unit 
level training events. In a MTE, however, these disparate training 
tasks are conducted in concert, rather than in isolation.
    Some integrated or coordinated ASW exercises are similar in that 
they are comprised of several unit level exercises but are generally on 
a smaller scale than a MTE, are shorter in duration, use fewer assets, 
and use fewer hours of hull-mounted sonar per exercise. These 
coordinated exercises are conducted under anti-submarine warfare. For 
the purpose of analysis, three key factors used to identify and group 
the exercises are the scale of the exercise, duration of the exercise, 
and amount of hull-mounted sonar hours modeled/used for the exercise. 
NMFS considered the effects of all training exercises, not just the 
major training exercises in these regulations. Additional detail 
regarding the training activities was provided in our Federal Register 
notice of proposed rulemaking (83 FR 10954; March 13, 2018) and a 
proposed rule correction (83 FR 15117; April 9, 2018); please see those 
documents or the Navy's application for more information.
Overview of Testing Activities Within the AFTT Study Area
    The Navy's research and acquisition community engages in a broad 
spectrum of testing activities in support of the fleet. These 
activities include, but are not limited to, basic and applied 
scientific research and technology development; testing, evaluation, 
and maintenance of systems (e.g., missiles, radar, and sonar) and 
platforms (e.g., surface ships, submarines, and aircraft); and 
acquisition of systems and platforms to support Navy missions and give 
a technological edge over adversaries. The individual commands within 
the research and acquisition community included in the Navy's 
rulemaking/LOA application are the Naval Air Systems Command, Naval Sea 
Systems Command, and the Office of Naval Research. Additional detail 
regarding the testing activities was provided in our Federal Register 
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see 
that proposed rule or the Navy's application for more information.

Dates and Duration

    The specified activities may occur at any time during the five-year 
period of validity of the regulations. Planned number and duration of 
training and

[[Page 57079]]

testing activities are shown in the Planned Activities section (Tables 
4 through 7).

Specific Geographic Area

    The Navy's training and testing activities conducted within the 
AFTT Study Area (which includes areas of the western Atlantic Ocean 
along the East Coast of North America, portions of the Caribbean Sea, 
and the GOMEX), covers approximately 2.6 million square nautical miles 
(nmi \2\) of ocean area, oriented from the mean high tide line along 
the U.S. coast and extends east to the 45-degree west longitude line, 
north to the 65-degree north latitude line, and south to approximately 
the 20-degree north latitude line. Please refer to the Navy's 
rulemaking/LOA application, specifically Figure 1.1-1 for a map of the 
AFTT Study Area and Figures 2.2-1 through Figure 2.2-3 for additional 
maps of the range complexes and testing ranges.

Description of Acoustic and Explosive Stressors

    The planned training and testing activities were evaluated to 
identify specific components that could act as stressors (acoustic and 
explosive) by having direct or indirect impacts on the environment. 
This analysis included identification of the spatial variation of the 
identified stressors.
    The Navy uses a variety of sensors, platforms, weapons, and other 
devices, including ones used to ensure the safety of Sailors and 
Marines, to meet its mission. Training and testing with these systems 
may introduce acoustic (sound) energy into the environment. The Navy's 
rulemaking/LOA application describes specific components that could act 
as stressors by having direct or indirect impacts on the environment. 
This analysis included identification of the spatial variation of the 
identified stressors. The following subsections describe the acoustic 
and explosive stressors for biological resources within the AFTT Study 
Area. Because of the complexity of analyzing sound propagation in the 
ocean environment, the Navy relies on acoustic models in its 
environmental analyses that consider sound source characteristics and 
varying ocean conditions across the AFTT Study Area. Stressor/resource 
interactions that were determined to have de minimus or no impacts 
(i.e., vessel, aircraft, or weapons noise) were not carried forward for 
analysis in the Navy's rulemaking/LOA application. NMFS reviewed the 
Navy's analysis and conclusions and finds them complete and 
supportable.

Acoustic Stressors

    Acoustic stressors include acoustic signals emitted into the water 
for a specific purpose, such as sonar, other transducers (devices that 
convert energy from one form to another--in this case, to sound waves), 
and air guns, as well as incidental sources of broadband sound produced 
as a byproduct of impact pile driving and vibratory extraction. 
Explosives also produce broadband sound but are characterized 
separately from other acoustic sources due to their unique 
characteristics. In order to better organize and facilitate the 
analysis of approximately 300 sources of underwater sound used for 
training and testing by the Navy including sonars, other transducers, 
air guns, and explosives, a series of source classifications, or source 
bins, were developed. The source classification bins do not include the 
broadband sounds produced incidental to pile driving, vessel or 
aircraft transits, weapons firing, and bow shocks.
    The use of source classification bins provides the following 
benefits: Provides the ability for new sensors or munitions to be 
covered under existing authorizations, as long as those sources fall 
within the parameters of a ``bin;'' improves efficiency of source 
utilization data collection and reporting requirements anticipated 
under the MMPA authorizations; ensures a conservative approach to all 
impact estimates, as all sources within a given class are modeled as 
the most impactful source (highest source level, longest duty cycle, or 
largest net explosive weight) within that bin; allows analyses to be 
conducted in a more efficient manner, without any compromise of 
analytical results; and provides a framework to support the 
reallocation of source usage (hours/explosives) between different 
source bins, as long as the total numbers of takes remain within the 
overall analyzed and authorized limits. This flexibility is required to 
support evolving Navy training and testing requirements, which are 
linked to real world events.
Sonar and Other Transducers
    Active sonar and other transducers emit non-impulsive sound waves 
into the water to detect objects, safely navigate, and communicate. 
Passive sonars differ from active sound sources in that they do not 
emit acoustic signals; rather, they only receive acoustic information 
about the environment, or listen.
    The Navy employs a variety of sonars and other transducers to 
obtain and transmit information about the undersea environment. Some 
examples are mid-frequency hull-mounted sonars used to find and track 
enemy submarines; high-frequency small object detection sonars used to 
detect mines; high frequency underwater modems used to transfer data 
over short ranges; and extremely high-frequency (>200 kilohertz [kHz]) 
Doppler sonars used for navigation, like those used on commercial and 
private vessels.
    Additional detail regarding sound sources and platforms and 
categories of acoustic stressors was provided in our Federal Register 
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see 
that proposed rule or the Navy's application for more information.
    Sonars and other transducers are grouped into classes that share an 
attribute, such as frequency range or purpose of use. Classes are 
further sorted by bins based on the frequency or bandwidth; source 
level; and, when warranted, the application in which the source would 
be used, as follows:
    [ssquf] Frequency of the non-impulsive acoustic source;
    [cir] Low-frequency sources operate below 1 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;
    [ssquf] Sound pressure level of the non-impulsive source;
    [cir] Greater than 160 decibels (dB) re 1 micro Pascal ([mu]Pa), 
but less than 180 dB re 1 [mu]Pa;
    [cir] Equal to 180 dB re 1 [mu]Pa and up to 200 dB re 1 [mu]Pa;
    [cir] Greater than 200 dB re 1 [mu]Pa;
    [ssquf] Application in which the source would be used;
    [cir] Sources with similar functions that have similar 
characteristics, such as pulse length (duration of each pulse), beam 
pattern, and duty cycle.
    The bins used for classifying active sonars and transducers that 
are quantitatively analyzed in the AFTT Study Area are shown in Table 1 
below. While general parameters or source characteristics are shown in 
the table, actual source parameters are classified.

[[Page 57080]]



Table 1--Sonar and Transducers Quantitatively Analyzed in the AFTT Study
                                  Area
------------------------------------------------------------------------
     Source class category             Bin              Description
------------------------------------------------------------------------
Low-Frequency (LF): Sources      LF3              LF sources greater
 that produce signals less than  LF4               than 200 dB.
 1 kHz.                                           LF sources equal to
                                                   180 dB and up to 200
                                                   dB.
                                 LF5              LF sources less than
                                                   180 dB.
                                 LF6              LF sources greater
                                                   than 200 dB with long
                                                   pulse lengths.
Mid-Frequency (MF): Tactical     MF1              Hull-mounted surface
 and non-tactical sources that                     ship sonars (e.g., AN/
 produce signals between 1-10                      SQS-53C and AN/SQS-
 kHz.                                              61).
                                 MF1K             Kingfisher mode
                                                   associated with MF1
                                                   sonars.
                                 MF3              Hull-mounted submarine
                                                   sonars (e.g., AN/BQQ-
                                                   10).
                                 MF4              Helicopter-deployed
                                                   dipping sonars (e.g.,
                                                   AN/AQS-22 and AN/AQS-
                                                   13).
                                 MF5              Active acoustic
                                                   sonobuoys (e.g.,
                                                   DICASS).
                                 MF6              Active underwater
                                                   sound signal devices
                                                   (e.g., MK84).
                                 MF8              Active sources
                                                   (greater than 200 dB)
                                                   not otherwise binned.
                                 MF9              Active sources (equal
                                                   to 180 dB and up to
                                                   200 dB) not otherwise
                                                   binned.
                                 MF10             Active sources
                                                   (greater than 160 dB,
                                                   but less than 180 dB)
                                                   not otherwise binned.
                                 MF11             Hull-mounted surface
                                                   ship sonars with an
                                                   active duty cycle
                                                   greater than 80%.
                                 MF12             Towed array surface
                                                   ship sonars with an
                                                   active duty cycle
                                                   greater than 80%.
                                 MF14             Oceanographic MF
                                                   sonar.
High-Frequency (HF): Tactical    HF1              Hull-mounted submarine
 and non-tactical sources that                     sonars (e.g., AN/BQQ-
 produce signals between 10-100                    10).
 kHz.                                             HF3
                                                  Other hull-mounted
                                                   submarine sonars
                                                   (classified).
                                 HF4              Mine detection,
                                                   classification, and
                                                   neutralization sonar
                                                   (e.g., AN/SQS-20).
                                 HF5              Active sources
                                                   (greater than 200 dB)
                                                   not otherwise binned.
                                 HF6              Active sources (equal
                                                   to 180 dB and up to
                                                   200 dB) not otherwise
                                                   binned.
                                 HF7              Active sources
                                                   (greater than 160 dB,
                                                   but less than 180 dB)
                                                   not otherwise binned.
                                 HF8              Hull-mounted surface
                                                   ship sonars (e.g., AN/
                                                   SQS-61).
Very High-Frequency Sonars       VHF1             VHF sources greater
 (VHF): Non-tactical sources                       than 200 dB.
 that produce signals between
 100-200 kHz.
Anti-Submarine Warfare (ASW):    ASW1             MF systems operating
 Tactical sources (e.g., active                    above 200 dB.
 sonobuoys and acoustic counter-                  ASW2
 measures systems) used during                    MF Multistatic Active
 ASW training and testing                          Coherent sonobuoy
 activities.                                       (e.g., AN/SSQ-125).
                                                  ASW3
                                                  MF towed active
                                                   acoustic
                                                   countermeasure
                                                   systems (e.g., AN/SLQ-
                                                   25).
                                 ASW4             MF expendable active
                                                   acoustic device
                                                   countermeasures
                                                   (e.g., MK 3).
                                 ASW5             MF sonobuoys with high
                                                   duty cycles.
Torpedoes (TORP): Source         TORP1            Lightweight torpedo
 classes associated with the                       (e.g., MK 46, MK 54,
 active acoustic signals                           or Anti-Torpedo
 produced by torpedoes.                            Torpedo).
                                 TORP2            Heavyweight torpedo
                                                   (e.g., MK 48).
                                 TORP3            Heavyweight torpedo
                                                   (e.g., MK 48).
Forward Looking Sonar (FLS):     FLS2             HF sources with short
 Forward or upward looking                         pulse lengths, narrow
 object avoidance sonars used                      beam widths, and
 for ship navigation and safety.                   focused beam
                                                   patterns.
Acoustic Modems (M): Systems     M3               MF acoustic modems
 used to transmit data through                     (greater than 190
 the water.                                        dB).
Swimmer Detection Sonars (SD):   SD1-SD2          HF and VHF sources
 Systems used to detect divers                     with short pulse
 and sub- merged swimmers.                         lengths, used for the
                                                   detection of swimmers
                                                   and other objects for
                                                   the purpose of port
                                                   security.
Synthetic Aperture Sonars        SAS1             MF SAS systems.
 (SAS): Sonars in which active                    SAS2
 acoustic signals are post-                       HF SAS systems.
 processed to form high-
 resolution images of the
 seafloor.
                                 SAS3             VHF SAS systems.
                                 SAS4             MF to HF broadband
                                                   mine countermeasure
                                                   sonar.
Broadband Sound Sources (BB):    BB1              MF to HF mine
 Sonar systems with large                          countermeasure sonar.
 frequency spectra, used for                      BB2
 various purposes.                                HF to VHF mine
                                                   countermeasure sonar.
                                 BB4              LF to MF oceanographic
                                                   source.
                                 BB5              LF to MF oceanographic
                                                   source.
                                 BB6              HF oceanographic
                                                   source.
                                 BB7              LF oceanographic
                                                   source.
------------------------------------------------------------------------
Notes: ASW: Anti-submarine Warfare; BB: Broadband Sound Sources; FLS:
  Forward Looking Sonar; HF: High-Frequency; LF: Low-Frequency; M:
  Acoustic Modems; MF: Mid-Frequency; SAS: Synthetic Aperture Sonars;
  SD: Swimmer Detection Sonars; TORP: Torpedoes; VHF: Very High-
  Frequency; dB: decibels.


[[Page 57081]]

Air guns
    Small air guns with capacities up to 60 cubic inches (in\3\) would 
be used during testing activities in various offshore areas in the AFTT 
Study Area, as well as near shore at Newport, RI.
    Generated impulses would have short durations, typically a few 
hundred milliseconds, with dominant frequencies below 1 kHz. The root-
mean-square sound pressure level (SPL) and peak pressure (SPL peak) at 
a distance 1 meter (m) from the airgun would be approximately 215 dB re 
1 [mu]Pa and 227 dB re 1 [mu]Pa, respectively, if operated at the full 
capacity of 60 in\3\ cubic inches.
Pile Driving/Extraction
    Impact pile driving and vibratory pile removal would occur during 
construction of an Elevated Causeway System (ELCAS), a temporary pier 
that allows the offloading of ships in areas without a permanent port. 
The source levels of the noise produced by impact pile driving and 
vibratory pile removal from an actual elevated causeway pile driving 
and removal are shown in Table 2.

    Table 2--Elevated Causeway System Pile Driving and Removal Underwater Sound Levels in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
           Pile size and type                        Method                   Average sound levels at 10 m
----------------------------------------------------------------------------------------------------------------
24-in. Steel Pipe Pile..................  Impact \1\.................  192 dB re 1 [micro]Pa SPL rms; 182 dB re
                                                                        1 [micro]Pa \2\s SEL (single strike).
24-in. Steel Pipe Pile..................  Vibratory \2\..............  146 dB re 1 [micro]Pa SPL rms; 145 dB re
                                                                        1 [micro]Pa \2\s SEL (per second of
                                                                        duration).
----------------------------------------------------------------------------------------------------------------
\1\ Illingworth and Rodkin (2016).
\2\ Illingworth and Rodkin (2015).
Notes: dB re 1 [micro]Pa: decibels referenced to 1 micropascal; in.: inch; rms: root mean squared; SEL: Sound
  Exposure Level; SPL: Sound Pressure Level.

    The size of the pier in an ELCAS event is approximately 1,520 ft 
long, requiring 119 supporting piles. Construction of the ELCAS would 
involve intermittent impact pile driving over approximately 20 days. 
Crews work 24 hours (hrs) a day and would drive approximately 6 piles 
in that period. Each pile takes about 15 minutes to drive with time 
taken between piles to reposition the driver. When training events that 
use the ELCAS are complete, the structure would be removed using 
vibratory methods over approximately 10 days. Crews would remove about 
12 piles per 24-hour period, each taking about 6 minutes to remove.

Explosive Stressors

    This section describes the characteristics of explosions during 
naval training and testing. The activities analyzed in the Navy's 
rulemaking/LOA application that use explosives are described in 
Appendix A (Navy Activity Descriptions) of the AFTT FEIS/OEIS. 
Additional detail regarding explosive stressors was provided in our 
Federal Register notice of proposed rulemaking (83 FR 10954; March 13, 
2018); please see that proposed rule or the Navy's application for more 
information.
    Explosive detonations during training and testing activities are 
associated with high-explosive munitions, including, but not limited 
to, bombs, missiles, rockets, naval gun shells, torpedoes, mines, 
demolition charges, and explosive sonobuoys. Explosive detonations 
during training and testing involving the use of high-explosive 
munitions (including bombs, missiles, and naval gun shells) could occur 
near the water's surface. Explosive detonations associated with 
torpedoes and explosive sonobuoys would occur in the water column; 
mines and demolition charges could be detonated in the water column or 
on the ocean bottom. Most detonations would occur in waters greater 
than 200 ft in depth, and greater than 3 nmi from shore, although mine 
warfare, demolition, and some testing detonations would occur in 
shallow water close to shore.
    In order to better organize and facilitate the analysis of 
explosives used by the Navy during training and testing that could 
detonate in water or at the water surface, explosive classification 
bins were developed. Explosives detonated in water are binned by net 
explosive weight. The bins of explosives that are planned for use in 
the AFTT Study Area are shown in Table 3 below.

                               Table 3--Explosives Analyzed in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                  Net explosive
              Bin                weight \1\ (lb)                      Example explosive source
----------------------------------------------------------------------------------------------------------------
E1............................  0.1-0.25.........  Medium-caliber projectile.
E2............................  >0.25-0.5........  Medium-caliber projectile.
E3............................  >0.5-2.5.........  Large-caliber projectile.
E4............................  >2.5-5...........  Mine neutralization charge.
E5............................  >5-10............  5-inch projectile.
E6............................  >10-20...........  Hellfire missile.
E7............................  >20-60...........  Demo block/shaped charge.
E8............................  >60-100..........  Light-weight torpedo.
E9............................  >100-250.........  500 lb. bomb.
E10...........................  >250-500.........  Harpoon missile.
E11...........................  >500-650.........  650 lb mine.
E12...........................  >650-1,000.......  2,000 lb bomb.
E14 \2\.......................  >1,741-3,625.....  Line charge.
E16...........................  >7,250-14,500....  Littoral Combat Ship full ship shock trial.
E17...........................  >14,500-58,000...  Aircraft carrier full ship shock trial.
----------------------------------------------------------------------------------------------------------------
\1\ Net Explosive Weight refers to the equivalent amount of TNT the actual weight of a munition may be larger
  due to other components.
\2\ E14 is not modeled for protected species impacts in water because most energy is lost into the air or to the
  bottom substrate due to detonation in very shallow water.


[[Page 57082]]

Explosive Fragments
    Marine mammals could be exposed to fragments from underwater 
explosions associated with the specified activities. When explosive 
ordnance (e.g., bombs or missiles) detonates, fragments of the weapons 
are thrown at high-velocity from the detonation point, which can injure 
or kill marine mammals if they are struck. These fragments may be of 
variable size and are ejected at supersonic speed from the detonation. 
The casing fragments will be ejected at velocities much greater than 
debris from any target due to the proximity of the casing to the 
explosive material. Risk of fragment injury reduces exponentially with 
distance as the fragment density is reduced. Fragments underwater tend 
to be larger than fragments produced by in-air explosions (Swisdak and 
Montaro, 1992). Underwater, the friction of the water would quickly 
slow these fragments to a point where they no longer pose a threat. In 
contrast, the blast wave from an explosive detonation moves efficiently 
through seawater. Because the ranges to mortality and injury due to 
exposure to the blast wave are likely to far exceed the zone where 
fragments could injure or kill an animal, the threshold are assumed to 
encompass risk due to fragmentation.

Other Stressor--Vessel Strike

    Vessel strikes are not specific to any particular training or 
testing activity, but rather a potential, limited, sporadic, and 
incidental result of Navy vessel movement within the AFTT Study Area. 
The average speed of large Navy ships ranges between 10 and 15 knots 
and submarines generally operate at speeds in the range of 8-13 knots, 
while a few specialized vessels can travel at faster speeds. Vessel 
strikes are likely to result in incidental take from serious injury 
and/or mortality and, accordingly, for the purposes of the analysis we 
assume that any authorized ship strike would result in serious injury 
or mortality. Information on Navy vessel movements is provided in the 
Planned Activities section. Additional detail on vessel strike was 
provided in our Federal Register notice of proposed rulemaking (83 FR 
10954; March 13, 2018); please see that proposed rule or the Navy's 
application for more information. Additionally, as referenced above and 
described in more detail in the Estimated Take of Marine Mammals 
section, on September 13, 2018 the Navy provided additional information 
explaining why and withdrew certain species from their request for 
serious injury or mortality takes from vessel strike.

Planned Activities

Planned Training Activities

    The training activities that the Navy plans to conduct in the AFTT 
Study Area are summarized in Table 4. The table is organized according 
to primary mission areas and includes the activity name, associated 
stressors applicable to these regulations, number of planned 
activities, and locations of those activities in the AFTT Study Area. 
For further information regarding the primary platform used (e.g., ship 
or aircraft type) see Appendix A (Navy Activity Descriptions) of the 
AFTT FEIS/OEIS.

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[[Page 57090]]


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Planned Testing Activities

    Testing activities covered in these regulations are described in 
Table 5 through Table 7.
Naval Air Systems Command
    Table 5 summarizes the planned testing activities for the Naval Air 
Systems Command analyzed within the AFTT Study Area.

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[[Page 57094]]


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Naval Sea Systems Command
    Table 6 summarizes the planned testing activities for the Naval Sea 
Systems Command analyzed within the AFTT Study Area.

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[[Page 57102]]


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Office of Naval Research
    Table 7 summarizes the planned testing activities for the Office of 
Naval Research analyzed within the AFTT Study Area.

[[Page 57103]]

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Summary of Acoustic and Explosive Sources Analyzed for Training and 
Testing

    Table 8 through Table 11 show the acoustic source classes and 
numbers, explosive source bins and numbers, air gun sources, and pile 
driving and removal activities associated with Navy training and 
testing activities in the AFTT Study Area that were analyzed in this 
rule. Table 8 shows the acoustic source classes (i.e., LF, MF, and HF) 
that could occur in any year under the Planned Activity for training 
and testing activities. Under the Planned Activities, acoustic source 
class use would vary annually, consistent with the number of annual 
activities summarized above. The five-year total for the Planned 
Activities takes into account that annual variability.

[[Page 57104]]

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[[Page 57106]]


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[[Page 57107]]


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    Table 9 shows the number of air gun shots planned in AFTT Study 
Area for training and testing activities.

                               Table 9--Training and Testing Airgun Sources Quantitatively Analyzed in the AFTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Training                           Testing
         Source class category                   Bin                  Unit \1\       -------------------------------------------------------------------
                                                                                           Annual        5-year total        Annual        5-year total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air guns (AG): Small underwater air     AG                     C                                   0                0              604            3,020
 guns.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ C = count. One count (C) of AG is equivalent to 100 air gun firings.

    Table 10 summarizes the impact pile driving and vibratory pile 
removal activities that would occur during a 24-hour period. Annually, 
for impact pile driving, the Navy will drive 119 piles, two times a 
year for a total of 238 piles. Over the 5-year period of the rule, the 
Navy will drive a total of 1190 piles by impact pile driving. Annually, 
for vibratory pile removal, the Navy will remove 119 piles, two times a 
year for a total of 238 piles. Over the 5-year period of the rule, the 
Navy will remove a total of 1190 piles by vibratory pile removal.

       Table 10--Summary of Pile Driving and Removal Activities per 24-Hour Period in the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                                                       Total
                                                                                                  estimated time
                             Method                                Piles per 24-   Time per pile   of noise per
                                                                    hour period      (minutes)    24-hour period
                                                                                                     (minutes)
----------------------------------------------------------------------------------------------------------------
Pile Driving (Impact)...........................................               6              15              90
Pile Removal (Vibratory)........................................              12               6              72
----------------------------------------------------------------------------------------------------------------


[[Page 57108]]

    Table 11 shows the number of in-water explosives that could be used 
in any year under the Planned Activity for training and testing 
activities. Under the Planned Activities, bin use would vary annually, 
consistent with the number of annual activities summarized above. The 
five-year total for the Specified Activities takes into account that 
annual variability.

                 Table 11-Explosive Source Bins Analyzed and Numbers Used During Training and Testing Activities in the AFTT Study Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Training                         Testing
             Bin                Net explosive weight \1\ (lb)   Example explosive source ---------------------------------------------------------------
                                                                                            Annual \2\     5-year total     Annual \2\     5-year total
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1...........................  0.1-0.25......................  Medium-caliber projectile           7,700          38,500   17,840-26,840         116,200
E2...........................  >0.25-0.5.....................  Medium-caliber projectile         210-214           1,062               0               0
E3...........................  >0.5-2.5......................  Large-caliber projectile.           4,592          22,960     3,054-3,422          16,206
E4...........................  >2.5-5........................  Mine neutralization               127-133             653         746-800           3,784
                                                                charge.
E5...........................  >5-10.........................  5-inch projectile........           1,436           7,180           1,325           6,625
E6...........................  >10-20........................  Hellfire missile.........             602           3,010           28-48             200
E7...........................  >20-60........................  Demo block/shaped charge.               4              20               0               0
E8...........................  >60-100.......................  Light-weight torpedo.....              22             110              33             165
E9...........................  >100-250......................  500 lb bomb..............              66             330               4              20
E10..........................  >250-500......................  Harpoon missile..........              90             450           68-98             400
E11..........................  >500-650......................  650 lb mine..............               1               5              10              50
E12..........................  >650-1,000....................  2,000 lb bomb............              18              90               0               0
E16 \3\......................  >7,250-14,500.................  Littoral Combat Ship full               0               0            0-12              12
                                                                ship shock trial.
E17 \3\......................  >14,500-58,000................  Aircraft carrier full                   0               0             0-4               4
                                                                ship shock trial.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Net Explosive Weight refers to the equivalent amount of TNT the actual weight of a munition may be larger due to other components.
\2\ Expected annual use may vary per bin because the number of events may vary from year to year, as described in Section 1.5 (Planned Activity).
\3\ Shock trials consist of four explosions each. In any given year there could be 0-3 small ship shock trials (E16) and 0-1 large ship shock trials
  (E17). Over a 5-year period, there could be three small ship shock trials (E16) and one large ship shock trial (E17).

Vessel Movement

    Vessels used as part of the Planned Activity include ships, 
submarines and boats ranging in size from small, 22 ft (7 m) rigid hull 
inflatable boats to aircraft carriers with lengths up to 1,092 ft (333 
m). Large Navy ships greater than 60 ft (18 m) generally operate at 
speeds in the range of 10 to 15 kn for fuel conservation. Submarines 
generally operate at speeds in the range of 8 to 13 kn in transits and 
less than those speeds for certain tactical maneuvers. Small craft, 
less than 60 ft (18 m) in length, have much more variable speeds 
(dependent on the mission). For small craft types, sizes and speeds 
vary during training and testing. Speeds generally range from 10 to 14 
kn. While these speeds for large and small crafts are representative of 
most events, some vessels need to temporarily operate outside of these 
parameters.
    The number of Navy vessels used in the AFTT Study Area varies based 
on military training and testing requirements, deployment schedules, 
annual budgets, and other unpredictable factors. Most training and 
testing activities involve the use of vessels. These activities could 
be widely dispersed throughout the AFTT Study Area, but would be 
typically conducted near naval ports, piers, and range areas.

Standard Operating Procedures

    For training and testing to be effective, personnel must be able to 
safely use their sensors and weapon systems as they are intended to be 
used in a real-world situation and to their optimum capabilities. While 
standard operating procedures are designed for the safety of personnel 
and equipment and to ensure the success of training and testing 
activities, their implementation often yields additional benefits on 
environmental, socioeconomic, public health and safety, and cultural 
resources.
    Because standard operating procedures are essential to safety and 
mission success, the Navy considers them to be part of the planned 
activities and has included them in the environmental analysis. 
Additional details on standard operating procedures were provided in 
our Federal Register notice of proposed rulemaking (83 FR 10954; March 
13, 2018); please see that proposed rule or the Navy's application for 
more information.

Duration and Location

    Training and testing activities would be conducted in the AFTT 
Study Area throughout the year from 2018 through 2023 for the five-year 
period covered by the regulations. The AFTT Study Area (see Figure 1.1-
1 of the Navy's rulemaking/LOA application) includes areas of the 
western Atlantic Ocean along the East Coast of North America, portions 
of the Caribbean Sea, and the GOMEX. The AFTT Study Area begins at the 
mean high tide line along the U.S. coast and extends east to the 45-
degree west longitude line, north to the 65-degree north latitude line, 
and south to approximately the 20-degree north latitude line. The AFTT 
Study Area also includes Navy pierside locations, bays, harbors, and 
inland waterways, and civilian ports where training and testing occurs. 
The AFTT Study Area generally follows the Commander Task Force 80 area 
of operations, covering approximately 2.6 million nmi\2\ of ocean area, 
and includes designated Navy range complexes and associated operating 
areas (OPAREAs) and special use airspace. While the AFTT Study Area 
itself is very large, it is important to note that the vast majority of 
Navy training and testing occurs in designated range complexes and 
testing ranges.
    A Navy range complex consists of geographic areas that encompass a 
water component (above and below the surface) and airspace, and may 
encompass a land component where training and testing of military 
platforms, tactics, munitions, explosives, and electronic warfare 
systems occur. Range complexes include established OPAREAs, which may 
be further divided to provide better control of the area for safety 
reasons.

[[Page 57109]]

Please refer to the regional maps provided in the Navy's rulemaking/LOA 
application (Figure 2.2-1 through Figure 2.2-3) for additional detail 
of the range complexes and testing ranges. Additional detail on range 
complexes and testing ranges was provided in our Federal Register 
notice of proposed rulemaking (83 FR 10954; March 13, 2018); please see 
that proposed rule or the Navy's application for more information.

Comments and Responses

    We published a notice of proposed regulations in the Federal 
Register on March 13, 2018 (83 FR 10954), with a 45-day comment period. 
In that proposed rule, we requested public input on the request for 
authorization described therein, our analyses, and the proposed 
authorizations and requested that interested persons submit relevant 
information, suggestions, and comments. During the 45-day comment 
period, we received 28 total comment letters. Of this total, one 
submission was from another federal agency, two letters were from 
organizations or individuals acting in an official capacity (e.g., non-
governmental organizations (NGOs)) and 25 submissions were from private 
citizens. Letters from other NGOs and state departments that were 
received during the NOR were also considered further. NMFS has reviewed 
all public comments received on the proposed rule and issuance of the 
LOAs. All relevant comments and our responses are described below. We 
provide no response to specific comments that addressed species or 
statutes not relevant to our proposed actions under section 
101(a)(5)(A) of the MMPA (e.g., comments related to sea turtles). We 
outline our comment responses by major categories.

General Comments

    The majority of the 25 comment letters from private citizens 
expressed general opposition toward the Navy's proposed training and 
testing activities and requested that NMFS not issue the LOAs, but 
without providing information relevant to NMFS' decisions. These 
comments appear to indicate a lack of understanding of the MMPA's 
requirement that NMFS ``shall issue'' requested authorizations when 
certain findings (see the Background section) are met; therefore, these 
comments were not considered further. The remaining comments are 
addressed below.

Impact Analysis

General
    Comment 1: A Commenter recommends that NMFS consult with the Navy 
to collect more information regarding the number, nature, and timing of 
testing and training events that take place within, or within close 
proximity to, important habitat areas, essentially refining the scale 
of the analysis of training and testing activities to match the scale 
of the habitat areas considered to be important.
    Response: In their take request and effects analysis provided to 
NMFS, the Navy considered historic use (number and nature of training 
and testing activities) and locational information of training and 
testing activities when developing modelling boxes. The timing of 
training cycles and testing needs varies based on deployment 
requirements to meet current and emerging threats. Due to the 
variability, the Navy's description of their specified activities is 
structured to provide flexibility in training and testing locations, 
timing, and number. In addition, information regarding the exact 
location of sonar usage is classified. Due to the variety of factors, 
many of which influence locations that cannot be predicted in advance 
(e.g., weather), the analysis is completed at a scale that is necessary 
to allow for flexibility. The purpose of the Navy's quantitative 
acoustic analysis is to provide the best estimate of impact/take to 
marine mammals and ESA listed species for the regulatory and ESA 
section 7 consultation analyses. Specifically, the analysis must take 
into account multiple Navy training and testing activities over large 
areas of the ocean for multiple years; therefore, analyzing activities 
in multiple locations over multiple seasons produces the best estimate 
of impacts/take to inform the AFTT FEIS/OEIS and regulators. Also, the 
scale at which spatially explicit marine mammal density models are 
structured is determined by the data collection method and the 
environmental variables that are used to build the model. Therefore, 
altogether, given the variables that determine when and where the Navy 
trains and tests, as well as the resolution of the density data, the 
analysis of potential impacts is scaled to the level that the data 
fidelity will support. NMFS has worked with the Navy over the years to 
increase the spatio-temporal specificity of the descriptions of 
activities planned in or near areas of biological importance, when 
possible (i.e., in NARW ESA-designated critical habitat), and NMFS is 
confident that the granularity of information provided sufficiently 
allows for an accurate assessment of both the impacts of the Navy's 
activities on marine mammal populations and the protective measures 
evaluated to mitigate those impacts.
Density Estimates
    Comment 2: A Commenter noted that 30 iterations or Monte Carlo 
simulations is low for general bootstrapping methods used in those 
models but understands that increasing the number of iterations in turn 
increases the computational time needed to run the models. Accordingly, 
the Commenter suggests that the Navy consider increasing the iterations 
from 30 to at least 200 for activities that have yet to be modeled for 
Phase III and for all activities in Phase IV.
    Response: The 30 iterations used in NAEMO represent the number of 
iterations run for each of the four seasons analyzed in AFTT Phase III, 
which results in a total of 120 iterations per year for each event 
analyzed. For other areas where only warm and cold seasons are 
analyzed, the number of iterations per season is increased to 60 so 
that the same 120 iterations per year are maintained. Navy reached this 
number of iterations by running two iterations of a scenario and 
calculating the mean of exposures, then running a third iteration and 
calculating the running mean of exposures, then a fourth iteration and 
so on. This is done until the running mean becomes stable. Through this 
approach, it was determined 120 iterations was sufficient to converge 
to a statistically valid answer and provides a reasonable uniformity of 
exposure predictions for most species and areas. There are a few 
exceptions for species with sparsely populated distributions or highly 
variable distributions. In these cases, the running mean may not 
flatten out (or become stable); however, there were so few exposures in 
these cases that while the mean may fluctuate, the overall number of 
exposures did not result in significant differences in the totals. In 
total, the number of simulations conducted for AFTT Phase III exceeded 
six million simulations and produced hundreds of terabytes of data. 
Increasing the number of iterations, based on the discussion above, 
would not result in a significant change in the results, but would 
incur a significant increase in resources (e.g., computational and 
storage requirements). This would divert these resources from 
conducting other more consequential analysis without providing for 
meaningfully improved data. The Navy has

[[Page 57110]]

communicated that it is continually looking at ways to improve NAEMO 
and reduce data and computational requirements. As technologies and 
computational efficiencies improve, Navy will evaluate these advances 
and incorporate them where appropriate.
    Comment 3: A Commenter recommends that the Navy (1) specify what 
modeling method and underlying assumptions were used to estimate PTS 
and TTS zones for pile driving activities and (2) accumulate energy for 
the entire day of proposed activities, and (3) clarify why those zones 
were estimated to be the same for LF and HF.
    Response: The Navy has explained that it used measured values for 
source levels and transmission loss from pile driving of the Elevated 
Causeway System, the only pile driving activity included in the 
Proposed Action of the AFTT FEIS/OEIS. These recorded source waveforms 
were weighted using the auditory weighting functions. Low-frequency and 
high-frequency cetaceans have similar ranges for impact pile driving 
since low-frequency cetaceans would be relatively more sensitive to the 
low-frequency sound, which is below high-frequency cetaceans best range 
of hearing. Neither the NMFS user spreadsheet nor NAEMO were required 
for calculations. An area density model was developed in MS Excel, 
which calculated zones of influence to thresholds of interest (e.g., 
behavioral response) based on durations of pile driving and the 
aforementioned measured and weighted source level values. The resulting 
area was then multiplied by density of each marine mammal species that 
could occur within the vicinity. This produced an estimated number of 
animals that could be impacted per pile, per day, and overall during 
the entire activity for both the impact pile driving and vibratory 
removal phases.
    Regarding the appropriateness of accumulating energy for the entire 
day, based on the best available science regarding animal reaction to 
sound, selecting a reasonable SEL calculation period is necessary to 
more accurately reflect the time period an animal would likely be 
exposed to the sound. The Navy factored both mitigation effectiveness 
and animal avoidance of higher sound levels into the impact pile 
driving analysis. For impact pile driving, the mitigation zone extends 
beyond the average ranges to PTS for all hearing groups; therefore, 
mitigation will help prevent or reduce the potential for exposure to 
PTS. The impact pile driving mitigation zone also extends beyond or 
into a portion of the average ranges to TTS; therefore, mitigation will 
help prevent or reduce the potential for exposure to all TTS or some 
higher levels of TTS, depending on the hearing group. Mitigation 
effectiveness and animal avoidance of higher sound levels were both 
factored into the impact pile driving analysis as most marine mammals 
should be able to easily move away from the expanding ensonified zone 
of TTS/PTS within 60 seconds, especially considering the soft start 
procedure, or avoid the zone altogether if they are outside of the 
immediate area upon startup. Marine mammals and sea turtles are likely 
to leave the immediate area of pile driving and extraction activities 
and be less likely to return as activities persist. However, some 
``naive'' animals may enter the area during the short period of time 
when pile driving and extraction equipment is being re-positioned 
between piles. Therefore, an animal ``refresh rate'' of 10 percent was 
selected. This means that 10 percent of the single pile zone of 
influence (ZOI) was added for each consecutive pile within a given 24-
hour period to generate the daily ZOI per effect category. These daily 
ZOIs were then multiplied by the number of days of pile driving and 
pile extraction and then summed to generate a total ZOI per effect 
category (i.e., behavioral response, TTS, PTS). The small size of the 
mitigation zone and its close proximity to the observation platform 
will result in a high likelihood that Lookouts would be able to detect 
marine mammals and sea turtles throughout the mitigation zone.
PTS/TTS Thresholds
    Comment 4: A Commenter supports the weighting functions and 
associated thresholds as stipulated in Finneran (2016), which are the 
same as those used for Navy Phase III activities, but points to 
additional recent studies that provide additional behavioral audiograms 
(e.g., Branstetter et al., 2017, Kastelein et al., 2017b) and 
information on TTS (e.g., Kastelein et al., 2017a; 2017c). However, the 
Commenter recommends that the Navy should provide a discussion of 
whether those new data corroborate the current weighting functions and 
associated thresholds.
    Response: The NMFS' revised Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2018), 
which was used in the assessment of effects for this action, compiled, 
interpreted, and synthesized the best available scientific information 
for noise-induced hearing effects for marine mammals to derive updated 
thresholds for assessing the impacts of noise on marine mammal hearing, 
including the articles that the Commenter references that were 
published subsequent to the publication of the first version of 2016 
Acoustic Technical Guidance. The new data included in those articles 
are consistent with the thresholds and weighting functions included in 
the current version of the Acoustic Technical Guidance (NMFS 2018).
    NMFS will continue to review and evaluate new relevant data as it 
becomes available and consider the impacts of those studies on the 
Acoustic Technical Guidance to determine what revisions/updates may be 
appropriate. Thus far, no new information has been published or 
otherwise conveyed that would fundamentally change the assessment of 
impacts or conclusions of this rule.
    Comment 5: A Commenter commented that the criteria that the agency 
has produced to estimate temporary threshold shift (TTS) and permanent 
threshold shift (PTS) in marine mammals are erroneous and non-
conservative. The Commenter specifically cited many supposed issues 
with NMFS' Acoustic Technical Guidance, including adoption of 
``erroneous'' models, broad extrapolation from a small number of 
individuals, and disregarding ``non-linear accumulation of 
uncertainty.'' The Commenter suggests that NMFS retain the historical 
180-dB rms Level A harassment threshold as a ``conservative upper 
bound'' or conduct a ``sensitivity analysis'' to ``understand the 
potential magnitude'' of the supposed errors.
    Response: NMFS disagrees with this characterization of the Acoustic 
Technical Guidance and the associated recommendation. The Acoustic 
Technical Guidance is a compilation, interpretation, and synthesis of 
the scientific literature that provides the best available information 
regarding the effects of anthropogenic sound on marine mammals' 
hearing. The technical guidance was classified as a Highly Influential 
Scientific Assessment and, as such, underwent three independent peer 
reviews, at three different stages in its development, including a 
follow-up to one of the peer reviews, prior to its dissemination by 
NMFS. In addition, there were three separate public comment periods, 
during which time we received and responded to similar comments on the 
guidance (81 FR 51694), which we cross-reference here, and more recent 
public and interagency review under Executive Order 13795.
    The Acoustic Technical Guidance updates the historical 180-dB rms 
injury threshold, which was based on professional judgement (i.e., no 
data

[[Page 57111]]

were available on the effects of noise on marine mammal hearing at the 
time this original threshold was derived). NMFS does not believe the 
use of the Acoustic Technical Guidance provides erroneous results. The 
180-dB rms threshold is plainly outdated, as the best available science 
indicates that rms SPL is not even an appropriate metric by which to 
gauge potential auditory injury (whereas the scientific debate 
regarding Level B behavioral harassment thresholds is not about the 
proper metric but rather the proper level or levels and how these may 
vary in different contexts).
    Multiple studies from humans, terrestrial mammals, and marine 
mammals have demonstrated less TTS from intermittent exposures compared 
to continuous exposures with the same total energy because hearing is 
known to experience some recovery in between noise exposures, which 
means that the effects of intermittent noise sources such as tactical 
sonars are likely overestimated. Marine mammal TTS data have also shown 
that, for two exposures with equal energy, the longer duration exposure 
tends to produce a larger amount of TTS. Most marine mammal TTS data 
have been obtained using exposure durations of tens of seconds up to an 
hour, much longer than the durations of many tactical sources (much 
less the continuous time that a marine mammal in the field would be 
exposed consecutively to those levels), further suggesting that the use 
of these TTS data are likely to overestimate the effects of sonars with 
shorter duration signals.
    Regarding the suggestion of pseudo-replication and erroneous 
models, since marine mammal hearing and noise-induced hearing loss data 
are limited, both in the number of species and in the number of 
individual's available, attempts to minimize pseudoreplication would 
further reduce these already limited data sets. Specifically, with 
marine mammal behavioral temporary threshold shift studies, 
behaviorally derived data are only available for two mid-frequency 
cetacean species (bottlenose dolphin, beluga) and two phocids (in-
water) pinniped species (harbor seal and northern elephant seal), with 
otariid (in-water) pinnipeds and high-frequency cetaceans only having 
behaviorally-derived data from one species. Arguments from Wright 
(2015) regarding pseudoreplication within the TTS data are therefore 
largely irrelevant in a practical sense because there are so few data. 
Multiple data points were not included for the same individual at a 
single frequency. If multiple data existed at one frequency, the lowest 
TTS onset was always used. There is only a single frequency where TTS 
onset data exist for two individuals of the same species: 3 kHz for 
dolphins. Their TTS (unweighted) onset values were 193 and 194 dB re 1 
[mu]Pa\2\s. Thus, NMFS believes that the current approach makes the 
best use of the given data. Appropriate means of reducing 
pseudoreplication may be considered in the future, if more data become 
available. Many other comments from Wright (2015) and the comments from 
Racca et al. (2015b) appear to be erroneously based on the idea that 
the shapes of the auditory weighting functions and TTS/PTS exposure 
thresholds are directly related to the audiograms; i.e., that changes 
to the composite audiograms would directly influence the TTS/PTS 
exposure functions (e.g., Wright (2015) describes weighting functions 
as ``effectively the mirror image of an audiogram'' (p. 2) and states, 
``The underlying goal was to estimate how much a sound level needs to 
be above hearing threshold to induce TTS.'' (p. 3)). Both statements 
are incorrect and suggest a fundamental misunderstanding of the 
criteria/threshold derivation. This would require a constant 
(frequency-independent) relationship between hearing threshold and TTS 
onset that is not reflected in the actual marine mammal TTS data. 
Attempts to create a ``cautionary'' outcome by artificially lowering 
the composite audiogram thresholds would not necessarily result in 
lower TTS/PTS exposure levels, since the exposure functions are to a 
large extent based on applying mathematical functions to fit the 
existing TTS data.
Behavioral Harassment Thresholds
    Comment 6: A Commenter suggests that NMFS fails to set proper 
thresholds for behavioral impacts. Referencing the biphasic function 
that assumes an unmediated dose response relationship at higher 
received levels and a context-influenced response at lower received 
levels that NMFS uses to quantify Level B behavioral harassment from 
sonar, the Commenter suggests that resulting functions depend on some 
inappropriate assumptions that tend to significantly underestimate 
effects. The Commenter expresses concern that every data point that 
informs the agency's pinniped function, and nearly two-thirds of the 
data points informing the odontocete function (30/49), are derived from 
a captive animal study. Additionally, they assert that the risk 
functions do not incorporate (nor does NMFS apparently consider) a 
number of relevant studies on wild marine mammals. It is not clear from 
the proposed rule, or from the Navy's recent technical report on 
acoustic ``criteria and thresholds,'' on which NMFS' approach here is 
based, exactly how each of the studies that NMFS employed was applied 
in the analysis, or how the functions were fitted to the data, but the 
available evidence on behavioral response raises concerns that the 
functions are not conservative for some species. The Commenter 
recommends NMFS make additional technical information available, 
including from any expert elicitation and peer review, so that the 
public can fully comment.
    Response: The Criteria and Thresholds for U.S. Navy Acoustic and 
Explosive Impacts to Marine Mammals and Sea Turtles technical report 
(U.S. Department of the Navy, 2017) details how the Navy's proposed 
method, which was determined appropriate and adopted by NMFS, accounted 
for the differences in captive and wild animals in the development of 
the behavioral response functions. The Navy uses the best available 
science, which has been reviewed by external scientists and approved by 
NMFS, in the analysis. The Navy and NMFS have utilized all available 
data that relate known or estimable received levels to observations of 
individual or group behavior as a result of sonar exposure (which is 
needed to inform the behavioral response function) for the development 
of updated thresholds. Limiting the data to the small number of field 
studies that include these necessary data would not provide enough data 
with which to develop the new risk functions. In addition, NMFS agrees 
with the assumptions made by the Navy to include the fact that captive 
animals may be less sensitive, in that the scale at which a moderate to 
severe response was considered to have occurred is different for 
captive animals than for wild animals, as the agency understands those 
responses will be different.
    The new risk functions were developed in 2016, before several 
recent papers were published or the data were available. As new science 
is published, the NMFS and the Navy continue to evaluate the 
information. The thresholds have been rigorously vetted among 
scientists and within the Navy community during expert elicitation and 
then reviewed by the public before being applied. It is unreasonable to 
revise and update the criteria and risk functions every time a new 
paper is published. These new and future papers provide additional 
information, and the Navy has already begun to consult them for updates 
to the thresholds in the future, when the next round of updated 
criteria will be developed. Thus far, no

[[Page 57112]]

new information has been published or otherwise conveyed that would 
fundamentally change the assessment of impacts or conclusions of the 
AFTT FEIS/OEIS or this rule. To be included in the behavioral response 
function, data sets need to relate known or estimable received levels 
to observations of individual or group behavior. Melcon et al. (2012) 
does not relate observations of individual/group behavior to known or 
estimable received levels (at that individual/group). In Melcon et al. 
(2012), received levels at the HARP buoy averaged over many hours are 
related to probabilities of D-calls, but the received level at the blue 
whale individuals/group are unknown.
    As noted, the derivation of the behavioral response functions is 
provided in the 2017 technical report titled Criteria and Thresholds 
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). The 
appendices to this report detail the specific data points used to 
generate the behavioral response functions. Data points come from 
published data that is readily available and cited within the technical 
report.
    Comment 7: Commenters have concerns with the use of distance ``cut-
offs'' in the Level B behavioral harassment thresholds, and the 
recommend that NMFS refrain from using cut-off distances in conjunction 
with the Bayesian BRFs and re-estimate the numbers of marine mammal 
takes based solely on the Bayesian BRFs.
    Response: The consideration of proximity (cut-off distances) was 
part of the criteria developed in consultation between Navy and NMFS 
and was applied within the Navy's acoustic effects model. Cut-off 
distances were used to better reflect the take potential for military 
readiness activities as defined in the MMPA. The derivation of the 
behavioral response functions and associated cut-off distances is 
provided in the 2017 technical report titled Criteria and Thresholds 
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). Much 
of the data used to derive the behavioral response functions was from 
nearby, scaled sources, thereby potentially confounding results since 
it is difficult to tell whether the focal marine mammal is reacting to 
the sound level or the proximity of the source and/or vessel, amongst 
other potentially confounding contextual factors that are unlike actual 
Navy events for which the behavioral response functions (BRFs) are 
being derived. To account for these non-applicable contextual factors, 
all available data on marine mammal reactions to actual Navy activities 
and other sound sources (or other large scale activities such as 
seismic surveys when information on proximity to sonar sources is not 
available for a given species group, i.e., harbor porpoises) were 
reviewed to find the farthest distance to which significant behavioral 
reactions were observed. These distances were rounded up to the nearest 
5 or 10 km interval, and for moderate to large scale activities using 
multiple or louder sonar sources, these distances were greatly 
increased -- doubled in most cases. The Navy's BRFs applied within 
these distance is currently the best known method for providing the 
public and regulators with a more realistic (but still conservative 
where some uncertainties exist) estimate of impact and potential take 
under military readiness for the proposed actions within the AFTT FEIS/
OEIS. NMFS has independently assessed the Navy's Level B behavioral 
harassment thresholds and believe that they appropriately apply the 
best available science and it is not necessary to recalculate take 
estimates.
    A Commenter also specifically expresses concern that distance 
``cut-offs'' alleviate some of the exposures that would otherwise have 
been counted if the received level alone were considered. It is unclear 
why the Commenter finds this inherently inappropriate, as this is what 
the data show. As noted previously, there are multiple studies 
illustrating that in situations where one would expect a Level B 
behavioral harassment because of the received levels at which previous 
responses were observed, it has not occurred when the distance from the 
source was larger than the distance of the first observed response.
    Comment 8: Regarding cut-off distances, a Commenter further notes 
that dipping sonar appears a significant predictor of deep-dive rates 
in beaked whales on Southern California Anti-submarine Warfare Range 
(SOAR), with the dive rate falling significantly (e.g., to 35 percent 
of that individual's control rate) during sonar exposure, and likewise 
appears associated with habitat abandonment. Importantly, these effects 
were observed at substantially greater distances (e.g., 30 or more km) 
from dipping sonar than would otherwise be expected given the systems' 
source levels and the beaked whale response thresholds developed from 
research on hull-mounted sonar. They suggest that the analysis, and 
associated cut-off distances, do not properly consider the impacts of 
dipping sonar.
    Response: The Navy relied upon the best science that was available 
to develop the behavioral response functions in consultation with NMFS. 
The Navy's current beaked whale BRF acknowledges and incorporates the 
increased sensitivity observed in beaked whales during both behavioral 
response studies and during actual Navy training events, as well as the 
fact that dipping sonar can have greater effects than some other 
sources with the same source level. Specifically, the distance cut-off 
for beaked whales is 50 km, larger than any other group. Moreover, 
although dipping sonar has a significantly lower source level than 
hull-mounted sonar, it is included in the category of sources with 
larger distance cut-offs, specifically in acknowledgement of its 
unpredictability and association with observed effects. This means that 
``takes'' are reflected at lower received levels that would have been 
excluded because of the distance for other source types. The referenced 
article (Associating patterns in movement and diving behavior with 
sonar use during military training exercises: A case study using 
satellite tag data from Cuvier's beaked whales at the Southern 
California Anti-submarine Warfare Range (Falcone, 2015)) was not 
available at the time the behavioral response functions were developed. 
However, NMFS and the Navy have reviewed the article and concur that 
neither this article nor any other new information that has been 
published or otherwise conveyed would significantly change the 
assessment of impacts or conclusions in the AFTT FEIS/OEIS or in this 
rulemaking. Nonetheless, the new information and data presented in the 
new article were recently thoroughly reviewed by the Navy and will be 
quantitatively incorporated into future behavioral response functions, 
as appropriate.
    Comment 9: Regarding the behavioral thresholds for explosives, a 
Commenter recommends that NMFS estimate and ultimately authorize 
behavior takes of marine mammals during all explosive activities, 
including those that involve single detonations.
    Response: The derivation of the explosive injury criteria is 
provided in the 2017 technical report titled Criteria and Thresholds 
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III), and 
NMFS has applied the general rule the Commenter references to single 
explosives for years, i.e., that marine mammals are unlikely to respond 
to a single instantaneous detonation in a manner that would rise to the 
level of a take. Neither NMFS nor the Navy are aware of evidence to 
support the assertion that animals will have significant behavioral 
reactions (i.e., those that would rise to the level of a take) to 
temporally and spatially

[[Page 57113]]

isolated explosions. The Navy has been monitoring detonations since the 
1990's and has not observed these types of reactions. TTS and all other 
higher order impacts are assessed for all training and testing events 
that involve the use of explosives or explosive ordnance. All of Navy's 
monitoring projects, reports, and publications are available on the 
marine species monitoring web page (https://www.navymarinespeciesmonitoring.us/). NMFS will continue to review 
applicable monitoring and science data and consider modifying these 
criteria when and if new information suggests it is appropriate.
Mortality and Injury Thresholds for Explosions
    Comment 10: A Commenter recommends that NMFS require the Navy to 
(1) explain why the constants and exponents for onset mortality and 
onset slight lung injury thresholds for Phase III have been amended, 
(2) ensure that the modified equations are correct, and (3) specify any 
additional assumptions that were made.
    Response: The derivation of the explosive injury equations, 
including any assumptions, is provided in the 2017 technical report 
titled Criteria and Thresholds for U.S. Navy Acoustic and Explosive 
Effects Analysis (Phase III). It is our understanding that the 
constants and exponents for onset mortality and onset slight lung 
injury were amended by the Navy since Phase II to better account for 
the best available science. Specifically, the equations were modified 
in Phase III to fully incorporate the injury model in Goertner (1982), 
specifically to include lung compression with depth. The derivation of 
the Phase III equations and all associated assumptions are fully 
documented in the Navy's 2017 technical report Criteria and Thresholds 
for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III). NMFS 
independently reviewed and concurred with this approach.
    Comment 11: A Commenter commented on circumstances of the deaths of 
multiple common dolphins during one of the Navy's underwater detonation 
events in March 2011 (Danil and St. Leger 2011) and indicated that the 
Navy's mitigation measures are not fully effective, especially for 
explosive activities. The Commenter believes it would be more prudent 
for the Navy to estimate injuries and mortalities based on onset rather 
than a 50-percent incidence of occurrence. The Navy did indicate that 
it is reasonable to assume for its impact analysis--thus its take 
estimation process--that extensive lung hemorrhage is a level of injury 
that would result in mortality for a wild animal (U.S. Department of 
the Navy 2017a). Thus, the Commenters notes that it is unclear why the 
Navy did not follow through with that premise. The Commenter recommends 
that NMFS use onset mortality, onset slight lung injury, and onset GI 
tract injury thresholds to estimate both the numbers of marine mammal 
takes and the respective ranges to effect.
    Response: Based on an extensive review of the incident referred to 
by the commenter, the Navy, in consultation with NMFS, revised and 
updated the mitigation for these types of events, which did not 
previously include consideration of the distance an animal could travel 
while the detonation was ``delayed.'' There have been no further 
incidents since these mitigation changes were instituted.
    The Navy used the range to one percent risk of mortality, as well 
as injury (referred to as ``onset'' in the AFTT DEIS/OEIS), to inform 
the development of mitigation ranges for explosions. In all cases, the 
proposed mitigation ranges for explosives extend beyond the range to 
one percent risk of non-auditory injury, even for a small animal 
(representative mass = 5 kg). In the AFTT FEIS/OEIS, the Navy clarified 
that the ``onset'' non-auditory injury and mortality criteria are 
actually one percent risk criteria.
    Over-predicting impacts, which would occur with the use of one 
percent non-auditory injury risk criteria in the quantitative analysis, 
would not afford extra protection to any animal. The Navy, in 
coordination with NMFS, has determined that the 50 percent incidence of 
occurrence is a reasonable mechanism for quantifying the likely effect, 
given the use of mitigation zones based on onset. Ranges to effect 
based on one percent risk criteria were examined to ensure that 
explosive mitigation zones would encompass the range to any potential 
mortality or non-auditory injury, affording actual protection against 
these effects. NMFS concurs with the Navy's approach for mitigating and 
quantifying injury and mortality from explosives.
    Although the commenter implies that the Navy did not use extensive 
lung hemorrhage as indicative of mortality, that statement is 
incorrect. Extensive lung hemorrhage is assumed to result in mortality, 
and the explosive mortality criteria are based on extensive lung injury 
data. See the technical report titled Criteria and Thresholds for U.S. 
Navy Acoustic and Explosive Effects Analysis (Phase III).
Range to Effects
    Comment 12: A Commenter notes an apparent error in Table 6.4-3 of 
the Navy's rulemaking/LOA application and recommends that NMFS 
determine what the appropriate ranges to TTS should be for bin LF5 and 
amend the ranges for the various functional hearing groups in the 
various tables accordingly.
    Response: The error in the table has been fixed; specifically, the 
ranges for MF cetaceans have been revised. Note that the distances are 
shorter than initially provided in proposed rule, indicating that the 
impacts of exposure to this bin are fewer than initially implied by the 
table. Regardless, the error was only associated with the information 
presented in this table; there was no associated error in any distances 
used in the take estimation, and both the take estimates and our 
findings remain the same.
    Comment 13: A Commenter recommends that the Navy use its spatially 
and temporally dynamic simulation models (e.g., randomly-generated 
munition trajectories and animat simulations) rather than simple 
probability calculations to estimate strike probabilities and number of 
takes from expended munitions and non-explosive materials.
    Response: The recommendation of the Commenter to use a dynamic 
simulation model to estimate expended munitions and non-explosive 
materials strike probability was considered, but the Navy found, and 
NMFS agrees, that while the current analysis used in the AFTT FEIS/OEIS 
is more conservative and almost certainly over-estimates the potential 
impacts to marine mammals, it was preferable given the uncertainty 
involved in the prediction. An analysis of direct strike resulting from 
expended materials conducted in a dynamic simulation model such as 
NAEMO would also be a probability analysis; however, it would be 
conducted in a different manner. The current analysis provides an over-
estimation of the probability of a strike for the following reasons: It 
(1) calculates the probability of a single military item (of all the 
items expended over the course of the year) hitting a single animal at 
its species' highest seasonal density; (2) does not take into account 
the possibility that an animal may avoid military activities; (3) does 
not take into account the possibility that an animal may not be at the 
water surface; (4) does not take into account that most projectiles 
fired during training and testing activities are fired at targets, and 
not all projectiles would hit the water with their maximum velocity and 
force; and (5)

[[Page 57114]]

does not quantitatively take into account the Navy avoiding animals 
that are sighted through the implementation of mitigation measures. 
Given the uncertainty, and in order to be more conservative, NMFS and 
the Navy will continue using this method.
Mitigation and Avoidance Calculations
    Comment 14: Commenters cite concerns that there was not enough 
information by which to evaluate the Navy's post-modeling calculations 
to account for mitigation and avoidance and imply that Level A 
harassment takes and mortality takes may be underestimated. A Commenter 
recommends that the Navy (1) provide the total numbers of model-
estimated Level A harassment (PTS and slight lung and GI injuries) and 
mortality takes rather than reduce the estimated numbers of takes based 
on the Navy's post-model analyses and (2) include the model-estimated 
Level A harassment and mortality takes in its rulemaking/application to 
inform NMFS' negligible impact determination analyses.
    Response: The consideration of marine mammal avoidance and 
mitigation effectiveness is integral to the Navy's overall analysis of 
impacts from sonar and explosive sources. NMFS has independently 
evaluated the method and agrees that it is appropriately applied to 
augment the model in the prediction and authorization of injury and 
mortality as described in the rule. Details of this analysis are 
provided in the Navy's 2018 technical report titled Quantifying 
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and 
Analytical Approach for Phase III Training and Testing.
    Sound levels diminish quickly below levels that could cause PTS. 
Studies have shown that all animals observed avoid areas well beyond 
these zones; therefore, the vast majority of animals are likely to 
avoid sound levels that could cause injury to their ear. As discussed 
in the Navy's 2018 technical report titled Quantifying Acoustic Impacts 
on Marine Mammals and Sea Turtles: Methods and Analytical Approach for 
Phase III Training and Testing, animats in the Navy's acoustic effects 
model do not move horizontally or ``react'' to sound in any way. The 
current best available science based on a growing body of behavioral 
response research shows that animals do in fact avoid the immediate 
area around sound sources to a distance of a few hundred meters or more 
depending upon the species. Avoidance to this distance greatly reduces 
the likelihood of impacts to hearing such as TTS and PTS.
    Specifically, behavioral response literature, including the recent 
3S and SOCAL BRS studies, indicate that the multiple species from 
different cetacean suborders do in fact avoid approaching sound sources 
by a few hundred meters or more, which would reduce received sound 
levels for individual marine mammals to levels below those that could 
cause PTS. The ranges to PTS for most marine mammal groups are within a 
few tens of meters and the ranges for the most sensitive group, the HF 
cetaceans, average about 200 m, to a maximum of 270 m in limited cases; 
however HF cetaceans such as harbor porpoises, have been observed 
reacting to anthropogenic sound at greater distances than other species 
and are likely to avoid their zones to hearing impacts (TTS and PTS) as 
well.
    As discussed in the Navy's 2018 technical report titled Quantifying 
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and 
Analytical Approach for Phase III Training and Testing, the Navy's 
acoustic effects model does not consider procedural mitigations (i.e., 
power-down or shut-down of sonars, or pausing explosive activities when 
animals are detected in specific zones adjacent to the source), which 
necessitates consideration of these factors in the Navy's overall 
acoustic analysis. Credit taken for mitigation effectiveness is 
extremely conservative. For example, if Lookouts can see the whole 
area, they get credit for it in the calculation; if they can see more 
than half the area, they get half credit; if they can see less than 
half the area, they get no credit. Not considering animal avoidance and 
mitigation effectiveness would lead to a great overestimate of 
injurious impacts. NMFS concurs with the analytical approach used.
    Last, the Navy's 2018 technical report titled Quantifying Acoustic 
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical 
Approach for Phase III Training and Testing very clearly explains in 
detail how species sightability, the Lookout's ability to observe the 
range to PTS (for sonar and other transducers) and mortality (for 
explosives), the portion of time when mitigation could potentially be 
conducted during periods of reduced daytime visibility (to include 
inclement weather and high sea state) and the portion of time when 
mitigation could potentially be conducted at night, and the ability for 
sound sources to be positively controlled (powered down) are considered 
in the post-modeling calculation to account for mitigation and 
avoidance. It is not necessary to view the many tables of numbers 
generated in the assessment to evaluate the method.
    Comment 15: A Commenter stated in regards to the method in which 
the Navy's post-model calculation considers avoidance specifically 
(i.e., assuming animals present beyond the range of PTS for the first 
few pings will be able to avoid it and incur only TTS), given that 
sound sources are moving, it may not be until later in an exercise that 
the animal is close enough to experience PTS, and it is those few close 
pings that contribute to the potential to experience PTS. An animal 
being beyond the PTS zone initially has no bearing on whether it will 
come within close range later during an exercise since both sources and 
animals are moving. In addition, Navy vessels may move faster than the 
ability of the animals to evacuate the area. The Navy should have been 
able to query the dosimeters of the animats to verify whether its five-
percent assumption was valid.
    Response: The consideration of marine mammals avoiding the area 
immediately around the sound source is provided in the Navy's 2018 
technical report titled Quantitative Analysis for Estimating Acoustic 
and Explosive Impacts to Marine Mammals and Sea Turtles. As the 
Commenter correctly articulates: ``For avoidance, the Navy assumed that 
animals present beyond the range to onset PTS for the first three to 
four pings are assumed to avoid any additional exposures at levels that 
could cause PTS. That equated to approximately five percent of the 
total pings or 5 percent of the overall time active; therefore, 95 
percent of marine mammals predicted to experience PTS due to sonar and 
other transducers were instead assumed to experience TTS.'' In regard 
to the comment about vessels moving faster than animals' ability to get 
out of the way, as discussed in the Navy's 2018 technical report titled 
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to 
Marine Mammals and Sea Turtles, animats in the Navy's acoustic effects 
model do not move horizontally or ``react'' to sound in any way, 
necessitating the additional step of considering animal avoidance of 
close-in PTS zones. NMFS independently reviewed this approach and 
concurs that it is fully supported by the best available science. Based 
on a growing body of behavioral response research, animals do in fact 
avoid the immediate area around sound sources to a distance of a few 
hundred meters or more depending upon the species. Avoidance to this 
distance greatly reduces the likelihood of impacts to hearing such as 
TTS and PTS, respectively. Specifically,

[[Page 57115]]

the ranges to PTS for most marine mammal groups are within a few tens 
of meters and the ranges for the most sensitive group, the HF 
cetaceans, average about 200 m, to a maximum of 270 m in limited cases; 
however HF cetaceans such as harbor porpoises have been observed 
reacting to anthropogenic sound at greater distances than other species 
and are likely to avoid their zones to hearing impacts (TTS and PTS) as 
well. Querying the dosimeters of the animats would not produce useful 
information since, as discussed previously, the animats do not move in 
the horizontal and are not programmed to ``react'' to sound or any 
other stimulus.
    Comment 16: A Commenter asserted that the Navy's adjustment of 
injury and mortality numbers for ``mitigation effectiveness'' is also 
problematic. The analysis starts with species-specific g(0) factors 
(probability of detection of animals at zero distance) applied in 
professional marine mammal abundance surveys, then multiplies them by a 
simple factor to reflect the relative effectiveness of the Navy's 
Lookouts in routine operating conditions. Yet the Navy's sighting 
effectiveness is likely to be much poorer than that of experienced 
biologists dedicated exclusively to marine mammal detection, operating 
under conditions that maximize sightings. As one recent paper observed, 
for example, abundance survey rates declined significantly as sea 
states rose above Beaufort 1, and average Beaufort sea states in the 
mid- and southeast Atlantic average Beaufort 3-4 throughout the year 
(see Table 1). Given this, it seems that Navy visual surveys can seldom 
approximate the sighting effectiveness of a large-vessel abundance 
survey.
    Response: Information about the quantitative analysis process, 
including the consideration of mitigation effectiveness, is described 
in detail in the 2018 technical report titled Quantifying Acoustic 
Impacts on Marine Mammals and Sea Turtles: Methods and Analytical 
Approach for Phase III Training and Testing. The Navy quantitatively 
assessed the effectiveness of its mitigation measures on a per-scenario 
basis using four factors: (1) Species sightability, (2) a Lookout's 
ability to observe the range to permanent threshold shift (for sonar 
and other transducers) and range to mortality (for explosives), (3) the 
portion of time when mitigation could potentially be conducted during 
periods of reduced daytime visibility (to include inclement weather and 
high sea-state) and the portion of time when mitigation could 
potentially be conducted at night, and (4) the ability for sound 
sources to be positively controlled (e.g., powered down). The g(0) 
values used by the Navy for their mitigation effectiveness adjustments 
take into account the differences in sightability with sea state, and 
utilize averaged g(0) values for sea states of 1-4 and weighted as 
suggested by Barlow (2015). This helps to account for reduced 
sightability in varying conditions, as does the fact that, during 
active sonar activities, Navy Lookouts tend to look in the water near 
the vessel, within 1 km, rather than out to the horizon as Marine 
Mammal Observers (MMO) do. During training and testing activities, 
there is typically at least one, if not numerous, support personnel 
involved in the activity (e.g., range support personnel aboard a 
torpedo retrieval boat or support aircraft). In addition to the Lookout 
posted for the purpose of mitigation, these additional personnel 
observe for and disseminate marine species sighting information amongst 
the units participating in the activity whenever possible as they 
conduct their primary mission responsibilities. However, as a 
conservative approach to assigning mitigation effectiveness factors, 
the Navy elected to account only for the minimum number of required 
Lookouts used for each activity; therefore, the mitigation 
effectiveness factors may underestimate the likelihood that some marine 
mammals (as well as sea turtles) may be detected during activities that 
are supported by additional personnel who may also be observing the 
mitigation zone. NMFS independently reviewed and concurs with this 
analysis.
    Comment 17: A Commenter comments on the potential for serious 
injury and mortality that could occur in the event of a ship strike or 
as a result of marine mammal exposure to explosive detonations (ship 
shock trials) and suggests that NMFS' prediction that only these few 
takes will result from Navy's thousands of hours of training and 
testing activities has misrepresented the science. Specifically, the 
Commenter discusses the risk of ship strike to NARW and suggested that 
it appears as a glaring omission from the list of species authorized 
for lethal take. While the Commenter concurred with NMFS' refusal to 
authorize a single ship strike to the NARW, they do not share the 
agency's level of confidence that the Navy will be able to effectively 
mitigate the potential for a ship strike to occur. They further suggest 
that NMFS has failed to consider the indirect effects of noise on ship-
strike risk. They also assert that indirect ship strike risk resulting 
from habitat displacement must be accounted for in NMFS' analysis. The 
Commenter recommends additional mitigation measures slowing ships to 10 
kn.
    Response: As described in greater detail in the Take from Vessel 
Strikes section of the final rule, although NMFS' analysis shows that 
NARWs have a low probability of being struck even one time within the 
five-year period of the rule when strikes across all activity types 
(including non-Navy) are considered (10.11 percent, lower than all 
other stocks except North Atlantic sperm whales), when the enhanced 
mitigation measures the Navy will implement for NARWs are considered in 
combination with this low probability, the Navy and NMFS have 
determined that a vessel strike is highly unlikely and, therefore, it 
was not requested and is not authorized.
    In addition to procedural mitigation, the Navy will limit MTEs and 
implement additional protective measures in mitigation areas used by 
NARW for foraging, calving, and migration (where individuals are 
concentrated and more likely to be struck). These measures, which go 
above and beyond those focused on other species (e.g., funding of and 
communication with sightings systems, implementation of speed 
reductions during applicable circumstances in certain areas) have 
helped the Navy avoid striking a NARW during training and testing 
activities in the past; and eliminate the potential for future strikes 
to occur in the five years of the rule. In particular, the mitigation 
pertaining to communication among vessels, including the continued 
participation in and sponsoring of the Early Warning System (EWS, a 
comprehensive information exchange network dedicated to reducing the 
risk of vessel strikes to NARW in the Southeast) and NOAA's NARW 
Sighting Advisory System in the Northeast, will help Navy vessels avoid 
NARW during transits and training and testing activities.
    Implementation of these measures is expected to significantly 
reduce the probability of striking this particular species during the 
five-year period of the rule. Further, the Navy has agreed to expand 
the requirement for Navy vessels to contact the EWS from just the NARW 
ESA-designated critical habitat to the entire Jacksonville OPAREA. 
Additionally the Navy has developed a new mitigation measure to 
broadcast Dynamic Management Area information based on potential 
changes in NARW distribution. Platforms will use Dynamic Management 
Area information to assist their visual observation of

[[Page 57116]]

applicable mitigation zones during training and testing activities. 
This will make units even more aware of NARW aggregations to better 
plan and conduct activities to minimize interactions with this species. 
Not only will this mitigation measure help the Navy further avoid or 
reduce potential impacts on NARW from vessel movements, it will also 
help aid the implementation of applicable procedural mitigation 
measures for acoustic, explosive, and physical disturbance and strike 
stressors when Dynamic Management Areas are in effect.
    Ship strikes are a fluke encounter for which the probability can 
never be zero for any vessel. However, the probability for any 
particular ship striking a marine mammal is primarily a product of the 
ability of the ship to detect a marine mammal and the ability to 
effectively act to avoid it. Navy combat ships are inherently among the 
best at both of these abilities because compared to large commercial 
vessels, they have trained Lookouts which have received specialized MMO 
training and the most maneuverable ships, which means that they are 
more likely to sight a marine mammal and more likely to be able to 
maneuver to avoid it in the available time--both of which decrease the 
probability of striking a marine mammal below what it would have been 
in the absence of those abilities. In the case of the NARW, the 
extensive communication/detection network described above, which is in 
use in the areas of highest NARW occurrence and where they may be more 
susceptible to strike, further increases the likelihood of detecting a 
NARW and thereby avoiding it, which further reduces the probability of 
NARW strike. Because of these additional mitigation measures combined 
with the already low probability that a NARW will be struck, it is 
extremely unlikely the Navy will strike a NARW and mortality/serious 
injury of a NARW from vessel strike is neither anticipated nor 
authorized. Regarding the likelihood of mortality from explosives, the 
Commenter does not offer any data or rationale to support the assertion 
that NMFS has underestimated the mortality from explosives. The 
analysis and estimates contained in the final rule are based on the 
best available science and accurately represent the appropriate take 
numbers for mortality and injury from explosives.
Underestimated Beaked Whale Injury and Mortality
    Comment 18: A Commenter claims that NMFS is underestimating serious 
injury and mortality for beaked whales. They note the statement in the 
proposed rule that because a causal relationship between Navy MFAS use 
and beaked whale strandings has not been established in all instances, 
and that, in some cases, sonar was considered to be only one of several 
factors that, in aggregate, may have contributed to the stranding 
event, NMFS does ``not expect strandings, serious injury, or mortality 
of beaked whales to occur as a result of training activities.'' (83 FR 
11084). This opinion is inconsistent with best available science and 
does not take into account the fact that the leading explanation for 
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--has now been supported by numerous papers. At 
the same time, the commenter argues that NMFS fails to seriously 
acknowledge that sonar can seriously injure or kill marine mammals at 
distances well beyond those established for permanent hearing loss (83 
FR 10999) and dismisses the risk of stranding and other mortality 
events (83 FR 11084) based on the argument that such effects can 
transpire only under the same set of circumstances that occurred during 
known sonar-related events--an assumption that is arbitrary and 
capricious. In conclusion, they argue that none of NMFS' assumptions 
regarding the expected lack of serious injury and mortality for beaked 
whales are supported by the record, and all lead to an underestimation 
of impacts.
    Response: The Commenter's characterization of NMFS' analysis is 
incorrect. NMFS does not disregard the fact that it is possible for 
naval activities using hull-mounted tactical sonar to contribute to the 
death of marine mammals in certain circumstances (that are not present 
in the AFTT Study Area) via strandings resulting from behaviorally 
mediated physiological impacts or other gas-related injuries. NMFS 
discusses these potential causes and outlines the few cases where 
active naval sonar (in the U.S. or, largely, elsewhere) has either 
potentially contributed to or (as with the Bahamas example) been more 
definitively causally linked with marine mammal strandings. As noted, 
there are a suite of factors that have been associated with these 
specific cases of strandings directly associated with sonar (steep 
bathymetry, multiple hull-mounted platforms using sonar simultaneously, 
constricted channels, strong surface ducts, etc.) that are not present 
together in the AFTT Study Area and during the specified activities 
(and which the Navy takes care across the world not to operate under 
without additional monitoring). Further, there have never been any 
strandings associated with Navy sonar use in the AFTT Study Area. For 
these reasons, NMFS does not anticipate that the Navy's AFTT training 
or testing activities will result in marine mammal strandings, and none 
are authorized.
Ship Strike
    Comment 19: A Commenter asserted that the Navy's analysis, which 
NMFS used to support its vessel-strike analysis in the rule, does not 
address the potential for increased strike risk by non-Navy vessels as 
a consequence of acoustic disturbance. For example, some types of 
anthropogenic noise have been shown to induce near-surfacing behavior 
in NARW, increasing the risk of ship-strike at relatively moderate 
levels of exposure. An analysis based on reported strikes by Navy 
vessels does not account for this additional risk. In assessing ship-
strike risk, the Navy should include offsets to account for potentially 
undetected and unreported collisions.
    Response: There is no evidence that Navy training and testing 
activities (or other acoustic activities) increase the risk of nearby 
non-Navy vessels (or other nearby Navy vessels not involved in the 
referenced training or testing) striking marine mammals. Further, any 
increase in the probability of hitting a NARW resulting from this 
speculated effect would already inherently be accounted for in the 
probability included in our analysis, which is based on the actual 
estimated number of NARW strikes (which accounts for unreported non-
Navy vessel strikes). Lastly, the anthropogenic noise signal referred 
to in the comment was developed specifically to elicit a response from 
NARWs. This type of signal is not analogous to any sound source used by 
Navy.
    Comment 20: A Commenter asserts that NMFS and the Navy's analyses 
fail to account for the likelihood that the number of ship strikes are 
grossly underestimated because some animals are struck and not 
recovered or reported.
    Response: While NMFS agrees that broadly speaking the number of 
total ship strikes may be underestimated due to incomplete information 
from other sectors (shipping, etc.), NMFS is confident that whales 
struck by Navy vessels are detected and reported, and Navy strikes are 
the numbers used in NMFS' analysis to support the authorized number of 
strikes. Navy ships have multiple Lookouts, including

[[Page 57117]]

on the forward part of the ship that can visually detect a hit whale 
(which has occasionally occurred), in the unlikely event ship personnel 
do not feel the strike. Navy's strict internal procedures and 
implementation of past mitigation measures require reporting of any 
vessel strikes of marine mammals and the Navy's discipline and chain of 
command give NMFS a high level of confidence that all strikes actually 
get reported. Accordingly, NMFS is confident that the information used 
to support the analysis is accurate and complete.

Mitigation and Monitoring

Least Practicable Adverse Impact Determination
    Comment 21: A Commenter comments that deaths of or serious injuries 
to marine mammals that occur pursuant to activities conducted under an 
incidental take authorization, while perhaps negligible to the overall 
health and productivity of the species or stock and of little 
consequence at that level, nevertheless are clearly adverse to the 
individuals involved and results in some quantifiable (though 
negligible) adverse impact on the population; it reduces the population 
to some degree. Under the least practicable adverse impact requirement, 
and more generally under the purposes and policies of the MMPA, the 
Commenter asserts that Congress embraced a policy to minimize, whenever 
practicable, the risk of killing or seriously injuring a marine mammal 
incidental to an activity subject to section 101(a)(5)(A), including 
providing measures in an authorization to eliminate or reduce the 
likelihood of lethal taking. The Commenter recommends that NMFS address 
this point explicitly in its analysis and clarify whether it agrees 
that the incidental serious injury or death of a marine mammal always 
should be considered an adverse impact for purposes of applying the 
least practicable adverse impact standard.
    Response: NMFS disagrees that it is necessary or helpful to 
explicitly address the point the Commenter raises in the general 
description of the LPAI standard. The discussion of this standard 
already notes that there can be population-level impacts that fall 
below the ``negligible'' standard, but that are still appropriate to 
mitigate under the LPAI standard. It is always NMFS' practice to 
mitigate mortality to the greatest degree possible, as death is the 
impact that is most easily linked to reducing the probability of 
adverse impacts to populations. However, we cannot agree that one 
mortality will always decrease any population in a quantifiable or 
meaningful way. For example, for very large populations, one mortality 
may fall well within typical known annual variation and not have any 
effect on population rates. Further, we do not understand the problem 
that the Commenter's recommendation is attempting to fix. Applicants 
generally do not express reluctance to mitigate mortality, and we 
believe that modifications of this nature would confuse the issue.
    Comment 22: A Commenter recommends that NMFS address the habitat 
component of the least practicable adverse impact provision in greater 
detail. It asserts that NMFS' discussion of ESA-designated critical 
habitat, marine sanctuaries, and BIAs in the proposed rule is not 
integrated with the discussion of the least practicable adverse impact 
standard. It would seem that, under the least practicable adverse 
impact provision, adverse impacts on important habitat should be 
avoided whenever practicable. Therefore, to the extent that activities 
would be allowed to proceed in these areas, NMFS should explain why it 
is not practicable to constrain them further.
    Response: Marine mammal habitat value is informed by marine mammal 
presence and use and, in some cases, there may be overlap in measures 
for the species or stock directly and for use of habitat. In this rule, 
we have identified time-area mitigations based on a combination of 
factors that include higher densities and observations of specific 
important behaviors of marine mammals themselves, but also that clearly 
reflect preferred habitat (e.g., feeding areas in the Northeast, NARW 
calving areas in the Southeast). In addition to being delineated based 
on physical features that drive habitat function (e.g., bathymetric 
features, among others for some BIAs), the high densities and 
concentration of certain important behaviors (e.g., feeding) in these 
particular areas clearly indicate the presence of preferred habitat. 
The Commenter seems to suggest that NMFS must always consider separate 
measures aimed at marine mammal habitat; however, the MMPA does not 
specify that effects to habitat must be mitigated in separate measures, 
and NMFS has clearly identified measures that provide significant 
reduction of impacts to both ``marine mammal species and stocks and 
their habitat,'' as required by the statute.
    Comment 23: A Commenter recommends that NMFS rework its evaluation 
criteria for applying the least practicable adverse impact standard to 
separate the factors used to determine whether a potential impact on 
marine mammals or their habitat is adverse and whether possible 
mitigation measures would be effective. In this regard, the Commenter 
asserts that it seems as though the proposed ``effectiveness'' 
criterion more appropriately fits as an element of practicability and 
should be addressed under that prong of the analysis. In other words, a 
measure not expected to be effective should not be considered a 
practicable means of reducing impacts.
    Response: In the Mitigation Measures section, NMFS has explained in 
detail our interpretation of the LPAI standard, the rationale for our 
interpretation, and our approach for implementing our interpretation. 
The ability of a measure to reduce effects on marine mammals is 
entirely related to its ``effectiveness'' as a measure, whereas the 
effectiveness of a measure is not connected to its practicability. The 
Commenter provides no support for its argument, and NMFS has not 
implemented the Commenter's suggestion.
    Comment 24: A Commenter recommends that NMFS recast its conclusions 
to provide sufficient detail as to why additional measures either are 
not needed (i.e., there are no remaining adverse impacts) or would not 
be practicable to implement. The Commenter states that the most 
concerning element of NMFS' implementation of the least practicable 
adverse impact standard is its suggestion that the mitigation measures 
proposed by the Navy will sufficiently reduce impacts on the affected 
mammal species and stocks and their habitats (83 FR 11045). That phrase 
suggests that NMFS is applying a ``good-enough'' standard to the Navy's 
activities. Under the statutory criteria, however, those proposed 
measures are ``sufficient'' only if they have either (1) eliminated all 
adverse impacts on marine mammal species and stocks and their habitat 
or (2) if adverse impacts remain, it is impracticable to reduce them 
further.
    Response: The statement that the Commenter references does not 
indicate that NMFS applies a ``good-enough'' standard to determining 
least practicable adverse impact. Rather, it indicates that the 
mitigation measures are sufficient to meet the statutory legal 
standard. In addition, as NMFS has explained in our description of the 
least practicable adverse impact standard, NMFS does not view the 
necessary analysis through the yes/no lens that the Commenter seeks to 
prescribe. Rather, NMFS' least practicable adverse impact analysis 
considers both the reduction of adverse effects and the practicability. 
Further, since the proposed rule was

[[Page 57118]]

published, the Navy and NMFS have evaluated additional measures in the 
context of both their practicability and their ability to further 
reduce impacts to marine mammals and have determined that the addition 
of several measures (see Mitigation Measures) is appropriate. 
Regardless, beyond these new additional measures, where the Navy's AFTT 
activities are concerned, the Navy has indicated that further 
procedural or area mitigation of any kind (beyond that prescribed in 
this final rule) would be entirely impracticable.
    Comment 25: A Commenter recommends that any ``formal 
interpretation'' of the least practicable adverse impact standard by 
NMFS be issued in a stand-alone, generally applicable rulemaking (e.g., 
in amendments to 50 CFR 216.103 or 216.105) or in a separate policy 
directive, rather than in the preambles to individual proposed rules.
    Response: We appreciate the Commenter's recommendation and may 
consider the recommended approaches in the future. We note, however, 
that providing relevant explanations in a proposed incidental take rule 
is an effective and efficient way to provide information to the reader 
and solicit focused input from the public, and ultimately affords the 
same opportunities for public comment as a stand-alone rulemaking 
would. NMFS has provided similar explanations of the least practicable 
adverse impact standard in other recent section 101(a)(5)(A) rules, 
including: U.S. Navy Operations of Surveillance Towed Array Sensor 
System Low Frequency Active (SURTASS LFA) Sonar; Geophysical Surveys 
Related to Oil and Gas Activities in the GOMEX; and the proposed rule 
for U.S. Navy Training and Testing in the Hawaii-Southern California 
Training and Testing (HSTT) Study Area.
    Comment 26: A Commenter cites two judicial decisions and comments 
that while there have been some improvements in mitigation relative to 
NMFS' 2013-2018 final rule for AFTT activities, the ``least practicable 
adverse impact'' standard has not been met. The Commenter asserts, for 
example, that if in prescribing protective measures in important 
habitat NMFS concludes after careful analysis that complete exclusion 
of unit-level sonar training from the area is not practicable, the 
agency should consider what reductions in activity are practicable, as 
by looking at particular types of exercises or testing activities or by 
limiting the amount of activity that can take place. The Commenter 
argues that the MMPA sets forth a ``stringent standard'' for mitigation 
that requires the agency to minimize impacts to the lowest practicable 
level, and that the agency must conduct its own analysis and clearly 
articulate it: it ``cannot just parrot what the Navy says.''
    Response: NMFS disagrees with much of what the Commenter asserts. 
When a suggested or recommended mitigation measure is impracticable, 
NMFS has explored variations of that mitigation to determine if a 
practicable form of related mitigation exists. This is clearly 
illustrated in NMFS' independent mitigation analysis process explained 
in this rule. First, the type of mitigation required varies by 
mitigation area, demonstrating that NMFS has engaged in a site-specific 
analysis to ensure mitigation is tailored only when practicability 
demands, i.e., some forms of mitigation were practicable in some areas 
but not others. Other examples of NMFS' analysis on this issue appear 
throughout the rule. For instance, while it was not practicable for the 
Navy to expand the SE NARW Mitigation Area to the full extent 
recommended, the Navy did agree to some expansion of the SE NARW 
Mitigation Area to provide better protection. Additionally, while the 
Navy cannot alleviate all training in the NE NARW Mitigation Area due 
to changes in requirements, Navy removed one impactful testing activity 
(four events) that reduced takes for NARW and other species 
significantly.
    Nonetheless, NMFS agrees that the agency must conduct its own 
analysis, which it has done here, and not just accept what is provided 
by the Navy. That does not mean, however, that NMFS cannot review the 
Navy's analysis of effectiveness and practicability, and concur with 
those aspects of the Navy's analysis with which NMFS agrees. The 
Commenter seems to suggest that NMFS must describe in the rule in 
detail the rationale for not adopting every conceivable permutation of 
mitigation, which is neither reasonable nor required by the MMPA. NMFS 
has described our well-reasoned process for identifying the measures 
needed to meet the LPAI standard in the Mitigation Measures section in 
this rule, and we have followed the approach described there when 
analyzing potential mitigation for the Navy's activities in the AFTT 
Study Area. Discussion regarding specific recommendations for 
mitigation measures provided by the Commenter on the proposed rule are 
discussed separately.
Procedural Mitigation Effectiveness and Recommendations
    Comment 27: A Commenter commented that the Phase III proposed 
mitigation zones would not protect various functional hearing groups 
from PTS. For example, the mitigation zone for an explosive sonobuoy is 
549 m but the mean PTS zones range from 2,205-3,324 m for HF cetaceans 
and 308-1,091 m for LF cetaceans. Similarly, the mitigation zone for an 
explosive torpedo is 1,920 m but the mean PTS zones range from 13,105-
14,627 m for HF cetaceans, 3,133-3,705 m for LF cetaceans, and 3,072-
3,232 for pinnipeds in water (PW). Mitigation effectiveness is further 
complicated when platforms fire munitions (e.g., for missiles and 
rockets) at targets 28 to 140 km away from the firing platform, as 
described in the AFTT DEIS/OEIS. An aircraft would clear the target 
area well before it positions itself at the launch location and 
launches the missile or rocket. Ships, on the other hand, do not clear 
the target area before launching the missile or rocket. In either case, 
marine mammals could be present in the target area at the time of the 
launch unbeknownst to the Navy.
    Response: NMFS is aware that some mitigation zones do not fully 
cover the area in which an animal from a certain hearing group may 
incur PTS. For this small subset of circumstances, NMFS discussed 
potential enlargement of the mitigation zones with the Navy but 
concurred with the Navy's assessment that further enlargement would be 
impracticable. Specifically, the Navy explained that explosive 
mitigation zones, as discussed in Chapter 5 of the AFTT FEIS/OEIS, any 
additional increases in mitigation zone size (beyond what is depicted 
for each explosive activity), or additional observation requirements 
would be impracticable to implement due to implications for safety, 
sustainability, the Navy's ability to meet Title 10 requirements to 
successfully accomplish military readiness objectives, and the Navy's 
ability to conduct testing associated with required acquisition 
milestones or as required on an as-needed basis to meet operational 
requirements. Additionally, Navy Senior Leadership has approved and 
determined that the mitigation detailed in Chapter 5 (Mitigation) of 
the AFTT FEIS/OEIS provides the greatest extent of protection that is 
practicable to implement. The absence of mitigation to avoid all Level 
A harassment in some of these circumstances has been analyzed, however, 
and the Navy is authorized for any of these Level A harassment takes 
that may occur.
    Comment 28: A Commenter believes that rather than simply reducing 
the size of the mitigation zones it plans to monitor, the Navy should 
supplement

[[Page 57119]]

its visual monitoring efforts with other monitoring measures. 
Specifically, the Commenter further suggests that sonobuoys could be 
deployed with the target in the various target areas prior to the 
activity for the Navy to better determine whether the target area is 
clear and remains clear until the munition is launched. The Commenter 
also suggests that the Navy's instrumented Undersea Warfare Training 
Range (USWTR) could be used for real-time mitigation and refers to 
Navy-cited improvements in the use of other ranges for monitoring. The 
Navy did propose to supplement visual monitoring with passive acoustic 
monitoring during three explosive activity types but not during the 
remaining explosive activities or during low-, mid-, and high-frequency 
active sonar activities. Further, the Commenter recommends that NMFS 
require the Navy to use passive and active acoustic monitoring, 
whenever practicable, to supplement visual monitoring during the 
implementation of its mitigation measures for all activities that could 
cause injury or mortality beyond those explosive activities for which 
passive acoustic monitoring already was proposed. This includes use of 
the instrumented USWTR in the coming years.
    Response: For explosive mitigation zones, as discussed in Chapter 5 
of the AFTT FEIS/OEIS, any additional increases in mitigation zone size 
(beyond what is depicted for each explosive activity) or observation 
requirements would be impracticable to implement due to implications 
for safety, sustainability, and the Navy's ability to meet Title 10 
requirements to successfully accomplish military readiness objectives. 
We do note, however, that since the proposed rule, the Navy has 
committed to implementing pre-event observations for all in-water 
explosives events (including some that were not previously monitored) 
and to using additional platforms if available in the vicinity of the 
detonation area to help with this monitoring.
    As discussed in the comment, the Navy does employ passive acoustic 
monitoring when practicable to do so (i.e., when assets that have 
passive acoustic monitoring capabilities are already participating in 
the activity). For other explosive events, there are no platforms 
participating that have passive acoustic monitoring capabilities. 
Adding a passive acoustic monitoring capability (either by adding a 
passive acoustic monitoring device to a platform already participating 
in the activity, or by adding a platform with integrated passive 
acoustic monitoring capabilities to the activity, such as a sonobuoy) 
for mitigation is not practicable. As discussed in Section 5.5.3 
(Active and Passive Acoustic Monitoring Devices) of the AFTT FEIS/OEIS, 
there are significant manpower and logistical constraints that make 
constructing and maintaining additional passive acoustic monitoring 
systems or platforms for each training and testing activity 
impracticable. Additionally, diverting platforms that have passive 
acoustic monitoring platforms would impact their ability to meet their 
Title 10 requirements and reduce the service life of those systems.
    Regarding the use of instrumented ranges such as USTWR for real-
time mitigation, the commenter is correct that the Navy continues to 
develop the technology and capabilities on their Ranges for use in 
marine mammal monitoring, which can be effectively compared to 
operational information after the fact to gain information regarding 
marine mammal response, and occasionally used to support small-scale 
real-time mitigation. However, as discussed above, the manpower and 
logistical complexity involved in detecting and localizing marine 
mammals in relation to multiple fast-moving sound source platforms in 
order to implement real-time mitigation is significant. USWTR is not 
scheduled to go active until late 2019 (half of USWTR); however, the 
Navy continues to explore mechanisms by which the Range will contribute 
to marine mammal mitigation and monitoring. Lastly, the mitigation 
zones for active sonar systems encompass the ranges to potential 
injury.
    Comment 29: A Commenter recommends that NMFS require the Navy to 
conduct additional pre-activity overflights before conducting any 
activities involving detonations barring any safety issues (e.g., low 
fuel), as well as post-activity monitoring for activities involving 
medium- and large caliber projectiles, missiles, rockets, and bombs.
    Response: The Navy has agreed to implement pre-event observation 
mitigation, as well as post-event observation, for all in-water 
explosive events. If there are other platforms participating in these 
events and in the vicinity of the detonation area, they will also 
visually observe this area as part of the mitigation team.
    Comment 30: A Commenter discusses that since 2010, the Navy has 
been collaborating with researchers at the University of St. Andrews to 
study Navy Lookout effectiveness. The Navy does not appear to have 
mentioned that study in its AFTT DEIS/OEIS for Phase III and NMFS did 
not discuss it in the rule. For its Phase II DEISs, the Navy noted that 
data collected in that study were insufficient to yield statistically 
significant results. Nevertheless, the Commenter continues to consider 
the basic information provided by the studies to be useful and cites 
several specific instances where MMOs sighted marine mammals that were 
not sighted by Navy Lookouts.
    Response: The Lookout effectiveness study that the Commenter 
references is still ongoing. This type of study has never been 
conducted, is extremely complex to ensure data validity, and requires a 
substantial amount of data to conduct meaningful statistical analysis. 
The Navy has stated that it is committed to completing it; however, as 
noted by the Commenter, there has not been enough data collected to 
conduct a sufficient analysis. Therefore drawing conclusions from an 
incomplete data set is not scientifically valid.
    Comment 31: A Commenter commented that NMFS should increase the 
exclusion zone to the 120 dB isopleth. Since some animals are sensitive 
to sonar at low levels of exposure, the exclusion zone should ensure 
lower exposure than 120 dB. Additionally, there should be buffer zones 
along the boundaries of the mitigation areas to ensure that the 
mitigation areas are not exposed to sources higher than the 120 dB.
    Response: First, it is important to note that the Commenter is 
suggesting that NMFS require mitigation that would eliminate all take, 
which is not what the applicable standard requires. Rather, NMFS is 
required to put in place measures that effect the ``least practicable 
adverse impact.'' Separately, NMFS acknowledges that some marine 
mammals may respond to sound at 120 dB in some circumstances; however, 
based on the best available data, only a subset of those exposed at 
that low level respond in a manner that would be considered harassment 
under the MMPA. NMFS and the Navy have quantified those individuals of 
certain stocks where appropriate, analyzed the impacts, and authorized 
them where needed. Further, NMFS and the Navy have identified exclusion 
zone sizes that are best suited to minimize impacts to marine mammal 
species and stocks and their habitat while also being practicable (see 
Mitigation Measures section of this rule). Buffer zones are addressed 
in Comment 50.
    Comment 32: A Commenter recommended NMFS impose a 10 kn ship speed 
in biologically important areas for marine mammals to reduce

[[Page 57120]]

vessel strikes and that NMFS should mandate that ship speed be reduced 
to a maximum of 10 kn in mitigation areas or in the presence of marine 
mammals to decrease the probability of strikes and decrease sound 
disturbance from engines.
    Response: This issue is addressed elsewhere in the Comments and 
Responses section and for specific mitigation areas, but we also 
reiterate here that the Navy has applied conditional ship-speed 
restrictions in the areas where it is practicable. However, generally 
speaking, it is impracticable (because of impacts to mission 
effectiveness) to further reduce ship speeds for Navy activities, and, 
moreover, given the maneuverability of Navy ships at higher speeds and 
effective Lookouts, any further reduction in speed would reduce the 
already low probability of ship strike little, if any.
Mitigation Areas
Introduction
    The Navy included a comprehensive proposal of mitigation measures 
in their initial application that included procedural mitigations that 
reduce the likelihood of mortality, injury, hearing impairment, and 
more severe behavioral responses for most species. The Navy also 
included time/area mitigation that further protects areas where 
important behaviors are conducted and/or sensitive species congregate, 
which reduces the likelihood of takes that are likely to impact 
reproduction or survival (as described in the Mitigation Measures 
section of the final rule and the Navy's application). As a general 
matter, where an applicant proposes measures that are likely to reduce 
impacts to marine mammals, the fact that they are included in the 
proposal and application indicates that the measures are practicable, 
and it is not necessary for NMFS to conduct a detailed analysis of the 
measures the applicant proposed (rather, they are simply included). 
However, it is necessary for NMFS to consider whether there are 
additional practicable measures that could also contribute to the 
reduction of adverse effects on the species or stocks through effects 
on annual rates of recruitment or survival. In the case of the Navy's 
application, NMFS raised potential additional mitigation measures for 
consideration, and discussion between the Navy and NMFS of the multiple 
factors considered in a least practicable adverse impact analysis 
resulted in the expansion of the SE NARW Mitigation Area by 500 mi\2\.
    During the public comment period on the proposed rule, NMFS 
received numerous recommendations for the Navy to implement additional 
mitigation measures, both procedural and time/area limitations. 
Extensive discussion of the recommended mitigation measures in the 
context of the factors considered in the least practicable adverse 
impact analysis (considered in the Mitigation Measures section of the 
final rule and described below), as well as considerations of alternate 
iterations or portions of the recommended measures considered to better 
address practicability concerns, resulted in the addition of several 
procedural mitigations and expansion of multiple time/area mitigations 
(see the Mitigation Measures section in the final rule). These 
additional areas reflect, for example, the concerning stock status of 
the NARW and Bryde's whales (which resulted in expanded time/area 
mitigation), focus on areas where important behaviors and habitat are 
found (which resulted in NARW mitigation areas expanded to better 
reflect ESA-designated critical habitat in the Southeast calving area 
and Northeast feeding areas), and enhancement of the Navy's ability to 
detect and reduce injury and mortality (which resulted in expanded 
monitoring before and after explosive events and movement of ship shock 
trials outside of Bryde's whale areas and the Mid-Atlantic Planning 
Awareness Mitigation Areas). Through extensive discussion, NMFS and the 
Navy worked to identify and prioritize additional mitigation measures 
that are likely to reduce impacts on marine mammal species or stocks 
and their habitat and are also possible for the Navy to implement. 
Ultimately, the Navy adopted all mitigation measures that are possible 
without jeopardizing their mission and Title 10 responsibilities. In 
other words, a comprehensive assessment by Navy leadership of the 
final, entire list of mitigation measures concluded that the inclusion 
of any further mitigation beyond those measures identified here in the 
final rule would be entirely impracticable. Below is additional 
discussion regarding specific recommendations for mitigation measures.
Mitigation Area Recommendations
    Comment 33: In several places in their comment letter, a Commenter 
recommends that the Navy use an approach similar to that of the 
settlement agreement in Conservation Council for Hawaii v. NMFS, 97 
F.Supp. 3d 1210 (D. Haw. 2015), which, while barring or restricting 
active sonar and explosives activities, reserved the Navy's authority 
to proceed regardless, provided that certain conditions were met: (1) 
That the Navy deemed the activity necessary for national defense; (2) 
that the authority could be invoked only by the highest Command 
authority; and (3) that any invocation of the authority be reported to 
NMFS and, through the Navy's Annual and Five-Year Exercise Reports, to 
the public.
    Response: Following the publication of the 2013 HSTT Study Area 
MMPA incidental take rule, a settlement agreement that resulted from 
the litigation prohibited or restricted Navy activities within specific 
areas in the HSTT Study Area. As a general note, the provisional 
prohibitions and restrictions on activities within the HSTT Study Area 
were derived pursuant to negotiations with the plaintiffs in that case 
and were specifically not evaluated or selected based on the type of 
thorough examination of best available science that occurs through the 
rulemaking process under the MMPA, or through related analyses 
conducted under the National Environmental Policy Act (NEPA) or the 
ESA. The agreement did not constitute a concession by the Navy as to 
the potential impacts of Navy activities on marine mammals or any other 
marine species. Furthermore, the Navy's adoption of restrictions on its 
HSTT activities as part of a relatively short-term settlement does not 
mean that those restrictions are necessarily supported by the best 
available science, likely to reduce impacts to marine mammals species 
or stocks and their habitat, or practicable to implement from a 
military readiness standpoint over the longer term in either the HSTT 
Study Area or other Study Areas, including AFTT. The Fleet Commander 
and senior Navy leadership have approved the mitigation and explicitly 
determined that this is the maximum amount of mitigation that is 
practicable to implement. Permission schemes would impede on commanding 
officers who are empowered to train their crews and operate their 
vessels to maintain readiness and ensure personnel safety.
North Atlantic Right Whale
    Comment 34: As a general matter, several comments were provided in 
regards to the NARW.
    Response: NMFS appreciates the concerns expressed by Commenters 
regarding NARW in the Northeast in their feeding and mating areas and 
along the Atlantic Coast during migration, as well as in the Southeast 
during calving. As an agency, NMFS is working to address the numerous 
issues facing

[[Page 57121]]

NARW, including continued work to reduce deaths due to ship strike by 
non-military vessels and entanglement in fishing gear, ongoing 
investigation of the Unusual Mortality Event (UME), and other measures 
to investigate and address the status of the species. The best 
available scientific information shows that the majority of NARW 
sightings in the Southeast occur in NARW calving areas from roughly 
November through April, with individual NARWs migrating to and from 
these areas through Mid-Atlantic shelf waters.
    Since the proposed rule, the Navy has expanded the NE NARW 
Mitigation Area to match designated ESA-designated critical habitat in 
the Northeast. This further minimizes LFAS/MFAS/HFAS and explosives in 
the mitigation area year-round and incorporates mitigation measures to 
avoid ship strike to NARW (which will also reduce potentially ship 
strike to other large whales). The Navy will obtain Early Warning 
System NARW sightings data in the Jacksonville Operating Area and 
report this information to all units to help vessels and aircraft 
reduce potential interactions with NARW. The Navy will also broadcast 
awareness notification messages with NARW Dynamic Management Area 
information (e.g., location and dates) to applicable Navy assets 
operating in the vicinity of the Dynamic Management Area. The Navy 
added the SE NARW Critical Habitat Special Reporting Area and will 
report the total hours and counts of active sonar and in-water 
explosives used in the Southeast NARW ESA-designated critical habitat). 
Additionally, the Navy has removed one of their testing activities in 
the Northeast Range Complex (four events--USWTR) which decreased the 
number of Level B harassment takes annually for NARW by 115 takes. 
Separately, this change also decreased annual Level B harassment takes 
by approximately 200 takes for ESA-listed fin whale, 20 takes for sei 
whales, and approximately 10,000 takes for harbor porpoise, which are 
discussed elsewhere in comments and responses. Additional discussion on 
NARW is provided below, organized geographically north to south.

NARW Northeast

    Comment 35: Several Commenters recommended expanding the Navy's NE 
NARW Mitigation Area spatially and temporally to include important 
areas such as Jeffreys Ledge and the central Gulf of Maine. Commenters 
recommended that NMFS include (1) both Jeffreys Ledge and the central 
Gulf of Maine in the Navy's NE NARW Mitigation Area, at least during 
the timeframes noted by LaBrecque et al. (2015a). A Commenter stated 
that, if NMFS chooses not to implement their recommendation for both 
Jeffreys Ledge and the central Gulf of Maine during the timeframes 
noted by LaBrecque et al. (2015a), that NMFS require the Navy to (1) 
implement speed restrictions of no more than 10 kn during vessel 
transits, (2) obtain the latest NARW sightings information from the 
Northeast Fisheries Science Center's NARW Sighting Advisory System 
prior to transits, (3) use the sightings information to reduce 
potential interactions with NARWs during transits, and (4) implement 
speed reductions after a vessel observes a NARW, if a vessel is within 
5 nmi of a sighting reported to the NARW Sighting Advisory System 
within the past week, and when operating at night or during periods of 
reduced visibility. A Commenter also recommended that a 10 kn vessel 
speed restriction be required for the NE NARW Mitigation Area and also 
within the boundaries of Jeffreys Ledge, at a minimum between the 
months of June-July and October-December.
    Response: In response to the recommendations of enlarging the NE 
NARW Mitigation Area, the Navy has agreed to expand the NE NARW 
Mitigation Area to match the NE NARW ESA-designated critical habitat. 
The expanded NE NARW Mitigation Area encompasses key BIAs, as described 
below. In general, the expanded NE NARW Mitigation Area encompasses all 
or nearly 100 percent of Cape Cod Bay, Jeffreys Ledge, the western edge 
of Georges Bank, and the northern portion of the Great South Channel 
BIAs. One hundred percent of the NARW feeding area on Jeffreys Ledge 
and the NARW mating area in the central Gulf of Maine are included in 
the expanded NE NARW Mitigation Area (as well as covering 100 percent 
in the Gulf of Maine Planning Awareness Area). One hundred percent of 
the NARW feeding area on Cape Cod Bay and Massachusetts Bay are 
included in the expanded NE NARW Mitigation Area. Additionally, 95.08 
percent of the NARW feeding area in the Great South Channel and the 
northern edge of Georges Bank is included in the expanded NE NARW 
Mitigation Area. The mitigation measures required in the previous NE 
NARW Mitigation Areas will carry over to the expanded NE NARW 
Mitigation Area and be implemented year-round.
    In response to the recommendation to implement additional vessel 
speed-related mitigation measures for NARW on Jeffreys Ledge and the 
central Gulf of Maine, these areas are now in fact encompassed by the 
expanded NE NARW Mitigation Area, as described above, and vessel speed-
related mitigation measures are being implemented during activities 
using non-explosive torpedoes (the same described in proposed rule). 
Specifically, in the NE NARW Mitigation Area, during non-explosive 
torpedo events only, the Navy will (1) maintain a ship speed of no more 
than 10 kn during transits and normal firing; no more than 18 kn during 
submarine target firing; and during vessel target firing, vessel speeds 
may exceed 18 kn for brief periods of time (e.g., 10-15 min.); (2) 
before vessel transits within the NARW Mitigation Area, conduct a web 
query or email inquiry to the Northeast Fisheries Science Center's NARW 
Sighting Advisory System to obtain the latest NARW sightings 
information; (3) vessels will use the sightings information to reduce 
potential interactions with NARW during transits; and (4) in the NE 
NARW Mitigation Area, vessels will implement speed reductions after 
they observe a NARW, if they are within 5 nmi of a sighting reported to 
the NARW Sighting Advisory System within the past week, and when 
operating at night or during periods of reduced visibility.
    Comment 36: A Commenter recommends that NMFS prohibit all active 
low-, mid-, and high-frequency sonar and limit non-explosive torpedo 
use from April through June in the Great South Channel and from 
February through April in Cape Cod Bay within the NE NARW Mitigation 
Area.
    Response: As discussed above, the Navy has agreed to expand the NE 
NARW Mitigation Area to encompass all of the ESA-designated critical 
habitat in the Northeast year-round. Therefore, within the expanded NE 
NARW Mitigation Area, the Navy has agreed to minimize, but not 
eliminate, the use of low-frequency active sonar, mid-frequency active 
sonar, and high-frequency active sonar to the maximum extent 
practicable. The Navy will not use Improved Extended Echo Ranging 
sonobuoys within three nmi of the mitigation area and not use explosive 
and non-explosive bombs, in-water detonations, and explosive torpedoes 
within the mitigation area. While this does not include non-explosive 
torpedoes within the NE NARW Mitigation Area, there are only a small 
number of Level B harassment takes from this activity. The Navy 
analyzed this area and determine that non-explosive torpedo activities 
could not be removed from this area as described

[[Page 57122]]

below. There are 33 estimated takes from TORPEX. This region provides a 
variety of bathymetric and environmental conditions necessary to ensure 
functionality and accuracy of systems and platforms in areas analogous 
to where the military operates. Testing locations are typically located 
near systems command support facilities, which provide critical safety, 
platform, and infrastructure support and technical expertise necessary 
to conduct testing. The Navy has used these same torpedo testing areas 
in this region for decades because they provide critical bathymetric 
and oceanographic features, and using these same areas provides data 
collection consistency, which is critical for comparative data 
analysis. In short, NMFS concurs with the Navy that the addition of 
this measure would be impracticable. However to mitigate for non-
explosive torpedo events, the Navy has already agreed to several 
procedural mitigation steps to avoid NARW as follows. The Navy will 
conduct activities during daylight hours in Beaufort sea state 3 or 
less. The Navy will use three Lookouts (one positioned on a vessel and 
two in an aircraft during dedicated aerial surveys) to observe the 
vicinity of the activity. An additional Lookout will be positioned on 
the submarine, when surfaced. Immediately prior to the start of the 
activity, Lookouts will observe for floating vegetation and marine 
mammals; if observed, the activity will not commence until the vicinity 
is clear or the activity is relocated to an area where the vicinity is 
clear. During the activity, Lookouts will observe for marine mammals; 
if observed, the activity will cease. To allow a sighted NARW (or any 
other marine mammals) to leave the area, the Navy will not recommence 
the activity until one of the following conditions has been met: (1) 
The animal is observed exiting the vicinity of the activity; (2) the 
animal is thought to have exited the vicinity of the activity based on 
a determination of its course, speed, and movement relative to the 
activity location; or (3) the area has been clear from any additional 
sightings for 30 min.

Northeast Planning Awareness Mitigation Area

    Comment 37: A Commenter recommends Navy/NMFS further limiting MTEs 
and prohibiting/limiting other activities to reduce cumulative 
exposures to range-limited beaked whale and sperm whale populations 
that may inhabit the NE Planning Awareness Mitigation Areas. The 
Commenter recommends that NMFS consult with the Navy and consider 
prohibiting the planning and conduct of major exercises within these 
areas, using the Conservation Council settlement-agreement approach as 
described earlier in the Mitigation Areas of this Comments and 
Responses section. If MTEs cannot absolutely be avoided, the Commenter 
recommends that NMFS should prohibit conduct of more than two MTEs per 
year, with each exercise carried out in different NE Planning Awareness 
Mitigation Areas (i.e., one exercise in the northern Mitigation Area, 
and one exercise in the southern Mitigation Area), to ensure that 
marine mammal populations with site fidelity are not exposed to 
multiple major training exercises within a single year. Similarly, the 
Commenter asserts that NMFS should consider prohibiting testing and 
unit-level sonar and in-water explosives training, or alternatively, 
and less preferably, reducing the number of hours allowable in a given 
year, with the prohibition or restriction structured as in the 
Conservation Council settlement agreement.
    Response: As part of the NE Planning Awareness Mitigation Areas, 
the Navy already agrees to avoid conducting MTEs within the mitigation 
area to the maximum extent practicable. However, if Navy needs to 
conduct MTE's, it will not conduct more than four per year within the 
mitigation area. The Commenter indicated that range-limited beaked 
whale populations have been found on the shelf break off Cape Hatteras, 
areas off Canada, in the Mediterranean, off Southern California, in the 
Bahamas, and around the Hawaiian Islands, and range-limited sperm whale 
populations have been found off Cape Hatteras, the GOMEX, and off 
Western Australia. The Commenter assumed that beaked whales and sperm 
whales are also range-limited within the NE Planning Awareness 
Mitigation Areas, and as a result, recommended additional mitigation to 
limit MTEs and other activities to reduce cumulative exposure in the NE 
Planning Awareness Mitigation Areas. However, NMFS agrees with the 
Navy's assessment that the best available science does not indicate 
that beaked whales and sperm whales are range-limited within the NE 
Planning Awareness Mitigation Areas. NMFS relied on the best available 
scientific information (e.g., NMFS' Stock Assessment Reports (SARs); 
Roberts et al., 2016, 2017; and numerous study reports from Navy-funded 
monitoring and research in the specific geographic region) in assessing 
density, distribution, and other information regarding marine mammal 
use of habitats in the study area. In addition, NMFS consulted 
LaBrecque et al. (2015), which provides a specific, detailed assessment 
of known BIAs and provides the best available science to help inform 
regulatory and management decisions about some, though not all, 
important cetacean areas. BIAs, which may be region-, species-, and/or 
time-specific, include reproductive areas, feeding areas, migratory 
corridors, and areas in which small and resident populations are 
concentrated. There are currently no BIAs for beaked whales or sperm 
whales along the Atlantic Coast.
    As discussed in the Analysis and Negligible Impact Determination 
section, a few minor to moderate TTS or behavioral reactions to an 
individual over the course of a year are unlikely to have an impact on 
individual reproduction or survival. Considering these factors and the 
required mitigation measures, adverse impacts for the species or stock 
via effects on recruitment or survival are not expected. The Navy does 
not typically schedule MTEs in the Northeast Range Complexes, as 
indicated in Table 64. For training and testing that does occur here, 
this area provides a wide range of bathymetric and topographic 
opportunities that support critical smaller scale training and testing 
necessary to meet mission requirements. Additionally, MTEs originally 
planned for other locations may have to change during an exercise, or 
in exercise planning, based on an assessment of the performance of the 
units, or due to other conditions such as weather and mechanical 
issues. These contingency requirements preclude the Navy from 
completely eliminating MTEs from occurring in this area.
    Comment 38: A Commenter recommends prohibiting/limiting sonar and 
in-water explosives activities within the southern portion of the 
Northeast Canyons and Seamounts National Marine Monument, including the 
Bear Seamount and Physalia Seamount.
    Response: Currently the Northeast Canyons and Seamounts National 
Monument overlap the Gulf of Maine Planning Awareness Mitigation Area 
and the NE Planning Awareness Mitigation Areas, respectively. Bear 
Seamount and Physalia Seamount are contained within the Seamount Unit. 
The Navy is already limiting activities within the NE Planning 
Awareness Mitigation Areas by avoiding conducting MTEs to the maximum 
extent practicable (and avoiding MTEs completely within the Gulf of 
Maine Planning Awareness Mitigation Area). In its assessment of the 
practicability of

[[Page 57123]]

potential mitigation, the Navy indicated that it had considered 
implementing additional restrictions on active sonar and explosives in 
the Northeast Canyons and Seamounts National Marine Monument. Navy's 
operational assessment determined that implementing additional 
mitigation is impracticable for the reasons stated in Section 5.4.2 of 
the AFTT FEIS/OEIS (Mitigation Areas off the Northeastern United 
States) and also would be impracticable due to implications for safety 
(the ability to avoid potential hazards), sustainability (maintain 
readiness), and the Navy's ability to continue meeting its Title 10 
requirements to successfully accomplish military readiness objectives. 
The Navy's operational input indicates that designating additional 
mitigation areas (including the southern portion of the Northeast 
Canyons and Seamounts National Marine Monument) or implementing further 
restrictions on the level, number, or timing (seasonal or time of day) 
of training or testing activities within the mitigation areas 
(including, but not limited to, limiting MTEs and other activities to 
reduce cumulative exposures) would have a significant impact on (1) the 
ability of Navy units to meet their individual training and 
certification requirements, preventing them from deploying with the 
required level of readiness necessary to accomplish their missions; (2) 
the ability to certify strike groups to deploy to meet national 
security tasking, limiting the flexibility of Combatant Commanders and 
warfighters to project power, engage in multi-national operations, and 
conduct the full range of naval warfighting capability in support of 
national security interests; (3) the ability of program managers and 
weapons system acquisition programs to meet testing requirements and 
required acquisition milestones; (4) operational costs due to extending 
distance offshore, which would increase fuel consumption, maintenance, 
and time on station to complete required training and testing 
activities; (5) the safety risk associated with conducting training and 
testing at extended distances offshore, farther away from critical 
medical and search and rescue capabilities; (6) accelerated fatigue-
life of aircraft and ships, leading to increased safety risk and higher 
maintenance costs; (7) training and testing realism due to reduced 
access to necessary environmental or oceanographic conditions that 
replicate potential real world areas in which combat may occur; and (8) 
the ability for Navy sailors to train and become proficient in using 
the sensors and weapons systems as would be required in a real world 
combat situation. NMFS concurs with the Navy's determination that the 
recommended additional mitigation is impracticable and, accordingly, 
has not included it in the requirements of the rule.

Gulf of Maine Planning Awareness Mitigation Area

    Comment 39: A Commenter comments that, although the Gulf of Maine 
Planning Awareness Area represents a significant geographic area, the 
mitigation requirements are less limited compared to the NE NARW 
Mitigation Area. Within the boundaries of this area between the months 
of July-September, the Commenter recommends prohibiting/further 
limiting mid- and high-frequency sonar and prohibit explosives 
activities within the biologically important area for harbor porpoise. 
The Commenter recommends prohibiting low-, mid-, and high-frequency 
sonar activities from March through November in biologically important 
feeding habitat for minke whales at Cashes Ledge, as well as 
prohibiting explosives activities in this area year-round. The 
Commenter also recommends prohibiting/limiting sonar and in-water 
explosives activities within the northern portion of the Northeast 
Canyons and Seamounts National Marine Monument.
    Response: In regards to harbor porpoise, 81.87 percent of the small 
and resident population BIA within the U.S. Exclusive Economic Zone 
(EEZ) overlaps the now expanded year-round NE NARW Mitigation Area, and 
100 percent is contained within the Gulf of Maine Planning Awareness 
Mitigation Area.
    In regards to minke whales, 100 percent of the BIA falls within the 
now expanded year-round NE NARW Mitigation Area, and 100 percent also 
falls within the Gulf of Maine Planning Awareness Mitigation Area. The 
Navy is minimizing the use of low-, mid-, and high-frequency active 
sonar to the maximum extent practicable and limiting the use of 
explosives, explosive and non-explosive bombs, in-water detonations, 
and explosive torpedoes within the expanded NE NARW Mitigation Area 
year-round. Specifically, the Navy will not use Improved Extended Echo 
Ranging sonobuoys within 3 nmi of the mitigation area. The Navy has now 
agreed (since the proposed rule) not to conduct MTEs within the year-
round Gulf of Maine Planning Awareness Mitigation Area and will cap the 
sonar use in the mitigation area to less than 200 hours of hull-mounted 
MFAS per year, thereby reducing impacts to harbor porpoise further. As 
discussed in the Analysis and Negligible Impact Determination section, 
the activities conducted by the Navy are of short duration (minutes to 
a few hours) and widely dispersed temporally and geographically and are 
not expected to significantly affect natural behavioral patterns of 
harbor porpoises or minke whales, such as feeding, breeding, etc., in a 
manner that would adversely affect either stock via impacts on rates of 
recruitment or survival.
    In regards to the use of active sonar and in-water explosives being 
prohibited or limited in the area year-round within the boundaries of 
the northern portion of the Northeast Canyons and Seamounts Marine 
National Monument, the northern portion (Canyon Unit) falls inside of 
the Gulf of Maine Planning Awareness Mitigation area. The Navy is 
already limiting their use of hull-mounted MFAS by capping use at 200 
hrs per year and now will not conduct MTEs within the mitigation area. 
However, there are no limitations on explosives in this area. The Navy 
has worked collaboratively with NMFS to develop mitigation areas using 
inputs from the operational community, the best available science 
discussed in Chapter 3 (Affected Environment and Environmental 
Consequences) of the AFTT FEIS/OEIS, published literature, predicted 
activity impact footprints, and marine species monitoring and density 
data. The Navy has communicated that it completed an extensive 
biological assessment and operational analysis (based on a detailed and 
lengthy review by training experts and leadership responsible for 
meeting statutory readiness requirements) of potential mitigation areas 
throughout the entire Study Area. The mitigation identified in this 
final rule represents what the Navy has stated is the maximum 
mitigation that is practicable to implement under the Proposed Action. 
Operational input indicates that designating additional mitigation 
areas (including, but not limited to, within the northern portion of 
the Northeast Canyons and Seamounts Marine National Monument) and 
implementing further restrictions on the level, number, or timing 
(seasonal or time of day) of training or testing activities within the 
mitigation areas (including, but not limited to, limiting MTEs and 
other activities) would have a significant impact on (1) the ability 
for units to meet their individual training and certification 
requirements, preventing them from

[[Page 57124]]

deploying with the required level of readiness necessary to accomplish 
their missions; (2) the ability to certify strike groups to deploy to 
meet national security tasking, limiting the flexibility of Combatant 
Commanders and warfighters to project power, engage in multi-national 
operations, and conduct the full range of naval warfighting capability 
in support of national security interests; (3) the ability of program 
managers and weapons system acquisition programs to meet testing 
requirements and required acquisition milestones; (4) operational costs 
due to extending distance offshore, which would increase fuel 
consumption, maintenance, and time on station to complete required 
training and testing activities; (5) the safety risk associated with 
conducting training and testing at extended distances offshore farther 
away from critical medical and search and rescue capabilities; (6) 
accelerated fatigue-life of aircraft and ships leading to increased 
safety risk and higher maintenance costs; (7) training and testing 
realism due to reduced access to necessary environmental or 
oceanographic conditions that replicate potential real world areas in 
which combat may occur; and (8) the ability for Navy sailors to train 
and become proficient in using the sensors and weapons systems as would 
be required in a real world combat situation. The Navy has stated that 
it is unclear how it would be able to train and test without access to 
the ranges and locations that have been carefully developed over 
decades. Additionally, limiting access to ranges would deny operational 
commanders the ability to respond to emerging national security 
challenges, placing national security at risk and sailors in danger by 
not being properly prepared to perform their missions. Likewise, the 
Navy has stated that these restrictions would have a significant impact 
on the testing of current systems and the development of new systems. 
This would deny weapons system program managers and research, testing, 
and development program managers the flexibility to rapidly field or 
develop necessary systems due to the required use of multiple areas 
within limited timeframes. NMFS concurs with the Navy's practicability 
assessment.
NARW Mid-Atlantic
    Comment 40: A Commenter recommends that the Navy should not plan 
activities in the Mid-Atlantic Planning Awareness Mitigation Areas to 
avoid times of predicted higher NARW occurrence, and that NMFS should 
consult experts in the NARW Consortium, including the New England 
Aquarium, for the best available information on the timing of the NARW 
migration and the months in which NARW are most likely to be present 
within the Mid-Atlantic Planning Awareness Mitigation Areas.
    Response: By late March, NARW typically leave the calving grounds 
of the southeast and travel up the U.S. continental shelf to the Gulf 
of Maine (Kenney et al., 2001; Knowlton et al., 2002 as cited in 
LaBrecque et al., 2015), and during this migration, the animals will 
traverse these training areas (e.g., Virginia Capes). Additionally, 
recent evidence suggests distributional shifts of NARW, with passive 
acoustic data indicating nearly year-round presence of this species in 
the mid-Atlantic area (Davis et al., 2017). As described in the final 
rule, the Navy will avoid conducting MTEs within the mitigation area 
(Composite Training Unit Exercises or Fleet Exercises/Sustainment 
Exercises) to the maximum extent practicable but cannot avoid the area 
completely and will not conduct more than four MTEs per year.
    Locations for training and testing activities are chosen based on 
their proximity of associated training and testing ranges, operating 
areas (e.g., VACAPES), available airspace (e.g., W-50), unobstructed 
sea space, and aircraft emergency landing fields (e.g., Naval Air 
Station Oceana), and with consideration for public safety (e.g., 
avoiding areas popular for recreational boating). The Navy has 
indicated that further restrictions in this area (e.g., further 
restricting the number of major training events or seasonal 
restrictions on major training exercises based on predicted density of 
marine mammal species) for mitigation would be impracticable to 
implement and would significantly impact the scheduling, training, and 
certifications required to prepare naval forces for deployment. It 
would be impracticable to implement seasonal or temporal restrictions 
for all training and testing in this region because training and 
testing schedules are based on national tasking, the number and 
duration of training cycles identified in the Optimized Fleet Response 
Plan and various training plans, and forecasting of future testing 
requirements (including emerging requirements). Although the Navy has 
indicated that it has the ability to restrict the number of major 
training exercises in the Mid-Atlantic Planning Awareness Mitigation 
Areas, the Navy is unable to eliminate all MTEs in this area, because 
it provides air and sea conditions necessary to meet real-world 
requirements. Additionally, MTEs originally planned for other locations 
may have to change during an exercise, or in exercise planning, based 
on an assessment of the performance of the units or due to other 
conditions such as weather and mechanical issues. The Navy has 
indicated that these contingency requirements preclude it from 
completely prohibiting MTEs from occurring in this area. NMFS concurs 
with the Navy's practicability assessment.
Mid-Atlantic Planning Awareness Mitigation Areas
    Comment 41: A Commenter recommends extending the boundaries of the 
Mid-Atlantic Planning Awareness Mitigation Areas to fully encompass the 
Cape Hatteras Special Research Area (CHSRA), prohibiting all training, 
and testing activities within the boundary of the CHSRA.
    Response: Although the Navy has the ability to restrict the number 
of MTEs in the Mid-Atlantic Planning Awareness Mitigation Areas (no 
more than four), the Navy has communicated that it is unable to 
prohibit all MTEs in this area, as it provides air and sea conditions 
necessary to meet real-world requirements. Additionally, MTEs 
originally planned for other locations may have to change during an 
exercise, or in exercise planning, based on an assessment of the 
performance of the units or due to other conditions such as weather and 
mechanical issues. These contingency requirements preclude the Navy 
from completely prohibiting MTEs from occurring in this area.
    In its assessment of potential mitigation, the Navy considered 
implementing additional restrictions on active sonar and explosives in 
the U.S. mid-Atlantic region, including expanding the boundaries of the 
mitigation area to fully encompass the CHSRA, limiting MTEs, and 
planning activities to avoid times of predicted high NARW density. Navy 
operators determined that implementing additional mitigation beyond 
what is described in this final rule would be impracticable due to 
implications for safety, sustainability, and the Navy's ability to 
continue meeting its Title 10 requirements to successfully accomplish 
military readiness objectives. Some of the Navy's considerations 
regarding why it would be impracticable to implement additional 
mitigation in the mid-Atlantic region, which NMFS has reviewed and 
concurs with, are provided below.
    The waters off the mid-Atlantic and southeastern United States 
encompass part of the primary water space in the AFTT Study Area where 
unit-level training, integrated training, and

[[Page 57125]]

deployment certification exercises occur and are critical for these and 
other training and testing activities. The Navy conducts training and 
testing activities off the mid-Atlantic and southeastern United States 
because this region provides valuable access to air and sea space 
conditions that are analogous to areas where the Navy operates or may 
need to operate in the future. This contributes to safety of personnel, 
skill proficiency, and validation of testing program requirements. For 
training and testing, areas in this region where exercises are 
scheduled to occur are chosen to allow for the realistic tactical 
development of the myriad of training and testing scenarios that Navy 
units are required to complete to be mission effective. Certain 
activities, such as deployment certification exercises using integrated 
warfare components, require large areas of the littorals and open ocean 
for realistic and safe training.
    Locations for other training and testing activities are chosen due 
to the proximity of associated training and testing ranges and 
operating areas (e.g., VACAPES), available airspace (e.g., W-50), 
unobstructed sea space, and aircraft emergency landing fields (e.g., 
Naval Air Station Oceana) and with consideration for public safety 
(e.g., avoiding areas popular for recreational boating). Further 
restrictions in this area (e.g., further restricting the number of 
major training events or seasonal restrictions on MTEs based on 
predicted density of marine mammal species) for mitigation would be 
impracticable to implement and would significantly impact the 
scheduling, training, and certifications required to prepare naval 
forces for deployment. It would be impracticable to implement seasonal 
or temporal restrictions for all training and testing in this region 
(including within the CHSRA) because training and testing schedules are 
based on national tasking, the number and duration of training cycles 
identified in the Optimized Fleet Response Plan and various training 
plans, and forecasting of future testing requirements (including 
emerging requirements).
    Comment 42: A Commenter also recommends further limiting MTE and 
prohibiting/further limiting other activities to reduce cumulative 
exposures in the Mid-Atlantic Planning Awareness Mitigation Areas. 
Commenter asserts that if MTEs cannot absolutely be avoided, NMFS 
should consider limiting the number of MTEs allowable to two per year, 
with each exercise carried out in different Mid-Atlantic Planning 
Awareness Mitigation Areas (i.e., one exercise in the northern 
Mitigation Area, and one exercise in the southern Mitigation Area), to 
ensure that marine mammal populations with site fidelity are not 
exposed to multiple MTEs within a single year. Similarly, the Commenter 
states that NMFS should consider prohibiting testing, unit-level sonar, 
and in-water explosives training in the mitigation areas, or 
alternatively, and less preferably, reducing the number of hours 
allowable in a given year, with the prohibition or restriction 
structured as in the Conservation Council settlement agreement to 
provide flexibility.
    Response: The Navy has indicated that although it has the ability 
to restrict the number of MTEs in the Mid-Atlantic Planning Awareness 
Mitigation Areas (no more than four), the Navy is unable to prohibit 
all MTEs in this area, as it provides air and sea conditions necessary 
to meet real-world requirements. MTE locations may have to change 
during an exercise, or in exercise planning, based on an assessment of 
the performance of the units, or due to other conditions such as 
weather and mechanical issues, which precludes the ability to 
completely prohibit major training exercises from occurring in this 
area.
    In its assessment of potential mitigation, the Navy considered 
implementing additional restrictions on active sonar and explosives in 
the U.S. mid-Atlantic region and limiting MTEs and planning activities 
to further limit activities in times and areas of predicted high NARW 
density. Navy operators determined that implementing additional 
mitigation beyond what is described in Section 5.4.3 (Mitigation Areas 
off the mid-Atlantic and southeastern United States) of the AFTT FEIS/
OEIS and this final rule (which provides a significant reduction of 
impacts on NARW, as discussed in the Mitigation Measures section in 
this final rule) would be impracticable due to implications for safety, 
sustainability, and the Navy's ability to continue meeting its Title 10 
requirements to successfully accomplish military readiness objectives. 
As the Navy explains, it would be impracticable to implement additional 
mitigation in the U.S. mid-Atlantic region for several reasons. NMFS 
reviewed and concurs with the Navy's assessment of practicality, 
effects on mission effectiveness, and personnel safety. First, the 
waters off the mid-Atlantic and southeastern United States encompass 
part of the primary water space in the AFTT Study Area where unit-level 
training, integrated training, and deployment certification exercises 
occur and are critical for these and other training and testing 
activities. The Navy conducts training and testing activities off the 
mid-Atlantic and southeastern United States because this region 
provides valuable access to air and sea space conditions that are 
analogous to areas where the Navy operates or may need to operate in 
the future. This contributes to ensure safety of personnel, skill 
proficiency, and validation of testing program requirements. Areas in 
this region where activities are scheduled to occur are chosen to allow 
for the realistic tactical development of the myriad training and 
testing scenarios that Navy units are required to complete to be 
mission effective. Certain activities, such as deployment certification 
exercises using integrated warfare components, require large areas of 
the littorals and open ocean for realistic and safe training. Locations 
for other training and testing activities are chosen due to the 
proximity of associated training and testing ranges and operating areas 
(e.g., VACAPES), available airspace (e.g., W-50 in VACAPES), 
unobstructed sea space, aircraft emergency landing fields (e.g., Naval 
Air Station Oceana), and with consideration for public safety (e.g., 
avoiding areas popular for recreational boating). Further restrictions 
in this area (e.g., further restricting the number of major training 
events or seasonal restrictions on MTEs based on predicted density of 
marine mammal species, such as NARW) for mitigation would be 
impracticable to implement and would significantly impact the 
scheduling, training, and certifications required to prepare naval 
forces for deployment. It would be impracticable to implement seasonal 
or temporal restrictions for all training and testing in this region 
(including within the CHSRA) because training and testing schedules are 
based on national tasking, the number and duration of training cycles 
identified in the Optimized Fleet Response Plan and various training 
plans, and forecasting of future testing requirements (including 
emerging requirements).
    Comment 43: A Commenter recommends that NMFS require the Navy to 
move the ship shock trial areas beyond the extents of the two Mid-
Atlantic Planning Awareness Areas and allow a minimum of a five nmi 
buffer between the Planning Awareness Areas and the ship shock trial 
areas.
    Response: The Navy assessed the practicality and effects on mission 
effectiveness and personnel safety, of this measure and agreed to move 
the ship shock trial box east of the Mid-Atlantic Planning Awareness 
Mitigation Areas, including a five nmi buffer.

[[Page 57126]]

NMFS included the requirement in the final rule.
NARW Southeast
    Comment 44: Several commenters recommended expanding the Navy's SE 
NARW mitigation areas to encompass additional areas of NARW occurrence 
or the entirety of the ESA-designated critical habitat in the 
Southeast, and/or expanding the limitations on Navy activities within 
these areas. Further, a Commenter recommended that if NMFS was not 
going to expand the SE NARW Mitigation Area, that NMFS should require 
the Navy to further implement measures of vessel speed restrictions and 
obtain NARW sighting information to reduce NARW and potential vessel 
interactions on the NARW calving BIA. A Commenter commented that NMFS 
should include the entire extent of the NARW calving BIA as depicted in 
LaBrecque et al. (2015a) in the SE NARW Mitigation Area. Another 
commenter requested that the Navy add an ``expanded mitigation area'' 
(geographically corresponding to the current SE NARW ESA-designated 
critical habitat, minus the Navy's current SE NARW Mitigation Area). A 
Commenter suggested that if NMFS chooses not to implement the NARW 
calving BIA as depicted in and during the timeframes noted by LaBrecque 
et al. (2015a), then they recommend that NMFS require the Navy to (1) 
implement speed restrictions of no more than 10 kn during vessel 
transits, (2) obtain the latest NARW sightings information prior to 
transits from the Southeast Regional Office's (SERO) NARW Early Warning 
System, (3) use the sightings information to reduce potential 
interactions with NARWs during transits, and (4) implement speed 
reductions after a vessel observes a NARW, if a vessel is within 5 nmi 
of a sighting reported to the SE Regional Office NARW Early Warning 
System within the past week, and when operating at night or during 
periods of reduced visibility. Similarly, a commenter also requested 
that the Navy minimize activities requiring vessel speeds greater than 
10 kn for all vessels 65 ft or greater operating within the current SE 
NARW Mitigation Area as well as an ``expanded mitigation area'' 
(spatially corresponding to the current SE NARW ESA-designated critical 
habitat, minus the Navy's current SE NARW Mitigation Area).
    Response: The SE NARW Mitigation Area remains the same from the 
proposed rule but as a result of recommendations from and discussion 
with NMFS, the Navy has expanded this area from the previous rule 
authorizing incidental take between 2013 and 2018. The SE NARW 
Mitigation Area occurs off the coast of Florida and Georgia and 
encompasses a portion of the calving ESA-designated critical habitat 
for this species. The best available scientific information shows that 
the majority of NARW sightings in the Southeast occur in calving areas 
from roughly November through April, with individual NARW migrating to 
and from these areas through mid-Atlantic shelf waters. Because of 
these concerns regarding NARW, the Navy proposed mitigation in its 
rulemaking/LOA application in the SE NARW Mitigation Area from November 
15 to April 15. These measures are expected to largely avoid disruption 
of behavioral patterns for NARW and to minimize overall acoustic 
exposures. Major training exercises and most activities using active 
sonar will not occur in some portions of the calving ESA-designated 
critical habitat in the SE NARW Mitigation Area. The Navy will not 
conduct: (1) Low-frequency active sonar (except as noted below), (2) 
mid-frequency active sonar (except as noted below), (3) high-frequency 
active sonar, (4) missile and rocket activities (explosive and non-
explosive), (5) small-, medium-, and large-caliber gunnery activities, 
(6) Improved Extended Echo Ranging sonobuoy activities, (7) explosive 
and non-explosive bombing activities, (8) in-water detonations, and (9) 
explosive torpedo activities within the mitigation area. Further, to 
the maximum extent practicable, the Navy has already agreed to minimize 
the use of: (1) Helicopter dipping sonar, (2) low and mid-frequency 
active sonar for navigation training and object detection exercises 
within the mitigation area, and (3) other activities. The activities 
resulting in most of the Level B harassment within ESA-designated 
critical habitat and within the Navy's SE NARW Mitigation Area are from 
navigation (37 takes) and ship object detection exercise (82 takes) 
which each last for approximately 30 min or less as the vessel or 
submarine is transiting into or out of port. With the exception of the 
Composite Training Unit Exercise, all activities using sonar that are 
expected to result in Level B harassment by TTS and behavioral 
disturbance of NARW in this area are either short-term (e.g., 30 min to 
4 hours during submarine navigation and signature analysis testing) or 
involve a limited number of sonar platforms (since there are a limited 
number of sonar platforms and both the sonar platforms and animals are 
moving, there is a low likelihood of co-occurrence for more than a 
short period of time). These factors limit the potential for these 
instances of Level B harassment by TTS and behavioral disturbance to 
result in long duration exposures. Consistent with literature described 
previously on the response of marine mammals to sonar, we anticipate 
that exposed animals will be able to return to normal behavior patterns 
shortly after the exposure is over (minutes to hours) (See, e.g., 
Goldbogen et al., 2013; Sivle et al., 2015). For longer duration 
activities (e.g., MTEs), particularly those utilizing multiple sonar 
platforms, the chance of a longer term exposure and associated response 
is increased, but as described below, we do not expect long-term 
exposures to occur from these activities. Depending on animal movement 
and where these longer duration activities actually occur within the 
operating areas, such exercises have the potential to result in 
sustained and/or repeated exposure of NARW. However, the Navy's 
geographic mitigations for MTEs and other exercises using active sonar 
(with the exception of navigation and ship object detection) minimize 
the likelihood of exposures of animals to these activities in ESA-
designated critical habitat. MTEs will not be conducted in most of the 
Southeast ESA-designated critical habitat. Further, the Navy's modeling 
indicated very limited impacts to NARW from MTEs in the southeast 
(i.e., one instance of Level B behavioral harassment in the 
Jacksonville Range Complex, which could occur within the ESA-designated 
critical habitat designated for the species).
    Based on this short duration of exposure, and the minor behavioral 
response expected to occur from the exposure, we do not expect these 
responses to affect the health of individual NARWs in any way that 
could affect reproduction or survival, even though some individual 
animals may experience Level B harassment more than once annually in 
this area. NARW may be present in or near the SE NARW Mitigation Area 
for approximately 20 events per year (5.48 percent) for navigation and 
57 approximate events per year (15.61 percent) for object detection. 
This does not necessarily mean NARW will be impacted by Level B 
harassment takes during these short duration activities (approximately 
30 min, up to 2 hrs). NMFS believes that the mitigation in the 
Southeast avoids impacts to the NARWs while on the calving grounds. 
While the Navy could not expand the SE NARW Mitigation Area to the full 
extent of ESA-designated critical habitat, the Navy has agreed to 
include the full

[[Page 57127]]

extent of ESA-designated critical habitat in a special reporting area 
and annually report training and testing activities in this area to 
NMFS. The Navy will report the total hours and counts of active sonar 
and in-water explosives used in the SE NARW Critical Habitat Special 
Reporting Area (November 15 through April 15) (i.e., the Southeast NARW 
ESA-designated critical habitat) in its annual training and testing 
activity reports submitted to NMFS.
    In response to the recommendation to implement additional vessel 
speed related mitigation measures for NARW in the calving BIA (as 
depicted by LaBrecque et al., 2015), the SE NARW Mitigation Area has 
not been expanded from the proposed rule. However, the Navy has added 
mitigation measures related to vessels, including the addition of the 
Jacksonville Operating Area Mitigation Area (November 15 through April 
15), where additional communication will occur for all training and 
testing activities occurring in this area to fleet vessels to minimize 
potential interaction with NARW. The Jacksonville Operating Area 
Mitigation Area overlaps with the SE NARW ESA-designated critical 
habitat/calving BIA. Regarding measures to avoid vessel strikes in the 
southeast, in the SE NARW Mitigation Area, (1) the Navy will implement 
vessel speed reductions after they observe a NARW; (2) before 
transiting or conducting training or testing activities in the SE NARW 
Mitigation Area, the Navy will initiate communication with the Fleet 
Area Control and Surveillance Facility, Jacksonville to obtain Early 
Warning System NARW sightings data; (3) the Fleet Area Control and 
Surveillance Facility, Jacksonville will advise vessels of all reported 
NARW sightings in the vicinity to help vessels and aircraft reduce 
potential interactions with NARW; and (4) vessels will implement speed 
reductions if they are within 5 nmi of a sighting reported within the 
past 12 hrs, or when operating at night or during periods of poor 
visibility. To the maximum extent practicable, vessels will minimize 
north-south transits. The Navy will use the reported sightings 
information as it plans specific details of events (e.g., timing, 
location, duration) to minimize potential interactions with NARW to the 
maximum extent practicable. The Navy will use the reported sightings 
information to assist visual observations of applicable mitigation 
zones and to aid in the implementation of procedural mitigation.
    Finally, since the proposed rule, the Navy has agreed to broadcast 
awareness notification messages with NARW Dynamic Management Area 
information (e.g., location and dates) to applicable Navy assets 
operating in the vicinity (NARW Dynamic Management Area notification). 
The information will alert assets to the possible presence of a NARW to 
maintain safety of navigation and further reduce the potential for a 
vessel strike. Units will use the information to assist their visual 
observation of applicable mitigation zones during training and testing 
activities and to aid in the implementation of procedural mitigation, 
including but not limited to, mitigation for vessel movement.
    For this rule, within the mid-Atlantic and southeastern region, 
NMFS and the Navy worked to identify an opportunity to expand the 
mitigation area for NARW off the southeastern United States in a way 
that would enhance protections for the species, while balancing the 
practicability of implementation. The Navy expanded the SE NARW 
Mitigation Area to correlate with the occurrence of NARW to the maximum 
extent practicable based on readiness requirements.
    Certain activities, such as deployment certification exercises 
using integrated warfare components, require large areas of the 
littorals and open ocean for realistic and safe training. Locations for 
other training activities are chosen due to the proximity of associated 
training ranges (e.g., Jacksonville Range Complex), available airspace 
(e.g., avoiding airspace conflicts with major airports such as 
Jacksonville International Airport), unobstructed sea space, aircraft 
emergency landing fields (e.g., Naval Air Station Jacksonville), and 
with consideration for public safety (e.g., avoiding areas popular for 
recreational boating). The Jacksonville Operating Area and Charleston 
Operating Area represent critical training sea spaces that are 
necessary to prepare naval forces for combat. Areas where testing 
events are scheduled to occur are chosen to allow the Navy to test 
systems and platforms in a variety of bathymetric and environmental 
conditions to ensure functionality and accuracy in real world 
environments. Test locations are typically located near the support 
facilities of the systems commands, which provide critical safety, 
platform, and infrastructure support and technical expertise necessary 
to conduct testing (e.g., proximity to air squadrons).
    In conclusion, the Navy has indicated that additional expansion of 
the SE NARW Mitigation Area eastward to mirror the boundary of the 
expanded ESA-designated critical habitat or northward to encompass all 
areas of potential occurrence, would require training to move farther 
north or farther out to sea, which would be impracticable due to 
implications for safety and sustainability, as detailed in Section 
5.4.3 (Mitigation Areas off the Mid-Atlantic and Southeastern United 
States) of the AFTT FEIS/OEIS. Additionally, the Navy has explained why 
further limitations on activities within this area would be 
impracticable. NMFS reviewed, and concurs with, the Navy's assessment 
of practicality, effects on mission effectiveness, personnel safety.
    Comment 45: A Commenter recommended dipping sonar and low-frequency 
sonar be prohibited in the Navy's SE NARW Mitigation Area.
    Response: Regarding dipping sonar, as discussed in Section 5.4.3 
(Mitigation Areas off the Mid-Atlantic and Southeastern United States) 
of the AFTT FEIS/OEIS, the Navy will minimize the use of helicopter 
dipping sonar to the maximum extent practicable. The only helicopter 
dipping sonar activity that could potentially be conducted in the 
mitigation area is Kilo Dip, which could involve 1-2 pings of active 
sonar infrequently. Kilo Dip is a functional check activity that needs 
to occur close to an air station in the event of a system failure 
(i.e., all systems are not functioning properly). During this activity, 
the Navy will implement the procedural mitigation described in Section 
5.3.2.1 (Active Sonar) of the AFTT FEIS/OEIS, with visual observations 
aided by Early Warning System NARW data.
    Regarding LFAS, as discussed in Section 5.4.3 (Mitigation Areas off 
the Mid-Atlantic and Southeastern United States) of the AFTT FEIS/OEIS, 
the Navy will not conduct LFAS in the mitigation area, with the 
exception of LFAS used for navigation training, which will be minimized 
to the maximum extent practicable. During this activity, crews train to 
operate sonar for navigation, an ability that is critical for safety 
while transiting into and out of port during periods of reduced 
visibility. The Navy will implement the procedural mitigation described 
in Section 5.3.2.1 (Active Sonar), with visual observations aided by 
Early Warning System NARW sightings data.
    Additionally, since the proposed rule, the Navy added a SE NARW 
Critical Habitat Special Reporting Area (November 15 through April 15) 
where the Navy will report the total hours and counts of active sonar 
and in-water explosives used in the Special Reporting Area in its 
annual training and testing activity reports submitted to NMFS.

[[Page 57128]]

Geographically speaking, this Special Reporting Area is the same area 
as the SE NARW ESA-designated critical habitat, and the reporting will 
help NMFS and the Navy understand in a more refined way the actual 
scale of activities occurring in NARW habitat, which will inform future 
analyses and, as appropriate, adaptive management.

GOMEX Planning Awareness Mitigation Areas/Bryde's Whale Mitigation Area

    Comment 46: Commenters recommend that NMFS (1) expand Area 2 in the 
GOMEX Planning Awareness Mitigation Areas to include the waters (a) out 
to the 400-m isobath along Area 2's entire extent and (b) from the 100- 
to 400-m isobaths from Pensacola, Florida, to Mobile Bay, Alabama for 
the biologically important area identified by LaBrecque et al. (2015) 
for Bryde's whale, which in the proposed rule is not fully capturing 
the extent of important habitat within the De Soto Canyon. A Commenter 
also recommends moving, as necessary, the ship shock trial area farther 
offshore to allow a minimum of a five nmi buffer between the expanded 
Area 2 (as recommended above) in the GOMEX Planning Awareness 
Mitigation Areas and the ship shock trial area, and restricting the 
Navy from conducting underwater detonations in Area 2 in the GOMEX 
Planning Awareness Mitigation Areas. Further, a Commenter recommends 
that NMFS require the Navy to implement year-round speed restrictions 
of no more than 10 kn during vessel transits in Area 2 of the GOMEX 
Planning Awareness Mitigation Areas.
    Response: Since the proposed rule, the Navy has agreed to the 
addition of a year-round, Bryde's Whale Mitigation Area which will 
cover the BIA as described in NMFS' 2016 Status Review and include the 
area between 100 to 400 m isobaths between 87.5 degrees W to 27.5 
degrees N. The Navy has agreed to move the northern GOMEX ship shock 
trial box west, out of the Bryde's whale BIA/Bryde's Whale Mitigation 
Area, including a five nmi buffer. Within the mitigation area, the Navy 
will not conduct more than 200 hrs of hull-mounted MFAS per year and 
will not use explosives (except during mine warfare activities). The 
Navy will report the total hours and counts of active sonar and in-
water explosives used in the mitigation area in its annual training and 
testing activity reports submitted to NMFS. Based on the Navy's 
assessment of practicality and effects on mission effectiveness and 
personnel safety, which NMFS reviewed and concurs with, the new 
mitigation represents the maximum level of mitigation that is 
practicable to implement within this area. Due to low numbers of 
Bryde's whale, almost exclusively limited to the GOMEX, and limited 
Navy ship traffic that overlaps with Bryde's whale habitat, the Navy 
does not anticipate any ship strike takes. Furthermore, there have been 
no documented Bryde's whale ship strikes by Navy vessels; therefore, 
the speed restrictions would not lower the already low potential for 
ship strike for this species. Further, the Navy will implement 
procedural mitigation during any vessel movements to reduce potential 
ship strike for all marine mammals including Bryde's whales.
    Comment 47: A Commenter recommended prohibiting or reducing 
deployment of all unit-level active low-, mid-, and high-frequency 
sonar and underwater explosives in the GOMEX Planning Awareness 
Mitigation Areas or alternatively, and less preferably, reducing the 
number of hours allowable in a given year.
    Response: Since the proposed rule, the Navy expanded and renamed a 
portion of the GOMEX Planning Awareness Mitigation Areas as the Bryde's 
Whale Mitigation Area. As described in more detail in Comment Response 
46, the Bryde's Whale Mitigation Area allows a limited amount of MFAS 
and prohibits the use of explosives. The Navy also will now not conduct 
MTEs in the GOMEX Planning Awareness Mitigation Areas.
    However, the Navy has communicated that the GOMEX encompasses part 
of the primary water space in the AFTT Study Area where unit-level 
training, integrated training, and deployment certification exercises 
occur and it is critical for these and other training and testing 
activities. The Navy conducts training and testing activities in the 
GOMEX because this region provides valuable access to air and sea space 
conditions that are analogous to areas where the Navy operates or may 
need to operate in the future. This contributes to ensure safety of 
personnel, skill proficiency, and validation of testing program 
requirements. For training, areas in this region where exercises are 
scheduled to occur are chosen to allow for the realistic tactical 
development of the myriad of training scenarios Navy units are required 
to complete to be mission effective. Certain activities, such as 
deployment certification exercises using integrated warfare components, 
require large areas of the littorals and open ocean for realistic and 
safe training. Locations for other training activities are chosen due 
to the proximity of associated training ranges (e.g., Pensacola 
Operating Area); available airspace (e.g., avoiding airspace conflicts 
with major airports, such as Key West International Airport); 
unobstructed sea space (e.g., throughout the New Orleans Operating 
Area); aircraft emergency landing fields (e.g., Naval Air Station 
Pensacola), and with consideration of public safety (e.g., avoiding 
areas popular for recreational boating). Areas where testing events are 
scheduled to occur are chosen to allow the Navy to test systems and 
platforms in a variety of bathymetric and environmental conditions to 
ensure functionality and accuracy in real world environments. Test 
locations are typically located near the support facilities of the 
systems commands, which provide critical safety, platforms, and 
infrastructure support and technical expertise necessary to conduct 
testing (e.g., proximity to air squadrons). Based on the Navy's 
assessment of practicality and effects on mission effectiveness and 
personnel safety, which NMFS reviewed and concurs with, the Bryde's 
Whale Mitigation Area includes the maximum level of mitigation that is 
practicable to implement within this area.

Additional Mitigation Areas

    Comment 48: A Commenter recommends adding additional mitigation 
areas for (1) the Charleston Bump (year-round), (2) coastal bottlenose 
dolphin habitat within the DWH oil spill area, and (3) habitat based 
management for the Cul de Sac, Great Bahama Canyon.
    Response: First, we note regarding the Charleston Bump, the 
commenter cites the importance of the area to fish larvae and spawning, 
fishing, and sea turtles, with only a general reference to ``a 
diversity of marine mammals,'' without any indication that limiting 
activities in the area would reduce impacts to marine mammal species 
and stocks or their habitat. Regarding protection of coastal bottlenose 
dolphins affected by the Deepwater Horizon (DWH) oil spill, we note 
that of all the Northern GOMEX Estuarine stocks, only one overlaps with 
stressors from the Navy's activities, and that stock is authorized for 
one take by Level B harassment.
    More importantly, separate from the fact that little, if any, 
protection of marine mammals would be achieved through the adoption of 
the recommended measures, the Navy has assessed the practicality and 
effect of these recommendations on mission effectiveness and personnel 
safety and determined that the measures would be impracticable, and 
NMFS concurs with this determination.

[[Page 57129]]

    In its assessment of potential mitigation, the Navy considered 
implementing additional restrictions on active sonar and explosives in 
the U.S. mid-Atlantic and GOMEX regions, including at the Charleston 
Bump and areas affected by the DWH oil spill. Navy operators determined 
that implementing additional mitigation beyond what is described in 
Section 5.4.3 and Section 5.4.4 (Mitigation Areas off the mid-Atlantic 
and Southeastern United States and Mitigation Areas in the GOMEX) of 
the AFTT FEIS/OEIS would be impracticable due to implications for 
safety (the ability to avoid potential hazards), sustainability 
(maintain readiness), and the Navy's ability to continue meeting its 
Title 10 requirements to successfully accomplish military readiness 
objectives.
    It would be impracticable to implement additional mitigation in the 
U.S. mid-Atlantic and GOMEX for several reasons. The Navy has indicated 
that the mitigation identified in Section 5.4 (Mitigation Areas to be 
Implemented) of the AFTT FEIS/OEIS represents the maximum mitigation 
within the identified mitigation areas that is practicable to implement 
under the proposed activities. The Navy has communicated that 
operational input indicates that designating additional mitigation 
areas (including the Charleston Bump and areas affected by the DWH oil 
spill) would (1) have a significant impact on the ability for units to 
meet their individual training and certification requirements, 
preventing them from deploying with the required level of readiness 
necessary to accomplish their missions); (2) the ability to certify 
strike groups to deploy to meet national security tasking (limiting the 
flexibility of Combatant Commanders and warfighters to project power, 
engage in multi-national operations, and conduct the full range of 
naval warfighting capability in support of national security 
interests); (3) the ability of program managers and weapons system 
acquisition programs to meet testing requirements and required 
acquisition milestones; (4) operational costs (due to extending 
distance offshore, which would increase fuel consumption, maintenance, 
and time on station to complete required training and testing 
activities); (5) the safety risk associated with conducting training 
and testing at extended distances offshore (farther away from critical 
medical and search and rescue capabilities); (6) accelerated fatigue-
life of aircraft and ships (leading to increased safety risk and higher 
maintenance costs); (7) training and testing realism (due to reduced 
access to necessary environmental or oceanographic conditions that 
replicate potential real world areas in which combat may occur); and 
(8) the ability for Navy Sailors to train and become proficient in 
using the sensors and weapons systems as would be required in a real 
world combat situation.
    Furthermore, the iterative and cumulative impact of all commenter-
proposed mitigation areas and seasonal or temporal restrictions would 
deny national command authorities the flexibility to respond to 
national security challenges and incur significant restrictions to 
required training and testing that entail movements to multiple 
operational areas along the Eastern seaboard and the GOMEX to conduct 
training within set time frames. Likewise, this iterative and 
cumulative impact would deny weapons system program managers and 
research, testing, and development program managers the flexibility to 
rapidly field or develop necessary systems due to the required use of 
multiple areas within limited timeframes. Additional information 
regarding the operational importance, significant negative impacts on 
Navy training and testing activities, and impracticability of 
implementing the mitigation area in each geographic region mentioned is 
provided in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS.
    Regarding Cul de Sac, Bahamas, the Navy did not consider mitigation 
for the Cul de Sac because it is not part of the AFTT Study Area. 
Therefore, NMFS did not consider mitigation in the final rule for the 
Cul de Sac because it is not part of the AFTT Study Area.
    Comment 49: A Commenter recommends that efforts be undertaken to 
identify additional important habitat areas across the AFTT Study Area, 
using the full range of data and information available (e.g., habitat-
based density models, NOAA-recognized BIAs, survey data, etc.).
    Response: NMFS and the Navy used the best available scientific 
information (e.g., SARs; Roberts et al., 2016, 2017; and numerous study 
reports from Navy-funded monitoring and research in the specific 
geographic region) in assessing density, distribution, and other 
information regarding marine mammal use of habitats in the AFTT Study 
Area. In addition, NMFS consulted LaBrecque et al. (2015), which 
provides a specific, detailed assessment of known BIAs, which may be 
region-, species-, and/or time-specific, include reproductive areas, 
feeding areas, migratory corridors, and areas in which small and 
resident populations are concentrated.
    Comment 50: A Commenter recommended establishing stand-off 
distances around the Navy's mitigation areas to the greatest extent 
practicable, allowing for variability in size given the location of the 
area, the type of operation at issue, and the species of concern.
    Response: Mitigation areas are typically developed in consideration 
of both the area that is being protected and the distance from the 
stressor in question that is appropriate to maintain to ensure the 
protection. Sometimes this results in the identification of the area 
plus a buffer, and sometimes both the protected area and the buffer are 
considered together in the designation of the edge of the area. We note 
that the edges of a protected area are typically of less importance to 
a protected stock or behavior, since important areas often have a 
density gradient that lessens towards the edge. In addition, while a 
buffer of a certain size may be ideal to alleviate all impacts of 
concern, a lessened buffer does not mean that the protective value is 
significantly reduced, as the core of the area is still protected. 
Also, one should not assume that activities are constantly occurring in 
the area immediately adjacent to the protected area. These issues were 
considered here, and the Navy has indicated that the mitigation 
identified in Section 5.4 (Mitigation Areas to be Implemented) of the 
AFTT FEIS/OEIS represents the maximum mitigation within mitigation 
areas and the maximum size of mitigation areas that are practicable to 
implement under the proposed activities. The Navy has communicated (and 
NMFS concurs with the assessment) that implementing additional 
mitigation (e.g., stand-off distances that would extend the size of the 
mitigation areas) beyond what is described in Section 5.4 (Mitigation 
Areas to be Implemented) of the AFTT FEIS/OEIS would be impracticable 
due to implications for safety (the ability to avoid potential 
hazards), sustainability (based on the amount and type of resources 
available, such as funding, personnel, and equipment)), and the Navy's 
ability to continue meeting its Title 10 requirements.
Additional Mitigation Research
    Comment 51: Commenters recommend that NMFS consider additional 
mitigation measures to prescribe or research including (1) research 
into sonar signal modifications, (2) thermal detection systems, (3) 
mitigation and research on Navy ship speeds, including requiring the 
Navy to

[[Page 57130]]

collect and report data on ship speed as part of the EIS process; and 
(4) compensatory mitigation for the adverse impacts of the permitted 
activity on marine mammals and their habitat that cannot be prevented 
or mitigated.
    Response: NMFS consulted with the Navy regarding potential research 
into additional mitigation measures, as follows:
    1. Research into sonar signal modification--Sonar signals are 
designed explicitly to provide optimum performance at detecting 
underwater objects (e.g., submarines) in a variety of acoustic 
environments. The Navy acknowledges that there is very limited data, 
and some suggest that up or down sweeps of the sonar signal may result 
in different animal reactions; however, this is a very small data 
sample, and this science requires further development. If future 
studies indicate this could be an effective approach, then NMFS and the 
Navy will investigate the feasibility and practicability to modify 
signals, based on tactical considerations and cost, to determine how it 
will affect the sonar's performance.
    2. Thermal detection--The Office of Naval Research Marine Mammals 
and Biology program is currently funding an ongoing project (2013-2018) 
that is testing the thermal limits of infrared based automatic whale 
detection technology (Principal Investigators: Olaf Boebel and Daniel 
Zitterbart). This project is focused on (1) capturing whale spouts at 
two different locations featuring subtropical and tropical water 
temperatures, (2) optimizing detector/classifier performance on the 
collected data, and (3) testing system performance by comparing system 
detections with concurrent visual observations. In addition, the 
Defense Advanced Research Projects Agency (DARPA) has funded six 
initial studies to test and evaluate current technologies and 
algorithms to automatically detect marine mammals (IR thermal detection 
being one of the technologies) on an unmanned surface vehicle. Based on 
the outcome of these initial studies, follow-on efforts and testing are 
planned for 2018-2019.
    3. Mitigation for the Navy to collect and report data on ship speed 
as part of the EIS--The Navy conducted an operational analysis of 
potential mitigation areas throughout the entire Study Area to consider 
a wide range of mitigation options, including but not limited to vessel 
speed restrictions. As discussed in Section 3.0.3.3.4.1 (Vessels and 
In-Water Devices) of the AFTT FEIS/OEIS, Navy ships transit at speeds 
that are optimal for fuel conservation or to meet operational 
requirements. Operational input indicated that implementing additional 
vessel speed restrictions beyond what is identified in Section 5.4 
(Mitigation Areas to be Implemented) of the AFTT FEIS/OEIS would be 
impracticable to implement due to implications for safety and 
sustainability. In its assessment of potential mitigation, the Navy 
considered implementing additional vessel speed restrictions (e.g., 
expanding the 10 kn restriction to other activities). The Navy 
determined that implementing additional vessel speed restrictions 
beyond what is described in Section 5.5.2.2 (Restricting Vessel Speed) 
of the AFTT FEIS/OEIS would be impracticable due to implications for 
safety (the ability to avoid potential hazards), sustainability 
(maintain readiness), and the Navy's ability to continue meeting its 
Title 10 requirements to successfully accomplish military readiness 
objectives. Additionally, as described in Section 5.5.2.2 (Restricting 
Vessel Speed) of the AFTT FEIS/OEIS, any additional vessel speed 
restrictions would prevent vessel operators from gaining skill 
proficiency, would prevent the Navy from properly testing vessel 
capabilities, or would increase the time on station during training or 
testing activities as required to achieve skill proficiency or properly 
test vessel capabilities, which would significantly increase fuel 
consumption. As discussed in Section 5.3.4.1 (Vessel Movement) of the 
AFTT FEIS/OEIS, the Navy implements mitigation to avoid vessel strikes 
throughout the Study Area. As directed by the Chief of Naval Operations 
Instruction (OPNAVINST) 5090.1D, Environmental Readiness Program, Navy 
vessels report all marine mammal incidents worldwide, including ship 
speed. Therefore, the data required for ship strike analysis discussed 
in the comment is already being collected. Any additional data 
collection required would create an unnecessary and impracticable 
administrative burden on the Navy.
    4. Compensatory mitigation--For years, the Navy has implemented a 
very broad and comprehensive range of measures to mitigate potential 
impacts to marine mammals from military readiness activities. As the 
AFTT FEIS/OEIS documents in Chapter 5 (Mitigation), the Navy is 
proposing to expand these measures further where practicable. Aside 
from direct mitigation, as noted by a Commenter, the Navy engages in an 
extensive spectrum of other activities that greatly benefit marine 
species in a more general manner that is not necessarily tied to just 
military readiness activities. As noted in Section 3.0.1.1 (Marine 
Species Monitoring and Research Programs) of the AFTT FEIS/OEIS, the 
Navy provides extensive investment for research programs in basic and 
applied research. The U.S. Navy is one of the largest sources of 
funding for marine mammal research in the world, which has greatly 
enhanced the scientific community's understanding of marine species 
much more generally. The Navy's support and marine mammal research 
includes: Marine mammal detection, including the development and 
testing of new autonomous hardware platforms and signal processing 
algorithms for detection, classification, and localization of marine 
mammals; improvements in density information and development of 
abundance models of marine mammals; and advancements in the 
understanding and characterization of the behavioral, physiological 
(hearing and stress response), and potentially population-level 
consequences of sound exposure on marine life. In addition, the Navy is 
a critical sponsor of the NARW Early Warning System and the winter 
aerial surveys, which have contributed to a marked reduction in vessel 
strikes of the NARW in the Southeast ESA-designated critical habitat, 
particularly by commercial vessels, which represent one of the biggest 
threats to the NARW. Compensatory mitigation is not required to be 
imposed upon federal agencies under the MMPA. Importantly, the 
Commenter did not recommend any specific measure(s), rendering it 
impossible to conduct any meaningful evaluation of its recommendation. 
Finally, many of the methods of compensatory mitigation that have 
proven successful in terrestrial settings (purchasing or preserving 
land with important habitat, improving habitat through plantings, etc.) 
are not applicable in a marine setting with such far-ranging species. 
Thus, any presumed conservation value from such an idea would be purely 
speculative at this time.
Monitoring Recommendations
    Comment 52: A Commenter recommends that NMFS prioritize Navy 
research projects of long-term monitoring that aim to provide baseline 
information and quantify the impact of training and testing activities 
at the individual, and ultimately, population level, and the 
effectiveness of mitigation. The Commenter recommends individual-level 
behavioral-response studies, such as focal follows and tagging using 
DTAGs, carried out before, during, and after Navy training and testing 
activities. The

[[Page 57131]]

Commenter recommends prioritizing DTAG studies that further 
characterize the suite of vocalizations related to social interactions. 
The Commenter recommends the use of unmanned aerial vehicles. The 
Commenter recommends that NMFS require the Navy to use these 
technologies for assessing marine mammal behavior before, during, and 
after Navy training and testing (e.g., swim speed and direction, group 
cohesion). The Commenter recommends NMFS ask the Navy to expand funding 
to explore the utility of other, simpler modeling methods that could 
provide at least an indicator of population-level effects, even if each 
of the behavioral and physiological mechanisms are not fully 
characterized. The Commenter recommends studies aimed at exploring 
other potential proxy measures of changes in population-level abundance 
in order to develop an early-detection system for populations that may 
be experiencing a decline as a result of Navy activities.
    Response: Broadly speaking, NMFS works closely with the Navy in the 
identification of monitoring priorities and the selection of projects 
to conduct, continue, modify, and/or stop through the Adaptive 
Management process, which includes annual review and debriefs by all 
scientists conducting studies pursuant to the Navy's MMPA rule. The 
process NMFS and the Navy have developed allows for comprehensive and 
timely input from the Navy and other stakeholders that is based on 
rigorous reporting out from the Navy and the researchers doing the 
work. Further, the Navy is pursuing many of the topics that the 
commenter identifies, either through the Navy monitoring required under 
the MMPA and ESA, or through Navy-funded research programs (ONR and 
LMR). We are confident that the monitoring conducted by the Navy 
satisfies the requirements of the MMPA.
    The Navy established the Strategic Planning Process under the 
marine species monitoring program to help structure the evaluation and 
prioritization of projects for funding. Section 5.1.2.2.1.3 (Strategic 
Planning Process) of the AFTT FEIS/OEIS provides a brief overview of 
the Strategic Planning Process. More detail, including the current 
intermediate scientific objectives, is available on the monitoring 
portal as well as in the Strategic Planning Process report. The Navy's 
evaluation and prioritization process is driven largely by a standard 
set of criteria that help the steering committee evaluate how well a 
potential project would address the primary objectives of the 
monitoring program. NMFS has opportunities to provide input regarding 
the Navy's intermediate scientific objectives as well as providing 
feedback on individual projects through the annual program review 
meeting and annual report. For additional information, please visit: 
https://www.navymarinespeciesmonitoring.us/about/strategic-planning-process/.
    Details on the Navy's involvement with future research will 
continue to be developed and refined by Navy and NMFS through the 
consultation and adaptive management processes, which regularly 
considers and evaluates the development and use of new science and 
technologies for Navy applications. The Navy has indicated that it will 
continue to be a leader in funding of research to better understand the 
potential impacts of Navy training and testing activities and to 
operate with the least possible impacts while meeting training and 
testing requirements.
    [ssquf] Individual-level behavioral-response studies--In addition 
to the Navy's marine species monitoring program investments for 
individual-level behavioral-response studies, the Office of Naval 
Research Marine Mammals and Biology program and the Navy's Living 
Marine Resources program continue to heavily invest in this topic. For 
example, the following studies are currently being funded.
    [ssquf] The Southern California Behavioral Response Study 
(Principal Investigators: John Calambokidis and Brandon Southall).
    [ssquf] Cuvier's Beaked Whale and Fin Whale Behavior During 
Military Sonar Operations: Using Medium-term Tag Technology to Develop 
Empirical Risk Functions (Principal Investigators: Greg Schorr and Erin 
Falcone).
    [ssquf] 3S3--Behavioral responses of sperm whales to naval sonar 
(Principal Investigators: Petter Kvadsheim and Frans-Peter Lam).
    [ssquf] Measuring the effect of range on the behavioral response of 
marine mammals through the use of Navy sonar (Principal Investigators: 
Stephanie Watwood and Greg Schorr).
    [ssquf] Behavioral response evaluations employing robust baselines 
and actual Navy training (BREVE) (Principal Investigators: Steve 
Martin, Tyler Helble, Len Thomas).
    [ssquf] Integrating remote sensing methods to measure baseline 
behavior and responses of social delphinids to Navy sonar (Principal 
Investigators: Brandon Southall, John Calambokidis, John Durban).
    2. DTAGS to characterize social communication between individuals 
of a species or stock, including mothers and calves--The Navy has 
funded a variety of projects that are collecting data that can be used 
to study social interactions amongst individuals. Examples of these 
projects include:
    [ssquf] Southern California Behavioral Response Study (Principal 
Investigators: John Calambokidis and Brandon Southall).
    [ssquf] Tagging and Tracking of Endangered NARW in Florida Waters 
(Principal Investigators: Doug Nowacek and Susan Parks). This project 
involves the use of DTAGs, and data regarding the tagged individual and 
group are collected in association with the tagging event. In addition 
to the vocalization data that is being collected on the DTAGs, data is 
collected on individual and group behaviors that are observed, 
including between mother/calf pairs when applicable. The Navy will 
continue to collect this type of data when possible.
    [ssquf] Integrating remote sensing methods to measure baseline 
behavior and responses of social delphinids to Navy sonar (Principal 
Investigators: Brandon Southall, John Calambokidis, John Durban).
    [ssquf] Acoustic Behavior of NARW (Eubalaena glacialis) Mother-Calf 
Pairs (Principal Investigators: Susan E. Parks and Sofie Van Parijs). 
The long-term goal of this project is to quantify the behavior of 
mother-calf pairs from the NARW to determine (a) why mothers and calves 
are more susceptible to collisions with vessels and, (b) the vocal 
behavior of this critical life stage to assess the effectiveness of 
passive acoustic monitoring to detect mother-calf pairs in important 
habitat areas (see https://www.onr.navy.mil/reports/FY15/mbparks.pdf).
    [ssquf] Social Ecology and Group Cohesion in Pilot Whales and Their 
Responses to Playback of Anthropogenic and Natural Sounds (Principal 
Investigator: Frants H. Jensen). This project investigates the social 
ecology and cohesion of long-finned pilot whales as part of a broad 
multi-investigator research program that seeks to understand how 
cetaceans are affected by mid-frequency sonar and other sources of 
anthropogenic noise (see https://www.onr.navy.mil/reports/FY15/mbjensen.pdf).
    3. Unmanned Aerial Vehicles to assess marine mammal behavior 
before, during, and after Navy training and testing activities (e.g., 
swim speed and direction, group cohesion)--Studies that use unmanned 
aerial vehicles to assess marine mammal behaviors and body condition 
are being funded by the Office of Naval Research Marine Mammals and 
Biology program. Although the technology shows promise, the field 
limitations associated with the use of

[[Page 57132]]

this technology has hindered the useful application in behavioral 
response studies in association with Navy training and testing events. 
For safety, research vessels cannot remain in close proximity to Navy 
vessels during Navy training or testing events, so battery life of the 
unmanned aerial vehicles has been an issue. However, as the technology 
improves, the Navy will continue to assess the applicability of this 
technology for the Navy's research and monitoring programs. An example 
project is Integrating Remote Sensing Methods to Measure Baseline 
Behavior and Responses of Social Delphinids to Navy sonar (Principal 
Investigators: Brandon Southall, John Calambokidis, and John Durban).
    4. NMFS asked the Navy to expand funding to explore the utility of 
other, simpler modeling methods that could provide at least an 
indicator of population-level effects, even if each of the behavioral 
and physiological mechanisms are not fully characterized--The Office of 
Naval Research Marine Mammals and Biology program has invested in the 
Population Consequences of Disturbance (PCoD) model, which provides a 
theoretical framework and the types of data that would be needed to 
assess population level impacts. Although the process is complicated 
and many species are data poor, this work has provided a foundation for 
the type of data that is needed. Therefore, in the future, relevant 
data that is needed for improving the analytical approaches for 
population level consequences resulting from disturbances will be 
collected during projects funded by the Navy's marine species 
monitoring program. General population level trend analysis is 
conducted by NMFS through its SARs and regulatory determinations. The 
Navy's analysis of effects to populations (species and stocks) of all 
potentially exposed marine species, including marine mammals and sea 
turtles, is based on the best available science as discussed in 
Sections 3.7 (Marine Mammals) and 3.8 (Reptiles) of the AFTT FEIS/OEIS. 
PCoD models, similar to many fisheries stock assessment models, once 
developed will be powerful analytical tools when mature. However, 
currently they are dependent on too many unknown factors for these 
types of models to produce a reliable answer.
    As discussed in the Monitoring section of this final rule, the 
Navy's marine species monitoring program typically supports 10-15 
projects in the Atlantic at any given time. Current projects cover a 
range of species and topics from collecting baseline data on occurrence 
and distribution, to tracking whales and sea turtles, to conducting 
behavioral response studies on beaked whales and pilot whales. The 
Navy's marine species monitoring web portal provides details on past 
and current monitoring projects, including technical reports, 
publications, presentations, and access to available data and can be 
found at: https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/. A list of the monitoring studies that the Navy is 
currently planning under this rule are listed at the bottom of the 
Monitoring section of this final rule.

Negligible Impact Determination

General
    Comment 53: A Commenter commented that NMFS' analytical approach is 
not transparent. NMFS applied both qualitative and quantitative 
analyses to inform its negligible impact determination. In general, 
NMFS has based negligible impact determinations associated with 
incidental take authorizations on abundance estimates provided either 
in its SARs or other more recent published literature. For the AFTT 
proposed rule, NMFS used the average population estimate as determined 
by the Navy's density models across all seasons from Roberts et al. 
(2016) rather than abundance estimates from either the SARs or 
published literature. For some species, NMFS indicated that it had 
apportioned the takes at the species or population level based on takes 
predicted at higher taxonomic levels. However, NMFS did not specify for 
which species/populations this method was used or the assumptions made. 
NMFS also did not specify how it determined the actual ``population'' 
size given that the densities differ on orders of kilometers. 
Interpolation or smoothing, and potentially extrapolation, of data 
likely would be necessary to achieve NMFS' intended goal--it is unclear 
whether any such methods were implemented.
    In addition, it is unclear whether NMFS used data from Mannocci et 
al. (2017) in a similar manner to the Roberts et al. (2016) data, which 
informed abundance estimates for the majority of species within the 
U.S. EEZ. Furthermore, NMFS did not specify how it determined the 
proportion of total takes that would occur beyond the U.S. EEZ. 
Presumably, that was based on modeling assumptions and model-estimated 
takes provided by the Navy, but this is not certain. Moreover, the 
``instances'' of the specific types of taking (i.e., mortality, Level A 
and B harassment) do not match the total takes ``inside and outside the 
U.S. EEZ'' in Tables 72-77 or those take estimates in Tables 39-41. It 
appears the ``instances'' of take columns were based on only those 
takes in the U.S. EEZ rather than the entire AFTT Study Area. Sperm 
whales, for example, have 3,880 takes that presumably would occur 
outside the U.S. EEZ and were not enumerated in the ``instances'' of 
take columns. Thus, it is unclear what types of takes those constitute. 
Given that the negligible impact determination is based on the total 
taking in the entire study area, NMFS should have partitioned the takes 
in the ``instances'' of take columns in Tables 72-77 for all activities 
that occur within and beyond the U.S. EEZ.
    Response: NMFS has added explanation in the Analysis and Negligible 
Impact Determination section to better describe the take-specific 
analysis for each stock, species, or group, as appropriate. As 
described in the footnotes, the Navy abundances referenced in the 
tables in the Analysis and Negligible Impact Determination section, 
both in and outside of the U.S. EEZ, are a reflection of summing the 
densities that are used to calculate take for each species as described 
in the Estimated Take of Marine Mammals section (i.e., including 
Roberts et al. and/or Mannocci et al. where appropriate), which means 
using Roberts et al. (2016), where available (inside the U.S EEZ), and 
Mannocci et al. (2017) outside the U.S. EEZ, as the commenter suggests. 
NMFS acknowledges that there were a few small errors in the take 
numbers in the proposed rule; however, they have been corrected (i.e., 
the take totals in Tables 39, 40, and 41 for a given stock now equal 
the ``in and outside the U.S. EEZ'' take totals in Tables 72-77) and 
the minor changes do not affect the analysis or determinations in the 
rule.
    Comment 54: A Commenter asserts that NMFS assumes that it is 
unlikely any particular subset of a stock would be taken over more than 
a few sequential days--i.e., where repeated takes of individuals are 
likely to occur, they are more likely to result from non-sequential 
exposures from different activities, and marine mammals are not 
predicted to be taken for more than a few days in a row, at most. Yet 
NMFS presents no details of the Navy's training and testing activities 
in support of this position. The Commenter cites to the fact that the 
Navy reuses certain geographic areas regularly for some specific 
exercises as a reason that repeat exposures are likely to be 
sequential.
    Response: The Commenter ignores the fact that marine mammals still 
move

[[Page 57133]]

around (some for long distances), and even if they are resident and 
Navy activities are geographically concentrated, it does not naturally 
follow that their exposures to these activities are necessarily 
temporally concentrated.
    In addition, NMFS' analyses do not uniformly assume that where 
repeated takes are likely to occur, they are more likely to result from 
non-sequential exposures. NMFS negligible impact analyses suggest that 
individuals of some stocks are likely to be taken across sequential 
days, while others are not. Multiple factors are taken into 
consideration in predicting the relative likelihood that repeated takes 
of an individual will occur sequentially, including the approximate 
predicted number of takes to an individual within a year and the manner 
in which the activities overlap the species range. For example, if the 
number of average takes per individual is less than two, the entire 
species range is contained within the AFTT Study Area, and that range 
includes a migratory pathway that moves through an area dense with 
training and testing activities (e.g., NARW), it is reasonably likely 
that every or almost every individual gets taken on at least one day. 
This means that there are relatively few takes left to distribute. 
There is no reason to think (based on species movement and activities) 
that these takes would all accrue to a few animals, or that the takes 
would occur on sequential days. In other words, even if activities 
occur in focused areas, it is highly unlikely that individual animals 
(e.g., NARW) are staying in those areas, especially given how limited 
activities are in the areas that animals (e.g., NARW) aggregate due to 
the mitigation. Alternately, if the average number of takes per animal 
is notably higher (either altogether or in a limited area such as the 
U.S. EEZ), such as 18 for beaked whales, it follows that some number of 
individuals are likely actually taken at an even higher number, and the 
higher that number, the higher the probability that when spread across 
the years, some days will be sequential. NMFS addresses these 
differences in our negligible impact analyses.
    Comment 55: A Commenter states that NMFS must consider new 
information for sperm whales in the GOMEX prior to authorizing take for 
the AFTT specified activities, particularly because of the five 
reported stranded sperm whale calves in the Gulf since October 2016. 
The Commenter asserts that NMFS must protect the Mississippi Canyon 
that provides year-round sperm whale habitat. The Commenter also states 
that NMFS should ensure heightened protection for this area for sperm 
whales as well as Bryde's whales and Cuvier's beaked whales that are 
vulnerable to harm from military activities.
    Response: NMFS considered the sperm whale information provided by 
the commenter in its negligible impact determination. There have been 
six documented sperm whales strandings in the GOMEX between 2016 and 
2018. Five sperm whales stranded in 2016, 1 whale in 2017, and zero 
whales in 2018. Based on the examination data that was available (the 
condition of the whale ranged from fresh dead to moderate/advanced 
decomposition to mummified/skeletal) there were four whales where 
findings of human interaction could not be determined. Of the two 
whales that remained, one whale showed evidence of a fishery 
interaction, and the other showed no evidence of human interaction. 
NMFS' SERO requested a consultation with the Working Group on Marine 
Mammal Unusual Mortality Events about the elevated 2016 sperm whale 
strandings, but the Working Group determined the data did not qualify 
as a UME at that time. The Working Group noted that the current number 
of four strandings for the year was only at the upper limit of the 10 
year average, that there was a very low total number of strandings in 
general in the region, and the animals were stranding during months 
that they would be expected, and therefore the findings did not meet 
the UME criteria. The SERO and our Southeast Fisheries Science Center 
will continue to coordinate with the Working Group for sharing of 
histopathology results and formulation of hypotheses.
    Separately, and as described in more detail elsewhere in the rule, 
after additional discussion with NMFS, the Navy withdrew its request 
for mortal take by vessel strike for sperm whale (GOMEX stock) due to 
the following considerations that showed that vessel strike of a whale 
from this stock is unlikely: (1) The lower number of Navy steaming days 
in the GOMEX; (2) that there have been no vessel strikes of any large 
whales since 2009 per the SAR and no Navy strikes of any large whales 
since 1995 (based on our records) in the GOMEX; (3) the lower abundance 
of sperm whales in the GOMEX, and (4) the Navy's adherence to Marine 
Species Awareness Training and adoption of additional mitigation 
measures. NMFS concurs that the strike of sperm whales in the GOMEX is 
unlikely and has not authorized mortal take. Further, nearly the entire 
important sperm whale habitat (Mississippi Canyon) is included in the 
GOMEX Planning Awareness Mitigation Areas. As stated in this final rule 
and the AFTT FEIS/OEIS, the Navy is not planning to conduct any MTEs in 
the GOMEX.
Cumulative and Aggregate Effects
    Comment 56: A Commenter commented that NMFS failed to adequately 
assess the aggregate effects of all of the Navy's activities included 
in the rule. The Commenter alleges that NMFS' lack of analysis of these 
aggregate impacts, which is essential to any negligible impact 
determination, represents a glaring omission from the proposed rule. 
Further, they assert that the agency assumes that all of the Navy's 
estimated impacts would not affect individuals or populations through 
repeated activity--even though the takes anticipated each year would 
affect the same populations and, indeed, would admittedly involve 
extensive use of some of the same biogeographic areas. While NMFS 
states that Level B behavioral harassment (aside from those caused by 
masking effects) involves a stress response that may contribute to an 
animal's allostatic load, it assumes without further analysis that any 
such impacts would be insignificant. The commenter states that both 
statements are factually insupportable given the lack of any population 
analysis or quantitative assessment of long-term effects in the 
proposed rule and the numerous deficiencies in the thresholds and 
modeling that NMFS has adopted from the Navy.
    Response: We respond to the aggregate effect comment here, and 
address the consideration of impacts from other activities in the 
response to Comment 57 immediately below.
    NMFS did analyze the aggregate effects of mortality, injury, 
masking, energetic costs, stress, hearing loss, and behavioral 
harassment from the Navy's activities in reaching the negligible impact 
determinations. Significant additional discussion has been added to the 
Analysis and Negligible Impact Determination section of the final rule 
to better explain the agency's analysis and how the potential for 
aggregate or cumulative effects on individuals relate to the overall 
negligible impact determination for each species or stock.
    In our analysis, NMFS fully considers the potential for aggregate 
effects from all Navy activities. We also consider UMEs and previous 
environmental impacts (i.e., DWH oil spill) to inform the baseline 
levels of both individual health and susceptibility to additional 
stressors, as well as stock status. Further, the species and stock-
specific assessments in the Analysis and

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Negligible Impact Determination section (which have been updated and 
expanded) pull together and address the combined mortality, injury, 
behavioral harassment, and other effects of the aggregate AFTT 
activities (and in consideration of applicable mitigation) as well as 
other information that supports our determinations that the Navy 
activities will not adversely affect any species or stocks via impacts 
on rates of recruitment or survival. We refer the reader to the 
Analysis and Negligible Impact Determination section for this analysis.
    Comment 57: Some commenters asserted that in reaching our MMPA 
findings, NMFS did not adequately consider the cumulative impacts of 
the Navy's activities when combined with the effects of other non-Navy 
activities. A Commenter adds that NMFS needs to include consideration 
of the most up-to-date information on NARW, humpback whales, and sperm 
whales, including UMEs, deaths, and recent strandings.
    Response: The preamble for NMFS' implementing regulations under 
section 101(a)(5) (54 FR 40338; September 29, 1989) explains in 
responses to comments that the impacts from other past and ongoing 
anthropogenic activities are to be incorporated into the negligible 
impact analysis via their impacts on the environmental baseline. 
Consistent with that direction, NMFS here has factored into its 
negligible impact analyses the impacts of other past and ongoing 
anthropogenic activities via their impacts on the baseline (e.g., as 
reflected in the density/distribution and status of the species, 
population size and growth rate, and other relevant stressors (such as 
incidental mortality in commercial fisheries, UMEs, or oil spills)). 
See the Analysis and Negligible Impact Determination section of this 
rule.
    Also, as described further in the Analysis and Negligible Impact 
Determination section of the final rule, NMFS evaluated the impacts of 
AFTT authorized mortality on the affected stocks in consideration of 
other anticipated human-caused mortality, including the mortality 
predicted in the SARs for other activities along with other NMFS-
permitted mortality (i.e., authorized as part of the Northeast 
Fisheries Science Center (NEFSC) rule), using multiple factors, 
including Potential Biological Removal (PBR). As described in more 
detail in the Analysis and Negligible Impact Determination section, PBR 
was designed to identify the maximum number of animals that may be 
removed from a stock (not including natural mortalities) while allowing 
that stock to reach or maintain its optimum sustainable population 
(OSP) and is also helpful in informing whether mortality will adversely 
affect annual rates of recruitment or survival in the context of a 
section 101(a)(5)(A).
    In addition, NMFS did consider the most up-to-date information on 
the three large whale species referenced by the commenter, along with 
the other potentially affected species and stocks. See the relevant 
sections of the final rule for extensive discussion on the effects of 
UMEs, deaths, recent strandings, and other factors that are affecting, 
or have the potential to affect, the species and stocks that will also 
be affected by the Navy's activities.
    Our 1989 final rule for the MMPA implementing regulations also 
addressed public comments regarding cumulative effects from future, 
unrelated activities. There we stated that such effects are not 
considered in making findings under section 101(a)(5) concerning 
negligible impact. We indicated that NMFS would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis 
and also that reasonably foreseeable cumulative effects would be 
considered under section 7 of the ESA for ESA-listed species.
    We recognize the potential for cumulative impacts, and that the 
aggregate impacts of the Navy's training and testing activities will be 
greater than the impacts of any one particular activity. The direct 
aggregate impacts of the Navy's training and testing activities were 
addressed through the associated NEPA analyses in the AFTT FEIS/OEIS 
(with NMFS as a cooperating agency), which addressed the impacts of a 
maximum amount of activities, and which NMFS has adopted as the basis 
for its Record of Decision for the issuance of the final rule and LOAs.
    In order to meet the responsibility to analyze cumulative effects 
under NEPA, the Navy, in cooperation with NMFS, evaluated the 
cumulative effects of the incremental impact of its proposed action 
when added to other past, present, and future actions (as well as the 
effects of climate change), against the appropriate resources and 
regulatory baselines. The Navy used the best available science and a 
comprehensive review of past, present, and reasonably foreseeable 
actions to develop its Cumulative Impacts analysis. This analysis is 
contained in Chapter 4 of the AFTT FEIS/OIES. As required under NEPA, 
the level and scope of the analysis is commensurate with the scope of 
potential impacts of the action and the extent and character of the 
potentially-impacted resources (e.g., the geographic boundaries for 
cumulative impacts analysis for some resources are expanded to include 
activities outside the AFTT Study Area that might impact migratory or 
wide-ranging animals), as reflected in the resource-specific 
discussions in Chapter 3 (Affected Environment and Environmental 
consequences) of the AFTT FEIS/OEIS. The AFTT FEIS/OEIS considered the 
proposed training and testing activities alongside other actions in the 
region whose impacts may be additive to those of the proposed training 
and testing. Past and present actions are also included in the 
analytical process as part of the affected environmental baseline 
conditions presented in Chapter 3 of the AFTT FEIS/OEIS. The Navy has 
done so in accordance with 1997 Council on Environmental Quality (CEQ) 
guidance. Per the guidance, a qualitative approach and best 
professional judgment are appropriate where precise measurements are 
not available. Where precise measurements and/or methodologies were 
available they were used. Guidance from CEQ states it ``is not 
practical to analyze cumulative effects of an action on the universe; 
the list of environmental effects must focus on those that are truly 
meaningful.'' Further, the U.S. EPA has reviewed the AFTT FEIS/OEIS and 
rated the document as LO--lack of objections--which means it has not 
identified any environmental impact requiring substantive changes to 
the proposal. Information on the NEPA analysis is provided in Section 
4.1.1 (Determination of Significance). Lastly, all of the potential 
effects on marine mammals from Navy training and testing were analyzed 
in Section 3.7 (Affected Environment and Environmental Consequences--
Marine mammals) of the AFTT FEIS/OEIS. Based on the best available 
science, it was determined that population-level impacts would not 
occur.
    Comment 58: A Commenter cites to the status and trajectory of NARWs 
and asserts that the negligible impact finding is unsupported for this 
species specifically. The commenter asserts that the negligible impact 
analysis must take into account all of the baseline activities that are 
known to have contributed to the species' decline, as well as other 
reasonably foreseeable activities (e.g., five seismic surveys planned 
for the Atlantic in the near future) that would affect the same 
populations impacted by the Navy's activities. The Commenter also cites 
to the number of Level B harassment takes (585) included in the 
proposed rule to support their assertions. To satisfy the negligible 
impact requirement for NARWs, the

[[Page 57135]]

Commenter asserts that NMFS must revise its impacts analysis and 
incorporate additional mitigation, such as those recommended in section 
II of Commenter's letter.
    Response: The analysis for NARW in the final rule has been updated 
and expanded since the proposed rule and more clearly addresses the 
pertinent points the commenter raises. See also the responses above for 
how NMFS took into account other activities that have or may contribute 
to the species' status (Comments and Responses 35, 36, 40, 44, and 45). 
In addition, since publication of the proposed rule, the Navy has 
removed an exercise that would have occurred in the Northeast, 
decreasing estimated takes by approximately 20 percent to 471. Further, 
the Navy has expanded the NE NARW Mitigation Area (and its associated 
protections) to match the updated NARW ESA-designated critical habitat 
and further added a requirement not to conduct MTEs in the Gulf of 
Maine Planning Awareness Area. Both of these mitigation measures 
further reduce impacts to NARW in important feeding areas. Given all of 
this, and as described in more detail in the Analysis and Negligible 
Impact Determination section of the rule, any individual NARW is likely 
to be disturbed at a low-moderate level on no more than a few likely 
non-sequential days per year, and not in biologically important areas. 
Even given the fact that some of the affected individuals may already 
have compromised health, there is nothing to suggest that such a low 
magnitude and severity of effects would result in impacts on 
reproduction or survival of any individual. For these reasons, we 
determined that the expected take will have a negligible impact on 
NARW.

NEPA

    Comment 59: A Commenter comments that NMFS cannot rely on the 
Navy's AFTT FEIS/OEIS to fulfill its obligations under NEPA because the 
Purpose and Need is too narrow and does not support NMFS' MMPA action, 
and therefore the AFTT FEIS/OEIS does not explore a reasonable range of 
alternatives.
    Response: The proposed action at issue is the Navy's proposal to 
conduct training activities in the AFTT Study Area. NMFS is a 
cooperating agency for that proposed action, as it has jurisdiction by 
law and special expertise over marine resources impacted by the 
proposed action including marine mammals and federally listed 
threatened and endangered species. Consistent with the regulations 
published by the Council on Environmental Quality (CEQ), it is common 
and sound NEPA practice for NOAA to adopt a lead agency's NEPA analysis 
when, after independent review, NOAA determines the document to be 
sufficient in accordance with 40 CFR 1506.3. Specifically here, NOAA 
must be satisfied that the AFTT EIS/OEIS adequately addresses the 
impacts of issuing the MMPA incidental take authorization and that 
NOAA's comments and concerns have been adequately addressed. There is 
no requirement in CEQ regulations that NMFS, as a cooperating agency, 
issue a separate purpose and need statement in order to ensure adequacy 
and sufficiency for adoption. Nevertheless, the Navy, in coordination 
with NMFS, has clarified the statement of Purpose and Need in the AFTT 
FEIS/OEIS to more explicitly acknowledge NMFS' action of issuing an 
MMPA incidental take authorization. NMFS also clarified how its 
regulatory role under the MMPA related to Navy's activities. NMFS' 
early participation in the NEPA process and role in shaping and 
informing analyses using its special expertise ensured that the 
analysis in the AFTT FEIS/OEIS is sufficient for purposes of NMFS' own 
NEPA obligations related to its issuance of an Incidental Take 
Authorization under the MMPA.
    Regarding the alternatives, NMFS' early involvement in development 
of the AFTT DEIS/OEIS and role in evaluating the effects of incidental 
take under the MMPA ensured that the AFTT DEIS/OEIS would include 
adequate analysis of a reasonable range of alternatives. The AFTT FEIS/
OEIS includes a No Action Alternative specifically to address what 
could happen if NMFS did not issue an MMPA authorization. The other two 
Alternatives address two action options that the Navy could potentially 
pursue while also meeting their mandated Title 10 training and testing 
responsibilities. More importantly, these alternatives fully analyze a 
comprehensive variety of mitigation measures. This mitigation analysis 
supported NMFS' evaluation of our options in potentially issuing an 
MMPA authorization, which, if the authorization may be issued, 
primarily revolves around the appropriate mitigation to prescribe. This 
approach to evaluating a reasonable range of alternatives is consistent 
with NMFS policy and practice for issuing MMPA incidental take 
authorizations. NOAA has independently reviewed and evaluated the AFTT 
EIS/OEIS, including the purpose and need statement and range of 
alternatives, and determined that the Navy's AFTT FEIS/OEIS fully 
satisfies NMFS' NEPA obligations related to its decision to issue the 
MMPA final rule and associated Letters of Authorization, and we have 
adopted it.

Use of NMFS' Acoustic Technical Guidance

    Comment 60: A Commenter does not agree with the Navy's use of NMFS 
2016 Acoustic Technical Guidance (NMFS, 2016) for purposes of 
evaluating potential auditory injury. The Commenter claims that (1) 
NOAA is considering rescinding or revising the Acoustic Technical 
Guidance (2) NMFS' use of the guidance conflicts with Executive Order 
(E.O.) 13795 (``Implementing an America-First Offshore Energy 
Strategy''); (2) Several industry groups have identified Data Quality 
flaws in the Acoustic Technical guidance; (3) the Commenter has also 
identified significant Data Quality flaws in the Acoustic Technical 
Guidance; and (4) NMFS and/or Navy's continued use of the Acoustic 
Technical Guidance violates Information Quality Act (IQA) guidelines. 
Regarding the IQA, the Commenter states that NMFS does not have an 
Office of Management and Budget (OMB)-approved Information Collection 
Request (ICR) associated with the guidance, and is therefore violating 
the IQA.
    Response: NMFS disagrees that use of the Acoustic Technical 
Guidance results in any of the claims listed by the Commenter. NMFS is 
not considering rescinding the Acoustic Technical Guidance. First, the 
use of the Acoustic Technical Guidance does not conflict with Executive 
Order 13795. Section 10 of the Executive Order called for a review of 
the technical guidance as follows: ``The Secretary of Commerce shall 
review for consistency with the policy set forth in Section 2 of this 
order and, after consultation with the appropriate Federal agencies, 
take all steps permitted by law to rescind or revise that guidance, if 
appropriate.'' To assist the Secretary in the review of the Acoustic 
Technical Guidance, NMFS solicited public comment via a 45-day public 
comment period (82 FR 24950; May 31, 2017) and hosted an interagency 
consultation meeting with representatives from ten federal agencies 
(September 25, 2017). NMFS received 62 comments directly related to the 
2016 Acoustic Technical Guidance. Comments were submitted by federal 
agencies (Bureau of Ocean Energy Management (BOEM), the Navy, the 
Marine Mammal Commission), oil and gas industry representatives, 
Members of Congress, subject matter experts, NGOs, a foreign statutory

[[Page 57136]]

advisory group, a regulatory advocacy group, and members of the public. 
Most of the comments (85 percent) recommended no changes to the 
Acoustic Technical Guidance, and no public commenter suggested 
rescinding the Acoustic Technical Guidance. The U.S. Navy, the Marine 
Mammal Commission, Members of Congress, and subject matter experts 
expressed support for the Acoustic Technical Guidance thresholds and 
weighting functions as reflecting the best available science. The 
remaining comments (15 percent) focused on additional scientific 
publications for consideration or recommended revisions to improve 
implementation of the Acoustic Technical Guidance. All public comments 
received during this review can be found at www.regulations.gov. At the 
September 25, 2017, Federal Interagency Consultation, none of the 
federal agencies recommended rescinding the Acoustic Technical 
Guidance. Federal agencies were supportive of the Acoustic Technical 
Guidance thresholds and auditory weighting functions and the science 
behind their derivation and were appreciative of the opportunity to 
provide input. Comments received at the meeting focused on improvements 
to implementation of the Acoustic Technical Guidance and 
recommendations for future working group discussions to address 
implementation of the Acoustic Technical Guidance based on any new 
scientific information as it becomes available.
    NMFS has already released a revised 2018 Acoustic Technical 
Guidance document (June 21, 2018) as a result of the review under E.O. 
13795 (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance), and the 
thresholds and weighting functions in the revised document (2018 
Acoustic Technical Guidance) are identical to those in the 2016 
Acoustic Technical Guidance. Thus, the revised version does not change 
the analysis already completed by the Navy, which relied on the 2016 
version. Additional information on the review process under Executive 
Order 13795 can be found in Appendix C of the Acoustic Technical 
Guidance.
    In addition, NMFS did comply with the OMB Peer Review Bulletin and 
IQA Guidelines in development of the technical guidance. The Acoustic 
Technical Guidance was classified as a Highly Influential Scientific 
Assessment and, as such, underwent three independent peer reviews, at 
three different stages in its development, including a follow-up to one 
of the peer reviews, prior to its dissemination by NMFS. In addition, 
there were three separate public comment periods. Responses to public 
comments were provided in a previous Federal Register notice (81 FR 
51694; August 4, 2016). Detailed information on the peer reviews and 
public comment periods conducted during development of the Acoustic 
Technical Guidance are included as an appendix to the Acoustic 
Technical Guidance.
    The Commenter is incorrect in their assumption that the Acoustic 
Technical Guidance is only based on non-impulsive Navy sonar and that 
it is radically different from impulsive sound like seismic air guns 
used in the oil and gas industry. The Commenter is also incorrect in 
stating that the application of the Acoustic Technical Guidance cannot 
practically be used to regulate seismic and other impulsive sounds 
sources and that explosives, like those used by the Navy, are not 
subject to the Acoustic Technical Guidance, but instead to a completely 
different explosive risk guidance. While it is true that there are less 
marine mammal TTS onset data available for impulsive sources compared 
to non-impulsive sources, the Acoustic Technical Guidance impulsive 
thresholds are specifically derived from data from two impulsive 
sources: (1) A seismic water gun (Finneran et al., 2002) and (2) a 
single air gun exposure (Lucke et al., 2009) (i.e., these sources are 
more similar to those used by the oil and gas industry than tactical 
sonar or tonal signals). For the evaluation of PTS onset, underwater 
explosives are subject to the same impulsive thresholds from the 
Acoustic Technical Guidance as other impulsive sources, such as seismic 
air guns or impact pile drivers (i.e., they do not have a separate set 
of criteria for potential impacts on hearing). Underwater explosives do 
have additional thresholds based on their potential to induce lung or 
gastrointestinal injury via exposure to shock waves, which are based on 
net explosive weight, as well as charge depth and animal mass.
    Regarding the comment that industry impulsive sound would be more 
appropriately assessed and regulated through Navy's explosive risk 
guidance than through the Acoustic Technical Guidance, we disagree. 
Please see our comments above regarding explosives. Overall, the 
Acoustic Technical Guidance is a scientific tool that assists in impact 
assessments and explicitly states that while it can inform regulatory 
decisions, it in no way directly mandates any specific regulatory 
decisions, actions, or mitigations. Discretion is left to regulators to 
interpret the best way to use this best available information.
    Last, regarding the Paperwork Reduction Act, there is no collection 
of information requirement associated with the Acoustic Technical 
Guidance. Rather, NMFS information collection for Applications and 
Reporting Requirements for Incidental Taking of Marine Mammals by 
Specified Activities Under the Marine Mammal Protection Act, OMB 
control number 0648-0151, was recently renewed and fully considers any 
potential additional time required as a result of using the Acoustic 
Technical Guidance, which is included in the estimated burden hours.

Description of Marine Mammals and Their Habitat in the Area of the 
Specified Activities

    Marine mammal species and their associated stocks that have the 
potential to occur in the AFTT Study Area are presented in Table 12 
along with an abundance estimate, an associated coefficient of 
variation value, and best/minimum abundance estimates. Some marine 
mammal species, such as manatees, are not managed by NMFS, but by the 
U.S. Fish and Wildlife Service and therefore not discussed below. The 
Navy anticipates the take of individuals of 39 marine mammal species by 
Level A and B harassment incidental to training and testing activities 
from the use of sonar and other transducers, in-water detonations, air 
guns, and impact pile driving/vibratory extraction. In addition, the 
Navy requested authorization for nine serious injuries or mortalities 
of four marine mammal stocks during ship shock trials, and three takes 
by serious injury or mortality from vessel strikes over the five-year 
period. One marine mammal species, the NARW, has critical habitat 
designated under the ESA in the AFTT Study Area (described below).
    The species carried forward for analysis are those likely to be 
found in the AFTT Study Area based on the most recent data available, 
and do not include stocks or species that may have once inhabited or 
transited the area but have not been sighted in recent years and 
therefore are extremely unlikely to occur in the AFTT Study Area (e.g., 
species which were extirpated because of factors such as nineteenth and 
twentieth century commercial exploitation).
    The species not carried forward for analysis include the bowhead 
whale, beluga whale, and narwhal as these would be considered 
extralimital

[[Page 57137]]

species and are not part of the AFTT seasonal species assemblage. 
Bowhead whales are likely to be found only in the Labrador Current open 
ocean area, even if in 2012 and 2014, the same bowhead whale was 
observed in Cape Cod Bay, which represents the southernmost record of 
this species in the western North Atlantic. In June 2014, a beluga 
whale was observed in several bays and inlets of Rhode Island and 
Massachusetts (Swaintek, 2014). This sighting likely represents a 
single extralimital beluga whale occurrence in the Northeast United 
States Continental Shelf Large Marine Ecosystem. There is no stock of 
narwhal that occurs in the U.S. EEZ in the Atlantic Ocean; however, 
populations from Hudson Strait and Davis Strait may extend into the 
AFTT Study Area at its northwest extreme. However, narwhals prefer cold 
Arctic waters and those wintering in Hudson Strait occur in smaller 
numbers. For these reasons, the likelihood of any Navy activities 
encountering and having any effect on any of these three species is so 
slight as to be unlikely; therefore, these species do not require 
further analysis.
    Additionally, for multiple bottlenose dolphin stocks, there was no 
potential for overlap with any stressors from Navy activities and 
therefore there would be no adverse effects (or takes), in which case, 
those stocks were not considered further. Specifically, with the 
exception of the Mississippi Sound, Lake Borgne, Bay Boudreau stock of 
bottlenose dolphins (which is addressed in the Analysis and Negligible 
Impact Determination section below), there is no potential for overlap 
of any Navy stressor with any other Northern GOMEX Bay, Sound, and 
Estuary stocks. Also, the following bottlenose dolphin stocks for the 
Atlantic do not have any potential for overlap with Navy activity 
stressors (or take), and therefore are not considered further: Northern 
South Carolina Estuarine System, Charleston Estuarine System, Northern 
Georgia/Southern South Carolina Estuarine System, Central Georgia 
Estuarine System, Southern Georgia Estuarine System, Biscayne Bay, and 
Florida Bay stocks. For the same reason, bottlenose dolphins off of 
Puerto Rico and the U.S. Virgin Islands were also not considered 
further. We note that in NMFS' draft 2018 SARs (made available since 
the proposed rule was published), NMFS has further delineated stocks 
within the Northern GOMEX Bay, Sound, and Estuary stocks since the 2017 
SAR and the Navy's application. However, the Mississippi Sound, Lake 
Borgne, Bay Boudreau stock of bottlenose dolphins remains the same, and 
the fact that no Navy stressors overlap any of the other stocks remains 
accurate, so our analysis of these stocks is unchanged. NMFS is in the 
process of writing individual SARs for each of the 31 Northern GOMEX 
Bay, Sound, and Estuary stocks. To date, six have been completed 
(including the Mississippi Sound, Lake Borgne, Bay Boudreau stock).We 
presented a detailed discussion of marine mammals and their occurrence 
in the planned action area, inclusive of important marine mammal 
habitat (e.g., critical habitat), BIAs, national marine sanctuaries, 
and UMEs in our Federal Register notice of proposed rulemaking (83 FR 
10954; March 13, 2018); please see that proposed rule or the Navy's 
application for more information. There have been no changes to 
important marine mammal habitat, BIAs, National Marine Sanctuaries, or 
ESA-designated critical habitat since the issuance of the proposed 
rule; therefore, they are not discussed further (though we note that 
NARW ESA-designated critical habitat was updated in 2016, since the 
last Navy AFTT rule, and some of the discussion in the rule references 
that). Additional information on UMEs has become available and is 
discussed following Table 12.

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    A UME is defined under section 410(6) of the MMPA as a stranding 
that is unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response. From 1991 to the present, 
there have been 36 formally recognized UMEs affecting marine mammals 
along the Atlantic Coast and the GOMEX involving species under NMFS' 
jurisdiction. Two additional UME's have been declared in 2018 since 
publication of the proposed rule that inform our analysis: The 
Northeast Pinniped UME (harbor and gray seals) in the Atlantic and the 
Southwest Florida Bottlenose dolphin UME in the GOMEX. The NARW, 
humpback whale, and minke whale UMEs on the Atlantic Coast are still 
active and involve ongoing investigations. The impacts to Barataria Bay 
bottlenose dolphins from the expired UME (discussed in the proposed 
rule) associated with the DWH oil spill in the GOMEX are thought to be 
persistent and continue to inform population analyses. The other UMEs 
expired several years ago and little is known about how the effects of 
those events might be appropriately applied to an impact assessment 
several years later. The five UMEs that could inform the current 
analysis are discussed below.

NARW UME

    Since June 7, 2017, elevated mortalities of NARW have been 
documented. To date, a total of 19 confirmed dead stranded NARW (12 in 
Canada; 7 in the United States), and five live whale entanglements in 
Canada have been observed, predominantly in the Gulf of St. Lawrence 
region of Canada and around the Cape Cod area of Massachusetts. 
Historically (2006-2016), the annual average for dead NARW strandings 
in Canada and the United States combined is 3.8 whales per year. This 
event was declared a UME and is under investigation. Full necropsy 
examinations have been conducted on 11 of the 19 whales and final 
results from the examinations are pending. Necropsy results from seven 
of the Canadian whales suggest mortalities of four whales were 
compatible with blunt trauma likely caused by vessel collision and two 
mortalities were confirmed from chronic entanglement in fishing gear 
(Daoust et al., 2017; M. Hardy personal communication to D. Fauquier on 
October 5, 2017; Meyer-Gutbrod et al., 2018; Pettis et al., 2017a). The 
seventh whale was too decomposed to determine the cause of mortality, 
but some observations in this animal suggested blunt trauma. Limited 
samples from another whale suggest

[[Page 57151]]

acute death (Daoust et al., 2018). Daoust et al. (2018) also concluded 
there were no oil and gas seismic surveys authorized in the months 
prior to or during the period over which these mortalities occurred, as 
well as no blasting or major marine development projects. All of the 
NARW that stranded in the United States that are part of the UME had 
been significantly decomposed at the time of stranding, and 
investigations have been limited. Navy was consulted as to sonar use 
and they confirmed none was used in the vicinity of any of the 
strandings.
    As part of the UME process, an independent team of scientists 
(Investigative Team) was assembled to coordinate with the Working Group 
on Marine Mammal Unusual Mortality Events to review the data collected, 
sample future whales that strand and to determine the next steps for 
the investigation. For more information on this UME, please refer to 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-north-atlantic-right-whale-unusual-mortality-event.
    While data are not yet available to statistically estimate the 
population's trend beyond 2015, three lines of evidence indicate the 
population is still in decline. First, calving rates in 2016, 2017, and 
2018 were low. Only five new calves were documented in 2017 (Pettis et 
al., 2017a), well below the number needed to compensate for expected 
mortalities (Pace et al., 2017), and no new calves were reported for 
2018. Long-term photographic identification data indicate new calves 
rarely go undetected, so these years likely represent a continuation of 
the low calving rates that began in 2012 (Kraus et al., 2007; Pace et 
al., 2017). Second, as noted above, the preliminary abundance estimate 
for 2016 is 451 individuals, down approximately 1.5 percent from 458 in 
2015. Third, since June 2017, at least 19 NARWs have died in what has 
been declared an UME as discussed above, and at least one calf died 
prior to this in April 2017 (Meyer-Gutbrod et al., 2018; NMFS 2017).

Humpback Whale UME Along the Atlantic Coast

    Since January 2016, elevated mortalities of humpback whales along 
the Atlantic coast from Maine through Florida have occurred. As of 
August 29, 2018 a total of 81 humpback strandings have occurred (26, 
33, and 22 whales in 2016, 2017, and 2018 respectively). As of April 
2017, partial or full necropsy examinations were conducted on 20 cases, 
or approximately half of the 42 strandings (at that time). Of the 20 
whales examined, 10 had evidence of blunt force trauma or pre-mortem 
propeller wounds indicative of vessel strike, which is over six times 
above the 16-year average of 1.5 whales showing signs of vessel strike 
in this region. Vessel strikes were documented for stranded humpback 
whales in Virginia (3), New York (3), Delaware (2), Massachusetts (1) 
and New Hampshire (1). NOAA, in coordination with our stranding network 
partners, continues to investigate the recent mortalities, 
environmental conditions, and population monitoring to better 
understand the recent humpback whale mortalities. At this time, vessel 
parameters (including size) are not known for each vessel-whale 
collision that lead to the death of the whales. Therefore, NOAA 
considers all sizes of vessels to be risks for whale species in highly 
trafficked areas. The Navy has investigated potential strikes and 
confirmed that it had none. This investigation is ongoing. Please refer 
to http://www.nmfs.noaa.gov/pr/health/mmume/2017humpbackatlanticume.html for more information on this UME.

Minke Whale UME Along the Atlantic Coast

    Since January 2017, elevated mortalities of minke whale along the 
Atlantic coast from Maine through South Carolina have occurred. As of 
September 9, 2018, a total of 43 strandings have occurred (27 and 16 
whales in 2017 and 2018, respectively). As of February 16, 2018 full or 
partial necropsy examinations were conducted on over 60 percent of the 
whales. Preliminary findings in several of the whales have shown 
evidence of human interactions, primarily fisheries interactions, or 
infectious disease. These findings are not consistent across all of the 
whales examined, and final diagnostic results are still pending for 
many of the cases. This investigation is ongoing. Please refer to 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-minke-whale-unusual-mortality-event-along-atlantic-coast for more 
information on this UME.

Northeast Pinniped UME Along the Atlantic Coast

    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. As of September 25, 2018, a total of 1,036 seal 
strandings have been confirmed. Full or partial necropsy examinations 
have been conducted on many of the seals and samples have been 
collected for testing. Based on testing conducted so far, the main 
pathogen found in the seals is phocine distemper virus. While initially 
detected in some animals, there is not strong evidence that avian 
influenza virus is a cause of this UME. This investigation is ongoing. 
Please refer to https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-pinniped-unusual-mortality-event-along-northeast for more information on this UME.

Southwest Florida Bottlenose Dolphin UME Along the GOMEX

    Since July 2018, elevated bottlenose dolphin mortalities have 
occurred along the Southwest coast of Florida including Collier, Lee, 
Charlotte, Sarasota, Manatee, Hillsborough, and Pinellas counties. As 
of September 27, 2018, 65 dolphins have been confirmed stranded in this 
event. Our stranding network partners have conducted full or partial 
necropsy examinations on several dolphins, with positive results for 
the red tide toxin (brevetoxin) indicating this UME is related to the 
severe bloom of a red tide that has been ongoing since November 2017. 
This investigation is ongoing. Please refer to https://www.fisheries.noaa.gov/southeast/marine-life-distress/2018-bottlenose-dolphin-unusual-mortality-event-southwest-florida for more information 
on this UME.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided a summary and discussion of the potential effects of 
the specified activity on marine mammals and their habitat in our 
Federal Register notice of proposed rulemaking (83 FR 10954; March 13, 
2018). In the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat section of the proposed rule, NMFS provided a 
description of the ways marine mammals may be affected by these 
activities in the form of serious injury or mortality, physical trauma, 
sensory impairment (permanent and temporary threshold shifts and 
acoustic masking), physiological responses (particular stress 
responses), behavioral disturbance, or habitat effects. Therefore, we 
do not reprint the information here but refer the reader to that 
document. For additional summary and discussion of recent scientific 
studies not included in the proposed rulemaking, we direct the reader 
to the AFTT FEIS/OEIS (Chapter 3, Section 3.7 Marine Mammals, http://www.aftteis.com/), which NMFS participated in the development of via 
our cooperating agency status and adopted to meet our NEPA

[[Page 57152]]

requirements. We highlight several studies below, but direct the reader 
to the AFTT FEIS/OEIS for a full compilation. As noted above, NMFS has 
reviewed and accepted the Navy's compilation and interpretation of the 
best available science contained in the AFTT FEIS/OEIS. More 
specifically, we have independently reviewed the more recent studies 
that were not included in NMFS' proposed rule and have concluded that 
the descriptions and interpretations of those studies are accurate. 
Importantly, we note that none of the newer information highlighted 
here or in the AFTT FEIS/OEIS affects our analysis in a manner that 
changes our determinations under the MMPA.
    The Acoustic Technical Guidance (NMFS 2018), which was used in the 
assessment of effects for this action, compiled, interpreted, and 
synthesized the best available scientific information for noise-induced 
hearing effects for marine mammals to derive updated thresholds for 
assessing the impacts of noise on marine mammal hearing. New data on 
killer whale hearing (Branstetter et al., 2017), harbor porpoise 
hearing (Kastelein et al., 2017a), harbor porpoise TS in response to 
airguns (Kastelein et al., 2017b) and mid-frequency sonar (Kastelein et 
al., 2017c), and harbor seal TS in response to pile-driving sounds 
(Kastelein et al., 2018) are consistent with data included and 
thresholds presented in the Acoustic Technical Guidance.
    Recent studies with captive odontocete species (bottlenose dolphin, 
harbor porpoise, beluga, and false killer whale) have observed 
increases in hearing threshold levels when individuals received a 
warning sound prior to exposure to a relatively loud sound (Nachtigall 
and Supin, 2013, 2015, Nachtigall et al., 2016a,b,c, Finneran, 2018, 
Nachtigall et al., 2018). These studies suggest that captive animals 
have a mechanism to reduce hearing sensitivity prior to impending loud 
sounds. Hearing change was observed to be frequency dependent and 
Finneran (2018) suggests hearing attenuation occurs within the cochlea 
or auditory nerve. Based on these observations on captive odontocetes, 
the authors suggest that wild animals may have a mechanism to self-
mitigate the impacts of noise exposure by dampening their hearing 
during prolonged exposures of loud sound, or if conditioned to 
anticipate intense sounds (Finneran, 2018, Nachtigall at al., 2018).
    Recent reviews have synthesized data from experimental studies 
examining marine mammal behavioral response to anthropogenic sound, and 
have documented large variances in individual behavioral responses to 
anthropogenic sound both within and among marine mammal species. These 
reviews highlight the importance of the exposure context (e.g., 
behavioral state, presence of other animals and social relationships, 
prey abundance, distance to source, presence of vessels, environmental 
parameters, etc.) in determining or predicting a behavioral response. 
As described in the Proposed Rule, in a review of experimental field 
studies to measure behavioral responses of cetaceans to sonar, Southall 
et al. (2016) observed that some individuals of different species 
display clear yet varied responses (some of which have negative 
implications), while others appear to tolerate high levels. Results 
from the studies they investigated demonstrate that responses are 
highly variable and may not be fully predictable with simple acoustic 
exposure metrics (e.g., received sound level). Rather, differences 
among species and individuals along with contextual aspects of exposure 
(e.g., behavioral state) appear to affect response probability 
(Southall et al., 2016). Dunlop et al. (2018) combined data from the 
BRAHSS (Behavioural Response of Australian Humpback whales to Seismic 
Surveys) studies designed to examine the behavioral responses of 
migrating humpback whales to various seismic array sources to develop a 
dose-response model. The model accounted for other variables such as 
presence of the vessel, array towpath relative to the migration, and 
social and environmental parameters. Authors observed that whales were 
more likely to avoid the airgun or array (defined by increasing their 
distance from the source) when they were exposed to sounds greater than 
130 dB re 1 [mu]Pa\2\[middot]s and they were within 4 km of the source 
(Dunlop et al., 2018). At sound exposure levels of 150-155 dB re 1 
[mu]Pa\2\[middot]s and less than 2.5 km from the source the model 
predicted a 50% probability of response (Dunlop et al. 2018). However, 
it was not possible to estimate the maximum response threshold as at 
the highest received levels of 160-170 dB re 1 [mu]Pa\2\[middot]s) a 
small number of whales moving rapidly and close to the source did not 
exhibit an avoidance response as defined by the study (Dunlop et al., 
2018).

Estimated Take of Marine Mammals

    This section indicates the number of takes that NMFS is 
authorizing, which are based on the amount of take that NMFS 
anticipates could occur or is likely to occur, depending on the type of 
take and the methods used to estimate it, as described in detail below. 
NMFS coordinated closely with the Navy in the development of their 
incidental take application, and with one limited exception, agrees 
that the methods the Navy put forth in their application to estimate 
take (including the model, thresholds, and density estimates), and the 
resulting numbers being authorized, are appropriate and based on the 
best available science. As noted elsewhere, additional discussion and 
subsequent analysis led both NMFS and the Navy, in coordination, to 
conclude that different take estimates for serious injury or mortality 
were appropriate, and where those numbers differ from the Navy's 
application or our proposed rule, NMFS has explicitly described our 
rationale and indicated what we consider an appropriate number of 
takes.
    Takes are predominantly in the form of harassment, but a small 
number of serious injuries or mortalities are also authorized. For 
military readiness activities, the MMPA defines ``harassment'' as: (i) 
Any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) Any act that disturbs or is likely to disturb a marine mammal 
or marine mammal stock in the wild by causing disruption of natural 
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).
    Authorized takes would primarily be in the form of Level B 
harassment, as use of the acoustic and explosive sources (i.e., sonar, 
air guns, pile driving, explosives) is more likely to result in the 
disruption of natural behavioral patterns to a point where they are 
abandoned or significantly altered (as defined specifically at the 
beginning of this section, but referred to generally as behavioral 
disruption) or TTS for marine mammals than other forms of take. There 
is also the potential for Level A harassment, however, in the form of 
auditory injury and/or tissue damage (latter from explosives only) to 
result from exposure to the sound sources utilized in training and 
testing activities. Lastly, a limited number of serious injuries or 
mortalities could occur for four species of mid-frequency cetaceans 
during ship shock trials and three serious injuries or mortalities 
total (over the five-year period) of mysticetes (except for blue 
whales) and North Atlantic sperm whales could occur through vessel 
collisions. Although we analyze the impacts of these potential serious 
injuries or mortalities that are

[[Page 57153]]

authorized, the required mitigation and monitoring measures are 
expected to minimize the likelihood that ship strike or these high 
level explosive exposures (and the associated serious injury or 
mortality) actually occur.
    Generally speaking, for acoustic impacts, we estimate the amount 
and type of harassment by considering: (1) Acoustic thresholds above 
which NMFS believes the best available science indicates marine mammals 
will be taken by Level B harassment (in this case, as defined in the 
military readiness definition of Level B harassment included above) or 
incur some degree of temporary or permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day or event; (3) the density or occurrence of marine mammals within 
these ensonified areas; and (4) and the number of days of activities or 
events. Below, we describe these components in more detail and present 
the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS, in coordination with the 
Navy, has established acoustic thresholds that identify the most 
appropriate received level of underwater sound above which marine 
mammals exposed to these sound sources could be reasonably expected to 
experience a disruption in behavior patterns to a point where they are 
abandoned or significantly altered, or to incur TTS (equated to Level B 
harassment) or PTS of some degree (equated to Level A harassment). 
Thresholds have also been developed to identify the pressure levels 
above which animals may incur non-auditory injury from exposure to 
pressure waves from explosive detonation.
    Despite the quickly evolving science, there are still challenges in 
quantifying expected behavioral responses that qualify as Level B 
harassment, especially where the goal is to use one or two predictable 
indicators (e.g., received level and distance) to predict responses 
that are also driven by additional factors that cannot be easily 
incorporated into the thresholds (e.g., context). So, while the new 
Level B behavioral harassment thresholds have been refined here to 
better consider the best available science (e.g., incorporating both 
received level and distance), they also still, accordingly, have some 
built-in conservative choices to address the challenge noted. For 
example, while duration of observed responses in the data are now 
considered in the thresholds, some of the responses that are informing 
take thresholds are of a very short duration, such that it is possible 
some of these responses might not always rise to the level of 
disrupting behavior patterns to a point where they are abandoned or 
significantly altered. In summary, we believe these Level B behavioral 
harassment thresholds are the most appropriate method for predicting 
Level B behavioral harassment given the best available science and the 
associated uncertainty. We describe the application of this Level B 
behavioral harassment threshold as identifying the ``maximum number of 
instances in which marine mammals could be reasonably expected to 
experience a disruption in behavior patterns to a point where they are 
abandoned or significantly altered.''
Hearing Impairment (TTS/PTS and Tissues Damage and Mortality)

Non-Impulsive and Impulsive

    NMFS' Acoustic Technical Guidance (NMFS, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The Acoustic Technical Guidance also 
identifies criteria to predict TTS, which is not considered injury and 
falls into the Level B harassment category. The Navy's planned activity 
includes the use of non-impulsive (sonar, vibratory pile driving/
removal) and impulsive (explosives, air guns, impact pile driving) 
sources.
    These thresholds (Tables 13-14) were developed by compiling and 
synthesizing the best available science and soliciting input multiple 
times from both the public and peer reviewers. The references, 
analysis, and methodology used in the development of the thresholds are 
described in Acoustic Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Table 13--Acoustic Thresholds Identifying the Onset of TTS and PTS for Non-Impulsive Sound Sources by Functional
                                                  Hearing Group
----------------------------------------------------------------------------------------------------------------
                                                                                     Non-impulsive
                                                                     -------------------------------------------
                      Functional hearing group                          TTS threshold SEL     PTS threshold SEL
                                                                           (weighted)            (weighted)
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans.............................................                   179                   199
Mid-Frequency Cetaceans.............................................                   178                   198
High-Frequency Cetaceans............................................                   153                   173
Phocid Pinnipeds (Underwater).......................................                   181                   201
----------------------------------------------------------------------------------------------------------------
Note: SEL thresholds in dB re 1 [mu]Pa\2\s.

    Based on the best available science, the Navy (in coordination with 
NMFS) used the acoustic and pressure thresholds indicated in Table 14 
to predict the onset of TTS, PTS, tissue damage, and mortality for 
explosives (impulsive) and other impulsive sound sources.

           Table 14--Onset of TTS, PTS, Tissue Damage, and Mortality Thresholds for Marine Mammals for Explosives and Other Impulsive Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Mean onset slight    Mean onset slight
    Functional hearing group           Species           Onset TTS         Onset PTS      GI tract injury        lung injury        Mean onset mortality
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........  All mysticetes...  168 dB SEL        183 dB SEL        237 dB Peak SPL..  Equation 1...........  Equation 2.
                                                      (weighted) or     (weighted) or
                                                      213 dB Peak SPL.  219 dB Peak SPL.

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Mid-frequency cetaceans.........  Most delphinids,   170 dB SEL        185 dB SEL        237 dB Peak SPL..
                                   medium and large   (weighted) or     (weighted) or
                                   toothed whales.    224 dB Peak SPL.  230 dB Peak SPL.
High-frequency cetaceans........  Porpoises and      140 dB SEL        155 dB SEL        237 dB Peak SPL..
                                   Kogia spp.         (weighted) or     (weighted) or
                                                      196 dB Peak SPL.  202 dB Peak SPL.
Phocidae........................  Harbor, Gray,      170 dB SEL        185 dB SEL        237 dB Peak SPL..
                                   Bearded, Harp,     (weighted) or     (weighted) or
                                   Hooded, and        212 dB Peak SPL.  218 dB Peak SPL.
                                   Ringed seals.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
Equation 1: 47.5M1/3 (1+[DRm/10.1])1/6 Pa-sec.
Equation 2: 103M1/3 (1+[DRm/10.1])1/6 Pa-sec.
M = mass of the animals in kg.
DRm = depth of the receiver (animal) in meters.
SPL = sound pressure level.

Impulsive--Air Guns and Impact Pile Driving

    Impact pile driving produces impulsive noise; therefore, the 
criteria used to assess the onset of TTS and PTS are identical to those 
used for air guns, as well as explosives (see Table 14 above) (see 
Hearing Loss from Air guns in Chapter 6, Section 6.4.3.1, Methods for 
Analyzing Impacts from Air guns in the Navy's rulemaking/LOA 
application). Refer to the Criteria and Thresholds for U.S. Navy 
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles 
technical report (U.S. Department of the Navy, 2017d) for detailed 
information on how the criteria and thresholds were derived.

Non-Impulsive--Sonar and Vibratory Pile Driving/Removal

    Vibratory pile removal (that will be used during the ELCAS) creates 
continuous non-impulsive noise at low source levels for a short 
duration. Therefore, the criteria used to assess the onset of TTS and 
PTS due to exposure to sonars (non-impulsive, see Table 13 above) are 
also used to assess auditory impacts to marine mammals from vibratory 
pile driving (see Hearing Loss from Sonar and Other Transducers in 
Chapter 6, Section 6.4.2.1, Methods for Analyzing Impacts from Sonars 
and Other Transducers in the Navy's rulemaking/LOA application). Refer 
to the Criteria and Thresholds for U.S. Navy Acoustic and Explosive 
Impacts to Marine Mammals and Sea Turtles technical report (U.S. 
Department of the Navy, 2017d) for detailed information on how the 
criteria and thresholds were derived. Non-auditory injury (i.e., other 
than PTS) and mortality from sonar and other transducers is so unlikely 
as to be discountable under normal conditions for the reasons explained 
in the proposed rule under Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat section--Acoustically Mediated Bubble 
Growth and Other Pressure-related Injury and is therefore not 
considered further in this analysis.
Behavioral Harassment
    Though significantly driven by received level, the onset of Level B 
harassment by behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2011). Based on what 
the available science indicates and the practical need to use 
thresholds based on a factor, or factors, that are both predictable and 
measurable for most activities, NMFS uses generalized acoustic 
thresholds based primarily on received level (and distance in some 
cases) to estimate the onset of Level B behavioral harassment.

Air Guns and Pile Driving

    For air guns and pile driving, NMFS predicts that marine mammals 
are likely to be taken by Level B behavioral harassment when exposed to 
underwater anthropogenic noise above received levels of 120 dB re 1 
[mu]Pa (rms) for continuous (e.g., vibratory pile-driving, drilling) 
and above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
seismic air guns) or intermittent (e.g., scientific sonar) sources. To 
estimate Level B behavioral harassment from air guns, the existing NMFS 
Level B harassment threshold of 160 dB re 1 [micro]Pa (rms) is used. 
The root mean square calculation for air guns is based on the duration 
defined by 90 percent of the cumulative energy in the impulse.
    The existing NMFS Level B harassment thresholds were also applied 
to estimate Level B behavioral harassment from impact and vibratory 
pile driving (Table 15).

    Table 15--Pile Driving Level B Harassment Thresholds Used in This
      Analysis To Predict Behavioral Responses From Marine Mammals
------------------------------------------------------------------------
Pile driving criteria (SPL, dB re 1 [mu]Pa) Level B harassment threshold
-------------------------------------------------------------------------
   Underwater vibratory (dB rms)          Underwater impact (dB rms)
------------------------------------------------------------------------
                          120                                  160
------------------------------------------------------------------------
Notes: Root mean square calculation for impact pile driving is based on
  the duration defined by 90 percent of the cumulative energy in the
  impulse. Root mean square for vibratory pile driving is calculated
  based on a representative time series long enough to capture the
  variation in levels, usually on the order of a few seconds.
dB: decibel; dB re 1 [micro]Pa: decibel referenced to 1 micropascal;
  rms: root mean square.


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Sonar

    As noted, the Navy coordinated with NMFS to propose Level B 
behavioral harassment thresholds specific to their military readiness 
activities utilizing active sonar. The way the criteria were derived is 
discussed in detail in the Criteria and Thresholds for U.S. Navy 
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles 
Technical Report (U.S. Department of the Navy, 2017d). Developing the 
new Level B harassment behavioral criteria involved multiple steps. All 
peer-reviewed published behavioral response studies conducted both in 
the field and on captive animals were examined in order to understand 
the breadth of behavioral responses of marine mammals to sonar and 
other transducers. NMFS has carefully reviewed the Navy's proposed 
Level B behavioral thresholds and establishment of cutoff distances for 
the species, and agrees that it is the best available science and is 
the appropriate method to use at this time for determining impacts to 
marine mammals from sonar and other transducers and calculating take 
and to support the determinations made in the proposed rule.
    As noted above, marine mammal responses to sound (some of which are 
considered disturbances that rise to the level of a take) are highly 
variable and context specific, i.e., they are affected by differences 
in acoustic conditions; differences between species and populations; 
differences in gender, age, reproductive status, or social behavior; or 
other prior experience of the individuals. This means that there is 
support for considering alternative approaches for estimating Level B 
behavioral harassment. Although the statutory definition of Level B 
harassment for military readiness activities means that a natural 
behavior pattern of a marine mammal is significantly altered or 
abandoned, the current state of science for determining those 
thresholds is somewhat unsettled.
    In its analysis of impacts associated with sonar acoustic sources 
(which was coordinated with NMFS), the Navy proposed an updated 
conservative approach that likely overestimates the number of takes by 
Level B harassment due to behavioral disturbance and response. Many of 
the behavioral responses identified using the Navy's quantitative 
analysis are most likely to be of moderate severity as described in the 
Southall et al., 2007 behavioral response severity scale. These 
``moderate'' severity responses were considered significant if they 
were sustained for the duration of the exposure or longer. Within the 
Navy's quantitative analysis, many reactions are predicted from 
exposure to sound that may exceed an animal's Level B behavioral 
harassment threshold for only a single exposure (a few seconds) to 
several minutes, and it is likely that some of the resulting estimated 
behavioral responses that are counted as Level B harassment would not 
constitute ``significantly altering or abandoning natural behavioral 
patterns.'' The Navy and NMFS have used the best available science to 
address the challenging differentiation between significant and non-
significant behavioral reactions (i.e., whether the behavior has been 
abandoned or significantly altered such that it qualifies as 
harassment), but have erred on the cautious side where uncertainty 
exists (e.g., counting these lower duration reactions as take), which 
likely results in some degree of overestimation of Level B behavioral 
harassment. We consider application of this Level B behavioral 
harassment threshold, therefore, as identifying the maximum number of 
instances in which marine mammals could be reasonably expected to 
experience a disruption in behavior patterns to a point where they are 
abandoned or significantly altered (i.e., Level B harassment). Because 
this is the most appropriate method for estimating Level B harassment 
given the best available science and uncertainty on the topic, it is 
these numbers of Level B harassment by behavioral disturbance that are 
analyzed in the Analysis and Negligible Impact Determination section.
    In the Navy's acoustic impact analyses during Phase II, the 
likelihood of Level B behavioral harassment in response to sonar and 
other transducers was based on a probabilistic function (termed a 
behavioral response function--BRF), that related the likelihood (i.e., 
probability) of a behavioral response (at the level of a Level B 
harassment) to the received SPL. The BRF was used to estimate the 
percentage of an exposed population that is likely to exhibit Level B 
harassment due to altered behaviors or behavioral disturbance at a 
given received SPL. This BRF relied on the assumption that sound poses 
a negligible risk to marine mammals if they are exposed to SPL below a 
certain ``basement'' value. Above the basement exposure SPL, the 
probability of a response increased with increasing SPL. Two BRFs were 
used in Navy acoustic impact analyses: BRF1 for mysticetes and BRF2 for 
other species. BRFs were not used for harbor porpoises and beaked 
whales during Phase II analyses. Instead, step functions at SPLs of 120 
dB re 1 [mu]Pa and 140 dB re 1 [mu]Pa were used for harbor porpoises 
and beaked whales, respectively, as thresholds to predict Level B 
harassment by behavioral disturbance.
    Developing the new Level B behavioral harassment criteria for Phase 
III involved multiple steps: All available behavioral response studies 
conducted both in the field and on captive animals were examined to 
understand the breadth of behavioral responses of marine mammals to 
sonar and other transducers. Marine mammal species were placed into 
behavioral criteria groups based on their known or suspected behavioral 
sensitivities to sound. In most cases these divisions were driven by 
taxonomic classifications (e.g., mysticetes, pinnipeds). The data from 
the behavioral studies were analyzed by looking for significant 
responses, or lack thereof, for each experimental session.
    The Navy used cutoff distances beyond which the potential of 
significant behavioral responses (and therefore Level B harassment) is 
considered to be unlikely (see Table 16 below). For animals within the 
cutoff distance, a behavioral response function based on a received SPL 
as presented in Chapter 3, Section 3.1.0 of the Navy's rulemaking/LOA 
application was used to predict the probability of a potential 
significant behavioral response. For training and testing events that 
contain multiple platforms or tactical sonar sources that exceed 215 dB 
re 1 [mu]Pa @ 1 m, this cutoff distance is substantially increased 
(i.e., doubled) from values derived from the literature. The use of 
multiple platforms and intense sound sources are factors that probably 
increase responsiveness in marine mammals overall. There are currently 
few behavioral observations under these circumstances; therefore, the 
Navy conservatively predicted significant behavioral responses that 
would rise to Level B harassment at further ranges as shown in Table 
16, versus less intense events.

[[Page 57156]]



  Table 16--Cutoff Distances for Moderate Source Level, Single Platform
   Training and Testing Events and for All Other Events With Multiple
    Platforms or Sonar With Source Levels at or Exceeding 215 dB re 1
                             [micro]Pa @1 m
------------------------------------------------------------------------
                                        Moderate SL/
                                       single platform  High SL/  multi-
           Criteria group              cutoff distance  platform  cutoff
                                            (km)         distance  (km)
------------------------------------------------------------------------
Odontocetes.........................                10                20
Pinnipeds...........................                 5                10
Mysticetes and Manatees.............                10                20
Beaked Whales.......................                25                50
Harbor Porpoise.....................                20               40
------------------------------------------------------------------------
Notes: dB re 1 [micro]Pa @1 m: decibels referenced to 1 micropascal at 1
  meter; km: kilometer; SL: source level.

    The information currently available regarding harbor porpoises 
suggests a very low threshold level of response for both captive and 
wild animals. Threshold levels at which both captive (Kastelein et al., 
2000; Kastelein et al., 2005) and wild harbor porpoises (Johnston, 
2002) responded to sound (e.g., acoustic harassment devices, acoustic 
deterrent devices, or other non-impulsive sound sources) are very low, 
approximately 120 dB re 1 [micro]Pa. Therefore, a SPL of 120 dB re 1 
[micro]Pa was used in the analysis as a threshold for predicting Level 
B behavioral harassment in harbor porpoises.
    The range to received sound levels in 6-dB steps from five 
representative sonar bins and the percentage of animals that may be 
taken by Level B harassment under each behavioral response function (or 
step function in the case of the harbor porpoise) are shown in Table 17 
through Table 21. Cells are shaded if the mean range value for the 
specified received level exceeds the distance cutoff range for a 
particular hearing group and therefore are not included in the 
estimated take. See Chapter 6, Section 6.4.2.1.1 (Methods for Analyzing 
Impacts from Sonars and Other Transducers) of the Navy's rulemaking/LOA 
application for further details on the derivation and use of the 
behavioral response functions, thresholds, and the cutoff distances to 
identify takes by Level B harassment, which were coordinated with NMFS. 
Table 17 illustrates the maximum likely takes (maximum number of 
instances in which marine mammals would be reasonably expected to 
experience a disruption in behavior patterns to a point where they are 
abandoned or significantly altered) for LFAS. As noted previously, NMFS 
carefully reviewed, and contributed to, Navy's proposed level B 
behavioral harassment thresholds and cutoff distances for the species, 
and agrees that these methods represent the best available science at 
this time for determining impacts to marine mammals from sonar and 
other transducers.
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Explosives

    Phase III explosive criteria for Level B behavioral harassment 
thresholds for marine mammals is the hearing groups' TTS threshold 
minus 5 dB (see Table 22 and Table 14 for the TTS thresholds for 
explosives) for events that contain multiple impulses from explosives 
underwater. This was the same approach as taken in Phase II for 
explosive analysis. See the Criteria and Thresholds for U.S. Navy 
Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles 
Technical Report (U.S. Department of the Navy, 2017d) for detailed 
information on how the criteria and thresholds were derived. NMFS 
continues to concur that this approach is the best available science 
for determining impacts to marine mammals from explosives.

    Table 22--Phase III Level B Behavioral Harassment Thresholds for
                      Explosives for Marine Mammals
------------------------------------------------------------------------
                                        Functional hearing       SEL
               Medium                         group           (weighted)
------------------------------------------------------------------------
Underwater..........................  LF                             163
Underwater..........................  MF                             165
Underwater..........................  HF                             135

[[Page 57162]]

 
Underwater..........................  PW                             165
------------------------------------------------------------------------
Note: Weighted SEL thresholds in dB re 1 [mu]Pa\2\s underwater.

Navy's Acoustic Effects Model

Sonar and Other Transducers and Explosives
    The Navy's Acoustic Effects Model calculates sound energy 
propagation from sonar and other transducers and explosives during 
naval activities and the sound received by animat dosimeters. Animat 
dosimeters are virtual representations of marine mammals distributed in 
the area around the modeled naval activity and each dosimeter records 
its individual sound ``dose.'' The model bases the distribution of 
animats over the AFTT Study Area on the density values in the Navy 
Marine Species Density Database and distributes animats in the water 
column proportional to the known time that species spend at varying 
depths.
    The model accounts for environmental variability of sound 
propagation in both distance and depth when computing the received 
sound level on the animats. The model conducts a statistical analysis 
based on multiple model runs to compute the estimated effects on 
animals. The number of animats that exceed the thresholds for effects 
is tallied to provide an estimate of the number of marine mammals that 
could be affected.
    Assumptions in the Navy model intentionally err on the side of 
overestimation when there are unknowns. Naval activities are modeled as 
though they would occur regardless of proximity to marine mammals, 
meaning that no mitigation is considered (i.e., no power down or shut 
down modeled) and without any avoidance of the activity by the animal. 
The final step of the quantitative analysis of acoustic effects is to 
consider the implementation of mitigation and the possibility that 
marine mammals would avoid continued or repeated sound exposures. For 
more information on this process, see the discussion in the Take 
Requests subsection below. Many explosions from ordnance such as bombs 
and missiles actually occur upon impact with above-water targets. 
However, for this analysis, sources such as these were modeled as 
exploding underwater. This overestimates the amount of explosive and 
acoustic energy entering the water.
    The model estimates the impacts caused by individual training and 
testing exercises. During any individual modeled event, impacts to 
individual animats are considered over 24-hour periods. The animats do 
not represent actual animals, but rather they represent a distribution 
of animals based on density and abundance data, which allows for a 
statistical analysis of the number of instances that marine mammals may 
be exposed to sound levels resulting in an effect. Therefore, the model 
estimates the number of instances in which an effect threshold was 
exceeded over the course of a year, but does not estimate the number of 
individual marine mammals that may be impacted over a year (i.e., some 
marine mammals could be impacted several times, while others would not 
experience any impact). A detailed explanation of the Navy's Acoustic 
Effects Model is provided in the technical report Quantitative Analysis 
for Estimating Acoustic and Explosive Impacts to Marine Mammals and Sea 
Turtles (U.S. Department of the Navy, 2017a).
Air Guns and Pile Driving
    The Navy's quantitative analysis estimates the sound and energy 
received by marine mammals distributed in the area around planned Navy 
activities involving air guns. See the technical report titled 
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to 
Marine Mammals and Sea Turtles (U.S. Department of the Navy, 2017a) for 
additional details. Underwater noise effects from pile driving and 
vibratory pile extraction were modeled using actual measures of impact 
pile driving and vibratory removal during construction of an ELCAS 
(Illingworth and Rodkin, 2015, 2016). A conservative estimate of 
spreading loss of sound in shallow coastal waters (i.e., transmission 
loss = 16.5*Log10 [radius]) was applied based on spreading loss 
observed in actual measurements. Inputs used in the model are provided 
in Chapter 1, Section 1.4.1.3 (Pile Driving) of the Navy's rulemaking/
LOA application, including source levels; the number of strikes 
required to drive a pile and the duration of vibratory removal per 
pile; the number of piles driven or removed per day; and the number of 
days of pile driving and removal.

Range to Effects

    The following section provides range to effects for sonar and other 
active acoustic sources as well as explosives to specific acoustic 
thresholds determined using the Navy Acoustic Effects Model. Marine 
mammals exposed within these ranges for the shown duration are 
predicted to experience the associated effect. Range to effects is 
important information in not only predicting acoustic impacts, but also 
in verifying the accuracy of model results against real-world 
situations and determining adequate mitigation ranges to avoid higher 
level effects, especially physiological effects to marine mammals.
Sonar
    The range to received sound levels in 6-dB steps from 5 
representative sonar bins and the percentage of the total number of 
animals that may exhibit a significant behavioral response (and 
therefore Level B harassment) under each behavioral response function 
(or step function in the case of the harbor porpoise) are shown in 
Table 17 through Table 21 above, respectively. See Chapter 6, Section 
6.4.2.1 (Methods for Analyzing Impacts from Sonars and Other 
Transducers) of the Navy's rulemaking/LOA application for additional 
details on the derivation and use of the behavioral response functions, 
thresholds, and the cutoff distances that are used to identify Level B 
behavioral harassment.
    The ranges to the PTS for 5 representative sonar systems for an 
exposure of 30 seconds is shown in Table 23 relative to the marine 
mammal's functional hearing group. This period (30 seconds) was chosen 
based on examining the maximum amount of time a marine mammal would 
realistically be exposed to levels that could cause the onset of PTS 
based on platform (e.g., ship) speed and a nominal animal swim speed of 
approximately 1.5 m per second. The ranges provided in the table 
include the average range to PTS, as well as the range from the minimum 
to the maximum distance at which PTS is possible for each hearing 
group.

[[Page 57163]]



           Table 23--Range to Permanent Threshold Shift (Meters) for Five Representative Sonar Systems
----------------------------------------------------------------------------------------------------------------
                                                 Approximate PTS (30 seconds) ranges (meters) \1\
                                 -------------------------------------------------------------------------------
                                   Sonar bin LF5
    Functional hearing group      (low frequency   Sonar bin MF1   Sonar bin MF4   Sonar bin MF5   Sonar bin HF4
                                   sources <180    (e.g., SQS-53   (e.g., AQS-22   (e.g., SSQ-62   (e.g., SQS-20
                                     dB source       ASW hull       ASW Dipping    ASW Sonobuoy)   Mine Hunting
                                      level)      mounted sonar)      Sonar)                          Sonar)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........               0              66              15               0               0
                                           (0-0)         (65-80)         (15-18)           (0-0)           (0-0)
Mid-frequency Cetaceans.........               0              16               3               0               1
                                           (0-0)         (16-16)           (3-3)           (0-0)           (0-2)
High-frequency Cetaceans........               0             192              31               9              34
                                           (0-0)       (170-270)         (30-40)          (8-13)         (20-85)
Phocid Seals....................               0              46              11               0               0
                                           (0-0)         (45-55)         (11-13)           (0-0)           (0-0)
----------------------------------------------------------------------------------------------------------------
\1\ PTS ranges extend from the sonar or other active acoustic sound source to the indicated distance. The
  average range to PTS is provided as well as the range from the estimated minimum to the maximum range to PTS
  in parenthesis.
Notes: ASW: Anti-submarine warfare; HF: High frequency; LF: Low frequency; MF: Mid-frequency; PTS: Permanent
  threshold shift; NA: Not applicable because there is no overlap between species and sound source.

    The tables below illustrate the range to TTS for 1, 30, 60, and 120 
seconds from five representative sonar systems (see Table 24 through 
Table 28).

     Table 24--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin LF5 Over a Representative Range of
                                     Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                Approximate TTS ranges (meters) \1\
                                                 ---------------------------------------------------------------
            Functional hearing group                Sonar bin LF5 (low frequency sources <180 dB source level)
                                                 ---------------------------------------------------------------
                                                     1 second       30 seconds      60 seconds      120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................               4               4               4               4
                                                           (0-5)           (0-5)           (0-5)           (0-5)
Mid-frequency Cetaceans.........................             222             222             331             424
                                                       (200-310)       (200-310)       (280-525)       (340-800)
High-frequency Cetaceans........................               0               0               0               0
                                                           (0-0)           (0-0)           (0-0)           (0-0)
Phocid Seals....................................               0               0               0               0
                                                           (0-0)           (0-0)           (0-0)           (0-0)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
  in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
  to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
  Notes: Ranges for 1-sec and 30-sec periods are identical for Bin MF1 because this system nominally pings every
  50 seconds, therefore these periods encompass only a single ping. PTS: Permanent threshold shift; TTS:
  Temporary threshold shift.


     Table 25--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF1 Over a Representative Range of
                                     Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                Approximate TTS ranges (meters) \1\
                                                 ---------------------------------------------------------------
            Functional hearing group                    Sonar bin MF1 (e.g., SQS-53 ASW hull mounted sonar)
                                                 ---------------------------------------------------------------
                                                     1 second       30 seconds      60 seconds      120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................            1111            1111            1655            2160
                                                      (650-2775)      (650-2775)      (800-3775)      (900-6525)
Mid-frequency Cetaceans.........................             222             222             331             424
                                                       (200-310)       (200-310)       (280-525)       (340-800)
High-frequency Cetaceans........................            3001            3001            4803            6016
                                                     (1275-8275)     (1275-8275)    (1525-13525)    (1525-16775)
Phocid Seals....................................             784             784            1211            1505
                                                      (575-1275)      (575-1275)      (850-3025)     (1025-3775)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
  in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
  to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: Ranges for 1-sec and 30-sec periods are identical for Bin MF1 because this system nominally pings every
  50 seconds, therefore these periods encompass only a single ping. ASW: Anti-submarine warfare; MF: Mid-
  frequency; PTS: Permanent threshold shift; TTS: Temporary threshold shift.


[[Page 57164]]


     Table 26--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF4 Over a Representative Range of
                                     Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                Approximate TTS ranges (meters) \1\
                                                 ---------------------------------------------------------------
            Functional hearing group                      Sonar bin MF4 (e.g., AQS-22 ASW Dipping Sonar)
                                                 ---------------------------------------------------------------
                                                     1 second       30 seconds      60 seconds      120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................              89             175             262             429
                                                        (85-120)       (160-280)       (220-575)       (330-875)
Mid-frequency Cetaceans.........................              22              36              51              72
                                                         (22-25)         (35-45)         (45-60)         (70-95)
High-frequency Cetaceans........................             270             546             729            1107
                                                       (220-575)      (410-1025)      (525-1525)      (600-2275)
Phocid Seals....................................              67             119             171             296
                                                         (65-90)       (110-180)       (150-260)       (240-700)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
  in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
  to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: ASW: Anti-submarine warfare; MF: Mid-frequency; PTS: Permanent threshold shift; TTS: Temporary threshold
  shift.


     Table 27--Ranges to Temporary Threshold Shift (Meters) for Sonar Bin MF5 Over a Representative Range of
                                     Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                Approximate TTS ranges (meters) \1\
                                                 ---------------------------------------------------------------
            Functional hearing group                         Sonar bin MF5 (e.g., SSQ-62 ASW Sonobuoy)
                                                 ---------------------------------------------------------------
                                                     1 second       30 seconds      60 seconds      120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................              11              11              16              23
                                                          (0-14)          (0-14)          (0-20)          (0-25)
Mid-frequency Cetaceans.........................               5               5              12              17
                                                          (0-10)          (0-10)          (0-15)          (0-22)
High-frequency Cetaceans........................             122             122             187             286
                                                       (110-320)       (110-320)       (150-525)       (210-750)
Phocid Seals....................................               9               9              15              22
                                                          (8-13)          (8-13)         (14-18)         (21-25)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
  in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
  to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: ASW: Anti-submarine warfare; MF: Mid-frequency; PTS: Permanent threshold shift; TTS: Temporary threshold
  shift.


     Table 28--Ranges to Temporary Threshold Shift (meters) for Sonar Bin HF4 Over a Representative Range of
                                     Environments Within the AFTT Study Area
----------------------------------------------------------------------------------------------------------------
                                                                Approximate TTS ranges (Meters) \1\
                                                 ---------------------------------------------------------------
            Functional hearing group                      Sonar bin HF4 (e.g., SQS-20 Mine Hunting Sonar)
                                                 ---------------------------------------------------------------
                                                     1 second       30 seconds      60 seconds      120 seconds
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................               1               3               5               7
                                                           (0-3)           (0-5)           (0-7)          (0-12)
Mid-frequency Cetaceans.........................              10              19              27              39
                                                          (7-17)         (11-35)         (17-60)        (22-100)
High-frequency Cetaceans........................             242             395             524             655
                                                       (100-975)      (170-1775)      (230-2775)      (300-4275)
Phocid Seals....................................               2               5               8              12
                                                           (0-5)           (0-8)          (5-13)          (8-20)
----------------------------------------------------------------------------------------------------------------
\1\ Ranges to TTS represent the model predictions in different areas and seasons within the Study Area. The zone
  in which animals are expected to suffer TTS extend from onset-PTS to the distance indicated. The average range
  to TTS is provided as well as the range from the estimated minimum to the maximum range to TTS in parenthesis.
Notes: HF: High frequency; PTS: Permanent threshold shift; TTS: Temporary threshold shift.

Explosives
    The following section provides the range (distance) over which 
specific physiological or behavioral effects are expected to occur 
based on the explosive criteria (see Chapter 6, Section 6.5.2.1.1 of 
the Navy's rulemaking/LOA application and the Navy's technical report 
Criteria and Thresholds Used to Estimate Impacts to Marine Mammals from 
Explosives) and the explosive propagation calculations

[[Page 57165]]

from the Navy Acoustic Effects Model (see Chapter 6, Section 6.5.2.1.3, 
Navy Acoustic Effects Model of the Navy's rulemaking/LOA application). 
The range to effects are shown for a range of explosive bins, from E1 
(up to 0.25 lb net explosive weight) to E17 (up to 58,000 lb net 
explosive weight) (Tables 29 through 34). Ranges are determined by 
modeling the distance that noise from an explosion would need to 
propagate to reach exposure level thresholds specific to a hearing 
group that would cause behavioral response (to the degree of Level B 
behavioral harassment), TTS, PTS, and non-auditory injury. Ranges are 
provided for a representative source depth and cluster size for each 
bin. For events with multiple explosions, sound from successive 
explosions can be expected to accumulate and increase the range to the 
onset of an impact based on SEL thresholds. Ranges to non-auditory 
injury and mortality are shown in Tables 33 and 34, respectively. Range 
to effects is important information in not only predicting impacts from 
explosives, but also in verifying the accuracy of model results against 
real-world situations and determining adequate mitigation ranges to 
avoid higher level effects, especially physiological effects to marine 
mammals. For additional information on how ranges to impacts from 
explosions were estimated, see the technical report Quantifying 
Acoustic Impacts on Marine Mammals and Sea Turtles: Methods and 
Analytical Approach for Phase III Training and Testing (U.S. Navy, 
2017b).
    Table 29 shows the minimum, average, and maximum ranges to onset of 
auditory and likely behavioral effects that rise to the level of Level 
B harassment for high-frequency cetaceans based on the developed 
thresholds.

               Table 29--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for High-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Range to effects for explosives: high frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Source depth
                    Bin                           (m)        Cluster size              PTS                       TTS                   Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................             0.1               1             446 (180-975)         1,512 (525-3,775)         2,591 (800-6,775)
                                                                        20         1,289 (440-3,025)      4,527 (1,275-10,775)      6,650 (1,525-16,525)
E2........................................             0.1               1           503 (200-1,025)         1,865 (600-3,775)       3,559 (1,025-6,775)
                                                                         2           623 (250-1,275)         2,606 (750-5,275)       4,743 (1,275-8,525)
E3........................................           18.25               1           865 (525-2,525)       3,707 (1,025-6,775)      5,879 (1,775-10,025)
                                                                        50       4,484 (1,275-7,775)     10,610 (2,275-19,775)     13,817 (2,275-27,025)
E4........................................              15               1       1,576 (1,025-2,275)       6,588 (4,525-8,775)      9,744 (7,275-13,025)
                                                                         5       3,314 (2,275-4,525)     10,312 (7,525-14,775)     14,200 (9,775-20,025)
                                                      19.8               2         1,262 (975-2,025)       4,708 (1,775-7,525)      6,618 (2,025-11,525)
                                                       198               2         1,355 (875-2,775)       4,900 (2,525-8,275)      6,686 (3,025-11,275)
E5........................................             0.1              25         3,342 (925-8,025)      8,880 (1,275-20,525)     11,832 (1,525-25,025)
E6........................................             0.1               1         1,204 (550-3,275)      4,507 (1,275-10,775)      6,755 (1,525-16,525)
                                                        30               1       2,442 (1,525-5,025)      7,631 (4,525-10,775)     10,503 (4,775-15,025)
E7........................................              15               1       3,317 (2,525-4,525)     10,122 (7,775-13,275)     13,872 (9,775-17,775)
E8........................................             0.1               1         1,883 (675-4,525)      6,404 (1,525-14,525)      9,001 (1,525-19,775)
                                                     45.75               1       2,442 (1,025-5,525)      7,079 (2,025-12,275)      9,462 (2,275-17,025)
                                                       305               1       3,008 (2,025-4,025)      9,008 (6,025-10,775)     12,032 (8,525-14,525)
E9........................................             0.1               1         2,210 (800-4,775)      6,088 (1,525-13,275)      8,299 (1,525-19,025)
E10.......................................             0.1               1         2,960 (875-7,275)      8,424 (1,525-19,275)     11,380 (1,525-24,275)
E11.......................................            18.5               1       4,827 (1,525-8,775)     11,231 (2,525-20,025)     14,667 (2,525-26,775)
                                                     45.75               1       3,893 (1,525-7,525)      9,320 (2,275-17,025)     12,118 (2,525-21,525)
E12.......................................             0.1               1       3,046 (1,275-6,775)      7,722 (1,525-18,775)     10,218 (2,025-22,525)
E16.......................................              61               1       5,190 (2,275-9,775)      7,851 (3,525-19,525)      9,643 (3,775-25,775)
E17.......................................              61               1      6,173 (2,525-12,025)     11,071 (3,775-29,275)     13,574 (4,025-37,775)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.

    Table 30 shows the minimum, average, and maximum ranges to onset of 
auditory and likely behavioral effects that rise to the level of a take 
for mid-frequency cetaceans based on the developed thresholds.

               Table 30--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for Mid-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Range to effects for explosives: mid-frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Source depth
                    Bin                           (m)        Cluster size              PTS                       TTS                   Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................             0.1               1                26 (25-50)              139 (95-370)             218 (120-550)
                                                                        20              113 (80-290)           539 (210-1,025)           754 (270-1,525)
E2........................................             0.1               1                35 (30-45)             184 (100-300)             276 (130-490)
                                                                         2                51 (40-70)             251 (120-430)             365 (160-700)
E3........................................           18.25               1                40 (35-45)             236 (190-800)           388 (280-1,275)
                                                                        50           304 (230-1,025)         1,615 (750-3,275)         2,424 (925-5,025)
E4........................................              15               1               74 (60-100)             522 (440-750)           813 (650-1,025)
                                                                         5             192 (140-260)         1,055 (875-1,525)       1,631 (1,275-2,525)
                                                      19.8               2                69 (65-70)             380 (330-470)             665 (550-750)
                                                       198               2                 48 (0-55)             307 (260-380)             504 (430-700)
E5........................................             0.1              25             391 (170-850)         1,292 (470-3,275)         1,820 (575-5,025)
E6........................................             0.1               1              116 (90-290)           536 (310-1,025)           742 (380-1,525)
                                                        30               1              110 (85-310)           862 (600-2,275)         1,281 (975-3,275)
E7........................................              15               1             201 (190-220)       1,067 (1,025-1,275)       1,601 (1,275-2,025)
E8........................................             0.1               1             204 (150-500)           802 (400-1,525)         1,064 (470-2,275)
                                                     45.75               1             133 (120-200)           828 (525-2,025)         1,273 (775-2,775)
                                                       305               1                58 (0-110)             656 (550-750)         1,019 (900-1,025)

[[Page 57166]]

 
E9........................................             0.1               1             241 (200-370)           946 (450-1,525)         1,279 (500-2,275)
E10.......................................             0.1               1             339 (230-750)         1,125 (490-2,525)         1,558 (550-4,775)
E11.......................................            18.5               1             361 (230-750)         1,744 (800-3,775)         2,597 (925-5,025)
                                                     45.75               1             289 (230-825)         1,544 (800-3,275)         2,298 (925-5,025)
E12.......................................             0.1               1             382 (270-550)         1,312 (525-2,775)         1,767 (600-4,275)
E16.......................................              61               1           885 (650-1,775)       3,056 (1,275-5,025)       3,689 (1,525-6,525)
E17.......................................              61               1         1,398 (925-2,275)       3,738 (1,525-6,775)       4,835 (1,775-9,275)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.

    Table 31 shows the minimum, average, and maximum ranges to onset of 
auditory and likely behavioral effects that rise to the level of a take 
for low-frequency cetaceans based on the developed thresholds.

               Table 31--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, and Level B Behavioral Harassment for Low-Frequency Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Range to effects for explosives: low frequency cetaceans \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Source depth
                    Bin                           (m)        Cluster size              PTS                       TTS                   Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................             0.1               1                54 (45-80)             259 (130-390)              137 (90-210)
                                                                        20             211 (110-320)           787 (340-1,525)             487 (210-775)
E2........................................             0.1               1                64 (55-75)             264 (150-400)             154 (100-220)
                                                                         2               87 (70-110)             339 (190-500)             203 (120-300)
E3........................................           18.25               1             211 (190-390)         1,182 (600-2,525)           588 (410-1,275)
                                                                        50         1,450 (675-3,275)      8,920 (1,525-24,275)      4,671 (1,025-10,775)
E4........................................              15               1             424 (380-550)       3,308 (2,275-4,775)       1,426 (1,025-2,275)
                                                                         5         1,091 (950-1,525)       6,261 (3,775-9,525)       3,661 (2,525-5,275)
                                                      19.8               2             375 (350-400)       1,770 (1,275-3,025)         1,003 (725-1,275)
                                                       198               2             308 (280-380)       2,275 (1,275-3,525)         1,092 (850-2,275)
E5........................................             0.1              25           701 (300-1,525)        4,827 (750-29,275)        1,962 (575-22,525)
E6........................................             0.1               1             280 (150-450)         1,018 (460-7,275)           601 (300-1,525)
                                                        30               1           824 (525-1,275)       4,431 (2,025-7,775)       2,334 (1,275-4,275)
E7........................................              15               1       1,928 (1,775-2,275)      8,803 (6,025-14,275)       4,942 (3,525-6,525)
E8........................................             0.1               1           486 (220-1,000)        3,059 (575-20,525)         1,087 (440-7,775)
                                                     45.75               1         1,233 (675-3,025)      7,447 (1,275-19,025)       3,633 (1,000-9,025)
                                                       305               1             937 (875-975)      6,540 (3,025-12,025)       3,888 (2,025-6,525)
E9........................................             0.1               1           655 (310-1,275)        2,900 (650-31,025)         1,364 (500-8,525)
E10.......................................             0.1               1           786 (340-7,275)        7,546 (725-49,025)        3,289 (550-26,525)
E11.......................................            18.5               1         3,705 (925-8,775)     16,488 (2,275-40,275)      9,489 (1,775-22,775)
                                                     45.75               1         3,133 (925-8,275)     16,365 (1,775-50,275)      8,701 (1,275-23,775)
E12.......................................             0.1               1           985 (400-6,025)        7,096 (800-72,775)        2,658 (625-46,525)
E16.......................................              61               1     10,155 (2,025-21,525)    35,790 (18,025-69,775)    25,946 (14,025-58,775)
E17.......................................              61               1     17,464 (8,275-39,525)    47,402 (21,025-93,275)    34,095 (16,275-86,275)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.

    Table 32 shows the minimum, average, and maximum ranges to onset of 
auditory and likely behavioral effects that rise to the level of take 
for phocids based on the developed thresholds.

                       Table 32--SEL-Based Ranges (Meters) to Onset PTS, Onset TTS, Level B Behavioral Harassment and for Phocids
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Range to effects for explosives: phocids \1\
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Source depth
                    Bin                           (m)        Cluster size              PTS                       TTS                   Behavioral
--------------------------------------------------------------------------------------------------------------------------------------------------------
E1........................................             0.1               1                50 (45-85)             242 (120-470)             360 (160-650)
                                                                        20             197 (110-380)           792 (300-1,275)         1,066 (410-2,275)
E2........................................             0.1               1                65 (55-85)             267 (140-430)             378 (190-675)
                                                                         2               85 (65-100)             345 (180-575)             476 (230-875)
E3........................................           18.25               1             121 (110-220)           689 (500-1,525)         1,074 (725-2,525)
                                                                        50           859 (600-2,025)      4,880 (1,525-10,525)      7,064 (1,775-16,275)
E4........................................              15               1             213 (190-260)       1,246 (1,025-1,775)       2,006 (1,525-3,025)
                                                                         5             505 (450-600)       2,933 (2,275-4,275)       4,529 (3,275-6,775)
                                                      19.8               2             214 (210-220)         1,083 (900-2,025)       1,559 (1,025-2,525)
                                                       198               2             156 (150-180)         1,141 (825-2,275)       2,076 (1,275-3,525)
E5........................................             0.1              25           615 (250-1,025)         2,209 (850-9,775)      3,488 (1,025-15,275)
E6........................................             0.1               1             210 (160-380)           796 (480-1,275)         1,040 (600-3,275)
                                                        30               1             359 (280-625)       1,821 (1,275-2,775)       2,786 (1,775-4,275)
E7........................................              15               1             557 (525-650)       3,435 (2,775-4,525)       5,095 (3,775-6,775)

[[Page 57167]]

 
E8........................................             0.1               1             346 (230-600)         1,136 (625-4,025)         1,708 (850-6,025)
                                                     45.75               1           469 (380-1,025)       2,555 (1,275-6,025)       3,804 (1,525-9,775)
                                                       305               1             322 (310-330)       3,222 (1,775-4,525)       4,186 (2,275-5,775)
E9........................................             0.1               1             441 (330-575)         1,466 (825-5,775)         2,142 (950-9,775)
E10.......................................             0.1               1             539 (350-900)         1,914 (875-8,525)      3,137 (1,025-15,025)
E11.......................................            18.5               1         1,026 (700-2,025)      5,796 (1,525-12,775)      8,525 (1,775-19,775)
                                                     45.75               1           993 (675-2,275)      4,835 (1,525-13,525)      7,337 (1,775-18,775)
E12.......................................             0.1               1             651 (420-900)        2,249 (950-11,025)      3,349 (1,275-16,025)
E16.......................................              61               1       2,935 (1,775-5,025)      6,451 (2,275-16,275)     10,619 (3,275-24,025)
E17.......................................              61               1       3,583 (1,775-7,525)     12,031 (3,275-29,275)     18,396 (7,275-41,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum and maximum distances due to varying propagation environments in parentheses.

    Table 33 below shows the minimum, average, and maximum ranges due 
to varying propagation conditions to non-auditory injury as a function 
of animal mass and explosive bin (i.e., net explosive weight). Ranges 
to gastrointestinal tract injury typically exceed ranges to slight lung 
injury; therefore, the maximum range to effect is not mass-dependent. 
Animals within these water volumes would be expected to receive minor 
injuries at the outer ranges, increasing to more substantial injuries, 
and finally mortality as an animal approaches the detonation point.

   Table 33--Ranges \1\ to 50 Percent Non-Auditory Injury Risk for All
                      Marine Mammal Hearing Groups
------------------------------------------------------------------------
                      Bin                               Range (m)
------------------------------------------------------------------------
E1.............................................               22 (22-35)
E2.............................................               25 (25-30)
E3.............................................               46 (35-75)
E4.............................................               63 (0-130)
E5.............................................              75 (55-130)
E6.............................................              97 (65-390)
E7.............................................            232 (200-270)
E8.............................................              170 (0-490)
E9.............................................            215 (100-430)
E10............................................            251 (110-700)
E11............................................          604 (400-2,525)
E12............................................          436 (130-1,025)
E16............................................        1,844 (925-3,025)
E17............................................     3,649 (1,000-14,025)
------------------------------------------------------------------------
\1\ Distances in meters (m). Average distance is shown with the minimum
  and maximum distances due to varying propagation environments in
  parentheses. Modeled ranges based on peak pressure for a single
  explosion generally exceed the modeled ranges based on impulse
  (related to animal mass and depth).

    Ranges to mortality, based on animal mass, are show in Table 34 
below.

                   Table 34--Ranges \1\ to 50 Percent Mortality Risk for All Marine Mammal Hearing Groups as a Function of Animal Mass
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Range to effects for air guns \1\ for 10 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                 Hearing group                        PTS (SEL)          PTS (Peak SPL)         TTS (SEL)          TTS (Peak SPL)       Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean........................              0 (0-0)           15 (15-15)              0 (0-0)           25 (25-25)      700 (250-1,025)
Low-Frequency Cetacean.........................           13 (12-13)              2 (2-2)           72 (70-80)              4 (4-4)      685 (170-1,025)
Mid-Frequency Cetacean.........................              0 (0-0)              0 (0-0)              0 (0-0)              0 (0-0)      680 (160-2,275)
Phocids........................................              0 (0-0)              2 (2-2)              3 (3-3)              4 (4-4)      708 (220-1,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
  TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.

Air Guns
    Table 35 and Table 36 present the approximate ranges in meters to 
PTS, TTS, and likely behavioral reactions that rise to the level of 
take for air guns for 10 and 100 pulses, respectively. Ranges are 
specific to the AFTT Study Area and also to each marine mammal hearing 
group, dependent upon their criteria and the specific locations where 
animals from the hearing groups and the airgun activities could 
overlap. Small air guns (12-60 in3) would be fired pierside at the 
Naval Undersea Warfare Center Division, Newport Testing Range, and at 
off-shore locations typically in the Northeast, Virginia Capes, and 
GOMEX Range Complexes. Single, small air guns lack the peak pressures 
that could cause non-auditory injury (see Finneran et al., (2015)); 
therefore, potential impacts could include PTS, TTS, and/or Level B 
behavioral harassment.

                                             Table 35--Range to Effects (Meters) From Air Guns for 10 Pulses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Range to effects for air guns \1\ for 10 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                           Hearing group                                PTS (SEL)    PTS (Peak SPL)     TTS (SEL)    TTS (Peak SPL)     Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean............................................         0 (0-0)      15 (15-15)         0 (0-0)      25 (25-25)      700 (250-1,025)
Low-Frequency Cetacean.............................................      13 (12-13)         2 (2-2)      72 (70-80)         4 (4-4)      685 (170-1,025)

[[Page 57168]]

 
Mid-Frequency Cetacean.............................................         0 (0-0)         0 (0-0)         0 (0-0)         0 (0-0)      680 (160-2,275)
Phocids............................................................         0 (0-0)         2 (2-2)         3 (3-3)         4 (4-4)      708 (220-1,025)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
  TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.


                                                 Table 36--Range to Effects From Air Guns for 100 Pulses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Range to effects for air guns \1\ for 100 pulses (m)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                           Hearing group                                PTS (SEL)    PTS (Peak SPL)     TTS (SEL)    TTS (Peak SPL)     Behavioral \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-Frequency Cetacean............................................         4 (4-4)      40 (40-40)      48 (45-50)      66 (65-70)  2,546 (1,025-5,525)
Low-Frequency Cetacean.............................................   122 (120-130)         3 (3-3)       871 (600-      13 (12-13)  2,546 (1,025-5,525)
                                                                                                             1,275)
Mid-Frequency Cetacean.............................................         0 (0-0)         0 (0-0)         0 (0-0)         0 (0-0)  2,546 (1,025-5,525)
Phocids............................................................         3 (2-3)         3 (3-3)      25 (25-25)      14 (14-15)  2,546 (1,025-5,525)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Average distance (m) to PTS, TTS, and behavioral thresholds are depicted above the minimum and maximum distances which are in parentheses. PTS and
  TTS values depict the range produced by SEL and Peak SPL (as noted) hearing threshold criteria levels.
\2\ Behavioral values depict the ranges produced by RMS hearing threshold criteria levels.

Pile Driving
    Table 37 and Table 38 present the approximate ranges in meters to 
PTS, TTS, and likely behavioral responses that rise to the level of 
take for impact pile driving and vibratory pile removal, respectively. 
Non-auditory injury is not predicted for pile driving activities.

                      Table 37--Average Ranges to Effects (Meters) From Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
                          Hearing group                               PTS (m)         TTS (m)     Behavioral (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................................              65             529             870
Mid-frequency Cetaceans.........................................               2              16             870
High-frequency Cetaceans........................................              65             529             870
Phocids.........................................................              19             151             870
----------------------------------------------------------------------------------------------------------------
Notes: PTS: Permanent threshold shift; TTS: Temporary threshold shift.


                   Table 38--Average Ranges to Effects (Meters) From Vibratory Pile Extraction
----------------------------------------------------------------------------------------------------------------
                          Hearing group                               PTS (m)         TTS (m)     Behavioral (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans.........................................               0               3             376
Mid-frequency Cetaceans.........................................               0               4             376
High-frequency Cetaceans........................................               7             116             376
Phocids.........................................................               0               2             376
----------------------------------------------------------------------------------------------------------------
Notes: PTS: Permanent threshold shift; TTS: Temporary threshold shift.

Marine Mammal Density

    A quantitative analysis of impacts on a species or stock requires 
data on their abundance and distribution that may be affected by 
anthropogenic activities in the potentially impacted area. The most 
appropriate metric for this type of analysis is density, which is the 
number of animals present per unit area. Marine species density 
estimation requires a significant amount of effort to both collect and 
analyze data to produce a reasonable estimate. Unlike surveys for 
terrestrial wildlife, many marine species spend much of their time 
submerged, and are not easily observed. In order to collect enough 
sighting data to make reasonable density estimates, multiple 
observations are required, often in areas that are not easily 
accessible (e.g., far offshore). Ideally, marine mammal species 
sighting data would be collected for the specific area and time period 
(e.g., season) of interest and density estimates derived accordingly. 
However, in many places, poor weather conditions and high sea states 
prohibit the completion of comprehensive visual surveys.
    For most cetacean species, abundance is estimated using line-
transect surveys or mark-recapture studies (e.g., Barlow, 2010, Barlow 
and Forney, 2007, Calambokidis et al., 2008). The result provides one 
single density estimate value for each species across broad geographic 
areas. This is the general approach applied in estimating cetacean 
abundance in the NMFS' SARs. Although the single value provides a good 
average estimate of abundance (total number of individuals) for a 
specified area, it does not provide information on the species 
distribution or concentrations within that area, and it does not 
estimate density for other timeframes or seasons that were not

[[Page 57169]]

surveyed. More recently, habitat modeling has been used to estimate 
cetacean densities (Barlow et al., 2009; Becker et al., 2010, 2012a, b, 
c, 2014, 2016; Ferguson et al., 2006a; Forney et al., 2012, 2015; 
Redfern et al., 2006). These models estimate cetacean density as a 
continuous function of habitat variables (e.g., sea surface 
temperature, seafloor depth, etc.) and thus allow predictions of 
cetacean densities on finer spatial scales than traditional line-
transect or mark recapture analyses and for areas that have not been 
surveyed. Within the geographic area that was modeled, densities can be 
predicted wherever these habitat variables can be measured or 
estimated.
    To characterize the marine species density for large areas such as 
the AFTT Study Area, the Navy compiled data from several sources. The 
Navy developed a protocol to select the best available data sources 
based on species, area, and time (season). The resulting Geographic 
Information System database called the Navy Marine Species Density 
Database includes seasonal density values for every marine mammal 
species present within the AFTT Study Area. This database is described 
in the technical report titled U.S. Navy Marine Species Density 
Database Phase III for the Atlantic Fleet Training and Testing Area 
(U.S. Department of the Navy, 2017), hereafter referred to as the 
density technical report.
    A variety of density data and density models are needed in order to 
develop a density database that encompasses the entirety of the AFTT 
Study Area. Because this data is collected using different methods with 
varying amounts of accuracy and uncertainty, the Navy has developed a 
model hierarchy to ensure the most accurate data is used when 
available. The density technical report describes these models in 
detail and provides detailed explanations of the models applied to each 
species density estimate. The below list describes possible models in 
order of preference.
    1. Spatial density models (see Roberts et al. (2016)) are preferred 
and used when available because they provide an estimate with the least 
amount of uncertainty by deriving estimates for divided segments of the 
sampling area. These models (see Becker et al., 2016; Forney et al., 
2015) predict spatial variability of animal presence based on habitat 
variables (e.g., sea surface temperature, seafloor depth, etc.). This 
model is developed for areas, species, and, when available, specific 
timeframes (months or seasons) with sufficient survey data; therefore, 
this model cannot be used for species with low numbers of sightings. In 
the AFTT Study Area, this model is available for certain species along 
the East Coast to the offshore extent of available survey data and in 
the GOMEX.
    2. Design-based density models predict animal density based on 
survey data. Like spatial density models, they are applied to areas 
with survey data. Design-based density models may be stratified, in 
which a density is predicted for each sub-region of a survey area, 
allowing for better prediction of species distribution across the 
density model area. In the AFTT Study Area, stratified density models 
are used for certain species on both the East Coast and the GOMEX. In 
addition, a few species' stratified density models are applied to areas 
east of regions with available survey data and cover a substantial 
portion of the Atlantic Ocean portion of the AFTT Study Area.
    3. Extrapolative models are used in areas where there is 
insufficient or no survey data. These models use a limited set of 
environmental variables to predict possible species densities based on 
environmental observations during actual marine mammal surveys (see 
Mannocci et al. (2017)). In the AFTT Study Area, extrapolative models 
are typically used east of regions with available survey data and cover 
a substantial portion of the Atlantic Ocean of the AFTT Study Area. 
Because some unsurveyed areas have oceanographic conditions that are 
very different from surveyed areas (e.g., the Labrador Sea and North 
Atlantic gyre) and some species models rely on a very limited data set, 
the predictions of some species' extrapolative density models and some 
regions of certain species' extrapolative density models are considered 
highly speculative. Extrapolative models are not used in the GOMEX.
    4. Existing Relative Environmental Suitability models include a 
high degree of uncertainty, but are applied when no other model is 
available.
    When interpreting the results of the quantitative analysis, as 
described in the density technical report (U.S. Department of the Navy, 
2017), ``it is important to consider that even the best estimate of 
marine species density is really a model representation of the values 
of concentration where these animals might occur. Each model is limited 
to the variables and assumptions considered by the original data source 
provider. No mathematical model representation of any biological 
population is perfect and with regards to marine species biodiversity, 
any single model method will not completely explain the actual 
distribution and abundance of marine mammal species. It is expected 
that there would be anomalies in the results that need to be evaluated, 
with independent information for each case, to support if we might 
accept or reject a model or portions of the model.''
    The Navy's estimate of abundance (based on the density estimates 
used) in the AFTT Study Area may differ from population abundances 
estimated in the NMFS' SARs in some cases for a variety of reasons. 
Models may predict different population abundances for many reasons. 
The models may be based on different data sets or different temporal 
predictions may be made. The SARs are often based on single years of 
NMFS surveys, whereas the models used by the Navy generally include 
multiple years of survey data from NMFS, the Navy, and other sources. 
To present a single, best estimate, the SARs often use a single season 
survey where they have the best spatial coverage (generally summer). 
Navy models often use predictions for multiple seasons, where 
appropriate for the species, even when survey coverage in non-summer 
seasons is limited, to characterize impacts over multiple seasons as 
Navy activities may occur in any season. Predictions may be made for 
different spatial extents. Many different, but equally valid, habitat 
and density modeling techniques exist and these can also be the cause 
of differences in population predictions. Differences in population 
estimates may be caused by a combination of these factors. Even similar 
estimates should be interpreted with caution and differences in models 
fully understood before drawing conclusions.
    These factors and others described in the Density Technical Report 
should be considered when examining the estimated impact numbers in 
comparison to current population abundance information for any given 
species or stock. For a detailed description of the density and 
assumptions made for each species, see the Density Technical Report.
    NMFS coordinated with the Navy in the development of its take 
estimates and concurs that the Navy's approach for density 
appropriately utilizes the best available science. Later, in the 
Analysis and Negligible Impact Determination section, we assess how the 
estimated take numbers compare to stock abundance in order to better 
understand the potential number of individuals impacted--and the 
rationale for which abundance estimate is used is included there.

[[Page 57170]]

Take Requests

    The AFTT FEIS/OEIS considered all training and testing activities 
proposed to occur in the AFTT Study Area that have the potential to 
result in the MMPA defined take of marine mammals. The Navy determined 
that the three stressors below could result in the incidental taking of 
marine mammals. NMFS has reviewed the Navy's data and analysis and 
determined that it is complete and accurate and agrees that the 
following stressors have the potential to result in takes of marine 
mammals from the Navy's planned activities.
    [ssquf] Acoustics (sonar and other transducers; air guns; pile 
driving/extraction).
    [ssquf] Explosives (explosive shock wave and sound).
    [ssquf] Physical Disturbance and Strike (vessel strike).
    NMFS reviewed and agrees with the Navy's conclusion that acoustic 
and explosive sources have the potential to result in incidental takes 
of marine mammals by harassment, serious injury, or mortality. NMFS 
carefully reviewed the Navy's analysis and conducted its own analysis 
of vessel strikes, determining that the likelihood of any particular 
species of large whale being struck is quite low. Nonetheless, NMFS 
agrees that vessel strikes have the potential to result in incidental 
take from serious injury or mortality for certain species of large 
whales and the Navy has specifically requested coverage for these 
species. Therefore, the likelihood of vessel strikes, and later the 
effects of the incidental take that is being authorized, has been fully 
analyzed and is described below.
    The quantitative analysis process used for the AFTT FEIS/OEIS and 
the Navy's take request in the rulemaking/LOA application to estimate 
potential exposures to marine mammals resulting from acoustic and 
explosive stressors is detailed in the technical report titled 
Quantitative Analysis for Estimating Acoustic and Explosive Impacts to 
Marine Mammals and Sea Turtles (U.S. Department of the Navy, 2017a). 
The Navy Acoustic Effects Model estimates acoustic and explosive 
effects without taking mitigation into account; therefore, the model 
overestimates predicted impacts on marine mammals within mitigation 
zones. To account for mitigation for marine species in the take 
estimates, the Navy conducts a quantitative assessment of mitigation. 
The Navy conservatively quantifies the manner in which procedural 
mitigation is expected to reduce model-estimated PTS to TTS for 
exposures to sonar and other transducers, and reduce model-estimated 
mortality to injury for exposures to explosives. The extent to which 
the mitigation areas reduce impacts on the affected species and stocks 
is addressed separately in the Analysis and Negligible Impact 
Determination section.
    The Navy assessed the effectiveness of its procedural mitigation 
measures on a per-scenario basis for four factors: (1) Species 
sightability, (2) a Lookout's ability to observe the range to PTS (for 
sonar and other transducers) and range to mortality (for explosives), 
(3) the portion of time when mitigation could potentially be conducted 
during periods of reduced daytime visibility (to include inclement 
weather and high sea-state) and the portion of time when mitigation 
could potentially be conducted at night, and (4) the ability for sound 
sources to be positively controlled (e.g., powered down).
    During the conduct of training and testing activities, there is 
typically at least one, if not numerous, support personnel involved in 
the activity (e.g., range support personnel aboard a torpedo retrieval 
boat or support aircraft). In addition to the Lookout posted for the 
purpose of mitigation, these additional personnel observe for and 
disseminate marine species sighting information amongst the units 
participating in the activity whenever possible as they conduct their 
primary mission responsibilities. However, as a conservative approach 
to assigning mitigation effectiveness factors, the Navy elected to only 
account for the minimum number of required Lookouts used for each 
activity; therefore, the mitigation effectiveness factors may 
underestimate the likelihood that some marine mammals may be detected 
during activities that are supported by additional personnel who may 
also be observing the mitigation zone.
    The Navy used the equations in the below sections to calculate the 
reduction in model-estimated mortality impacts due to implementing 
procedural mitigation.

Equation 1:

Mitigation Effectiveness = Species Sightability x Visibility x 
Observation Area x Positive Control

    Species Sightability is the ability to detect marine mammals and is 
dependent on the animal's presence at the surface and the 
characteristics of the animal that influence its sightability. The Navy 
considered applicable data from the best available science to 
numerically approximate the sightability of marine mammals and 
determined that the standard ``detection probability'' referred to as 
g(0) is most appropriate. Visibility = 1-sum of individual visibility 
reduction factors. Observation Area = portion of impact range that can 
be continuously observed during an event. Positive Control = positive 
control factor of all sound sources involving mitigation. For further 
details on these mitigation effectiveness factors please refer to the 
technical report titled Quantifying Acoustic Impacts on Marine Mammals 
and Sea Turtles: Methods and Analytical Approach for Phase III Training 
and Testing report (U.S. Department of the Navy, 2018).
    To quantify the number of marine mammals predicted to be sighted by 
Lookouts during implementation of procedural mitigation in the range to 
injury (PTS) for sonar and other transducers, the species sightability 
is multiplied by the mitigation effectiveness scores and number of 
model-estimated PTS impacts, as shown in the equation below:

Equation 2:

Number of Animals Sighted by Lookouts = Mitigation Effectiveness x 
Model-Estimated Impacts

    The marine mammals sighted by Lookouts during implementation of 
mitigation in the range to PTS, as calculated by the equation above, 
would avoid being exposed to these higher level impacts. The Navy 
corrects the category of predicted impact for the number of animals 
sighted within the mitigation zone (e.g., shifts PTS to TTS), but does 
not modify the total number of animals predicted to experience impacts 
from the scenario.
    To quantify the number of marine mammals predicted to be sighted by 
Lookouts during implementation of procedural mitigation in the range to 
mortality during events using explosives, the species sightability is 
multiplied by the mitigation effectiveness scores and number of model-
estimated mortality impacts, as shown in equation 1 above. The marine 
mammals predicted to be sighted by Lookouts during implementation of 
procedural mitigation in the range to mortality, as calculated by the 
above equation 2, are predicted to avoid exposure in these ranges. The 
Navy corrects the category of predicted impact for the number of 
animals sighted within the mitigation zone, but does not modify the 
total number of animals predicted to experience impacts from the 
scenario. For example, the number of animals sighted (i.e., number of 
animals that will avoid mortality) is first subtracted from the model-
predicted mortality impacts, and then

[[Page 57171]]

added to the model-predicted injurious impacts.
    The Navy coordinated with NMFS in the development of this 
quantitative method to address the effects of procedural mitigation on 
acoustic and explosive exposures and takes, and NMFS independently 
reviewed and concurs with the Navy that it is appropriate to 
incorporate the quantitative assessment of mitigation into the take 
estimates based on the best available science. For additional 
information on the quantitative analysis process and mitigation 
measures, refer to Chapter 6 (Take Estimates for Marine Mammals) and 
Chapter 11 (Mitigation Measures) of the Navy's rulemaking/LOA 
application.
    In summary, we believe the Navy's methods, including the method for 
incorporating mitigation and avoidance, are the most appropriate 
methods for predicting PTS and TTS. But even with the consideration of 
mitigation and avoidance, given some of the more conservative 
components of the methodology (e.g., the thresholds do not consider ear 
recovery between pulses), we would describe the application of these 
methods as identifying the maximum number of instances in which marine 
mammals would be reasonably expected to incur either TTS or PTS.
Authorized Take From Training Activities
    For training activities, Table 39 summarizes the Navy's take 
request and the maximum amount and type of take by harassment that NMFS 
concurs is reasonably likely to occur by species or stock. Authorized 
mortality is addressed further down. Navy Figures 6.4-10 through 6.5-69 
in Chapter 6 of the Navy's rulemaking/LOA application illustrate the 
comparative amounts of TTS and Level B behavioral harassment for each 
species, noting that if a ``taken'' animat was exposed to both TTS and 
Level B behavioral harassment in the model, it was recorded as a TTS.

                     Table 39--Species and Stock-Specific Take From All Training Activities
----------------------------------------------------------------------------------------------------------------
                                                              Annual                       5-Year total
                                                 ---------------------------------------------------------------
            Species                   Stock           Level B         Level A         Level B         Level A
                                                    harassment      harassment      harassment      harassment
----------------------------------------------------------------------------------------------------------------
                                       Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
                                        Family Balaenidae (right whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..  Western.........             245               0           1,177               0
----------------------------------------------------------------------------------------------------------------
                                        Family Balaenopteridae (roquals)
----------------------------------------------------------------------------------------------------------------
Blue whale *..................  Western North                 26               0             121               0
                                 Atlantic (Gulf
                                 of St.
                                 Lawrence).
Bryde's whale.................  Northern Gulf of               0               0               0               0
                                 Mexico.                     206               0             961               0
                                NSD [dagger]....
Minke whale...................  Canadian East              2,425               0          11,262               0
                                 Coast.
Fin whale *...................  Western North              1,498               3           7,296              14
                                 Atlantic.
Humpback whale................  Gulf of Maine...             233               1           1,116               3
Sei whale *...................  Nova Scotia.....             292               0           1,400               0
----------------------------------------------------------------------------------------------------------------
                                      Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
                                        Family Physeteridae (sperm whale)
----------------------------------------------------------------------------------------------------------------
Sperm whale *.................  Gulf of Mexico                24               0             119               0
                                 Oceanic.                 14,084               0          68,839               0
                                North Atlantic..
----------------------------------------------------------------------------------------------------------------
                                         Family Kogiidae (sperm whales)
----------------------------------------------------------------------------------------------------------------
Dwarf sperm whale.............  Gulf of Mexico                14               0              74               0
                                 Oceanic.                  8,527              10          39,913              48
                                Western North
                                 Atlantic.
Pygmy sperm whale.............  Northern Gulf of              14               0              74               0
                                 Mexico.                   8,527              10          39,913              48
                                Western North
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                        Family Ziphiidae (beaked whales)
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale.....  Northern Gulf of              35               0             173               0
                                 Mexico.                  12,533               0          61,113               0
                                Western North
                                 Atlantic.
Cuvier's beaked whale.........  Northern Gulf of              34               0             172               0
                                 Mexico.                  46,402               0         226,286               0
                                Western North
                                 Atlantic.
Gervais' beaked whale.........  Northern Gulf of              35               0             173               0
                                 Mexico.                  12,533               0          61,113               0
                                Western North
                                 Atlantic.
Northern bottlenose whale.....  Western North              1,073               0           5,360               0
                                 Atlantic.
Sowersby's beaked whale.......  Western North             12,533               0          61,113               0
                                 Atlantic.
True's beaked whale...........  Western North             12,533               0          61,113               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                          Family Delphinidae (dolphins)
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin......  Northern Gulf of             951               0           4,706               0
                                 Mexico.                 117,994               9         573,622              46
                                Western North
                                 Atlantic.
Atlantic white-sided dolphin..  Western North             14,502               0          71,097               0
                                 Atlantic.
Bottlenose dolphin............  Choctawhatchee                 7               0              33               0
                                 Bay.
                                Gulf of Mexico                42               0             125               0
                                 Eastern Coastal.

[[Page 57172]]

 
                                Gulf of Mexico               219               0           1,089               0
                                 Northern
                                 Coastal.
                                Gulf of Mexico             4,149               0          12,568               0
                                 Western Coastal.
                                Indian River                 283               0           1,414               0
                                 Lagoon
                                 Estuarine
                                 System.
                                Jacksonville                  84               0             421               0
                                 Estuarine
                                 System.
                                Mississippi                    0               0               0               0
                                 Sound, Lake
                                 Borgne, Bay
                                 Boudreau.
                                Northern Gulf of           1,560               2           7,799               9
                                 Mexico
                                 Continental
                                 Shelf.
                                Northern Gulf of             195               0             970               0
                                 Mexico Oceanic.
                                Northern North             3,221               0          11,800               0
                                 Carolina
                                 Estuarine
                                 System.
                                Southern North                 0               0               0               0
                                 Carolina
                                 Estuarine
                                 System.
                                Western North                906               0           4,324               0
                                 Atlantic
                                 Northern
                                 Florida Coastal.
                                Western North              5,341               0          25,594               0
                                 Atlantic
                                 Central Florida
                                 Coastal.
                                Western North             25,189               4         125,183              21
                                 Atlantic
                                 Northern
                                 Migratory
                                 Coastal.
                                Western North            308,206              39       1,473,308             192
                                 Atlantic
                                 Offshore.
                                Western North              4,328               0          20,559               0
                                 Atlantic South
                                 Carolina/
                                 Georgia Coastal.
                                Western North             12,494               2          58,061              10
                                 Atlantic
                                 Southern
                                 Migratory
                                 Coastal.
Clymene dolphin...............  Northern Gulf of              99               0             495               0
                                 Mexico.                  69,774               3         330,027              13
                                Western North
                                 Atlantic.
False killer whale............  Northern Gulf of              41               0             208               0
                                 Mexico.                   8,271               0          39,051               0
                                Western North
                                 Atlantic.
Fraser's dolphin..............  Northern Gulf of              59               0             298               0
                                 Mexico.                   3,929               0          18,634               0
                                Western North
                                 Atlantic.
Killer whale..................  Northern Gulf of               1               0               4               0
                                 Mexico.                      77               0             372               0
                                Western North
                                 Atlantic.
Long-finned pilot whale.......  Western North             17,039               0          83,050               0
                                 Atlantic.
Melon-headed whale............  Northern Gulf of              70               0             352               0
                                 Mexico.                  37,157               1         175,369               3
                                Western North
                                 Atlantic.
Pantropical spotted dolphin...  Northern Gulf of             566               0           2,828               0
                                 Mexico.                 145,125               2         686,775              12
                                Western North
                                 Atlantic.
Pygmy killer whale............  Northern Gulf of              16               0              84               0
                                 Mexico.                   6,483               0          30,639               0
                                Western North
                                 Atlantic.
Risso's dolphin...............  Northern Gulf of              39               0             197               0
                                 Mexico.                  21,034               0         100,018               0
                                Western North
                                 Atlantic.
Rough-toothed dolphin.........  Northern Gulf of              97               0             436               0
                                 Mexico.                  19,568               0          92,314               0
                                Western North
                                 Atlantic.
Short-beaked common dolphin...  Western North            218,144              13       1,046,193              64
                                 Atlantic.
Short-finned pilot whale......  Northern Gulf of              36               0             179               0
                                 Mexico.                  31,357               0         150,213               0
                                Western North
                                 Atlantic.
Spinner dolphin...............  Northern Gulf of             228               0           1,138               0
                                 Mexico.                  73,689               1         347,347               6
                                Western North
                                 Atlantic.
Striped dolphin...............  Northern Gulf of              67               0             336               0
                                 Mexico.                  91,038               3         451,001              15
                                Western North
                                 Atlantic.
White-beaked dolphin..........  Western North                 40               0             192               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                         Family Phocoenidae (porpoises)
----------------------------------------------------------------------------------------------------------------
Harbor porpoise...............  Gulf of Maine/            29,789             161         147,290             802
                                 Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
                                               Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
                                          Family Phocidae (true seals)
----------------------------------------------------------------------------------------------------------------
Gray seal.....................  Western North              1,444               0           7,173               0
                                 Atlantic.
Harbor seal...................  Western North              2,341               0          11,632               0
                                 Atlantic.
Harp seal.....................  Western North              8,444               1          42,191               4
                                 Atlantic.
Hooded seal...................  Western North                127               0             631               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the AFTT Study Area.
[dagger] NSD: No stock designated.


[[Page 57173]]

Authorized Take From Testing Activities
    For testing activities other than ship shock trials, Table 40 
summarizes the Navy's take request and the maximum amount and type of 
take by harassment that NMFS concurs is reasonably likely to occur and 
has authorized by species or stock. Since the proposed rule, the Navy 
has removed one of their testing events in the Northeast Range Complex 
(Undersea Warfare Testing), which decreased the number of Level B 
harassment takes annually for NARW by 115 takes. This change also 
decreased annual Level B harassment takes by approximately 200 takes 
for ESA-listed fin whale and 20 takes for sei whales as well as 
approximately 10,000 takes annually for harbor porpoise.

            Table 40--Species-Specific Take From All Testing Activities (Excluding Ship Shock Trials)
----------------------------------------------------------------------------------------------------------------
                                                              Annual                       5-Year total
                                                 ---------------------------------------------------------------
            Species                   Stock           Level B         Level A         Level B         Level A
                                                    harassment      harassment      harassment      harassment
----------------------------------------------------------------------------------------------------------------
                                       Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
                                        Family Balaenidae (right whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale *..  Western.........             224               0           1,091               0
----------------------------------------------------------------------------------------------------------------
                                        Family Balaenopteridae (roquals)
----------------------------------------------------------------------------------------------------------------
Blue whale *..................  Western North                 20               0              95               0
                                 Atlantic (Gulf
                                 of St.
                                 Lawrence).
Bryde's whale.................  Northern Gulf of              52               0             257               0
                                 Mexico.
                                NSD [dagger]....             125               0             614               0
Minke whale...................  Canadian East              1,616               2           7,971               7
                                 Coast.
Fin whale *...................  Western North              3,655               3          17,716              16
                                 Atlantic.
Humpback whale................  Gulf of Maine...             493               0           2,412               0
Sei whale *...................  Nova Scotia.....             482               0           2,327               0
----------------------------------------------------------------------------------------------------------------
                                      Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
                                        Family Physeteridae (sperm whale)
----------------------------------------------------------------------------------------------------------------
Sperm whale *.................  Gulf of Mexico             1,106               0           5,240               0
                                 Oceanic.
                                North Atlantic..          11,278               0          51,657               0
----------------------------------------------------------------------------------------------------------------
                                         Family Kogiidae (sperm whales)
----------------------------------------------------------------------------------------------------------------
Dwarf sperm whale.............  Gulf of Mexico               727               6           3,424              27
                                 Oceanic.
                                Western North              4,384              14          21,159              66
                                 Atlantic.
Pygmy sperm whale.............  Northern Gulf of             727               6           3,424              27
                                 Mexico.
                                Western North              4,384              14          21,159              66
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                        Family Ziphiidae (beaked whales)
----------------------------------------------------------------------------------------------------------------
Blainville's beaked whale.....  Northern Gulf of           1,392               0           6,710               0
                                 Mexico.
                                Western North             10,565               0          49,647               0
                                 Atlantic.
Cuvier's beaked whale.........  Northern Gulf of           1,460               0           6,988               0
                                 Mexico.
                                Western North             38,780               0         182,228               0
                                 Atlantic.
Gervais' beaked whale.........  Northern Gulf of           1,392               0           6,710               0
                                 Mexico.
                                Western North             10,565               0          49,647               0
                                 Atlantic.
Northern bottlenose whale.....  Western North                971               0           4,485               0
                                 Atlantic.
Sowersby's beaked whale.......  Western North             10,593               0          49,764               0
                                 Atlantic.
True's beaked whale...........  Western North             10,593               0          49,764               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                          Family Delphinidae (dolphins)
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin......  Northern Gulf of          71,882               2         333,793              13
                                 Mexico.
                                Western North            109,582              11         504,538              52
                                 Atlantic.
Atlantic white-sided dolphin..  Western North             31,779               1         150,062               6
                                 Atlantic.
Bottlenose dolphin............  Choctawhatchee               966               0           4,421               0
                                 Bay.
                                Gulf of Mexico                 0               0               0               0
                                 Eastern Coastal.
                                Gulf of Mexico            16,258               1          76,439               5
                                 Northern
                                 Coastal.
                                Gulf of Mexico             3,677               0          18,035               0
                                 Western Coastal.
                                Indian River                   3               0              15               0
                                 Lagoon
                                 Estuarine
                                 System.
                                Jacksonville                   3               0              14               0
                                 Estuarine
                                 System.
                                Mississippi                    1               0               4               0
                                 Sound, Lake
                                 Borgne, Bay
                                 Boudreau.
                                Northern Gulf of         125,940               8         594,921              40
                                 Mexico
                                 Continental
                                 Shelf.
                                Northern Gulf of          14,448               1          67,244               5
                                 Mexico Oceanic.
                                Northern North               106               0             533               0
                                 Carolina
                                 Estuarine
                                 System.

[[Page 57174]]

 
                                Southern North                 0               0               0               0
                                 Carolina
                                 Estuarine
                                 System.
                                Western North                329               0           1,614               0
                                 Atlantic
                                 Northern
                                 Florida Coastal.
                                Western North              2,272               0          10,950               0
                                 Atlantic
                                 Central Florida
                                 Coastal.
                                Western North             11,855               3          56,321              15
                                 Atlantic
                                 Northern
                                 Migratory
                                 Coastal.
                                Western North            119,880              23         566,572             116
                                 Atlantic
                                 Offshore.
                                Western North              1,632               0           8,017               0
                                 Atlantic South
                                 Carolina/
                                 Georgia Coastal.
                                Western North              4,222               0          20,827               0
                                 Atlantic
                                 Southern
                                 Migratory
                                 Coastal.
Clymene dolphin...............  Northern Gulf of           4,166               0          19,919               0
                                 Mexico.
                                Western North             35,985               2         170,033               8
                                 Atlantic.
False killer whale............  Northern Gulf of           1,931               0           9,118               0
                                 Mexico.
                                Western North              3,766               0          17,716               0
                                 Atlantic.
Fraser's dolphin..............  Northern Gulf of           1,120               0           5,314               0
                                 Mexico.
                                Western North              1,293               0           6,070               0
                                 Atlantic.
Killer whale..................  Northern Gulf of              32               0             152               0
                                 Mexico.
                                Western North                 42               0             188               0
                                 Atlantic.
Long-finned pilot whale.......  Western North             20,502               2          94,694               8
                                 Atlantic.
Melon-headed whale............  Northern Gulf of           3,059               0          14,546               0
                                 Mexico.
                                Western North             16,688               1          78,545               4
                                 Atlantic.
Pantropical spotted dolphin...  Northern Gulf of          25,929               1         121,469               4
                                 Mexico.
                                Western North             77,451               4         355,889              19
                                 Atlantic.
Pygmy killer whale............  Northern Gulf of             719               0           3,415               0
                                 Mexico.
                                Western North              2,847               0          13,426               0
                                 Atlantic.
Risso's dolphin...............  Northern Gulf of           1,649               0           7,821               0
                                 Mexico.
                                Western North             20,070               1          94,009               6
                                 Atlantic.
Rough-toothed dolphin.........  Northern Gulf of           3,927               0          18,493               0
                                 Mexico.
                                Western North              8,765               0          41,492               0
                                 Atlantic.
Short-beaked common dolphin...  Western North            353,012              17       1,675,885              72
                                 Atlantic.
Short-finned pilot whale......  Northern Gulf of           1,823               0           8,614               0
                                 Mexico.
                                Western North             17,002               1          80,576               7
                                 Atlantic.
Spinner dolphin...............  Northern Gulf of           7,815               0          36,567               0
                                 Mexico.
                                Western North             33,351               2         157,241               7
                                 Atlantic.
Striped dolphin...............  Northern Gulf of           2,447               0          11,703               0
                                 Mexico.
                                Western North            102,047               5         465,392              23
                                 Atlantic.
White-beaked dolphin..........  Western North                 44               0             213               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
                                         Family Phocoenidae (porpoises)
----------------------------------------------------------------------------------------------------------------
Harbor porpoise...............  Gulf of Maine/           125,404             212         578,130           1,007
                                 Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
                                               Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
                                          Family Phocidae (true seals)
----------------------------------------------------------------------------------------------------------------
Gray seal.....................  Western North                894               2           4,376              11
                                 Atlantic.
Harbor seal...................  Western North              1,448               4           7,094              17
                                 Atlantic.
Harp seal.....................  Western North              7,850               2          38,273              12
                                 Atlantic.
Hooded seal...................  Western North                787               0           3,805               0
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
* ESA-listed species (all stocks) within the AFTT Study Area.
[dagger] NSD: No stock designated.

Authorized Take From Ship Shock
    The Navy's model and quantitative analysis process used for the 
AFTT FEIS/OEIS and in the Navy's rulemaking/LOA application to estimate 
exposures of marine mammals to explosives (ship shock) is detailed in 
the technical report titled Quantifying Acoustic Impacts on Marine 
Mammals and Sea Turtles: Methods and Analytical Approach for Phase III 
Training and Testing (U.S. Department of the Navy, 2017b). NMFS has 
reviewed the Navy's data and analysis of explosive impacts and concurs 
that the estimated take the Navy requested appropriately represents the 
maximum take by harassment that is reasonably expected to occur, as 
well as the potential for mortality. Table 41 summarizes the Navy's 
take request and the maximum amount and type of take that is reasonably 
expected to occur (harassment) or could potentially occur (serious 
injury/mortality) by species for ship shock trials under testing 
activities per small and large ship shock events and the summation over 
a five-year period. The table below displays maximum ship shock impacts 
to marine

[[Page 57175]]

mammals by species (in bold text), as well as maximum impacts on 
individual stocks. The maximum is derived by selecting the highest 
number of potential impacts across all locations and all seasons for 
each species/stock. Small Ship Shock trials could take place any season 
within the deep offshore water of the Virginia Capes Range Complex or 
in the spring, summer, or fall within the Jacksonville Range Complex 
and could occur up to three times over a five-year period. The Large 
Ship Shock trial could take place in the Jacksonville Range Complex 
during the spring, summer, or fall and during any season within the 
deep offshore water of the Virginia Capes Range Complex or within the 
GOMEX. The Large Ship Shock Trial could occur once over five years.
    Navy's model and quantitative analysis process estimated serious 
injury/mortality of four dolphin species from ship shock trials 
including: Atlantic white-sided dolphin (Western North Atlantic), 
Pantropical spotted dolphin (Northern GOMEX), short-beaked common 
dolphin (Western North Atlantic), and Spinner dolphin (Northern GOMEX) 
(Table 41 below). For serious injury/mortality takes over the five-year 
period, based on the exposure estimates generated by the model and the 
quantitative post-modeling mitigation and avoidance adjustments, an 
annual average of 0.2 dolphins from each dolphin species/stock listed 
above (i.e., for those species or stocks where 1 take could potentially 
occur divided by 5 years to get the annual number of mortalities/
serious injuries) or 1.2 dolphins in the case of short-beaked common 
dolphin (i.e., where 6 takes could potentially occur divided by 5 years 
to get the annual number of mortalities/serious injuries) is used in 
further analysis in the Analysis and Negligible Impact Determination 
section.

[[Page 57176]]

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[[Page 57178]]


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[[Page 57179]]


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[[Page 57181]]


[GRAPHIC] [TIFF OMITTED] TR14NO18.074

Take From Vessel Strikes
    The marine mammals most vulnerable to vessel strikes are those that 
spend extended periods of time at the surface in order to restore 
oxygen levels within their tissues after deep dives (e.g., the sperm 
whale). In addition, some baleen whales, such as the NARW, seem 
generally unresponsive to vessel sound, making them more susceptible to 
vessel collisions (Nowacek et al., 2004). These species are primarily 
large, slower moving whales.
    Some researchers have suggested the relative risk of a vessel 
strike can be assessed as a function of animal density and the 
magnitude of vessel traffic (e.g., Fonnesbeck et al. 2008; Vanderlaan 
et al., 2008). Differences among vessel types also influence the 
probability of a vessel strike. The ability of any ship to detect a 
marine mammal and avoid a collision depends on a variety of factors, 
including environmental conditions, ship design, size, speed, and 
personnel, as well as the behavior of the animal. Vessel speed, size, 
and mass are all important factors in determining if injury or death of 
a marine mammal is likely due to a vessel strike. For large vessels, 
speed and angle of approach can influence the severity of a strike. For 
example, Vanderlaan and Taggart (2007) found that between vessel speeds 
of 8.6 and 15 knots, the probability that a vessel strike is lethal 
increases from 0.21 to 0.79. Large whales also do not have to be at the 
water's surface to be struck. Silber et al. (2010) found when a whale 
is below the surface (about one to two times the vessel draft), there 
is likely to be a pronounced propeller suction effect. This suction 
effect may draw the whale into the hull of the ship, increasing the 
probability of propeller strikes.
    There are some key differences between the operation of military 
and non-military vessels, which make the likelihood of a military 
vessel striking a whale lower than some other vessels (e.g., commercial 
merchant vessels). Key differences include: Many military ships have 
their bridges positioned closer to the bow, offering better visibility 
ahead of the ship (compared to a commercial merchant vessel).
     There are often aircraft associated with the training or 
testing activity (which can serve as Lookouts), which can more readily 
detect cetaceans in the vicinity of a vessel or ahead of a vessel's 
present course before crew on the vessel would be able to detect them.
     Military ships are generally more maneuverable than 
commercial merchant vessels, and if cetaceans are spotted in the path 
of the ship, could be capable of changing course more quickly.
     The crew size on military vessels is generally larger than 
merchant ships, allowing for stationing more trained Lookouts on the 
bridge. At all times when vessels are underway, trained Lookouts and 
bridge navigation teams are used to detect objects on the surface of 
the water ahead of the ship, including cetaceans. Additional Lookouts, 
beyond those already stationed on the bridge and on navigation teams, 
are positioned as Lookouts during some training events.
     When submerged, submarines are generally slow moving (to 
avoid detection) and therefore marine mammals at depth with a submarine 
are likely able to avoid collision with the submarine. When a submarine 
is transiting on the surface, there are Lookouts serving the same 
function as they do on surface ships.
    Vessel strike to marine mammals is not associated with any specific 
training or testing activity but is rather an extremely limited and 
sporadic, but possible, accidental result of Navy vessel movement 
within the AFTT Study Area or while in transit.
    There have been three recorded Navy vessel strikes of large whales 
in the AFTT Study Area from 2009 through 2017 (nine years), the period 
in which Navy began implementing effective mitigation measures to 
reduce the likelihood of vessel strikes. In order to

[[Page 57182]]

account for the accidental nature of vessel strikes to large whales in 
general, and the potential risk from any vessel movement within the 
AFTT Study Area within the five-year period, the Navy requested 
incidental takes based on probabilities derived from a Poisson 
distribution using ship strike data between 2009-2016 in the AFTT Study 
Area (the time period from when current mitigations were instituted 
until the Navy conducted the analysis for the EIS and application), and 
no new strikes have occurred since), as well as historical at-sea days 
in AFTT from 2009-2016 and estimated potential at-sea days for the 
period from 2018 to 2023 covered by the requested regulations. This 
distribution predicted the probabilities of a specific number of 
strikes (n=0, 1, 2, etc.) over the period from 2018 to 2023. The 
analysis is described in detail in Chapter 6 of the Navy's rulemaking/
LOA application (and further refined in the Navy's revised ship strike 
analysis posted on NMFS' website https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
    For the same reasons listed above describing why Navy vessel strike 
is comparatively unlikely, it is highly unlikely that a Navy vessel 
would strike a whale or dolphin without detecting it and, accordingly, 
NMFS is confident that the Navy's reported strikes are accurate and 
appropriate for use in the analysis. The Navy used those three whale 
strikes in their calculations to determine the number of strikes likely 
to result from their activities (although worldwide strike information, 
from all Navy activities and other strikes, was used to inform the 
species that may be struck) and evaluated data beginning in 2009 as 
that was the start of the Navy's Marine Species Awareness Training and 
adoption of additional mitigation measures to address ship strike, 
which will remain in place along with additional mitigation measures 
during the five years of this rule.
    The probability analysis concluded that there was a 15 percent 
chance that zero whales would be struck by Navy vessels over the next 
five years, indicating an 85 percent chance that at least one whale 
would be struck over the next five years and a 17 percent chance of 
striking three whales over the five-year period. In addition, small 
delphinids are neither expected nor authorized to be struck by Navy 
vessels since: They have not been struck historically as a result of 
Navy AFTT activities, their smaller size and maneuverability makes a 
strike from a larger vessel much less likely as illustrated in 
worldwide ship-strike records, and the majority of the Navy's faster-
moving activities are located in offshore areas where smaller delphinid 
densities are less. Accordingly, NMFS anticipates and authorizes takes 
by vessel strike of large whales only (i.e., no dolphins or smaller 
whales) over the course of the five-year regulations from training and 
testing activities as discussed below.
    Based on the above analysis, the Navy estimated that it has the 
potential to strike, and take by serious injury or mortality, up to 
three large whales incidental to the specified activity over the course 
of the five years of the AFTT regulations. Because of the number of 
incidents in which the struck animal has remained unidentified to 
species (although due to the Navy's particular measures to avoid NARW, 
it is unlikely that any of the three vessel strikes were of NARW), it 
is challenging to predict the number of the potential takes that will 
be of any particular species. The Navy requested incidental take 
authorization for up to two of any the following species in the five-
year period: Humpback whale (Gulf of Maine stock), fin whale (Western 
North Atlantic stock), minke (Canadian East Coast stock), and sperm 
whale (North Atlantic stock) and one of any of the following: Sei whale 
(Nova Scotia stock), blue whale (Western North Atlantic stock), sperm 
whale (GOMEX Oceanic stock). NMFS independently reviewed this analysis 
and agrees that three ship strikes have at least the potential to occur 
and therefore the request for mortal takes of three large whales over 
the five-year period of the rule is reasonable based on the available 
strike data (three strikes by Navy over nine years) and the Navy's 
probability analysis. NMFS does not agree, however, that two mortal 
takes of any one species is likely, or that strike of either blue 
whales or the GOMEX stock of sperm whales is remotely likely.
    In order to predict the likelihood of striking any particular 
species, NMFS compiled information from the latest NMFS 2018 SARs on 
detected annual rates of large whale serious injury and mortality from 
vessel collisions (Table 42 below), which represent the best available 
science. The annual rates of large whale serious injury and mortality 
from vessel collisions indicate the relative susceptibility of large 
whale species to vessel strike in the Atlantic Ocean and GOMEX. To 
calculate the relative likelihood of striking each species, we summed 
the annual rates of mortality and serious injury from vessel 
collisions, then divided each species' annual rate by this number. To 
estimate the percent likelihood of striking a particular species of 
large whale, we multiplied the relative likelihood of striking each 
species by the total probability of striking a whale (i.e., 85 percent, 
as described by the Navy's probability analysis). To calculate the 
percent likelihood of striking a particular species of large whale 
twice, we squared the value estimated for the probability of striking a 
particular species of whale (i.e., to calculate the probability of an 
event occurring twice, multiply the probability of the first event by 
the second). The analysis indicates that there is a very low percent 
chance of striking any particular species or stock more than once 
(i.e., less than 7 percent chance for all species) as shown in Table 42 
below and, accordingly, in the proposed rule NMFS proposed that any of 
the mysticete and sperm whale stocks might incur one serious injury or 
mortality take by vessel strike over the five-year period of the rule, 
except the NARW which would have zero mortality/serious injury takes 
because of the enhanced mitigation and the Bryde's whale, which would 
also have zero mortality/serious injury takes because of their low 
numbers and lack of previous strikes
    However, based on the quantitative method above, blue whales and 
GOMEX sperm whales also have a zero percent chance of being struck. 
Following additional discussion with the Navy (after the proposed rule 
was published) about this quantitative analysis, the Navy's activities, 
and other factors--and NMFS' independent review--NMFS and the Navy 
agreed that vessel strike of these two stocks was highly unlikely. 
Accordingly, the Navy revised their request for take by serious injury 
or mortality to include up to one of any the following species in the 
five-year period: Humpback whale (Gulf of Maine stock), fin whale 
(Western North Atlantic stock), minke whale (Canadian East Coast 
stock), sperm whale (North Atlantic stock), and sei whale (Nova Scotia 
stock)--removing the request for GOMEX sperm whales and North Atlantic 
blue whales. We note that the quantitative method outlined above 
indicates only a very small likelihood that the Navy will strike a 
North Atlantic sperm whale (< 3 percent), however, the Navy has struck 
a sperm whale previously in the Atlantic, which points to a higher 
likelihood that it could occur and that an authorized mortality is 
appropriate. Additional discussion relevant to our determinations for 
North Atlantic blue

[[Page 57183]]

whales, GOMEX sperm whale, NARW, and Bryde's whale is included below.
    In addition to the zero probability predicted by the quantitative 
model, there are no recent confirmed records of vessel collision 
mortality or serious injury to blue whales in the U.S. Atlantic EEZ, 
although there is one older historical record pointing to a ship strike 
that likely occurred outside of the U.S. Atlantic EEZ (outside of where 
most Navy activities occur, so less relevant) and one 1998 record of a 
dead 20 m (66 ft) male blue whale brought into Rhode Island waters on 
the bow of a tanker. The cause of death was determined to be ship 
strike; however, some of the injuries were difficult to explain from 
the necropsy. As noted previously, the Navy has been conducting Marine 
Species Awareness Training and implementing additional mitigation 
measures to protect against strikes since 2009. Therefore, given the 
absence of any strikes in the recent past since the Navy has 
implemented its current mitigation measures, the very low abundance of 
North Atlantic blue whales throughout the AFTT Study Area, and the very 
low number of two blue whales ever known to be struck in the area by 
any type of vessel (and not struck by Navy vessels), we believe the 
likelihood of the Navy hitting a blue whale is discountable.
    In addition to the zero probability of hitting a sperm whale in the 
GOMEX predicted by the quantitative model, there have been no vessel 
strikes of any large whales since 2009 per the SAR and no Navy strikes 
of any large whales since 1995 (based on our records) in the GOMEX. 
Further, the Navy has comparatively fewer steaming days in the GOMEX 
and there is a fairly low abundance of sperm whales occurring there. As 
noted previously, the Navy has been conducting Marine Species Awareness 
Training and implementing additional mitigation measures to protect 
against strikes since 2009. Therefore, NMFS believes that the 
likelihood of the Navy hitting a GOMEX sperm whale is discountable.
    Although the quantitative analysis predicts that NARWs do have a 
low probability of being struck one time within the five-year period 
when vessel strikes across all activity types (including non-Navy) are 
considered (10.11 percent, lower than all other stocks except North 
Atlantic sperm whales), when the enhanced mitigation measures 
(discussed below) the Navy will implement for NARWs are considered in 
combination with this low probability, the Navy and NMFS find that a 
vessel strike is highly unlikely and therefore, lethal take of NARWs 
was not requested and is not authorized. We further note that while 
there have been three strikes of unidentified whales, it is unlikely 
they were NARW, as one occurred in the Chesapeake Bay and observed 
features suggested it was most probably a humpback whale, while the 
other two occurred 75 and 45 nmi offshore from Cape Hatteras, beyond 
where NARW are expected to occur. Regarding the Bryde's whale, due to 
the fact that the Navy has not struck a Bryde's whale, the very low 
abundance numbers, and the limited Navy ship traffic that overlaps with 
Bryde's whale habitat, neither the Navy nor NMFS anticipate any vessel-
strike takes, and none were requested or proposed for authorization. 
The Navy is now also limiting activities (i.e., 200 hr cap on hull-
mounted MFAS) and will not use explosives (except during mine warfare 
activities) in the Bryde's Whale Mitigation Area.

 Table 42--Annual Rates of Mortality and Serious Injury From Vessel Collisions Compiled From NMFS 2018 SARs and
  Estimated Percent Chance of Striking Each Large Whale Species in the AFTT Study Area Over a Five-Year Period
----------------------------------------------------------------------------------------------------------------
                                                                  Annual rate of
                                                                    M/SI * from   Percent chance  Percent chance
                             Species                                  vessel      of  ONE strike  of  TWO strike
                                                                     collision
----------------------------------------------------------------------------------------------------------------
Fin whale--Western North Atlantic stock.........................             1.6           22.67            5.14
Sei whale--Nova Scotia stock....................................             0.8           11.33            1.28
Minke whale--Canadian East Coast stock..........................             1.4           19.83            3.93
Blue whale--Western North Atlantic stock........................               0               0               0
Humpback whale--Gulf of Maine stock.............................             1.8           25.50            6.50
Sperm whale--North Atlantic stock...............................             0.2            2.83            0.08
Sperm whale--Gulf of Mexico stock...............................               0               0               0
----------------------------------------------------------------------------------------------------------------

    In conclusion, although it is generally unlikely that any whales 
will be struck in a year, based on the information and analysis above 
(as well as the additional information regarding NARW mitigation 
below), NMFS anticipates that no more than three whales could be taken 
by serious injury or mortality over the five-year period of the rule, 
and that those three whales may include no more than one of any of the 
five following stocks (though no more than three total): Humpback whale 
(Gulf of Maine stock), fin whale (Western North Atlantic stock), minke 
(Canadian East Coast stock), sperm whale (North Atlantic stock), and 
sei whale (Nova Scotia stock). Accordingly, NMFS has authorized the 
serious injury or mortality of 0.2 whales annually from each of these 
species or stocks (i.e., 1 take divided by 5 years to get the annual 
number). Below we include additional information regarding the 
mitigation measures that help avoid ship strike of NARW.
    In addition to procedural mitigation, the Navy will implement 
measures in mitigation areas used by NARW for foraging, calving, and 
migration (see the Mitigation Measures section in this rule and a full 
analysis in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS). These 
measures, which go above and beyond those focused on other species 
(e.g., funding of and communication with sightings systems, 
implementation of speed reductions during applicable circumstances in 
certain areas) have helped the Navy avoid striking a NARW during 
training and testing activities in the past; and essentially eliminate 
the potential for strikes to occur during the five-year period of the 
rule. In particular, the mitigation pertaining to vessels, including 
the continued participation in and sponsoring of the Early Warning 
System, will help Navy vessels avoid NARW during transits and training 
and testing activities. The Early Warning System is a comprehensive 
information exchange network dedicated to reducing the risk of vessel 
strikes to NARW off the southeast United States from all mariners 
(i.e., Navy and non-Navy vessels). Navy participants include the Fleet 
Area

[[Page 57184]]

Control and Surveillance Facility, Jacksonville; Commander, Naval 
Submarine Forces, Norfolk, Virginia; and Naval Submarine Support 
Command. The Navy, U.S. Coast Guard, U.S. Army Corps of Engineers, and 
NMFS collaboratively sponsor daily aerial surveys from December 1 
through March 31 (weather permitting) to observe for NARW from the 
shoreline out to approximately 30-35 nmi offshore. Aerial surveyors 
relay sightings information to all mariners transiting within the NARW 
calving habitat (e.g., commercial vessels, recreational boaters, and 
Navy ships).
    In the NE NARW Mitigation Area, before all vessel transits, the 
Navy conducts a web query or email inquiry of NOAA's NARW Sighting 
Advisory System to obtain the latest NARW sightings information. Navy 
vessels will use the obtained sightings information to reduce potential 
interactions with NARW during transits and prevent ship strikes. In 
this mitigation area, vessels will implement speed reductions after 
they observe a NARW; if they are within 5 nmi of the location of a 
sighting reported to the NARW Sighting Advisory System within the past 
week; and when operating at night or during periods of reduced 
visibility. During transits and normal firing involving non-explosive 
torpedos activities, the Navy ships will maintain a speed of no more 
than 10 kn. During submarine target firing, ships will maintain speeds 
of no more than 18 kn. During vessel target firing, vessel speeds may 
exceed 18 kn for only brief periods of time (e.g., 10-15 min). In the 
SE NARW Mitigation Area, before transiting or conducting training or 
testing activities within the mitigation area, the Navy will initiate 
communication with the Fleet Area Control and Surveillance Facility, 
Jacksonville to obtain Early Warning System NARW whale sightings data. 
The Fleet Area Control and Surveillance Facility, Jacksonville will 
advise vessels of all reported whale sightings in the vicinity to help 
vessels and aircraft reduce potential interactions with NARWs and 
prevent ship strikes. Commander Submarine Force U.S. Atlantic Fleet 
will coordinate any submarine activities that may require approval from 
the Fleet Area Control and Surveillance Facility, Jacksonville. Vessels 
will use the sightings information to reduce potential interactions 
with NARW during transits and prevent ship strikes. Vessels will also 
implement speed reductions after they observe a NARW, if they are 
within 5 nmi of a sighting reported within the past 12 hrs, or when 
operating in the mitigation area at night or during periods of poor 
visibility. To the maximum extent practicable, vessels will minimize 
north-south transits in the mitigation area. Finally, the Navy will 
broadcast awareness notification messages with NARW Dynamic Management 
Area information (e.g., location and dates) to applicable Navy vessels 
operating in the vicinity of the Dynamic Management Area. The 
information will alert assets to the possible presence of a NARW to 
maintain safety of navigation and further reduce the potential for a 
vessel strike. Navy platforms will use the information to assist their 
visual observation of applicable mitigation zones during training and 
testing activities and to aid in the implementation of procedural 
mitigation, including but not limited to, mitigation for vessel 
movement.
    Implementation of these measures is expected to significantly 
reduce the probability of striking this particular species during the 
five-year period of the rule. Ship strikes are a fluke encounter for 
which the probability will never be zero for any vessel. The 
probability for any particular ship to strike a marine mammal is 
primarily a product of the ability of the ship to detect a marine 
mammal and the ability to effectively act to avoid it. Navy combat 
ships are inherently among the best at both of these because compared 
to large commercial vessels, they have trained Lookouts which have 
received specialized MMO training, and the most maneuverable ships, 
which means that they are more likely to sight a marine mammal and more 
likely to be able to maneuver to avoid it in the available time--both 
of which decrease the probability of striking a marine mammal below 
what it would have been in the absence of those abilities. In the case 
of the NARW, the extensive communication/detection network described 
above, which is in use in the areas of highest NARW occurrence and 
where they may be more susceptible to strike, further increases the 
likelihood of detecting a NARW and thereby avoiding it, which further 
reduces the probability of NARW strike. Further, detection of NARW in 
some areas/times is associated with reduced speed requirements, which 
in some cases may reduce the strike probability further by slightly 
increasing the time within which an operator has to maneuver away from 
a whale. Because of these additional mitigation measures combined with 
the already low probability that a NARW will be struck, it is extremely 
unlikely the Navy will strike a NARW and mortality/serious injury of a 
NARW from vessel strike is neither anticipated nor authorized.

Mitigation Measures

    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 a determination of 
``least practicable adverse impact'' shall include consideration of 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.''
    In Conservation Council for Hawaii v. National Marine Fisheries 
Service, 97 F. Supp.3d 1210, 1229 (D. Haw. 2015), the Court stated that 
NMFS ``appear[s] to think [it] satisf[ies] the statutory `least 
practicable adverse impact' requirement with a `negligible impact' 
finding.'' More recently, expressing similar concerns in a challenge to 
a U.S. Navy Operations of Surveillance Towed Array Sensor System Low 
Frequency Active Sonar (SURTASS LFA) incidental take rule (77 FR 
50290), the Ninth Circuit Court of Appeals in Natural Resources Defense 
Council (NRDC) v. Pritzker, 828 F.3d 1125, 1134 (9th Cir. 2016), 
stated, ``[c]ompliance with the `negligible impact' requirement does 
not mean there [is] compliance with the `least practicable adverse 
impact' standard.'' As the Ninth Circuit noted in its opinion, however, 
the Court was interpreting the statute without the benefit of NMFS' 
formal interpretation. We state here explicitly that NMFS is in full 
agreement that the ``negligible impact'' and ``least practicable 
adverse impact'' requirements are distinct, even though both statutory 
standards refer to species and stocks. With that in mind, we provide 
further explanation of our interpretation of least practicable adverse 
impact, and explain what distinguishes it from the negligible impact 
standard. This discussion is consistent with, and expands upon, 
previous rules we have issued (such as the Navy Gulf of Alaska rule (82 
FR 19530; April 27, 2017)).
    Before NMFS can issue incidental take regulations under section

[[Page 57185]]

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 
implementing regulations for section 101(a)(5) both define ``negligible 
impact'' as ``an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival'' (50 CFR 216.103 and 50 CFR 18.27(c)). 
Recruitment (i.e., reproduction) and survival rates are used to 
determine population growth rates \1\ and, therefore are considered in 
evaluating population level impacts.
---------------------------------------------------------------------------

    \1\ A growth rate can be positive, negative, or flat.
---------------------------------------------------------------------------

    As we stated in the preamble to the final rule for the incidental 
take implementing regulations, not every population-level impact 
violates the negligible impact requirement. The negligible impact 
standard does not require a finding that the anticipated take will have 
``no effect'' on population numbers or growth rates: ``The statutory 
standard does not require that the same recovery rate be maintained, 
rather that no significant effect on annual rates of recruitment or 
survival occurs. [T]he key factor is the significance of the level of 
impact on rates of recruitment or survival.'' (54 FR 40338, 40341-42; 
September 29, 1989).
    While some level of impact on population numbers or growth rates of 
a species or stock may occur and still satisfy the negligible impact 
requirement--even without consideration of mitigation--the least 
practicable adverse impact provision separately requires NMFS to 
prescribe means of ``effecting the least practicable adverse impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance,'' 50 CFR 
216.102(b), which are typically identified as mitigation measures.\2\
---------------------------------------------------------------------------

    \2\ For purposes of this discussion, we omit reference to the 
language in the standard for least practicable adverse impact that 
says we also must mitigate for subsistence impacts because they are 
not at issue in this regulation.
---------------------------------------------------------------------------

    The negligible impact and least practicable adverse impact 
standards in the MMPA both call for evaluation at the level of the 
``species or stock.'' The MMPA does not define the term ``species.'' 
However, Merriam-Webster Dictionary defines ``species'' to include 
``related organisms or populations potentially capable of 
interbreeding.'' See www.merriam-webster.com/dictionary/species 
(emphasis added). The MMPA defines ``stock'' as ``a group of marine 
mammals of the same species or smaller taxa in a common spatial 
arrangement that interbreed when mature.'' 16 U.S.C. 1362(11). The 
definition of ``population'' is ``a group of interbreeding organisms 
that represents the level of organization at which speciation begins.'' 
www.merriam-webster.com/dictionary/population. The definition of 
``population'' is strikingly similar to the MMPA's definition of 
``stock,'' with both involving groups of individuals that belong to the 
same species and located in a manner that allows for interbreeding. In 
fact, the term ``stock'' in the MMPA is interchangeable with the 
statutory term ``population stock.'' 16 U.S.C. 1362(11). Both the 
negligible impact standard and the least practicable adverse impact 
standard call for evaluation at the level of the species or stock, and 
the terms ``species'' and ``stock'' both relate to populations; 
therefore, it is appropriate to view both the negligible impact 
standard and the least practicable adverse impact standard as having a 
population-level focus.
    This interpretation is consistent with Congress's statutory 
findings for enacting the MMPA, nearly all of which are most applicable 
at the species or stock (i.e., population) level. See 16 U.S.C. 1361 
(finding that it is species and population stocks that are or may be in 
danger of extinction or depletion; that it is species and population 
stocks that should not diminish beyond being significant functioning 
elements of their ecosystems; and that it is species and population 
stocks that should not be permitted to diminish below their optimum 
sustainable population level). Annual rates of recruitment (i.e., 
reproduction) and survival are the key biological metrics used in the 
evaluation of population-level impacts, and accordingly these same 
metrics are also used in the evaluation of population level impacts for 
the least practicable adverse impact standard.
    Recognizing this common focus of the least practicable adverse 
impact and negligible impact provisions on the ``species or stock'' 
does not mean we conflate the two standards; despite some common 
statutory language, we recognize the two provisions are different and 
have different functions. First, a negligible impact finding is 
required before NMFS can issue an incidental take authorization. 
Although it is acceptable to use the mitigation measures to reach a 
negligible impact finding (see 50 CFR 216.104(c)), no amount of 
mitigation can enable NMFS to issue an incidental take authorization 
for an activity that still would not meet the negligible impact 
standard. Moreover, even where NMFS can reach a negligible impact 
finding--which we emphasize does allow for the possibility of some 
``negligible'' population-level impact--the agency must still prescribe 
measures that will affect the least practicable amount of adverse 
impact upon the affected species or stock.
    Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction 
with its authorization, binding--and enforceable--restrictions (in the 
form of regulations) setting forth how the activity must be conducted, 
thus ensuring the activity has the ``least practicable adverse impact'' 
on the affected species or stocks. In situations where mitigation is 
specifically needed to reach a negligible impact determination, section 
101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance 
with the ``negligible impact'' requirement. Finally, we reiterate that 
the least practicable adverse impact standard also requires 
consideration of measures for marine mammal habitat, with particular 
attention to rookeries, mating grounds, and other areas of similar 
significance, and for subsistence impacts, whereas the negligible 
impact standard is concerned solely with conclusions about the impact 
of an activity on annual rates of recruitment and survival.\3\
---------------------------------------------------------------------------

    \3\ 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 (emphases added). This 
statement is consistent with our understanding stated above that even 
when the effects of an action satisfy the negligible impact standard 
(i.e., in the Court's words, ``population levels are not threatened 
significantly''), still the agency must prescribe mitigation under the 
least practicable adverse impact standard. However, as the statute 
indicates, the focus of both standards is ultimately the impact on the 
affected ``species or stock,'' and not solely focused on or directed at 
the impact on individual marine mammals.
    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

[[Page 57186]]

language above might be construed as a holding that the least 
practicable adverse impact standard applies at the individual ``marine 
mammal'' level, i.e., that NMFS must require mitigation to minimize 
impacts to each individual marine mammal unless impracticable, we 
believe such an interpretation reflects an incomplete appreciation of 
the Court's holding. In our view, the opinion as a whole turned on the 
Court's determination that NMFS had not given separate and independent 
meaning to the least practicable adverse impact standard apart from the 
negligible impact standard, and further, that the Court's use of the 
term ``marine mammals'' was not addressing the question of whether the 
standard applies to individual animals as opposed to the species or 
stock as a whole. We recognize that while consideration of mitigation 
can play a role in a negligible impact determination, consideration of 
mitigation measures extends beyond that analysis. In evaluating what 
mitigation measures are appropriate, NMFS considers the potential 
impacts of the Specified Activities, the availability of measures to 
minimize those potential impacts, and the practicability of 
implementing those measures, as we describe below.

Implementation of Least Practicable Adverse Impact Standard

    Given the NRDC v. Pritzker decision, we discuss here how we 
determine whether a measure or set of measures meets the ``least 
practicable adverse impact'' standard. Our separate analysis of whether 
the take anticipated to result from Navy's activities meets the 
``negligible impact'' standard appears in the Analysis and Negligible 
Impact Determination section below.
    Our evaluation of potential mitigation measures includes 
consideration of two primary factors:
    (1) The manner in which, and the degree to which, implementation of 
the potential measure(s) is expected to reduce adverse impacts to 
marine mammal species or stocks, their habitat, and their availability 
for subsistence uses (where relevant). This analysis considers such 
things as the nature of the potential adverse impact (such as 
likelihood, scope, and range), the likelihood that the measure will be 
effective if implemented, and the likelihood of successful 
implementation; and
    (2) The practicability of the measures for applicant 
implementation. Practicability of implementation may consider such 
things as cost, impact on activities, and, in the case of a military 
readiness activity, specifically considers personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
military readiness activity. 16 U.S.C. 1371(a)(5)(A)(iii).
    While the language of the least practicable adverse impact standard 
calls for minimizing impacts to affected species or stocks, we 
recognize that the reduction of impacts to those species or stocks 
accrues through the application of mitigation measures that limit 
impacts to individual animals. Accordingly, NMFS' analysis focuses on 
measures that are designed to avoid or minimize impacts on individual 
marine mammals that are likely to increase the probability or severity 
of population-level effects.
    While direct evidence of impacts to species or stocks from a 
specified activity is rarely available, and additional study is still 
needed to understand how specific disturbance events affect the fitness 
of individuals of certain species, there have been improvements in 
understanding the process by which disturbance effects are translated 
to the population. With recent scientific advancements (both marine 
mammal energetic research and the development of energetic frameworks), 
the relative likelihood or degree of impacts on species or stocks may 
often be inferred given a detailed understanding of the activity, the 
environment, and the affected species or stocks. This same information 
is used in the development of mitigation measures and helps us 
understand how mitigation measures contribute to lessening effects (or 
the risk thereof) to species or stocks. We also acknowledge that there 
is always the potential that new information, or a new recommendation 
that we had not previously considered, becomes available and 
necessitates reevaluation of mitigation measures (which may be 
addressed through adaptive management) to see if further reductions of 
population impacts are possible and practicable.
    In the evaluation of specific measures, the details of the 
specified activity will necessarily inform each of the two primary 
factors discussed above (expected reduction of impacts and 
practicability), and are carefully considered to determine the types of 
mitigation that are appropriate under the least practicable adverse 
impact standard. Analysis of how a potential mitigation measure may 
reduce adverse impacts on a marine mammal stock or species, 
consideration of personnel safety, practicality of implementation, and 
consideration of the impact on effectiveness of military readiness 
activities are not issues that can be meaningfully evaluated through a 
yes/no lens. The manner in which, and the degree to which, 
implementation of a measure is expected to reduce impacts, as well as 
its practicability in terms of these considerations, can vary widely. 
For example, a time/area restriction could be of very high value for 
decreasing population-level impacts (e.g., avoiding disturbance of 
feeding females in an area of established biological importance) or it 
could be of lower value (e.g., decreased disturbance in an area of high 
productivity but of less firmly established biological importance). 
Regarding practicability, a measure might involve restrictions in an 
area or time that impede the Navy's ability to certify a strike group 
(higher impact on mission effectiveness), or it could mean delaying a 
small in-port training event by 30 minutes to avoid exposure of a 
marine mammal to injurious levels of sound (lower impact). A 
responsible evaluation of ``least practicable adverse impact'' will 
consider the factors along these realistic scales. Accordingly, the 
greater the likelihood that a measure will contribute to reducing the 
probability or severity of adverse impacts to the species or stock or 
their habitat, the greater the weight that measure is given when 
considered in combination with practicability to determine the 
appropriateness of the mitigation measure, and vice versa. In the 
evaluation of specific measures, the details of the specified activity 
will necessarily inform each of the two primary factors discussed above 
(expected reduction of impacts and practicability), and will be 
carefully considered to determine the types of mitigation that are 
appropriate under the least practicable adverse impact standard. We 
discuss consideration of these factors in greater detail below.
    1. Reduction of adverse impacts to marine mammal species or stocks 
and their habitat.\4\ The emphasis given to a measure's ability to 
reduce the impacts on a species or stock considers the degree, 
likelihood, and context of the anticipated reduction of impacts to 
individuals (and how many individuals)

[[Page 57187]]

as well as the status of the species or stock.
---------------------------------------------------------------------------

    \4\ We recognize the least practicable adverse impact standard 
requires consideration of measures that will address minimizing 
impacts on the availability of the species or stocks for subsistence 
uses where relevant. Because subsistence uses are not implicated for 
this action, we do not discuss them. However, a similar framework 
would apply for evaluating those measures, taking into account the 
MMPA's directive that we make a finding of no unmitigable adverse 
impact on the availability of the species or stocks for taking for 
subsistence, and the relevant implementing regulations.
---------------------------------------------------------------------------

    The ultimate impact on any individual from a disturbance event 
(which informs the likelihood of adverse species- or stock-level 
effects) is dependent on the circumstances and associated contextual 
factors, such as duration of exposure to stressors. Though any proposed 
mitigation needs to be evaluated in the context of the specific 
activity and the species or stocks affected, measures with the 
following types of effects have greater value in reducing the 
likelihood or severity of adverse species- or 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 are expected in the 
absence of mitigation in order to assess the added value of any 
potential measures. Finally, because the least practicable adverse 
impact standard gives NMFS discretion to weigh a variety of factors 
when determining appropriate mitigation measures and because the focus 
of the standard is on reducing impacts at the species or stock level, 
the least practicable adverse impact standard does not compel 
mitigation for every kind of take, or every individual taken, if that 
mitigation is unlikely to meaningfully contribute to the reduction of 
adverse impacts on the species or stock and its habitat, even when 
practicable for implementation by the applicant.
    The status of the species or stock is also relevant in evaluating 
the appropriateness of potential mitigation measures in the context of 
least practicable adverse impact. The following are examples of factors 
that may (either alone, or in combination) result in greater emphasis 
on the importance of a mitigation measure in 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 PBR level (as defined in 16 
U.S.C. 1362(20)); the affected species or stock is a small, resident 
population; or the stock is involved in a UME or has other known 
vulnerabilities, such as recovering from an oil spill.
    Habitat mitigation, particularly as it relates to rookeries, mating 
grounds, and areas of similar significance, is also relevant to 
achieving the standard and can include measures such as reducing 
impacts of the activity on known prey utilized in the activity area or 
reducing impacts on physical habitat. As with species- or stock-related 
mitigation, the emphasis given to a measure's ability to reduce impacts 
on a species or stock's habitat considers the degree, likelihood, and 
context of the anticipated reduction of impacts to habitat. Because 
habitat value is informed by marine mammal presence and use, in some 
cases there may be overlap in measures for the species or stock and for 
use of habitat.
    We consider available information indicating the likelihood of any 
measure to accomplish its objective. If evidence shows that a measure 
has not typically been effective nor successful, then either that 
measure should be modified or the potential value of the measure to 
reduce effects should be lowered.
    2. Practicability. Factors considered may include cost, impact on 
activities, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity (16 U.S.C. 
1371(a)(5)(A)(iii)).
    NMFS reviewed the Specified Activities and the mitigation measures 
as described in the Navy's rulemaking/LOA application and the AFTT 
FEIS/OEIS to determine if they would result in the least practicable 
adverse effect on marine mammals. NMFS worked with the Navy in the 
development of the Navy's initially proposed measures, which are 
informed by years of implementation and monitoring. A complete 
discussion of the evaluation process used to develop, assess, and 
select mitigation measures, which was informed by input from NMFS, can 
be found in Chapter 5 (Mitigation) of the AFTT FEIS/OEIS and is 
summarized below in this section. The process described in Chapter 5 
(Mitigation) of the AFTT FEIS/OEIS robustly supports NMFS' independent 
evaluation of whether the mitigation measures required by this rule 
meet the least practicable adverse impact standard. The Navy is 
required to implement the mitigation measures identified in this rule 
to avoid or reduce potential impacts from acoustic, explosive, and 
physical disturbance and ship strike stressors.
    In summary (and described in more detail below in this section), 
the Navy has agreed to procedural mitigation measures that will reduce 
the probability and/or severity of impacts expected to result from 
acute exposure to acoustic sources or explosives, ship strike, and 
impacts to marine mammal habitat. Specifically, the Navy will use a 
combination of delayed starts, powerdowns, and shutdowns to minimize or 
avoid serious injury or mortality, minimize the likelihood or severity 
of PTS or other injury, and reduce instances of TTS or more severe 
behavioral disruption caused by acoustic sources or explosives. The 
Navy also will implement multiple time/area restrictions (several of 
which have been added since the previous AFTT MMPA incidental take 
rule) that would reduce take of marine mammals in areas or at times 
where they are known to engage in important behaviors, such as feeding 
or calving, where the disruption of those behaviors would have a higher 
probability of resulting in impacts on reproduction or survival of 
individuals that could lead to population-level impacts.
    Since the proposed rule, NMFS and the Navy have agreed to 
additional mitigation measures that are expected to reduce the 
likelihood and/or severity of adverse impacts on marine mammal species/
stocks and their habitat and are practicable for implementation. Below 
we summarize the added measures and describe the manner in which they 
are expected to reduce the likelihood or severity of adverse impacts on 
marine mammal species or stocks and their habitat. A full description 
of each measure is included in the mitigation tables below.
    1. Pre-event in-water explosive event observations--The Navy will 
implement pre-event observation as part of all in-water explosive event 
mitigations. Additionally, if there are other platforms participating 
in these events (beyond the vessel or aircraft in which required 
Lookout(s) are located) and in the vicinity of the detonation area, 
they will also visually observe this area as part of the mitigation 
team. This added monitoring for a subset of activities for which it was 
not previously required (explosive bombs, missiles and rockets, 
projectiles, torpedoes, grenades, and line charge testing) in advance 
of explosive events increases the likelihood that marine mammals will 
be detected if they are in the mitigation area and that, if any animals 
are detected, explosions will be delayed by timely mitigation 
implementation, thereby further reducing the already low likelihood 
that animals will be injured or killed by the blast.
    2. Post-event in-water explosive event observations--The Navy will 
implement post-event observation as part of all in-

[[Page 57188]]

water explosive event mitigations. Additionally, if there are other 
platforms participating in these events (beyond the vessel or aircraft 
in which required Lookout(s) are located) and in the vicinity of the 
detonation area, they will also visually observe this area as part of 
the mitigation team. This added monitoring for a subset of activities 
for which it was not previously required (explosive bombs, missiles and 
rockets, projectiles, torpedoes, grenades, and line charge testing) 
increases the likelihood that any injured marine mammals would be 
detected following an explosive event, which would increase our 
understanding of impacts and could potentially inform mitigation 
changes via the adaptive management provisions.
    3. NE NARW Mitigation Area--The Navy will expand the NE NARW 
Mitigation Area to match the updated NE NARW ESA-designated critical 
habitat. All of the mitigation required in the NE NARW Mitigation Area 
and discussed in the proposed rule (see Table 63 in the proposed rule) 
will apply to the expanded NE NARW Mitigation Area. The reduction of 
activities in, and increase of protective measures in (discussed 
elsewhere), areas with higher concentrations of NARWs engaged in 
important feeding activities (such as they are in this area), is 
expected to reduce the probability and/or severity of impacts on NARWs 
that would be more likely to adversely affect the fitness of any 
individual, which in turn reduces the likelihood that any impacts would 
translate to adverse impacts on the stock.
    4. NARW Dynamic Management Area notification--The Navy has agreed 
to broadcast awareness notification messages with NARW Dynamic 
Management Area information (e.g., location and dates) to applicable 
Navy vessels operating in the vicinity of NARW Dynamic Management 
Areas. The information will alert vessels to the possible presence of a 
NARW to maintain safety of navigation and further reduce the potential 
for a vessel strike. Any expanded mechanisms for detecting NARW, either 
directly around a vessel or in the wider area to increase vigilance for 
vessels, further reduce the probability that a whale will be struck.
    5. Gulf of Maine Planning Awareness Mitigation Area--The Navy will 
not conduct MTEs in this area. If the Navy identifies a National 
Security requirement to conduct an MTE, Navy will confer with NMFS to 
determine/verify that potential effects are addressed under the NEPA/
MMPA/ESA analyses. The Navy will implement a 200 hr/year hull-mounted 
MFAS cap and include all sonar and explosives usage in the Gulf of 
Maine Planning Awareness Mitigation Area in the annual training and 
testing activity reports. Any limitation of activities in, and/or 
increase of protective measures in, areas with higher concentrations of 
NARW, fin whales, sei whales, humpback whales and minke whales engaged 
in important feeding activities (such as this area), is expected to 
reduce the probability and/or severity of impacts on NARW and other 
mysticetes that would be more likely to adversely affect the fitness of 
any individual, which in turn reduces the likelihood that any impacts 
would translate to adverse impacts on the stock. Reduction of MTEs in 
this area will also reduce the severity of impacts to the small 
resident population of harbor porpoises (Gulf of Maine stock).
    6. Bryde's Whale Mitigation Area--The Navy (1) has agreed to the 
addition of a year-round, Bryde's Whale Mitigation Area, which will 
cover the BIA as described in NMFS' 2016 Status Review and include the 
area between 100 to 400 m isobaths between 87.5 degrees W to 27.5 
degrees N; (2) has agreed to move the northern GOMEX ship shock trial 
box west, out of the Bryde's whale BIA/Bryde's Whale Mitigation Area, 
including a five nmi buffer; (3) will also implement a 200 hr/year 
hull-mounted MFAS cap and restrict all explosives except for mine 
warfare activities events in the Bryde's Whale Mitigation Area; and (4) 
will report the total hours and counts of active sonar and in-water 
explosives used in the mitigation area in its annual training and 
testing activity reports submitted to NMFS. Any limitation of 
activities in the Bryde's whale mitigation area is expected to reduce 
the probability and/or severity of impacts on Bryde's whales that would 
be more likely to adversely affect the fitness of any individual, which 
in turn reduces the likelihood that any impacts would translate to 
adverse impacts on the stock.
    7. GOMEX Planning Awareness Mitigation Area--This area has been 
expanded to cover the BIA as described in NMFS' 2016 Status Review and 
include the area between 100 to 400 m isobaths between 87.5[deg] W to 
27.5[deg] N. The Navy will not conduct MTEs in this area. If the Navy 
identifies a National Security requirement to conduct an MTE, Navy will 
confer with NMFS to determine/verify potential effects are addressed 
under the NEPA/MMPA/ESA analyses. Any limitation of activities in the 
area in which Bryde's whales are limited to is expected to reduce the 
probability and/or severity of impacts on NARWs that would be more 
likely to adversely affect the fitness of any individual, which in turn 
reduces the likelihood that any impacts would translate to adverse 
impacts on the stock.
    8. Testing Event Removal--The Navy has removed one of their testing 
activities in the Northeast Range Complex (four events--USWT), which 
decreased the number of Level B harassment takes annually for NARW by 
115 takes. This change also decreased annual Level B harassment takes 
by approximately 200 takes for ESA-listed fin whale and 20 takes for 
sei whales, as well as approximately 10,000 takes annually for harbor 
porpoise.
    9. Jacksonville Operating Area Mitigation Area (November 15 through 
April 15)--The Navy will implement additional coordination and obtain 
Early Warning System NARW sightings data to aid in the implementation 
of procedural mitigation to minimize potential interactions with NARW 
in the Jacksonville Operating Area. This additional coordination will 
increase the likelihood that a NARW is detected and action taken to 
avoid vessel strike, thus further reducing the probability of a NARW 
strike.
    10. SE NARW Critical Habitat Special Reporting Area (November 15 
through April 15)--The Navy will report the total hours and counts of 
active sonar and in-water explosives used in a SE NARW Critical Habitat 
Special Reporting Area in its annual training and testing activity 
reports submitted to NMFS.
    11. Navy Cherry Point Range Complex Nearshore Mitigation Area 
(March through September)--The Navy will minimize use of explosives in 
the Navy Cherry Point Range Complex Nearshore Mitigation Area to the 
extent practicable. This area overlaps with the NARW migratory BIA and 
is expected to reduce impacts to NARW that may be present in March and 
April.
    12. Mid-Atlantic Planning Awareness Areas--The Navy has assessed 
and agreed to move the ship shock trial box east of the including a 5 
nmi buffer. The reduction of activities in, and increase of protective 
measures in areas with higher concentrations of NARW (such as they are 
in this area) is expected to reduce the probability and/or severity of 
impacts on NARW that would be more likely to adversely affect the 
fitness of any individual, which in turn reduces the likelihood that 
any impacts would translate to adverse impacts on the stock.
    The Navy assessed the measures it has agreed to in the context of 
personnel safety, practicality of implementation,

[[Page 57189]]

and their impacts on the Navy's ability to meet their Title 10 
requirements and found that the measures were supportable. As described 
above, NMFS has independently evaluated all of the measures the Navy 
has committed to (including those above added since the proposed rule 
was published) in the manner described earlier in this section (i.e., 
in consideration of their ability to reduce adverse impacts on marine 
mammal species and stocks and their habitat and their practicability 
for implementation). We have determined that the additional measures 
will further reduce impacts on the affected marine mammal species and 
stocks and their habitat beyond the initial measures proposed and, 
further, be practicable for Navy implementation.
    The Navy also evaluated numerous measures in its AFTT FEIS/OEIS 
that were not included in the Navy's rulemaking/LOA application for the 
Specified Activities, and NMFS independently reviewed and concurs with 
Navy's analysis that their inclusion was not appropriate under the 
least practicable adverse impact standard based on our assessment. The 
Navy considered these additional potential mitigation measures in two 
groups. First, Chapter 5 (Mitigation) of the AFTT FEIS/OEIS, in the 
Measures Considered but Eliminated section, includes an analysis of an 
array of different types of mitigation that have been recommended over 
the years by non-governmental organizations (NGOs) or the public, 
through scoping or public comment on environmental compliance 
documents. As described in Chapter 5 of the AFTT FEIS/OEIS, commenters 
sometimes recommend that the Navy reduce their overall amount of 
training, reduce explosive use, modify their sound sources, completely 
replace live training with computer simulation, or include time of day 
restrictions. All of these mitigation measures could potentially reduce 
the number of marine mammals taken, via direct reduction of the 
activities or amount of sound energy put in the water. However, as the 
Navy has described in Chapter 5 Mitigation of the AFTT FEIS/OEIS, the 
Navy needs to train and test in the conditions in which it fights--and 
these types of modifications fundamentally change the activity in a 
manner that would not support the purpose and need for the training and 
testing (i.e., are entirely impracticable) and therefore are not 
considered further. NMFS finds the Navy's explanation for why adoption 
of these recommendations would unacceptably undermine the purpose of 
the testing and training persuasive. After independent review, NMFS 
finds the Navy's judgment on the impacts of potential mitigation 
measures to personnel safety, practicality of implementation and the 
undermining of the effectiveness of training and testing persuasive, 
and for these reasons, NMFS finds that these measures do not meet the 
least practicable adverse impact standard because they are not 
practicable.
    Second, in Chapter 5 Mitigation of the AFTT FEIS/OEIS, the Navy 
evaluated additional potential procedural mitigation measures, 
including increased mitigation zones, additional passive acoustic and 
visual monitoring, and decreased vessel speeds. Some of these measures 
have the potential to incrementally reduce take to some degree in 
certain circumstances, though the degree to which this would occur is 
typically low or uncertain. However, as described in the Navy's 
analysis, the measures would have significant direct negative effects 
on mission effectiveness and are considered impracticable (see Chapter 
5 Mitigation of AFTT FEIS/OEIS). NMFS independently reviewed and 
concurred with the Navy's evaluation and concurred with this 
assessment, which supports NMFS' findings that the impracticability of 
this additional mitigation would greatly outweigh any potential minor 
reduction in marine mammal impacts that might result; therefore, these 
additional mitigation measures are not required under the least 
practicable adverse impact standard.
    NMFS has independently reviewed the Navy's mitigation analysis 
(Chapter 5 Mitigation of the AFTT FEIS/OEIS as referenced above), which 
considers the same factors that NMFS would consider to satisfy the 
least practical adverse impact standard, and concurs with the 
conclusions. Therefore, NMFS is not proposing to include any additional 
measures in these regulations, other than the new measures that were 
agreed upon after the proposed rule. Below are the mitigation measures 
that NMFS determined will ensure the least practicable adverse impact 
on all affected species and stocks and their habitat, including the 
specific considerations for military readiness activities. The 
following sections summarize the mitigation measures that will be 
implemented in association with the training and testing activities 
analyzed in this document. The Navy's mitigation measures are organized 
into two categories: procedural mitigation and mitigation areas.

Procedural Mitigation

    Procedural mitigation is mitigation that the Navy will implement 
whenever and wherever an applicable training or testing activity takes 
place within the AFTT Study Area. The Navy customizes procedural 
mitigation for each applicable activity category or stressor. 
Procedural mitigation generally involves: (1) The use of one or more 
trained Lookouts to diligently observe for specific biological 
resources (including marine mammals) within a mitigation zone, (2) 
requirements for Lookouts to immediately communicate sightings of 
specific biological resources to the appropriate watch station for 
information dissemination, and (3) requirements for the watch station 
to implement mitigation (e.g., halt an activity) until certain 
recommencement conditions have been met. The first procedural 
mitigation (Table 43) is designed to aid Lookouts and other applicable 
personnel with their observation, environmental compliance, and 
reporting responsibilities. The remainder of the procedural mitigation 
measures (Tables 44 through Tables 63) are organized by stressor type 
and activity category and includes acoustic stressors (i.e., active 
sonar, air guns, pile driving, weapons firing noise), explosive 
stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber 
projectiles, missiles and rockets, bombs, sinking exercises, mines, 
anti-swimmer grenades, line charge testing and ship shock trials), and 
physical disturbance and strike stressors (i.e., vessel movement, towed 
in-water devices, small-, medium-, and large-caliber non-explosive 
practice munitions, non-explosive missiles and rockets, non-explosive 
bombs and mine shapes).

     Table 43--Procedural Mitigation for Environmental Awareness and
                                Education
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     All training and testing activities, as applicable.
Mitigation Requirements:

[[Page 57190]]

 
     Appropriate personnel (including civilian personnel)
     involved in mitigation and training or testing activity reporting
     under the Proposed Action must complete one or more modules of the
     U.S. Navy Afloat Environmental Compliance Training Series, as
     identified in their career path training plan. Modules include:
        --Introduction to the U.S. Navy Afloat Environmental Compliance
         Training Series. The introductory module provides information
         on environmental laws (e.g., ESA, MMPA) and the corresponding
         responsibilities that are relevant to Navy training and testing
         activities. The material explains why environmental compliance
         is important in supporting the Navy's commitment to
         environmental stewardship.
        --Marine Species Awareness Training. All bridge watch personnel,
         Commanding Officers, Executive Officers, maritime patrol
         aircraft aircrews, anti[hyphen]submarine warfare and mine
         warfare rotary-wing aircrews, Lookouts, and equivalent civilian
         personnel must successfully complete the Marine Species
         Awareness Training prior to standing watch or serving as a
         Lookout. The Marine Species Awareness Training provides
         information on sighting cues, visual observation tools and
         techniques, and sighting notification procedures. Navy
         biologists developed Marine Species Awareness Training to
         improve the effectiveness of visual observations for biological
         resources, focusing on marine mammals and sea turtles, and
         including floating vegetation, jellyfish aggregations, and
         flocks of seabirds.
        --U.S. Navy Protective Measures Assessment Protocol. This module
         provides the necessary instruction for accessing mitigation
         requirements during the event planning phase using the
         Protective Measures Assessment Protocol software tool.
        --U.S. Navy Sonar Positional Reporting System and Marine Mammal
         Incident Reporting. This module provides instruction on the
         procedures and activity reporting requirements for the Sonar
         Positional Reporting System and marine mammal incident
         reporting.
------------------------------------------------------------------------

Procedural Mitigation for Acoustic Stressors

    Mitigation measures for acoustic stressors are provided in Tables 
44 through 47.

Procedural Mitigation for Active Sonar

    Procedural mitigation for active sonar is described in Table 44 
below.

            Table 44--Procedural Mitigation for Active Sonar
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Low-frequency active sonar, mid-frequency active sonar,
     high-frequency active sonar:
        --For vessel-based activities, mitigation applies only to
         sources that are positively controlled and deployed from manned
         surface vessels (e.g., sonar sources towed from manned surface
         platforms).
        --For aircraft-based activities, mitigation applies only to
         sources that are positively controlled and deployed from manned
         aircraft that do not operate at high altitudes (e.g., rotary-
         wing aircraft). Mitigation does not apply to active sonar
         sources deployed from unmanned aircraft or aircraft operating
         at high altitudes (e.g., maritime patrol aircraft).
Number of Lookouts and Observation Platform:
     Hull-mounted sources:
        --1 Lookout: Platforms with space or manning restrictions while
         underway (at the forward part of a small boat or ship) and
         platforms using active sonar while moored or at anchor
         (including pierside).
        --2 Lookouts: Platforms without space or manning restrictions
         while underway (at the forward part of the ship).
        --4 Lookouts: Pierside sonar testing activities at Port
         Canaveral, Florida and Kings Bay, Georgia.
     Sources that are not hull-mounted:
        --1 Lookout on the ship or aircraft conducting the activity.
Mitigation Requirements:
     Mitigation zones:
        --During the activity, at 1,000 yd power down 6 dB, at 500 yd
         power down an additional 4 dB (for a total of 10 dB), and at
         200 yd shut down for low-frequency active sonar >=200 decibels
         (dB) and hull-mounted mid-frequency active sonar.
        --200 yd. shut down for low-frequency active sonar <200 dB, mid-
         frequency active sonar sources that are not hull-mounted, and
         high-frequency active sonar.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of active sonar transmission.
     During the activity:
        --Low-frequency active sonar >=200 decibels (dB) and hull-
         mounted mid-frequency active sonar: Observe the mitigation zone
         for marine mammals; power down active sonar transmission by 6
         dB if observed within 1,000 yd. of the sonar source; power down
         an additional 4 dB (10 dB total) within 500 yd.; cease
         transmission within 200 yd.
        --Low-frequency active sonar <200 dB, mid-frequency active sonar
         sources that are not hull-mounted, and high-frequency active
         sonar: Observe the mitigation zone for marine mammals; cease
         active sonar transmission if observed within 200 yd. of the
         sonar source.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         or powering up active sonar transmission) until one of the
         following conditions has been met: (1) The animal is observed
         exiting the mitigation zone; (2) the animal is thought to have
         exited the mitigation zone based on a determination of its
         course, speed, and movement relative to the sonar source; (3)
         the mitigation zone has been clear from any additional
         sightings for 10 min for aircraft-deployed sonar sources or 30
         min for vessel-deployed sonar sources; (4) for mobile
         activities, the active sonar source has transited a distance
         equal to double that of the mitigation zone size beyond the
         location of the last sighting; or (5) for activities using hull-
         mounted sonar, the ship concludes that dolphins are
         deliberately closing in on the ship to ride the ship's bow
         wave, and are therefore out of the main transmission axis of
         the sonar (and there are no other marine mammal sightings
         within the mitigation zone).
------------------------------------------------------------------------

Procedural Mitigation for Air Guns

    Procedural mitigation for air guns is described in Table 45 below.

[[Page 57191]]



              Table 45--Procedural Mitigation for Air Guns
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Air guns.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on a ship or pierside.
Mitigation Requirements:
     Mitigation zone:
        --150 yd around the air gun.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of air gun use.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease air gun use.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         air gun use) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the air gun; (3) the mitigation zone has been clear
         from any additional sightings for 30 min; or (4) for mobile
         activities, the air gun has transited a distance equal to
         double that of the mitigation zone size beyond the location of
         the last sighting.
------------------------------------------------------------------------

Procedural Mitigation for Pile Driving

    Procedural mitigation for pile driving is described in Table 46 
below.

            Table 46--Procedural Mitigation for Pile Driving
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Pile driving and pile extraction sound during Elevated
     Causeway System training.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on the shore, the elevated causeway,
     or a small boat.
Mitigation Requirements:
     Mitigation zone:
        --100 yd. around the pile.
     Prior to the initial start of the activity (for 30 min):
        --Observe the mitigation zone for floating vegetation; if
         observed, delay the start until the mitigation zone is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         delay the start of pile driving or vibratory pile extraction.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease impact pile driving or vibratory pile extraction.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         pile driving or pile extraction) until one of the following
         conditions has been met: (1) The animal is observed exiting the
         mitigation zone; (2) the animal is thought to have exited the
         mitigation zone based on a determination of its course, speed,
         and movement relative to the pile driving location; or (3) the
         mitigation zone has been clear from any additional sightings
         for 30 min.
------------------------------------------------------------------------

Procedural Mitigation for Weapons Firing Noise

    Procedural mitigation for weapons firing noise is described in 
Table 47 below.

        Table 47-- Procedural Mitigation for Weapons Firing Noise
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Weapons firing noise associated with large-caliber gunnery
     activities.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on the ship conducting the firing.
     Depending on the activity, the Lookout could be the same
     one described for Explosive Medium-Caliber and Large-Caliber
     Projectiles or Small-, Medium-, and Large-Caliber Non-Explosive
     Practice Munitions.
Mitigation Requirements:

[[Page 57192]]

 
     Mitigation zone:
        --30[deg] on either side of the firing line out to 70 yd from
         the muzzle of the weapon being fired.
     Prior to the initial start of the activity:
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of weapons firing.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease weapons firing.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         weapons firing) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the firing ship; (3) the mitigation zone has been
         clear from any additional sightings for 30 min; or (4) for
         mobile activities, the firing ship has transited a distance
         equal to double that of the mitigation zone size beyond the
         location of the last sighting.
------------------------------------------------------------------------

Procedural Mitigation for Explosive Stressors

    Mitigation measures for explosive stressors are provided in Tables 
48 through 58.

Procedural Mitigation for Explosive Sonobuoys

    Procedural mitigation for explosive sonobuoys is described in Table 
48 below.

                             Table 48--Procedural Mitigation for Explosive Sonobuoys
----------------------------------------------------------------------------------------------------------------
                                        Procedural Mitigation Description
-----------------------------------------------------------------------------------------------------------------
Stressor or Activity:
     Explosive sonobuoys.
Number of Lookouts and Observation Platform:
     1 Lookout positioned in an aircraft or on small boat.
     If additional platforms are participating in the activity, personnel positioned in those assets
     (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biological
     resources while performing their regular duties.
Mitigation Requirements:
     Mitigation zone:
        --600 yd. around an explosive sonobuoy.
     Prior to the initial start of the activity (e.g., during deployment of a sonobuoy field, which
     typically lasts 20-30 min):
        --Observe the mitigation zone for floating vegetation; if observed, relocate or delay the start until
         the mitigation zone is clear.
        --Conduct passive acoustic monitoring for marine mammals; use information from detections to assist
         visual observations.
        --Visually observe the mitigation zone for marine mammals; if observed, relocate or delay the start of
         sonobuoy or source/receiver pair detonations.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed, cease sonobuoy or source/receiver pair
         detonations.
     Commencement/recommencement conditions after a marine mammal sighting before or during the
     activity:
        --The Navy must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of
         the activity (by delaying the start) or during the activity (by not recommencing detonations) until one
         of the following conditions has been met: (1) The animal is observed exiting the mitigation zone; (2)
         the animal is thought to have exited the mitigation zone based on a determination of its course, speed,
         and movement relative to the sonobuoy; or (3) the mitigation zone has been clear from any additional
         sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the
         activity involves aircraft that are not typically fuel constrained.
     After completion of the activity (e.g., prior to maneuvering off station):
        --When practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential
         follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if
         any injured or dead marine mammals are observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g., providing range clearance), these assets
         must assist in the visual observation of the area where detonations occurred.
----------------------------------------------------------------------------------------------------------------

Procedural Mitigation for Explosive Torpedoes

    Procedural mitigation for explosive torpedoes is described in Table 
49 below.

                             Table 49--Procedural Mitigation for Explosive Torpedoes
----------------------------------------------------------------------------------------------------------------
                                        Procedural Mitigation Description
-----------------------------------------------------------------------------------------------------------------
Stressor or Activity:
     Explosive torpedoes.
Number of Lookouts and Observation Platform:

[[Page 57193]]

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

Procedural Mitigation for Medium- and Large-Caliber Projectiles

    Procedural mitigation for medium- and large-caliber projectiles is 
described in Table 50 below.

[[Page 57194]]



 Table 50--Procedural Mitigation for Explosive Medium-Caliber and Large-
                           Caliber Projectiles
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Gunnery activities using explosive medium-caliber and large-
     caliber projectiles:
        --Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
     1 Lookout on the vessel or aircraft conducting the
     activity.
     For activities using explosive large-caliber projectiles,
     depending on the activity, the Lookout could be the same as the one
     described for Weapons Firing Noise.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zones:
        --200 yd around the intended impact location for air-to-surface
         activities using explosive medium-caliber projectiles.
        --600 yd around the intended impact location for surface-to-
         surface activities using explosive medium-caliber projectiles.
        --1,000 yd around the intended impact location for surface-to-
         surface activities using explosive large-caliber projectiles.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of firing.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease firing.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         The animal is observed exiting the mitigation zone; (2) the
         animal is thought to have exited the mitigation zone based on a
         determination of its course, speed, and movement relative to
         the intended impact location; (3) the mitigation zone has been
         clear from any additional sightings for 10 min for aircraft-
         based firing or 30 min for vessel-based firing; or (4) for
         activities using mobile targets, the intended impact location
         has transited a distance equal to double that of the mitigation
         zone size beyond the location of the last sighting.
     After completion of the activity (e.g., prior to
     maneuvering off station):
        --When practical (e.g., when platforms are not constrained by
         fuel restrictions or mission-essential follow-on commitments),
         observe for marine mammals in the vicinity of where detonations
         occurred; if any injured or dead marine mammals are observed,
         follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Explosive Missiles and Rockets

    Procedural mitigation for explosive missiles and rockets is 
described in Table 51 below.

   Table 51--Procedural Mitigation for Explosive Missiles and Rockets
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Aircraft-deployed explosive missiles and rockets:
        --Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
     1 Lookout positioned in an aircraft.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zones:
        --900 yd around the intended impact location for missiles or
         rockets with 0.6-20 lb net explosive weight.
        --2,000 yd around the intended impact location for missiles with
         21-500 lb net explosive weight.
     Prior to the initial start of the activity (e.g., during a
     fly-over of the mitigation zone):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of firing.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease firing.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         The animal is observed exiting the mitigation zone; (2) the
         animal is thought to have exited the mitigation zone based on a
         determination of its course, speed, and movement relative to
         the intended impact location; or (3) the mitigation zone has
         been clear from any additional sightings for 10 min when the
         activity involves aircraft that have fuel constraints, or 30
         min when the activity involves aircraft that are not typically
         fuel constrained.
     After completion of the activity (e.g., prior to
     maneuvering off station):
        --When practical (e.g., when platforms are not constrained by
         fuel restrictions or mission-essential follow-on commitments),
         observe for marine mammals in the vicinity of where detonations
         occurred; if any injured or dead marine mammals are observed,
         follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Explosive Bombs

    Procedural mitigation for explosive bombs is described in Table 52 
below.

[[Page 57195]]



           Table 52--Procedural Mitigation for Explosive Bombs
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Explosive bombs.
Number of Lookouts and Observation Platform:
     1 Lookout positioned in the aircraft conducting the
     activity.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zone:
        --2,500 yd around the intended target.
     Prior to the initial start of the activity (e.g., when
     arriving on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of bomb deployment.
     During the activity (e.g., during target approach):
        --Observe the mitigation zone for marine mammals; if observed,
         cease bomb deployment.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         bomb deployment) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the intended target; (3) the mitigation zone has
         been clear from any additional sightings for 10 min; or (4) for
         activities using mobile targets, the intended target has
         transited a distance equal to double that of the mitigation
         zone size beyond the location of the last sighting.
     After completion of the activity (e.g., prior to
     maneuvering off station):
        --When practical (e.g., when platforms are not constrained by
         fuel restrictions or mission-essential follow-on commitments),
         observe for marine mammals in the vicinity of where detonations
         occurred; if any injured or dead marine mammals are observed,
         follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Sinking Exercises

    Procedural mitigation for sinking exercises is described in Table 
53 below.

          Table 53--Procedural Mitigation for Sinking Exercises
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Sinking exercises.
Number of Lookouts and Observation Platform:
     2 Lookouts (one positioned in an aircraft and one on a
     vessel).
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zone:
        --2.5 nmi around the target ship hulk.
     Prior to the initial start of the activity (90 min prior to
     the first firing):
        --Conduct aerial observations of the mitigation zone for
         floating vegetation; delay the start until the mitigation zone
         is clear.
        --Conduct aerial observations of the mitigation zone for marine
         mammals and jellyfish aggregations; if observed, delay the
         start of firing.
     During the activity:
        --Conduct passive acoustic monitoring for marine mammals; use
         information from detections to assist visual observations.
        --Visually observe the mitigation zone for marine mammals from
         the vessel; if observed, cease firing.
        --Immediately after any planned or unplanned breaks in weapons
         firing of longer than 2 hrs, observe the mitigation zone for
         marine mammals from the aircraft and vessel; if observed, delay
         recommencement of firing.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         The animal is observed exiting the mitigation zone; (2) the
         animal is thought to have exited the mitigation zone based on a
         determination of its course, speed, and movement relative to
         the target ship hulk; or (3) the mitigation zone has been clear
         from any additional sightings for 30 min.
     After completion of the activity (for 2 hrs after sinking
     the vessel or until sunset, whichever comes first):
        --Observe for marine mammals in the vicinity of where
         detonations occurred; if any injured or dead marine mammals are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Explosive Mine Countermeasure and 
Neutralization Activities

    Procedural mitigation for explosive mine countermeasure and 
neutralization activities is described in Table 54 below.

[[Page 57196]]



  Table 54--Procedural Mitigation for Explosive Mine Countermeasure and
                        Neutralization Activities
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Explosive mine countermeasure and neutralization
     activities.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on a vessel or in an aircraft when
     implementing the smaller mitigation zone.
     2 Lookouts (one positioned in an aircraft and one on a
     small boat) when implementing the larger mitigation zone.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zones:
        --600 yd around the detonation site for activities using 0.1-5-
         lb net explosive weight.
        --2,100 yd around the detonation site for activities using 6-650
         lb net explosive weight (including high explosive target
         mines).
     Prior to the initial start of the activity (e.g., when
     maneuvering on station; typically, 10 min when the activity
     involves aircraft that have fuel constraints, or 30 min when the
     activity involves aircraft that are not typically fuel
     constrained):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of detonations.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease detonations.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         detonations) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to detonation site; or (3) the mitigation zone has
         been clear from any additional sightings for 10 min when the
         activity involves aircraft that have fuel constraints, or 30
         min when the activity involves aircraft that are not typically
         fuel constrained.
     After completion of the activity (typically 10 min when the
     activity involves aircraft that have fuel constraints, or 30 min
     when the activity involves aircraft that are not typically fuel
     constrained):
        --Observe for marine mammals in the vicinity of where
         detonations occurred; if any injured or dead marine mammals are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Explosive Mine Neutralization Activities 
Involving Navy Divers

    Procedural mitigation for explosive mine neutralization activities 
involving Navy divers is described in Table 55 below.

    Table 55--Procedural Mitigation for Explosive Mine Neutralization
                    Activities Involving Navy Divers
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Explosive mine neutralization activities involving Navy
     divers.
Number of Lookouts and Observation Platform:
     2 Lookouts (two small boats with one Lookout each, or one
     Lookout on a small boat and one in a rotary-wing aircraft) when
     implementing the smaller mitigation zone.
     4 Lookouts (two small boats with two Lookouts each), and a
     pilot or member of an aircrew must serve as an additional Lookout
     if aircraft are used during the activity, when implementing the
     larger mitigation zone.
     All divers placing the charges on mines must support the
     Lookouts while performing their regular duties and must report
     applicable sightings to their supporting small boat or Range Safety
     Officer.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:

[[Page 57197]]

 
     Mitigation zones:
        --500 yd around the detonation site during activities under
         positive control using 0.1-20 lb net explosive weight.
        --1,000 yd around the detonation site during activities using
         time-delay fuses (0.1-20 lb net explosive weight) and during
         activities under positive control using 21-60 lb net explosive
         weight charges.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station for activities under positive control; 30
     min for activities using time-delay firing devices):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of detonations or fuse initiation.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease detonations or fuse initiation.
        --To the maximum extent practicable depending on mission
         requirements, safety, and environmental conditions, boats must
         position themselves near the mid-point of the mitigation zone
         radius (but outside of the detonation plume and human safety
         zone), must position themselves on opposite sides of the
         detonation location (when two boats are used), and must travel
         in a circular pattern around the detonation location with one
         Lookout observing inward toward the detonation site and the
         other observing outward toward the perimeter of the mitigation
         zone.
        --If used, aircraft must travel in a circular pattern around the
         detonation location to the maximum extent practicable.
        --The Navy must not set time-delay firing devices (0.1-20 lb net
         explosive weight) to exceed 10 min.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         detonations) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the detonation site; or (3) the mitigation zone has
         been clear from any additional sightings for 10 min during
         activities under positive control with aircraft that have fuel
         constraints, or 30 min during activities under positive control
         with aircraft that are not typically fuel constrained and
         during activities using time-delay firing devices.
     After completion of an activity (for 30 min):
        --Observe for marine mammals in the vicinity of where
         detonations occurred; if any injured or dead marine mammals are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Maritime Security Operations--Anti-Swimmer 
Grenades

    Procedural mitigation for maritime security operations--anti-
swimmer grenades is described in Table 56 below.

 Table 56--Procedural Mitigation for Maritime Security Operations--Anti-
                            Swimmer Grenades
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Maritime Security Operations--Anti-Swimmer Grenades.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on the small boat conducting the
     activity.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zone:
        --200 yd around the intended detonation location.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of detonations.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease detonations.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         detonations) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the intended detonation location; (3) the
         mitigation zone has been clear from any additional sightings
         for 30 min; or (4) the intended detonation location has
         transited a distance equal to double that of the mitigation
         zone size beyond the location of the last sighting.
     After completion of the activity (e.g., prior to
     maneuvering off station):
        --When practical (e.g., when platforms are not constrained by
         fuel restrictions or mission-essential follow-on commitments),
         observe for marine mammals in the vicinity of where detonations
         occurred; if any injured or dead marine mammals are observed,
         follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Line Charge Testing

    Procedural mitigation for line charge testing is described in Table 
57 below.

[[Page 57198]]



         Table 57--Procedural Mitigation for Line Charge Testing
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Line charge testing.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on a vessel.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zone:
        --900 yd around the intended detonation location.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, delay the start until the mitigation zone is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         delay the start of detonations.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease detonations.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         detonations) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the intended detonation location; or (3) the
         mitigation zone has been clear from any additional sightings
         for 30 min.
     After completion of the activity (e.g., prior to
     maneuvering off station):
        --When practical (e.g., when platforms are not constrained by
         fuel restrictions or mission-essential follow-on commitments),
         observe for marine mammals in the vicinity of where detonations
         occurred; if any injured or dead marine mammals are observed,
         follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------

Procedural Mitigation for Ship Shock Trials

    Procedural mitigation for ship shock trials is described in Table 
58 below.

          Table 58--Procedural Mitigation for Ship Shock Trials
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Ship shock trials.
Number of Lookouts and Observation Platform:
     At least 10 Lookouts or trained marine species observers
     (or a combination thereof) positioned either in an aircraft or on
     multiple vessels (i.e., a Marine Animal Response Team boat and the
     test ship):
        --If aircraft are used, Lookouts or trained marine species
         observers must be in an aircraft and on multiple vessels.
        --If aircraft are not used, a sufficient number of additional
         Lookouts or trained marine species observers must be used to
         provide vessel-based visual observation comparable to that
         achieved by aerial surveys.
     If additional platforms are participating in the activity,
     personnel positioned in those assets (e.g., safety observers,
     evaluators) must support observing the mitigation zone for
     applicable biological resources while performing their regular
     duties.
Mitigation Requirements:
     Mitigation zone:
        --3.5 nmi around the ship hull.
     During event planning:
        --The Navy must not conduct ship shock trials in the
         Jacksonville Operating Area during North Atlantic right whale
         calving season from November 15 through April 15.
        --The Navy develops detailed ship shock trial monitoring and
         mitigation plans approximately 1-year prior to an event and
         must continue to provide these to NMFS for review and approval.
        --Pre-activity planning must include selection of one primary
         and two secondary areas where marine mammal populations are
         expected to be the lowest during the event, with the primary
         and secondary locations located more than 2 nmi from the
         western boundary of the Gulf Stream for events in the Virginia
         Capes Range Complex or Jacksonville Range Complex.
        --If it is determined during pre-activity surveys that the
         primary area is environmentally unsuitable (e.g., observations
         of marine mammals or presence of concentrations of floating
         vegetation), the shock trial could be moved to a secondary site
         in accordance with the detailed mitigation and monitoring plan
         provided to NMFS.
     Prior to the initial start of the activity at the primary
     shock trial location (in intervals of 5 hrs, 3 hrs, 40 min, and
     immediately before the detonation):
        --Observe the mitigation zone for floating vegetation; if
         observed, delay the start until the mitigation zone is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         delay triggering the detonation.
     During the activity:
        --Observe the mitigation zone for marine mammals, large schools
         of fish, jellyfish aggregations, and flocks of seabirds; if
         observed, cease triggering the detonation.
        --After completion of each detonation, observe the mitigation
         zone for marine mammals; if any injured or dead marine mammals
         are observed, follow established incident reporting procedures
         and halt any remaining detonations until the Navy can consult
         with NMFS and review or adapt the mitigation, if necessary.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         detonations) until one of the following conditions has been
         met: (1) The animal is observed exiting the mitigation zone;
         (2) the animal is thought to have exited the mitigation zone
         based on a determination of its course, speed, and movement
         relative to the ship hull; or (3) the mitigation zone has been
         clear from any additional sightings for 30 min.
     After completion of the activity (during the following 2
     days at a minimum, and up to 7 days at a maximum):
        --Observe for marine mammals in the vicinity of where
         detonations occurred; if any injured or dead marine mammals are
         observed, follow established incident reporting procedures.
        --If additional platforms are supporting this activity (e.g.,
         providing range clearance), these assets must assist in the
         visual observation of the area where detonations occurred.
------------------------------------------------------------------------


[[Page 57199]]

Procedural Mitigation for Physical Disturbance and Strike Stressors

    Mitigation measures for physical disturbance and strike stressors 
are provided in Table 59 through Table 63.

Procedural Mitigation for Vessel Movement

    Procedural mitigation for vessel movement used during the Planned 
Activities is described in Table 59 below.

           Table 59--Procedural Mitigation for Vessel Movement
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Vessel movement:
        --The mitigation must not be applied if: (1) The vessel's safety
         is threatened, (2) the vessel is restricted in its ability to
         maneuver (e.g., during launching and recovery of aircraft or
         landing craft, during towing activities, when mooring, etc.),
         or (3) the vessel is operated autonomously.
Number of Lookouts and Observation Platform:
     1 Lookout on the vessel that is underway.
Mitigation Requirements:
     Mitigation zones:
        --500 yd around whales.
        --200 yd around other marine mammals (except bow-riding dolphins
         and pinnipeds hauled out on man-made navigational structures,
         port structures, and vessels).
     During the activity:
        --When underway, observe the mitigation zone for marine mammals;
         if observed, maneuver to maintain distance.
     Additional requirements:
        --The Navy must broadcast awareness notification messages with
         North Atlantic right whale Dynamic Management Area information
         (e.g., location and dates) to applicable Navy assets operating
         in the vicinity of the Dynamic Management Area. The information
         must alert assets to the possible presence of a North Atlantic
         right whale to maintain safety of navigation and further reduce
         the potential for a vessel strike. Platforms must use the
         information to assist their visual observation of applicable
         mitigation zones during training and testing activities and to
         aid in the implementation of procedural mitigation, including
         but not limited to mitigation for vessel movement.
        --If a marine mammal vessel strike occurs, the Navy must follow
         the established incident reporting procedures.
------------------------------------------------------------------------

Procedural Mitigation for Towed In-Water Devices

    Procedural mitigation for towed in-water devices is described in 
Table 60 below.

       Table 60--Procedural Mitigation for Towed In-Water Devices
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Towed in-water devices:
        --Mitigation applies to devices that are towed from a manned
         surface platform or manned aircraft.
        --The mitigation must not be applied if the safety of the towing
         platform or in-water device is threatened.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on the manned towing platform.
Mitigation Requirements:
     Mitigation zones:
        --250 yd around marine mammals.
     During the activity (i.e., when towing an in-water device):
        --Observe the mitigation zone for marine mammals; if observed,
         maneuver to maintain distance.
------------------------------------------------------------------------

Procedural Mitigation for Small-, Medium-, and Large-Caliber Non-
Explosive Practice Munitions

    Procedural mitigation for small-, medium-, and large-caliber non-
explosive practice munitions is described in Table 61 below.

 Table 61--Procedural Mitigation for Small-, Medium-, and Large-Caliber
                    Non-Explosive Practice Munitions
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Gunnery activities using small-, medium-, and large-caliber
     non-explosive practice munitions:
        --Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
     1 Lookout positioned on the platform conducting the
     activity.
     Depending on the activity, the Lookout could be the same as
     the one described for Weapons Firing Noise.
Mitigation Requirements:

[[Page 57200]]

 
     Mitigation zone:
        --200 yd around the intended impact location.
     Prior to the initial start of the activity (e.g., when
     maneuvering on station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of firing.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease firing.
     Commencement/recommencement conditions after a marine
     mammal sighting before or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         The animal is observed exiting the mitigation zone; (2) the
         animal is thought to have exited the mitigation zone based on a
         determination of its course, speed, and movement relative to
         the intended impact location; (3) the mitigation zone has been
         clear from any additional sightings for 10 min for aircraft-
         based firing or 30 min for vessel-based firing; or (4) for
         activities using a mobile target, the intended impact location
         has transited a distance equal to double that of the mitigation
         zone size beyond the location of the last sighting.
------------------------------------------------------------------------

Procedural Mitigation for Non-Explosive Missiles and Rockets

    Procedural mitigation for non-explosive missiles and rockets is 
described in Table 62 below.

 Table 62--Procedural Mitigation for Non-Explosive Missiles and Rockets
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Aircraft-deployed non-explosive missiles and rockets:
        --Mitigation applies to activities using a surface target.
Number of Lookouts and Observation Platform:
     1 Lookout positioned in an aircraft.
Mitigation Requirements:
     Mitigation zone:
        --900 yd around the intended impact location.
     Prior to the initial start of the activity (e.g., during a
     fly-over of the mitigation zone):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of firing.
     During the activity:
        --Observe the mitigation zone for marine mammals; if observed,
         cease firing.
     Commencement/recommencement conditions after a marine
     mammal sighting prior to or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         firing) until one of the following conditions has been met: (1)
         The animal is observed exiting the mitigation zone; (2) the
         animal is thought to have exited the mitigation zone based on a
         determination of its course, speed, and movement relative to
         the intended impact location; or (3) the mitigation zone has
         been clear from any additional sightings for 10 min when the
         activity involves aircraft that have fuel constraints, or 30
         min when the activity involves aircraft that are not typically
         fuel constrained.
------------------------------------------------------------------------

Procedural Mitigation for Non-Explosive Bombs and Mine Shapes

    Procedural mitigation for non-explosive bombs and mine shapes is 
described in Table 63 below.

 Table 63--Procedural Mitigation for Non-Explosive Bombs and Mine Shapes
------------------------------------------------------------------------
                    Procedural Mitigation Description
-------------------------------------------------------------------------
Stressor or Activity:
     Non-explosive bombs.
     Non-explosive mine shapes during mine laying activities.
Number of Lookouts and Observation Platform:
     1 Lookout positioned in an aircraft.
Mitigation Requirements:

[[Page 57201]]

 
     Mitigation zone:
        --1,000 yd around the intended target.
     Prior to the start of the activity (e.g., when arriving on
     station):
        --Observe the mitigation zone for floating vegetation; if
         observed, relocate or delay the start until the mitigation zone
         is clear.
        --Observe the mitigation zone for marine mammals; if observed,
         relocate or delay the start of bomb deployment or mine laying.
     During the activity (e.g., during approach of the target or
     intended minefield location):
        --Observe the mitigation zone for marine mammals; if observed,
         cease bomb deployment or mine laying.
     Commencement/recommencement conditions after a marine
     mammal sighting prior to or during the activity:
        --The Navy must allow a sighted marine mammal to leave the
         mitigation zone prior to the initial start of the activity (by
         delaying the start) or during the activity (by not recommencing
         bomb deployment or mine laying) until one of the following
         conditions has been met: (1) The animal is observed exiting the
         mitigation zone; (2) the animal is thought to have exited the
         mitigation zone based on a determination of its course, speed,
         and movement relative to the intended target or minefield
         location; (3) the mitigation zone has been clear from any
         additional sightings for 10 min; or (4) for activities using
         mobile targets, the intended target has transited a distance
         equal to double that of the mitigation zone size beyond the
         location of the last sighting.
------------------------------------------------------------------------

Mitigation Areas

    In addition to procedural mitigation, the Navy will implement 
mitigation measures within mitigation areas and/or at times to avoid or 
minimize potential impacts on marine mammals (see the revised maps and 
tables, with expanded areas as described above, provided in Chapter 5 
(Mitigation), Section 5.4 of the AFTT FEIS/OEIS). The Navy has taken 
into account public comments received on the AFTT DEIS/OEIS, best 
available science, and the practicability of implementing additional 
mitigation measures and has expanded and improved their mitigation 
areas and mitigation measures to further reduce impacts to marine 
mammals. As such, the Navy revised their mitigation areas since their 
application and the proposed rule (see above). The Navy re-analyzed 
existing mitigation areas and considered new habitat areas suggested by 
the public, NMFS, and other non-Navy organizations, including NARW ESA-
designated critical habitat, important habitat for sperm whales and 
Bryde's whales, BIAs, and National Marine Sanctuaries. The Navy worked 
collaboratively with NMFS to develop mitigation areas using inputs from 
the Navy's operational community, the best available science discussed 
in Chapter 3 of the AFTT FEIS/OEIS (Affected Environment and 
Environmental Consequences), published literature, predicted activity 
impact footprints, marine species monitoring and density data, and the 
practicability of implementing additional mitigation measures. 
Following are the mitigation areas that the Navy has committed to 
implement and that are included in the final regulations (including a 
description of expanded areas and/or protections).
Mitigation Areas Off the Northeastern United States
    Mitigation areas for the Northeastern United States are described 
in Table 64. The Navy has expanded the NE NARW Area and added the Gulf 
of Maine Planning Awareness Mitigation Area since the proposed rule and 
the location and boundaries of each mitigation area are included in the 
Navy's AFTT FEIS/OEIS.

      Table 64--Mitigation Areas Off the Northeastern United States
------------------------------------------------------------------------
                       Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
     Sonar.
     Explosives.
     Physical disturbance and strikes.
Mitigation Area Requirements (year-round):

[[Page 57202]]

 
     Northeast North Atlantic Right Whale Mitigation Area:
        --The Navy must report the total hrs and counts of active sonar
         and in-water explosives used in the mitigation area (i.e., the
         northeast North Atlantic right whale critical habitat) in its
         annual training and testing activity reports submitted to NMFS.
        --The Navy must minimize the use of low-frequency active sonar,
         mid-frequency active sonar, and high-frequency active sonar to
         the maximum extent practicable within the mitigation area.
        --The Navy must not use Improved Extended Echo Ranging sonobuoys
         (in or within 3 nmi of the mitigation area) or use, explosive
         and non-explosive bombs, in-water detonations, and explosive
         torpedoes within the mitigation area.
        --For activities using non-explosive torpedoes within the
         mitigation area, the Navy must conduct activities during
         daylight hrs in Beaufort sea state 3 or less. The Navy must use
         three Lookouts (one positioned on a vessel and two in an
         aircraft during dedicated aerial surveys) to observe the
         vicinity of the activity. An additional Lookout must be
         positioned on the submarine, when surfaced. Immediately prior
         to the start of the activity, Navy personnel must observe for
         floating vegetation and marine mammals; if observed, the
         activity must not commence until the vicinity is clear or the
         activity is relocated to an area where the vicinity is clear.
         During the activity, Navy personnel must observe for marine
         mammals; if observed, the activity must cease. To allow a
         sighted marine mammal to leave the area, the Navy must not
         recommence the activity until one of the following conditions
         has been met: (1) The animal is observed exiting the vicinity
         of the activity; (2) the animal is thought to have exited the
         vicinity of the activity based on a determination of its
         course, speed, and movement relative to the activity location;
         or (3) the area has been clear from any additional sightings
         for 30 min. During transits and normal firing, ships must
         maintain a speed of no more than 10 knots. During submarine
         target firing, ships must maintain speeds of no more than 18
         knots. During vessel target firing, vessel speeds may exceed 18
         knots for brief periods of time (e.g., 10-15 min).
        --Before vessel transits within the mitigation area, the Navy
         must conduct a web query or email inquiry to the National
         Oceanographic and Atmospheric Administration Northeast
         Fisheries Science Center's North Atlantic Right Whale Sighting
         Advisory System to obtain the latest North Atlantic right whale
         sightings information. Vessels must use the sightings
         information to reduce potential interactions with North
         Atlantic right whales during transits. Vessels must implement
         speed reductions within the mitigation area after observing a
         North Atlantic right whale, if transiting within 5 nmi of a
         sighting reported to the North Atlantic Right Whale Sighting
         Advisory System within the past week, and if transiting at
         night or during periods of reduced visibility.
     Gulf of Maine Planning Awareness Mitigation Area:
        --The Navy must report the total hrs and counts of active sonar
         and in-water explosives used in the mitigation area in its
         annual training and testing activity reports submitted to NMFS.
        --The Navy must not conduct >200 hrs of hull-mounted mid-
         frequency active sonar per year within the mitigation area.
        --The Navy must not conduct major training exercises (Composite
         Training Unit Exercises or Fleet Exercises/Sustainment
         Exercises) within the mitigation area. If the Navy needs to
         conduct a major training exercise within the mitigation area in
         support of training requirements driven by national security
         concerns, it must confer with NMFS to verify that potential
         impacts are adequately addressed in the Navy's Final EIS/OEIS
         and associated consultation documents.
     Northeast Planning Awareness Mitigation Areas:
        --The Navy will avoid conducting major training exercises
         (Composite Training Unit Exercises or Fleet Exercises/
         Sustainment Exercises) within the mitigation area to the
         maximum extent practicable.
        --The Navy must not conduct more than four major training
         exercises per year within the mitigation area (all or a portion
         of the exercise). If the Navy needs to conduct additional major
         training exercises in the mitigation area in support of
         training requirements driven by national security concerns, it
         must provide NMFS with advance notification and include the
         information in its annual training and testing activity reports
         submitted to NMFS.
------------------------------------------------------------------------

Mitigation Areas Off the Mid-Atlantic and Southeastern United States

    Mitigation areas off the Mid-Atlantic and Southeastern United 
States are described in Table 65 below. The location and boundaries of 
each mitigation area are included in the Navy's AFTT FEIS/OEIS.

 Table 65--Mitigation Areas Off the Mid-Atlantic and Southeastern United
                                 States
------------------------------------------------------------------------
                       Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
     Sonar.
     Explosives.
     Physical disturbance and strikes.
Mitigation Area Requirements:

[[Page 57203]]

 
     Southeast North Atlantic Right Whale Mitigation Area
     (November 15 through April 15):
        --The Navy must report the total hrs and counts of active sonar
         and in-water explosives used in the mitigation area in its
         annual training and testing activity reports submitted to NMFS.
        --The Navy must not conduct: (1) Low-frequency active sonar
         (except as noted below), (2) mid-frequency active sonar (except
         as noted below), (3) high-frequency active sonar, (4) missile
         and rocket activities (explosive and non-explosive), (5) small-
         , medium-, and large-caliber gunnery activities, (6) Improved
         Extended Echo Ranging sonobuoy activities, (7) explosive and
         non-explosive bombing activities, (8) in-water detonations, and
         (9) explosive torpedo activities within the mitigation area.
        --To the maximum extent practicable, the Navy must minimize the
         use of: (1) Helicopter dipping sonar, (2) low-frequency active
         sonar and hull-mounted mid-frequency active sonar used for
         navigation training, and (3) low-frequency active sonar and
         hull-mounted mid-frequency active sonar used for object
         detection exercises within the mitigation area.
        --Before transiting or conducting training or testing activities
         within the mitigation area, the Navy must initiate
         communication with the Fleet Area Control and Surveillance
         Facility, Jacksonville to obtain Early Warning System North
         Atlantic right whale sightings data. The Fleet Area Control and
         Surveillance Facility, Jacksonville must advise vessels of all
         reported whale sightings in the vicinity to help vessels and
         aircraft reduce potential interactions with North Atlantic
         right whales. Commander Submarine Force U.S. Atlantic Fleet
         must coordinate any submarine activities that may require
         approval from the Fleet Area Control and Surveillance Facility,
         Jacksonville. Vessels must use the sightings information to
         reduce potential interactions with North Atlantic right whales
         during transits.
        --Vessels must implement speed reductions if they are within 5
         nmi of a sighting reported within the past 12 hrs, or when
         operating at night or during periods of poor visibility.
        --To the maximum extent practicable, vessels must minimize north-
         south transits in the mitigation area.
     Jacksonville Operating Area (November 15 through April 15):
        --Navy units conducting training or testing activities in the
         Jacksonville Operating Area must initiate communication with
         the Fleet Area Control and Surveillance Facility, Jacksonville
         to obtain Early Warning System North Atlantic right whale
         sightings data. The Fleet Area Control and Surveillance
         Facility, Jacksonville must advise vessels of all reported
         whale sightings in the vicinity to help vessels and aircraft
         reduce potential interactions with North Atlantic right whales.
         Commander Submarine Force U.S. Atlantic Fleet must coordinate
         any submarine activities that may require approval from the
         Fleet Area Control and Surveillance Facility, Jacksonville. The
         Navy must use the reported sightings information as it plans
         specific details of events (e.g., timing, location, duration)
         to minimize potential interactions with North Atlantic right
         whales to the maximum extent practicable. The Navy must use the
         reported sightings information to assist visual observations of
         applicable mitigation zones and to aid in the implementation of
         procedural mitigation.
     Southeast North Atlantic Right Whale Critical Habitat
     Special Reporting Area (November 15 through April 15):
        --The Navy must report the total hrs and counts of active sonar
         and in-water explosives used in the Special Reporting Area
         (i.e., the southeast North Atlantic right whale critical
         habitat) in its annual training and testing activity reports
         submitted to NMFS.
     Mid-Atlantic Planning Awareness Mitigation Areas (year-
     round):
        --The Navy will avoid conducting major training exercises within
         the mitigation area (Composite Training Unit Exercises or Fleet
         Exercises/Sustainment Exercises) to the maximum extent
         practicable.
        --The Navy must not conduct the Ship Shock trial in the Mid-
         Atlantic Planning Awareness Areas including a 5-nmi buffer.
        --The Navy must not conduct more than four major training
         exercises per year (all or a portion of the exercise) within
         the mitigation area. If the Navy needs to conduct additional
         major training exercises in the mitigation area in support of
         training requirements driven by national security concerns, it
         must provide NMFS with advance notification and include the
         information in its annual training and testing activity reports
         submitted to NMFS.
     Navy Cherry Point Range Complex Nearshore Mitigation Area
     (March through September):
        --The Navy must not conduct explosive mine neutralization
         activities involving Navy divers in the mitigation area.
        --To the maximum extent practicable, the Navy must not use
         explosive sonobuoys, explosive torpedoes, explosive medium-
         caliber and large-caliber projectiles, explosive missiles and
         rockets, explosive bombs, explosive mines during mine
         countermeasure and neutralization activities, and anti-swimmer
         grenades in the mitigation area.
------------------------------------------------------------------------

Mitigation Areas in the GOMEX

    Mitigation areas in the GOMEX are described in Table 66 below. The 
Navy has expanded the GOMEX Planning Awareness Mitigation area and 
added the Bryde's Whale Mitigation area since the proposed rule and the 
location and boundaries of each mitigation area are included in the 
AFTT FEIS/OEIS.

                 Table 66--Mitigation Areas in the GOMEX
------------------------------------------------------------------------
                       Mitigation Area Description
-------------------------------------------------------------------------
Stressor or Activity:
     Sonar.
     Explosives.
Mitigation Area Requirements (Year-Round):
     Bryde's Whale Mitigation Area:
        --The Navy must report the total hrs and counts of active sonar
         and in-water explosives used in the mitigation area in its
         annual training and testing activity reports submitted to NMFS.
        --The Navy must not conduct >200 hrs of hull-mounted mid-
         frequency active sonar per year within the mitigation area.
        --The Navy must not use explosives (except during mine warfare
         activities) within the mitigation area.
     Gulf of Mexico Planning Awareness Mitigation Areas:
        --The Navy must not conduct any major training exercises within
         the mitigation areas (all or a portion of the exercise). If the
         Navy needs to conduct a major training exercise within the
         mitigation areas in support of training requirements driven by
         national security concerns, it must confer with NMFS to verify
         that potential impacts are adequately addressed in the Navy's
         Final EIS/OEIS and associated consultation documents.
------------------------------------------------------------------------

    The Navy's analysis indicates that the measures in these mitigation 
areas are both practicable and will reduce the likelihood or severity 
of adverse impacts to marine mammal species and stocks or their habitat 
in the manner described in the Navy's analysis. After extensive 
coordination and independent consideration of the measures considered 
and eliminated by the Navy and the Navy's determinations as to how the 
measures would affect personnel safety, practicality to implement, and 
effectiveness to the Navy mission, NMFS finds the information 
persuasive to inform NMFS' LPAI finding and NMFS' independent analysis 
of these mitigation areas.

Summary of Mitigation Areas

    Table 67 below includes a description of the mitigation implemented 
in each of the areas and immediately below we include a summary of the 
manner in

[[Page 57204]]

which the mitigation areas are expected to reduce impacts to marine 
mammals and the likelihood or severity of impacts to species or stock:
Northeast North Atlantic Right Whale Mitigation Areas (year-round)
    The Navy has enlarged the mitigation area to cover the full extent 
of the northeast NARW ESA-designated critical habitat. The expanded 
area also encompasses all of the important feeding areas for humpback 
whales and fin whales, significant portions of the feeding areas for 
sei and minke whales (73 percent and 44 percent, respectively), as well 
as 82 percent of the portion in the U.S. EEZ of a small and resident 
population of harbor porpoises. Mitigation to limit the use of active 
sonar to the maximum extent practicable and not use certain explosive 
and non-explosive munitions will help the Navy further avoid or reduce 
potential impacts on NARWs year-round in their most important feeding 
areas, a mating area, and the northern portion of their migration 
habitat. These mitigations will also reduce the severity and scale of 
impacts on the other mysticetes and harbor porpoises. Conducting non-
explosive torpedo activities during daylight hours in Beaufort sea 
state 3 or less will help increase Lookout effectiveness during these 
activities. Mitigation to obtain the latest sighting information from 
the NARW Sighting Advisory System will help vessels avoid NARWs during 
training and testing activities. The NARW Sighting Advisory System is a 
National Oceanographic and Atmospheric Administration program that 
collects sightings information off the northeastern United States from 
aerial surveys, shipboard surveys, whale watching vessels, and 
opportunistic sources, such as the U.S. Coast Guard, commercial ships, 
fishing vessels, and the public. The Navy will also implement new 
special reporting procedures to report the total hours and counts of 
active sonar and in-water explosives used in the mitigation area in its 
annual training and testing activity reports submitted to NMFS. The 
special reporting requirements will aid the Navy and NMFS in continuing 
to analyze potential impacts of training and testing in this area. The 
reduction of activities in, and increase of protective measures in, 
areas with higher concentrations of NARWs or other mysticetes engaged 
in important feeding activities (such as they are in this area), or 
NARWs engaged in mating activities, is expected to reduce the 
probability and/or severity of impacts to these species and stocks that 
would be more likely to adversely affect the fitness of any individual, 
which in turn reduces the likelihood that any impacts would translate 
to adverse impacts on the stock. Similarly, reduction in the scale or 
level of impacts in the vicinity of this small resident population of 
harbor porpoises is expected to reduce the probability that impacts 
would adversely impact the fitness of any individual and thereby 
translate to adverse impacts on the stock.
Gulf of Maine Planning Awareness Mitigation Area (year-round)
    Newly developed for Phase III and since the proposed rule was 
published, the Gulf of Maine Planning Awareness Mitigation Area extends 
throughout the Gulf of Maine and southward over Georges Bank. The area 
covers the full extent of the northeast NARW ESA-designated critical 
habitat, including both a mating area and important feeding area. The 
expanded area also fully encompasses important feeding areas for 
humpback whales, minke whales, sei whales, and fin whales as well as 
all of the portion in the U.S. EEZ of a small and resident population 
of harbor porpoises. The Navy will not conduct MTEs in this area, which 
will further help the Navy avoid or reduce potential impacts on marine 
mammals from active sonar during major training exercises (which are 
associated with more severe effects because of the use of multiple 
platforms and higher-level sound sources, as well as longer-duration 
activities). The reduction of activities in, and increase of protective 
measures in, areas with higher concentrations of NARWs or other 
mysticetes engaged in important feeding activities (such as they are in 
this area), or NARWs engaged in mating activities, is expected to 
reduce the probability and/or severity of impacts to these species and 
stocks that would be more likely to adversely affect the fitness of any 
individual, which in turn reduces the likelihood that any impacts would 
translate to adverse impacts on the stock. Similarly, and reduction in 
the scale or level of impacts in the vicinity of this small resident 
population of harbor porpoises is expected to reduce the probability 
that impacts would adversely impact the fitness of any individual and 
thereby translate to adverse impacts on the stock. The Navy will also 
implement special reporting procedures to report the total hours and 
counts of active sonar and in-water explosives used in the mitigation 
area in its annual training and testing activity reports submitted to 
NMFS. The special reporting requirements will aid the Navy and NMFS in 
continuing to analyze potential impacts of training and testing in this 
area.
Northeast Planning Awareness Mitigation Areas (year-round)
    The Northeast Planning Awareness Mitigation Areas extend across the 
shelf break and contain underwater canyons that have been associated 
with marine mammal feeding and abundance, including within a portion of 
the Northeast Canyons and Seamounts National Marine Monument. They are 
situated among highly productive environments, such as persistent 
oceanographic features associated with upwellings and steep bathymetric 
contours. The mitigation included within the Northeast Planning 
Awareness Mitigation Areas (Table 64) will help the Navy further avoid 
or reduce potential impacts from active sonar during major training 
exercises on marine mammals that inhabit, feed in, mate in, or migrate 
through the northeast region. For example, the mitigation areas overlap 
a portion of the NARW northern migration habitat. Fin whales are known 
to follow prey off the continental shelf in this region (Azzellino et 
al., 2008; Panigada et al., 2008). Sei whales have high abundance in 
two of the mitigation areas along the shelf break of Georges Bank and 
near Hydrographer Canyon (Waring et al., 2014). The reduction of 
activities in, and increase of protective measures in, areas with 
higher concentrations of NARWs or other mysticetes is expected to 
reduce the probability of impacts to these species and stocks that 
would be more likely to adversely affect the fitness of any individual, 
which in turn reduces the likelihood that any impacts would translate 
to adverse impacts on the stock.
Mid-Atlantic Planning Awareness Mitigation Areas (year-round)
    The Mid-Atlantic Planning Awareness Mitigation Areas extend across 
large swaths of shelf break and contain underwater canyons associated 
with high marine mammal diversity (e.g., Norfolk Canyon). The 
mitigation areas are situated among highly productive environments, 
such as persistent oceanographic features associated with upwellings 
and steep bathymetric contours. Numerous species of marine mammals 
occur in the area, including beaked, fin, humpback, minke, and sperm 
whales; and pilot whales, bottlenose, short-beaked common, Atlantic 
spotted, striped, Clymene, and Risso's dolphins. The area is thought to 
be important for short-finned pilot whale feeding (as well as other 
odontocetes) and is associated with high

[[Page 57205]]

species abundance (Thorne et al., 2017). The area is also used 
seasonally during migrations by numerous species and overlaps the NARW 
migration habitat identified by LaBrecque et al. (2015b). The Navy will 
avoid planning major training exercises to the maximum extent 
practicable and will not conduct more than four per year. The Navy has 
also agreed to move the ship shock trial box east of the Mid-Atlantic 
Planning Awareness Mitigation Areas including a 5-nmi buffer. Because 
of the diversity of marine mammals and other fauna, as well as the 
general increased use of the area for odontocete feeding, any reduction 
of the more impactful MTEs (more platforms, higher-level sources, and 
longer duration) would be expected to have a reduction in the 
probability of impacts to these species and stocks that would be more 
likely to adversely affect the fitness of any individual, which in turn 
reduces the likelihood that any impacts would translate to adverse 
impacts on the stock. Because of the high diversity of marine fauna, 
reduced training in this area would also be considered a direct 
reduction of impacts on marine mammal habitat.
Southeast North Atlantic Right Whale Mitigation Area (November 15 
Through April 15)
    The Navy has expanded the existing SE NARW Mitigation Area 
northward approximately 50 nmi along the coast of northern Georgia from 
the shoreline out to 10-12 nmi. The Navy expanded the mitigation area 
to correlate with the occurrence of NARWs to the maximum extent 
practicable based on readiness requirements. The mitigation area 
encompasses a portion of the NARW migration and calving areas 
identified by LaBrecque et al. (2015b) and a portion of the southeast 
NARW ESA-designated critical habitat. Mitigation to not conduct, or to 
limit the use of, active sonar to the maximum extent practicable 
(depending on the source) and to not conduct in-water detonations and 
certain activities using explosives and non-explosive practice 
munitions, will help the Navy further avoid or reduce potential impacts 
on NARWs in these key habitat areas seasonally. The Navy will implement 
special reporting procedures to report the total hours and counts of 
active sonar and in-water explosives used in the mitigation area in its 
annual training and testing activity reports submitted to NMFS. The 
special reporting requirements will aid the Navy and NMFS in continuing 
to analyze potential impacts of training and testing in the mitigation 
area. Mitigation for vessel movements includes minimizing north-south 
transits; implementing speed reductions after vessels observe a NARW, 
if they are within 5 nmi of a sighting reported within the past 12 hrs, 
or when operating in the mitigation area at night or during periods of 
poor visibility; and continuing to participate in and sponsor the Early 
Warning System. The Early Warning System is a comprehensive information 
exchange network dedicated to reducing the risk of vessel strikes to 
NARW off the southeast United States from all mariners (i.e., Navy and 
non-Navy vessels). Navy participants include the Fleet Area Control and 
Surveillance Facility, Jacksonville; Commander, Naval Submarine Forces, 
Norfolk, Virginia; and Naval Submarine Support Command. The Navy, U.S. 
Coast Guard, U.S. Army Corps of Engineers, and NMFS collaboratively 
sponsor daily aerial surveys from December 1 through March 31 (weather 
permitting) to observe for NARWs from the shoreline out to 
approximately 30-35 nmi offshore. Aerial surveyors relay sightings 
information to all mariners transiting within the NARW calving habitat 
(e.g., commercial vessels, recreational boaters, Navy ships). The 
reduction of activities in, and increase of protective measures in, 
areas with higher concentrations of NARWs engaged in calving activities 
and migration (such as they are in this area), is expected to reduce 
the probability and/or severity of impacts on NARWs that would be more 
likely to adversely affect the fitness of any individual, which in turn 
reduces the likelihood that any impacts would translate to adverse 
impacts on the stock. Additionally, these measures are expected to 
significantly increase the likelihood of detection of NARWs, which in 
turn significantly decreases the likelihood of a ship strike. Last, 
this area coincides with the ranges of two small resident stocks of 
bottlenose dolphins (Southern Georgia Estuarine and Jacksonville 
Estuarine) and is generally expect to reduce the scale and severity of 
impacts on these stocks, reducing the likelihood of population-level 
impacts.
Southeast North Atlantic Right Whale Critical Habitat Special Reporting 
Area
    Newly developed for Phase III, the SE NARW Critical Habitat Special 
Reporting Area covers the entire southeast NARW ESA-designated critical 
habitat, as well as the ranges of three small resident populations of 
bottlenose dolphins (Southern Georgia Estuarine, Jacksonville 
Estuarine, and Charleston Estuarine). The Navy will implement special 
reporting procedures to report the total hours and counts of active 
sonar and in-water explosives used in the mitigation area (i.e., the 
southeast NARW ESA-designated critical habitat) in its annual training 
and testing activity reports submitted to NMFS. The special reporting 
requirements will aid the Navy and NMFS in continuing to analyze 
potential impacts of training and testing in this area.
Jacksonville Operating Area
    The Navy has developed new mitigation measures for units conducting 
training or testing activities in the Jacksonville Operating Area, 
which overlaps the majority of the southeast NARW ESA-designated 
critical habitat and extends far out to the edge of the continental 
shelf. The mitigation measures to obtain and use Early Warning System 
NARW sightings data will help vessels and aircraft reduce potential 
interactions (i.e., reducing the likelihood of a strike) with NARWs in 
portions of the southeast NARW ESA-designated critical habitat and NARW 
migration and calving areas identified by LaBrecque et al. (2015b).
Navy Cherry Point Range Complex Nearshore Mitigation Area
    The Navy is continuing an existing mitigation measure to not 
conduct explosive mine neutralization activities involving Navy divers 
from March through September within the mitigation area, which is 
defined as within 3.2 nmi of an estuarine inlet and within 1.6 nmi of 
the shoreline in the Navy Cherry Point Range Complex. For Phase III, 
the Navy is expanding the mitigation requirements in this mitigation 
area to include additional in-water explosives to the maximum extent 
practicable. Although the measure was primarily designed to reduce 
potential impacts on sea turtles near nesting beaches during the 
nesting season and on sandbar sharks in Habitat Areas of Particular 
Concern, the mitigation area also overlaps a portion of the NARW 
migration area identified by LaBrecque et al. (2015b). Any reduction of 
impacts where NARW may be concentrated contributes to a reduction in 
the probability that impacts will accrue to fitness impacts on 
individuals or, further, to impacts on the stock.
Bryde's Whale Mitigation Area (Year-Round)
    Newly developed for Phase III, the Bryde's Whale Mitigation Area 
covers the extent of the Bryde's whale small and resident population 
area identified by LaBrecque et al. (2015a), including the extended 
area identified by NMFS

[[Page 57206]]

in its 2016 Bryde's whale status review (Rosel et al., 2016). 
Mitigation to limit annual hours of mid-frequency active sonar use and 
to not use in-water explosives (except during mine warfare activities) 
will help the Navy avoid or reduce potential impacts on the small and 
resident population of Bryde's whales. To accomplish the mitigation for 
explosives, the Navy has adjusted the boundaries of the northern GOMEX 
ship shock trial area. The ship shock trial area is being relocated 5 
nm from the western boundary of the Bryde's Whale Mitigation Area. This 
will help the Navy avoid the potential for Bryde's whales to be exposed 
to explosives during ship shock trials within the mitigation area. The 
Navy will implement special reporting procedures to report the total 
hours and counts of active sonar and in-water explosives used in the 
mitigation area in its annual training and testing activity reports 
submitted to NMFS. The special reporting requirements will aid the Navy 
and NMFS in continuing to analyze potential impacts of training and 
testing in this area. This overall reduction in activity and increase 
in protective measures across the majority of the Bryde's whale range 
minimizes the probability and/or severity of impacts on Bryde's whales 
that are likely to adversely affect the fitness of any individual, 
which in turn reduces the likelihood that any impacts would translate 
to adverse impacts on the stock.
GOMEX Planning Awareness Mitigation Areas (Year-Round)
    The Navy is enlarging the more eastern GOMEX Planning Awareness 
Mitigation Area to fully encompass the Bryde's whale small and resident 
population area identified by LaBrecque et al. (2015a) and the extended 
area identified by NMFS in its 2016 Bryde's whale status review (Rosel 
et al., 2016). The GOMEX Planning Awareness Mitigation Areas also 
overlap most of the Mississippi Canyon sperm whale habitat area and a 
portion of sperm whale habitat area west of the Dry Tortugas. They 
extend across large swaths of shelf break and contain underwater 
canyons associated with marine mammal abundance (e.g., Mississippi 
Canyon, DeSoto Canyon). The mitigation areas are situated among highly 
productive environments, such as persistent oceanographic features 
associated with upwellings and steep bathymetric contours. The Navy 
will not conduct MTEs in these areas. Mitigation within the GOMEX 
Planning Awareness Mitigation Areas will help the Navy further avoid or 
reduce potential impacts from active sonar during MTEs (which have more 
platforms, higher source levels, and longer durations more likely to 
have more severe impacts) on marine mammals that inhabit, feed in, 
reproduce in, or migrate through these areas. Specifically, these 
mitigation areas would be expected to result in a reduction in the 
probability of impacts to the GOMEX stocks of Bryde's whales and sperm 
whale that would be more likely to adversely affect the fitness of any 
individual, which in turn reduces the likelihood that any impacts would 
translate to adverse impacts on the stock.
    A summary of mitigation areas for marine mammals is described in 
Table 67 below.

        Table 67--Summary of Mitigation Areas for Marine Mammals
------------------------------------------------------------------------
                 Summary of mitigation area requirements
-------------------------------------------------------------------------
          Northeast North Atlantic Right Whale Mitigation Area
------------------------------------------------------------------------
 The Navy must report the total hrs and counts of active sonar
 and in-water explosives used in the mitigation area in its annual
 training and testing activity reports.
 The Navy must minimize use of active sonar to the maximum
 extent practicable and must not use explosives that detonate in the
 water.
 The Navy must conduct non-explosive torpedo testing during
 daylight hrs in Beaufort sea state 3 or less using three Lookouts (one
 on a vessel, two in an aircraft during aerial surveys) and an
 additional Lookout on the submarine when surfaced; during transits,
 ships must maintain a speed of no more than 10 knots; during firing,
 ships must maintain a speed of no more than 18 knots except brief
 periods of time during vessel target firing.
 Vessels must obtain the latest North Atlantic right whale
 sightings data and implement speed reductions after they observe a
 North Atlantic right whale, if within 5 nmi of a sighting reported
 within the past week, and when operating at night or during periods of
 reduced visibility.
------------------------------------------------------------------------
            Gulf of Maine Planning Awareness Mitigation Area
------------------------------------------------------------------------
 The Navy must report the total hrs and counts of active sonar
 and in-water explosives used in the mitigation area in its annual
 training and testing activity reports.
 The Navy must not conduct major training exercises and must not
 conduct >200 hrs of hull-mounted mid-frequency active sonar per year.
------------------------------------------------------------------------
 Northeast Planning Awareness Mitigation Areas and Mid-Atlantic Planning
                       Awareness Mitigation Areas
------------------------------------------------------------------------
 The Navy must avoid conducting major training exercises to the
 maximum extent practicable.
 The Navy must not conduct more than four major training
 exercises per year.
------------------------------------------------------------------------
 Southeast North Atlantic Right Whale Mitigation Area (November 15-April
                                   15)
------------------------------------------------------------------------
 The Navy must report the total hrs and counts of active sonar
 and in-water explosives used in the mitigation area in its annual
 training and testing activity reports.
 The Navy must not use active sonar except as necessary for
 navigation training, object detection training, and dipping sonar.
 The Navy must not expend explosive or non-explosive ordnance.
 Vessels must obtain the latest North Atlantic right whale
 sightings data; must implement speed reductions after they observe a
 North Atlantic right whale, if within 5 nmi of a sighting reported
 within the past 12 hrs, and when operating at night or during periods
 of reduced visibility; and must minimize north-south transits to the
 maximum extent practicable.
------------------------------------------------------------------------

[[Page 57207]]

 
           Jacksonville Operating Area (November 15-April 15)
------------------------------------------------------------------------
 Navy units conducting training or testing activities in the
 Jacksonville Operating Area must obtain and use Early Warning System
 North Atlantic right whale sightings data as they plan specific details
 of events to minimize potential interactions with North Atlantic right
 whales to the maximum extent practicable. The Navy must use the
 reported sightings information to assist visual observations of
 applicable mitigation zones and to aid in the implementation of
 procedural mitigation.
------------------------------------------------------------------------
 Southeast North Atlantic Right Whale Critical Habitat Special Reporting
                       Area (November 15-April 15)
------------------------------------------------------------------------
 The Navy must report the total hrs and counts of active sonar
 and in-water explosives used in the mitigation area in its annual
 training and testing activity reports.
------------------------------------------------------------------------
    Navy Cherry Point Range Complex Nearshore Mitigation Area (March-
                               September)
------------------------------------------------------------------------
 The Navy must not conduct explosive mine neutralization
 activities involving Navy divers in the mitigation area.
 To the maximum extent practicable, the Navy must not use
 explosive sonobuoys, explosive torpedoes, explosive medium-caliber and
 large-caliber projectiles, explosive missiles and rockets, explosive
 bombs, explosive mines during mine countermeasure and neutralization
 activities, and anti-swimmer grenades in the mitigation area.
------------------------------------------------------------------------
                      Bryde's Whale Mitigation Area
------------------------------------------------------------------------
 The Navy must report the total hrs and counts of active sonar
 and in-water explosives used in the mitigation area in its annual
 training and testing activity reports.
 The Navy must not conduct >200 hrs of hull-mounted mid-
 frequency active sonar per year and must not use explosives (except
 during explosive mine warfare activities).
------------------------------------------------------------------------
           Gulf of Mexico Planning Awareness Mitigation Areas
------------------------------------------------------------------------
 The Navy must not conduct any major training exercises under
 the Proposed Action.
------------------------------------------------------------------------
Notes: Min.: minutes; nmi: nautical miles.

Summary of Procedural Mitigation

    A summary of procedural mitigation is described in Table 68 below.

               Table 68--Summary of Procedural Mitigation
------------------------------------------------------------------------
                                    Mitigation zones sizes and other
     Stressor or activity                     requirements
------------------------------------------------------------------------
Environmental Awareness and     Afloat Environmental Compliance
 Education.                     Training program for applicable
                                personnel.
Active Sonar.................  Depending on sonar source:
                                1,000 yd power down, 500 yd
                                power down, and 200 yd shut. down
                                200 yd shut down.
Air Guns.....................   150 yd.
Pile Driving.................   100 yd.
Weapons Firing Noise.........   30 degrees on either side of the
                                firing line out to 70 yd.
Explosive Sonobuoys..........   600 yd.
Explosive Torpedoes..........   2,100 yd.
Explosive Medium-Caliber and    1,000 yd (large-caliber
 Large-Caliber Projectiles.     projectiles).
                                600 yd (medium-caliber
                                projectiles during surface-to-surface
                                activities).
                                200 yd (medium-caliber
                                projectiles during air-to-surface
                                activities).
Explosive Missiles and          2,000 yd (21-500 lb net
 Rockets.                       explosive weight).
                                900 yd. (0.6-20 lb net explosive
                                weight).
Explosive Bombs..............   2,500 yd.
Sinking Exercises............   2.5 nmi.
Explosive Mine Countermeasure   2,100 yd (6-650 lb net explosive
 and Neutralization             weight).
 Activities.                    600 yd (0.1-5 lb net explosive
                                weight).
Explosive Mine Neutralization   1,000 yd (21-60 lb net explosive
 Activities Involving Navy      weight for positive control charges and
 Divers.                        charges using time-delay fuses).
                                500 yd (0.1-20 lb net explosive
                                weight for positive control charges).
Maritime Security Operations--  200 yd.
 Anti-Swimmer Grenades.
Line Charge Testing..........   900 yd.
Ship Shock Trials............   3.5 nmi.
Vessel Movement..............   500 yd (whales).
                                200 yd (other marine mammals).
                                North Atlantic right whale
                                Dynamic Management Area notification
                                messages.
Towed In-Water Devices.......   250 yd.
Small-, Medium-, and Large-     200 yd.
 Caliber Non-Explosive
 Practice Munitions.

[[Page 57208]]

 
Non-Explosive Missiles and      900 yd.
 Rockets.
Non-Explosive Bombs and Mine    1,000 yd.
 Shapes.
------------------------------------------------------------------------
Notes: lb: pounds; nmi: nautical miles; yd: yards.

Mitigation Conclusions

    NMFS has carefully evaluated the Navy's mitigation measures--many 
of which were developed with NMFS' input during the previous phases of 
Navy training and testing authorizations--and considered a broad range 
of other measures (i.e., the measures considered but eliminated in the 
AFTT FEIS/OEIS, which reflect many of the comments that have arisen via 
NMFS or public input in past years) 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 mitigation measures included consideration 
of the following factors in relation to one another: The manner in 
which, and the degree to which, the successful implementation of the 
mitigation measures is expected to reduce the likelihood and/or 
magnitude of adverse impacts to marine mammal species and stocks and 
their habitat; the proven or likely efficacy of the measures; and the 
practicability of the measures for applicant implementation, including 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.
    Based on our evaluation of the Navy's planned measures, as well as 
other measures considered by the Navy and NMFS, NMFS has determined 
that the mitigation measures included in this rule are appropriate 
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, considering specifically personnel safety, practicality 
of implementation, and impact on the effectiveness of the military 
readiness activity. Additionally, as described in more detail below, 
the final rule includes an adaptive management provision, which ensures 
that mitigation is regularly assessed and provides a mechanism to 
improve the mitigation, based on the factors above, through 
modification as appropriate.

Monitoring

    Section 101(a)(5)(A) of the MMPA states that in order to authorize 
incidental take 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 incidental take authorizations 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 marine species 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. This process includes conducting an annual adaptive 
management review meeting, at which the Navy and NMFS jointly consider 
the prior-year goals, monitoring results, and related scientific 
advances to determine if monitoring plan modifications are warranted to 
more effectively address program goals. Although the ICMP does not 
specify actual monitoring field work or individual projects, it does 
establish a matrix of goals and objectives that have been developed in 
coordination with NMFS. As the ICMP is implemented through the 
Strategic Planning Process, 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:
    [ssquf] 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);
    [ssquf] 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., sound, explosive detonation, or military expended materials), 
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), 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);
    [ssquf] An increase in our understanding of how individual marine 
mammals or ESA-listed 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);
    [ssquf] 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);
    [ssquf] An increase in our understanding of the effectiveness of 
mitigation and monitoring measures;
    [ssquf] A better understanding and record of the manner in which 
the authorized entity complies with the incidental take regulations and 
LOAs and the ESA Incidental Take Statement;
    [ssquf] An increase in the probability of detecting marine mammals 
(through improved technology or methods), both specifically within the 
mitigation zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals; and

[[Page 57209]]

    [ssquf] Ensuring that adverse impact of activities remains at the 
least practicable level.

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 intermediate scientific objectives and a 
conceptual framework incorporating a progression of knowledge, spanning 
occurrence, exposure, response, and consequence. The Strategic Planning 
Process for Marine Species Monitoring is used to set overarching 
intermediate scientific objectives, develop individual monitoring 
project concepts, identify potential species of interest at a regional 
scale, evaluate, prioritize and select specific monitoring projects to 
fund or continue supporting for a given fiscal year, execute and manage 
selected monitoring projects, and report and evaluate progress and 
results. This process addresses 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/ us/).

Past and Current Monitoring in the AFTT Study Area

    NMFS has received multiple years' worth of annual exercise and 
monitoring reports addressing active sonar use and explosive 
detonations within the AFTT Study Area and other Navy range complexes. 
The data and information contained in these reports have been 
considered in developing mitigation and monitoring measures for the 
training and testing activities within the AFTT Study Area. The Navy's 
annual exercise and monitoring reports may be viewed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities and http://www.navymarinespeciesmonitoring.us.
    The Navy's marine species monitoring program typically supports 10-
15 projects in the Atlantic at any given time with an annual budget of 
approximately $3.5M. Current projects cover a range of species and 
topics from collecting baseline data on occurrence and distribution, to 
tracking whales and sea turtles, to conducting behavioral response 
studies on beaked whales and pilot whales. The Navy's marine species 
monitoring web portal provides details on past and current monitoring 
projects, including technical reports, publications, presentations, and 
access to available data and can be found at: https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/.
    Following is a summary of the work currently planned for 2019, some 
of which is wrapping up and some of which will continue for multiple 
years, based on the planning and review process outlined above, which 
includes input from NMFS and the Marine Mammal Commission. Additional 
details are available on the Navy's website (https://www.navymarinespeciesmonitoring.us/regions/atlantic/current-projects/):
    [ssquf] Atlantic Behavioral Response Study (Hatteras study area)--
Assessing behavioral response of beaked whales and pilot whales to 
tactical military sonar and simulated scaled sonar with controlled 
exposure experiments.
    [ssquf] Pinniped Tagging and Tracking in Southeast Virginia (lower 
Chesapeake Bay)--Documenting habitat use, movements, and haul-out 
patterns of seals in the Hampton Roads region of the Chesapeake Bay and 
coastal Atlantic.
    [ssquf] Pinniped Haul-out Counts and Photo-Identification (lower 
Chesapeake Bay and Virginia eastern shore)--Documenting occurrence and 
seasonal site fidelity of seals at select haul-out locations in the 
lower Chesapeake Bay.
    [ssquf] Mid-Atlantic Humpback Whale Monitoring (coastal SE 
Virginia)--Photo identification and deployment of satellite-linked 
tracking tags to document occurrence, baseline behavior, and habitat 
use of humpback whales in the coastal mid-Atlantic waters of Virginia.
    [ssquf] Behavioral Reactions of Juvenile Humpback Whales to 
Approaching Ships (Chesapeake Bay shipping channels)--Assessing 
response of humpback whales to vessel approaches using DTags and visual 
focal follow methods.
    [ssquf] NARW Monitoring--Assess the behavior and distribution of 
NARWs using multiple methods including deployment of DTags in coastal 
waters of the Southeast calving grounds, and passive acoustic 
monitoring using autonomous underwater gliders in the mid-Atlantic 
region.
    [ssquf] Occurrence, Ecology, and Behavior of Deep-diving 
Odontocetes (Hatteras study area)--Deployment of satellite-linked tags 
to document and assess habitat use and diving behavior of beaked whales 
and pilot whales.
    [ssquf] Vessel baseline surveys and tagging of cetaceans (USWTR 
study area of Jacksonville OPAREA)--continuation of vessel-based visual 
surveys for cetaceans in the USWTR region, as well as satellite-linked 
tagging of priority species to document habitat use and movement 
patterns.
    [ssquf] Passive Acoustic baseline monitoring--Continue deployment 
of High-frequency Acoustic Recording packages (or similar) at multiple 
locations along the mid-Atlantic and SE coast to document seasonal 
patterns of species occurrence.
    [ssquf] Occurrence and Ecology of North Atlantic Shelf Break 
Species and Effects of Anthropogenic Noise Impacts--Assessment of 
acoustic niche and spatial/seasonal occurrence of beaked whales and 
Kogia, occurrence and acoustic behavior of baleen whales, and 
anthropogenic drivers of cetacean distribution using passive acoustics.
    [ssquf] Bryde's whale monitoring in GOMEX--collaboration with SEFSC 
to assess occurrence and distribution of Bryde's whales in GOMEX.
    [ssquf] Mid-Atlantic Continental Shelf Break Cetacean Study 
(VACAPES OPAREA)--Assess occurrence, habitat use, movement patterns, 
and baseline behavior of cetaceans (primarily medium to large whales) 
in continental shelf break region of the VACAPES OPAREA with visual 
surveys, photo ID, biopsy sampling, and satellite-linked tagging.
    [ssquf] Mid-Atlantic & Southeast Humpback Catalog--Establish a 
centralized collaborative humpback whale photo-id catalog for the mid-
Atlantic and southeast regions to support management and environmental 
planning.

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy training and testing activities in the AFTT Study 
Area contain an adaptive management component. Our understanding of the 
effects of Navy training and testing activities (e.g. acoustic and 
explosive stressors) on marine mammals continues to evolve, which makes 
the inclusion of an adaptive management component both valuable and 
necessary within the context of five-year regulations.
    The reporting requirements associated with this rule are designed 
to provide NMFS with monitoring data from the previous year to allow 
NMFS to consider whether any changes to existing mitigation and 
monitoring

[[Page 57210]]

requirements are appropriate. NMFS and the Navy would meet to discuss 
the monitoring reports, Navy research and development studies, 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 mammals 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 LOAs. The 
results from monitoring reports and other studies may be viewed at 
https://www.navymarinespeciesmonitoring.us/.

Reporting

    In order to issue incidental take authorization 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. 
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. Currently, there are 
several different reporting requirements pursuant to these regulations:

Notification of Injured, Live Stranded or Dead Marine Mammals

    The Navy will consult the Notification and Reporting Plan, which 
sets out notification, reporting, and other requirements when injured, 
live stranded, or dead marine mammals are detected. The Notification 
and Reporting Plan is available for review at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

Annual AFTT Monitoring Report

    The Navy will submit an annual report to NMFS of the AFTT 
monitoring describing the implementation and results from the previous 
calendar year. Data collection methods will be standardized across 
range complexes and AFTT Study Area to allow for comparison in 
different geographic locations. The report will 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. 
Such a report would describe progress of knowledge made with respect to 
intermediate scientific objectives within the AFTT Study Area 
associated with the Integrated Comprehensive Monitoring Program. 
Similar study questions shall be treated together so that summaries can 
be provided for each topic area. The report need not include analyses 
and content that does not provide direct assessment of cumulative 
progress on the monitoring plan study questions.

Annual AFTT Exercise Report

    Each year, the Navy will submit a preliminary report to NMFS 
detailing the status of authorized sound sources within 21 days after 
the anniversary of the date of issuance of the LOAs. Each year, the 
Navy shall submit a detailed report to NMFS 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 Shock 
Trials, Sinking Exercise (SINKEX) events, and a summary of all sound 
sources used, including within specified mitigation areas (total hours 
or quantity (per the LOA) of each bin of sonar or other non-impulsive 
source and total annual expended/detonated ordnance (missiles, bombs, 
sonobuoys, etc.) for each explosive bin). The report will also include 
the details regarding specific requirements associated with specific 
mitigation areas. The analysis in the detailed report will be based on 
the accumulation of data from the current year's report and data 
presented in the previous report. Information included in the 
classified annual reports may be used to inform future adaptive 
management of activities within the AFTT Study Area.

Major Training Exercises Notification

    The Navy shall submit an electronic report to NMFS within fifteen 
calendar days after the completion of any major training exercise 
indicating: Location of the exercise; beginning and end dates of the 
exercise; and type of exercise.

Five-Year Close-Out Exercise Report

    This report will be included as part of the 2023 annual exercise 
report. This report will provide the annual totals for each sound 
source bin with a comparison to the annual allowance and the five-year 
total for each sound source bin with a comparison to the five-year 
allowance. The draft report will be submitted to NMFS three months 
after the expiration of the rule. NMFS will provide comments, if any, 
to the Navy on the draft close-out report within three months of 
receipt. The report will be considered final after the Navy has 
addressed NMFS' comments, or three months after the submittal of the 
draft report if NMFS does not provide comments.

Analysis and Negligible Impact Determination

Negligible Impact Analysis

Introduction
    NMFS has defined negligible impact as ``an impact resulting from 
the specified activity that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through mortality, serious injury, and Level A or Level B 
harassment (as presented in Tables 39 and 41), NMFS considers other 
factors, such as the likely nature of any responses (e.g., intensity, 
duration), the context of any responses (e.g., critical reproductive 
time or location, migration), as well as effects on habitat, and the 
likely effectiveness of the mitigation. We also assess the number, 
intensity, and context of estimated takes by evaluating this 
information relative to population status. Consistent with the 1989 
preamble for NMFS' implementing regulations (54 FR 40338; September 29, 
1989), the impacts from other past and ongoing anthropogenic activities 
are incorporated into this analysis via their impacts on the 
environmental baseline (e.g., as reflected in the regulatory status of 
the species, population size and

[[Page 57211]]

growth rate where known, other ongoing sources of human-caused 
mortality, ambient noise levels, and specific consideration of take by 
Level A harassment or serious injury or mortality (hereafter referred 
to as M/SI) previously authorized for other NMFS activities).
    In the Estimated Take of Marine Mammals section, we identified the 
subset of potential effects that would be expected to rise to the level 
of takes, and then identified the number of each of those mortality 
takes that we believe could occur or harassment takes that are likely 
to occur based on the methods described. The impact that any given take 
will have is dependent on many case-specific factors that need to be 
considered in the negligible impact analysis (e.g., the context of 
behavioral exposures such as duration or intensity of a disturbance, 
the health of impacted animals, the status of a species that incurs 
fitness-level impacts to individuals, etc.). Here we evaluate the 
likely impacts of the enumerated harassment takes that are proposed for 
authorization and anticipated to occur under this rule, in the context 
of the specific circumstances surrounding these predicted takes. We 
also include a specific assessment of serious injury or mortality takes 
that could occur, as well as consideration of the traits and statuses 
of the affected species and stocks. Last, we collectively evaluate this 
information, as well as other more taxa-specific information and 
mitigation measure effectiveness, in group-specific discussions that 
support our negligible impact conclusions for each stock.
Harassment
    The Navy's Specified Activities reflects representative levels/
ranges of training and testing activities, accounting for the natural 
fluctuation in training, testing, and deployment schedules. This 
approach is representative of how Navy's activities are conducted over 
any given year over any given five-year period. Specifically, the Navy 
provided a range of levels for each activity/source type for a year--
they used the maximum annual level to calculate annual takes, and they 
used the sum of three nominal years (average level) and two maximum 
years to calculate five-year takes for each source type. The 
Description of the Specified Activity section contains a more realistic 
annual representation of activities, but includes years of a higher 
maximum amount of training and testing to account for these 
fluctuations. There may be some flexibility in the exact number of 
hours, items, or detonations that may vary from year to year, but take 
totals would not exceed the five-year totals indicated in Tables 39 
through 41. We base our analysis and negligible impact determination 
(NID) on the maximum number of takes that would be reasonably expected 
to occur and are being 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 affected 
individuals. To avoid repetition, we provide some general analysis 
immediately below that applies to all the species listed in Tables 39 
through 41, given that some of the anticipated effects of the Navy's 
training and testing activities on marine mammals are expected to be 
relatively similar in nature. However, below that, we break our 
analysis into species (and/or stock), or groups of species (and the 
associated stocks) where relevant similarities exist, to provide more 
specific information related to the anticipated effects on individuals 
of a specific stock 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 species or stock. Organizing our analysis by 
grouping species or stocks that share common traits or that will 
respond similarly to effects of the Navy's activities and then 
providing species- or stock-specific information allows us to avoid 
duplication while assuring that we have analyzed the effects of the 
specified activities on each affected species or stock.
    The Navy's harassment take request is based on its model and 
quantitative assessment of mitigation, which NMFS believes 
appropriately, although likely somewhat conservatively, predicts the 
maximum amount of Level B harassment that is reasonably expected to 
occur. In the discussions below, the ``acoustic analysis'' refers to 
the Navy's modeling results and quantitative assessment of mitigation. 
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 energy received by a marine mammal exceeds the 
thresholds for effects. Assumptions in the Navy model intentionally err 
on the side of overestimation when there are unknowns. Naval activities 
are modeled as though they would occur regardless of proximity to 
marine mammals, meaning that no mitigation is considered (e.g., no 
power down or shut down) and without any avoidance of the activity by 
the animal. The final step of the quantitative analysis of acoustic 
effects, which occurs after the modeling, is to consider the 
implementation of mitigation and the possibility that marine mammals 
would avoid continued or repeated sound exposures. NMFS provided input 
to, independently reviewed, and concurred with, the Navy on this 
process and the Navy's analysis, which is described in detail in 
Chapter 6 of the Navy's rulemaking/LOA application (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities), was used to 
quantify harassment takes for this rule.
    Generally speaking, the Navy and NMFS anticipate more severe 
effects from takes resulting from exposure to higher received levels 
(though this is in no way a strictly linear relationship for behavioral 
effects throughout species, individuals, or circumstances) and less 
severe effects from takes resulting from exposure to lower received 
levels. However, there is also growing evidence of the importance of 
distance in predicting marine mammal behavioral response to sound--
i.e., sounds of a similar level emanating from a more distant source 
have been shown to be less likely to evoke a response of equal 
magnitude (DeRuiter 2012). The estimated number of Level A and 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 A and Level B 
harassment threshold) that are anticipated to occur over the five-year 
period. These instances may represent either brief exposures (seconds 
or minutes) or, in some cases, longer durations of exposure within a 
day. Some individuals may experience multiple instances of take 
(meaning over multiple days) over the course of the year, while some 
members of a species or stock may not experience take at all which 
means that the number of individuals taken is smaller than the total 
estimated takes. In other words, where the instances of take exceed the 
number of individuals in the population, repeated takes (on more than 
one day) of some individuals are predicted. Generally speaking, the 
higher the number of takes as compared to the population abundance, the 
more repeated takes of individuals are likely, and the higher the 
actual percentage of individuals in the population that are likely 
taken at least once in a year. We

[[Page 57212]]

look at this comparative metric to give us a relative sense of where 
larger portions of the stocks are being taken by Navy activities and 
where there is a higher likelihood that the same individuals are being 
taken across multiple days and where that number of days might be 
higher. In the ocean, the use of sonar and other active acoustic 
sources is often transient and is unlikely to repeatedly expose the 
same individual animals within a short period, for example within one 
specific exercise, however, some repeated exposures across different 
activities could occur over the year, especially where events occur in 
generally the same area with more resident species. In short, we expect 
that the total anticipated takes represent exposures of a smaller 
number of individuals of which some were exposed multiple times, but 
based on the nature of the Navy activities and the movement patterns of 
marine mammals, it is unlikely that individuals from most species or 
stocks would be taken over more than a few sequential days. This means 
repeated takes of individuals are likely to occur, they are more likely 
to result from non-sequential exposures from different activities and 
marine mammals are not predicted to be taken for more than a few days 
in a row, at most. As described elsewhere, the nature of the majority 
of the exposures would be expected to be of a less severe nature and 
based on the numbers it is likely that any individual exposed multiple 
times is still only taken on a small percentage of the days of the 
year. The greater likelihood is that not every individual is taken, or 
perhaps a smaller subset is taken with a slightly higher average and 
larger variability of highs and lows, but still with no reason to think 
that any individuals would be taken a significant portion of the days 
of the year, much less that many of the days of disturbance would be 
sequential.
    Some of the lower level physiological stress responses (e.g., 
orientation or startle response, change in respiration, change in heart 
rate) discussed earlier would 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 not expect the 
Navy's generally short-term, intermittent, and (typically 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.
    The estimates calculated using the behavioral response function do 
not differentiate between the different types of behavioral responses 
that rise to the level of Level B harassments. As described in the 
Navy's application, the Navy identified (with NMFS' input) the types of 
behaviors that would be considered a take (moderate behavioral 
responses as characterized in Southall et al., 2007 (e.g., altered 
migration paths or dive profiles, interrupted nursing, breeding or 
feeding, or avoidance) that also would be expected to continue for the 
duration of an exposure). The Navy then compiled the available data 
indicating at what received levels and distances those responses have 
occurred, and used the indicated literature to build biphasic 
behavioral response curves that are used to predict how many instances 
of Level B behavioral harassment occur in a day. Take estimates alone 
do not provide information regarding the potential fitness or other 
biological consequences of the reactions on the affected individuals. 
We therefore consider the available activity-specific, environmental, 
and species-specific information to determine the likely nature of the 
modeled behavioral responses and the potential fitness consequences for 
affected individuals.
    Use of sonar and other transducers would typically be transient and 
temporary. The majority of acoustic effects to mysticetes from sonar 
and other active sound sources during testing and training activities 
would be primarily from ASW events. It is important to note although 
ASW is one of the warfare areas of focus during MTEs, there are 
significant periods when active ASW sonars are not in use. 
Nevertheless, behavioral reactions are assumed more likely to be 
significant during MTEs than during other ASW activities due to the 
duration (i.e., multiple days), scale (i.e., multiple sonar platforms), 
and use of high-power hull-mounted sonar in the MTEs. In other words, 
in the range of potential behavioral effects that might expect to be 
part of a response that qualifies as an instance Level B behavioral 
harassment (which by nature of the way it is modeled/counted, occurs 
within one day), the less severe end might include exposure to 
comparatively lower levels of a sound, at a detectably greater distance 
from the animal, for a few or several minutes, and that could result in 
a behavioral response such as avoiding an area that an animal would 
otherwise have chosen to move through or feed in for some amount of 
time or breaking off one or a few feeding bouts. More severe effects 
could occur when the animal gets close enough to the source to receive 
a comparatively higher level, is exposed continuously to one source for 
a longer time, or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe flight response and leaving a larger area for a day or more or 
potentially losing feeding opportunities for a day. However, such 
severe behavioral effects are expected to occur infrequently.
    To help assess this, for sonar (LFAS/MFAS/HFAS) used in the AFTT 
Study Area, the Navy provided information estimating the percentage of 
animals that may be taken by Level B harassment under each behavioral 
response function that would occur within 6-dB increments (percentages 
discussed below in the Group and Species-Specific Analyses section). As 
mentioned above, all else being equal, an animal's exposure to a higher 
received level is more likely to result in a behavioral response that 
is more likely to lead to adverse effects, which could more likely 
accumulate to impacts on reproductive success or survivorship of the 
animal, but other contextual factors (such as distance) are important 
also. 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 shorter duration. We 
anticipate more severe effects from takes when animals are exposed to 
higher received levels or at closer proximity to the source. Because 
stocks belonging to the same species and species belonging to taxa that 
share common characteristics are likely to respond and be affected in 
similar ways, these discussions are presented within each species group 
below in the Group and Species-Specific Analyses section. 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 a smaller percentage 
of the anticipated Level B harassment from Navy activities might 
necessarily be expected to potentially result in more severe responses 
(see the Group and Species-Specific Analyses section below for more 
detailed information). To fully understand the likely impacts of the 
predicted/authorized take on an individual (i.e., what is the 
likelihood or degree of fitness impacts), one must look closely at the 
available contextual

[[Page 57213]]

information, such as the duration of likely exposures and the likely 
severity of the exposures (e.g., whether they will occur for a longer 
duration over sequential days or the comparative sound level that will 
be received). 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.
Diel Cycle
    As noted previously, 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). Henderson et al., 2016 
found that ongoing smaller scale events had little to no impact on 
foraging dives for Blainville's beaked whale, while multi-day training 
events may decrease foraging behavior for Blainville's beaked whale 
(Manzano-Roth et al., 2016). 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 
ASW activities, typically include vessels that are continuously moving 
at speeds typically 10-15 kn, or higher, and likely cover large areas 
that are relatively far from shore (typically more than 3 nmi from 
shore) and in waters greater than 600 ft deep. Additionally 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. Further, the Navy does not necessarily 
operate active sonar the entire time during an 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. However, it 
is also worth noting that the Navy conducts many different types of 
noise-producing activities over the course of the year and it is likely 
that some marine mammals will be exposed to more than one and taken on 
multiple days, even if they are not sequential.
    Durations of Navy activities utilizing tactical sonar sources and 
explosives vary and are fully described in Appendix A of the AFTT FEIS/
OEIS. Sonar used during ASW would impart the greatest amount of 
acoustic energy of any category of sonar and other transducers analyzed 
in the Navy's rulemaking/LOA application and include hull-mounted, 
towed, sonobuoy, helicopter dipping, and torpedo sonars. Most ASW 
sonars are MFAS (1-10 kHz); however, some sources may use higher or 
lower frequencies. ASW training activities using hull mounted sonar 
proposed for the AFTT Study Area generally last for only a few hours. 
Some ASW training and testing can generally last for 2-10 days, or as 
much as 21 days for an MTE-Large Integrated ASW (see Table 4). For 
these multi-day exercises there will typically be extended intervals of 
non-activity in between active sonar periods. Because of the need to 
train in a large variety of situations, the Navy does not typically 
conduct successive ASW exercises in the same locations. Given the 
average length of ASW exercises (times of sonar use) and typical vessel 
speed, combined with the fact that the majority of the cetaceans would 
not likely remain in proximity to the sound source, it is unlikely that 
an animal would be exposed to LFAS/MFAS/HFAS at levels or durations 
likely to result in a substantive response that would then be carried 
on for more than one day or on successive days.
    Most planned explosive events are scheduled to occur over a short 
duration (1-8 hours); however, the explosive component of the activity 
only lasts for minutes (see Tables 4 through 7). 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, or demonstrate sustained behavioral responses. Although SINKEXs 
may last for up to 48 hrs (4-8 hrs, possibly 1-2 days), they are almost 
always completed in a single day and only one event is planned annually 
for the AFTT training activities. They are stationary and conducted in 
deep, open water where fewer marine mammals would typically be expected 
to be encountered. They also have shutdown procedures and rigorous 
monitoring, i.e., during the activity, the Navy conducts passive 
acoustic monitoring and visually observes for marine mammals 90 min 
prior to the first firing, during the event, and 2 hrs after sinking 
the vessel. All of these factors make it unlikely that individuals 
would be exposed to the exercise for extended periods or on consecutive 
days.
    Last, as described previously, Navy modeling uses the best 
available science to predict the instances of exposure above certain 
acoustic thresholds, which are equated, as appropriate, to harassment 
takes (and further corrected to account for mitigation and avoidance). 
As further noted, for active acoustics it is more challenging to parse 
out the number of individuals taken by Level B harassment from this 
larger number of instances. One method that NMFS can use to help better 
understand the overall scope of the impacts is to compare these total 
instances of take against the abundance of that stock. For example, if 
there are 100 takes in a population of 100, one can assume either that 
every individual was exposed above acoustic thresholds in no more than 
one day, or that some smaller number were exposed in one day but a few 
of those individuals were exposed multiple days within a year. Where 
the instances of take exceed 100 percent of the population, multiple 
takes of some individuals are predicted and expected to occur within a 
year. Generally speaking, the higher the number of takes as compared to 
the population abundance, the more multiple takes of individuals are 
likely, and the higher the actual percentage of individuals in the 
population that are likely taken at least once in a year. We look at 
this comparative metric to give us a relative sense of where larger 
portions of the stocks are being taken by Navy activities and where 
there is a higher likelihood that the same individuals are being taken 
across multiple days and where that number of days might be higher. At 
a minimum, it provides a relative picture of the scale of impacts to 
each stock.
    In short, we expect that the total anticipated takes represent 
exposures of a smaller number of individuals of which some would be 
exposed multiple times, but based on the nature of the Navy's 
activities and the movement patterns of marine mammals, it is unlikely 
that any particular subset would be taken over more than several 
sequential days (with a few possible

[[Page 57214]]

exceptions discussed in the stock-specific conclusions).
    When calculating the proportion of a population affected by takes 
(e.g., the number of takes divided by population abundance), it is 
important to choose an appropriate population estimate to make the 
comparison. In this case, we appropriately compared the predicted takes 
to abundance estimates generated from the same underlying density 
estimate used to calculate the predicted take (described earlier and 
below), versus abundance estimates from the SARs, which are not based 
on the same data (and are more limited) and would not be appropriate 
for this purpose. The SARs provide the official population estimate for 
a given species or stock in U.S. waters in a given year and are 
typically based solely on the most recent survey data, but they are not 
the only information used to estimate takes. Instead here modeled 
density layers are used, which incorporate the SAR surveys and other 
survey data. If takes are calculated from another dataset (for example 
a broader sample of survey data) and compared to the population 
estimate from the SARs, it would misrepresent the percent of the 
population affected because of different population baselines. Note 
that to further refine NMFS' comparison of take to the population 
(which may be found in the Group and Species-Specific Analyses section 
below), comparisons are made both within the U.S. EEZ only (where 
density estimates have lesser uncertainty and takes are notably 
greater) and across the whole AFTT Study Area, which offers a more 
comprehensive comparison for many stocks.
    The Navy uses, and NMFS concurs with, the use of spatially and 
temporally explicit density models (based on the best available 
science) that vary in space and time to estimate their potential 
impacts to species. See the U.S. Navy Marine Species Density Database 
Phase III for the Atlantic Fleet Training and Testing Area Technical 
Report to learn more on how the Navy selects density information and 
the models selected for individual species. These models may better 
characterize how Navy impacts can vary in space and time but often 
predict different population abundances than the SARs.
    Models may predict different population abundances for many 
reasons. The models may be based on different data sets or different 
temporal predictions may be made. The SARs are often based on single 
years of NMFS surveys whereas the models used by the Navy generally 
include multiple years of survey data from NMFS, the Navy, and other 
sources. To present a single, best estimate, the SARs often use a 
single season survey where they have the best spatial coverage 
(generally summer). Navy models often use predictions for multiple 
seasons, where appropriate for the species, even when survey coverage 
in non-summer seasons is limited, to characterize impacts over multiple 
seasons as Navy activities may occur in any season. Predictions may be 
made for different spatial extents. Many different, but equally valid, 
habitat and density modeling techniques exist and these can also be the 
cause of differences in population predictions. Differences in 
population estimates may be caused by a combination of these factors. 
Even similar estimates should be interpreted with caution and 
differences in models must be fully understood before drawing 
conclusions.
    The AFTT Study Area covers a broad area in the western North 
Atlantic Ocean and the GOMEX. The Navy has tried to find density 
estimates for this entire area, where appropriate given species 
distributions. However, only a small number of Navy training and 
testing activities occur outside of the U.S. EEZ. As such, NMFS 
believes that the average population predicted by Navy models across 
seasons in the U.S. EEZ is the best baseline to use when analyzing 
takes as a proportion of population. This is a close approximation of 
the actual population used in Navy take analysis as occasionally sound 
can propagate outside of the U.S. EEZ and a small number of exercises 
do occur in international waters. This approximation will be less 
accurate for species with major changes in density close to the U.S. 
EEZ or far offshore. Models of individual species or stocks were not 
available for all species and takes had to be proportioned to the 
species or stock level from takes predicted on models at higher 
taxonomic levels. See the various Navy technical reports mentioned 
previously in this rule that detail take estimation and density model 
selection proposed by Navy and adopted by NMFS for details.
TTS
    NMFS and the Navy have estimated that some individuals of some 
species of marine mammals may sustain some level of TTS from active 
sonar. As mentioned previously, in general, 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. Tables 72-77 indicate the number of takes by TTS that may be 
incurred by different stocks from exposure to active sonar and 
explosives. No TTS is estimated from air guns or pile driving 
activities because it is unlikely to occur. 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 Navy's MF sources, which are the highest power and most 
numerous sources and the ones that cause the most take, utilize the 1-
10 kHz frequency band, which suggests that if TTS were to be induced by 
any of these MF sources it would be in a frequency band somewhere 
between approximately 2 and 20 kHz, which is in the range of 
communication calls for many odontocetes. There are fewer hours of HF 
source use and the sounds would attenuate more quickly, plus they 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 
10 and 100 kHz, which means that TTS could range up to 200 kHz), which 
could overlap with the range in which some odontocetes communicate or 
echolocate. 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 unlikely. There are fewer LF sources and the 
majority are used in the more readily mitigated testing environment, 
and TTS from LF sources would most likely occur below 2 kHz, which is 
in the range where many mysticetes communicate and also where other 
non-communication auditory cues are located (waves, snapping shrimp, 
fish prey). TTS from explosives would be broadband. Also of note, the 
majority of sonar sources from which TTS may be incurred occupy a 
narrow frequency band, which means that the TTS incurred would also be 
across a narrower band (i.e., not affecting the majority of an animal's 
hearing range). This frequency provides information about the cues to 
which a marine mammal may be temporarily less sensitive, but not the 
degree or duration of sensitivity loss.
    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

[[Page 57215]]

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 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 kn) and the relative 
motion between the sonar vessel and the animal. In the TTS studies 
discussed in 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, since any hull-mounted 
sonar such as the SQS-53 (MFAS), emits a ping typically every 50 
seconds, incurring those levels of TTS is highly unlikely. In short, 
given the anticipated duration and levels of sound exposure, we would 
not expect marine mammals to incur more than relatively low levels of 
TTS (i.e., single digits of sensitivity loss). To add context to this 
degree of TTS, individual marine mammals may regularly experience 
variations of 6dB differences in hearing sensitivity across time 
(Finneran et al., 2000; Schlundt et al., 2000; Finneran et al., 2002).
    3. Duration of TTS (recovery time)--In the TTS laboratory studies 
(as discussed in 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.
    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 LFAS/MFAS/HFAS training and testing exercises in the AFTT Study 
Area, it is unlikely that marine mammals would ever sustain a TTS from 
MFAS that alters their sensitivity by more than 20 dB for more than a 
few hours--and any incident of TTS would likely be far less severe due 
to the short duration of the majority of the events and the speed of a 
typical vessel, especially given the fact that the higher power sources 
resulting in TTS are predominantly intermittent, which have been shown 
to result in shorter durations of TTS. Also, for the same reasons 
discussed in the Analysis and Negligible Impact Determination--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.
    Tables 72-77 indicate the number of incidental takes by TTS that 
are likely to result from the Navy's activities. As a general point, 
the majority of these TTS takes are the result of exposure to hull-
mounted MFAS (MF narrower band sources), with fewer from explosives 
(broad-band lower frequency sources), and even fewer from LF or HF 
sonar sources (narrower band). As described above, we expect the 
majority of these takes to be in the form of mild (single-digit), 
short-term (minutes to hours), narrower band (only affecting a portion 
of the animals hearing range) TTS. This means that for one to several 
times per year, for several minutes to maybe a few hours (high end) 
each, a taken individual will have slightly diminished hearing 
sensitivity (slightly more than natural variation, but nowhere near 
total deafness) more often within a narrower mid- to higher frequency 
band that may overlap part (but not all) of a communication, 
echolocation, or predator range, but sometimes across a lower or 
broader bandwidth. The significance of TTS is also related to the 
auditory cues that are germane within the time period that the animal 
incurs the TTS--for example, if an odontocete has TTS at echolocation 
frequencies, but incurs it at night when it is resting and not feeding, 
for example, it is not impactful. In short, the expected results of any 
one of these small number of mild TTS occurrences could be that (1) it 
does not overlap signals that are pertinent to that animal in the given 
time period, (2) it overlaps parts of signals that are important to the 
animal, but not in a manner that impairs interpretation, or (3) it 
reduces detectability of an important signal to a small degree for a 
short amount of time--in which case the animal may be aware and be able 
to compensate (but there may be slight energetic cost), or the animal 
may have some reduced opportunities (e.g., to detect prey) or reduced 
capabilities to react with maximum effectiveness (e.g., to detect a 
predator or navigate optimally). However, given the small number of 
times that any individual might incur TTS, the low degree of TTS and 
the short anticipated duration, and the low likelihood that one of 
these instances would occur in a time period in which the specific TTS 
overlapped the entirety of a critical signal, it is unlikely that TTS 
of the nature expected to result from Navy activities would result in 
behavioral changes or other impacts that would impact any individual's 
(of any hearing sensitivity) reproduction or survival.
Acoustic Masking or Communication Impairment
    The ultimate potential impacts of masking on an individual (if it 
were to occur) are similar to those discussed for TTS, but an important 
difference is that 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. Fundamentally, masking is 
referred to as a chronic effect because one of the key harmful 
components of masking is its duration--the fact that an animal would 
have reduced ability to hear or interpret critical cues becomes much 
more likely to cause a problem the longer it is occurring. Also 
inherent in the concept of masking is the fact that the potential for 
the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further, this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency). As our analysis 
has indicated, because of the relative movement of vessels and the 
species involved in this rule, we do not expect the exposures with the 
potential for masking to be of a long duration. In addition, masking is 
fundamentally more of a concern at lower frequencies (because low 
frequency signals propagate significantly further than higher 
frequencies and because they are more likely to overlap both the 
narrower LF calls of mysticetes, as well as many non-communication cues 
such as fish and invertebrate prey, and geologic sounds that inform 
navigation) and from continuous sources where there is no quiet time 
between pulses within which auditory signals can be detected and 
interpreted. For these reasons, dense aggregations of, and long 
exposure to, continuous LF activity, such as shipping or seismic airgun 
operation (the latter

[[Page 57216]]

signal changes from intermittent to continuous at distance), are much 
more of a concern for masking, whereas comparatively short-term 
exposure to the predominantly intermittent pulses of MFAS or HFAS, or 
explosions are not expected to result in a meaningful amount of 
masking. While the Navy occasionally uses LF and more continuous 
sources, it is not in the contemporaneous aggregate amounts that would 
accrue to a masking concern. Specifically, the nature of the activities 
and sound sources used by the Navy do not support the likelihood of a 
level of masking accruing that would have the potential to affect 
reproductive success or survival. Additional detail is provided below.
    Standard hull-mounted MFAS typically ping every 50 seconds for 
hull-mounted sources. Some hull-mounted anti-submarine sonars can also 
be used in an object detection mode known as ``Kingfisher'' mode (e.g., 
used on vessels when transiting to and from port) where pulse length is 
shorter but pings are much closer together in both time and space since 
the vessel goes slower when operating in this mode. For the majority of 
sources, the pulse length is significantly shorter than hull-mounted 
active sonar, on the order of several microseconds to tens of 
milliseconds. Some of the vocalizations that many marine mammals make 
are less than one second long, so, for example with hull-mounted sonar, 
there would be a 1 in 50 chance (only if the source was in close enough 
proximity for the sound to exceed the signal that is being detected) 
that a single vocalization might be masked by a ping. However, when 
vocalizations (or series of vocalizations) are longer than one second, 
masking would not occur. Additionally, when the pulses are only several 
microseconds long, the majority of most animals' vocalizations would 
not be masked.
    Most ASW sonars and countermeasures use MF frequencies and a few 
use LF and HF frequencies. Most of these sonar signals are limited in 
the temporal, frequency, and spatial domains. The duration of most 
individual sounds is short, lasting up to a few seconds each. A few 
systems operate with higher duty cycles or nearly continuously, but 
they typically use lower power, which means that an animal would have 
to be closer, or in the vicinity for a longer time, to be masked to the 
same degree as by a higher level source. Nevertheless, masking could 
occasionally occur at closer ranges to these high-duty cycle and 
continuous active sonar systems, but as described previously, it would 
be expected to be of a short duration when the source and animal are in 
close proximity. Most ASW activities are geographically dispersed and 
last for only a few hours, often with intermittent sonar use even 
within this period. Most ASW sonars also have a narrow frequency band 
(typically less than one-third octave). These factors reduce the 
likelihood of sources causing significant masking. HF signals (above 10 
kHz) attenuate more rapidly in the water due to absorption than do 
lower frequency signals, thus producing only a very small zone of 
potential masking. If masking or communication impairment were to occur 
briefly, it would more likely be in the frequency range of MFAS (the 
more powerful source), which overlaps with some odontocete 
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 resemble the characteristics of 
any marine mammal's vocalizations.
    Masking could occur briefly in mysticetes due to the overlap 
between their low-frequency vocalizations and the dominant frequencies 
of airgun pulses. However, masking in odontocetes or pinnipeds is less 
likely unless the airgun activity is in close range when the pulses are 
more broadband. Masking is more likely to occur in the presence of 
broadband, relatively continuous noise sources such as during vibratory 
pile driving and from vessels, however, the duration of temporal and 
spatial overlap with any individual animal and the spatially separated 
sources that the Navy uses would not be expected to result in more than 
short-term, low impact masking that would not affect reproduction or 
survival.
    The other sources used in Navy training and testing, 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. For the reasons described here, any 
limited masking that could potentially occur would be minor and short-
term and not expected to have adverse impacts on reproductive success 
or survivorship.
PTS from Sonar Acoustic Sources and Explosives and Tissue Damage From 
Explosives
    Tables 72-77 indicate the number of individuals of each of species 
and stock for which Level A harassment in the form of PTS resulting 
from exposure to active sonar and/or explosives is estimated to occur. 
Tables 72-77 also indicate the number of individuals of each of species 
and stock for which Level A harassment in the form of tissue damage 
resulting from exposure to explosive detonations is estimated to occur. 
The number of individuals to potentially incur PTS annually (from sonar 
and explosives) for the predicted species ranges from 0 to 454 (454 for 
harbor porpoise), but is more typically a few up to 31 (with the 
exception of a few species). The number of individuals to potentially 
incur tissue damage from explosives for the predicted species ranges 
from 0 to 36 (36 for short-beaked common dolphin), but is typically 
zero in most cases.
    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-emitting vessel at a close distance, NMFS 
believes that the mitigation measures (i.e., shutdown/powerdown zones 
for active sonar) 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 ASW exercises, passive acoustic detections are used as a cue 
for Lookouts' visual observations when passive acoustic assets are 
already participating in an activity) in addition to Lookouts on 
vessels to detect marine mammals for mitigation implementation. As 
discussed previously, the Navy utilized a post-modeling quantitative 
assessment to adjust the take estimates based on avoidance and the 
likely success of some portion of the mitigation measures. As is 
typical in predicting biological responses, it is challenging to 
predict exactly how avoidance and mitigation will affect the take of 
marine mammals, and therefore the Navy erred on the side of caution in 
choosing a method that would more likely still overestimate the take by 
PTS to some degree. Nonetheless, these modified Level A harassment take 
numbers are the most appropriate estimates of what is likely to occur, 
and we have analyzed them.
    If a marine mammal is able to approach a surface vessel within the 
distance necessary to incur PTS in spite of the mitigation measures, 
the likely speed of the vessel (nominally 10-15 kn) and relative motion 
of the vessel would make it very difficult for the

[[Page 57217]]

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. The majority of any PTS 
incurred as a result of exposure to Navy sources would be expected to 
be in the 2-20 kHz region (resulting from the most powerful hull-
mounted sonar) and could overlap a small portion of the communication 
frequency range of many odontocetes, whereas other marine mammal groups 
have communication calls at lower frequencies. Regardless of the 
frequency band though, the more important point in this case is that 
any PTS accrued as a result of exposure to Navy activities would be 
expected to be of a small amount (single digits). Permanent loss of 
some degree of hearing is a normal occurrence for older animals, and 
many animals are able to compensate for the shift, both in old age or 
at younger ages as the result of stressor exposure. While a small loss 
of hearing sensitivity may include some degree of energetic costs for 
compensating or may mean some small loss of opportunities or detection 
capabilities, at the expected scale it would be unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
would interfere with reproductive success or survival.
    We also assume that the acoustic exposures sufficient to trigger 
onset PTS (or TTS) would be accompanied by physiological stress 
responses, although the sound characteristics that correlate with 
specific stress responses in marine mammals are poorly understood. As 
discussed above for Level B behavioral harassment, 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 that could affect reproduction or survival.
    The Navy implements mitigation measures (described in the 
Mitigation Measures section) during explosive activities, including 
delaying detonations when a marine mammal is observed in the mitigation 
zone. Nearly all explosive events will occur during daylight hours to 
improve the sightability of marine mammals and thereby improve 
mitigation effectiveness. Observing for marine mammals during the 
explosive activities will include aerial and passive acoustic detection 
methods (when they are available and part of the activity) before the 
activity begins, in order to cover the mitigation zones that can range 
from 200 yds (183 m) to 2,500 yds (2,286 m) depending on the source 
(e.g., explosive sonobuoy, explosive torpedo, explosive bombs), and 2.5 
nmi for sinking exercise (see Tables 48--57).
    Observing for marine mammals during ship shock (which includes 
Lookouts in aircraft or on multiple vessels) begins 5 hrs before the 
detonation and extends 3.5 nmi from the ship's hull (see Table 58). The 
required mitigation is expected to reduce the likelihood that all of 
the takes will occur. Some, though likely not all, of that reduction 
was quantified in the Navy's quantitative assessment of mitigation; 
however, we analyze the type and amount of take by Level A harassment 
in Tables 39 through 41. Generally speaking, tissue damage injuries 
from explosives could range from minor lung injuries (the most 
sensitive organ and first to be affected) that consist of some short-
term reduction of health and fitness immediately following the injury 
that heals quickly and will not have any discernible long-term effects, 
up to more impactful permanent injuries across multiple organs that may 
cause health problems and negatively impact reproductive success (i.e., 
increase the time between pregnancies or even render reproduction 
unlikely) but fall just short of a ``serious injury'' by virtue of the 
fact that the animal is not expected to die. Nonetheless, due to the 
Navy's mitigation and detection capabilities, we would not expect 
marine mammals to typically be exposed to a more severe blast located 
closer to the source--so the impacts likely would be on the less severe 
end. It is still difficult to evaluate how these injuries may or may 
not impact an animal's fitness, however, these effects are only seen in 
very small numbers (single digits with the exception of two stocks) and 
in species of fairly high to very high abundances. In short, it is 
unlikely that any, much less all, of the small number of injuries 
accrued to any one stock would result in reduced reproductive success 
of any individuals, but even if a few did, the status of the affected 
stocks are such that it would not be expected to adversely impact rates 
of reproduction.
Serious Injury and Mortality
    NMFS is authorizing a very small number of serious injuries or 
mortalities that could occur in the event of a ship strike or as a 
result of marine mammal exposure to explosive detonations. We note here 
that the takes from potential ship strikes or explosive exposures 
enumerated below could result in non-serious injury, but their worst 
potential outcome (mortality) is analyzed for the purposes of the 
negligible impact determination.
    In addition, we discuss here the connection, and differences, 
between the legal mechanisms for authorizing incidental take under 
section 101(a)(5) for activities such as the Navy's testing and 
training in the AFTT Study Area, and for authorizing incidental take 
from commercial fisheries. In 1988, Congress amended the MMPA's 
provisions for addressing incidental take of marine mammals in 
commercial fishing operations. Congress directed NMFS to develop and 
recommend a new long-term regime to govern such incidental taking (see 
MMC, 1994). The need to develop a system suited to the unique 
circumstances of commercial fishing operations led NMFS to suggest a 
new conceptual means and associated regulatory framework. That concept, 
PBR, and a system for developing plans containing regulatory and 
voluntary measures to reduce incidental take for fisheries that exceed 
PBR were incorporated as sections 117 and 118 in the 1994 amendments to 
the MMPA.
    PBR is defined in section 3 of the MMPA as ``the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
OSP and, although not controlling, can be one measure considered among 
other factors when evaluating the effects of M/SI on a marine mammal 
species or stock during the section 101(a)(5)(A) process. OSP is 
defined in section 3 of the MMPA as ``the number of animals which will 
result in the maximum productivity of the population or the species, 
keeping in mind the carrying capacity of the habitat and the health of 
the ecosystem of which they form a constituent element.'' Through 
section 2, an overarching goal of the statute is to ensure that each 
species or stock of marine mammal is maintained at or returned to its 
OSP.
    PBR values are calculated by NMFS as the level of annual removal 
from a stock that will allow that stock to equilibrate within OSP at 
least 95 percent of the time, and is the product of factors relating to 
the minimum population estimate of the stock (Nmin), the 
productivity rate of the stock at a small population size, and a 
recovery factor. Determination of appropriate values for these three 
elements incorporates significant precaution, such that application of 
the parameter to the management of marine mammal stocks may be 
reasonably certain to achieve the

[[Page 57218]]

goals of the MMPA. For example, calculation of the minimum population 
estimate (Nmin) incorporates the level of precision and 
degree of variability associated with abundance information, while also 
providing (typically the 20th percentile of a log-normal distribution 
of the population estimate) reasonable assurance that the stock size is 
equal to or greater than the estimate (Barlow et al., 1995). In 
general, the three factors are developed on a stock-specific basis in 
consideration of one another in order to produce conservative PBR 
values that appropriately account for both imprecision that may be 
estimated, as well as potential bias stemming from lack of knowledge 
(Wade, 1998).
    Congress called for PBR to be applied within the management 
framework for commercial fishing incidental take under section 118 of 
the MMPA. As a result, PBR cannot be applied appropriately outside of 
the section 118 regulatory framework without consideration of how it 
applies within the section 118 framework, as well as how the other 
statutory management frameworks in the MMPA differ from the framework 
in section 118. PBR was not designed and is not used as an absolute 
threshold limiting commercial fisheries. Rather, it serves as a means 
to evaluate the relative impacts of those activities on marine mammal 
stocks. Even where commercial fishing is causing M/SI at levels that 
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the 
commercial fishing context under section 118, NMFS may develop a take 
reduction plan, usually with the assistance of a take reduction team. 
The take reduction plan will include measures to reduce and/or minimize 
the taking of marine mammals by commercial fisheries to a level below 
the stock's PBR. That is, where the total annual human-caused M/SI 
exceeds PBR, NMFS is not required to halt fishing activities 
contributing to total M/SI but rather utilizes the take reduction 
process to further mitigate the effects of fishery activities via 
additional bycatch reduction measures. In other words, under section 
118 of the MMPA, PBR does not serve as a strict cap on the operation of 
commercial fisheries that may incidentally take marine mammals.
    Similarly, to the extent PBR may be relevant when considering the 
impacts of incidental take from activities other than commercial 
fisheries, using it as the sole reason to deny (or issue) incidental 
take authorization for those activities would be inconsistent with 
Congress's intent under section 101(a)(5) and the use of PBR under 
section 118. The standard for authorizing incidental take under section 
101(a)(5) continues to be, among other things, whether the total taking 
will have a negligible impact on the species or stock. When Congress 
amended the MMPA in 1994 to add section 118 for commercial fishing, it 
did not alter the standards for authorizing non-commercial fishing 
incidental take under section 101(a)(5), implicitly acknowledging that 
the negligible impact standard under section 101(a)(5) is separate from 
the PBR metric under section 118. In fact, in 1994 Congress also 
amended section 101(a)(5)(E) (a separate provision governing commercial 
fishing incidental take for species listed under the ESA) to add 
compliance with the new section 118 but retained the requirement for a 
negligible impact finding under section 101(a)(5)(A), showing that 
Congress understood that the determination of negligible impact and 
application of PBR may share certain features but are, in fact, 
different.
    Since the introduction of PBR, NMFS has used the concept almost 
entirely within the context of implementing sections 117 and 118 and 
other commercial fisheries management-related provisions of the MMPA. 
Although there are a few examples where PBR has informed agency 
deliberations under other sections of the MMPA, where PBR has been 
raised it has been a consideration and not dispositive to the issue at 
hand. Further, the agency's thoughts regarding the potential role of 
PBR in relation to other programs of the MMPA have evolved since the 
agency's earlier applications to section 101(a)(5) decisions. The MMPA 
requires that PBR be estimated in SARs and that it be used in 
applications related to the management of take incidental to commercial 
fisheries (i.e., the take reduction planning process described in 
section 118 of the MMPA and the determination of whether a stock is 
``strategic'' as defined in section 3), but nothing in the statute 
requires the application of PBR outside the management of commercial 
fisheries interactions with marine mammals.
    Nonetheless, NMFS recognizes that as a quantitative metric, PBR may 
be useful as a consideration when evaluating the impacts of other 
human-caused activities on marine mammal stocks. Outside the commercial 
fishing context, and in consideration of all known human-caused 
mortality, PBR can help inform the potential effects of M/SI requested 
to be authorized under 101(a)(5)(A). As noted by NMFS and the USFWS in 
our implementation regulations for the 1986 amendments to the MMPA (54 
FR 40341, September 29, 1989), the Services consider many factors, when 
available, in making a negligible impact determination, including, but 
not limited to, the status of the species or stock relative to OSP (if 
known); whether the recruitment rate for the species or stock is 
increasing, decreasing, stable, or unknown; the size and distribution 
of the population; and existing impacts and environmental conditions. 
In this multi-factor analysis, PBR can be a useful indicator for when, 
and to what extent, the agency should take an especially close look at 
the circumstances associated with the potential mortality, along with 
any other factors that could influence annual rates of recruitment or 
survival.
    When considering PBR during evaluation of effects of M/SI under 
section 101(a)(5)(A), we first calculate a metric for each species or 
stock that incorporates information regarding ongoing anthropogenic M/
SI into the PBR value (i.e., PBR minus the total annual anthropogenic 
mortality/serious injury estimate), which is called ``residual PBR.'' 
(Wood et al., 2012). We focus our analysis on residual PBR because it 
incorporates anthropogenic mortality occurring from other sources. We 
then consider how the anticipated or potential incidental M/SI from the 
activities being evaluated compares to residual PBR using the following 
framework.
    Where a specified activity could cause (and NMFS is contemplating 
authorizing) incidental M/SI that is less than 10 percent of residual 
PBR (the ``insignificance threshold, see below), we consider M/SI from 
the specified activities to represent an insignificant incremental 
increase in ongoing anthropogenic M/SI for the marine mammal stock in 
question that alone (i.e., in the absence of any other take) will not 
adversely affect annual rates of recruitment and survival. As such, 
this amount of M/SI would not be expected to affect rates of 
recruitment or survival in a manner resulting in more than a negligible 
impact on the affected stock unless there are other factors that could 
affect reproduction or survival, such as Level A and/or Level B 
harassment, or considerations such as information that illustrates the 
uncertainty involved in the calculation of PBR for some stocks. In a 
prior incidental take rulemaking, this threshold was identified as the 
``significance threshold,'' but it is more accurately labeled an 
insignificance threshold, and so we use that terminology here. Assuming 
that any additional incidental take by Level A or Level B harassment 
from the activities in question would not combine with the effects of 
the authorized M/SI to exceed

[[Page 57219]]

the negligible impact level, the anticipated M/SI caused by the 
activities being evaluated would have a negligible impact on the 
species or stock. However, M/SI above the 10 percent insignificance 
threshold does not indicate that the M/SI associated with the specified 
activities is approaching a level that would necessarily exceed 
negligible impact. Rather, the 10 percent insignificance threshold is 
meant only to identify instances where additional analysis of the 
anticipated M/SI is not required because the negligible impact standard 
clearly will not be exceeded on that basis alone.
    Where the anticipated M/SI is near, at, or above residual PBR, 
consideration of other factors (positive or negative), including those 
outlined above, as well as mitigation is especially important to 
assessing whether the M/SI will have a negligible impact on the species 
or stock. PBR is a conservative metric and not sufficiently precise to 
serve as an absolute predictor of population effects upon which 
mortality caps would appropriately be based. For example, in some cases 
stock abundance (which is one of three key inputs into the PBR 
calculation) is underestimated because marine mammal survey data within 
the U.S. EEZ are used to calculate the abundance even when the stock 
range extends well beyond the U.S. EEZ. An underestimate of abundance 
could result in an underestimate of PBR. Alternatively, we sometimes 
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, 
which could result in an overestimate of residual PBR. M/SI that 
exceeds PBR may still potentially be found to be negligible in light of 
other factors that offset concern, especially when robust mitigation 
and adaptive management provisions are included.
    In Conservation Council for Hawaii v. National Marine Fisheries 
Service, 97 F. Supp.3d 1210, 1225 (D. Haw. 2015), which concerned a 
challenge to NMFS' issuance of letters of authorization to the Navy for 
activities in an area of the Pacific Ocean known as the HSTT Study 
Area, the Court reached a different conclusion, stating, ``Because any 
mortality level that exceeds PBR will not allow the stock to reach or 
maintain its OSP, such a mortality level could not be said to have only 
a `negligible impact' on the stock.'' As described above, the Court's 
statement fundamentally misunderstands the two terms and incorrectly 
indicates that these concepts (PBR and ``negligible impact'') are 
directly connected, when in fact nowhere in the MMPA is it indicated 
that these two terms are equivalent.
    Specifically, PBR was designed as a tool for evaluating mortality 
and is defined as the number of animals that can be removed while 
``allowing the stock to reach or maintain OSP,'' with the formula for 
PBR designed to ensure that growth towards OSP is not reduced by more 
than 10 percent (or equilibrate to OSP 95 percent of the time). 
Separately, and without reference to PBR, NMFS' long-standing MMPA 
implementing regulations state that take will have a negligible impact 
when it does not ``adversely affect the species or stock through 
effects on annual rates of recruitment or survival.'' OSP (to which PBR 
is linked) is defined in the statute as a population which falls within 
a range from the population level that is the largest supportable 
within the ecosystem to the population level that results in maximum 
net productivity. OSP is an aspirational goal of the overall statute 
and PBR is designed to ensure minimal deviation from this overarching 
goal. The ``negligible impact'' determination and finding protects 
against ``adverse impacts on the affected species and stocks'' when 
evaluating specific activities.
    For all these reasons, even where M/SI exceeds residual PBR, it is 
still possible for the take to have a negligible impact on the species 
or stock. While ``allowing a stock to reach or maintain OSP'' would 
ensure that NMFS approached the negligible impact standard in a 
conservative and precautionary manner so that there were not ``adverse 
effects on affected species or stocks,'' it is equally clear that in 
some cases the time to reach this aspirational OSP could be slowed by 
more than 10 percent (i.e., total human-caused mortality in excess of 
PBR could be allowed) without adversely affecting a species or stock. 
Another difference between the two standards is the temporal scales 
upon which the terms focus. That is, OSP contemplates the incremental, 
10 percent reduction in the rate to approach a goal that is tens or 
hundreds of years away. The negligible impact analysis, on the other 
hand, necessitates an evaluation of annual rates of recruitment or 
survival to support the decision of whether to issue five-year 
regulations.
    Accordingly, while PBR is useful for evaluating the effects of M/SI 
in section 101(a)(5)(A) determinations, it is just one consideration to 
be assessed in combination with other factors and should not be 
considered determinative. The accuracy and certainty around the data 
that feed any PBR calculation (e.g., the abundance estimates) must be 
carefully considered. This approach of using PBR as a trigger for 
concern while also considering other relevant factors provides a 
reasonable and appropriate means of evaluating the effects of potential 
mortality on rates of recruitment and survival, while demonstrating 
that it is possible to exceed PBR by some small amount and still make a 
negligible impact determination under section 101(a)(5)(A).
    Our evaluation of the M/SI for each of the species and stocks for 
which mortality could occur follows. No mortalities or serious injuries 
are anticipated from Navy's sonar activities. In addition, all 
mortality authorized for some of the same species or stocks over the 
next several years pursuant to our final rulemaking for the NMFS' NEFSC 
has been incorporated into the residual PBR.
    We first consider maximum potential incidental M/SI from Navy's 
ship strike analysis for the affected mysticetes and sperm whales (see 
Table 69) and from the Navy's explosive detonations for the affected 
dolphin species (see Table 70) in consideration of NMFS' threshold for 
identifying insignificant M/SI take. By considering the maximum 
potential incidental M/SI in relation to PBR and ongoing sources of 
anthropogenic mortality, we begin our evaluation of whether the 
potential incremental addition of M/SI through Navy's ship strikes and 
explosive detonations may affect the species' or stocks' annual rates 
of recruitment or survival. We also consider the interaction of those 
mortalities with incidental taking of that species or stock by 
harassment pursuant to the specified activity.
    Based on the methods discussed previously, NMFS believes that 
mortal takes of three large whales over the course of the five-year 
rule could occur, but that no more than one over the five years of any 
species of humpback whale, fin whale, sei whale, minke whale, or sperm 
whale (North Atlantic stock) would occur. This means an annual average 
of 0.2 whales from each species or stock as described in Table 69 
(i.e., 1 take over 5 years divided by 5 to get the annual number) is 
planned for authorization.

[[Page 57220]]



                                                              Table 69--Summary Information Related to AFTT Ship Strike, 2018-2023
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Annual                                                                                           Residual
                                                    planned                                                                                           PBR-PBR
                                        Stock       take by      Total    Fisheries interactions (Y/  Vessel collisions (Y/               NEFSC        minus       Stock
          Species (stock)             abundance     serious    annual M/   N); Annual rate of M/SI   N); annual rate of M/SI   PBR *    authorized  annual M/SI   trend *  UME (Y/N); number and
                                       (Nbest)*    injury or    SI * \2\        from Fisheries       from vessel collision *               take      and NEFSC      \4\             year
                                                   mortality                    Interactions *                                           (annual)    authorized
                                                      \1\                                                                                            take \ 3\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale (Western North Atlantic).        1,618          0.2        2.5  Y; 1.1...................  Y; 1.4.................      2.5            0            0        ?   N
Sei whale (Nova Scotia)............          357          0.2        0.6  N; 0.....................  Y; 0.6.................      0.5            0         -0.1        ?   N
Minke Whale (Canadian East Coast)..        2,591          0.2        7.5  Y; 6.5...................  Y; 1.1.................       14            1          5.5        ?   Y/43; total in 2018
                                                                                                                                                                            (27 in 2017 and 60
                                                                                                                                                                            in 2018).
Humpback whale (Gulf of Maine).....      \5\ 896          0.2        9.8  Y; 7.1...................  Y; 2.7.................     14.6            0          4.8   [uarr]   Y/81; total in 2018
                                                                                                                                                                            (26 in 2016, 33 in
                                                                                                                                                                            2017 and 22 in
                                                                                                                                                                            2018).
Sperm whale (North Atlantic).......        2,288          0.2        0.8  Y; 0.6...................  Y; 0.2.................      3.6            0          2.8        ?   ?
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the draft 2018 SARS.
\1\ This column represents the annual take by serious injury or mortality by vessel collision and was calculated by the number of mortalities planned for authorization divided by five years
  (the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from the SAR, but deducts the takes accrued
  from either Navy strikes or NEFSC takes as noted in the SARs to ensure not double-counted against PBR. However, for these species, there were no takes from either Navy or NEFSC as noted in
  the SARs to deduct that would be considered double-counting.
\3\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/SI, which is presented in the draft 2018
  SARs) and authorized take for NEFSC.
\4\ See relevant SARs for more information regarding stock status and trends.

    The Navy has also requested a small number of takes by serious 
injury or mortality from explosives. To calculate the annual average of 
mortalities for explosives in Table 70 we used the same method as 
described for vessel strikes. The annual average is the number of takes 
divided by five years to get the annual number.
    The following species takes by serious injury or mortality from 
explosions (ship shock trials) are being authorized by NMFS. A total of 
nine mortalities (one Atlantic white-sided dolphin, one pantropical 
spotted dolphin, one spinner dolphin, and six short-beaked common 
dolphins) are possible over the 5-year period and therefore the 0.2 
mortalities annually for Atlantic white-sided dolphin, pantropical 
spotted dolphin, and spinner dolphin and 1.2 mortalities annually for 
short-beaked common dolphin are described in Table 70.

                Table 70--Summary Information Related to AFTT Serious Injury or Mortality From Explosives (Ship Shock Trials), 2018-2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Annual
                                             planned                    Fisheries                             Residual PBR-
                                 Stock       take by       Total      interactions                 NEFSC        PBR minus
       Species (stock)         abundance     serious    annual M/SI   (Y/N); annual    PBR *     authorized    annual M/SI      Stock       UME (Y/N);
                               (Nbest) *    injury or      * \2\      rate of M/SI                  take        and NEFSC    trend *\4\  number and year
                                            mortality                from fisheries               (annual)     authorized
                                               \1\                   interactions *                             take \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin       48,819          0.2           30              30        304          0.6           273.4          ?   N
 (Western N. Atlantic).
Pantropical spotted dolphin        50,880          0.2          4.4             4.4        407            0           402.6          ?   Y/3; in 2010-
 (Northern GOMEX).                                                                                                                        2014.
Short-beaked common dolphin        70,184          1.2          406             406        557            2             149          ?   N
 (Western N. Atlantic).
Spinner dolphin (Northern          11,411          0.2            0               0         62            0              62          ?   Y/7; in 2010-
 GOMEX).                                                                                                                                  2014.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Presented in the draft 2018 SARS.
\1\ This column represents the annual take by serious injury or mortality during ship shock trials and was calculated by the number of mortalities
  planned for authorization divided by five years (the length of the rule and LOAs).
\2\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock. This number comes from
  the SAR, but deducts the takes accrued from either Navy or NEFSC takes as noted in the SARs to ensure not double-counted against PBR. However, for
  these species, there were no takes from either Navy or NEFSC as noted in the SARs to deduct that would be considered double-counting.
\3\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/
  SI, which is presented in the draft 2018 SARs) and authorized take for NEFSC.
\4\ See relevant SARs for more information regarding stock status and trends.


[[Page 57221]]

Species or Stocks With M/SI Below the Insignificance Threshold

    As noted above, for a species or stock with incidental M/SI less 
than 10 percent of residual PBR, we consider M/SI from the specified 
activities to represent an insignificant incremental increase in 
ongoing anthropogenic M/SI that alone (i.e., in the absence of any 
other take and barring any other unusual circumstances) will not 
adversely affect annual rates of recruitment and survival. In this 
case, as shown in Tables 69 and 70, the following species or stocks 
have potential or estimated, and authorized, M/SI below their 
insignificance threshold: Humpback whales (Gulf of Maine), sperm whale 
(North Atlantic), Atlantic white-sided dolphins (Western Atlantic 
stock), Pantropical spotted dolphins (Northern GOMEX stock), short-
beaked common dolphins (Western North Atlantic stock), spinner dolphins 
(Northern GOMEX stock), and minke whales (Canadian East Coast). While 
the authorized mortality of humpback whales and minke whales is below 
the insignificance threshold, because of the ongoing UMEs for these 
species, we address how other factors in the evaluation of how the 
authorized serious injury or mortality inform the negligible impact 
determination immediately below. For the other five stocks with 
authorized mortality below the insignificance threshold, there are no 
other known factors, information, or unusual circumstances that 
indicate anticipated M/SI below the insignificance threshold could have 
adverse effects on annual rates of recruitment or survival and they are 
not discussed further.
    For the remaining stocks with anticipated potential M/SI above the 
insignificance threshold, how that M/SI compares to residual PBR and 
discussion of additional factors are discussed in the section that 
follows.
Humpback Whale
    Authorized mortality of humpback whales is below the insignificance 
threshold. Additionally, when evaluating the mortality authorization in 
the context of the PBR designated for the Gulf of Maine stock, a 
primary consideration is that, although the Gulf of Maine stock is the 
only stock designated under the MMPA, it is but one of several North 
Atlantic feeding groups associated with the West Indies breeding 
population DPS (which is not considered at risk and thereby not ESA-
listed) found within the AFTT Study Area. Humpbacks encountered along 
the East Coast within the AFTT Study Area may be from the Gulf of Maine 
stock, the Newfoundland feeding group, the Gulf of St. Lawrence feeding 
group, or one of the other three feeding groups associated with the 
West Indies DPS. The Gulf of Maine stock likely dominates the northern 
portion of the AFTT Study Area, where there is far less Navy activity 
and ship traffic, but the southeastern and mid-Atlantic tissue sampling 
and photo ID work (of relatively small sample size) suggests that Gulf 
of Maine stock individuals might comprise approximately of 30 percent 
of the individuals in the rest of the of the AFTT study area, i.e., the 
mid- and south Atlantic portion (Hayes et al., 2017). In other words, 
if there were a mortality, it would not necessarily come from the Gulf 
of Maine stock. It is more appropriate to consider the mortality in the 
context of the much larger West Indies DPS, which has an increasing 
growth trend of 3.1 percent (Bettridge et al., 2015) and would have a 
much higher PBR if it were calculated for the whole DPS or any of the 
other feeding groups (none of which are designated as stocks). 
Similarly, the humpback UME is of concern, but the number of recorded 
deaths along the Atlantic Coast could come from a number of feeding 
groups (at least four of which definitely have individuals that move 
through the AFTT Study Area) and should be considered in that context. 
In other words, the addition of the single Navy authorized mortality 
means that the total human-caused mortality to all humpbacks recorded 
from the Atlantic (which actually occurs from multiple feeding groups, 
most of which are not considered stocks) is still less than the 
insignificance threshold of the Gulf of Maine stock alone, meaning that 
if the human-caused mortality in the Atlantic were compared against the 
abundance (and associated PBR) of the much larger (and increasing) DPS 
(or multiple feeding groups) to which the deaths actually accrue, the 
single Navy mortality would be even more clearly unlikely to have any 
effects on annual rates of recruitment or survival.
    Of additional note, specifically, there are over 10,000 humpback 
whales in the West Indies DPS. If one were to calculate a PBR for that 
group, using a recovery factor of 0.5 (which is appropriate for stocks 
when the OSP is not known), an rmax of 0.4, and assuming very 
conservatively that nmin would be 5,000 or more (for U.S. stocks nmin 
is typically 80% or more of the abundance estimate in the SAR), PBR 
would be around 50. Eighty-four mortalities have been recorded during 
the UME (since 2016), averaging 28 per year. However, average 
mortalities from 2011-2015 averaged about 13, which means that there 
are about 15 more mortalities annually during the UME than typically 
recorded when there is no UME. If these UME mortalities were combined 
with other annual human-caused mortalities and were viewed through the 
PBR lens (for human-caused mortalities), total human-caused mortality 
(inclusive of additional UME deaths, which are not necessarily human-
caused, as a portion have been attributed to vessel strike, while 
others are inconclusive) would be well under the residual PBR for the 
West Indies DPS.
    Also of note, the Atlantic Large Whale Take Reduction Plan (ALWTRP) 
is a program to reduce the risk of serious injury and death of large 
whales caused by accidental entanglement in U.S. commercial trap/pot 
and gillnet fishing gear. Since its implementation in 1997, it aims to 
reduce the number of whales taken by gear entanglements focusing on fin 
whales, humpback whales, and NARW. In 2003, the Atlantic Large Whale 
Take Reduction Team (Team) agreed to manage entanglement risk by first 
reducing the risk associated with groundlines and then reducing the 
risk associated with vertical lines in commercial trap/pot and gillnet 
gear. In 2014, the Plan was amended (79 FR 36586, June 27, 2014) to 
address large whale entanglement risks associated with vertical line 
(or buoy lines) from commercial trap/pot fisheries. This amendment 
included gear modifications, gear setting requirements, an expanded 
seasonal trap/pot closure (Massachusetts Restricted Area), and gear 
marking for both trap/pot and gillnet fisheries. The original 
Massachusetts Restricted Area was a seasonal closure from January 1 
through April 30 for all trap/pot fisheries. In a subsequent Plan 
amendment, the boundary for the Massachusetts Restricted Area was 
expanded by 900 mi\2\ (2.59 km\2\), and the start date changed to 
February 1 (79 FR 73848, December 12, 2014).
    Currently the Atlantic Large Whale Take Reduction Plan has two 
seasonal trap/pot closures: The Massachusetts Restricted Area (50 CFR 
229.32(c)(3)) and the Great South Channel Trap/Pot Closure (50 CFR 
229.32(c)(4)). The Massachusetts Restricted Area prohibits fishing 
with, setting, or possessing trap/pot gear in this area unless stowed 
in accordance with Sec.  229.2 from February 1 to April 30. The Great 
South Channel Trap/Pot Closure prohibits fishing with, setting, or 
possessing trap/pot gear in this area unless stowed in accordance with 
Sec.  229.2 from April 1 through June

[[Page 57222]]

30. Effective September 1, 2015, the ALWTRP included new gear marking 
areas for gillnets and trap/pots for Jeffrey's Ledge and Jordan Basin 
(Gulf of Maine), two important high-use areas for humpback whales and 
NARWs. The only study available that examined the effectiveness of the 
ALWTRP reviewed the regulations up to 2009 (Pace et al., 2014) and the 
results called for additional mitigation measures needed to reduce 
entanglements. Since that time, NMFS put two major regulatory actions 
in place--the 2007 sinking groundline rule that went into effect in 
2009 (73 FR 51228) and the 2014 vertical line rule that went into 
effect in 2015 (79 FR 36586). The Office of Law Enforcement (OLE) 
reports that of gear checked by OLE under the ALWTRP, they found a 
compliance rate of 94.49 percent in FY-2015 and 84.42 percent in FY-
2016. In addition, NMFS Fisheries Science Centers held a working group 
in May 2018 to make recommendations on the best analytical approach to 
measure how effective these regulations have been, however, the results 
of the meeting are not yet available. For more information on this 
program please refer to https://www.greateratlantic.fisheries.noaa.gov/protected/whaletrp/.
Minke Whale
    Authorized mortality of minke whales is below the insignificance 
threshold. The abundance and PBR of minke whales is significantly 
greater than what is reflected in the current SAR because the most 
recent population estimate is based only on surveys in U.S. waters and 
slightly into Canada, and did not cover the habitat of the entire 
Canadian East Coast stock. The 2015 SAR abundance included data from 
the 2007 Canadian Trans-North Atlantic Sighting Surveys (TNASS), which 
appropriately included surveys of Nova Scotian and Newfoundland 
Canadian waters and estimated an abundance of 20,741 minkes with a PBR 
of 162, as opposed to the current estimates of 2,591 and 14, 
respectively. However, as recommended in the guidelines for preparing 
SARs (NMFS 2016), estimates older than eight years are deemed 
unreliable, so the 2018 SAR population estimate does not include data 
from the 2007 TNASS. While it is certainly possible that the numbers in 
Canadian waters have changed since the last TNASS survey, there is no 
reason to think that the majority of the individuals in the stock would 
not still occupy the Canadian portion of the range. Additionally, the 
current abundance estimate does not account for availability bias due 
to submerged animals (i.e., estimates are not corrected to account for 
the fact that given X number of animals seen at the surface, we can 
appropriately assume that Y number were submerged and not counted). 
Without a correction for this bias, the abundance estimate is likely 
further biased low. Last, while the UME is a concern, we note that the 
deaths should be considered in the context of the whole stock, which 
most certainly has a significantly higher abundance and PBR than those 
reflected in the SAR.
    Of additional note, specifically, the PBR was previously estimated 
at 162 when the full abundance was considered. Fifty-two mortalities 
have been recorded during the UME (since 2017), averaging 26 per year. 
However, average mortalities from 2011-2016 averaged about 13, which 
means that there are about 13 more mortalities annually during the UME 
than typically recorded when there is no UME. If these UME mortalities 
were combined with other annual human-caused mortalities and were 
viewed through the PBR lens (for human-caused mortalities), and we 
assumed that PBR was in the vicinity of the PBR previously reported 
(162), total human-caused mortality (inclusive of additional UME 
deaths) would still be well under residual PBR for the full stock of 
minke whales.

Species or Stocks With M/SI Above the Insignificance Threshold

Fin Whale
    For fin whales (Western North Atlantic stock) PBR is currently set 
at 2.5 and the total annual M/SI is 2.5, yielding a residual PBR of 0. 
The M/SI value includes the records of 1.0 annual fishery interaction 
and 1.5 annual vessel collisions. For the reasons discussed above, 
those collisions are unlikely to be from Navy vessels. NMFS is 
authorizing one mortality over the five-year duration of the rule 
(indicated as 0.2 annually for the purposes of comparing to PBR), which 
means that residual PBR is exceeded by 0.2 (although of note, Navy take 
alone does not exceed PBR itself). However as explained earlier, this 
does not mean that the stock is not at or increasing toward OSP or that 
one lethal take by the Navy in the five years covered by this rule 
would adversely affect the stock through annual reproduction or 
survival rates. To the contrary, consideration of the information 
outlined below indicates that the Navy's authorized mortality is not 
expected to result in more than a negligible impact on this stock.
    The abundance of fin whales is likely significantly greater than 
what is reflected in the current SAR because the most recent population 
estimate is based only on surveys in U.S. waters and slightly into 
Canada, and did not cover the habitat of the entire stock, which 
extends over a very large additional area into Nova Scotian and 
Newfoundland waters. Accordingly, if a PBR were calculated based on an 
appropriately enlarged abundance, it would be notably higher. 
Additionally, the current abundance estimate does not account for 
availability bias due to submerged animals (i.e., estimates are not 
corrected to account for the fact that given X number of animals seen 
at the surface, we can appropriately assume that Y number were 
submerged and not counted). Without a correction for this bias, the 
abundance estimate is likely further biased low. Because of these 
limitations, the current calculated PBR is not a reliable indicator of 
how removal of animals will affect the stock's ability to reach or 
maintain OSP. We note that, generally speaking, while the abundance may 
be underestimated in this manner for some stocks due to the lack of 
surveys in areas outside of the U.S. EEZ, it is also possible that the 
human-caused mortality could be underestimated in the un-surveyed area. 
However, in the case of fin whales, most mortality is caused by 
entanglement in gear that is deployed relatively close to shore and, 
therefore, unrecorded mortality offshore would realistically be 
proportionally less as compared to the unsurveyed abundance and 
therefore the premise that PBR is likely underestimated still holds. 
Given the small amount by which residual PBR is exceeded and more 
significant degree (proportionally) to which abundance is likely 
underestimated, it is reasonable to think that if a more realistic PBR 
were used, the anticipated total human-caused mortality would be 
notably under it.
    Additionally, the ALWTRP (as described above) is a program to 
reduce the risk of serious injury and death of large whales caused by 
accidental entanglement in U.S. commercial trap/pot and gillnet fishing 
gear. It aims to reduce the number of whales taken by gear 
entanglements focusing on fin whales, humpback whales, and NARW. ALWTRP 
measures have equal effectiveness in reducing entanglement of fin 
whales.
    We also note that in this case, 0.2 M/SI means one mortality in one 
of the five years and zero mortalities in four of those five years. 
Therefore, residual PBR would not be exceeded in 80 percent of the 
years covered by this rule. In these particular situations where 
authorized M/SI is fractional, consideration must be given to the 
lessened impacts

[[Page 57223]]

anticipated due to the absence of mortality in four of the five years. 
Last, we reiterate the fact that PBR is a conservative metric and also 
is not sufficiently precise to serve as an absolute predictor of 
population effects upon which mortality caps would appropriately be 
based, which is especially important given the subtle difference 
between zero and one across the five-year period, which is the smallest 
possible distinction one can have if there is any consideration of 
mortality.
    Nonetheless, the exceedance of residual PBR necessitates close 
attention to the remainder of the impacts on fin whales from this 
activity to ensure that the total authorized impacts are negligible. 
This information will be considered in combination with our assessment 
of the impacts of harassment takes later in the section.
Sei Whale
    For sei whales (Nova Scotia stock) PBR is currently set at 0.5 and 
the total annual M/SI is 0.6, yielding a residual PBR of -0.1. The fact 
that residual PBR is negative means that the total anticipated human-
caused mortality is expected to exceed PBR even in the absence of 
additional take by the Navy. The M/SI value includes no records of 
annual fishery interactions, but 0.6 annual vessel collisions. For the 
reasons discussed above, those collisions are unlikely to be from Navy 
vessels. NMFS is authorizing one mortality over the five-year duration 
of the rule (indicated as 0.2 annually for the purposes of comparing to 
PBR), which means that residual PBR is exceeded by 0.3. However as 
explained earlier, this does not necessarily mean that the stock is not 
at or increasing toward OSP or that one lethal take by the Navy in the 
five years would adversely affect reproduction or survival rates. In 
fact, consideration of the additional information below supports our 
determination that the Navy's authorized mortality is not expected to 
result in more than a negligible impact on this stock.
    The abundance of sei whales is likely significantly greater than 
what is reflected in the current SAR because the population estimate is 
based only on surveys in U.S. waters and slightly into Canada, and did 
not cover the habitat of the entire stock, which extends over a large 
additional area around to the south of Newfoundland. Accordingly, if a 
PBR were calculated based on an appropriately enlarged abundance, it 
would be higher. Additionally, the current abundance estimate does not 
account for availability bias due to submerged animals (i.e., estimates 
are not corrected to account for the fact that given X number of 
animals seen at the surface, we can appropriate assume that Y number 
were submerged and not counted). Without a correction for this bias, 
the abundance estimate is likely biased low. Because of these 
limitations, the current calculated PBR is not a reliable indicator of 
how removal of animals will affect the stock's ability to reach or 
maintain OSP. We note that, generally speaking, while the abundance may 
be underestimated in this manner for some stocks due to the lack of 
surveys in areas outside of the U.S. EEZ, it is also possible that the 
human-caused mortality could be underestimated in the un-surveyed area. 
However, in the case of sei whales, most mortality is caused by ship 
strike and the density of ship traffic is higher the closer you are to 
shore (making strikes more likely closer to shore) and, therefore, 
unrecorded mortality offshore would realistically be proportionally 
less as compared to the unsurveyed abundance and therefore the premise 
that PBR is likely underestimated still holds. Given the small amount 
by which residual PBR is exceeded, and more significant degree 
(proportionally) to which abundance is likely underestimated, it is 
reasonable to think that if a more realistic PBR were used, the 
anticipated total human mortality would be notably under it.
    We also note that in this case, 0.2 M/SI means one mortality in one 
of five years and zero mortalities in four of those five years. 
Residual PBR is not being exceeded in 80 percent of the years. In these 
particular situations where authorized M/SI is fractional, 
consideration must be given to the lessened impacts anticipated due to 
the absence of mortality in four of the five years. Last, we reiterate 
the fact that PBR is a conservative metric and also is not sufficiently 
precise to serve as an absolute predictor of population effects upon 
which mortality caps would appropriately be based, which is especially 
important given the subtle difference between zero and one across the 
five-year period, which is the smallest possible distinction one can 
have if there is any consideration of mortality.
    Nonetheless, the exceedance of residual PBR necessitates close 
attention to the remainder of the impacts on sei whales from this 
activity to ensure that the total authorized impacts are negligible. 
This information will be considered in combination with our assessment 
of the impacts of harassment takes later in the section.

Group and Species-Specific Analyses

Overview

    The maximum amount and type of incidental take of marine mammals 
reasonably likely to occur and therefore authorized from exposures to 
sonar and other active acoustic sources and explosions during the five-
year training and testing period are shown in Tables 39 and 40 as well 
as ship shock trials shown in Table 41. The vast majority of predicted 
exposures (greater than 99 percent) are expected to be Level B 
harassment (non-injurious TTS and behavioral reactions) from acoustic 
and explosive sources during training and testing activities at 
relatively low received levels.
    As noted previously, the estimated Level B harassment takes 
represent instances of take, not the number of individuals taken (the 
much lower and less frequent Level A harassment takes are far more 
likely to be associated with separate individuals), and in many cases 
some individuals are expected to be taken more than one time, while in 
other cases a portion of individuals will not be taken at all. Below, 
we compare the take numbers for stocks to their associated abundance 
estimates to evaluate the magnitude of impacts across the stock and to 
individuals. Specifically, when an abundance percentage comparison is 
below 100, it means that that percentage or less of the individuals in 
the stock will be affected (i.e., some individuals will not be taken at 
all), that the average for those taken is one day per year, and that we 
would not expect any individuals to be taken more than a few times in a 
year. When it is more than 100 percent, it means there will definitely 
be some number of repeated takes of individuals. For example, if the 
percentage is 300, the average would be each individual is taken on 
three days in a year if all were taken, but it is more likely that some 
number of individuals will be taken more than three times and some 
number of individuals fewer or not at all. While it is not possible to 
know the maximum number of days across which individuals of a stock 
might be taken, in acknowledgement of the fact that it is more than the 
average, for the purposes of this analysis, we assume a number 
approaching twice the average. For example, if the percentage of take 
compared to the abundance is 800, we estimate that some individuals 
might be taken 16 times. Those comparisons are included in the sections 
below. For some stocks these numbers have been adjusted slightly 
(single digits) since the proposed rule to more consistently apply this 
approach, but these minor

[[Page 57224]]

changes did not change the analysis or findings.
    Use of sonar and other transducers would typically be transient and 
temporary. The majority of acoustic effects to mysticetes from sonar 
and other active sound sources during testing and training activities 
would be primarily from ASW events. It is important to note that 
although ASW is one of the warfare areas of focus during MTEs, there 
are significant periods when active ASW sonars are not in use. 
Nevertheless, behavioral reactions are assumed more likely to be 
significant during MTEs than during other ASW activities due to the 
duration (i.e., multiple days) and scale (i.e., multiple sonar 
platforms) of the MTEs. On the the less severe end, exposure to 
comparatively lower levels of a sound at a detectably greater distance 
from the animal, for a few or several minutes, could result in a 
behavioral response such as avoiding an area that an animal would 
otherwise have moved through or feed in or breaking off one or a few 
feeding bouts. More severe behavioral effects could occur when an 
animal gets close enough to the source to receive a comparatively 
higher level of sound, is exposed continuously to one source for a 
longer time, or is exposed intermittently to different sources 
throughout a day. Such effects might result in an animal having a more 
severe flight response and leaving a larger area for a day or more, or 
potentially losing feeding opportunities for a day. However, such 
severe behavioral effects are expected to occur infrequently.
    Occasional, milder behavioral reactions are unlikely to cause long-
term consequences for individual animals or populations, and even if 
some smaller subset of the takes are in the form of a longer (several 
hours or a day) and more severe responses, if they are not expected to 
be repeated over sequential days, impacts to individual fitness are not 
anticipated. Nearly all studies and experts agree that infrequent 
exposures of a single day or less are unlikely to impact an 
individual's overall energy budget (Farmer et al., 2018; Harris et al., 
2017; King et al., 2015; NAS 2017; New et al., 2014; Southall et al., 
2007; Villegas-Amtmann et al., 2015). When impacts to individuals 
increase in magnitude or severity such that either repeated and 
sequential higher severity impacts occur (the probability of this goes 
up for an individual the higher total number of takes it has) or the 
total number of moderate to more severe impacts increases 
substantially, especially if occurring across sequential days, then it 
becomes more likely that the aggregate effects could potentially 
interfere with feeding enough to reduce energy budgets in a manner that 
could impact reproductive success via longer cow-calf intervals, 
terminated pregnancies, or calf mortality. It is important to note that 
these impacts only accrue to females, which only comprise a portion of 
the population (typically approximately 50 percent). Based on energetic 
models, it takes energetic impacts of a significantly greater magnitude 
to cause the death of an adult marine mammal, and females will always 
terminate a pregnancy or stop lactating before allowing their health to 
deteriorate. Also, the death of an adult has significantly more impact 
on population growth rates than reductions in reproductive success, and 
death of males has very little effect on population growth rates. 
However, as explained earlier, such severe impacts from the Navy's 
activities would be very infrequent and not likely to occur at all for 
most species and stocks. Even for those species or stocks where it is 
possible for a small number of females to experience reproductive 
effects, we explain below why there still will be no effect on rates of 
recruitment or survival.

Deepwater Horizon (DWH) Oil Spill

    As discussed in the proposed rule, tens of thousands of marine 
mammals were exposed to the DWH surface slick, where they inhaled, 
aspirated, ingested, and came into contact with oil components (Dias et 
al., 2017). The oil's physical and toxic effects damaged tissues and 
organs, leading to a constellation of adverse health effects, including 
reproductive failure, adrenal disease, lung disease, and poor body 
condition, as observed in bottlenose dolphins (De Guise et al., 2017; 
Kellar et al., 2017). Coastal and estuarine bottlenose dolphin 
populations were some of the most severely injured (Hohn et al., 2017; 
Rosel et al., 2017; Thomas et al., 2017), as described previously in 
relation to the UME, but oceanic species were also exposed and 
experienced increased mortality, increased reproductive failure, and a 
higher likelihood of other adverse health effects.
    Due to the scope of the spill, the magnitude of potentially injured 
populations, and the difficulties and limitations of working with 
marine mammals, it is impossible to quantify injury without 
uncertainty. Wherever possible, the quantification results represent 
ranges of values that encapsulate the uncertainty inherent in the 
underlying datasets. The population model outputs shown in Table 71 
best represent the temporal magnitude of the injury and the potential 
recovery time from the injury (DWH NRDA Trustees (Deepwater Horizon 
Natural Resource Damage Assessment Trustees), 2016). The values in the 
table inform the baseline levels of both individual health and 
susceptibility to additional stressors, as well as stock status, with 
which the effects of the Navy takes are considered in the negligible 
impact analysis.

[[Page 57225]]

[GRAPHIC] [TIFF OMITTED] TR14NO18.008

Group and Species-Specific Analyses

    The analysis below in some cases (e.g., porpoises, pinnipeds) 
addresses 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 behaviorally respond similarly to acoustic stressors. Because 
some of these species have similar hearing capabilities and respond 
similarly to received sound, it would be duplicative to repeat the same 
analysis for each species. In addition, animals belonging to each stock 
within a species have the same hearing capabilities and behaviorally 
respond in the same manner as animals in other stocks within the 
species. Thus, our analysis below considers the effects of Navy's 
activities on each affected stock even where discussion is organized by 
functional hearing group and/or information is evaluated at the species 
level. Where there are meaningful differences between stocks within a 
species that would further differentiate the analysis (e.g., the status 
of the stock or mitigation related to biologically important areas for 
the stock), they are either described within the section or the 
discussion for those species or stocks is included as a separate 
subsection.
Mysticetes
    This section builds on the broader discussion above and brings 
together the discussion of the different types and amounts of take that 
different stocks will incur, the applicable mitigation for each stock, 
and the status of the stocks to support the negligible impact 
determinations for each stock. We have already described above why we 
believe the incremental addition of the small number of low-level PTS 
takes will not have any meaningful effect towards inhibiting 
reproduction or survival. We have also described the unlikelihood of 
any masking or habitat impacts to any groups that would rise to the 
level of affecting individual fitness. For mysticetes, there is no 
predicted tissue damage from explosives for any stock. Much of the 
discussion below focuses on the behavioral effects and the mitigation 
measures that reduce the probability or severity of effects in 
biologically important areas. Because there are multiple stock-specific 
factors in relation to the status of the species (UMEs) as well as 
mortality take for multiple stocks, we break out stock-specific 
findings at the end of the section.
    In Table 72 below, for mysticetes, we indicate the total annual 
mortality, Level A and Level B harassment, and a number indicating the 
instances of total take as a percentage of abundance. Since the 
proposed rule, the Navy has removed one of their testing events in the 
Northeast Range Complex (four events--USWT), which decreased the number 
of Level B harassment takes annually for NARW by 115 takes. This change 
also decreased annual Level B harassment takes by approximately 200 
takes for ESA-listed fin whales and 20 takes for sei whales.

[[Page 57226]]

[GRAPHIC] [TIFF OMITTED] TR14NO18.009

    The majority of takes by harassment of mysticetes in the AFTT Study 
Area are caused by sources from the MF1 active sonar bin (which 
includes hull-mounted sonar) because they are high level sources in the 
1-10 kHz range, which overlaps the most sensitive area of hearing for 
mysticetes, and of the sources expected to result in take, they also 
are used in a large portion of exercises (see Table 1.5-5 in the Navy's 
application). Most of the takes (64 percent) from the MF1 bin in the 
AFTT Study Area would result from received levels between 160 and 172 
dB SPL, while another 32 percent would result from exposure between 172 
and 178 dB SPL. For the remaining active sonar bin types, the 
percentages are as follows: LF3 = 96 percent between 142 and 154, MF4 = 
98 percent between 136 and 145, MF5 = 97 percent between 118 and 142, 
and HF4 = 98 percent between 100 and 148 dB SPL. These values may be 
derived from the information in Tables 6.4-8 through 6.4-12 in the 
Navy's rulemaking/LOA application (though they were provided directly 
to NMFS upon request). For mysticetes, explosive training and testing 
activities do not result in any Level B behavioral harassment or PTS, 
and the TTS takes are in the single digits and comprise a fraction 
(approximately 1-10 percent) of those caused by exposure to active 
sonar. There are no takes of mysticetes by pile driving or airguns. 
Based on this information, the majority of the Level B behavioral 
harassment is expected to be of low to sometimes moderate severity and 
of a relatively shorter duration.
    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). Behavioral 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; DOD, 2017). Overall, mysticetes have been 
observed to be more reactive to acoustic disturbance when a noise 
source is located directly on their migration route. Mysticetes 
disturbed while migrating could pause their migration or route around 
the disturbance. Although they may pause temporarily, they will resume 
migration shortly after. Animals disturbed while engaged in other 
activities such as feeding or reproductive behaviors may be more likely 
to ignore or tolerate the disturbance and continue their natural 
behavior patterns. As noted in the Potential Effects of Specified 
Activities on Marine Mammals and Their Habitat section, there are 
multiple examples from behavioral response studies of odontocetes 
ceasing their feeding dives when exposed to sonar pulses at certain 
levels, but alternately, blue whales were less likely to show a visible 
response to sonar exposures at certain levels when feeding than when 
traveling. However, Goldbogen et al. (2013) indicated some horizontal 
displacement of deep foraging blue whales in response to simulated MFA 
sonar. Most Level B behavioral harassment of mysticetes is likely to be 
short-term and low to moderate severity, with no anticipated effect on 
reproduction or survival from Level B harassment.
    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. Some mysticetes may avoid larger 
activities such as a MTE as it moves through an area, although these 
activities generally do not use the same training locations

[[Page 57227]]

day-after-day during multi-day activities. Therefore, displaced animals 
could return quickly after the MTE finishes. Due to the limited number 
and broad geographic scope of MTEs, it is unlikely that most mysticetes 
would encounter a major training exercise more than once per year and 
no MTEs will occur in the GOMEX or the Gulf of Maine area where the BIA 
feeding areas for NARW, fin whales, humpback whales, minke whales, and 
sei whales are located. In the ocean, the use of sonar and other active 
acoustic sources is transient and is unlikely to expose the same 
population of animals repeatedly over a short period of time, 
especially given the broader-scale movements of mysticetes.
    The implementation of mitigation and the sightability of mysticetes 
(due to their large size) further reduces the potential for a 
significant behavioral reaction or a threshold shift to occur (i.e., 
shutdowns are expected to be successfully implemented, though we have 
analyzed the impacts that are anticipated to occur and that we are 
therefore authorizing. As noted previously, when an animal incurs a 
threshold shift, it occurs in the frequency from that of the source up 
to one octave above. This means that the vast majority of threshold 
shift caused by Navy sonar sources will typically occur in the range of 
2-20 kHz (from the 1-10 kHz MF1 bin), and if resulting from hull-
mounted sonar, will be in the range of 3.5-7 kHz. The majority of 
mysticete vocalizations, including for NARW, occurs in frequencies 
below 1 kHz, which means that TTS incurred by mysticetes will not 
interfere with conspecific communication Additionally, many of the 
other critical sounds that serve as cues for navigation and prey (e.g., 
waves, fish, invertebrates) occur below a few kHz, which means that 
detection of these signals will not be inhibited by most threshold 
shift either. When we look in ocean areas where the Navy has been 
intensively training and testing with sonar and other active acoustic 
sources for decades, there is no data suggesting any long-term 
consequences to reproduction or survival rates of mysticetes from 
exposure to sonar and other active acoustic sources.
    The Navy will implement mitigation areas that will avoid or reduce 
impacts from harassment to mysticetes and these areas contain some of 
the BIAs for large whales and ESA-designated critical habitat for NARW. 
The NARW is an at-risk species with an ongoing UME. In order to 
mitigate the number and potential severity of any NARW harassment 
takes, from November 15 through April 15, the Navy will not conduct 
LFAS/MFAS/HFAS, except for sources that will be minimized to the 
maximum extent practicable during helicopter dipping, navigation 
training, and object detection exercises within the SE NARW Mitigation 
Area. As discussed previously, the majority of takes result from 
exposure to the higher power hull-mounted sonar during major training 
exercises, which will not occur here. The activities that are allowed 
to occur such as those used for navigation training or object detection 
exercises use lower level sources that operate in a manner less likely 
to result in more concerning affects (i.e., single sources for shorter 
overall amounts of time--e.g., activity is less than 30 min). Animals 
in these protected areas are engaged in important behaviors, either 
feeding or interacting with calves, during which if they were disturbed 
the effects could be more impactful (e.g., if whales were displaced 
from preferred feeding habitat for long periods, there could be 
energetic consequences more likely to lead to an adverse effect on 
fitness, or if exposure to activities caused a severe disturbance to a 
cow-calf pair that resulted in the pair becoming separated, it could 
increase the risk of predation for the calf). By limiting activities, 
the number of takes that would occur in these areas is decreased and 
the probability of a more severe impact is reduced. The SE NARW 
Mitigation Area encompasses a portion of the NARW migration and calving 
areas identified by LaBrecque et al. (2015a) and a portion of the 
southeastern NARW ESA-designated critical habitat. Outside of the SE 
NARW Mitigation Area, active sonar would be used for ASW activities and 
for pierside sonar testing at Kings Bay, Georgia. The best available 
density data for the AFTT Study Area shows that the areas of highest 
density are off the southeastern United States in areas that coincide 
with the SE NARW Mitigation Area. Therefore, the majority of active 
sonar use would occur outside of the areas of highest seasonal NARW 
density and important use areas off the southeastern United States. In 
addition, before transiting or conducting testing and training 
activities, the Navy will coordinate to obtain Early Warning System 
NARW sighting data to help vessels and aircraft reduce potential 
interactions with NARWs.
    The Navy will also minimize the use of active sonar in the NE NARW 
Mitigation Area. Refer to the Mitigation Measures section of this rule 
for a description of the area. Torpedo (non-explosive) activities can 
occur throughout the year, however, based on typical testing schedules 
only a limited number would likely be conducted in August and 
September. Many NARW will have migrated south out of the area by that 
time. Torpedo training or testing activities would not occur in or 
within 2.7 nmi of the Stellwagen Bank National Marine Sanctuary, which 
is critical habitat for NARW foraging. Stellwagen Bank National Marine 
Sanctuary also provides feeding and nursery grounds for NARW, humpback, 
sei, and fin whales. Since the proposed rule, the Navy has agreed to 
expand the NE NARW Mitigation Area to cover the full extent of the 
northeast NARW ESA-designated critical habitat designated under the ESA 
and has agreed not to conduct MTEs in the Gulf of Maine Planning 
Awareness Mitigation Area. One hundred percent of the NARW feeding area 
on Jeffreys Ledge and the NARW mating area in the central Gulf of Maine 
are included in the expanded NE NARW Mitigation Area (as well as in the 
Gulf of Maine Planning Awareness Area). The expanded NE NARW Mitigation 
Area covers Cape Cod Bay, Jeffreys Ledge, the western edge of Georges 
Bank, and the northern portion of the Great South Channel; 100 percent 
of the NARW feeding area on Cape Cod Bay and Massachusetts Bay and 
95.08 percent of the NARW feeding area in the Great South Channel and 
the northern edge of George's Bank is included in the expanded NE NARW 
Mitigation Area. The mitigation measures required in the previous NE 
NARW Mitigation Area will carry over to the expanded mitigation area 
and be implemented year-round. These same important feeding and mating 
areas for NARW in the northeast are 100 percent included in the Gulf of 
Maine Planning Awareness Mitigation Area.
    The humpback whale (1 BIA), minke whale (2 BIAs), fin whale (2 
BIAs), and sei whale (1 BIA) feeding BIAs (6 total) are also located 
within the NE NARW Mitigation Area or Gulf of Maine Planning Awareness 
Mitigation Area (or both). Ninety-seven percent of the humpback whale 
feeding area in the Gulf of Maine, Stellwagen Bank, and the Great South 
Channel are included in the NE NARW Mitigation Area (100 percent in the 
Gulf of Maine Planning Awareness Mitigation Area). One hundred percent 
of the minke whale feeding BIA (central Gulf of Maine--Parker Ridge and 
Cashes Ledge) is included in the NE NARW Mitigation Area and the Gulf 
of Maine Planning Awareness Mitigation Area. One hundred percent of the 
fin whale feeding area BIA in the southern and the

[[Page 57228]]

northern Gulf of Maine are included in the NE NARW Mitigation Area and 
the Gulf of Maine Planning Awareness Mitigation Area. Seventy-three 
percent of the sei whale feeding area in the Gulf of Maine is included 
in the NE NARW Mitigation Area (100 percent in the Gulf of Maine 
Planning Awareness Mitigation Area). Approximately half of the minke 
whale feeding area in the southwestern Gulf of Maine and Georges Bank 
is included in the NE NARW Mitigation Area (100 percent in the Gulf of 
Maine Planning Awareness Mitigation Area). The Navy will limit the use 
of active sonar to the maximum extent practicable and not use certain 
explosive and non-explosive munitions year-round within the NE NARW 
Mitigation Area to further reduce potential impacts on large whales 
feeding and NARW in their most important feeding areas, a mating area, 
and the northern portion of their migration habitat. Newly developed 
for this regulatory period, the Gulf of Maine Planning Awareness 
Mitigation Area extends throughout the Gulf of Maine and southward over 
Georges Bank. The mitigation will further reduce potential impacts on 
marine mammals from active sonar during MTEs within key areas of 
biological importance, including NARW critical habitat; a portion of 
the northern NARW migration area; NARW, humpback whale, minke whale, 
sei whale, and fin whale feeding areas; and a NARW mating area.
    The Bryde's whale BIA is inclusive of the GOMEX Planning Awareness 
Mitigation Areas and the Navy will not conduct MTEs in the GOMEX. Since 
the proposed rule, the Navy agreed upon the addition of a mitigation 
area for Bryde's whale. The Bryde's Whale Mitigation Area covers the 
extent of the Bryde's whale small and resident population area 
identified by LaBrecque et al. (2015b), including the extended area 
identified by NMFS in its 2016 Bryde's whale status review (Rosel et 
al., 2016). In this mitigation area, the Navy will limit annual hours 
of MFAS use and will not use in-water explosives (except during mine 
warfare activities) to avoid or reduce potential impacts on the small 
and resident population of Bryde's whales.
    As described previously there are three ongoing UMEs for NARW, 
humpback whales, and minke whales. There is significant concern 
regarding the status of the NARW, both because of the ongoing UME and 
because of the overall status of the stock. However, the Navy's 
mitigation measures make NARW mortality unlikely-- and we are not 
authorizing such take--and the newly expanded mitigation areas further 
reduce the extent of potential Level B harassment by behavioral 
disruption in areas that are important for NARW, hence reducing the 
significance of such disruption. NMFS also has concern regarding the 
UMEs for humpback and minke whales. NMFS, in coordination with our 
stranding network partners, continues to investigate the recent 
mortalities, environmental conditions, and population monitoring to 
better understand how the recent humpback and minke whale mortalities 
occurred. Also, these unexplained mortalities have been evaluated in 
the context of other human-caused mortality and the single authorized 
mortalities for these species in the sections above. Ship speed 
reduction rules are in effect for commercial and large vessels during 
times of high concentrations of NARW, and require vessels greater than 
or equal to 65 feet in length to reduce speeds to 10 kn or less while 
entering or departing ports. While this rule was put into place 
primarily for the NARW presence in New England and Mid-Atlantic waters, 
it does benefit other whale species, such as humpback whales that are 
in those areas from November through July. NOAA is reviewing ship-
tracking data to ensure compliance with the ship speed reduction rule 
around Cape Cod, New York, and the Chesapeake Bay areas. The UME for 
minke whales was recently declared. Preliminary findings in several of 
the whales have shown evidence of human interactions or infectious 
disease. These findings are not consistent across all of the whales 
examined, so more research is needed. As part of the UME investigation 
process, NOAA is assembling an independent team of scientists to 
coordinate with the Working Group on Marine Mammal Unusual Mortality 
Events to review the data collected, sample stranded whales, and 
determine the next steps for the investigation.
    Below we compile and summarize the information that supports our 
determination that the Navy's activities will not adversely impact 
rates of recruitment or survival for any of the affected mysticete 
stocks:
    NARW (Western stock)--As described previously, the status of NARW 
is precarious and they are listed as endangered under the ESA. There is 
a UME associated with the recent unusually high number of deaths (some 
of which have been attributed to entanglement), the number of births in 
recent years has been unusually low, and recent studies have reported 
individuals showing poor health or high stress levels. Accordingly and 
as described above, the Navy is implementing a comprehensive suite of 
mitigation measures that not only avoid the likelihood of ship strikes, 
but also minimize the severity of behavioral disruption by minimizing 
impacts in areas that are important for feeding and calving, thus 
ensuring that the relatively small number of Level B harassment takes 
that do occur are not expected to affect reproductive success or 
survivorship via detrimental impacts to energy intake or cow/calf 
interactions. Specifically, no mortality or Level A harassment is 
anticipated or authorized. Regarding the magnitude of Level B 
harassment takes (TTS and behavioral disruption), the number of 
estimated instances compared to the abundance (137 percent) combined 
with the fact that the AFTT Study Area overlaps most if not all of the 
range, suggests that many to most of the individuals in the stock will 
likely be taken, but only on one or two days per year, with no reason 
to think the days would likely be sequential. Regarding the severity of 
those individual takes by Level B behavioral harassment, we have 
explained that the duration of any exposure is expected to be between 
minutes and hours (i.e., relatively short), the received sound levels 
are largely below 172 dB with some lesser portion up to 178 dB (i.e., 
of a moderate or lower level, less likely to evoke a severe response), 
and that because of the mitigation the exposures will not occur in 
areas or at times where impacts would be likely to affect feeding and 
energetics or important cow/calf interactions that could lead to 
reduced reproductive success or survival. Regarding the severity of TTS 
takes, we have explained that they are expected to be low-level and of 
short duration and the associated lost opportunities and capabilities 
are not at a level that would impact reproduction or survival.
    Altogether, any individual NARW is likely to be disturbed at a low-
moderate level on no more than a couple of likely non-sequential days 
per year (and not in biologically important areas). Even given the fact 
that some of the affected individuals may have compromised health, 
there is nothing to suggest that such a low magnitude and severity of 
effects would result in impacts on reproduction or survival of any 
individual, much less impacts on annual rates of recruitment or 
survival for the stock. For these reasons, we have determined, in 
consideration of all of the effects of the Navy's activities combined, 
that the authorized take will have a negligible impact on NARW.
    Blue Whale (Western North Atlantic stock)--This is a wide-ranging 
stock that is best considered as ``an occasional

[[Page 57229]]

visitor'' to the U.S. EEZ, which may represent the southern limit of 
its feeding range (2017 SARS), though no specific feeding areas have 
been identified. For this reason, the abundances calculated by the Navy 
based on survey data in the U.S. EEZ are very low (9 and 104, in the 
U.S. EEZ and throughout the range respectively) and while NMFS' 2018 
SAR does not predict an abundance, it does report an Nmin (minimum 
abundance) of 440. There is no currently reported trend for the 
population and there are no specific issues with the status of the 
stock that cause particular concern (e.g., UMEs), although the species 
is listed as endangered under the ESA. No mortality or Level A 
harassment is anticipated or authorized for blue whales. Regarding the 
magnitude of Level B harassment takes (TTS and behavioral disruption), 
given the number of total takes (47), the large range and wide-ranging 
nature of blue whales, and the minimum abundance identified in the SAR, 
there is no reason to think that any single animal will be taken by 
Level B harassment more than one time (though perhaps a few could be) 
and less than 10 percent of the population is likely to be impacted. 
Regarding the severity of those individual Level B harassment 
behavioral takes, we have explained that the duration of any exposure 
is expected to be between minutes and hours (i.e., relatively short) 
and the received sound levels are largely below 172 dB with a portion 
up to 178 dB (i.e., of a moderate or lower level, less likely to evoke 
a severe response). Regarding the severity of TTS takes, we have 
explained that they are expected to be low-level and of short duration 
and the associated lost opportunities and capabilities not at a level 
that would impact reproduction or survival.
    Altogether, no more than 10 percent of the stock is likely to be 
impacted and any individual blue whale is likely to be disturbed at a 
low-moderate level on no more than a day or two days per year and not 
in any known biologically important areas. This low magnitude and 
severity of effects is unlikely to result in impacts on the 
reproduction or survival of any individual, much less impacts on annual 
rates of recruitment or survival for the stock. For these reasons, we 
have determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible 
impact on blue whales.
    Bryde's whale (Northern GOMEX stock)--The Bryde's whale is a small 
resident population. Although there is no current UME, the small size 
of the population and its constricted range, combined with the 
lingering effects of exposure to oil from the DWH oil spill (which 
include adverse health effects on individuals, as well as population 
effects) are cause for considerable caution. Accordingly, as described 
above, the Navy is implementing considerable time/area mitigation 
(including an expansion since the rule was proposed) to minimize 
impacts within their limited range, including not planning MTEs, which 
include the most powerful sound sources operating in a more 
concentrated area, limiting the hours of other sonar use, and not using 
explosives, with the exception of mine warfare activities, which has 
both reduced the amount of take and reduced the likely severity of 
impacts. No mortality or Level A harassment by tissue damage injury is 
anticipated or authorized, and only one Level A harassment by PTS take 
is estimated and authorized. Regarding the magnitude of Level B 
harassment takes (TTS and behavioral disruption), the number of 
estimated instances compared to the abundance (112 percent, Table 72) 
combined with the fact that the AFTT Study Area overlaps all of the 
small range, suggests that most to all of the individuals in the stock 
will likely be taken, but only on one or two days per year, with no 
reason to think the days would likely be sequential. Regarding the 
severity of those individual Level B harassment behavioral takes, we 
have explained that the duration of any exposure is expected to be 
between minutes and hours (i.e., relatively short); the received sound 
levels are largely below 172 dB with a portion up to 178 dB (i.e., of a 
moderate or lower level, less likely to evoke a severe response); and 
that because of the mitigation the exposures will be of a less 
impactful nature. Regarding the severity of TTS takes, we have 
explained that they are expected to be low-level and of short duration 
and the associated lost opportunities and capabilities not at a level 
that would impact reproduction or survival. For similar reasons 
(described above) the one estimated Level A harassment take by PTS for 
this stock is unlikely to have any effects on the reproduction or 
survival of any individuals.
    Altogether, any individual Bryde's whale is likely to be disturbed 
at a low-moderate level on no more than one or two days per year. Even 
given the fact that some of the affected individuals may have 
compromised health, there is nothing to suggest that such a low 
magnitude and severity of effects would result in impacts on the 
reproduction or survival of any individual, much less annual rates of 
recruitment or survival for the stock. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible 
impact on the GOMEX stock of Bryde's whales.
    Bryde's whale (NSD)--These Bryde's whales span the mid- and 
southern Atlantic and have not been designated as a stock under the 
MMPA. There is no currently reported trend for the population and there 
are no specific issues with the status of the stock that cause 
particular concern (e.g., UMEs). No mortality or Level A harassment is 
anticipated or authorized. Regarding the magnitude of Level B 
harassment takes (TTS and behavioral disruption), the number of 
estimated instances compared to the abundance within the U.S. EEZ and 
both in and outside of the U.S. EEZ, respectively, is 626 percent and 
60 percent (Table 72), though the percentages would be far lower if 
compared against the abundance of the entire range of this species in 
the Atlantic. This information suggests that only a portion of the 
stock is likely impacted (significantly less than 60 percent given the 
large range), but that there is likely some repeat exposure (5 to 12 
days within a year) of some subset of individuals within the U.S. EEZ 
if some animals spend extended time within the U.S. EEZ. Regarding the 
severity of those individual Level B harassment behavioral takes, we 
have explained that the duration of any exposure is expected to be 
between minutes and hours (i.e., relatively short) and the received 
sound levels are largely below 172 dB with a portion up to 178 dB 
(i.e., of a moderate or lower level, less likely to evoke a severe 
response). Regarding the severity of TTS takes, we have explained that 
they are expected to be low-level and of short duration and the 
associated lost opportunities and capabilities not at a level that 
would impact reproduction or survival.
    Altogether, only a portion of the population is impacted and any 
individual Bryde's whale is likely to be disturbed at a low to moderate 
level, with likely many animals exposed only once or twice and a subset 
potentially disturbed across 5 to 12 likely non-sequential days not in 
any known biologically important areas. This low magnitude and severity 
of effects is not expected to result in impacts on annual rates of 
recruitment or survival for the stock. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will

[[Page 57230]]

have a negligible impact on Bryde's whales.
    Minke whale (Canadian East Coast stock)--This stock of minke whales 
spans the East Coast and far into Northern Canada waters. Minke whales 
in the Atlantic are currently experiencing a UME wherein there have 
been unexpectedly elevated deaths along the Atlantic Coast, some of 
which have been preliminarily attributed to human interaction or 
infectious disease. Importantly, both the abundance and PBR are 
considered significantly underestimated in the SAR, as discussed above. 
NMFS will authorize one mortality in five years, and the resulting 0.2 
annual mortality fell below 10 percent of residual PBR, under the 
insignificance threshold, and would be considerably even lower if 
compared against a more appropriate PBR. Regarding the magnitude of 
Level B harassment takes (TTS and behavioral disruption), the number of 
estimated instances compared to the abundance within the U.S. EEZ and 
both in and outside of the U.S. EEZ, respectively, is 536 percent and 
53 percent (Table 72). This information suggests that something less 
than half of the individuals are likely impacted, but that there is 
likely some repeat exposure (5 to 10 days within a year) of some subset 
of individuals within the U.S. EEZ if some animals spend extended time 
within the U.S. EEZ. Regarding the severity of those individual takes 
by Level B behavioral harassment, we have explained that the duration 
of any exposure is expected to be between minutes and hours (i.e., 
relatively short) and the received sound levels largely below 172 dB, 
with a portion up to 178 dB (i.e., of a moderate or lower level, less 
likely to evoke a severe response). Also, the Navy implements time/area 
mitigation in the Northeast that minimizes MTEs and total sonar hours 
in an area that significantly overlaps an important feeding area for 
minke whales, which will reduce the severity of impacts to minke whales 
by reducing interference in feeding that could result in lost feeding 
opportunities or necessitate additional energy expenditure to find 
other good opportunities. Regarding the severity of TTS takes, we have 
explained that they are expected to be low-level and of short duration 
and the associated lost opportunities and capabilities not at a level 
that would impact reproduction or survival. For similar reasons 
(described above) the five estimated Level A harassment takes by PTS 
for this stock are unlikely to have any effects on the reproduction or 
survival of any individuals.
    Altogether, only a portion of the stock is impacted and any 
individual minke whale is likely to be disturbed at a low to moderate 
level, with likely many animals exposed only once or twice and a subset 
potentially disturbed across 5 to 10 likely non-sequential days, 
minimized in biologically important areas. Even given the potential for 
compromised health of some individuals, this low magnitude and severity 
of effects is not expected to result in impacts on the reproduction or 
survival of individuals, nor are these harassment takes combined with 
the authorized mortality expected to adversely affect this stock 
through impacts on annual rates of recruitment or survival for the 
stock. For these reasons, we have determined, in consideration of all 
of the effects of the Navy's activities combined, that the authorized 
take will have a negligible impact on minke whales.
    Fin whale (Western North Atlantic stock)--This stock spans the East 
Coast and up into the Newfoundland waters of Canada. There is no 
currently reported trend for the population and there are no specific 
issues with the status of the stock that cause particular concern 
(e.g., UMEs), although the species is listed as endangered under the 
ESA. Importantly, both the abundance and PBR are considered 
underestimated in the SAR, as discussed above. NMFS will authorize 1 
mortality over the 5 years of the rule, or 0.2 annually. With the 
addition of this 0.2 annual mortality, residual PBR is exceeded, which 
means the total human-caused mortality would exceed PBR by 0.2. 
However, if the PBR in the SAR reflected the actual abundance across 
the entire range of the stock, residual PBR would be significantly 
higher, and definitely not be exceeded. Further, the Atlantic Large 
Whale Take Reduction Plan directs multiple efforts and requirements 
towards reducing mortality from commercial fishing (via gear 
modifications, area closures, and other mechanisms) and NOAA Law 
Enforcement has reported high compliance rates. Regarding the magnitude 
of Level B harassment takes (TTS and behavioral disruption), the number 
of estimated instances compared to the abundance within the U.S. EEZ 
and both in and outside of the U.S. EEZ, respectively, is 323 percent 
and 37 percent (Table 72). This information suggests that something 
less than a third of the individuals are likely impacted, but that 
there is likely some repeat exposure (2-6 days within a year) of some 
subset of individuals within the U.S. EEZ if some animals spend 
extended time within the U.S. EEZ. Regarding the severity of those 
individual takes by Level B behavioral harassment, we have explained 
that the duration of any exposure is expected to be between minutes and 
hours (i.e., relatively short) and the received sound levels largely 
below 172 dB (i.e., of a moderate or lower level, less likely to evoke 
a severe response). Also, the Navy implements time/area mitigation in 
the Northeast that minimizes major training exercises and total sonar 
hours in an area that significantly overlaps an important BIA feeding 
area for fin whales, which will reduce the severity of impacts to fin 
whales by reducing interference in feeding that could result in lost 
feeding opportunities or necessitate additional energy expenditure to 
find other good opportunities. Regarding the severity of TTS takes, we 
have explained that they are expected to be low-level, of short 
duration, and mostly not in a frequency band that would be expected to 
interfere with fin whale communication or other important low-frequency 
cues--and that the associated lost opportunities and capabilities are 
not at a level that would impact reproduction or survival. For these 
same reasons (low level and frequency band), while a small permanent 
loss of hearing sensitivity may include some degree of energetic costs 
for compensating or may mean some small loss of opportunities or 
detection capabilities, at the expected scale the 33 estimated Level A 
harassment takes by PTS for fin whales would be unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
would interfere with reproductive success or survival of any 
individuals.
    Altogether, only a portion of the stock is impacted and any 
individual fin whale is likely to be disturbed at a low to moderate 
level, with likely many animals exposed only once or twice and a subset 
potentially disturbed across approximately 6 likely non-sequential 
days, minimized in biologically important areas. This low magnitude and 
severity of effects is not expected to result in impacts on 
reproduction or survival of individuals, nor are these harassment takes 
combined with the authorized mortality expected to adversely affect 
this stock through impacts on annual rates of recruitment or survival 
for the stock. For these reasons, we have determined, in consideration 
of all of the effects of the Navy's activities combined, that the 
authorized take will have a negligible impact on fin whales.

[[Page 57231]]

    Humpback whale (Gulf of Maine stock)--This feeding group stock of 
humpback whales is one of several associated with the larger, and 
increasing, West Indies DPS. Humpback whales in the Atlantic are 
currently experiencing a UME in which a portion of the whales have 
shown evidence of vessel strike. NMFS will authorize one mortality for 
the five-year period, which falls under the insignificance threshold of 
10 percent of residual PBR for the Gulf of Maine stock. However, 
importantly, deaths of humpback whales along the Atlantic coast 
(whether by authorized ship strike or UME) must be considered within 
the context of the larger West Indies DPS, as animals along the coast 
could come from the Gulf of Maine stock or any of three or more other 
associated feeding groups. Specifically, the West Indies DPS numbers in 
excess of 10,000 whales and the associated PBR, if calculated, would be 
over 100.
    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated instances (of any 
humpbacks) compared to the abundance within the U.S. EEZ and both in 
and outside of the U.S. EEZ, respectively, is 141 percent and 16 
percent (Table 72). This suggests that only a small portion of the 
humpback whales in the area are likely impacted, with perhaps some 
individuals taken on a few days of the year. It would be impossible to 
determine exactly what portion of the takes are from the Gulf of Maine 
stock. However, based on the information provided earlier, which 
suggested about one third of the humpback whales traversing the 
Atlantic Coast likely come from the Gulf of Maine stock, we estimate 
that approximately 250 of the 749 total humpback whale takes might be 
from the Gulf of Maine stock. Two hundred and fiftyrepresents about 28 
percent of the minimum population estimate for the Gulf of Maine 
humpback whale abundance in NMFS' draft 2018 SAR, equating to an 
expectation that few animals would be repeatedly exposed. Regarding the 
severity of those individual takes by Level B behavioral harassment, we 
have explained that the duration of any exposure is expected to be 
between minutes and hours (i.e., relatively short) and the received 
sound levels largely below 172 dB with a portion above 178 dB (i.e., of 
a moderate or lower level, less likely to evoke a severe response). 
Also, the Navy implements time/area mitigation in the Northeast that 
minimizes MTEs and total sonar hours in an area that significantly 
overlaps with an important feeding area for humpbacks, which will 
reduce the severity of impacts to humpbacks by reducing interference in 
feeding that could result in lost feeding opportunities or necessitate 
additional energy expenditure to find other good opportunities. 
Regarding the severity of TTS takes, we have explained that they are 
expected to be low-level and of short duration and the associated lost 
opportunities and capabilities not at a level that would impact 
reproduction or survival. For similar reasons (described above) the 
three estimated Level A harassment takes by PTS for this stock are 
unlikely to have any effects on the reproduction or survival of any 
individuals.
    Altogether, only a portion of the stock or DPS is impacted and any 
individual humpback whale is likely to be disturbed at a low-moderate 
level, with most animals exposed only once or twice, and minimized in 
biologically important areas. This low magnitude and severity of 
effects is not expected to result in impacts on the reproduction or 
survival of any individuals, nor are these harassment takes combined 
with the authorized mortality expected to adversely affect this stock 
through impacts on annual rates of recruitment or survival for the 
stock. For these reasons, we have determined, in consideration of all 
of the effects of the Navy's activities combined, that the authorized 
take will have a negligible impact on humpback whales.
    Sei whale (Nova Scotia stock)--This stock spans the northern East 
Coast and up to southern Newfoundland. There is no currently reported 
trend for the population and there are no specific issues with the 
status of the stock that cause particular concern (e.g., UMEs), 
although the species is listed as endangered under the ESA. 
Importantly, both the abundance and PBR are considered underestimated 
in the SAR, as discussed above. NMFS will authorize one mortality over 
the 5 years covered by this rule, or 0.2 mortality annually. With the 
addition of this 0.2 annual mortality, residual PBR is exceeded, which 
means the total human-caused mortality would exceed PBR by 0.3. 
However, if the PBR in the SAR reflected the actual abundance across 
the entire range of the stock, residual PBR would be significantly 
higher, and PBR would not be exceeded. Further, the ALWTRP Plan directs 
multiple efforts and requirements towards reducing mortality from 
commercial fishing (via gear modifications, area closures, and other 
mechanisms) and NOAA Law Enforcement has reported high compliance 
rates. Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated instances compared to 
the abundance within the U.S. EEZ and both in and outside of the U.S. 
EEZ, respectively, is 317 percent and 7 percent (Table 72). This 
information suggests that only a very small portion of individuals in 
the stock are likely impacted, but that there is likely some repeat 
exposure (several days within a year) of some subset of individuals 
within the U.S. EEZ if some animals spend extended time within the U.S. 
EEZ. Regarding the severity of those individual takes by Level B 
behavioral harassment, we have explained that the duration of any 
exposure is expected to be between minutes and hours (i.e., relatively 
short) and the received sound levels largely below 172 dB with a 
portion up to 178 dB (i.e., of a moderate or lower level, less likely 
to evoke a severe response). Also, the Navy implements time/area 
mitigation in the Northeast that minimizes major training exercises and 
total sonar hours in an area that significantly overlaps an important 
BIA feeding area for sei whales, which will reduce the severity of 
impacts to sei whales by reducing interference in feeding that could 
result in lost feeding opportunities or necessitate additional energy 
expenditure to find other good opportunities. Regarding the severity of 
TTS takes, we have explained that they are expected to be low-level and 
of short duration and the associated lost opportunities and 
capabilities not at a level that would impact reproduction or survival. 
For similar reasons (described above) the four estimated Level A 
harassment takes by PTS for this stock are unlikely to have any effects 
on the reproduction or survival of any individuals.
    Altogether, only a small portion of the stock is impacted and any 
individual sei whale is likely to be disturbed at a low-moderate level, 
with likely many animals exposed only once or twice and a subset 
potentially disturbed across a few days, minimized in biologically 
important areas. This low magnitude and severity of harassment effects 
is not expected to result in impacts on individual reproduction or 
survival, nor are these harassment takes combined with the authorized 
mortality expected to adversely affect this stock through impacts on 
annual rates of recruitment or survival. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible 
impact on sei whales.

[[Page 57232]]

Odontocetes
    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below, which are further 
divided into the following subsections: Sperm whales, dwarf sperm 
whales, and pygmy sperm whales; Dolphins and small whales; Beaked 
whales; and Harbor porpoise. These sub-sections include more specific 
information about the group, as well as conclusions for each stock 
represented.
    The majority of takes by harassment of odontocetes in the AFTT 
Study Area are caused by sources from the MF1 active sonar bin (which 
includes hull-mounted sonar) because they are high level sources at a 
frequency (1-10 kHz), which overlap a more sensitive portion (though 
not the most sensitive) of the MF hearing range, and of the sources 
expected to result in take, they are used in a large portion of 
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application). 
For odontocetes other than beaked whales or harbor porpoises (for which 
these percentages are indicated separately in their sections), most of 
the takes (97 percent) from the MF1 bin in the AFTT Study Area would 
result from received levels between 160 and 172 dB SPL. For the 
remaining active sonar bin types, the percentages are as follows: LF3 = 
98 percent between 142 and 160, MF4 = 97 percent between 136 and 160, 
MF5 = 98 percent between 124 and 148, and HF4 = 93 percent between 100 
and 148 dB SPL. These values may be derived from the information in 
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application 
(though they were provided directly to NMFS upon request). Based on 
this information, the majority of the takes by Level B behavioral 
harassment are expected to be low to sometimes moderate in nature, but 
still of a generally shorter duration.
    For all odontocetes, takes from explosives (Level B behavioral 
harassment, TTS, or PTS if present) comprise a very small fraction of 
those caused by exposure to active sonar. Take from exposure to air 
guns or pile driving is limited to small numbers of a few dolphin 
species (bottlenose, Atlantic spotted, and Clymene).
    The range of potential behavioral effects of sound exposure on 
marine mammals generally, and odontocetes specifically, has been 
discussed in detail previously. There are a couple of behavioral 
patterns that differentiate the likely impacts on odontocetes as 
compared to mysticetes. First, odontocetes echolocate to find prey, 
which means that they actively send out sounds to detect their prey. 
While there are many strategies for hunting, one common pattern, 
especially for deeper diving species, is many repeated deep dives 
within a bout, and multiple bouts within a day, to find and catch prey. 
As discussed above, there are many studies demonstrating the cessation 
of odontocete foraging dives in response to sound exposure. If enough 
foraging interruptions occur over multiple sequential days, and the 
individual either does not take in the necessary food, or must exert 
significant effort to find necessary food elsewhere, energy budget 
deficits can occur that could potentially result in impacts to 
reproductive success, such as increased cow/calf intervals (the time 
between successive calving). Alternately, many mysticetes rely on 
seasonal migratory patterns that position them in a geographic location 
at a specific time of the year to take advantage of ephemeral large 
abundances of prey (i.e., invertebrates or small fish, which they eat 
by the thousands), whereas odontocetes forage more homogeneously one 
fish or squid at a time, which means that if they are interrupted while 
feeding, it is often possible to find more prey relatively nearby.
    Because the majority of harassment take of odontocetes results from 
the sources in the MF1 bin (1-10 kHz), the vast majority of threshold 
shift caused by Navy sonar sources will typically occur in the range of 
2-20 kHz. This frequency range falls directly within the range of most 
odontocete vocalizations. However, odontocete vocalizations typically 
span a much wider range than this, and alternately, threshold shift 
from active sonar will often be in a narrower band (reflecting the 
narrower band source that caused it), which means that TTS incurred by 
odontocetes would typically only interfere with communication within a 
portion of an odontocete's range (if it occurred during a time when 
communication with conspecifics was occurring) and as discussed 
earlier, it would only be expected to be of a short duration and 
relatively small degree. Odontocete echolocation occurs predominantly 
at frequencies significantly higher than 20 kHz, though there may be 
some small overlap at the lower part of their echolocating range for 
some species, which means that there is little likelihood that 
threshold shift, either temporary or permanent would interfere with 
feeding behaviors. Many of the other critical sounds that serve as cues 
for navigation and prey (e.g., waves, fish, invertebrates) occur below 
a few kHz, which means that detection of these signals will not be 
inhibited by most threshold shift either. The low number of takes by 
threshold shifts that might be incurred by individuals exposed to 
explosives, pile driving, or air guns would likely be lower frequency 
(5 kHz or less) and spanning a wider frequency range, which could 
slightly lower an individual's sensitivity to navigational or prey 
cues, or a small portion of communication calls, for several minutes to 
hours (if temporary) or permanently. There is no reason to think that 
any of the individual odontocetes taken by TTS would incur these types 
of takes over more than a few days of the year (with the exception of 
North Atlantic Kogia, which are explicitly discussed below), at the 
most, and therefore they are unlikely to incur impacts on reproduction 
or survival.
    Sperm Whales, Dwarf Sperm Whales, and Pygmy Sperm Whales--In this 
section, building on the broader discussion above (for marine mammals, 
and odontocetes in particular), we bring together the discussion of the 
different types and amounts of take that different stocks will incur, 
the applicable mitigation for each stock, and the status of the stocks 
to support the negligible impact determinations for each stock. We have 
also previously described the unlikelihood of any masking or habitat 
impacts to any groups that would rise to the level of affecting 
individual fitness. The discussion in this section fairly narrowly 
focuses some information that applies specifically to the sperm whale 
group, and then because there are multiple stock-specific factors in 
relation to differential Level B harassment effects and authorized 
mortality, we break out specific findings into a few groups--North 
Atlantic sperm whales (with authorized mortality and one instance of 
tissue damage from explosives), Western North Atlantic dwarf and pygmy 
sperm whales, and GOMEX sperm, dwarf sperm and pygmy sperm whales 
(which have lower level magnitude of Level B harassment takes, but 
lingering effects from the DWH oil spill).
    In Table 73 below, for sperm whale, dwarf sperm whales, and pygmy 
sperm whales, we indicate the total annual mortality, Level A and Level 
B harassment, and a number indicating the instances of total take as a 
percentage of abundance.

[[Page 57233]]

[GRAPHIC] [TIFF OMITTED] TR14NO18.010

    As discussed above, the majority of Level B harassment behavioral 
takes of odontocetes, and thereby sperm whales, are expected to be in 
the form of low to occasionally moderate severity of a generally 
shorter duration. As mentioned earlier in this section, we anticipate 
more severe effects from takes when animals are exposed to higher 
received levels or for longer durations. Occasional milder Level B 
behavioral harassment is unlikely to cause long-term consequences for 
individual animals or populations, even if some smaller subset of the 
takes are in the form of a longer (several hours or a day) and more 
moderate response. However, impacts across higher numbers of days, 
especially where sequential, have an increased probability of resulting 
in energetic deficits that could accrue to effects on reproductive 
success.
    We note here that Kogia, as an HF-sensitive species, has a lower 
PTS threshold than all other groups and therefore is likely to 
experience larger amounts of TTS and PTS, and NMFS will authorize 
higher numbers. However, Kogia whales are still likely to avoid sound 
levels that would cause higher levels of TTS (greater than 20 dB) or 
PTS. Even though the number of takes is high, all of the reasons 
described above for why TTS and PTS are not expected to impact 
reproduction or survival still apply. The Navy will implement a 
mitigation area that will avoid or reduce impacts to sperm whales 
(Physeter microcephalus). Nearly the entire important sperm whale 
habitat (Mississippi Canyon) is included in the GOMEX Planning 
Awareness Mitigation Areas where the Navy will not conduct MTEs, which 
are more likely to have more severe effects because of their multiple 
platforms, hull-mounted sonar, and longer-durations.
    Below we compile and summarize the information that supports our 
determination that the Navy's activities will not adversely impact 
recruitment or survival for any of the affected stocks addressed in 
this section.
    Sperm whale (North Atlantic stock)--This stock spans the East Coast 
out into oceanic waters well beyond the U.S. EEZ. There is no currently 
reported trend for the population and, although listed as endangered 
under the ESA, there are no specific issues with the status of the 
stock that cause particular concern (e.g., UMEs). NMFS will authorize 
one mortality, which, when added to the other forward-projected 
mortality does not exceed the PBR insignificance threshold. One Level A 
harassment take by tissue damage will also be authorized which, as 
noted previously, could range in impact from minor to something just 
less than M/SI that could seriously impact fitness. However, given the 
Navy's mitigation and the sperm whale's large size, which improves 
detection by Lookouts, exposure at the closer to the source and more 
severe end of the spectrum is less likely and we cautiously assume some 
moderate impact for this single take that could lower one individual's 
fitness within the year such that a female (assuming a 50 percent 
chance of it being a female) might forego reproduction for one year. As 
noted previously, foregone reproduction has less of an impact on 
population rates than death (especially for one year) and one instance 
would not be expected to impact annual rates of recruitment or 
survival, even if it were a female. Regarding the magnitude of Level B 
harassment takes (TTS and behavioral disruption), the number of 
estimated instances of harassment compared to the abundance within the 
U.S. EEZ and both in and outside of the U.S. EEZ, respectively, is 544 
percent and 41 percent (Table 73). This information, combined with the 
known range of the stock, suggests that something less than a quarter 
of the individuals in the stock are likely impacted, but that there is 
likely some repeat exposure (2-11 days within a year) of some subset of 
individuals that remain within the U.S. EEZ for an extended time. 
Regarding the severity of those individual takes by Level B behavioral 
harassment, we have explained that the duration of any exposure 
response is expected to be between minutes and hours (i.e., relatively 
short) and the received sound

[[Page 57234]]

levels largely between 160 and 172 dB (i.e., of a lower, to 
occasionally moderate, level). Regarding the severity of TTS takes, as 
described previously they are expected to be low-level and of short 
duration and the associated lost opportunities and capabilities not at 
a level that would impact reproduction or survival. For similar reasons 
(described above) three estimated Level A harassment takes by PTS for 
this stock is unlikely to have any effects on the reproduction or 
survival of any individuals.
    Altogether, only a small portion of the stock is impacted and any 
individual sperm whale is likely to be disturbed at a low-moderate 
level, with the majority of animals likely disturbed once or not at 
all, and a subset potentially disturbed across 2-11 likely non-
sequential days. Even for an animal disturbed at the high end of this 
range (11 days over a year), given the low to moderate impact from each 
incident, and the fact that few days with take would likely be 
sequential, no impacts to individual fitness are expected. This low to 
occasionally moderate magnitude and severity of effects is not expected 
to result in impacts on reproduction or or survival, and nor are these 
harassment takes combined with the authorized mortality expected to 
adversely affect the stock through annual rates of recruitment or 
survival. For these reasons, we have determined, in consideration of 
all of the effects of the Navy's activities combined, that the 
authorized take will have a negligible impact on North Atlantic sperm 
whales.
    Sperm whale, dwarf sperm whale, and pygmy sperm whale (GOMEX 
stocks)--These stocks suffer from lingering health issues from the DWH 
oil spill (6-7 percent of individuals of these stocks with adverse 
health effects), which means that some could be more susceptible to 
exposure to other stressors, and negative population effects (21-42 
years until the DWH oil-injured population trajectory is projected to 
catch up with the baseline population trajectory (i.e., in the absence 
of DWH)), reported as years to recovery. Neither mortality nor tissue 
damage from explosives is anticipated or authorized for any of these 
three stocks, and sperm whales are not expected to incur PTS. Regarding 
the magnitude of Level B harassment takes (TTS and behavioral 
disruption), the number of estimated instances of harassment compared 
to the abundance is 54-78 percent (Table 73), which suggests that for 
each of the three species/stocks either this percentage of the 
individuals in these stocks are all taken by harassment on a single 
day, or a small subset may be taken on a few days. Regarding the 
severity of those individual takes by Level B behavioral harassment, we 
have explained that the duration of any exposure response is expected 
to be between minutes and hours (i.e., relatively short) and the 
received sound levels are largely between 160 and 172 dB (i.e., of a 
lower level, less likely to evoke a severe response). Additionally, the 
Navy is implementing mitigation areas for sperm whales that are 
expected to reduce impacts in important feeding areas, further 
lessening the severity of impacts. Regarding the severity of TTS takes, 
as described previously they are expected to be low-level, of short 
duration, and mostly not in a frequency band that would be expected to 
interfere significantly with conspecific communication, echolocation, 
or other important low-frequency cues. Also, there is no reason to 
believe that any individual would incur these TTS takes more than a few 
days in a year, and the associated lost opportunities and capabilities 
would not be expected to impact reproduction or survival. For these 
same reasons (low level and frequency band), while a small permanent 
loss of hearing sensitivity may include some degree of energetic costs 
for compensating or may mean some small loss of opportunities or 
detection capabilities, 70 estimated Level A harassment takes by PTS 
for the two Kogia stocks in the GOMEX would be unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
would interfere with reproductive success or survival of any 
individuals.
    Altogether, only a portion of these stocks are impacted and any 
individual sperm, dwarf sperm, or pygmy sperm whale is likely to be 
disturbed at a low to occasionally moderate level and no more than a 
few days per year. Even given the fact that some of the affected 
individuals may have compromised health, there is nothing to suggest 
that such a low magnitude and severity of effects would result in 
impacts on the reproduction or survival of individuals, much less 
annual rates of recruitment or survival for any of the stocks. For 
these reasons, we have determined, in consideration of all of the 
effects of the Navy's activities combined, that the authorized take 
will have a negligible impact on the GOMEX stocks of sperm whales, 
dwarf sperm whales, and pygmy sperm whales.
    Pygmy and Dwarf sperm whales (Western North Atlantic stocks)--These 
stocks span the deeper waters of the East Coast north to Canada and out 
into oceanic waters beyond the U.S. EEZ. There is no currently reported 
trend for these populations and there are no specific issues with the 
status of the stocks that cause particular concern. Neither mortality 
nor tissue damage from explosives is anticipated or authorized for 
these stocks. Regarding the magnitude of Level B harassment takes (TTS 
and behavioral disruption), the number of estimated instances of 
harassment compared to the abundance within the U.S. EEZ and both in 
and outside of the U.S. EEZ, respectively, is 2,105 percent and 360 
percent (Table 73). This information, combined with the known range of 
the stock, suggests that while not all of the individuals in these 
stocks will most likely be taken (because they span well into oceanic 
waters) of those that are taken, most will be taken over several 
repeated days (though likely not sequential) and some subset that 
spends extended time within the U.S. EEZ will likely be taken over a 
larger amount of days (likely 15-42 days during a year), some of which 
could be sequential. Regarding the severity of the individual takes by 
Level B behavioral harassment, we have explained that the duration of 
any exposure response is expected to be between minutes and hours (and 
likely not more than 24 hours) and the received sound levels are 
largely between 160 and 172 dB (i.e., of a lower level, less likely to 
evoke a severe response). Additionally, while interrupted feeding bouts 
are a known response and concern for odontocetes, we also know that 
there are often viable alternative habitat options in the relative 
vicinity. Regarding the severity of TTS takes, as described previously 
they are expected to be low-level, of short duration and mostly not in 
a frequency band that would be expected to interfere significantly with 
conspecific communication, echolocation, or other important low-
frequency cues. Also, there is no reason to believe that any individual 
would incur these TTS takes more than a few days in a year, and the 
associated lost opportunities and capabilities would not be expected to 
impact reproduction or survival. For these same reasons (low level and 
frequency band), while a small permanent loss of hearing sensitivity 
may include some degree of energetic costs for compensating or may mean 
some small loss of opportunities or detection capabilities, at the 
expected scale the 94 estimated Level A harassment takes by PTS for the 
two Kogia stocks in the North Atlantic would be unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
would interfere with

[[Page 57235]]

reproductive success or survival of any individuals.
    Altogether, most of the stock will likely be taken (at a low to 
occasionally moderate level) over several days a year, and some smaller 
portion of the stock is expected to be taken on a relatively moderate 
to high number of days across the year, some of which could be 
sequential days. Though the majority of impacts are expected to be of a 
lower to sometimes moderate severity, the larger number of takes (in 
total and for certain individuals) makes it more likely 
(probabilistically) that a small number of individuals could be 
interrupted during foraging in a manner and amount such that impacts to 
the energy budgets of females (from either losing feeding opportunities 
or expending considerable energy to find alternative feeding options) 
could cause them to forego reproduction for a year (energetic impacts 
to males are generally meaningless to population rates unless they 
cause death, and it takes extreme energy deficits beyond what would 
ever be likely to result from these activities to cause the death of an 
adult marine mammal). As noted previously, however, foregone 
reproduction (especially for one year) has far less of an impact on 
population rates than mortality and a small number of instances of 
foregone reproduction would not be expected to adversely impact annual 
rates of recruitment or survival, especially given that PBR for both of 
these stocks is 21. For these reasons, in consideration of all of the 
effects of the Navy's activities combined, we have determined that the 
authorized take will have a negligible impact on the West North 
Atlantic stocks of pygmy and dwarf sperm whales.
    Dolphins and Small Whales--This section builds on the broader 
discussion above brings together the discussion of the different types 
and amounts of take that different stocks will incur, the applicable 
mitigation for each stock, and the status of the stocks to support the 
negligible impact determinations for each stock. None of these species 
are listed as endangered or threatened under the ESA. We have also 
described the unlikelihood of any masking or habitat impacts to any 
groups that would rise to the level of affecting individual fitness. 
The discussion below focuses on additional information that is specific 
to the dolphin taxa (in addition to the general information on 
odontocetes provided above, which is relevant to these species) and to 
support the summarized group-specific conclusions in the subsequent 
sections. Because of several factors, we break out specific findings 
into four groups: The two GOMEX (GOM) stocks with authorized mortality, 
the two Western North Atlantic stocks with authorized mortality, the 
remaining GOMEX stocks (which have a lower magnitude of Level B 
harassment takes, but also health issues related to the DWH oil spill), 
and the remaining Western North Atlantic stocks.
    In Table 74 below, for dolphins and small whales, we indicate the 
total annual mortality, Level A and Level B harassment, and a number 
indicating the instances of total take as a percentage of abundance.
BILLING CODE 3510-22-P

[[Page 57236]]

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[[Page 57237]]


[GRAPHIC] [TIFF OMITTED] TR14NO18.012

BILLING CODE 3510-22-C

    As described above, the large majority of Level B behavioral 
harassments to odontocetes, and thereby dolphins and small whales, from 
hull-mounted sonar (MF1) in the AFTT Study Area would result from 
received levels between 160 and 172 dB SPL. Therefore, the majority of 
Level B harassment takes are expected to be in the form of low to 
occasionally moderate responses of a generally shorter duration. As 
mentioned earlier in this section, we anticipate more severe effects 
from takes when animals are exposed to higher received levels. 
Occasional milder occurrences of Level B behavioral harassment are 
unlikely to cause long-term consequences for individual animals or 
populations that have any effect on reproduction or survival. Some 
behavioral responses could be in the form of a longer (several hours or 
a day) and more moderate response, but because they are not expected to 
be repeated over more than several sequential days at the most, impacts 
to reproduction or survival for most animals are not anticipated. Even 
where a few animals could experience effects on reproduction, for the 
reasons explained below this would not affect rates of recruitment or 
survival.
    Research and observations show that if delphinids 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. 
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. Some dolphin species (the more 
surface-dwelling taxa--typically those with ``dolphin'' in the common 
name, except Risso's dolphin, such as bottlenose dolphins, spotted 
dolphins, common dolphins, spinner dolphins, rough-toothed dolphins, 
etc), especially those residing in more industrialized or busy areas, 
have demonstrated more tolerance for disturbance and loud sounds and 
many of these species are known to approach vessels to bow-ride. These 
species are often considered generally less sensitive to disturbance. 
Deep-diving dolphins that reside in deeper waters and generally have 
fewer interactions with human activities are more likely to demonstrate 
more typical avoidance reactions and foraging interruptions as 
described above in the odontocete overview.
    BIAs have been identified for several small and resident 
populations of bottlenose dolphin in the GOMEX and on the East Coast, 
but these identified areas are within bays and estuaries where the Navy 
does not use explosives and conducts limited activities by sonar and 
other transducers. For example, for the small resident population of 
Northern North Carolina Estuarine dolphins, for which there is a BIA, 
one-third of the takes are from sub-navigation and ship object 
avoidance, which are less impactful than sonar activity and shorter in 
duration (by about 30 min or less). The area of activity is at the 
northern edge of this BIA, which further reduces the possibility of 
modeled takes that would result in impacts that could affect 
reproduction or survival. The other two-thirds of the takes for the 
Northern North Carolina Estuarine dolphins are from Civilian Port 
Defense, which would occur at most only once in five years in the 
vicinity of that BIA. Similarly, for the small resident population of 
Indian River Lagoon Estuarine system bottlenose dolphins, for which 
there is also a BIA, all of the Level B harassment takes are also from 
the less impactful sonar activity of sub-navigation and ship object 
avoidance and are events of short duration (approximately 30 min). Two 
small and resident populations of bottlenose dolphin for which there 
are two BIAs (Northern North Carolina Estuarine System and Southern 
North Carolina Estuarine System) may be impacted during pile driving 
activities for the Elevated Causeway System at Marine Corps Base Camp 
Lejeune, North Carolina; however, only one modeled take of a Northern 
North Carolina Estuarine System bottlenose dolphin is predicted. There 
are no expected takes from any activities to the small resident 
population of Southern North Carolina Estuarine System bottlenose 
dolphins (for which there is a BIA) and only one expected take to the 
small resident population of Mississippi Sound bottlenose dolphins (for 
which there is a BIA) from sonar. Therefore, for these small resident 
populations of bottlenose dolphins, impacts from Level B harassment are 
expected to be short-term and minor, and mostly all in the form of 
behavioral disturbance. Abandonment of the area, or any other response 
that could affect reproduction or survival, is not anticipated for the 
small and resident bottlenose dolphin populations stocks with BIAs from 
the Navy's training and testing activities.
    Animals from one of these stocks with a BIA, the bottlenose dolphin 
of Barataria Bay, Louisiana, which is still showing persistent impacts 
from the Cetacean UME in the Northern GOMEX, were recently fitted with 
satellite-linked transmitters, which showed that most dolphins remained 
within the bay, while those that entered nearshore coastal waters 
remained within 1.75 km (Wells et al., 2017). With the Navy's 
activities very limited in this type of habitat, the Navy is not 
conducting training or testing where Barataria Bay dolphins inhabit and 
therefore no takes will occur to this stock.
    Below we synthesize and summarize the information that supports our 
determination that the Navy's activities will not adversely impact 
recruitment or survival for any of the affected stocks addressed in 
this section:
    Atlantic white-sided dolphin and short-beaked common dolphin 
(Western North Atlantic stocks)--There is no currently reported trend 
for these stocks and there are no specific issues with the status of 
these stocks that cause particular concern (e.g., UMEs). We have 
authorized one and six mortalities over the course of five years for 
these two stocks, respectively. Given the large residual PBR values for 
these stocks (248 and 148), this number of mortalities falls well under 
the insignificance threshold. Some Level A harassment take by tissue 
damage from explosives has also been authorized for these stocks (3 and 
36, respectively). As noted previously, tissue damage effects could 
range in impact from minor to

[[Page 57238]]

something just less than M/SI that could seriously impact fitness. 
However, given the Navy's mitigation, which makes exposure at the 
closer to the source and more severe end of the spectrum less likely, 
we cautiously assume some moderate impact for this category of take 
that could lower an individual's fitness within the year such that 
females (assuming a 50 percent chance that a take is a female) might 
forego reproduction for one year. As noted previously, foregone 
reproduction has less of an impact on population rates than death 
(especially for one year) and the number of takes anticipated for each 
stock would not be expected to impact annual rates of recruitment or 
survival, even if all of the takes were females (which would be highly 
unlikely), especially given the high residual PBRs of these stocks (in 
other words, if the stocks can absorb those numbers of mortalities 
without impacting ability to approach OSP, clearly they can absorb the 
significantly lesser effects of a one-year delay in calving).
    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated instances of harassment 
compared to the abundance within the U.S. EEZ and both in and outside 
of the U.S. EEZ for these four stocks, respectively, is 308-777 percent 
and 34-110 percent (Table 74). This information suggests that some 
portion of these stocks are likely not taken at all, but that there is 
likely some repeat exposure (2-15 days within a year) of some subset of 
individuals. Regarding the severity of those individual takes by Level 
B behavioral harassment, we have explained that the duration of any 
exposure response is expected to be between minutes and hours (i.e., 
relatively short) and the received sound levels largely below 172 dB 
(i.e., of a lower level, less likely to evoke a severe response). 
Additionally, while we do not have a specific reason to expect that 
these takes would occur sequentially on more than several days in row 
or be more severe in nature, the probability of this occurring 
increases the higher the total take numbers. Given the higher number of 
takes and the associated abundances (especially for short-beaked common 
dolphin) we acknowledge the possibility that some smaller subset of 
individuals could experience behavioral disruption of a degree that 
impacts energetic budgets such that reproduction could be delayed for a 
year. However, as discussed above in regards to PBR and Level A 
harassment by tissue damage, and in consideration of the potential 
reproductive effects of tissue damage and these takes by Level B 
behavioral harassment, and in combination with the authorized 
mortality--this degree of effects on a small subset of individuals is 
still not expected to adversely affect rates of recruitment or 
survival. Regarding the severity of TTS takes, as described previously 
they are expected to be low-level, of short duration, and not in a 
frequency band that would be expected to significantly interfere with 
dolphin communication, or echolocation or other important low-frequency 
cues--and, therefore, the associated lost opportunities and 
capabilities would not be expected to impact reproduction or survival. 
For these same reasons (low level and the likely frequency band), while 
a small permanent loss of hearing sensitivity may include some degree 
of energetic costs for compensating or may mean some small loss of 
opportunities or detection capabilities, the estimated Level A 
harassment takes by PTS for the two dolphin stocks addressed here (7 
and 101, respectively) would be unlikely to impact behaviors, 
opportunities, or detection capabilities to a degree that would 
interfere with reproductive success or survival of any individuals.
    Altogether, individual dolphins are likely to be taken at a low 
level, with some animals likely taken once or not at all, many 
potentially disturbed across 2-15 predominantly non-sequential days, 
and a small number potentially experiencing a level of effects that 
could curtail reproduction for one year. This magnitude and severity of 
effects (especially given the status of the stocks), including the 
consideration or the authorized mortality, is not expected to result in 
impacts on annual rates of recruitment or survival for either of the 
stocks. For these reasons, we have determined, in consideration of all 
of the effects of the Navy's activities combined, that the authorized 
take will have a negligible impact on these two Western North Atlantic 
stocks of dolphins.
    Pantropical spotted dolphin and spinner dolphin (GOM stocks)--As 
described above, the GOMEX dolphin stocks indicated in Table 71 suffer 
from lingering health issues resulting from the DWH oil spill (7 and 17 
percent of individuals of these stocks, respectively, have adverse 
health effects), which means that some of them could be more 
susceptible to exposure to other stressors, as well as negative 
population effects (predicting it will take up to 39 and 105 years, 
respectively, for stocks to return to population growth rates predicted 
in the absence of DWH effects). We have authorized one mortality over 
the course of five years for each of these two stocks, respectively. 
Given the large residual PBR values for these stocks (402 and 62, 
respectively), this number of mortalities falls well under the 
insignificance threshold. Some Level A harassment take by tissue damage 
from explosives has also been authorized for these stocks (6 and 14, 
respectively). As noted previously, tissue damage effects could range 
in impact from minor to something just less than M/SI that could 
seriously impact fitness. However, given the Navy's mitigation, which 
makes exposure at the closer to the source and more severe end of the 
spectrum less likely, we cautiously assume some moderate impact for 
this category of take that could lower an individual's fitness within 
the year such that females (assuming a 50 percent chance that a take is 
a female) might forego reproduction for one year. As noted previously, 
foregone reproduction has less of an impact on population rates than 
death (especially for one year) and the number of takes anticipated for 
each stock would not be expected to impact annual rates of recruitment 
or survival, even if all of the takes were females (which would be 
highly unlikely), especially given the high residual PBRs of these 
stocks (in other words, if the stocks can absorb one mortality each 
without impacting ability to approach OSP, they can absorb the 
significantly lesser effect of a one-year delay in calving).
    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated instances of harassment 
compared to the abundance is 32 percent and 60 percent, respectively, 
reflecting that only a subset of each stock will be taken by Level B 
behavioral harassment within a year. Of that subset, those taken will 
likely be taken one time, but if taken more than that, the 2 or 3 days 
would not likely be sequential (Table 74). Regarding the severity of 
those individual takes by Level B behavioral harassment, we have 
explained that the duration of any exposure response is expected to be 
between minutes and hours (i.e., relatively short) and the received 
sound levels largely below 172 dB (i.e., of a lower to occasionally 
moderate severity).
    Regarding the severity of TTS takes, as described previously they 
are expected to be low-level, of short duration, and not in a frequency 
band that would be expected to significantly interfere with dolphin 
communication, or echolocation or other important low-frequency cues. 
Therefore, the associated lost opportunities and

[[Page 57239]]

capabilities are not expected to impact reproduction or survival. For 
these same reasons (low level and the likely frequency band), while a 
small permanent loss of hearing sensitivity may include some degree of 
energetic costs for compensating or may mean some small loss of 
opportunities or detection capabilities, the estimated Level A 
harassment takes by PTS for the dolphin stocks addressed here (15 and 
31, respectively) would be unlikely to impact behaviors, opportunities, 
or detection capabilities to a degree that would interfere with 
reproductive success or survival of any individuals.
    Altogether, any individual dolphin is likely to be taken at a low 
to occasionally moderate level, with most animals likely not taken at 
all and with a subset of animals being taken up to a few non-sequential 
days. Even given the fact that some of the affected individuals may 
have compromised health, there is nothing to suggest that such a low 
magnitude and severity of effects, including the potential tissue 
damage, would result in impacts on annual rates of recruitment or 
survival for either of these two stocks. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible 
impact on the GOMEX stocks of pantropical spotted dolphins and spinner 
dolphins.
    Western North Atlantic dolphin stocks (all stocks in Table 74 
except Atlantic white-sided dolphin and short-beaked common dolphin)--
There are no specific issues with the status of these stocks that cause 
particular concern (e.g., UMEs). No mortality is expected nor has it 
been authorized for these stocks. For some of these stocks, some tissue 
damage has been authorized (0 for many, 1-9 for others). As noted 
previously, tissue damage effects could range in impact from minor to 
something just less than M/SI that could seriously impact fitness. 
However, given the Navy's mitigation, which makes exposure at the 
closer to the source and more severe end of the spectrum less likely, 
we cautiously assume some moderate impact for all these takes that 
could lower an individual's fitness within the year such that this 
small number of females (assuming a 50 percent chance of being a 
female) might forego reproduction for one year. As noted previously, 
foregone reproduction has less of an impact on population rates than 
death (especially for one year) and a few instances would not be 
expected to impact annual rates of recruitment or survival, even if all 
of the takes were females (which would be highly unlikely), especially 
given the higher residual PBRs, where known (the majority of stocks). 
For stocks with no calculated residual PBR or where abundance is 
unknown, the limited information available on population size indicates 
that the very low number of females who might forego reproduction would 
have no effect on rates of recruitment or survival. Regarding the 
magnitude of Level B harassment takes (TTS and behavioral disruption), 
the number of estimated instances of harassment compared to the 
abundance ranges up to 984 percent inside the U.S. EEZ (though some are 
significantly lower) and is generally much lower across the whole range 
of most stocks, reflecting that for many stocks only a subset of the 
stock will be impacted--although alternately for a few of the smaller 
bay stocks all individuals are expected to be taken across multiple 
days (Table 74). Generally, individuals of most stocks (especially 
bottlenose dolphins) might be taken no more than several times each, 
while the other species in this group will only accrue takes to a 
portion of the stock, but individuals might be taken across 2-20 days 
within a year. Regarding the severity of those individual takes by 
Level B behavioral harassment, we have explained that the duration of 
any exposure response is expected to be between minutes and hours 
(i.e., relatively short) and the received sound levels largely below 
172 dB (i.e., of a lower level, less likely to evoke a severe 
response). While we do not have reason to expect that these takes would 
occur sequentially on more than several days in a row or be more severe 
in nature, the probability of this occurring increases the higher the 
total take numbers. Given higher percentages when compared to 
abundances, and especially where the absolute number of takes is higher 
(e.g., spinner dolphin), we acknowledge the possibility that some 
smaller subset of individuals (especially in the larger stocks with 
higher total take numbers) could experience behavioral disruption of a 
degree that impacts energetic budgets such that reproduction could be 
delayed for a year. However, as discussed above in regards to tissue 
damage, and in consideration of the potential reproductive effects of 
Level A harassment by tissue damage and these takes by Level B 
behavioral harassment, this degree of effects on a small subset of 
individuals is still not expected to adversely affect rates of 
recruitment or survival. For the smaller Estuarine stocks with the 
potential repeated days of disturbance, we note that as described 
earlier, the activities that Navy conducts in inland areas (not MTEs, 
etc.) are expected to generally result in lower severity responses, 
further decreasing the likelihood that they would accrue to effects on 
reproduction or survival, even if accrued over several sequential days.
    Regarding the severity of TTS takes, as described previously they 
are expected to be low-level, of short duration, and not in a frequency 
band that would be expected to significantly interfere with dolphin 
communication, or echolocation or other important low-frequency cues. 
Therefore, the associated lost opportunities and capabilities would not 
be expected to impact reproduction or survival. For these same reasons 
(low level and the likely frequency band), while a small permanent loss 
of hearing sensitivity may include some degree of energetic costs for 
compensating or may mean some small loss of opportunities or detection 
capabilities, the estimated Level A harassment takes by PTS for the 
dolphin stocks addressed here (between 1 and 77) would be unlikely to 
impact behaviors, opportunities, or detection capabilities to a degree 
that would interfere with reproductive success or survival of any 
individuals.
    Altogether, any individual dolphin is likely taken at a low to 
occasionally moderate level, with some animals likely taken once or not 
at all, and a subset potentially disturbed across 2-20 predominantly 
non-sequential days, and a small number potentially experiencing a 
level of effects that could curtail reproduction for one year. The 
magnitude and severity of effects described is not expected to result 
in impacts on annual rates of recruitment or survival for any of the 
stocks. For these reasons, we have determined, in consideration of all 
of the effects of the Navy's activities combined, that the authorized 
take will have a negligible impact on these Western North Atlantic 
stocks of dolphins.
    GOMEX dolphin stocks (all of the stocks indicated in Table 74 
except Pantropical spotted dolphin and spinner dolphin)--As described 
above, the GOMEX stocks indicated in Table 71 suffer from lingering 
health issues resulting from the DWH oil spill (3-30 percent of 
individuals of these stocks have adverse health effects), which means 
that some of them could be more susceptible to exposure to other 
stressors, as well as negative population effects (predicting it will 
take up to 76 years, with number varying across stocks, for stocks to 
return to population growth rate e predicted in the absence of DWH 
effects). Of note, the Northern Coastal bottlenose dolphin adverse

[[Page 57240]]

effect statistics are about twice as high as the others (i.e., all 
other stocks are below 17 percent). No mortality is authorized for 
these stocks, however a few Level A harassment takes by tissue damage 
from explosives (zero for most, 1-2 for a few, and 6 for the Atlantic 
spotted dolphin stock) are authorized. As noted previously, tissue 
damage effects could range in impact from minor to something just less 
than M/SI that could seriously impact fitness. However, given the 
Navy's mitigation, which makes exposure at the closer to the source and 
more severe end of the spectrum less likely, we cautiously assume some 
moderate impact for these Level A harassment takes that could lower an 
individual's fitness within the year such that a female (assuming a 50 
percent chance of being a female) might forego reproduction for one 
year. As noted previously, foregone reproduction has less of an impact 
on population rates than death (especially for one year) and a few 
instances, even up to six, would not be expected to impact annual rates 
of recruitment or survival, even if all of the takes were of females 
(which is highly unlikely).
    Regarding the magnitude of Level B harassment takes (TTS and 
behavioral disruption), the number of estimated instances of harassment 
compared to the abundance ranges up to 177 percent, but is generally 
much lower for most stocks, reflecting that generally only a subset of 
each stock will be taken, with those in the subset taken only a few 
non-sequential days of the year (Table 74). Regarding the severity of 
those individual takes by Level B behavioral harassment, we have 
explained that the duration of any exposure response is expected to be 
between minutes and hours (i.e., relatively short) and the received 
sound levels largely below 172 dB (i.e., of a lower to occasionally 
moderate severity).
    Regarding the severity of TTS takes, as described previously they 
are expected to be low-level, of short duration, and not in a frequency 
band that would be expected to significantly interfere with dolphin 
communication, or echolocation or other important low-frequency cues. 
Therefore, the associated lost opportunities and capabilities would not 
be expected to impact reproduction or survival. For these same reasons 
(low level and the likely frequency band), while a small permanent loss 
of hearing sensitivity may include some degree of energetic costs for 
compensating or may mean some small loss of opportunities or detection 
capabilities, the estimated Level A harassment takes by PTS for the 
dolphin stocks addressed here (all 3 or below, with the exception of 
three stocks with much larger abundances with 4, 8, and 15 PTS takes) 
would be unlikely to impact behaviors, opportunities, or detection 
capabilities to a degree that would interfere with reproductive success 
or survival of any individuals.
    Altogether, any individual dolphin is likely to be taken at a low 
to occasionally moderate level, with many animals likely not taken at 
all and with a subset of animals being taken up to a few times. A very 
small number could potentially experience tissue damage that could 
curtail reproduction for one year. Even given the fact that some of the 
affected individuals may have compromised health, there is nothing to 
suggest that such a low magnitude and severity of effects would result 
in impacts on annual rates of recruitment or survival for any of the 
GOMEX stocks indicated in Table 74. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible 
impact on these GOMEX stocks of dolphins.
    Harbor Porpoise--In this section, we build on the broader 
Odontocete discussion above (i.e., that information applies to harbor 
porpoises as well), except where we offer alternative information about 
the received levels for harbor porpoise Level B behavioral harassment. 
We bring together the discussion of the different types and amounts of 
take that the stock will incur, the applicable mitigation for the 
stock, and the status of the stock to support the negligible impact 
determination. Harbor porpoises are not listed as endangered or 
threatened under the ESA. The discussion below focuses on additional 
information that is specific to harbor porpoises (in addition to the 
general information on odontocetes provided above, which is relevant to 
this species) to support the summarized conclusion for this stock. We 
have also described previously the unlikelihood of any masking or 
habitat impacts to harbor porpoises that would affect reproduction or 
survival.
    In Table 75, below for porpoises, we indicate the total annual 
mortality, Level A and Level B harassment, and a number indicating the 
instances of total take as a percentage of abundance. Since the 
proposed rule, the Navy has removed one of its testing activities in 
the Northeast Range Complex (four events--USWT), which decreased the 
number of Level B harassment takes by approximately 10,000 takes 
annually for harbor porpoise.

[[Page 57241]]

[GRAPHIC] [TIFF OMITTED] TR14NO18.013

    Note that this paragraph provides specific information that is in 
lieu of the parallel information provided for odontocetes as a whole. 
The majority of takes by harassment of harbor porpoises in the AFTT 
Study Area are caused by sources from the MF1 active sonar bin (which 
includes hull-mounted sonar) because they are high level sources at a 
frequency (1-10 kHz), which overlaps a more sensitive portion (though 
not the most sensitive) of the HF hearing range, and of the sources 
expected to result in take, they are used in a large portion of 
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application). 
Most of the takes (88 percent) from the MF1 bin in the AFTT Study Area 
would result from received levels between 154 and 166 dB SPL. For the 
remaining active sonar bin types, the percentages are as follows: LF3 = 
98 percent between 136 and 154, MF4 = 95 percent between 130 and 148, 
MF5 = 93 percent between 118 and 136, and HF4 = 96 percent between 118 
and 148 dB SPL. These values may be derived from the information in 
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application 
(though they were provided directly to NMFS upon request).
    Harbor porpoises have been shown to be particularly 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 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). Harbor 
porpoises may startle and temporarily leave the immediate area of the 
training or testing until after the event ends. Accordingly, harbor 
porpoises have been assigned a lower Level B behavioral harassment 
threshold, i.e., a more distant distance cutoff (40 km for high source 
level, 20 km for moderate source level) and, as a result, the number of 
harbor porpoise taken by Level B behavioral harassment through exposure 
to LFAS/MFAS/HFAS in the AFTT Study Area is generally higher than the 
other species. Given the levels they are exposed to and their 
sensitivity, some responses would be of a lower severity, but many 
would likely be considered moderate. As mentioned earlier in the 
odontocete overview, we anticipate more severe effects from takes when 
animals are exposed to higher received levels or sequential days of 
impacts; occasional low to moderate behavioral reactions are unlikely 
to affect reproduction or survival. Some takes by Level B behavioral 
harassment could be in the form of a longer (several hours or a day) 
and more moderate response, but unless they are repeated over more than 
several sequential days, impacts to reproduction or survival for most 
animals are not anticipated. Even where some smaller number of animals 
could experience effects on reproduction (which could happen to a small 
number), for the reasons explained below this would not affect rates of 
recruitment or survival, especially given the status of the stock.
    A BIA was identified for this small and resident population of 
harbor porpoises by LaBrecque et al. (2015a, 2015b). The population 
straddles the Northern border of the U.S. EEZ and AFTT Study Area, with 
perhaps approximately half located inside the border (noting that BIAs 
were only identified within the U.S. EEZ, so the whole BIA is in the 
AFTT Study Area). Navy testing activities that use sonar and other 
transducers could occur year round within the Northeast Range Complexes 
in the vicinity of the BIA. However, the harbor porpoise BIA is 
included in the Gulf of Maine Planning Awareness Mitigation Area where 
the Navy will not plan MTEs (Composite Training Unit or Fleet/
Sustainment Exercises) and will not conduct more than 200 hrs of hull-
mounted MFAS per year, both of which reduce the likely severity of 
potential Level B harassment by behavioral disturbance (e.g., it is 
less likely that harbor porpoises would be displaced from the preferred 
habitat in the BIA and thereby suffer effects more likely to impact 
reproduction or survival).
    In conclusion, the Gulf of Maine/Bay of Fundy stock of harbor 
porpoise is found predominantly in northern U.S. coastal waters (<150 m 
depth) and up into Canada's Bay of Fundy. No mortality or tissue damage 
by explosives are anticipated or authorized for this stock and there 
are no specific issues with the status of the stock that cause 
particular concern (e.g., UMEs). Regarding the magnitude of Level B

[[Page 57242]]

harassment takes (TTS and behavioral disruption), the number of 
estimated instances compared to the abundance within the U.S. EEZ and 
both in and outside of the U.S. EEZ, respectively, is 941 percent and 
80 percent (Table 75). This information, combined with the known range 
of the stock, suggests that only a portion of the individuals in the 
stock are likely impacted (i.e., notably less than 80 percent given the 
likely repeats; in other words more than 20 percent taken zero times), 
but that there would likely be some amount of repeat exposures across 
days (perhaps 6-19 days within a year) for some subset of individuals 
that spend extended times within the U.S. EEZ. Regarding the severity 
of those individual takes by Level B behavioral harassment, the 
duration of any exposure response is expected to be from minutes to 
hours and not likely exceeding 24 hrs, and the received sound levels of 
the MF1 bin are largely between 154 and 166 dB, which, for a harbor 
porpoise (which have a lower Level B behavioral harassment threshold) 
would mostly be considered a moderate level.
    Regarding the severity of TTS takes, as described previously they 
are expected to be low-level, of short duration, and not in a frequency 
band that would be expected to significantly interfere with harbor 
porpoise communication, or echolocation or other important low-
frequency cues. Therefore, the associated lost opportunities and 
capabilities would not be expected to impact reproduction or survival. 
For these same reasons (low level and the likely frequency band), while 
a small permanent loss of hearing sensitivity may include some degree 
of energetic costs for compensating or may mean some small loss of 
opportunities or detection capabilities, the estimated 454 Level A 
harassment takes by PTS for harbor porpoise would be unlikely to impact 
behaviors, opportunities, or detection capabilities to a degree that 
would interfere with reproductive success or survival for most 
individuals. Because of the high number of PTS takes, we acknowledge 
that a few animals could potentially incur permanent hearing loss of a 
higher degree that could potentially interfere with their successful 
reproduction and growth. However, given the status of the stock, even 
if this occurred, it would not adversely impact rates of recruitment or 
survival.
    Altogether, because harbor porpoises are particularly sensitive, it 
is likely that a fair number of the responses will be of a moderate 
nature. Additionally, as noted, some portion of the stock may be taken 
repeatedly on up to 19 days within a year, some of those may be 
sequential. Given this and the larger number of total takes (totally 
and to individuals), it is more likely (probabilistically) that some 
small number of individuals could be interrupted during foraging in a 
manner and amount such that impacts to the energy budgets of females 
(from either losing feeding opportunities or expending considerable 
energy to find alternative feeding options) could cause them to forego 
reproduction for a year (energetic impacts to males are generally 
meaningless to population rates unless they cause death, and it takes 
extreme energy deficits beyond what would ever be likely to result from 
these activities to cause the death of an adult marine mammal). As 
noted previously, however, foregone reproduction (especially for one 
year) has far less of an impact on population rates than mortality and 
a small number of instances would not be expected to adversely impact 
annual rates of recruitment or survival, especially given that the 
residual PBR of harbor porpoises is 451 (and a one year delay in 
calving has a far less severe impact on population rates than death, 
and this stock could absorb more than 400 deaths without inhibiting its 
ability to approach OSP). All indications are that the number of times 
in which reproduction would be likely to be foregone will not affect 
the stock's annual rates of recruitment or survival. For these reasons, 
we have determined, in consideration of all of the effects of the 
Navy's activities combined, that the authorized take will have a 
negligible impact on harbor porpoises.
    Beaked Whales--In this section, we build on the broader Odontocete 
discussion above (i.e., that information applies to beaked whales as 
well), except where we offer alternative information about the received 
levels for beaked whale Level B behavioral harassment. We bring 
together the discussion of the different types and amounts of take that 
different stocks will incur, the applicable mitigation for each stock, 
and the status of the stocks to support the negligible impact 
determinations for each stock. None of these species are listed as 
endangered or threatened under the ESA. For beaked whales, there is no 
predicted mortality or tissue damage from explosives for any stock. 
Broadly, we have also described the unlikelihood of any masking or 
habitat impacts to any groups that would rise to the level of affecting 
individual fitness. The discussion below focuses on additional 
information that is specific to beaked whales (in addition to the 
general information on odontocetes provided above, which is relevant to 
these species) to support the summarized conclusion for this stock. 
Because there are differential magnitudes of effect to the GOMEX stocks 
of beaked whales (lower magnitude of Level B harassment, but also 
lingering effects from the DWH oil spill) versus the Western North 
Atlantic beaked whales, we break out specific findings into those two 
groups.
    In Table 76 below, for beaked whales, we indicate the total annual 
mortality, Level A and Level B harassment, and a number indicating the 
instances of total take as a percentage of abundance.

[[Page 57243]]

[GRAPHIC] [TIFF OMITTED] TR14NO18.014

    Note that this first paragraph provides specific information that 
is in lieu of the parallel information provided for odontocetes as a 
whole. The majority of takes by harassment of beaked whales in the AFTT 
Study Area are caused by sources from the MF1 active sonar bin (which 
includes hull-mounted sonar) because they are high level sources at a 
frequency (1-10 kHz), which overlaps a more sensitive portion (though 
not the most sensitive) of the MF hearing range, and of the sources 
expected to result in take, they are used in a large portion of 
exercises (see Table 1.5-5 in the Navy's rulemaking/LOA application). 
Most of the takes (91 percent) from the MF1 bin in the AFTT Study Area 
would result from received levels between 148 and 160 dB SPL. For the 
remaining active sonar bin types, the percentages are as follows: LF3 = 
94 percent between 136 and 148, MF4 = 96 percent between 124 and 148, 
MF5 = 96 percent between 100 and 142, and HF4 = 94 percent between 100 
and 148 dB SPL. These values may be derived from the information in 
Tables 6.4-8 through 6.4-12 in the Navy's rulemaking/LOA application 
(though they were provided directly to NMFS upon request). Given the 
levels they are exposed to and their sensitivity, some responses would 
be of a lower severity, but many would likely be considered moderate.
    As is the case with harbor porpoises, research has shown that 
beaked whales are especially sensitive to the presence of human 
activity (Tyack et al., 2011; Pirotta et al., 2012) and therefore have 
been assigned a lower harassment threshold, i.e., a more distant 
distance cutoff (50 km for high source level, 25 km for moderate source 
level). Given the levels they are exposed to and their sensitivity, 
some responses would be of a lower severity, but many would likely be 
considered moderate.
    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). 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

[[Page 57244]]

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. 
Populations of beaked whales and other odontocetes on the Bahamas and 
other Navy fixed ranges, where Navy activities have been operating for 
decades, appear to be stable. Take by Level B behavioral harassment 
(most likely 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, 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 seven 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 adverse impact on rates of recruitment 
and survival in the areas a result of exposure to Navy's training and 
testing activities. Finally, results from passive acoustic monitoring 
estimated regional Cuvier's beaked whale densities were higher than 
indicated by NMFS' broad scale visual surveys for the U.S. West Coast 
(Hildebrand and McDonald, 2009).
    As mentioned earlier in the odontocete overview, we anticipate more 
severe effects from takes when animals are exposed to higher received 
levels or sequential days of impacts. Occasional instances of take by 
Level B behavioral harassment of a low to moderate severity are 
unlikely to affect reproduction or survival. Here, some small number of 
takes by Level B behavioral harassment could be in the form of a longer 
(several hours or a day) and more moderate response, and/or some small 
number could be repeated over more than several sequential days. 
Impacts to reproduction could be possible for some small number of 
individuals, but given the information presented regarding beaked whale 
movement patterns, their return to areas within hours to a few days 
after a disturbance, and their continued presence and abundance in the 
area of instrumented Navy ranges, these impacts seem somewhat less 
likely. Nonetheless, even where some smaller number of animals could 
experience effects on reproduction, they would not be expected to 
adversely affect rates of recruitment or survival.
    Below we synthesize and summarize the information that supports our 
determination that the Navy's activities will not adversely impact 
recruitment or survival for any of the affected stocks addressed in 
this section:
    Beaked whales (Western North Atlantic stocks)--These stocks span 
the deeper waters of the East Coast north to Canada and out into 
oceanic waters beyond the U.S. EEZ. There is no currently reported 
trend for these populations and there are no specific issues with the 
status of the stocks that cause particular concern. Neither mortality 
nor tissue damage from explosives is anticipated or authorized for 
these stocks. Regarding the magnitude of Level B harassment takes (TTS 
and behavioral disruption), the number of estimated instances of 
harassment compared to the abundance within the U.S. EEZ and both in 
and outside of the U.S. EEZ is 1567-1836 percent and 148-297 percent, 
respectively (Table 76). This information, combined with the known 
range of the stock, suggests that while not all of the individuals in 
these stocks will most likely be taken (because they span well into 
oceanic waters), of those that are, most will be taken over a few days 
(though likely not sequential) and some subset that spends extended 
time within the U.S. EEZ will likely be taken over a larger amount of 
days (maybe 15-37) some of which could be sequential. Regarding the 
severity of those individual takes by Level B behavioral harassment, we 
have explained that the duration of any exposure response is expected 
to generally be between minutes and hours and largely between 148 and 
160 dB, though with beaked whales, which are considered somewhat more 
sensitive, this could mean that some individuals will leave preferred 
habitat for a day or two. However, while interrupted feeding bouts are 
a known response and concern for odontocetes, we also know that there 
are often viable alternative habitat options in the relative vicinity 
in the Western North Atlantic.
    Regarding the severity of TTS takes, as described previously they 
are expected to be low-level, of short duration, and not in a frequency 
band that would adversely affect communication, inhibit echolocation, 
or otherwise interfere with other low frequency cues. Therefore any 
associated lost opportunities and capabilities would not impact 
reproduction or survival. For the same reasons (low level and frequency 
band) the one to three estimated Level A harassment takes by PTS for 
these stocks are unlikely to have any effects on the reproduction or 
survival of any individuals.
    Altogether, a small portion of the stock will likely be taken (at a 
relatively moderate level) on a relatively moderate to high number of 
days across the year, some of which could be sequential. Though the 
majority of impacts are expected to be of a sometimes low, but more 
likely, moderate magnitude and severity, the sensitivity of beaked 
whales and larger number of takes makes it more likely 
(probabilistically) that a small number of individuals could be 
interrupted during foraging in a manner and amount such that impacts to 
the energy budgets of females (from either losing feeding opportunities 
or expending considerable energy to find alternative feeding options) 
could cause them to forego reproduction for a year (energetic impacts 
to males are generally meaningless to population rates unless they 
cause death, and it takes extreme energy deficits beyond what would 
ever be likely to result from these activities to cause the death of an 
adult marine mammal). As noted previously, however, foregone 
reproduction (especially for one year) has far less of an impact on 
population rates than mortality and a small number of instances would 
not be expected to adversely impact annual rates of recruitment or 
survival. Based on the abundance of these stocks in the area and the 
evidence of little, if any, known human-caused mortality, all 
indications here are that the small number of times in which 
reproduction would be likely to be foregone will not affect the stock's 
annual rates of recruitment or survival. For these reasons, we have 
determined, in consideration of all of the effects of the Navy's 
activities combined, that the authorized take will have a negligible

[[Page 57245]]

impact on the Western North Atlantic stocks of beaked whales.
    Beaked whales (GOMEX stocks)--The animals in these stocks suffer 
from lingering health issues resulting from the DWH oil spill (four 
percent of individuals of these stocks have adverse health effects), 
which means that some of them could be more susceptible to exposure to 
other stressors, and negative population effects (10 years for their 
growth rate to recover to the rate predicted for the stock if it had 
not incurred spill impacts). Neither mortality nor tissue damage from 
explosives is anticipated or authorized for these stocks. Level A 
harassment take from PTS is also unlikely to occur. Regarding the 
magnitude of Level B harassment takes (TTS and behavioral disruption), 
the number of estimated instances of harassment compared to the 
abundance is 148-155 percent (Table 76). This information indicates 
that either the individuals in these stocks are all taken by harassment 
one or two days within a year, or that a subset are not taken at all 
and a small subset may be taken several times. Regarding the severity 
of those individual takes, we have explained that the duration of any 
exposure response is expected to generally be between minutes and hours 
and largely between 148 and 160 dB, though with beaked whales, which 
are considered somewhat more sensitive, this could mean that some 
individuals will leave preferred habitat for a day or two. However, 
while interrupted feeding bouts are a known response and concern for 
odontocetes, we also know that there are often viable alternative 
habitat options in the relative vicinity in the GOMEX. Regarding the 
severity of TTS takes, as described previously they are expected to be 
low-level, of short duration, and not in a frequency band that would 
adversely affect communication, inhibit echolocation, or otherwise 
interfere with other low frequency cues. Therefore any associated lost 
opportunities and capabilities would not impact reproduction or 
survival.
    Altogether, likely only a portion of these stocks are impacted and 
any individual beaked whale is likely being disturbed moderate level no 
more than a few days per year. Even given the fact that some of the 
affected individuals may have compromised health, there is nothing to 
suggest that this magnitude and severity of effects would result in 
impacts on annual rates of recruitment or survival for any of the 
stocks. For these reasons, we have determined, in consideration of all 
of the effects of the Navy's activities combined, that the authorized 
take will have a negligible impact on the GOMEX stocks of beaked whales 
included in Table 76.

Pinnipeds

    In this section, we build on the broader discussion above and bring 
together the discussion of the different types and amounts of take that 
different stocks will incur, the applicable mitigation for each stock, 
and the status of the stocks to support the negligible impact 
determinations for each stock. None of these species are listed as 
endangered or threatened under the ESA. For pinnipeds, there is no 
predicted mortality or tissue damage from explosives for any stock. 
Broadly, we have already described above why we believe the incremental 
addition of the small number of low-level PTS takes in predominantly 
narrow frequency bands will not have any meaningful effect towards 
inhibiting reproduction or survival. We have also described the 
unlikelihood of any masking or habitat impacts to any groups that would 
rise to the level of affecting individual fitness. Much of the 
discussion below focuses on the behavioral effects. A UME has been 
designated for harbor seals and gray seals, which is addressed below, 
but because of the small magnitude and severity of effects for all of 
the species, it is not necessary to break out the findings by species 
or stock.
    In Table 77 below for pinnipeds, we indicate the total annual 
mortality, Level A and Level B harassment, and a number indicating the 
instances of total take as a percentage of abundance.
[GRAPHIC] [TIFF OMITTED] TR14NO18.015


[[Page 57246]]


    The majority of takes by harassment of pinnipeds in the AFTT Study 
Area are caused by sources from the MF1 active sonar bin (which 
includes hull-mounted sonar) because they are high level sources at a 
frequency (1-10 kHz), which overlaps the most sensitive portion of the 
pinniped hearing range, and of the sources expected to result in take, 
they are used in a large portion of exercises (see Table 1.5-5 in the 
Navy's rulemaking/LOA application). Most of the takes (76 percent) from 
the MF1 bin in the AFTT Study Area would result from received levels 
between 166 and 172 dB SPL, while another 23 percent would result from 
exposure between 172 and 178 dB SPL. For the remaining active sonar bin 
types, the percentages are as follows: LF3 = 97 percent between 148 and 
166, MF4 = 97 percent between 142 and 166, MF5 = 97 percent between 130 
and 160, and HF4 = 96 percent between 118 and 166 dB SPL. These values 
may be derived from the information in Tables 6.4-8 through 6.4-12 in 
the Navy's rulemaking/LOA application (though they were provided 
directly to NMFS upon request). Exposures at these levels would be 
considered of low to occasionally moderate severity. As mentioned 
earlier in this section, we anticipate more severe effects from takes 
when animals are exposed to higher received levels. Occasional milder 
takes by Level B behavioral harassment are unlikely to cause long-term 
consequences for individual animals or populations, especially when 
they are not expected to be repeated over sequential multiple days. For 
all pinnipeds, harassment takes from explosives (behavioral, TTS, or 
PTS if present) comprise a very small fraction of those caused by 
exposure to active sonar. No take of pinnipeds is expected to result 
from pile driving, and take from exposure to airguns is limited to 
single digits of gray and harbor seals.
    Because the majority of harassment take of pinnnipeds results from 
the sources in the MF1 bin (1-10 kHz), the vast majority of threshold 
shift caused by Navy sonar sources will typically occur in the range of 
2-20 kHz. This frequency range falls within the range of pinniped 
hearing, however, odontocete vocalizations typically span a somewhat 
lower range than this (<0.2 to 10 kHz) and threshold shift from active 
sonar will often be in a narrower band (reflecting the narrower band 
source that caused it), which means that TTS incurred by pinnipeds 
would typically only interfere with communication within a portion of 
an pinniped's range (if it occurred during a time when communication 
with conspecifics was occurring). As discussed earlier, it would only 
be expected to be of a short duration and relatively small degree. Many 
of the other critical sounds that serve as cues for navigation and prey 
(e.g., waves, fish, invertebrates) occur below a few kHz, which means 
that detection of these signals will not be inhibited by most threshold 
shift either. The very low number of takes by threshold shifts that 
might be incurred by individuals exposed to explosives or airguns would 
likely be lower frequency (5 kHz or less) and spanning a wider 
frequency range, which could slightly lower an individual's sensitivity 
to navigational or prey cues, or a small portion of communication 
calls, for several minutes to hours (if temporary) or permanently.
    Regarding behavioral disturbance, 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 non-pulse 
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). 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. Effects on pinnipeds in 
the AFTT 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, which would have no effect on 
reproduction or survival. In areas of repeated and frequent acoustic 
disturbance, some animals 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 of 
any of these species to levels of sound that may cause Level B 
harassment are unlikely to result in hearing impairment or to 
significantly disrupt foraging behavior.
    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 that would result in any 
adverse impact on rates of recruitment or survival for 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 planned activities. Specifically, almost all of the impacts to 
pinnipeds estimated by the quantitative assessment are due to 
navigation and object avoidance (detection) activities in navigation 
lanes entering Groton, Connecticut. Navigation and object avoidance 
(detection) activities normally involve a single ship or submarine 
using a limited amount of sonar, therefore significant reactions are 
unlikely, especially in phocid seals. The use of sonar from navigation 
and object avoidance in Groton, Connecticut likely exposes the same 
sub-population of animals multiple times throughout the year. However, 
phocid seals are likely to have only minor and short-term behavioral 
reactions to these types of activities and significant behavioral 
reactions leading to impacts on reproduction or survival would not be 
expected, even if some smaller groups were repeatedly taken. Below we 
synthesize and summarize the information that supports our 
determination that the Navy's activities will not adversely impact 
recruitment or survival for any of the affected species and stocks 
addressed in this section.
    In conclusion, the Western North Atlantic pinnipeds (harp seal, 
harbor seal, hooded seal, and gray seal) stocks

[[Page 57247]]

are northern, but highly migratory species. While harp seals are 
limited to the northern portion of the U.S. EEZ, gray and harbor seals 
may be found as far south as the Chesapeake in late Fall and hooded 
seals migrate as far south as Puerto Rico. A UME has been designated 
for gray seals and harbor seals and the main pathogen found on the 
seals that have been tested is phocine distemper virus. Neither 
mortality nor tissue damage from explosives is anticipated or 
authorized for any of these stocks. Regarding the magnitude of Level B 
harassment takes (TTS and behavioral disruption), the number of 
estimated instances of harassment compared to the abundance that is 
expected within the AFTT Study area is 34-225 percent, which suggests 
that only a subset of the animals in the AFTT Study area would be 
taken, but that a few might be taken on several days within the year 
(1-5), but not on sequential days. When the fact that some of these 
seals are residing in areas near Navy activities is considered, we can 
estimate that perhaps some of those individuals might be taken some 
higher number of days within the year (up to approximately 10), but 
still with no reason to think that these takes would occur on 
sequential days, which means that we would not expect effects on 
reproduction or survival. Regarding the severity of those individual 
Level B behavioral harassment takes, we have explained that the 
duration of any exposure response is expected to be between minutes and 
hours (i.e., relatively short) and the received sound levels are 
largely below 172 dB, with some up to 178 dB (i.e., of a lower to 
moderate level, less likely to evoke a severe response) and therefore 
there is no indication that the expected takes by Level B behavioral 
harassment would have any effect on annual rates of recruitment or 
survival.
    Regarding the severity of TTS takes, they are expected to be low-
level, of short duration, and not in a frequency band that would 
adversely affect communication, inhibit echolocation, or otherwise 
interfere with other low frequency cues. Therefore any associated lost 
opportunities and capabilities would not impact reproduction or 
survival. For the same reasons (low level and frequency band) the two 
to four estimated Level A harassment takes by PTS for these stocks are 
unlikely to have any effects on the reproduction or survival of any 
individuals.
    Even given the fact that some of the affected harbor seal 
individuals may have compromised health due to the UME, there is 
nothing to suggest that such a low magnitude and severity of effects 
would result in impacts on annual rates of recruitment or survival, 
especially given that the stock abundance in NMFS SAR is 75,839 with a 
residual PBR of 1,651. Similarly, given the low magnitude and severity 
of effects, there is no indication that these activities would affect 
reproduction or survival of harp or hooded seals, much less adversely 
affect rates of recruitment or survival, especially given that harp 
seal abundance is estimated at 6.9 million and hooded seal residual PBR 
is 13,950. Gray seals are experiencing a UME as well as an exceedance 
of more than 4,299 M/SI above PBR. However, given the low magnitude 
(take compared to abundance is 95 percent, meaning the subset of 
individuals taken may be taken a few times on non-sequential days) and 
low to occasionally moderate severity of impacts, no impacts to 
individual reproduction or survival are expected, and therefore no 
effects on annual rates of recruitment or survival will occur. For 
these reasons, in consideration of all of the effects of the Navy's 
activities combined, we have determined that the authorized take will 
have a negligible impact on the Western North Atlantic stocks of gray 
seals, harbor seals, hooded seals, and harp seals.

Determination

    Based on the analysis contained herein of the potential and likely 
effects of the specified activities on marine mammals and their 
habitat, and taking into consideration the implementation of the 
monitoring and mitigation measures, NMFS finds that the total marine 
mammal take from the specified activities will have a negligible impact 
on all affected marine mammal species and stocks.

Subsistence Harvest of Marine Mammals

    There are no subsistence uses or harvest of marine mammals in the 
geographic area affected by the specified activities. Therefore, NMFS 
has determined that the total taking affecting species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

ESA

    There are five marine mammal species under NMFS jurisdiction that 
are listed as endangered or threatened under the ESA with confirmed or 
possible occurrence in the AFTT Study Area: Blue whale (Western North 
Atlantic stock), fin whale (Western North Atlantic stock), sei whale 
(Nova Scotia), sperm whale (GOMEX Oceanic stock and North Atlantic 
stock), and NARW (Western North Atlantic stock). In addition, the GOMEX 
Bryde's whale is proposed for listing under the ESA. The Navy consulted 
with NMFS pursuant to section 7 of the ESA, and NMFS also consulted 
internally on the issuance of these regulations and LOAs under section 
101(a)(5)(A) of the MMPA for AFTT activities. NMFS issued a Biological 
and Conference Opinion concluding that the issuance of the rule and 
subsequent LOAs 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 AFTT 
Study Area. The Biological and Conference Opinion for this action is 
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

National Marine Sanctuaries Act

    Federal agency actions that are likely to injure national marine 
sanctuary resources are subject to consultation with the Office of 
National Marine Sanctuaries (ONMS) under section 304(d) of the National 
Marine Sanctuaries Act (NMSA).
    On December 15, 2017, the Navy initiated consultation with ONMS and 
submitted a Sanctuary Resource Statement (SRS) that discussed the 
effects of the U.S. Navy's AFTT activities in the vicinity of 
Stellwagen Bank, Gray's Reef, and Florida Keys National Marine 
Sanctuaries on sanctuary resources. NMFS worked with the Navy in the 
development of the SRS to ensure that it could serve jointly as an SRS 
for NMFS' action as well.
    On December 20, 2017, NMFS OPR initiated consultation with ONMS on 
NMFS' proposed MMPA Incidental Take Regulations for the Navy's AFTT 
activities. NMFS requested that ONMS consider the description and 
assessment of the effects of the Navy's activities, which included an 
assessment of the effects on marine mammals, included in the joint SRS 
submitted by the Navy as satisfying NMFS' need to provide an SRS.
    ONMS reviewed the SRS, as well as an addendum the Navy provided on 
April 3, 2018. On April 12, 2018, ONMS found the SRS addendum 
sufficient for the purposes of making an injury determination to 
develop recommended alternatives as required by the NMSA. On May 15, 
2018, ONMS recommended two reasonable and prudent measures to

[[Page 57248]]

Navy and NMFS (one of which applied to NMFS) in accordance with the 
NMSA to minimize injury and to protect sanctuary resources. ONMS 
subsequently provided a slight modification of those recommendations to 
the Navy and NMFS on August 1, 2018.
    On August 17, 2018, the Navy agreed to implement both ONMS 
recommendations. On October 30, 2018, NMFS agreed to implement the 
recommendation that applied to NMFS, thus concluding our consultation 
with ONMS.

NEPA

    NMFS participated as a cooperating agency on the AFTT FEIS/OEIS, 
which was published on September 14, 2018, and is available at http://www.aftteis.com. In accordance with 40 CFR 1506.3, NMFS independently 
reviewed and evaluated the AFTT FEIS/OEIS and determined that it is 
adequate and sufficient to meet our responsibilities under NEPA for the 
issuance of this rule and associated LOAs. NOAA therefore adopted the 
Navy's AFTT FEIS/OEIS. NMFS has prepared a separate Record of Decision. 
NMFS' Record of Decision for adoption of the AFTT FEIS/OEIS and 
issuance of this final rule and subsequent LOAs can be found at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.

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 has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
final rule will not have a significant economic impact on a substantial 
number of small entities. The RFA requires Federal agencies to prepare 
an analysis of a rule's impact on small entities whenever the agency is 
required to publish a notice of proposed rulemaking. However, a Federal 
agency may certify, pursuant to 5 U.S.C. 605(b), that the action will 
not have a significant economic impact on a substantial number of small 
entities. The Navy is the sole entity that will be affected by this 
rulemaking, and the 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, are applicable only to the Navy. NMFS does not expect the 
issuance of these regulations or the associated LOAs to result in any 
impacts to small entities pursuant to the RFA. Because this action will 
directly affect the Navy and not a small entity, NMFS concludes the 
action will not result in a significant economic impact on a 
substantial number of small entities.

Waiver of Delay in Effective Date

    NMFS has determined that there is good cause under the 
Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day 
delay in the effective date of this final rule. No individual or entity 
other than the Navy is affected by the provisions of these regulations. 
The Navy has informed NMFS that it requests that this final rule take 
effect by November 14, 2018, to accommodate the Navy's current Letters 
of Authorization expiring November 13, 2018, so as to not cause a 
disruption in training and testing activities. NMFS was unable to 
accommodate the 30-day delay of effectiveness period due to the need 
for additional time to consider additional mitigation measures 
presented by the Navy as well as new analysis of information showing 
that incidental mortality and serious injury of two stocks previously 
analyzed is unlikely to occur. The waiver of the 30-day delay of the 
effective date of the final rule will ensure that the MMPA final rule 
and Letters of Authorization are in place by the time the previous 
authorizations expire. Any delay in finalizing the rule would result in 
either: (1) A suspension of planned naval training and testing, which 
would disrupt vital training and testing essential to national 
security; or (2) the Navy's procedural non-compliance with the MMPA 
(should the Navy conduct training and testing without LOAs), thereby 
resulting in the potential for unauthorized takes of marine mammals. 
Moreover, the Navy is ready to implement the rule immediately. For 
these reasons, NMFS finds good cause to waive the 30-day delay in the 
effective date. In addition, the rule authorizes incidental take of 
marine mammals that would otherwise be prohibited under the statute. 
Therefore the rule is granting an exception to the Navy and relieving 
restrictions under the MMPA, which is a separate basis for waiving the 
30-day effective date for the rule.

List of Subjects in 50 CFR Part 218

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

    Dated: October 30, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 218 is amended 
as follows:

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

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

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Revise subpart I of part 218 to read as follows:
Subpart I--Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
Fleet Training and Testing (AFTT)
Sec.
218.80 Specified activity and specified geographical region.
218.81 Effective dates.
218.82 Permissible methods of taking.
218.83 Prohibitions.
218.84 Mitigation requirements.
218.85 Requirements for monitoring and reporting.
218.86 Letters of Authorization.
218.87 Renewals and modifications of Letters of Authorization.
218.88-218.89 [Reserved]

Subpart I--Taking and Importing Marine Mammals; U.S. Navy's 
Atlantic Fleet Training and Testing (AFTT)


Sec.  218.80  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 described in paragraph 
(b) of this section and that occurs incidental to the activities listed 
in paragraph (c) of this section.
    (b) The taking of marine mammals by the Navy under this subpart may 
be authorized in Letters of Authorization (LOAs) only if it occurs 
within the Atlantic Fleet Training and Testing (AFTT) Study Area, which 
includes areas of the western Atlantic Ocean along the East Coast of 
North America, portions of the Caribbean Sea, and the Gulf of Mexico. 
The AFTT Study Area begins at the mean high tide line along the U.S. 
East Coast and extends east to the 45-degree west longitude line, north 
to the 65-degree north latitude line, and south to approximately the 
20-degree

[[Page 57249]]

north latitude line. The AFTT Study Area also includes Navy pierside 
locations, bays, harbors, and inland waterways, and civilian ports 
where training and testing occurs.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the Navy conducting training and testing 
activities, including:
    (1) Training. (i) Amphibious warfare.
    (ii) Anti-submarine warfare.
    (iii) Electronic warfare.
    (iv) Expeditionary warfare.
    (v) Mine warfare.
    (vi) Surface warfare.
    (2) Testing. (i) Naval Air Systems Command Testing Activities.
    (ii) Naval Sea System Command Testing Activities.
    (iii) Office of Naval Research Testing Activities.


Sec.  218.81   Effective dates.

    Regulations in this subpart are effective November 14, 2018 through 
November 13, 2023.


Sec.  218.82   Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 of this 
chapter and 218.86, the Holder of the LOAs (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.80(b) by Level A harassment and Level B 
harassment associated with the use of active sonar and other acoustic 
sources and explosives as well as serious injury or mortality 
associated with ship shock trials and vessel strikes provided the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations in this subpart and the applicable LOAs.
    (b) The incidental take of marine mammals by the activities listed 
in Sec.  218.80(c) is limited to the following species:

                                            Table 1 to Sec.   218.82
----------------------------------------------------------------------------------------------------------------
                 Species                                                   Stock
----------------------------------------------------------------------------------------------------------------
                                       Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales):         ......................................................................
    North Atlantic right whale *........  Western.
Family Balaenopteridae (roquals):         ......................................................................
    Blue whale *........................  Western North Atlantic (Gulf of St. Lawrence)
    Bryde's whale.......................  Northern Gulf of Mexico.
                                          NSD.
    Minke whale.........................  Canadian East Coast.
    Fin whale *.........................  Western North Atlantic.
    Humpback whale......................  Gulf of Maine.
    Sei whale *.........................  Nova Scotia.
----------------------------------------------------------------------------------------------------------------
                                      Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
Family Physeteridae (sperm whale):
    Sperm whale *.......................  Gulf of Mexico Oceanic.
                                          North Atlantic.
Family Kogiidae (sperm whales):
    Dwarf sperm whale...................  Gulf of Mexico Oceanic.
                                          Western North Atlantic.
    Pygmy sperm whale...................  Northern Gulf of Mexico.
                                          Western North Atlantic.
Family Ziphiidae (beaked whales):
    Blainville's beaked whale...........  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Cuvier's beaked whale...............  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Gervais' beaked whale...............  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Northern bottlenose whale...........  Western North Atlantic.
    Sowersby's beaked whale.............  Western North Atlantic.
    True's beaked whale.................  Western North Atlantic.
Family Delphinidae (dolphins):
    Atlantic spotted dolphin............  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Atlantic white-sided dolphin........  Western North Atlantic.
    Bottlenose dolphin..................  Choctawhatchee Bay.
                                          Gulf of Mexico Eastern Coastal.
                                          Gulf of Mexico Northern Coastal.
                                          Gulf of Mexico Western Coastal.
                                          Indian River Lagoon Estuarine System.
                                          Jacksonville Estuarine System.
                                          Mississippi Sound, Lake Borgne, Bay Boudreau.
                                          Northern Gulf of Mexico Continental Shelf.
                                          Northern Gulf of Mexico Oceanic.
                                          Northern North Carolina Estuarine System.
                                          Southern North Carolina Estuarine System.
                                          Western North Atlantic Northern Florida Coastal.
                                          Western North Atlantic Central Florida Coastal.
                                          Western North Atlantic Northern Migratory Coastal.
                                          Western North Atlantic Offshore.
                                          Western North Atlantic South Carolina/Georgia Coastal.

[[Page 57250]]

 
                                          Western North Atlantic Southern Migratory Coastal.
    Clymene dolphin.....................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    False killer whale..................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Fraser's dolphin....................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Killer whale........................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Long-finned pilot whale.............  Western North Atlantic.
    Melon-headed whale..................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Pantropical spotted dolphin.........  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Pygmy killer whale..................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Risso's dolphin.....................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Rough-toothed dolphin...............  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Short-beaked common dolphin.........  Western North Atlantic.
    Short-finned pilot whale............  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Spinner dolphin.....................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    Striped dolphin.....................  Northern Gulf of Mexico.
                                          Western North Atlantic.
    White-beaked dolphin................  Western North Atlantic.
Family Phocoenidae (porpoises):
    Harbor porpoise.....................  Gulf of Maine/Bay of Fundy.
----------------------------------------------------------------------------------------------------------------
                                               Suborder Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (true seals):
    Gray seal...........................  Western North Atlantic.
    Harbor seal.........................  Western North Atlantic.
    Harp seal...........................  Western North Atlantic.
    Hooded seal.........................  Western North Atlantic.
----------------------------------------------------------------------------------------------------------------

Sec.  218.83  Prohibitions.

    Notwithstanding incidental takings contemplated in Sec.  218.82(a) 
and authorized by LOAs issued under Sec. Sec.  216.106 of this chapter 
and 218.86, no person in connection with the activities listed in Sec.  
218.80(c) may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  216.106 
of this chapter and 218.86;
    (b) Take any marine mammal not specified in Sec.  218.82(b);
    (c) Take any marine mammal specified Sec.  218.82(b) in any manner 
other than as specified in the LOAs; or
    (d) Take a marine mammal specified Sec.  218.82(b) if NMFS 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammal.


Sec.  218.84  Mitigation requirements.

    When conducting the activities identified in Sec.  218.80(c), the 
mitigation measures contained in any LOAs issued under Sec. Sec.  
216.106 of this chapter and 218.86 must be implemented. These 
mitigation measures include, but are not limited to:
    (a) Procedural mitigation. Procedural mitigation is mitigation that 
the Navy must implement whenever and wherever an applicable training or 
testing activity takes place within the AFTT Study Area for each 
applicable activity category or stressor category and includes acoustic 
stressors (i.e., active sonar, air guns, pile driving, weapons firing 
noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber 
and large-caliber projectiles, missiles and rockets, bombs, sinking 
exercises, mines, anti-swimmer grenades, line charge testing and ship 
shock trials), and physical disturbance and strike stressors (i.e., 
vessel movement, towed in-water devices, small-, medium-, and large-
caliber non-explosive practice munitions, non-explosive missiles and 
rockets, non-explosive bombs and mine shapes).
    (1) Environmental awareness and education. Appropriate personnel 
(including civilian personnel) involved in mitigation and training or 
testing activity reporting under the specified activities will complete 
one or more modules of the U.S. Navy Afloat Environmental Compliance 
Training Series, as identified in their career path training plan. 
Modules include: Introduction to the U.S. Navy Afloat Environmental 
Compliance Training Series, Marine Species Awareness Training, U.S. 
Navy Protective Measures Assessment Protocol, and U.S. Navy Sonar 
Positional Reporting System and Marine Mammal Incident Reporting.
    (2) Active sonar. Active sonar includes low-frequency active sonar, 
mid-frequency active sonar, and high-frequency active sonar. For 
vessel-based active sonar activities, mitigation applies only to 
sources that are positively controlled and deployed from manned surface 
vessels (e.g., sonar sources towed from manned surface platforms). For 
aircraft-based active sonar activities, mitigation applies only to 
sources that are positively controlled and deployed from manned 
aircraft that do not operate at high altitudes (e.g., rotary-wing 
aircraft). Mitigation does

[[Page 57251]]

not apply to active sonar sources deployed from unmanned aircraft or 
aircraft operating at high altitudes (e.g., maritime patrol aircraft).
    (i) Number of Lookouts and observation platform--(A) Hull-mounted 
sources. One Lookout for platforms with space or manning restrictions 
while underway (at the forward part of a small boat or ship) and 
platforms using active sonar while moored or at anchor (including 
pierside); two Lookouts for platforms without space or manning 
restrictions while underway (at the forward part of the ship); and four 
Lookouts for pierside sonar testing activities at Port Canaveral, 
Florida and Kings Bay, Georgia.
    (B) Non-hull mounted sources. One Lookout on the ship or aircraft 
conducting the activity.
    (ii) Mitigation zones and requirements. During the activity, at 
1,000 yard (yd) the Navy must power down 6 decibels (dB), at 500 yd the 
Navy must power down an additional 4 dB (for a total of 10 dB), and at 
200 yd the Navy must shut down for low-frequency active sonar >=200 dB 
and hull-mounted mid-frequency active sonar; or at 200 yd the Navy must 
shut down for low-frequency active sonar <200 dB, mid-frequency active 
sonar sources that are not hull-mounted, and high-frequency active 
sonar.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must relocate 
or delay the start until the mitigation zone is clear. Navy personnel 
also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of active sonar 
transmission.
    (B) During low-frequency active sonar at or above 200 dB and hull-
mounted mid-frequency active sonar, Navy personnel must observe the 
mitigation zone for marine mammals and power down active sonar 
transmission by 6 dB if observed within 1,000 yd of the sonar source; 
power down by an additional 4 dB (10 dB total) if observed within 500 
yd of the sonar source; and cease transmission if observed within 200 
yd of the sonar source.
    (C) During low-frequency active sonar below 200 dB, mid-frequency 
active sonar sources that are not hull mounted, and high-frequency 
active sonar, Navy personnel must observe the mitigation zone for 
marine mammals and cease active sonar transmission if observed within 
200 yd of the sonar source.
    (D) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing or powering up active sonar transmission) until 
one of the following conditions has been met: The animal is observed 
exiting the mitigation zone; the animal is thought to have exited the 
mitigation zone based on a determination of its course, speed, and 
movement relative to the sonar source; the mitigation zone has been 
clear from any additional sightings for 10 minutes (min) for aircraft-
deployed sonar sources or 30 min for vessel-deployed sonar sources; for 
mobile activities, the active sonar source has transited a distance 
equal to double that of the mitigation zone size beyond the location of 
the last sighting; or for activities using hull-mounted sonar, the ship 
concludes that dolphins are deliberately closing in on the ship to ride 
the ship's bow wave, and are therefore out of the main transmission 
axis of the sonar (and there are no other marine mammal sightings 
within the mitigation zone).
    (3) Air guns--(i) Number of Lookouts and observation platform. One 
Lookout must be positioned on a ship or pierside.
    (ii) Mitigation zone and requirements. 150 yd around the air gun.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must relocate 
or delay the start until the mitigation zone is clear. Navy personnel 
also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of air gun use.
    (B) During the activity, Navy personnel must observe the mitigation 
zone for marine mammals; if observed, Navy personnel must cease use of 
air guns.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing air gun use) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the air 
gun; the mitigation zone has been clear from any additional sightings 
for 30 min; or for mobile activities, the air gun has transited a 
distance equal to double that of the mitigation zone size beyond the 
location of the last sighting.
    (4) Pile driving. Pile driving and pile extraction sound during 
Elevated Causeway System training.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned on the shore, the elevated causeway, or a small boat.
    (ii) Mitigation zone and requirements. 100 yd around the pile 
driver.
    (A) Prior to the initial start of the activity (for 30 min), Navy 
personnel must observe the mitigation zone for floating vegetation; if 
observed, Navy personnel must delay the start until the mitigation zone 
is clear. Navy personnel also must observe the mitigation zone for 
marine mammals; if observed, Navy personnel must delay the start of 
pile driving or vibratory pile extraction.
    (B) During the activity, Navy personnel must observe the mitigation 
zone for marine mammals; if observed, Navy personnel must cease impact 
pile driving or vibratory pile extraction.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing pile driving or pile extraction) until one of the 
following conditions has been met: The animal is observed exiting the 
mitigation zone; the animal is thought to have exited the mitigation 
zone based on a determination of its course, speed, and movement 
relative to the pile driving location; or the mitigation zone has been 
clear from any additional sightings for 30 min.
    (5) Weapons firing noise. Weapons firing noise associated with 
large-caliber gunnery activities.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned on the ship conducting the firing. Depending on the 
activity, the Lookout could be the same as the one provided for under 
``Explosive medium-caliber and large-caliber projectiles'' or under 
``Small-, medium-, and large-caliber non-explosive practice munitions'' 
in paragraphs (a)(8)(i) and (a)(19)(i) of this section.
    (ii) Mitigation zone and requirements. Thirty degrees on either 
side of the firing line out to 70 yd from the muzzle of the weapon 
being fired.
    (A) Prior to the initial start of the activity, Navy personnel must 
observe the mitigation zone for floating vegetation; if resources 
observed, relocate or delay the start until the mitigation zone is 
clear. Navy personnel

[[Page 57252]]

also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of weapons firing.
    (B) During the activity, Navy personnel must observe the mitigation 
zone for marine mammals; if observed, Navy personnel must cease weapons 
firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing weapons firing) until one of the following 
conditions has been met: The animal is observed exiting the mitigation 
zone; the animal is thought to have exited the mitigation zone based on 
a determination of its course, speed, and movement relative to the 
firing ship; the mitigation zone has been clear from any additional 
sightings for 30 min; or for mobile activities, the firing ship has 
transited a distance equal to double that of the mitigation zone size 
beyond the location of the last sighting.
    (6) Explosive sonobuoys--(i) Number of Lookouts and observation 
platform. One Lookout must be positioned in an aircraft or on small 
boat. If additional platforms are participating in the activity, 
personnel positioned in those assets (e.g., safety observers, 
evaluators) will support observing the mitigation zone for applicable 
biological resources while performing their regular duties.
    (ii) Mitigation zone and requirements. 600 yd around an explosive 
sonobuoy.
    (A) Prior to the initial start of the activity (e.g., during 
deployment of a sonobuoy field, which typically lasts 20-30 min), Navy 
personnel must observe the mitigation zone for floating vegetation; if 
observed, relocate or delay the start until the mitigation zone is 
clear. Navy personnel must conduct passive acoustic monitoring for 
marine mammals and use information from detections to assist visual 
observations. Navy personnel also must visually observe the mitigation 
zone for marine mammals; if observed, Navy personnel must relocate or 
delay the start of sonobuoy or source/receiver pair detonations.
    (B) During the activity, Navy personnel must observe the mitigation 
zone for marine mammals; if observed, Navy personnel must cease 
sonobuoy or source/receiver pair detonations.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
sonobuoy; or the mitigation zone has been clear from any additional 
sightings for 10 min when the activity involves aircraft that have fuel 
constraints (e.g., helicopter), or 30 min when the activity involves 
aircraft that are not typically fuel constrained.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station), when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (7) Explosive torpedoes--(i) Number of Lookouts and observation 
platform. One Lookout positioned in an aircraft. If additional 
platforms are participating in the activity, Navy personnel positioned 
in those assets (e.g., safety observers, evaluators) must support 
observing the mitigation zone for applicable biological resources while 
performing their regular duties.
    (ii) Mitigation zone and requirements. 2,100 yd around the intended 
impact location.
    (A) Prior to the initial start of the activity (e.g., during 
deployment of the target), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, relocate or delay the start 
until the mitigation zone is clear. Navy personnel also must conduct 
passive acoustic monitoring for marine mammals and use the information 
from detections to assist visual observations. Navy personnel must 
visually observe the mitigation zone for marine mammals and jellyfish 
aggregations; if observed, Navy personnel must relocate or delay the 
start of firing.
    (B) During the activity, Navy personnel must observe for marine 
mammals and jellyfish aggregations; if observed, Navy personnel must 
cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended impact location; or the mitigation zone has been clear from 
any additional sightings for 10 min when the activity involves aircraft 
that have fuel constraints, or 30 min when the activity involves 
aircraft that are not typically fuel constrained.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station)--when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (8) Explosive medium-caliber and large-caliber projectiles. Gunnery 
activities using explosive medium-caliber and large-caliber 
projectiles. Mitigation applies to activities using a surface target.
    (i) Number of Lookouts and observation platform. One Lookout must 
be on the vessel or aircraft conducting the activity. For activities 
using explosive large-caliber projectiles, depending on the activity, 
the Lookout could be the same as the one described in weapons firing 
noise in paragraph (a)(5)(i) of this section. If additional platforms 
are participating in the activity, Navy personnel positioned in those 
assets (e.g., safety observers, evaluators) must support observing the 
mitigation zone for applicable biological resources while performing 
their regular duties.
    (ii) Mitigation zone and requirements. (A) 200 yd around the 
intended impact location for air-to-surface activities using explosive 
medium-caliber projectiles.
    (B) 600 yd around the intended impact location for surface-to-
surface activities using explosive medium-caliber projectiles.
    (C) 1,000 yd around the intended impact location for surface-to-
surface

[[Page 57253]]

activities using explosive large-caliber projectiles.
    (D) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must relocate 
or delay the start until the mitigation zone is clear. Navy personnel 
also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of firing.
    (E) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease firing.
    (F) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended impact location; the mitigation zone has been clear from any 
additional sightings for 10 min for aircraft-based firing or 30 min for 
vessel-based firing; or for activities using mobile targets, the 
intended impact location has transited a distance equal to double that 
of the mitigation zone size beyond the location of the last sighting.
    (G) After completion of the activity (e.g., prior to maneuvering 
off station)--when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (9) Explosive missiles and rockets. Aircraft-deployed explosive 
missiles and rockets. Mitigation applies to activities using a surface 
target.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned in an aircraft. If additional platforms are participating 
in the activity, Navy personnel positioned in those assets (e.g., 
safety observers, evaluators) must support observing the mitigation 
zone for applicable biological resources while performing their regular 
duties.
    (ii) Mitigation zone and requirements. (A) 900 yd around the 
intended impact location for missiles or rockets with 0.6-20 lb net 
explosive weight.
    (B) 2,000 yd around the intended impact location for missiles with 
21-500 lb net explosive weight.
    (C) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the 
mitigation zone for floating vegetation; if resource observed, Navy 
personnel must relocate or delay the start until the mitigation zone is 
clear. Navy personnel also must observe the mitigation zone for marine 
mammals; if resources observed, Navy personnel must relocate or delay 
the start of firing.
    (D) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease firing.
    (E) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended impact location; or the mitigation zone has been clear from 
any additional sightings for 10 min when the activity involves aircraft 
that have fuel constraints, or 30 min when the activity involves 
aircraft that are not typically fuel constrained.
    (F) After completion of the activity (e.g., prior to maneuvering 
off station)--when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (10) Explosive bombs--(i) Number of Lookouts and observation 
platform. One Lookout must be positioned in an aircraft conducting the 
activity. If additional platforms are participating in the activity, 
Navy personnel positioned in those assets (e.g., safety observers, 
evaluators) must support observing the mitigation zone for applicable 
biological resources while performing their regular duties.
    (ii) Mitigation zone and requirements. 2,500 yd around the intended 
target.
    (A) Prior to the initial start of the activity (e.g., when arriving 
on station), Navy personnel must observe the mitigation zone for 
floating vegetation; if observed, Navy personnel must relocate or delay 
the start until the mitigation zone is clear. Navy personnel also must 
observe the mitigation zone for marine mammals; if observed, Navy 
personnel must relocate or delay the start of bomb deployment.
    (B) During the activity (e.g., during target approach), Navy 
personnel must observe for marine mammals; if observed, Navy personnel 
must cease bomb deployment.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing bomb deployment) until one of the following 
conditions has been met: The animal is observed exiting the mitigation 
zone; the animal is thought to have exited the mitigation zone based on 
a determination of its course, speed, and movement relative to the 
intended target; the mitigation zone has been clear from any additional 
sightings for 10 min; or for activities using mobile targets, the 
intended target has transited a distance equal to double that of the 
mitigation zone size beyond the location of the last sighting.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station), when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (11) Sinking exercises--(i) Number of Lookouts and observation 
platform. Two Lookouts (one must be positioned in an aircraft and one 
must be positioned on a vessel). If additional platforms are 
participating in the activity, Navy personnel positioned in those 
assets (e.g., safety observers, evaluators) must support observing the

[[Page 57254]]

mitigation zone for applicable biological resources while performing 
their regular duties.
    (ii) Mitigation zone and requirements. 2.5 nautical miles (nmi) 
around the target ship hulk.
    (A) Prior to the initial start of the activity (90 min prior to the 
first firing), Navy personnel must conduct aerial observations of the 
mitigation zone for floating vegetation and delay the start until the 
mitigation zone is clear. Navy personnel also must conduct aerial 
observations of the mitigation zone for marine mammals and jellyfish 
aggregations; if observed, Navy personnel must delay the start of 
firing.
    (B) During the activity, Navy personnel must conduct passive 
acoustic monitoring for marine mammals and use information from 
detections to assist visual observations. Navy personnel must visually 
observe the mitigation zone for marine mammals from the vessel; if 
observed, Navy personnel must cease firing. Immediately after any 
planned or unplanned breaks in weapons firing of longer than two hours, 
Navy personnel must observe the mitigation zone for marine mammals from 
the aircraft and vessel; if observed, Navy personnel must delay 
recommencement of firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the target 
ship hulk; or the mitigation zone has been clear from any additional 
sightings for 30 min.
    (D) After completion of the activity (for two hours after sinking 
the vessel or until sunset, whichever comes first), Navy personnel must 
observe for marine mammals in the vicinity of where detonations 
occurred; if any injured or dead marine mammals are observed, Navy 
personnel must follow established incident reporting procedures. If 
additional platforms are supporting this activity (e.g., providing 
range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (12) Explosive mine countermeasure and neutralization activities--
(i) Number of Lookouts and observation platform. (A) One Lookout must 
be positioned on a vessel or in an aircraft when implementing the 
smaller mitigation zone (using up to 0.1-5 lb net explosive weight 
charges).
    (B) Two Lookouts (one must be in an aircraft and one must be on a 
small boat) when implementing the larger mitigation zone (using up to 
6-650 lb net explosive weight charges).
    (C) If additional platforms are participating in the activity, Navy 
personnel positioned in those assets (e.g., safety observers, 
evaluators) will support observing the mitigation zone for applicable 
biological resources while performing their regular duties.
    (ii) Mitigation zone and requirements. (A) 600 yd around the 
detonation site for activities using 0.1-5 lb net explosive weight.
    (B) 2,100 yd around the detonation site for activities using 6-650 
lb net explosive weight (including high explosive target mines).
    (C) Prior to the initial start of the activity (e.g., when 
maneuvering on station; typically, 10 min when the activity involves 
aircraft that have fuel constraints, or 30 min when the activity 
involves aircraft that are not typically fuel constrained), Navy 
personnel must observe the mitigation zone for floating vegetation; if 
observed, Navy personnel must relocate or delay the start until the 
mitigation zone is clear. Navy personnel also must observe the 
mitigation zone for marine mammals; if observed, Navy personnel must 
relocate or delay the start of detonations.
    (D) During the activity, Navy personnel must observe the mitigation 
zone for marine mammals; if observed, the Navy must cease detonations.
    (E) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to detonation 
site; or the mitigation zone has been clear from any additional 
sightings for 10 min when the activity involves aircraft that have fuel 
constraints, or 30 min when the activity involves aircraft that are not 
typically fuel constrained.
    (F) After completion of the activity (typically 10 min when the 
activity involves aircraft that have fuel constraints, or 30 min when 
the activity involves aircraft that are not typically fuel 
constrained), Navy personnel must observe for marine mammals in the 
vicinity of where detonations occurred; if any injured or dead marine 
mammals are observed, Navy personnel must follow established incident 
reporting procedures. If additional platforms are supporting this 
activity (e.g., providing range clearance), these Navy assets will 
assist in the visual observation of the area where detonations 
occurred.
    (13) Explosive mine neutralization activities involving Navy 
divers--(i) Number of Lookouts and observation platform. (A) Two 
Lookouts (two small boats with one Lookout each, or one Lookout must be 
on a small boat and one must be in a rotary-wing aircraft) when 
implementing the smaller mitigation zone.
    (B) Four Lookouts (two small boats with two Lookouts each), and a 
pilot or member of an aircrew must serve as an additional Lookout if 
aircraft are used during the activity, when implementing the larger 
mitigation zone.
    (C) All divers placing the charges on mines must support the 
Lookouts while performing their regular duties and must report 
applicable sightings to their supporting small boat or Range Safety 
Officer.
    (D) If additional platforms are participating in the activity, Navy 
personnel positioned in those assets (e.g., safety observers, 
evaluators) must support observing the mitigation zone for applicable 
biological resources while performing their regular duties.
    (ii) Mitigation zone and requirements. (A) 500 yd around the 
detonation site during activities under positive control using 0.1-20 
lb net explosive weigh.
    (B) 1,000 yd around the detonation site during all activities using 
time-delay fuses (0.1-20 lb net explosive weight) and during activities 
under positive control using 21-60 lb net explosive weight charges.
    (C) Prior to the initial start of the activity (e.g., when 
maneuvering on station for activities under positive control; 30 min 
for activities using time-delay firing devices), Navy personnel must 
observe the mitigation zone for floating vegetation; if observed, Navy 
personnel must relocate or delay the start until the mitigation zone is 
clear. Navy personnel also must observe the mitigation zone for marine 
mammals; if resource observed, Navy personnel must relocate or delay 
the start of detonations or fuse initiation.
    (D) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease detonations or fuse 
initiation. To the maximum extent practicable depending on mission

[[Page 57255]]

requirements, safety, and environmental conditions, boats must position 
themselves near the mid-point of the mitigation zone radius (but 
outside of the detonation plume and human safety zone), must position 
themselves on opposite sides of the detonation location (when two boats 
are used), and must travel in a circular pattern around the detonation 
location with one Lookout observing inward toward the detonation site 
and the other observing outward toward the perimeter of the mitigation 
zone. If used, aircraft must travel in a circular pattern around the 
detonation location to the maximum extent practicable. Navy personnel 
must not set time-delay firing devices (0.1-20 lb. net explosive 
weight) to exceed 10 min.
    (E) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
detonation site; or the mitigation zone has been clear from any 
additional sightings for 10 min during activities under positive 
control with aircraft that have fuel constraints, or 30 min during 
activities under positive control with aircraft that are not typically 
fuel constrained and during activities using time-delay firing devices.
    (F) After completion of an activity (for 30 min), Navy personnel 
must observe for marine mammals in the vicinity of where detonations 
occurred; if any injured or dead marine mammals are observed, Navy 
personnel must follow established incident reporting procedures. If 
additional platforms are supporting this activity (e.g., providing 
range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (14) Maritime security operations--anti-swimmer grenades--(i) 
Number of Lookouts and observation platform. One Lookout must be 
positioned on the small boat conducting the activity. If additional 
platforms are participating in the activity, Navy personnel positioned 
in those assets (e.g., safety observers, evaluators) must support 
observing the mitigation zone for applicable biological resources while 
performing their regular duties.
    (ii) Mitigation zone and requirements. 200 yd around the intended 
detonation location.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must relocate 
or delay the start until the mitigation zone is clear. Navy personnel 
also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of detonations.
    (B) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease detonations.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended detonation location; the mitigation zone has been clear from 
any additional sightings for 30 min.; or the intended detonation 
location has transited a distance equal to double that of the 
mitigation zone size beyond the location of the last sighting.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station), when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets must assist in the visual 
observation of the area where detonations occurred.
    (15) Line charge testing--(i) Number of Lookouts and observation 
platform. One Lookout must be positioned on a vessel. If additional 
platforms are participating in the activity, Navy personnel positioned 
in those assets (e.g., safety observers, evaluators) must support 
observing the mitigation zone for applicable biological resources while 
performing their regular duties.
    (ii) Mitigation zone and requirements. 900 yd around the intended 
detonation location.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must delay 
the start until the mitigation zone is clear. Navy personnel also must 
observe the mitigation zone for marine mammals; if observed, Navy 
personnel must delay the start of detonations.
    (B) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease detonations.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended detonation location; or the mitigation zone has been clear 
from any additional sightings for 30 min.
    (D) After completion of the activity (e.g., prior to maneuvering 
off station), when practical (e.g., when platforms are not constrained 
by fuel restrictions or mission-essential follow-on commitments), Navy 
personnel must observe for marine mammals in the vicinity of where 
detonations occurred; if any injured or dead marine mammals are 
observed, Navy personnel must follow established incident reporting 
procedures. If additional platforms are supporting this activity (e.g., 
providing range clearance), these Navy assets will assist in the visual 
observation of the area where detonations occurred.
    (16) Ship shock trials--(i) Number of Lookouts and observation 
platform. (A) A minimum of ten Lookouts or trained marine species 
observers (or a combination thereof) must be positioned either in an 
aircraft or on multiple vessels (i.e., a Marine Animal Response Team 
boat and the test ship).
    (1) If aircraft are used, Lookouts or trained marine species 
observers must be in an aircraft and on multiple vessels.
    (2) If aircraft are not used, a sufficient number of additional 
Lookouts or trained marine species observers must be used to provide 
vessel-based visual observation comparable to that achieved by aerial 
surveys.
    (B) If additional platforms are participating in the activity, Navy 
personnel positioned in those assets (e.g., safety observers, 
evaluators) must

[[Page 57256]]

support observing the mitigation zone for applicable biological 
resources while performing their regular duties.
    (ii) Mitigation zone and requirements. 3.5 nmi around the ship 
hull.
    (A) The Navy must not conduct ship shock trials in the Jacksonville 
Operating Area during North Atlantic right whale calving season from 
November 15 through April 15.
    (B) The Navy must develop detailed ship shock trial monitoring and 
mitigation plans approximately one-year prior to an event and must 
continue to provide these to NMFS for review and approval.
    (C) Pre-activity planning must include selection of one primary and 
two secondary areas where marine mammal populations are expected to be 
the lowest during the event, with the primary and secondary locations 
located more than 2 nmi from the western boundary of the Gulf Stream 
for events in the Virginia Capes Range Complex or Jacksonville Range 
Complex.
    (D) If it is determined during pre-activity surveys that the 
primary area is environmentally unsuitable (e.g., observations of 
marine mammals or presence of concentrations of floating vegetation), 
the shock trial can be moved to a secondary site in accordance with the 
detailed mitigation and monitoring plan provided to NMFS.
    (E) Prior to the initial start of the activity at the primary shock 
trial location (in intervals of 5 hrs, 3 hrs, 40 min, and immediately 
before the detonation), Navy personnel must observe the mitigation zone 
for floating vegetation; if observed, Navy personnel must delay the 
start until the mitigation zone is clear. Navy personnel also must 
observe the mitigation zone for marine mammals; if observed, Navy 
personnel must delay triggering the detonation.
    (F) During the activity, Navy personnel must observe for marine 
mammals, large schools of fish, jellyfish aggregations, and flocks of 
seabirds; if observed, Navy personnel must cease triggering the 
detonation. After completion of each detonation, Navy personnel must 
observe the mitigation zone for marine mammals; if any injured or dead 
marine mammals are observed, Navy personnel must follow established 
incident reporting procedures and halt any remaining detonations until 
Navy personnel can consult with NMFS and review or adapt the 
mitigation, if necessary.
    (G) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing detonations) until one of the following conditions 
has been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the ship 
hull; or the mitigation zone has been clear from any additional 
sightings for 30 min.
    (H) After completion of the activity (during the following two days 
at a minimum, and up to seven days at a maximum), Navy personnel must 
observe for marine mammals in the vicinity of where detonations 
occurred; if any injured or dead marine mammals are observed, Navy 
personnel must follow established incident reporting procedures. If 
additional platforms are supporting this activity (e.g., providing 
range clearance), these Navy assets will assist in the visual 
observation of the area where detonations occurred.
    (17) Vessel movement. The mitigation will not be applied if: the 
vessel's safety is threatened; the vessel is restricted in its ability 
to maneuver (e.g., during launching and recovery of aircraft or landing 
craft, during towing activities, when mooring, etc.); or the vessel is 
operated autonomously.
    (i) Number of Lookouts and observation platform. One Lookout must 
be on the vessel that is underway.
    (ii) Mitigation zone and requirements. (A) 500 yd around whales.
    (B) 200 yd around all other marine mammals (except bow-riding 
dolphins and pinnipeds hauled out on man-made navigational structures, 
port structures, and vessels).
    (C) During the activity, when underway, Navy personnel must observe 
the mitigation zone for marine mammals; if observed, Navy personnel 
must maneuver to maintain distance.
    (D) Additionally, Navy personnel must broadcast awareness 
notification messages with North Atlantic right whale Dynamic 
Management Area information (e.g., location and dates) to applicable 
Navy assets operating in the vicinity of the Dynamic Management Area. 
The information will alert assets to the possible presence of a North 
Atlantic right whale to maintain safety of navigation and further 
reduce the potential for a vessel strike. Platforms will use the 
information to assist their visual observation of applicable mitigation 
zones during training and testing activities and to aid in the 
implementation of procedural mitigation, including but not limited to, 
mitigation for vessel movement. If a marine mammal vessel strike 
occurs, Navy personnel must follow the established incident reporting 
procedures.
    (18) Towed in-water devices. Mitigation applies to devices that are 
towed from a manned surface platform or manned aircraft. The mitigation 
will not be applied if the safety of the towing platform or in-water 
device is threatened.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned on a manned towing platform.
    (ii) Mitigation zone and requirements. 250 yd around marine 
mammals. During the activity, when towing an in-water device, Navy 
personnel must observe for marine mammals; if observed, Navy personnel 
must maneuver to maintain distance.
    (19) Small-, medium-, and large-caliber non-explosive practice 
munitions. Mitigation applies to activities using a surface target.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned on the platform conducting the activity. Depending on the 
activity, the Lookout could be the same as the one described for 
weapons firing noise in paragraph (a)(5)(i) of this section.
    (ii) Mitigation zone and requirements. 200 yd around the intended 
impact location.
    (A) Prior to the initial start of the activity (e.g., when 
maneuvering on station), Navy personnel must observe the mitigation 
zone for floating vegetation; if observed, Navy personnel must relocate 
or delay the start until the mitigation zone is clear. Navy personnel 
also must observe the mitigation zone for marine mammals; if observed, 
Navy personnel must relocate or delay the start of firing.
    (B) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting before or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended impact location; the mitigation zone has been clear from any 
additional sightings for 10 min for aircraft-based firing or 30 min for 
vessel-based firing; or for

[[Page 57257]]

activities using a mobile target, the intended impact location has 
transited a distance equal to double that of the mitigation zone size 
beyond the location of the last sighting.
    (20) Non-explosive missiles and rockets. Aircraft-deployed non-
explosive missiles and rockets. Mitigation applies to activities using 
a surface target.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned in an aircraft.
    (ii) Mitigation zone and requirements. 900 yd around the intended 
impact location.
    (A) Prior to the initial start of the activity (e.g., during a fly-
over of the mitigation zone), Navy personnel must observe the 
mitigation zone for floating vegetation; if observed, Navy personnel 
must relocate or delay the start until the mitigation zone is clear. 
Navy personnel also must observe the mitigation zone for marine 
mammals; if observed, Navy personnel must relocate or delay the start 
of firing.
    (B) During the activity, Navy personnel must observe for marine 
mammals; if observed, Navy personnel must cease firing.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting prior to or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing firing) until one of the following conditions has 
been met: The animal is observed exiting the mitigation zone; the 
animal is thought to have exited the mitigation zone based on a 
determination of its course, speed, and movement relative to the 
intended impact location; or the mitigation zone has been clear from 
any additional sightings for 10 min when the activity involves aircraft 
that have fuel constraints, or 30 min when the activity involves 
aircraft that are not typically fuel constrained.
    (21) Non-explosive bombs and mine shapes. Non-explosive bombs and 
non-explosive mine shapes during mine laying activities.
    (i) Number of Lookouts and observation platform. One Lookout must 
be positioned in an aircraft.
    (ii) Mitigation zone and requirements. 1,000 yd around the intended 
target.
    (A) Prior to the initial start of the activity (e.g., when arriving 
on station), Navy personnel must observe the mitigation zone for 
floating vegetation; if observed, Navy personnel must relocate or delay 
the start until the mitigation zone is clear. Navy personnel also must 
observe the mitigation zone for marine mammals; if observed, Navy 
personnel must relocate or delay the start of bomb deployment or mine 
laying.
    (B) During the activity (e.g., during approach of the target or 
intended minefield location), Navy personnel must observe the 
mitigation zone for marine mammals; if observed, Navy personnel must 
cease bomb deployment or mine laying.
    (C) Commencement/recommencement conditions after a marine mammal 
sighting prior to or during the activity: Navy personnel must allow a 
sighted marine mammal to leave the mitigation zone prior to the initial 
start of the activity (by delaying the start) or during the activity 
(by not recommencing bomb deployment or mine laying) until one of the 
following conditions has been met: The animal is observed exiting the 
mitigation zone; the animal is thought to have exited the mitigation 
zone based on a determination of its course, speed, and movement 
relative to the intended target or minefield location; the mitigation 
zone has been clear from any additional sightings for 10 min; or for 
activities using mobile targets, the intended target has transited a 
distance equal to double that of the mitigation zone size beyond the 
location of the last sighting.
    (b) Mitigation areas. In addition to procedural mitigation, the 
Navy must implement mitigation measures within mitigation areas to 
avoid potential impacts on marine mammals.
    (1) Mitigation areas off the Northeastern United States for sonar, 
explosives, and physical disturbance and strikes--(i) Mitigation area 
requirements. (A) Northeast North Atlantic Right Whale Mitigation Area 
(year-round):
    (1) Navy personnel must report the total hours and counts of active 
sonar and in-water explosives used in the mitigation area (which 
includes North Atlantic right whale ESA-designated critical habitat) in 
its annual training and testing activity reports submitted to NMFS.
    (2) Navy personnel must minimize the use of low-frequency active 
sonar, mid-frequency active sonar, and high-frequency active sonar to 
the maximum extent practicable within the mitigation area.
    (3) Navy personnel must not use Improved Extended Echo Ranging 
sonobuoys in or within 3 nmi of the mitigation area or use explosive 
and non-explosive bombs, in-water detonations, and explosive torpedoes 
within the mitigation area.
    (4) For activities using non-explosive torpedoes within the 
mitigation area, Navy personnel must conduct activities during daylight 
hours in Beaufort sea state 3 or less. The Navy must use three Lookouts 
(one positioned on a vessel and two positioned in an aircraft during 
dedicated aerial surveys) to observe the vicinity of the activity. An 
additional Lookout must be positioned on the submarine, when surfaced. 
Immediately prior to the start of the activity, Navy personnel will 
observe for floating vegetation and marine mammals; if observed, Navy 
personnel will not commence the activity until the vicinity is clear or 
the activity is relocated to an area where the vicinity is clear. 
During the activity, Navy personnel will observe for marine mammals; if 
observed, Navy personnel will cease the activity. To allow a sighted 
marine mammal to leave the area, Navy personnel must not recommence the 
activity until one of the following conditions has been met: The animal 
is observed exiting the vicinity of the activity; the animal is thought 
to have exited the vicinity of the activity based on a determination of 
its course, speed, and movement relative to the activity location; or 
the area has been clear from any additional sightings for 30 min. 
During transits and normal firing, ships will maintain a speed of no 
more than 10 knots (kn). During submarine target firing, ships must 
maintain speeds of no more than 18 kn. During vessel target firing, 
vessel speeds may exceed 18 kn for brief periods of time (e.g., 10-15 
min).
    (5) For all activities, before vessel transits within the 
mitigation area, Navy personnel must conduct a web query or email 
inquiry to the National Oceanographic and Atmospheric Administration 
Northeast Fisheries Science Center's North Atlantic Right Whale 
Sighting Advisory System to obtain the latest North Atlantic right 
whale sightings information. Navy personnel on vessels must use the 
sightings information to reduce potential interactions with North 
Atlantic right whales during transits. Navy personnel on vessels must 
implement speed reductions within the mitigation area after observing a 
North Atlantic right whale, if transiting within 5 nmi of a sighting 
reported to the North Atlantic Right Whale Sighting Advisory System 
within the past week, and if transiting at night or during periods of 
reduced visibility.
    (B) Gulf of Maine Planning Awareness Mitigation Area (year-round):
    (1) Navy personnel must report the total hours and counts of active 
sonar and in-water explosives used in the

[[Page 57258]]

mitigation area in its annual training and testing activity reports 
submitted to NMFS.
    (2) Navy personnel must not conduct greater than 200 hrs of hull-
mounted mid-frequency active sonar per year within the mitigation area.
    (3) Navy personnel must not conduct major training exercises 
(Composite Training Unit Exercises or Fleet Exercises/Sustainment 
Exercises) within the mitigation area. If the Navy needs to conduct a 
major training exercise within the mitigation area in support of 
training requirements driven by national security concerns, Navy 
personnel must confer with NMFS to verify that potential impacts are 
adequately addressed.
    (C) Northeast Planning Awareness Mitigation Areas (year-round):
    (1) Navy personnel will avoid planning major training exercises 
(Composite Training Unit Exercises or Fleet Exercises/Sustainment 
Exercises) within the mitigation area to the maximum extent 
practicable.
    (2) Navy personnel must not conduct more than four major training 
exercises per year (all or a portion of the exercise) within the 
mitigation area.
    (3) If the Navy needs to conduct additional major training 
exercises in the mitigation area in support of training requirements 
driven by national security concerns, Navy personnel must provide NMFS 
with advance notification and include the information in its annual 
training and testing activity reports submitted to NMFS.
    (ii) [Reserved]
    (2) Mitigation areas off the Mid-Atlantic and Southeastern United 
States for sonar, explosives, and physical disturbance and strikes--(i) 
Mitigation area requirements. (A) Southeast North Atlantic Right Whale 
Mitigation Area (November 15 through April 15):
    (1) Navy personnel must report the total hours and counts of active 
sonar and in-water explosives used in the mitigation area in its annual 
training and testing activity reports submitted to NMFS.
    (2) The Navy must not conduct: Low-frequency active sonar (except 
as noted in paragraph (b)(2)(i)(A)(3) of this section), mid-frequency 
active sonar (except as noted in paragraph (b)(2)(i)(A)(3) of this 
section), high-frequency active sonar, missile and rocket activities 
(explosive and non-explosive), small-, medium-, and large-caliber 
gunnery activities, Improved Extended Echo Ranging sonobuoy activities, 
explosive and non-explosive bombing activities, in-water detonations, 
and explosive torpedo activities within the mitigation area.
    (3) To the maximum extent practicable, Navy personnel must minimize 
the use of: Helicopter dipping sonar, low-frequency active sonar and 
hull-mounted mid-frequency active sonar used for navigation training, 
and low-frequency active sonar and hull-mounted mid-frequency active 
sonar used for object detection exercises within the mitigation area.
    (4) Before transiting or conducting training or testing activities 
within the mitigation area, Navy personnel must initiate communication 
with the Fleet Area Control and Surveillance Facility, Jacksonville to 
obtain Early Warning System North Atlantic right whale sightings data. 
The Fleet Area Control and Surveillance Facility, Jacksonville must 
advise Navy personnel on vessels of all reported whale sightings in the 
vicinity to help Navy personnel on vessels and aircraft reduce 
potential interactions with North Atlantic right whales. Commander 
Submarine Force U.S. Atlantic Fleet must coordinate any submarine 
activities that may require approval from the Fleet Area Control and 
Surveillance Facility, Jacksonville. Navy personnel on vessels must use 
the sightings information to reduce potential interactions with North 
Atlantic right whales during transits.
    (5) Navy personnel on vessels must implement speed reductions after 
they observe a North Atlantic right whale, if they are within 5 nmi of 
a sighting reported within the past 12 hrs, or when operating in the 
mitigation area at night or during periods of poor visibility.
    (6) To the maximum extent practicable, Navy personnel on vessels 
must minimize north-south transits in the mitigation area.
    (B) Southeast North Atlantic Right Whale Critical Habitat Special 
Reporting Area (November 15 through April 15):
    (1) Navy personnel must report the total hours and counts of active 
sonar and in-water explosives used in the Special Reporting Area (which 
includes southeast North Atlantic right whale ESA-designated critical 
habitat) in its annual training and testing activity reports submitted 
to NMFS.
    (2) [Reserved]
    (C) Jacksonville Operating Area (November 15 through April 15):
    (1) Navy units conducting training or testing activities in the 
Jacksonville Operating Area must initiate communication with the Fleet 
Area Control and Surveillance Facility, Jacksonville to obtain Early 
Warning System North Atlantic right whale sightings data. The Fleet 
Area Control and Surveillance Facility, Jacksonville must advise Navy 
personnel on vessels of all reported whale sightings in the vicinity to 
help Navy personnel on vessels and aircraft reduce potential 
interactions with North Atlantic right whales. Commander Submarine 
Force U.S. Atlantic Fleet must coordinate any submarine activities that 
may require approval from the Fleet Area Control and Surveillance 
Facility, Jacksonville. Navy personnel must use the reported sightings 
information as they plan specific details of events (e.g., timing, 
location, duration) to minimize potential interactions with North 
Atlantic right whales to the maximum extent practicable. Navy personnel 
must use the reported sightings information to assist visual 
observations of applicable mitigation zones and to aid in the 
implementation of procedural mitigation.
    (2) [Reserved]
    (D) Navy Cherry Point Range Complex Nearshore Mitigation Area 
(March through September):
    (1) Navy personnel must not conduct explosive mine neutralization 
activities involving Navy divers in the mitigation area.
    (2) To the maximum extent practicable, Navy personnel must not use 
explosive sonobuoys, explosive torpedoes, explosive medium-caliber and 
large-caliber projectiles, explosive missiles and rockets, explosive 
bombs, explosive mines during mine countermeasure and neutralization 
activities, and anti-swimmer grenades in the mitigation area.
    (E) Mid-Atlantic Planning Awareness Mitigation Areas (year-round):
    (1) Navy personnel will avoid planning major training exercises 
(Composite Training Unit Exercises or Fleet Exercises/Sustainment 
Exercises) to the maximum extent practicable.
    (2) Navy personnel must not conduct more than four major training 
exercises per year (all or a portion of the exercise) within the 
mitigation area.
    (3) If the Navy needs to conduct additional major training 
exercises in the mitigation area in support of training requirements 
driven by national security concerns, Navy personnel will provide NMFS 
with advance notification and include the information in its annual 
training and testing activity reports submitted to NMFS.
    (ii) [Reserved]
    (3) Mitigation areas in the Gulf of Mexico for sonar--(i) 
Mitigation area requirements. (A) Gulf of Mexico Planning Awareness 
Mitigation Areas (year-round):
    (1) Navy personnel must not conduct major training exercises within 
the mitigation area (all or a portion of the exercise).

[[Page 57259]]

    (2) If the Navy needs to conduct a major training exercise within 
the mitigation areas in support of training requirements driven by 
national security concerns, Navy personnel must confer with NMFS to 
verify that potential impacts are adequately addressed.
    (B) Bryde's Whale Mitigation Area (year-round):
    (1) Navy personnel must report the total hours and counts of active 
sonar and in-water explosives used in the mitigation area in its annual 
training and testing activity reports submitted to NMFS.
    (2) Navy personnel must not conduct greater than 200 hrs of hull-
mounted mid-frequency active sonar per year within the mitigation area.
    (3) The Navy must not use explosives (except during mine warfare 
activities) within the mitigation area.
    (ii) [Reserved]


Sec.  218.85   Requirements for monitoring and reporting.

    (a) Unauthorized take. The Navy must notify NMFS immediately (or as 
soon as operational security considerations allow) if the specified 
activity identified in Sec.  218.80 is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any Level A or 
Level B harassment take of marine mammals not identified in this 
subpart.
    (b) Monitoring and reporting under the LOAs. The Navy must conduct 
all monitoring and required reporting under the LOAs, including abiding 
by the AFTT Study Area monitoring program. Details on program goals, 
objectives, project selection process, and current projects are 
available at www.navymarinespeciesmonitoring.us.
    (c) Notification of injured, live stranded, or dead marine mammals. 
The Navy must consult the Notification and Reporting Plan, which sets 
out notification, reporting, and other requirements when dead, injured, 
or live stranded marine mammals are detected. The Notification and 
Reporting Plan is available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
    (d) Annual AFTT Study Area marine species monitoring report. The 
Navy must submit an annual report of the AFTT Study Area monitoring 
describing the implementation and results from the previous calendar 
year. Data collection methods must be standardized across range 
complexes and study areas to allow for comparison in different 
geographic locations. The report must be submitted to the Director, 
Office of Protected Resources of NMFS 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. This report will 
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 must be 
treated together so that progress on each topic can 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.
    (e) Annual AFTT Study Area training and testing reports. Each year, 
the Navy must submit a preliminary report (Quick Look Report) detailing 
the status of authorized sound sources within 21 days after the 
anniversary of the date of issuance of each LOA to the Director, Office 
of Protected Resources, NMFS. Each year, the Navy must submit a 
detailed report within 3 months after the anniversary of the date of 
issuance of each LOA to the Director, Office of Protected Resources, 
NMFS. The annual reports must contain information on Major Training 
Exercises (MTEs), Sinking Exercise (SINKEX) events, and a summary of 
all sound sources used, including within specified mitigation reporting 
areas, as described in paragraph (e)(3) of this section. The analysis 
in the detailed report must be based on the accumulation of data from 
the current year's report and data collected from the previous report. 
The detailed reports must contain information identified in paragraphs 
(e)(1) through (5) of this section.
    (1) MTEs. This section of the report must contain the following 
information for MTEs conducted in the AFTT Study Area:
    (i) Exercise Information (for each MTE):
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location.
    (D) Number and types of active sonar sources used in the exercise.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Number and types of vessels, aircraft, and other platforms, 
participating in exercise.
    (G) Total hours of all active sonar source operation.
    (H) Total hours of each active sonar source bin.
    (I) 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.g., sonar, Lookout).
    (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 was less than 200 yd, 200 to 500 
yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 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 was hull-mounted, true bearing of animal from 
the vessel, true direction of vessel's travel, and estimation of 
animal's motion relative to vessel (opening, closing, parallel).
    (M) Observed behavior. Lookouts must report, in plain language and 
without trying to categorize in any way, the observed behavior of the 
animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.) and if any calves 
were 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 
must identify the specific observations that support any conclusions 
the Navy reaches about the effectiveness of the mitigation.
    (2) SINKEXs. This section must include the following information 
for each SINKEX completed that year:
    (i) Exercise information (gathered for each SINKEX):
    (A) Location.
    (B) Date and time exercise began and ended.
    (C) Total hours of observation by Lookouts before, during, and 
after exercise.
    (D) Total number and types of explosive source bins detonated.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Total hours of passive acoustic search time.
    (G) Number and types of vessels, aircraft, and other platforms 
participating in exercise.

[[Page 57260]]

    (H) Wave height in feet (high, low, and average) during exercise.
    (J) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation (by Navy Lookouts) 
information (gathered for each marine mammal sighting) for each 
sighting where mitigation was implemented:
    (A) Date/Time/Location of sighting.
    (B) Species (if not possible, indicate whale, dolphin, or 
pinniped).
    (C) Number of individuals.
    (D) Initial detection sensor (e.g., sonar or Lookout).
    (E) Length of time observers maintained visual contact with marine 
mammal.
    (F) Sea state.
    (G) Visibility.
    (H) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
    (I) Distance of marine mammal from actual detonations: Less than 
200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater 
than 2,000 yd (or target spot if not yet detonated).
    (J) Observed behavior. Lookouts must report, in plain language and 
without trying to categorize in any way, the observed behavior of the 
animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction and if any calves were present.
    (K) Resulting mitigation implementation. The report must indicate 
whether explosive detonations were delayed, ceased, modified, or not 
modified due to marine mammal presence and for how long.
    (L) If observation occurred while explosives were detonating in the 
water, indicate munition type in use at time of marine mammal 
detection.
    (3) Summary of sources used. This section must include the 
following information summarized from the authorized sound sources used 
in all training and testing events:
    (i) Total annual hours or quantity (per the LOA) of each bin of 
sonar or other acoustic sources (pile driving and air gun activities); 
and
    (ii) Total annual expended/detonated ordnance (missiles, bombs, 
sonobuoys, etc.) for each explosive bin.
    (4) Geographic information presentation. The reports must present 
an annual (and seasonal, where practical) depiction of training and 
testing bin usage (as well as pile driving activities) geographically 
across the AFTT Study Area.
    (5) Sonar exercise notification. The Navy must submit to NMFS 
(contact as specified in the LOA) an electronic report within fifteen 
calendar days after the completion of any MTE indicating:
    (i) Location of the exercise;
    (ii) Beginning and end dates of the exercise; and
    (iii) Type of exercise.
    (f) Five-year close-out comprehensive training and testing report. 
This report must be included as part of the 2023 annual training and 
testing report. This report must provide the annual totals for each 
sound source bin with a comparison to the annual allowance and the 
five-year total for each sound source bin with a comparison to the 
five-year allowance. Additionally, if there were any changes to the 
sound source allowance, this report must 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 EIS and final rule 
determinations. The draft report must be submitted three months after 
the expiration of this subpart to the Director, Office of Protected 
Resources, NMFS. NMFS must submit comments on the draft close-out 
report, if any, within three 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.


Sec.  218.86  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
in this subpart, the Navy must apply for and obtain Letters of 
Authorization (LOAs) in accordance with Sec.  216.106 of this chapter.
    (b) LOAs, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of the regulations in 
this subpart.
    (c) If an LOA expires prior to the expiration date of the 
regulations in this subpart, the Navy may apply for and obtain a 
renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation, monitoring, or reporting (excluding changes made pursuant 
to the adaptive management provision of Sec.  218.87(c)(1)) as required 
by an LOA issued under this subpart, the Navy must apply for and obtain 
a modification of the LOA as described in Sec.  218.87.
    (e) Each LOA will set forth:
    (1) Permissible methods of incidental taking;
    (2) Specified geographic areas for incidental taking;
    (3) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species or stocks of marine mammals and their 
habitat; and
    (4) Requirements for monitoring and reporting.
    (f) Issuance of the LOA(s) will be based on a determination that 
the level of taking must be consistent with the findings made for the 
total taking allowable under the regulations in this subpart.
    (g) Notice of issuance or denial of the LOA(s) will be published in 
the Federal Register within 30 days of a determination.


Sec.  218.87   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
218.86 may be renewed or modified upon request by the applicant, 
provided that:
    (1) The planned specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for the regulations in this subpart 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA(s) under the regulations in this 
subpart were implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or to the mitigation, monitoring, or 
reporting measures (excluding changes made pursuant to the adaptive 
management provision in paragraph (c)(1) of this section) that do not 
change the findings made for the regulations or result in no more than 
a minor change in the total estimated number of takes (or distribution 
by species or stock or years), NMFS may publish a notice of planned LOA 
in the Federal Register, including the associated analysis of the 
change, and solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
218.86 may be modified by NMFS under the following circumstances:
    (1) Adaptive management. After consulting with the Navy regarding 
the practicability of the modifications, NMFS may modify (including 
adding or removing measures) the existing mitigation, monitoring, or 
reporting measures if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring.
    (i) Possible sources of data that could contribute to the decision 
to modify the

[[Page 57261]]

mitigation, monitoring, or reporting measures in an LOA include:
    (A) Results from the Navy's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; or
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent, or number not authorized by the regulations in 
this subpart or subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of planned LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 
of this chapter and 218.86, an LOA may be modified without prior notice 
or opportunity for public comment. Notice would be published in the 
Federal Register within thirty days of the action.


Sec. Sec.  218.88-218.89   [Reserved]

[FR Doc. 2018-24042 Filed 11-13-18; 8:45 am]
 BILLING CODE 3510-22-P